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Business and Economy

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Block listing permanently – not correct= M/s Kulja Industries Limited …Appellant Versus Chief Gen. Manager W.T. Proj. BSNL & Ors. …Respondents= published in judis.nic.in/supremecourt/filename=40855

Block listing permanently – not correct – remanded for fresh determination as per the department guidelines =         Paras   31 and 32 of the bid  document  also,  according  to  the  learned  counsel,   provides for blacklisting only for a “suitable period”.  This  implies  that   blacklisting had to be for a … Continue reading

Australian Trade Marks Office=S96 oppositions unsuccessful – no genuine commercial use of trade marks demonstrated – registrations to be removed from the Register.

Peter and Diane Biden v C4Waterman Inc [2011] ATMO 120 (29 November 2011) Last Updated: 16 December 2011 TRADE MARKS ACT 1995 DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS Re: Oppositions by Peter Maxwell Biden and Diane Biden to applications under section 92 of the Act by C4Waterman Inc to remove trade … Continue reading

Chartered Accountants Act, 1949: ss. 2(d), 24, 24A, 25, 26 and 28 – Person qualifying the exam of Chartered Accountant but not a member of the Institute of Chartered Accountant of India – Person impersonating as Chartered Accountant, preparing audit reports and forged seals – Criminal complaint before police alleging commission of offences punishable u/ss. 419, 420, 468 and 473 – Prosecution under the provisions of Penal Code r/w ss. 24 and 26 of the Act – Trial court and High Court holding that even though prima facie case made out against the accused u/s. 24, 24A and 26, cognizance could not have been taken on the basis of the complaint because no complaint was filed u/s. 28 ;and that he could not be prosecuted under the Penal Code – On appeal, held: If the particular act of a member or a non-member or a company results in contravention of the provisions contained in s. 24 or sub- section (1) of s.24A, 25 or 26 of the Act and such act also amounts to an offence of criminal misconduct under IPC, then a complaint can be filed by or under the order of the Council u/s. 28, which may result in punishment prescribed u/s. 24 or sub-section (2) of ss. 24A, 25 or 26 – Such member or non-member or company can also be prosecuted for any identified offence under IPC – There is no bar against prosecution of such person if he is charged with the allegations constituting offences under Penal Code or under other laws – Matter remitted to trial court to consider whether allegations contained in the complaint constitute any offence under Penal Code – In the absence of a complaint u/s. 28, no charges could be framed against chartered accountant for the alleged contravention of ss. 24, 24A or 26 – Penal Code, 1860 – ss. 419, 420, 468 and 473. ss. 24A(2), 26 and 25(2) – Expression `without prejudice to any other proceedings which may be taken against him’ in ss. 24A(2), 26 and s. 25(2) – Meaning of – In the context of the Chartered Accountants Act, 1949. Criminal Law: Double jeopardy – Simultaneous prosecution of offender for contravention of ss. 24, 24A and 26 of the 1949 Act and for the offences under the Penal Code – Permissibility of – Held: Simultaneous prosecution is permissible but in view of the bar contained in Article 20(2) r/w s.26 of the 1897 Act and s.300 Cr.P.C., punishment twice for the same offence is barred – Chartered Accountants Act, 1949 – ss. 24, 24A, 26 – Penal Code, 1860 – Constitution of India, 1950 – Article 20(2) – General Clauses Act, 1897 – s. 26. Interpretation of statutes: Construction of statutory provisions – Held: When there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. The respondent qualified the exam of Chartered Accountant but is not a member of the appellant-Institute. The appellant- Institute filed a complaint before the police against the respondent alleging cheating by impersonation, forgery and counterfeiting of seal of the Institute, punishable under Sections 419, 468, 471 and 472 IPC. The police filed the challan before the Magistrate. The trial court held that there was no basis for framing any charge against the respondent under IPC; and cognizance of offences under Sections 24 and 26 of the Act could not be taken because no complaint was filed by or under the order of the Council of the appellant- Institute, before the Magistrate. Aggrieved, the appellant filed revisions. The Single Judge of High Court dismissed the same. Therefore, the appellant-institute filed the instant appeals. =Allowing the appeals and remitting the matter to the trial court, the Court HELD: 1.1. Section 24 of the Chartered Accountants Act, 1949 provides for punishment of a person who is not a member of the Institute represents himself as a member of the Institute or uses the designation of chartered accountant. Similar punishment can be imposed on a member of the Institute who does not have a certificate of practice but represents that he is in practice or practises as a chartered accountant. Sub-section (2) of Sections 24A, 25 and 26 provide for imposition of different kinds of punishment for violation of the provisions contained in sub-section (1) of those sections. Section 26 provides for imposition of punishment if a person other than a member of the Institute signs any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity. [Para 12] 1.2. Section 28 which is couched in negative form declares that no person would be prosecuted under the Act except on a complaint made by or under the order of the Council or of the Central Government. The prohibition contained in Section 28 is attracted only when such person is sought to be prosecuted for contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and not for any act or omission which constitutes an offence under the IPC. The use of expression `without prejudice to any other proceedings which may be taken against him’ in sub- section (2) of Sections 24A and 26 and somewhat similar expression in sub- section (2) of Section 25 shows that contravention of the provisions contained in sub-section (1) of those sections can lead to filing of complaint under Section 28 of the Act and if the particular act also amounts an offence under the IPC or any other law, then a complaint can also be filed under Section 200 Cr.P.C. or a first information report lodged with the police under Section 156 Cr.P.C. The said expression cannot be given a restricted meaning in the context of professional and other misconducts which may be committed by a member of the Institute and for which he may be punished under Section 21B(3) because the violation of Sections 24 to 26 can be committed by a person who may or may not be a chartered accountant as defined in Section 2(b). Thus, if the particular act of a member of the Institute or a non-member or a company results in contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or sub-section (2) of Sections 24A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under the IPC. The object underlying the prohibition contained in Section 28 is to protect the persons engaged in profession of chartered accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non-members from prosecution and punishment if the action of such member or non-member amounts to an offence under the IPC or any other law. [Para 13] 1.3. Unlike ss. 416, 463, 464, 468 and 471 of the Penal Code, the provisions contained in Chapter VII of the Act neither define cheating by personation or forgery or counterfeiting of seal, etc. nor provide for punishment for such offences. If it is held that a person acting in violation of Section 24 or contravening sub-section (1) of Sections 24A and 26 of the Act can be punished only under the Act even though his act also amounts to one or more offence(s) defined under the IPC and that too on a complaint made in accordance with Section 28, then the provisions of Chapter VII would become discriminatory and might have to be struck down on the ground of violation of Article 14. Such an unintended consequence can be, and deserves to be avoided, in interpreting Sections 24A, 25 and 26 keeping in view the settled law that if there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. That apart, the court cannot interpret the provisions of the Act in a manner which would deprive the victim of his right to prosecute the wrong doer for the offences defined in Sections 416, 463, 464, 468 and 471 by filing a first information report or a complaint under the relevant provisions of Cr.P.C. [Para 14] 1.4. The respondent could have been simultaneously prosecuted for contravention of Sections 24, 24A and 26 of the Act and for the offences defined under the IPC but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice for the same offence. [Para 15] Maqbool Hussain v. The State of Bombay (1953) 4 SCR 730; T.S. Baliah v. T.S. Rangarchari (1969) 3 SCR 65; State of Bombay v. S.L. Apte (1961) 3 SCR 107; V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467; State of Bihar v. Murad Ali Khan (1988) 4 SCC 655; State of Rajasthan v. Hat Singh (2003) 2 SCC 152, referred to. 1.5. The submission that the Chartered Accountants Act, 1949 is a special legislation vis-

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS._________OF 2010 (Arising out of S.L.P. (Crl.) Nos.3411-3412 of 2009) The Institute of Chartered Accountants of India …….Appellant Versus Vimal Kumar Surana and another …….Respondents J U D G M E N T G.S. Singhvi, J. 1. Leave granted. 2. The question which … Continue reading

Motor Vehicles Act, 1988 – ss. 158(6), 166(4), 196 – Central Motor Vehicle Rules, 1950 – r. 150 – Motor accident – Compensation – In cases of hit and run unidentified vehicles; uninsured vehicles; gratuitous passengers; passengers in goods vehicles; procedural delays in adjudication/settlement of claims; and where compensation amount does not reach the claimants, directions issued and suggestions made by the Court – Directions to the police authorities and claims tribunals for implementation of provisions u/ss. 158(6), 166(4), 196 and r. 150 – Direction to Insurance companies to lodge complaint in cases of forged driving licences – Suggestions made for legislative/executive interference to amend and enact more comprehensive law – Suggestions also made to Insurance Companies. In the instant Special Leave Petition, the Court addressed to four problems generally faced in motor accident cases – (i) Victims who do not receive compensation in cases, that is (a) hit and run vehicles which remain unidentified. (b) offending vehicles not having insurance cover and (c) vehicles with third party insurance carrying persons not covered by insurance (gratuitous passengers and pillion riders etc.). (ii) Practice of using goods vehicles for passenger transport (iii) Procedural delay in adjudication/settlement of claims by Motor Accident Claims Tribunal. (iv) The entire compensation amount not reaching and benefitting the victims and their families. =Adjourning the matter, the Court gave following directions / suggestions: Suggestions For Legislative and Executive Intervention [Problems (i) and (ii)]: 1.1. To ensure that all accident victims get compensation, it is necessary to formulate a more comprehensive scheme for payment of compensation to the victims of road accidents, in place of the present system of third party insurance. [Para 22] 1.2. An alternative scheme involves the collection of a one time (life time) third party insurance premium by a Central Insurance Agency in respect of every vehicle sold (in a manner similar to the collection of life time road tax). The fund created by collection of such third party insurance can be augmented/supplemented by an appropriate road accident cess/surcharge on the price of petrol/diesel sold across the country. Such a hybrid model which involves collection of a fixed life time premium in regard to each vehicle plus imposition of a road accident cess may provide a more satisfactory solution in a vast country like India. This will also address a major grievance of insurance companies that their outgoings by way of compensation in motor accident claims is four times the amount received as motor insurance premia. The general insurance companies may however continue with optional insurance to provide cover against damage to the vehicle and injury to the owner. [Para 23] 1.3. A more realistic and easier alternative is to continue with the present system of third party insurance with two changes: (I) Define `third party’ – to cover any accident victim (that is any third party, other than the owner) and increase the premia, if necessary. (ii) Increase the quantum of compensation payable under Section 161 of the Act in case of hit and run motor accidents. [Para 24] 1.4. There is an urgent need for laying down and enforcing Road safety measures and establishment of large number of Trauma Centres and first aid centres. It is also necessary to consider the establishment of a Road Safety Bureau to lay down Road Safety Standards and norms, enforce Road safety measures, establish and run Trauma Centres, establish First Aid Centres in Petrol Stations, and carry out research/data collection for accident prevention. [Para 25] 1.5. The Central Government may consider amendment of the Second Schedule to the Act to rectify the several mistakes therein and rationalize the compensation payable thereunder. [Para 27] U.P. State Road Transport Corporation v. Trilok Chandra 1996 (4) SCC 362; Sarla Verma v. Delhi Transport Corporation 2009 (6) SCC 121, referred to. 1.6. Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. The appropriate Governments may consider incorporation of a rule on the lines of Rule 6 of the Delhi Motor Accident Claims Tribunal Rules, 2008 in this behalf. [Para 28] 1.7. In place of the provisions relating to Accident tribunals and award of compensation in the Motor Vehicles Act, 1988, and other statutes dealing with accidents and compensation, enacting a comprehensive and unified statute dealing with accidents may be considered. [Para 26] Direction to Police Authorities: [Problem (i)]: 1.8. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/-, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. Therefore, it is directed that the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act. [Para 10] Direction to Police Authorities [Problem (iii)]: 2. The Legislature tried to reduce the period of pendency of claim cases and quicken the process of determination of compensation by making two significant changes in the Act, by Amendment Act 54 of 1994, making it mandatory for registration of a motor accident claim within one month of receipt of first information of the accident, without the claimants having to file a claim petition. Neither the police nor the Motor Accidents Claims Tribunals have made any effort to implement the mandatory provisions of the Act viz. s. 158 (6) and s. 166 (4). If these provisions are faithfully and effectively implemented, it will be possible for the victims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent need for the concerned police authorities and Tribunals to follow the mandate of these provisions. [Para 4] General Insurance Council v. State of A.P. 2007 (12) SCC 354, relied on. 2.1. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. The Station House Officers of the jurisdictional police stations shall submit Accident Information Report (AIR) in Form No. 54 of the Central Motor Vehicle Rules,1989 to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. The police should also collect and furnish the following additional particulars in the AIR to the Tribunal: (i) The age of the victims at the time of accident; (ii) The income of the victim; (iii) The names and ages of the dependent family members. [Para 8] 2.2. The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased should also be furnished to the Tribunal. [Para 8] 2.3. Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim. [Para 8] 2.4. The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing. [Para 8] 2.5. To avoid any administrative difficulties in immediate implementation of Sections 158(6) of the Act, such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions in the first stage by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. [Para 9] 2.6. The Transport Department, Health Department and other concerned departments shall extend necessary co-operation to the Director-Generals to give effect to Section 158 (6). [Para 11] Directions to Motor Accident Claims Tribunals [Problem (iii)]: 3. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166(4) of the Act. [Para 12] 3.1. The Tribunals are required to follow the steps mentioned in para 13 without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation. [Para 14] Suggestions to Insurance Companies [Problem (iii)]: 4.1. In cases of death, where the liability of the insurer is not disputed, the insurance companies should, without waiting for the decision of the Motor Accidents Claims Tribunal or a settlement before the Lok Adalat, endeavour to pay to the family (Legal representatives) of the deceased, compensation as per the standard formula determined by the decisions of this Court. [Para 15] 4.2. In cases of injuries to any accident victim, where the liability is not disputed, the insurer should offer treatment at its cost to the injured, without waiting for an award of the Tribunal. If insurance companies can meet the bills for treatment of those who have taken a medical insurance policy, there is no reason why they should not extend a similar treatment to the accident victims of vehicles insured with them. [Para 16] Suggestion to Insurance Companies [Problem (iv)]: 5.1. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks. One proposal is for formulation of a scheme in consultation with Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. [Para 18] 5.2. The Insurance companies may also consider offering an annuity instead of lump sum compensation. They may prepare an annuity scheme with the involvement of Life Insurance Corporation of India or its own actuaries, under which they can pay a monthly annuity to the widow (for life) and to minor children (till they attain majority) and in addition a lump sum at the end of 20 or 25 years to the widow. The benefit of such annuity scheme may also be extended to victims who are permanently disabled in accidents. Once such schemes are in place, the victims and the Tribunal will have some choice in the manner of payment of compensation. [Para 19] Union Carbide Corporation v. Union of India 1991 (4) SCC 584; General Manager, Kerala State Road Transport Corporation v. Susamma Thomas 1994 (2) SCC 176, referred to. Suggestion to Insurance Companies [Problem (i)] 6. Whenever the insurance companies find that the driver of the insured vehicle possessed fake/forged driving license, they should lodge a complaint with the concerned police for prosecution. This will reduce the incidence of fake licences and increase the road travel safety. [Para 20] Case Law Reference: 2007 (12) SCC 354 Referred to. Para 4 1991 (4) SCC 584 Referred to. Para 5 1994 (2) SCC 176 Referred to. Para 5 2009 (6) SCC 121 Referred to. Para 17 1996 (4) SCC 362 Referred to. Para 27 CIVIL APPELLATE JURISDICTION : SLP (Civil) No(s). 11801-11804 of 2005. From the Judgment & Order dated 7.12.2004 of the High Court of Punjab & Haryana at Chandigarh in F.A.O. No. 4845, 4846, 4847 & 4848 of 2003. Gopal Subramonium, SG (A.C.) Manoj Swarup, Lalita Kohil (for Manoj Swarup & Co.) for the Petitioner. S.L. Gupta, Goodwill Indeevar, Anand Vardhan Sharma, for the Respondent.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) No. 11801-11804 of 2005 Jai Prakash ……. Petitioner Vs. National Insurance Co. Ltd. & Ors. ……. Respondents O R D E R R.V. RAVEENDRAN, J. We propose to address four problems frequently faced in motor accident claim cases under the Motor … Continue reading

Australian Trade Marks Office = Trade Mark: The trade mark consists of the WHITE COLOUR of the bottle in which the goods are sold: the shape of the bottle does not form part of the trade mark.

Grove Fruit Juices Pty Ltd [2011] ATMO 1 (6 January 2011) Last Updated: 17 March 2011 TRADE MARKS ACT 1995 DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS Re: Trade mark application number 1294692(32) – WHITE COLOURED BOTTLE– in the name of Grove Fruit Juice Pty Ltd. DELEGATE: Iain Thompson REPRESENTATION: Applicant: … Continue reading

POSSESSION DELIVERED- Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift.

CASE NO.: Appeal (civil) 5942 of 2007 PETITIONER: Asokan RESPONDENT: Lakshmikutty & Ors. DATE OF JUDGMENT: 14/12/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 20754 of 2003] S.B. SINHA, J : 1. Leave granted. 2. Whether an averment made in … Continue reading

CASE NO.: Appeal (civil) 5942 of 2007 PETITIONER: Asokan RESPONDENT: Lakshmikutty & Ors. DATE OF JUDGMENT: 14/12/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 20754 of 2003] S.B. SINHA, J : 1. Leave granted. 2. Whether an averment made in … Continue reading

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