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NDPS ACT ABOUT SEC.32 A= High Court has upheld the validity of the letter dated 28.6.2006 issued by the Deputy Inspector General of Prisons, Haryana, giving effect to the provisions of Section 32-A of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS Act’).= “32A. No suspension, remission or commutation in any sentence awarded under this Act.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted.” = Whether Section 32A NDPS Act is violative of Articles 72 and 161 of the Constitution of India. II. Whether Section 32A NDPS Act is violative of Articles 14 and 21 of the Constitution of India, inasmuch, as the same abrogates the rights of an accused/convict under the Act to be granted remission/commutation, etc. = The Constitution Bench of this Court in Pradip Chandra Parija & Ors. v. Pramod Chandra Patnaik & Ors., AIR 2002 SC 296, while dealing with a similar situation held that judgment of a coordinate Bench or larger Bench is binding. However, if a Bench of two Judges concludes that an earlier judgment of three Judges is so very incorrect that in no circumstances it can be followed, the proper course for it to adopt is to refer the matter to a Bench of three Judges setting out, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three Judges also comes to the conclusion that the earlier judgment of a Bench of three Judges is incorrect, reference to a Bench of five Judges is justified. (See also: Union of India & Anr. v. Hansoli Devi, (2002) 7 SCC 273)= In view of the above, we are of the opinion that the matter requires to be considered by a larger bench, either by a three Judges Bench first or by a five Judges Bench directly. The papers may be placed before Hon’ble the Chief Justice of India for appropriate orders.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 973 of 2008 Krishnan & Ors. …Appellants Versus State of Haryana & Ors. …Respondents J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against the judgment and order dated 22.2.2007 passed by … Continue reading

Evidence Act, 1872: ss. 101 and 102-Burden of proof-Suit for declaring sale deed as void-Forgery and fabrication of document alleged-Held, with a view to prove forgery or fabrication in a document, possession of the same by defendant would not change legal position-Initial burden of proof would be on plaintiff-The fact that defendant was in a dominant position must be proved by plaintiff at the first instance. Evidence-Burden of proof and onus of proof-Distinction between-Explained. Words and Phrases: Expressions `burden of proof’ and `onus of proof’-Connotation of in the context of Evidence Act. Suit-Framing of issues-Practice and Procedure. Pursuant to an agreement of sale between respondent and appellant, a sale deed was executed on 26.3.1991. Later, the respondent filed a suit for declaration that the said sale deed was void as the same was forged and fabricated. The defendant-appellant denied the allegations. On pleadings of the parties the trial court framed the following issue: “Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?” On an application by the plaintiff, the trial court observed that onus to prove an issue was to be discharged in affirmative and it would always be difficult to prove the same in negative, and reframed the issue as under: “Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?” The revision application of the defendant was dismissed by the High Court observing that defendant was in a dominant position to prove the document affirmatively. Aggrieved, the defendant filed the present appeal. Citation: 2006 AIR 1971,2006(1 )Suppl.SCR659 ,2006(5 )SCC558 ,2006(5 )SCALE153 ,2006(11 )JT521- Allowing the appeal, the Court HELD: 1.1. In view of Section 101 of the Evidence Act, the initial burden of proof would be on the plaintiff. The trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. The fact that the defendant was in a dominant position must be proved by the plaintiff at the first instance. [662-h; 663-b-c; e] Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR (2003) SC 4351, distinguished. 1.2. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the Trial Judge to produce the same. [655-d-e] 2. It should be borne in mind that a distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the OTHERS The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitled him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. [655-f-h; 666-a] R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr., JT (2004) 6 SC 442, relied on. 3. The order reframing the issue is set aside thus reviving the issue originally framed. [666-d] Suresh Kumari and A.P. Mohanty for the Appellant. Shalil Sagar, Pratap Venugopal and E. Venu Kumar for M/s. K.J. John & Co., for the Respondent.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5       CASE NO.: Appeal (civil) 2413 of 2006 PETITIONER: Anil Rishi RESPONDENT: Gurbaksh Singh DATE OF JUDGMENT: 02/05/2006 BENCH: S.B. Sinha & P.K. Balasubramanyan JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 5963 of 2006] S.B. SINHA, … Continue reading

sec. 360 – Reducing of sentence by high court = Section 360 of CrPC so as to extend the benefit of treatment reserved for first offenders, these appellants hardly deserve the same. Admittedly, both the appellants were above the age of 21 years on the date of committing the offence. They have wielded dangerous weapons like firearms. Four shots were fired. The only fortunate part of the occurrence is that the victim escaped death. The offence committed by the appellants is proved to be one under Section 307 of IPC punishable with imprisonment for life. If acquittal of some co-accused casts a cloud of doubt over the entire prosecution case, the whole case may be rejected. But we fail to understand how acquittal of some of the accused can have any relevance to the question of sentence awarded to those who are convicted. -The second ground relied on by the High Court is that it will further the enmity between the families of victim and the accused. In our considered view, this ground is irrelevant for the purpose of determining the sentence to be awarded to the accused. The Courts cannot let the accused go scot-free on mere suspicion of eruption of enmity between the families.- We were told that the appellants had hardly suffered imprisonment for three months. If the offence is under Section 307 IPC i.e. attempt to commit murder which is punishable with imprisonment for life and the sentence to be awarded is imprisonment for three months, it is better not to award substantive sentence as it makes mockery of justice. – Accepting such a submission would mean that if your pockets can afford, commit serious crime, offer to pay heavy fine and escape tentacles of law. Power of wealth need not extend to overawe court processes. – In our view, the reduction of sentence passed by the High Court without appreciating the nature of offence, grievous injuries of witnesses/victims, is unsustainable. In addition to the factual matrix discussed in the earlier paras, Dr. Ashwani Kumar Chaudhary (PW-18), after examining the witness Mehma Singh, (PW-19), has stated that his speech was blurred and he was feeling difficulty in speaking. We are satisfied that from the statements of eyewitnesses coupled with the medical evidence, it is proved that the accused caused injuries in the manner as propounded by the prosecution. It is also proved that Bhag Singh inflicted injury with a blunt weapon on the left shoulder of Piara Singh. Likewise, the M.L.R. of Hazara Singh proves that the injury was caused by a sharp-edged weapon i.e. gandasa by Kesho Ram. The High Court has failed to take note of a very relevant fact that with regard to the offence under Section 307 IPC, Raj Kumar has been charge sheeted individually for causing grievous injury on the head of Mehma Singh with an intention or knowledge and under such circumstances, if by that act, he had caused death of the said Mehma Singh, he would have been guilty of murder. 26) Under these circumstances, we hold that the High Court has wrongly interfered with the order of sentence on wholly untenable and irrelevant grounds, some of them even not borne out on record. To avoid miscarriage of justice, we must interfere and accordingly, we set aside the sentence imposed by the High Court and restore the sentence imposed by the trial Court. All the respondents-accused, namely, Raj Kumar, Keshav Ram, Lal Chand and Bhag Singh shall be taken into custody forthwith to serve the remaining period of sentence as ordered by the trial Court. The appeals are allowed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 603-604 OF 2013 (Arising out of S.L.P. (Crl.) Nos. 2014-2015 of 2009) Hazara Singh …. Appellant(s) Versus Raj Kumar & Ors. …. Respondent(s) J U D G M E N T P.Sathasivam, J. 1) Leave granted. 2) These appeals are directed … Continue reading

Dying Declaration – no corroboration needs = “Q: How many years have passed to your marriage? Ans: 8 years Q: How many children have you? Ans: Four Q: On which day the incident took place? Ans: The quarrel was continuing for the last 15 days. Q: On the night of last Thursday at 11.00 P.M. what happened with you? Ans: My husband used to say as to why I did not bring money in the marriage of my sister. He used to demand money from my father. My mother-in-law Ram Piari and father-in-law Siri Ram used to harass/tease me for dowry. It was Thursday, my mother-in-law, Devar (husband’s younger brother) Lala were at home. My mother-in-law caught hold of my hand and my husband set me on fire with match stick after sprinkling kerosene oil. My devar came afterwards, when I was set on fire. My husband gave beating to me and set me ablaze. Then my husband put his leg on my neck and I was beaten up mercilessly. After 8Page 9 that my father-in-law came, but he did not set me on fire. My husband, mother-in-law and father-in-law brought me to the hospital. Q: Do you want to say any thing else? Ans: No (Right great Toe impression of Patient) Sd/- J.M.I.C.(D) R.O. & A.C. Patient remained fit and conscious during the statement Sd/- in English Dr. Raman Sethi P.G. Surg 5/IV”=(e) On 21.05.1998, Rakesh was arrested and got medically examined by the doctor who opined that his hands were found to be having superficial to deep burns. On his disclosure, a stove containing the kerosene was recovered.- if he had sustained burn injuries in his hands nothing prevented him from taking treatment on the same day from the same doctor. Admittedly, he did not get treatment till he was arrested on 21.05.1998.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1779 OF 2009 Rakesh and Another …. Appellant(s) Versus State of Haryana …. Respondent(s) J U D G M E N T P.Sathasivam,J. 1) This appeal has been filed against the final judgment and order dated 15.05.2006 passed by the High … Continue reading

partition – Will Deed – whether he is a beneficial owner or is a benami, is a question of fact. There was no averment made in the plaint with regard to the aforestated allegation. No issue to the said fact had been raised before the trial court. The said issue had been raised for the first time before the appellate court and in our opinion, the issue with regard to the fact could not have been raised before the appellate court for the first time and therefore, all submissions made in relation to the provisions of Benami Transfer (Prohibition) Act, 1988 and with regard to real ownership of the suit property cannot be looked into at this stage.the mental capacity of Sumitra Devi at the time of execution of the Will cannot also be looked into at this stage because the mental capacity of the testator to execute a Will being a question of fact, we would like to accept the findings arrived at by the court below and all allegations with regard to soundness of mind of Sumitra Devi at the time of execution of the Will or allegation with regard to undue influence of the present appellant with whom Sumitra Devi was residing at the time of her death cannot be looked into by this Court as they are the issues pertaining to fact. = the Will executed by Sumitra Devi was just and proper, the consequences of the Will would be like this: Rao Gajraj Singh was survived by his eight children and his widow – Sumitra Devi. As Rao Gajraj Singh died intestate, according to the provisions of the Hindu Succession Act, his property would devolve upon all his nine heirs i.e. his widow and eight children. So, everyone would get 1/9th share in the property of Rao Gajraj Singh. Though Sumitra Devi had executed her Will and had bequeathed the entire property in question to the present appellant namely Narinder Singh Rao, Sumitra Devi could not have bequeathed under her Will what she did not own. She was only 1/9th owner of the suit property so she could have bequeathed only her share i.e. 1/9th share in the suit property. As a result of the Will of Sumitra Devi, Narinder Singh Rao- the appellant would not only inherit his own share in the property, which he had inherited from his father Rao Gajraj Singh but he would also inherit share of his mother Sumitra Devi as per her Will. Thus, the present appellant would become the owner of 2/9th share of the suit property. In our opinion the final finding of the High Court that the appellant is the owner of 2/9th share of the suit property is, therefore, absolutely correct. 18. The averments with regard to court fee are not of importance at this stage as looking to the facts of the case, the court below has rightly come to the conclusion that the issue with regard to the court fee was a matter between the litigant filing the suit and the court and the defendants need not have bothered about the same. In view of the findings of fact arrived at by the courts below and the legal position clarified hereinabove and by the High Court, in our opinion, the High Court has committed no error and therefore, we see no reason to interfere with the impugned judgment. 21. For the aforestated reasons, the appeals are dismissed with no order as to costs.

Page 1 1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6918-6919 OF 2011 NARINDER SINGH RAO …..APPELLANT VERSUS AVM MAHINDER SINGH RAO ….RESPONDENTS AND OTHERS J U D G M E N T ANIL R. DAVE, J. 1. Being aggrieved by the Judgment delivered in Civil Regular Second Appeal No. … Continue reading

Section 14 of the Act 1956 reads as under: “14. Property of a female Hindu to be her absolute property. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. (2) Nothing contained in sub- section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” The aforesaid statutory provisions provide for conversion of life interest into absolute title on commencement of the Act 1956, however, sub-section (2) carves out an exception to the same as it provides that such right would not be conferred where a property is acquired by a Hindu female by way of gift or under a Will or any other instrument prescribing a restricted estate in that property. = Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance. (Emphasis added) – all the clauses of the Will must be read together to find out the intention of the testator. The court held: “…This is obviously on the principle that the last clause represents the latest intention of the testator. It is true that in the earlier part of the Will, the testator has stated that his daughter Balwant Kaur shall be the heir, owner and title-holder of his entire remaining moveable and immovable property but in the later part of the same Will he has clearly stated that on the death of Balwant Kaur, the brothers of the testator shall be the heirs of the property. This clearly shows that the recitals in the later part of the Will would operate and make Appellant 1 only a limited estateholder in the property bequeathed to her.” (Emphasis added) 13. Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a “life interest”, through Will or gift or any other document referred to in Section 14 of the Act 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act 1956 would become otios. Section 14(2) carves out an exception to rule provided in subsection (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a “life interest”, it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title. Whether person is destitute or not, is a question of fact. The expression ‘destitute’ has not been defined under the Act 1956 or under the Code of Criminal Procedure, 1973, or Code of Civil Procedure, 1908. The dictionary meaning is “without resources, in want of necessaries”. A person can be held destitute when no one is to support him and is found wandering without any settled place of abode and without visible means of subsistence. In the instant case, no factual foundation has ever been laid by the appellant before the courts below in this regard. In such a fact-situation, the issue does not require consideration. 15. All the courts have taken a consistent view rejecting the claim of the appellant of having acquired an absolute title. We do not see any cogent reason to interfere with the concurrent findings of facts. Appeals lack merit and are accordingly dismissed.

Page 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 5063-5065 of 2005 Shivdev Kaur (D) By Lrs. & Ors. …Appellants Versus R.S. Grewal … Respondent J U D G M E N T Dr. B.S. Chauhan, J: 1. These appeals have been preferred against the impugned judgment and order dated … Continue reading

Avalon Resorts (P) Ltd. and Holiday Solutions = Although the word ‘Red’ has not been defined anywhere, yet according to the opposite party the word ‘Red’ means summer season commencing from 15th week of the year and continues till 33rd week of every year. – It is difficult to fathom as to why the petitioner should pay the maintenance allowance when he has not utilized such facility. One is supposed to pay the allowance when the thing is utilized by him. The termination of the notice on this ground is illegal. -The opposite parties are entitled to get the rent @10000/- per year from 2001 to 2012. The total comes to Rs.1,10,000/-. It is made clear that the complainant can avail the facility for the next 21 years from today. Before availing the opportunity, he can inform the opposite parties. The complainant is also entitled to rent out the said apartment for one week to any person for which the respondent will not raise any objection but in that case, the complainant shall be responsible for the maintenance. The complainant will not pay any maintenance allowance for the year when he does not utilized the facility for a particular year but otherwise he must pay the maintenance allowance. We, therefore, modify the judgment and direct the petitioner to pay Rs.11,000/- with interest at the rate of 9% from the date of filing of this complaint till its realization. The complainant can avail the facility for the next 21 years. Accordingly, both the revision petitions are disposed of.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO.  4318 OF  2012  (Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh) Shri Harwinder Singh Randhawa S/o Shri Sohan Singh R/o E/293, Ranjit Avenue Amritsar (Punjab)                                              … Petitioner Versus 1. Avalon Resorts (P) Ltd. Empire Estate, Mehrauli–Gurgaon Road Sultanpur, New Delhi-110030 2. Holiday Solutions, GH-14/34, Ist Floor, Pashchim Vihar New Delhi-110063                                         … Respondents … Continue reading

Section 10 of the Tenancy Act, observing that the expression ‘any person’, contained in Section 8, does not include a joint-owner (hisedar). It has been admitted by the parties that the appellants and their ancestors were hisedars/joint owners/co-sharers in the shamilat deh from a period prior to even 1935-36. The pleadings of the appellants, in fact, begin with such admission by them. 18. Provisions of Section 10 of the Tenancy Act put a complete embargo on a hisedar/joint-owner to claim occupancy rights. There is no agreement between the appellants and Gram Panchyat creating any tenancy in their favour. Granting the relief to the appellants would amount to ignoring the existence of Section 10 itself and it would be against all norms of interpretation which requires that statutory provisions must be interpreted in such a manner as not to render any of its provision otiose unless there are compelling reasons for the court to resort to that extreme contingent. 19. Thus, in view thereof, we do not see any cogent reason to interfere with the well-reasoned judgment of the High Court impugned before us. The appeals lack merit and are dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 8845-8850 OF 2003 Tara Chand & Ors. …Appellants Versus Gram Panchayat Jhupa Khurd & Ors. …Respondents J U D G M E N T Dr. B. S. CHAUHAN, J. 1. These appeals have been preferred against the judgments and orders dated 18.9.2002, … Continue reading

…it is fundamental that compulsory taking of a man’s property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons.” Section 5-A is undoubtedly a condition precedent to a valid declaration, for, there can be no valid acquisition under the Act unless the Government is satisfied that the land to be acquired is needed for a public purpose or for a Company. But there is nothing in sub-section (1) which requires that such satisfaction need be stated in the declaration. The only declaration as required by sub-section 1 is that the land to be acquired is needed for a public purpose or for a Company. Sub-section (2) makes this clear, for it clearly provides that the declaration “shall state” where such land is situate, “the purpose for which it is needed”, its approximate area and the place. Where its plan, if made, can be inspected. It is such a declaration made under sub-section (1) and published under sub-section (2) which becomes conclusive evidence that the particular land is needed for a public purpose or for a Company as the case may be. The contention therefore that it is imperative that the satisfaction must be expressed in the declaration or that otherwise the notification would not be in accord with Section 6 is not correct.”- In view of the findings recorded on the three main questions, we do not consider it necessary to deal with and decide other questions including the one that the purpose specified in the notifications issued under Sections 4(1) and 6(1) was not a bona fide public purpose and that in the garb of acquiring land for IT Park etc., the Chandigarh Administration wanted to favour the private developers. 65. In the result, the appeals are allowed, the impugned order is set aside and Notifications dated 26.6.2006, 2.8.2006 and 28.2.2007 issued by the Chandigarh Administration under Sections 4(1) and 6(1) of the Act are quashed. The parties are left to bear their own costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.7454-7459 of 2012 (Arising out of SLP(C) Nos. 12877-12882/2011) Surinder Singh Brar and others etc.etc. Appellants versus Union of India and others Respondents with CIVIL APPEAL NOS.7460-7463 of 2012 (Arising out of SLP(C) Nos. 13518-13521/2011) CIVIL APPEAL NO.7464 of 2012 (Arising out of … Continue reading

the respondent has to be held guilty of medical negligence/deficiency in service at least on four counts. The respondent did not pay any attention to the patient’s persistent complaints of pain (as he himself admitted in his referral note for ERCP) till she presented with visible signs of jaundice and thus unduly delayed the diagnostic tests that were taken only on 02.10.2000. Secondly, having conducted an “exploratory” laparotomy on 04.10.2000, he failed to even attempt locating the cause of the bile leakage suffered by the patient though all standard literature (including that cited by the respondent) pointed to cystic duct stump leak as one of the most frequent causes of such leakage – such a situation was particularly likely in this case because the cholecystectomy was proceeded with by the respondent despite his inability to clearly separate the cystic duct and the cystic artery before their dissection and ligature. Further, after conducting the laparotomy, he delayed referring the patient for ERCP for no rhyme or reason though all standard literature (and hence the corpus of knowledge and practice based thereon expected of an ordinary medical practitioner of the relevant specialty) mandated such an investigation at the earliest because that is the most widely recommended way of both diagnosing and, in some situations also treating, bile anatomy injury/obstruction evidenced by either stricture/obstruction in the biliary tree or fistular leakage of bile flow. The respondent himself knew of this, according to his repeated admissions. It is really strange that this failure could be pleaded as an error of judgment. A physician can commit an error of judgment in a case of more than one options of (or, approaches to) diagnosis and/or treatment of a patient’s condition and he honestly believing one of them to be more appropriate than the other/s for that patient, though in retrospect that may turn out to be not so appropriate or advantageous to the patient. Here, in this case, the respondnet knew full well that the patient must undergo ERCP (or, an equivalent diagnostic or diagnostic-cum-therapeutic procedure), which he was not professionally competent to conduct. Why he delayed this reference to a qualified gastro-enterologist/endoscopist, or, in this case to the PGI, when he had not even been able to identify the patient’s biliary anatomy injury, leave alone repair it, may be a ‘judgment’ of sorts of this particualr surgeon but certainly not an error of judgment that an average informed and careful surgeon would make. Finally, there is incontrovertible evidence in the form of the signed consent documents that the respondent did not discharge the duty of disclosure in case of either surgery (cholecystectomy or laparotomy) as required of him under the law governing consent. We cannot also overlook the fact that this respondent’s recording of important treatment records could be interpreted to suggest an attempt at “improving” his case but perhaps that was not deliberate. It is unfortunate that the medical board did not go into these questions with the seriousness expected of an independent body of experts. However, there is no evidence at all that the acts of the respondent /OP were the proximate cause of Reeta’s eventual death and the respondent/OP cannot be held to account for that. 20. That brings us to the question of quantum of compensation. The complainant asked for Rs. 8.25 lakh (consisting of Rs. 5 lakh towards compensation for loss/damage due to medical negligence, Rs. 1.25 lakh for reimbursement of medical expenses and Rs. 2 lakh towards mental agony), with interest thereon @ 24% from the date of dispute till payment and costs of Rs. 5,000/-. In the case of “Lata Wadhwa & Others v State of Bihar & Others [(2001) 8 SCC 197], the Apex Court had taken the value of earnings of a simple housewife at Rs. 36,000/- p.m. while going into the question of compensation on account of deaths of several people that occurred in an accident in 1989. Smt. Reeta Dogra was also a simple housewife who died in 2000. Considering only the inflation since 1989, it would be reasonable to accept the sum of Rs. 10,000/- p.m. as the equivalent earning in December 2000. Applying the deduction of 1/3rd towards personal maintenance expenses, the contribution would work out to Rs. 80,000/- approx. per annum. Reeta was 46 at the time of her death and hence a multiplier of even 10 would lead to a compensation amount of Rs.8 lakh, which would have been payable in 2001 on which interest @ 9% per annum since 2001 would not be unreasonable. However, since we cannot attribute Reeta’s death solely to the acts of negligence on the part of the respondent/OP, the interest of equity would be met if his liability for compensation were restricted to Rs.7 lakh. 21. As a result, the appeal is partly allowed and the order of the State Commission is set aside. The respondent is directed to pay to the appellant/complainant the sum of Rs.7 lakh as consolidated compensation, including cost, within four weeks from the date of this order, failing which the sum would be liable to be paid with interest @ 12% per annum from the date of this order till realisation.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL No. 248 OF 2002 (From the order dated 27.03.2002 of the Consumer Disputes Redressal Commission, Union Territory, Chandigarh in Complaint Case no. 6 of 2001) Rajinder Singh Dogra 3152, Sector 28 D                                                               Appellant Chandigarh versus Dr. P.N. Gupta P. N. Urology and Surgical Centre House no. 1359, … Continue reading

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