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Scope of sec.301 and Sec.311 Cr.P.C. – Duty of court / Public prosecutor = Victim/ complainant has got limited scope to participate in criminal trial as state take over the case – When latches and lacunas were brought to the notice before the court or Public prosecutor by him/her , it is their duty to consider the same instead of reject the same as not maintainable under sec.301 Cr. P.C. – When an official Witness who conducted Test Identification parade – Being a Judicial Officer – how can he be permitted to depose in his chief examination contradicting his report/beyond his report which was not found in his record produced – is it not a duty of court or the public prosecutor to cross examine that witness statement made deliberately with out any basis infavour of Accused = Apex court set aside the orders of Lower court and High court and directed the lower court to recall the witness and made specific cross examination about the specific point deposed by him with out any record or beyond his record test identification report and gave an opportunity to file written submissions at the time of arguments = Sister Mina Lalita Baruwa …. Appellant VERSUS State of Orissa and others …. Respondent = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41046

Scope of sec.301 and Sec.311 Cr.P.C. – Duty of court / Public prosecutor = Victim/     complainant has got limited scope to participate in criminal trial as state take over the case – When latches and lacunas were brought to the notice before the court or Public prosecutor by him/her , it is their duty to consider the … Continue reading

M.V. Act -accident claim = Whether the High Court is justified in reducing the compensation from Rs.10,62,000/- to Rs.8,00,000/- with 6% interest per annum?= The same has been interfered with by the High Court in the Appeal filed by the Insurance Company though it has no right to challenge the quantum of compensation as it has got limited defence as provided under Section 149(2) of the Motor Vehicles Act in the absence of permission from the Tribunal to avail the defence on behalf of the insurer as required under Section 170(b) of the Act. It is relevant to note that Parliament, while enacting sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If we permit the insurer to take any other defence other than those specified in sub- section (2) of Section 149, it would mean we are adding more defences to the insurer in the statute which is neither found in the Act nor was intended to be included.= In our considered view the Tribunal and the High Court have erred in not following the principles laid down in Sarla Verma’ case (supra) in fixing the monthly income at Rs.12,000/- in the absence of documentary evidence having regard to the fact that the deceased was employed as Lecturer in Odisha College of Homeopathy and Research, Sambalpur and she also had private practice. The Tribunal in exercise of its original jurisdiction has taken Rs.12,000/- as her monthly income and has deducted 1/3rd out of the monthly salary towards her personal expenses and computed the compensation both on the loss of dependency as well as the conventional heads and has awarded Rs.10,62,000/-. The same should not have been interfered with by the High Court in exercise of its appellate jurisdiction. Hence, the impugned judgment, award and order passed in the Misc. Case no. 385/2011 in M.A.C.A No. 579/2007 is required to be interfered with. So also the order dated 10.3.2011 in Misc. Case No.385 of 2011 modifying the earlier direction issued by the High Court to deposit 60% of the awarded amount in any of the Nationalized Bank, is required to be interfered with. Accordingly, both the impugned judgment, award and orders dated 24.2.2011 and 10.03.2011 are hereby set aside by allowing the civil appeals. Having regard to the facts, circumstances and the finding recorded by the Tribunal in its judgment, we restore the same in awarding compensation in favour of the appellants at Rs.10,62,000/- with interest at the rate of 6% per annum.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40622 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.5373-5375 OF 2013 (Arising out of SLP (C) Nos. 7407-7409 of 2012) REKHA JAIN & ANR. … APPELLANTS VS. NATIONAL INSURANCE CO.LTD. … RESPONDENT         J U D G M E N T   V. Gopala Gowda, J. … Continue reading

Disfigure of face to an artist in cinemas, adds, T.V is to be considered as 100% disability but not as suggested in medical report as the victim life and profession and assets is the face = we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages. It is in her evidence that her income depends upon the project. She got 30,000/- for her first film “Maa Pari Kiye Haba” and Rs.75,000/- for Malayalam film ‘Paith Digem Alam’. For her performance in a serial, she used to get within Rs.7000/- to 10,000/-. She had received Rs.50,000/- for winning the “Ponds Women of Tomorrow” Contest. The said evidence remains unchallenged in the cross examination by the counsel for the respondent Insurance Company. Having regard to her age and qualification and that she was acting in various Oriya and Malayalam films, T.V. serials and that she was in the beginning stage of her acting career and having regard to the fact that she has acted in various films, she would have definitely had a very good chance for acting in future if she had not suffered the grievous injuries, facial disfigurement and other injuries on account of the accident. She has also stated in her evidence that she is an assessee for income tax. She has got PAN card and has produced the same. Having regard to the aforesaid legal evidence on record and in the absence of documentary evidence to show her probable annual income, it would be proper for this Court to take her probable annual income as Rs.5,00,000/- for the purpose of computation of her future loss of earning. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, T.V. serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr.[18], which amounts to Rs.42,50,000/-. Hence, we award Rs.42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000/- which is enhanced to Rs.42,50,000/- under the said head. 43. The Tribunal awarded compensation of Rs.2,00,000/- for the loss of amenities, pleasure of life and her inability to attend social functions in future, which is inadequate, therefore, it should be enhanced to Rs.10,00,000/-. 44. Towards the pain and suffering, the Tribunal awarded Rs.1,00,000/-. It should be proper to award another Rs.9,00,000/- as she has undergone ordeal for the period of 4 years continuously taking treatment in Odisha and Kerala States and the damages for mental and physical shock, pain and suffering, disfigurement of the face and other bodily injuries she already suffered continuously or likely to suffer. 45. The Tribunal awarded Rs.17,15,726/- towards the medical expenses based on the legal evidence and, therefore we affirm the compensation awarded by Thus, the total compensation amounting to Rs.79,65,726/- which is rounded of to Rs. 79,66,000/-along with interest at the rate of 6% per annum is awarded from the date of application till the date of deposit of the amount. The aforesaid enhancement of compensation under different heads referred to supra, in our considered view would be just and reasonable compensation in this case. 47. Before parting with the judgment, it would be just and necessary for this Court to make observation that the Motor Accidents Claims Tribunals and the Appellate Courts should keep in view the rights of the claimants under the provisions of the M.V. Act to determine the compensation claims of the claimants by considering the facts of each case and the legal position laid down by this Court on relevant aspects. 49. Accordingly, the appeals of the appellant are allowed in the above said terms. We set aside the impugned judgment, award and orders passed by the High Court. The respondent Insurance Company is directed to deposit 70% of the awarded compensation along with proportionate interest with any Nationalized Bank of the choice of the appellant in fixed deposit and the remaining 30% with proportionate interest, after deducting any amount if already paid by the respondent as awarded by the High Court should be disbursed to the appellant within six weeks on proper identification. There will be no order as to costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40621   REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.5370-5372 OF 2013 (Arising out of SLP (C) Nos. 5649-51 of 2012) REKHA JAIN … APPELLANT VS. NATIONAL INSURANCE CO. LTD. .. RESPONDENT J U D G M E N T V. Gopala Gowda, J. Leave is granted by … Continue reading

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