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Kerala

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(1) Whether multiplier specified in the Second Schedule appended to the Motor Vehicles Act, 1988 (for short “the 1988 Act”) should be scrupulously applied in all cases? and (2) Whether for determination of the multiplicand, the 1988 Act provides for any criterion, particularly as regards determination of future prospect.- where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the 23 Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Others; [(2004) 2 SCC 473] 31Page 32 deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” 38. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man’s net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 39. In our view, the standards fixed by this Court in Sarla Verma17 on the aspect of deduction for personal living expenses in paragraphs 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding para is made out. 40. In what we have discussed above, we sum up our conclusions as follows: (i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as 32Page 33 indicated in Column (4) of the table prepared in Sarla Verma17 read with para 42 of that judgment. (ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma17 should be followed. (iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act. (iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma17 for determination of compensation in cases of death. (v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the Judgment in Sarla Verma17 . (vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in 33Page 34 Sarla Verma17 subject to the observations made by us in para 38 above. (vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration. 41. The reference is answered accordingly. Civil appeals shall now be posted for hearing and disposal before the regular Bench.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4646 OF 2009 Reshma Kumari and Ors. … Appellants Vs. Madan Mohan and Anr. … Respondents WITH CIVIL APPEAL NO. 4647 OF 2009 JUDGMENT R.M. LODHA,J. A two-Judge Bench (S.B. Sinha and Cyriac Joseph, JJ.) proceeded to hear these appeals on … Continue reading

the respondents landlord filed RCP No. 140/85 for eviction of the tenant, sub-tenant and other occupants under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 hereinafter called ‘the 1965 Act’. When that eviction petition was pending, at the Civil Appeal Nos.2735-2736 of 2005 2 of instance of one of the tenants, who was predecessor of the appellant (s) herein filed a petition under Section 125 (3) of the Kerala Land Reforms Act, 1963 hereinafter called ‘the 1963 Act’ by which the predecessor of the appellant (s) claimed rights as a Kudikidappukaran. The learned Rent Controller referred the issue as to whether such a claim made by the tenant was admissible, to the Land Tribunal, having jurisdiction over the area in which the land situated together with the relevant records for the decision on that question. 4. Be that as it may, the tenant also filed an application under Section 80B of the 1963 Act for purchase of Kudikidappu under his occupation of the lands before the Land Tribunal. By independent orders dated 19.2.1991, the Land Tribunal returned a finding in the Reference made by the learned Rent Control Authority to the effect that the predecessor-in-interest of the appellant (s) did not possess any Kudikidappu rights. In the application filed under Section 80B of the Act also such a claim came to the rejected. Having regard to the provisions contained in Section 125 (5) Civil Appeal Nos.2735-2736 of 2005 3 of 41Page 4 of the 1963 Act, the Rent Control proceedings in RCP 140/85 was determined holding that the tenant’s right as a Kudikidappukaran was not maintainable and thereafter the eviction petition was also ordered on merits in favour of the respondent-landlord herein. Once, we steer clear of the correctness of the said order dated 13.11.1995 in AA 37/91, the only other aspect to be Civil Appeal Nos.2735-2736 of 2005 39 of examined is the correctness of the order passed by the Rent Control Authority in RCP No.140/85 dated 2.7.1991 on the merits of ground of eviction, namely, the alleged default in payment of rent, necessity for demolition and re-construction and the claim for own-occupation. In those aspects, as the conclusion was arrived at by the Rent Control Court based on a detailed consideration of the merits which are mainly based on facts and in the absence of any legal error in the said conclusion arrived at by the Rent Control Authority as well as the Rent Control Appellate Authority in the decision dated 28.10.1995 passed in RCA No.133/91, there is no scope to find fault with the ultimate decision of the Division Bench of the High Court in dismissing the revision preferred by the appellant(s). Having bestowed our detailed consideration on the impugned judgment, we hold that the decision of the Division Bench in allowing the revision preferred by the respondent as against the order of the appellate authority (LR) dated 13.11.1995 in AA 37/91 was also justified. These appeals, therefore, fail and the same are dismissed.

Page 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2735-2736 OF 2005 MADHAVI AMMA & ORS. …Appellants VERSUS S. PRASANNAKUMARI & ORS. … Respondents J U D G M E N T Fakkir Mohamed Ibrahim Kalifulla, J. 1. These appeals are directed against the common judgment of the Division Bench … Continue reading

sec.74 of contract Act- The scope of Section 74 has been the subject matter of several pronouncements of this Court including the Constitution Bench decisions in Fateh Chand v. Balkishan Das AIR 1963 SC 1405, Union of India v. Ramam Iron Foundry (1974) 2 SCC 231 and SAIL v. Gupta Brother Steel Tubes (2009) 10 SCC 63. The common thread that runs through all these pronouncements is that an aggrieved party is entitled to receive compensation from the party who has broken the contract whether or not actual damage or loss is proved to have been caused by the breach and that the Court has, subject to the outer limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to the circumstances of the case. This would essentially be a mixed question of law and fact that a Writ Court could not possibly decide. The appellant could and indeed ought to have sought its remedies in a proper civil action if it questioned the reasonableness of the amount recoverable by the appellant in terms of the contractual stipulations.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1517 OF 2013 (Arising out of S.L.P. (C) No.2490 of 2008) M/s A.S. Motors Pvt. Ltd. …Appellant Versus Union of India & Ors. …Respondents J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. This appeal … Continue reading

Foreign Liquor (Compounding,Blending and Bottling) Rules, 1975 (for short “1975 Rules”) read with Section 14 of the Abkari Act (for short “the Act”). – whether the High Court can issue a Writ of Mandamus under Article 226 of the Constitution of India, directing the State to part with its exclusive privilege, in the matter of granting licence for establishing distilleries under the Foreign Liquor (Compounding, Blending and Bottling) Rules, 1975 (for short “1975 Rules”) read with Section 14 of the Abkari Act (for short “the Act”). = The Respondent, in our view, could lay a claim only if it establishes that a preferential treatment has been meted out to M/s Amrut Distilleries, Bangalore and M/s. Empee Distilleries, Madras while granting licences for establishing the respective distillery units in the Palakkad District on the ground of discrimination violating Article 14 of the Constitution of India. Respondent has never challenged the distillery licences granted to them, but only prayed for another licence for it as well which, in our view, cannot be claimed as a matter of right. Citizens cannot have a fundamental right to trade or carry on business in the properties or rights belonging to the State nor can there be any infringement of Article 14, if the State prefers other applicants for the grant of licence, during the pendency of some other applications, unless an applicant establishes a better claim over others.= learned single Judge as well as the Division Bench of the High Court have overlooked those vital factors while issuing a Writ of Mandamus directing the State Government/Commissioner to grant distillery licence to the respondent for setting up of a new distillery in the Palakkad District, thinking that the impugned order is nothing but old wine in new bottle. We are informed, after 1998, not even a single licence has been granted by the State Government/Commissioner for establishing distillery units anywhere in the State. That being the factual and legal position, we are of the view that the learned single Judge as well as the Division Bench of the High Court was not justified in issuing a Writ of Mandamus directing the issuance of a distillery licence to the respondent. 35. We are, therefore, inclined to allow this appeal and set aside the judgment of the learned single Judge and affirmed by the Division Bench of the High Court. Ordered accordingly.Page 34 34 However, in the facts and circumstances of the case, there will be no order as to costs.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1642 OF 2013 [Arising out of SLP (Civil) No. 9098 of 2009] State of Kerala and Others .. Appellants Versus Kandath Distilleries .. Respondent J U D G M E N T K. S. RADHAKRISHNAN, J. 1. Leave granted. 2. … Continue reading

service matter – whether a minimum continuous service in an academic year is a prerequisite for raising a claim for re-appointment under Rule 51A of Chapter XIV A of the Kerala Education Rules, 1959 (for short ‘ thePage 66 KER’) in view of sub-rule (3) of Rule 7A of the same chapter of the KER. – We are, therefore, inclined to allow these appeals and set aside the judgment of the Division Bench with the following directions: (i) A teacher, who was relieved from service under Rules 49 and 53 of Chapter XIVA of the KER, is entitled to get preference for appointment under Rule 51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief. (ii) The Manager of an aided school can, however, appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave etc. provided they are established vacancies and the approval can be granted subject to the conditions under Rule 49 of Chapter XIV A of the KER.Page 24 24 (iii) Approval can also be granted to appointments made to the approved vacancies arising and continuing beyond 31 st March due to sanctioning of additional divisions. (iv) The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wages basis and if the duration of vacancy exceeds one academic year that can be filled up on scale of pay basis. (v) The Manager is free to appoint teachers on a regular basis from the re-opening date itself against regular established vacancies and need not wait for the appointments till completion of the staff fixation as per the KER. (vi) Teachers who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service before vacation will not be entitled to get vacation salary.Page 25 25 27. Appeals are accordingly allowed and disposed of as above setting aside the judgment of the High Court but there will be no order as to costs.

Page 1 1 REPORTBLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1643 OF 2013 (Arising out of SLP(C) No.22332 of 2009 State of Kerala and others …… Appellants Versus Sneha Cheriyan and another …..Respondents WITH C. A. NO. 1644 OF 2013 @ SLP(C) No.22260 of 2009 C. A. NO. 1645 OF … Continue reading

“Seniority cum merit’ means that given the minimum necessary merit requisite for efficiency of administration, the senior, though less meritorious, shall have priority. This will not violate Articles 14, 16 (1) and 16 (2) of the Constitution of India.” – It is evident from the material on record i.e. from the counteraffidavit filed by the State that appellant faced criminal prosecution as FIR No. 25 dated 12.4.1996 had been lodged against him under Sections 7 & 13(ii) of the PC Act, 1988 and Sections 467/468/471/120-B IPC, at Police Station: Vigilance Bureau, Patiala, wherein the appellant faced trial though, acquitted as is evident from the judgment and order dated 2.5.2006 passed in Sessions Case No. 5 of 10.5.2001. His acquittal took place after five years to his retirement. 1Page 15 Be that as it may, for the reason best known to the appellant, this fact was not disclosed by him either before the High Court or before this Court. It is another matter as what could have been the effect of pendency of the said criminal case so far as this case is concerned. Thus, we are of the view that the appellant did not approach the court with clean hands, clean mind and clean objective. 20. In view of the aforesaid settled legal proposition, in the facts of this case, we have no hesitation in holding that no fault can be found with the High Court’s judgment impugned before us. The appeal lacks merit and is, accordingly, dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1273 OF 2004 Balbir Singh Bedi …Appellant Versus State of Punjab & Ors. …Respondents J U D G M E N T Dr. B. S. CHAUHAN, J. 1. This appeal has been preferred against the impugned judgment and order dated 9.10.2003 … Continue reading

grant of LPG distributorship – Challenging the genuineness of the experience certificates -The experience certificates issued by M/s Sree Agencies and M/s Bajaj Allianz Life Insurance Company Ltd. were evaluated by the Selection Committee. It has already been stated in the counter affidavit filed by the Corporation that the quality of experience will be judged on the basis of the response to the questions related to experience in direct sale, home delivered products, hospitality/service industry etc. by the candidates in the interview. It has also been informed to this Court that the appellant has been awarded 4 marks for experience by the Selection Committee consisting of 3 senior officials of the Company who are well qualified and experienced in assessing the required experience for LPG distributorship. It is further asserted that after the interview, field verification had been done by the Corporation to verify the genuineness and veracity of the documents submitted by the candidate as contemplated in clause 16 of the guidelines. It is further stated that the field verification had been conducted by a team comprising of 2 officers of the Corporation and that the team had met the Proprietor as well as Manager of M/s Sree Agencies, who confirmed that Mr. Sajeesh Babu K. (appellant herein) worked with them on a part-time basis. It is the stand of the Corporation that since the persons who have issued the experience certificate admitted its issuance, the Corporation treats the same as genuine. They also reiterated and verified that the certificates of experience have no relevance in granting marks under the parameter ‘experience’ as the same has been awarded on the basis of the response to the questions related to experience in the relevant field. The marks awarded by the Selection Committee are as follows:- |Name |Edu. |Age |Experience |Business |Personality |Total | | |Quali. | | |ability | |Marks | |Santhosh |15 |2 |3 |3.17 |1.83 |25.00 | |N.K. | | | | | | | |Sajeesh |15 |2 |4 |3.83 |2.00 |26.83 | |Babu K. | | | | | | | 15) From the above discussion, it is clear that in terms of the guidelines, the Selection Committee consisting of 3 experienced persons assessed the ability of the candidates with reference to the answers for their questions and awarded marks.- there is no allegation of mala fides against the members of the Selection Committee. Even on equity, the appellant is an unemployed M.Tech post-Graduate and the contesting respondent No.1 is working as an Assistant Engineer in the Kerala State Electricity Board, in other words, he is fully employed on the date of the selection of LPG distributorship. Looking at from any angle, the High Court was not justified in upsetting the decision of the Selection Committee, particularly, in the absence of any mala fides against them and there is no warrant for direction to re-assess the marks of the appellant afresh by excluding the marks for certificates (Exh. Nos. P2 and P3), particularly, in the light of the detailed explanation offered by the Corporation about the mode of selection. 20) In the light of the above discussion, we set aside the judgment of the learned single Judge of the High Court dated 16.03.2011 in W.P.(C) No. 7622 of 2010 as well as the judgment of the Division Bench dated 06.04.2011 in W.A. No. 464 of 2011 and confirm the decision of the Selection Committee. 21) The civil appeal is allowed. There shall be no order as to costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 2 CIVIL APPEAL NO. 7599 OF 2012 3 (Arising out of SLP (C) No. 13499 of 2011) Sajeesh Babu K. …. Appellant (s) Versus N.K. Santhosh & Ors. …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. … Continue reading

Appointments on compassionate basis are recognised as a permissible mode of induction into service under the Kerala Education Rules framed under the Kerala Education Act. Rule 9A appearing in Chapter XXIVA and Rule 51B appearing in Chapter XIVA of the said Rules are relevant in this regard. While Rule 9A deals with employment of dependants of the non- teaching staff of an aided school dying-in-harness, Rule 51B deals with employment of dependants of an aided school teacher dying-in-harness. The said rules are as under:- “9A: The manager shall give employment to a dependant of the non- teaching staff of an aided school dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall, mutatis mutandis, apply in the matter of such appointment.” (emphasis supplied) “51B: The Manager shall give employment to a dependant of an aided school teacher dying in harness. Government orders relating to employment assistance to the dependents of Government servants dying in harness shall mutatis mutandis, apply in the matter of such appointments.” “19. The time limit for preferring applications under the scheme will be 2 years from the date of death of govt. Servants. In the case of minor, the period will be within 3 years after attaining majority.” if an employee of the school died in harness and his legal representatives required any assistance in the form of compassionate appointment it is for them to approach the school in that regard by making an application in the manner prescribed. If the legal heirs did not do so, the Manager could reasonably assume that they were not in need of any assistance for otherwise they would ask for the same.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4848 OF 2012 (Arising out of S.L.P. (C) 7556 of 2008   Shreejith L. …Appellant Versus Deputy Director (Education) Kerala & Ors. …Respondents WITH CIVIL APPEAL NOS. 4852, 4851, 4854, 4853, 4849-4850 OF 2012 (Arising out of SLP (C) No.4954/2009, SLP (C) … Continue reading

deficiency in service = According to the complainants, the contents of the Mahazar were not disclosed to them. But later on the complainants came to know that the Mahazar was prepared with an allegation that the house was being used as a guest house. On 28.09.2001, the OPs changed the electric meter without complying formalities. =the OPs failed to prove the two allegations, namely, running of the house as guest house and hence the use of energy being done unauthorisedly for commercial purposes and the non-functioning of two of the three phases of the meter thereby resulting in recording only 1/3 of the consumption. In view of this, the present case would not attract the ratio laid down in the case M/s. Swastic Industries (supra).

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION  NO. 4607 OF 2010 (From the order dated 06.08.2010 in Appeal No. 554/2005 of Kerala State Consumer Disputes Redressal Commission) 1.  The Kerala State Electricity Board, Rep. by its Secretary, Vydhuthi Bhavan Pattom, Thiruvananthapuram.   2.  The Asstt. Executive Engineer, K.S.E.B. Ponkunnam   3.  The Asstt. Engineer, K.S.E.B. Ponkunnam                                               …      Petitioner(s) … Continue reading

Kerala General Sales Tax Act, 1963 – Entry 104 – Satilon/Tuflon coated cookware – Held: Classifiable under Entry 104 and not under Entry 5 – Such products cannot be treated as ordinary aluminium household utensils – Satilon/Tuflon coating makes the products non sticky and hence different from aluminium household utensil falling under Entry 5 – The amendment to Entry 104 in 1999 by which the word `non-stick’ cookware was added was merely clarificatory in nature. The questions which arose for consideration in these appeals were whether the satilon coated cookware and articles coated with tuflon are classifiable under Entry 5 of First Schedule under Kerela General Sales Tax Act, 1963 as `an aluminium household utensil made of utensil’ or whether these products would fall under Entry 104 which pertains to `pressure cooker, cook and serve ware to keep food warm, casseroles, water filters and similar home appliances not coming under any other entry’. The Assessing Authority classified the product under Entry 5. The Appellate Authority held that as the satilon coating made the goods non-stick, it would make it different from the aluminium household utensils made of aluminium covered under Entry 5 of the First Schedule. The Tribunal upheld the same. High Court held that the products were classifiable under the heading “similar home appliances” under Entry 104 of the Act and that the amendment to Entry 104 in the year 1999 by which the word “non-stick cookware” was added was only clarificatory in nature. Hence these appeals. =Dismissing the appeals, the Court HELD: 1.1. The view taken by the Tribunal as well as the High Court that “satilon coated aluminium products” are not identical with “aluminium household utensils made of aluminium and aluminium alloys” is correct. The coating of satilon makes all the difference to the product. The Tribunal rightly recorded a finding that in trade parlance, no one would describe satilon coated aluminium products as aluminium household utensils. [Para 5] [80-F] 1.2. The satilon coated cookware cannot be treated as ordinary aluminium household utensils. Price of the satilon coated cookware is much more than the aluminium household utensils made of aluminium and its alloys. The Hawkins cookware sold by the assessee cannot be categorized as household utensils made of aluminium for the reasons that the satilon coating makes the goods non-sticky and hence different from the aluminium household utensils. In common parlance, Hawkins cookware with satilon coating is not understood as aluminium ware. The view taken by the High Court that the amendment to Entry 104 of the First Schedule is clarificatory in nature is also correct. [Para 6] [80-H; 81-A-B] Gujarat Steel Tubes Ltd and Ors. v. State of Kerala and Ors. (1989) 3 SCC 127; Metlex (I) (P) Ltd. v. Commissioner of Central Excise, New Delhi (2005) 1 SCC 271; Commissioner of Central Excise, Cochin v. Apollo Tyres Ltd. (2005) 11 SCC 444 – distinguished. 2. Coating of tuflon also makes the article non-stick. [Para10] [81-G] T.L.V. Iyer, Gopal Jain, Kaushik Mishra, Bindu K. Nair, Sarika Singh, Ruby Singh Ahuja, K.R. Sasiprabhu, Krishan Venugopal, K. Varghese, Sidhartha, Naresh Kumar, G. Prakash, Beena Prakash, Varun Sarin (for Ramesh Babu M.R.) for the appearing parties.=, 2008(7 )SCR77 , , 2008(6 )SCALE657 , 2008(6 )JT237

CASE NO.: Appeal (civil) 6469-6470 of 2002 PETITIONER: Hawkins Cookers Limited RESPONDENT: State of Kerala DATE OF JUDGMENT: 29/04/2008 BENCH: ASHOK BHAN & DALVEER BHANDARI JUDGMENT: J U D G M E N T REPORTABLE CIVIL APPEAL NOS. 6469-6470 OF 2002 With Civil Appeal No. 7169 of 2004 Talent Marketing Agencies …..Appellant(s) – Versus – … Continue reading

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