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MEDICAL NEGLIGENCE – The State Commission, therefore, directed the Appellants to jointly and severally pay the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the date of the communication of the order.- It is an admitted fact that the Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it could not be placed in the desired position despite several attempts, the operation had to be abandoned. It was later confirmed that the intubation was unsuccessful because of a jutting cartilage inside the throat which was a pre-existing structural problem in the Respondent’s throat. = it was for the Appellants as medical professionals to have got all the tests done and once there was a problem with the intubation, they should not have made repeated attempts to thrust the pipe, which resulted in serious injuries leading to other complications. – the Respondent had developed a life threatening condition because of the pharyngeal tear close to larynx and multiple air filled cavity in Appellant No.1/Institute – the due and reasonable care was not taken by the Appellants in the treatment of the Respondent while intubating the cylindrical pipe in connection with the anesthesia. While the problem was apparently caused because of a structural defect in the Respondent’s throat, severe damage could have been averted or minimized if the Appellants had been more sensitive and careful and not insisted in pushing the tube several times despite knowing that there were problems. There is no other explanation for the extensive and severe injuries caused inside the Respondent’s throat. We are also unable to accept the contention of the Appellants that the onus was on the Respondent to have disclosed the relevant facts regarding structural defects since there is no evidence that he was aware of this problem. If indeed he had been aware, there was no reason for him to have withheld this fact.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 114 OF 2009 (Against the order dated 16.02.2009 in SC Case No. 100/O/2001 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)   1. ILS Hospital Previously known as Institute of Laparoscopic Surgery Jeewansatya, DD-6 Salt Lake City, Sector-1 Kolkata-700064 2. Dr. Om Tantia Director … Continue reading

a notification dated July 7, 2005 issued by the Central Government under section 10(1) of the Act. The notification was issued after due consultation with the Central Advisory Central Labour Board with regard to the conditions of work and benefits provided for the contract labour and other relevant factors enumerated in sub-section 2 of section 10 and it prohibited the employment of contract labour “in the works of sleeper renewal of railway Tracks, repairing, restoration and laying and linkage of tracks in the establishment of Kolkata Port Trust, Kolkata” with effect from the date of publication of the notification in the official gazette.= the division bench has carved out an exception in favour of the respondent, Port Trust of Calcutta (hereinafter, “Port Trust”) from a notification issued by the Central Government under section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter “the Act”) and held that the notification “would not in any way affect the right of the Port Trust to assign the work of laying and linkage of railway tracks as one time measure of (sic. to) RITES, another Central Government Organization”. Whether the work of laying and linking of tracks is of perennial nature and whether workers engaged through contractors are employed by the Port trust for that work are pure questions of fact that were investigated by the statutory committee constituted under section 5 of the Act and are covered by the recommendations made both by the Committee and by the Advisory Board. It was, therefore, quite wrong for the division bench of the High Court to completely nullify that part of the notification in a highly casual and off- hand manner and simply on the ipse dixit of the respondent; more so as the division bench did not otherwise find any illegality in the notification in question. In light of the discussion made above, we see no justification for the division bench of the High Court to carve out the exception and to rationalize the assignment of the contract to RITES merely on the ground that it is another Central Government organization. The High Court clearly exceeded its jurisdiction in passing the impugned order. 19. We are, therefore, unable to sustain the impugned order passed by the division bench. The order of the division bench of the High Court is set aside and the order of the learned single Judge is restored.

Page 1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2771 OF 2013 (ARISING OUT OF SLP (CIVIL) NO.3104 OF 2011) BALESHWAR RAJBANSHI & ORS. … APPELLANTS VERSUS BD. OF TRUSTEES FOR PORT TRUST OF CALCUTTA & ORS. …RESPONDENTS J U D G M E N T Aftab Alam, J. 1. Leave … Continue reading

whether the competing goods are different and whether the Registrar was right in refusing the appellant’s opposition. In deciding on this point the well settled law is to consider the nature of goods; its characteristic; its origin; the purpose; whether it is produced usually by one and the same manufacturer or distributed by the same wholesale houses; whether they are sold in the same shop over the same counter; during the same season and to the same class or classes of customers; whether they are regarded as belonging to the same trade etc. The Act uses the expression ”Similarity of goods or services” [S.11(a)]. The essential requirement is that there should be such similarity resulting in the likelihood of confusion on the part of the public. The question whether or not two sets of goods are of the same description is a question of fact and in deciding that question “one has to look at the trade” and must look at it from a practical business and commercial point of view. It is recognized that classification of goods and services is only an enabling tool for seeking registration and we can find many goods of same description in different classes as also goods of different description in the same class. In the instant case the competing marks are identical i.e. SONA. The rival goods are used by the common man. The perception of the mark in the mind of average consumer plays a decisive role. Here the appellant coined, adopted and started using SONA from 1975. The respondent was born some ten years later. Here it is layperson – illiterate, semi-literate, housewives, servants who will be buying both goods. Confusion as to the trade source is therefore inevitable. When the rival goods are used through the same trade channel and sold in the same shop over the same counter, many customers will wonder whether it might not be the case that the two products come from the same source. There is a real tangible danger if the impugned trade mark is put on the Register. The respondent started the use of the impugned trade mark in 1985 with an annual turnover of Rs.36,000/-. Upto 1995 their annual turnover was always less than one lakh rupees. On the other hand even before the respondent’s trade mark was born in 1985, the appellant annual turnover had reached Rs.36.0 lakhs. No wonder the appellant are greatly exercised. He is expanding and diversifying his business. The appellant have thus established by evidence filed before the Registrar and beyond any reasonable doubt, the civil standard of proof required to show that potential customers for the appellant’s goods will be misled into purchasing the respondent’s goods. In determining the likelihood of confusion because of similarity of goods, we are concerned with ordinary practical business probabilities having regard to all the circumstances. There is great affinity between the competing goods here. Since the practice of Registry is not to permit registration for a broad range of goods in a class, it then becomes its duty to ensure correct application of law in respect of subsequent identical mark for cognate class of goods. The Deputy Registrar had erred in applying the wrong test and permitted the registration of the impugned trade mark. His ruling that the rival goods are totally dim-similar is misconceived as the class of customers has been ignored. Similarity and confusion as to origin both largely are matters of fact and impression. The appellant have built a reasonable reputation for their trade mark SONA ten years before the respondent. In deciding such cases one has to think like a common man. That is the only correct test that can be sustained. The supreme test is the likely public confusion bench marking the level of education, class of customers at ground zero. 7. Accordingly, we set aside the order of the Deputy Registrar permitting registration of the impugned trade mark. OA/54/2005/TM/KOL is consequently allowed and the impugned trade mark “SONA” in class 30 is refused registration. There is no order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443 Anna Salai, Teynampet, Chennai-600018   (Circuit Bench Sitting at Kolkata)   OA/54/2005/TM/KOL FRIDAY, THIS THE 8th DAY OF JUNE, 2012     HON’BLE SMT. JUSTICE PRABHA SRIDEVAN          … CHAIRMAN HON’BLE SHRI V. RAVI                                                   … TECHNICAL MEMBER   M/s Sona Spices Pvt. Ltd., 746, Industrial Area, Phase-11, … Continue reading

2. Petitioners were the complainants before the District Forum. They alleged deficiency in service on the part of the respondents, in that the respondents had failed to execute the agreement for sale even after the complainants had made full payment of the consideration for the flats and received the possession thereof from the respondents. The respondents/opposite parties (OPs) resisted the complaint mainly on the ground that the cost of construction had risen steeply leading to their demand for escalation charges at the rate of Rs.200/- per square foot and that each of the complainants had not paid Rs.2,40,000/- towards the original agreed sale price of the flat.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3129 OF 2011 (From the order dated 25.03.2011 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in First Appeal no. A/09/941) Ankit Bhatnagar C/o P. K. Bhatnagar                                                        Petitioner Resident of 25, Panvel Co-operative Industrial Estate Panvel – 410206 versus 1. Vijay Constructions 305/C, 3rd Floor, Raikar Bhavan Sector 17, Vashi, Navi Mumbai                                             Respondents 2. Vijay Angre 305/C, 3rd Floor, Raikar Bhavan Sector 17, Vashi, Navi Mumbai   … Continue reading

developer’s deficiency service =the petitioner/developer had entered into an agreement for sale of a flat to be constructed by him to the respondent no.1/complainant for a cost of Rs.3,60,000/-. He had already received a sum of Rs.3,30,000/- and on account of the non-payment of the balance amount of Rs.30,000/-, the petitioner not only revoked the sale agreement but also sold the said flat to a third party. Obviously, being aggrieved the respondent no.1/complainant approached the District Forum, who, as stated above, not only directed the petitioner to refund the amount already paid by the complainant with interest but also awarded a compensation of Rs.3,00,000/- for the injustice and deficiency perpetrated by the petitioner. Aggrieved with the said decision of the District Forum, the petitioner had filed an appeal before the State Commission, which too, as stated above, has been dismissed with a cost of Rs.1000/-.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO. 3279 OF 2011 [Against the order dated 11.08.2011 in Appeal No. 373/2010 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata]   Chabi Das S/o Mr. Anil Das 66/H/4, Tiljala Masjid Bari Bye Lane Police Station Tiljala Kolkata-700039, West Bengal                          …      Petitioner Versus 1.      Ranjit Kr. Chowdhury S/o Ashok Kr. Chowdhury Police Station Tiljala Kolkata-700039, … Continue reading

no work men were forced to work under the changed management with out settling his rights and benefits= It is settled law that without consent, workmen cannot be forced to work under different management and in that event, those workmen are entitled to retirement/retrenchment 1

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 9921-9922 OF 2011 (Arising out of SLP (C) Nos. 11115-11116 of 2009 Sunil Kr. Ghosh & Ors. …. Appellant (s) Versus K. Ram Chandran & Ors. …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. … Continue reading

When the FIR can be quashed ? =1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.”

1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1356 OF 2004 Union of India & Ors. …….. Appellants Versus Ramesh Gandhi ……… Respondent J U D G E M E N T Chelameswar, J. 1. This appeal arises out of a judgment of the High Court of Calcutta dated … Continue reading

SERVICE MATTER – DEPARTMENTAL EXAM AND PROMOTIONS=to inform the respondents about the marks obtained by them in the examination in question and grant promotion to the respondents pursuant to the result of the departmental examination. = where a candidate is found or discovered to be using unfair means in the examination itself. It is only in these circumstances that the candidate has to be subjected to disciplinary proceeding which has to be conducted on the basis of the report submitted under Rule 14(4). Since this is a case of mass- copying, which was discovered only at the time of the review of the answer books, Rule 18 would have no relevance. Rule 14 would not, in any manner, improve the case of the respondents as it merely enables the disciplinary authority to impose major penalty on a candidate who is found to have used unfair means. Merely because no disciplinary proceedings have been initiated against the respondents, it would not be a justification to hold that the cancellation of the result is in any manner, impermissible. 26

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9058 OF 2011 [Arising out of S.L.P.(C) No. 6629 of 2010] Chief General Manager, Calcutta Telephones District, Bharat Sanchar Nigam Limited & Ors. …Appellants VERSUS Surendra Nath Pandey & Ors. …Respondents J U D G M E N T SURINDER SINGH NIJJAR, … Continue reading

whether the temporary permit is also requires counter sign of regional authority, failing which if plying , tax is payable with penalty as per motor vehicle act As admittedly, there was no counter-signature of the State Transport Authority, West Bengal, on the temporary permit issued by the State Transport Authority (Bihar), the respondent did not have a valid permit for the part of the route inside the State of West Bengal. The plying of the vehicle of the respondent in the Siliguri region within the State of West Bengal was thus in contravention of Section 66(1) of the Motor Vehicles Act which provides that no owner of a vehicle shall use or permit use of the vehicle as a transport vehicle save in accordance with the conditions of a permit granted or counter-signed by the Regional or State Transport Authority. The appellants, therefore, were well -It will be clear from the provisions of sub-sections (3) and (4) of Section 16 of the Motor Vehicles Tax Act that power is vested in the Taxing Officer to decide whether tax in respect of the vehicle has been paid and if the same has not been paid, to recover the same from sale of the vehicle, if necessary.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 8528 OF 2011 (Arising out of SLP (C) NO. 11653 OF 2010) The State of West Bengal & Ors. …… Appellants Versus Mani Bhushan Kumar …… Respondent WITH CIVIL APPEAL No. 8529 OF 2011 (Arising out of SLP (C) NO. 11876 OF … Continue reading

West Bengal Premises Tenancy Act – s.13(6) – Notice for termination of tenancy – Validity of – Eviction suit – Decreed by trial court – First appellate court, however, set aside the decree holding that the notice of termination of tenancy was not valid as it did not end with the month of tenancy – High Court affirmed the decree of trial court – Respondent-tenant filed SLP – Matter remitted back to High Court to consider the validity of the notice of termination of tenancy having regard to the fact that the rent note / agreement of tenancy was unregistered – High Court affirmed the order of first appellate court holding that the notice of termination of tenancy fell short of the requirement stipulated by s.13(6) of the Tenancy Act – On appeal, held: Non-registration of the rent note /agreement of tenancy was rendered insignificant in view of the pleadings of the parties on the question of month of tenancy – The defendant did not question the facts material to the creation of the tenancy – Specific averment in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar was overlooked by the first appellate court – The ejectment notice having been served on 15th January, 2000, the defendant-tenant had one month’s clear time till the end of February, 2000 to vacate the premises and to deliver the possession thereof to the plaintiff – The first appellate court wrongfully held that since the tenancy in the instant case had started on the 11th day of the English Calendar month, in order to be legally valid, the notice of termination ought to have demanded delivery of possession by the 11th and not the end of February, 2000 – Even if the unregistered rent note / agreement of tenancy was executed on a date other than the first of English or any other calendar month, the parties were always free to agree that the month of tenancy would commence from any other date including the 1st day of the succeeding month – Decree passed by trial court restored – Transfer of Property Act, 1882 – s.106. The plaintiff-appellant filed a suit for eviction and recovery of possession and mesne profits against the respondent. The plaintiff claimed that the suit property was let out to the respondent on month to month basis. The tenancy was, according to the plaintiff, for a period of five years only and was determined in terms of a notice issued under Section 13(6) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act. The trial court decreed the suit. Aggrieved, the tenant appealed to the first appellate court, which set aside decree passed by the trial court. On second appeal, the High Court set aside the order passed by the first appellate court and affirmed the judgment and decree passed by the trial court. The respondent-tenant preferred civil appeal by way of special leave petition which was allowed by this Court and the matter remitted back to the High Court to consider the validity of the notice of termination having regard to the fact that the agreement of tenancy executed between the parties was an unregistered document. The High Court, pursuant to the said order, examined the effect of the unregistered document and held that the same could be used in evidence for a collateral purpose and, when so used, the notice of termination of tenancy issued on behalf of the landlady fell short of the requirement stipulated by Section 13(6) of the West Bengal Premises Tenancy Act. The High Court accordingly dismissed the appeal and affirmed the dismissal of the suit by the First Appellate Court. The appellant filed the instant appeal assailing the correctness of the said judgment and order of the High Court. =Allowing the appeal, the Court HELD:1. The question regarding validity of the notice of termination can be examined by reference to the averments made in the pleadings of the parties. It is evident from a plain reading of the assertions in the plaint and the written statement that the defendant did not question the facts material to the creation of the tenancy nor was it disputed that the tenancy was a month to month tenancy on payment of a rent of Rs.500/- for every English Calendar month. It is true that the defendant-respondent had disputed the service of the notice terminating the tenancy of the defendant as also its validity and sufficiency but it is equally true that the legality of the notice was not assailed on the ground that the notice did not conform to the month of tenancy. As a matter of fact the assertion made by the appellant that the monthly rental of Rs.500/- was payable according to the “English Calendar Month” was not denied by the defendant in the written statement nor was any suggestion to the contrary made as was sought to be done at a later stage of the litigation between the parties. Such being the position, it was for all intents and purposes agreed and accepted between the parties that the rent settled for the demised premises was payable according to the English Calendar month. The issue related to the validity of the notice of termination, which had to be answered on the admitted premise that the tenancy was on a month to month basis and the rent of Rs.500/- p.m. was payable according to the English Calendar month. [Paras 7, 10] [939-D; 942-A-D; 941-G-H] 2. The trial court rightly examined the question of legality of the service of the notice on the basis of the available material and the pleadings on the subject and came to the conclusion that the notice in question received by the wife of defendant-tenant was duly served upon the defendant on the 15th January, 2000. The trial court further held that the ejectment notice having been served on 15th January, 2000, the defendant had one month’s clear time till the end of February, 2000 to vacate the premises and to deliver the possession thereof to the plaintiff. The issue was accordingly answered in favour of the plaintiff and against the defendant-respondent. The first appellate court, however, took a contrary view. It held that the notice of termination of tenancy was not valid as it did not end with the month of tenancy of the defendant. Relying upon the stipulation contained in the tenancy agreement, the first appellate court held that the tenancy in the instant case had started on the 11th day of the English Calendar month and that in order to be legally valid, the notice of termination ought to have demanded delivery of possession by the 11th and not the 29th February, 2000. The notice was accordingly held to be invalid and the suit filed by the appellant liable to be dismissed. In taking that view, the appellate court failed to appreciate that even when the unregistered agreement of tenancy had been executed on 11th of September, 1993, the same did not mean that the month of tenancy would commence from the 11th of every succeeding month, over the period for which the same was created. The first appellate court also failed to appreciate that even when the rent note/agreement of tenancy was executed on a date other than the first of English or any other calendar month the parties were always free to agree that the month of tenancy would commence from any other date including the 1st day of the succeeding month. That there was a specific averment made in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar was also overlooked by the First Appellate Court. That the said averment had not been disputed by the tenant was also not noticed by the first appellate court and even by the High Court. These facts were important and held the key to the determination of the question whether the notice had validly terminated the tenancy. The High Court had in the first order passed by it correctly held the notice of termination of tenancy to be legally valid. After the matter was remanded back to it to consider the effect of non-registration of the rent note/agreement of tenancy it has taken a view that is not appealing. It is true that the non-registration of the rent note does not debar the use of a document that is compulsorily registerable for collateral purposes but that aspect would in the instant case pale into insignificance keeping in view the state of pleadings on the question of month of tenancy and the legal implications thereof. [Para 11] [942-E-H; 943-A-G] 1.3. The impugned order passed by the High Court and that passed by the first appellate court are hereby set aside. Consequently, the judgment and decree passed by the trial court shall stand restored. [Paras 12] [943-H; 944-A] CIVIL APPLLATE JURISDICTION : Civil Appeal No. 10053 of 2010. From the Judgment & Order dated 16.09.2009 of the High Court at Calcutta in Second Appeal No. 29 of 2006. S.B. Upadhyay, Dharmendra Kumar Sinha, Santosh Mishra for the Appellant. Pijush K. Roy, Mithilesh Kumar Singh for the Respondent

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO. 10053 OF 2010 (Arising out of SLP (C) No.34267 of 2009) Shibani Basu …Appellant Versus Sandip Ray …Respondent JUDGMENT T.S. THAKUR, J. 1. Leave granted. 2. This appeal by special leave is directed against a judgment and order dated 16th September, 2009 … Continue reading

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