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Nederlandse Omroep Stichting

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Land Acquisition act = apex court confirmed the high court order in deducting 55 percent of the market value assessed on the basis of the exemplar sale deed, towards developmental charges, 5 percent towards waiting period, and 10 percent towards de-escalation.

1 “REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1743 OF 2006 Chandrashekar (D) by LRs. and Others …. Appellants Versus Land Acquisition Officer and Another …. Respondents With CIVIL APPEAL NOS. 8899-8901 OF 2011 Basappa (D) & by LRs. and Others …. Appellants Versus Special Land Acquisition Officer, Gulbarga … Continue reading

Consumer Protection Act, 1986: Medical Negligence: Deficiency in service – Doctor performing radical surgery without obtaining consent from patient resulting in removal of her reproductive organs – Compensation – Complaint rejected by National Consumer Commission – Correctness of – Held: Right of patient with regard to his/her body inviolable – It would be unreasonable for a doctor to start particular treatment/surgery without the consent of patient unless it was considered necessary to save life/preserve health of the patient – Consent of patient for diagnostic procedure/surgery cannot be construed as permission to perform therapeutic surgery – Appellant-victim admitted in the clinic of respondent only for diagnostic purposes – Before the victim regained consciousness, radical surgery performed resulting in removal of her uterus and ovaries – Under the circumstances, it cannot be said that she was informed before performing the surgery – When the patient was still at the diagnosis state, her mother’s consent for radical surgery was no consent in the eyes of law – Moreover, consent by mother cannot be treated as valid/real consent – National Commission failed to notice that the question was not about the correctness of the decision to remove uterus and ovaries but failure to obtain consent for removal of the organs – Laparoscopic examination revealed that the victim was suffering from endometriosis – It could be treated either by conservative treatment or by hysterectomy – Moreover, appropriateness of treatment procedure does not make the treatment legal in the absence of consent therefor – Performance of such surgery without consent of the patient was an unauthorized invasion and interference with the body of the victim, hence, a tortuous act of assault and battery amounting to deficiency in service – But, in view of mitigating circumstances, interest of justice would be served by denying the respondent fee charged for surgery and by granting compensation of Rs.25,000/- to victim for unauthorizedly performing surgery – Tort – Battery – Negligence – Compensation. Medical Profession – Catch in all clauses – Scope of. Words and Phrases: `consent’, `real consent’ and `unfound consent’ – Meaning of. Appellant, an unmarried woman, aged 44 years visited the clinic of first respondent for an ultrasound test. The test was conducted and, on the basis of the ultrasound report, the respondent allegedly informed her that she was suffering from fibroids and for further confirmation a laproscopic test was required to be conducted. On the next day, when she went to the clinic for a diagnostic laproscopy, allegedly her signatures on blank printed forms were obtained by an Assistant doctor of respondent without giving her opportunity to read the contents. When she was under general anesthesia, respondent rushed out of the operation theater and told her aged mother that the patient had started bleeding profusely and in order to save her life, extensive surgery need to be performed and her signatures were obtained on some papers without waiting the appellant to regain consciousness and radical surgery was performed on her, resulting in removal of her reproductive organs. When she protested, the respondent rudely responded. According to the appellant, she was going to marry within a month, therefore, she would have refused consent for removal of her reproductive organs and would have opted for constructive treatment, had she been informed about the surgery. Appellant lodged a complaint in the Police Station against the respondent for their negligence and unauthorizedly removing her reproductive organs. The appellant also filed a complaint before the National Consumer Commission claiming a compensation of Rs. 25 lakhs from the respondent for negligently treating her resulting in loss of her reproductive organs and consequential loss of opportunity to become a mother, for diminished matrimonial prospects, for physical injury resulting in the loss of vital body organs and irreversible permanent damage, for pain, suffering emotional stress and trauma, and for decline in the health and increasing vulnerability to health hazards. The complaint was dismissed by the Commission. Hence the present appeal. The questions which arose for determination in this appeal were as to whether informed consent of a patient is necessary for surgical procedure involving removal of reproductive organs; as to whether consent given for diagnostic surgery could be construed as consent for performing additional/further surgical procedure, either as conservative treatment or as radical treatment, without the specific consent for such additional or further surgery; as to whether there was consent by the appellant, for the abdominal hysterectomy and Bilateral Salpingo-oopherectomy performed by the respondent; as to whether the respondent had falsely invented a case that appellant was suffering from endometriosis to explain the unauthorized and unwarranted removal of uterus and ovaries; and as to whether such radical surgery was either to cover-up negligence in conducting diagnostic laparoscopy or to claim a higher fee and also even if appellant was suffering from endometriosis; as to whether the respondent ought to have resorted to conservative treatment/surgery instead of performing radical surgery; and as to whether the Respondent is guilty of the tortuous act of negligence/battery amounting to deficiency in service, and consequently liable to pay damages to the appellant. -Allowing the appeal, the Court HELD: 1.1 Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. (Para – 14) [742-F] 1.2 There is, however, a significant difference in the nature of express consent of the patient, known as ‘real consent’ in UK and as ‘informed consent’ in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and ‘real’ when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On the other hand, the concept of ‘informed consent’ developed by American courts, while retaining the basic requirements consent, shifts the emphasis to the doctor’s duty to disclose the necessary information to the patient to secure his consent. (Para – 14) [742-G & H; 743-A & B] Taber’s Cyclopedic Medical Dictionary and Principles of Medical Law published by Oxford University Press — Second Edition, edited by Andrew Grubb, Page 133 – referred to. Canterbury v. Spence – 1972 [464] Federal Reporter 2d. 772; Schoendorff vs. Society of New York Hospital – (1914) 211 NY 125: and Re : F. 1989(2) All ER 545 – referred to. 1.3 The principle of necessity by which the doctor is permitted to perform further or additional procedure (unauthorized) is restricted to cases where the patient is temporarily incompetent (being unconscious), to permit the procedure delaying of which would be unreasonable because of the imminent danger to the life or health of the patient. (Para -16) [746-B & C] Murray vs. McMurchy – 1949 (2) DLR 442 and Marshell vs. Curry – 1933 (3) DLR 260 – referred to. 1.4 Howsoever practical or convenient the reasons may be, they are not relevant. What is relevant and of importance is the inviolable nature of the patient’s right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not. Unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient. (Para – 17) [746-F & G] 2.1 In Medical Law, where a surgeon is consulted by a patient, and consent of the patient is taken for diagnostic procedure/surgery, such consent cannot be considered as authorisation or permission to perform therapeutic surgery either conservative or radical (except in life threatening or emergent situations). Similarly where the consent by the patient is for a particular operative surgery, it cannot be treated as consent for an unauthorized additional procedure involving removal of an organ, only on the ground that such removal is beneficial to the patient or is likely to prevent some danger developing in future, where there is no imminent danger to the life or health of the patient. (Para – 19) [748-D, E & F] Bowater v. Rowley Regis Corporation – [1944] 1 KB 476 and Salgo vs. Leland Stanford 154 Cal. App. 2d.560 (1957) – referred to. 2.2 A risk is material ‘when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy’. The doctor, therefore, is required to communicate all inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the likely effect if the patient remained untreated. This stringent standard of disclosure was subjected to only two exceptions : (i) where there was a genuine emergency, e.g. the patient was unconscious; and (ii) where the information would be harmful to the patient. The stringent standards, as above, regarding disclosure laid down in Canterbury, as necessary to secure an informed consent of the patient, was not accepted in the English courts. In England, standard applicable is popularly known as the Bolam Test as laid down in Bolam v. Friern Hospital Management Committee.* (Paras – 21 & 22) [750-H; 751-A, B & D] *Bolam v. Friern Hospital Management Committee – [1957] 2 All.E.R. 118; Hunter v. Hanley (1955 SC 200) and Sidaway v. Bethlem Royal Hospital Governors & Ors. [1985] 1 All ER 643 – referred to. 2.3 In India, Bolam test has broadly been accepted as the general rule. The stark reality is that for a vast majority in the country, the concepts of informed consent or any form of consent, and choice in treatment, have no meaning or relevance. (Para – 25, 26) [755-G; 757-F] Achutrao Haribhau Khodwa vs. State of Maharastra – 1996 (2) SCC 634, Vinitha Ashok vs. Lakshmi Hospital – 2001 (8) SCC 731 and Indian Medical Association vs. V. P. Shantha – 1995 (6) SCC 651 – relied on. 3.1 Of course, some doctors, both in private practice or in government service, look at patients not as persons who should be relieved from pain and suffering by prompt and proper treatment at an affordable cost, but as potential income-providers/customers who can be exploited by prolonged or radical diagnostic and treatment procedures. It is this minority who bring a bad name to the entire profession. (Para – 28) [758-F & G] 3.2 Every Doctor wants to be a specialist. The proliferation of specialists and super specialists, have exhausted many a patient both financially and physically, by having to move from doctor to doctor, in search of the appropriate specialist who can identify the problem and provide treatment. What used to be competent treatment by one General Practitioner has now become multi-pronged treatment by several specialists. (Para – 29) [759-C & D] 4.1 Law stepping in to provide remedy for negligence or deficiency in service by medical practitioners, has its own twin adverse effects. More and more private doctors and hospitals have, of necessity, started playing it safe, by subjecting or requiring the patients to undergo various costly diagnostic procedures and tests to avoid any allegations of negligence, even though they might have already identified the ailment with reference to the symptoms and medical history with 90% certainly, by their knowledge and experience. (Para – 29) [759-E & F] 4.2 More and more doctors particularly surgeons in private practice are forced to cover themselves by taking out insurance, the cost of which is also ultimately passed on to the patient, by way of a higher fee. As a consequence, it is now common that a comparatively simple ailment, which earlier used to be treated at the cost of a few rupees by consulting a single doctor, requires an expense of several hundred or thousands on account of four factors : (i) commercialization of medical treatment; (ii) increase in specialists as contrasted from general practitioners and the need for consulting more than one doctor; (iii) varied diagnostic and treatment procedures at high cost; and (iv) need for doctors to have insurance cover. The obvious, may be na=2008 AIR 1385, 2008(1 )SCR719 , 2008(2 )SCC1 , 2008(1 )SCALE442 , 2008(1 )JT399 =2008 AIR 1385, 2008(1 )SCR719 , 2008(2 )SCC1 , 2008(1 )SCALE442 , 2008(1 )JT399

  Image via Wikipedia CASE NO.:   Appeal (civil) 1949 of 2004 PETITIONER:Samira Kohli RESPONDENT:Dr. Prabha Manchanda & Anr. DATE OF JUDGMENT: 16/01/2008 BENCH:B. N. Agarwal, P. P. Naolekar & R. V. Raveendran JUDGMENT:J U D G M E N T RAVEENDRAN, J. This appeal is filed against the order dated 19.11.2003 passed by the … Continue reading

Whether Vasanth Sreedhar Kulkarni, Eshwar Gouda Burma Gouda Patil and Ms. Mehrunnisa Mahazuz Husen Maniyar (appellants in C.A. Nos. 6662-6670/2002) had the locus to question the allotment of sites to the private respondents from land bearing survey Nos. 533/1, 534A and 534B of village Kanabargi, Belgaum despite the fact that the writ petitions filed by Vasanth Sreedhar Kulkarni and Eshwar Gouda Burma Gouda Patil had been dismissed by the High Court in 1996 and also the fact that they claim to have sold the acquired land and whether the purchasers were entitled to contest writ petitions filed by the allottees of the acquired land are the questions which arise for consideration in these appeals filed against judgments dated 14.12.1999 and 04.04.2000 of the Division Benches of the Karnataka High Court. =In the result, the appeals are dismissed. Appellants – Vasanth Sreedhar Kulkarni and Eshwar Gouda Burma Gouda Patil shall pay cost of Rs.1,00,000/- each to the BDA for thrusting unwarranted litigation upon it. The BDA shall ensure delivery of possession of the sites to the allottees within 8 weeks from today. However, it is made clear that this judgment shall not preclude the State Government from allotting alternative sites to Mumtaz Begum and others, who are said to have purchased small parcels of land from the landowners through Allahuddin Khan.

Non-reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6662-6670 OF 2002 Vasanth Sreedhar Kulkarni and others ……Appellants Versus State of Karnataka and others ……Respondents With CIVIL APPEAL NOS. 6671-6676 OF 2002 Mumtaz Begum Imam Husen Maribalkar and others ……Appellants Versus State of Karnataka and others ……Respondents J U D G … Continue reading

The respondent Narmada Bachao Andolan (hereinafter called as NBA) has filed the aforesaid applications for expunging certain adverse remarks made in paragraphs = In view of the above, para 145 of the judgment stands modified to the extent as under: “In view of the above, we reach the inescapable conclusion that the NBA has not acted with a sense of responsibility and not taken appropriate pleadings as required in law. However, in a PIL, the court has to strike a balance between the interests of the parties. The court has to take into consideration the pitiable condition of oustees, their poverty, inarticulateness, illiteracy, extent of backwardness, unawareness also. It is desirable that in future the court must view presentation of any matter by the NBA with caution and care, insisting on proper pleadings, disclosure of full

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION I.A. NOS. 256-270 & 271-285 OF 2011 IN CIVIL APPEAL NOS. 2083-2097 of 2011 State of Madhya Pradesh …Appellant Versus Narmada Bachao Andolan & Anr. ….Respondents WITH I.A. NOS. 31-45 & 46-60 OF 2011 IN CIVIL APPEAL NOS. 2098-2112 of 2011 O R D E … Continue reading

Income Tax Act, 1961: s.68 – Presumption under – Non-satisfactory explanation by assessee about the nature and source of the cash receipts credited in his account books – Held: Presumption u/s.68 is to be drawn against him – The sum found credited in the books of assessee for the previous year, to be charged to tax as income of assessee of that previous year since no satisfactory explanation was offered by him – The conclusion of the Tribunal to the effect that the assessee has failed to prove the source of the cash credits cannot be said to be perverse, giving rise to a substantial question of law. s.260A – Substantial question of law – Formulation of – Held: Appeal to the High Court from the decision of the Tribunal lies only when a substantial question of law is involved – If the High Court comes to the conclusion that there is a substantial question of law in the case, it is mandatory on its part to formulate such question. One partnership firm was dissolved on 1.4.1982. The assessee took over the business of the dissolved (erstwhile) firm on 21.10.1982. On 27.5.1983, a search took place in the premises of the assessee and certain records were seized. The seized accounts of the assessee revealed cash receipts of Rs.3.49 lacs in the names of 15 persons purportedly received during the period April 1982 to October 1982. The assessee gave explanation that the cash receipts of Rs.3.49 lacs were realizations from the past debtors of the erstwhile firm. The assessee, however, could not produce proof to substantiate the said stand. The assessee was given several opportunities to file confirmations of 15 persons in whose names cash credit entries appeared in the register. The assessee ultimately filed 7 confirmations with the addresses of 6 other parties, but the enquiry letters sent by the Assessing Officer to them remained unserved, unanswered or denied. By assessment order, the Assessing Officer added Rs.3.49 lacs as assessee’s income under the head “unexplained cash receipts”. The assessee unsuccessfully appealed before the Tribunal. The High Court dismissed the second appeal on the ground that no substantial question of law was involved in the case. Aggrieved, the assessee filed the instant appeals. = Dismissing the appeals, the Court HELD: 1.1. It is manifest from a bare reading of the Section 260A of the Income Tax Act, 1961 that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression “substantial question of law” is not defined in the Act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. [Paras 18, 21] [509-C-E; 511-B-C] Sir Chunilal v. Mehta & Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 ; Hero Vinoth (Minor) v. Seshammal 2006) 5 SCC 545; Madan Lal v. Mst. Gopi & Anr. (1980) 4 SCC 255; Narendra Gopal Vidyarthi v. Rajat Vidyarthi (2009) 3 SCC 287; Commissioner of Customs (Preventive) v. Vijay Dasharath Patel (2007) 4 SCC 118; Metroark Ltd. v. Commissioner of Central Excise, Calcutta (2004) 12 SCC 505; West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002) 8 SCC 715 – relied on. 1.2. In the instant case, the High Court has correctly concluded that no substantial question of law has arisen from the order of the Tribunal. All the authorities below, in particular, the Tribunal, have observed in unison that the assessee did not produce any evidence to rebut the presumption drawn against him under Section 68 of the Act, by producing the parties in whose names the amounts in question were credited by the assessee in his books of account. In the absence of any cogent evidence, a bald explanation furnished by the assessee about the source of the credits in question, viz., realisation from the debtors of the erstwhile firm, in the opinion of the assessing officer, was not satisfactory. It is well settled that in view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income tax as the income of the assessee of that previous year, if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the assessing officer, not satisfactory. On a conspectus of the factual scenario, the conclusion of the Tribunal to the effect that the assessee has failed to prove the source of the cash credits cannot be said to be perverse for giving rise to a substantial question of law. The Tribunal being a final fact finding authority, in the absence of demonstrated perversity in its finding, interference therewith by this Court is not warranted. [Para 22] [511-E-G; 512-A-D] Sumati Dayal v. Commissioner of Income Tax, Bangalore 1995 Supp (2) SCC 453; Commissioner of Income Tax v. P. Mohanakala (2007) 6 SCC 21 – relied on. Case Law Reference: AIR 1962 SC 1314 relied on Para 18 (2001) 3 SCC 179 relied on Para 19 (2006) 5 SCC 545 relied on Para 20 (1980) 4 SCC 255 relied on Para 21 (2009) 3 SCC 287 relied on Para 21 (2007) 4 SCC 118 relied on Para 21 (2004) 12 SCC 505 relied on Para 21 (2002) 8 SCC 715 relied on Para 21 1995 Supp (2) SCC 453 relied on Para 22 (2007) 6 SCC 21 relied on Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3265-3266 of 2003. From the Judgment & Order dated 21.12.2001 and 19.02.2002 of the High Court of Delhi at New Delhi in I.T.A. No. 202 of 2001 and RA No. 10 of 2002 in ITA No. 66 of 2001. K.R. Manjani, Pankaj Kumar Singh, Dr. Vinod Tewari, K.L. Janjani for the Appellant. R.P. Bhatt, H.R. Rao, Prateek Jalan, Vikas Malhotra, B.V. Balaram Das for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 3265-3266 OF 2003 VIJAY KUMAR TALWAR — APPELLANT VERSUS COMMISSIONER OF INCOME — RESPONDENT TAX, DELHI JUDGMENT D.K. JAIN, J.: 1. Challenge in these two appeals, by special leave, is to the orders dated 21st December, 2001 and 19th February, 2002 whereby … Continue reading

KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977: ss. 4 (2) (b) and 10 – Abolition of Inams – Inamdar regranted the land – Erstwhile mortgagee claiming the mortgage to have been revived consequently – Held: High Court was not justified in concluding that s. 43 of Transfer of Property Act is relevant – Neither s. 43 of TP Act nor s. 10 of Karnataka Act has application to the facts of the case -Matter remitted to High Court for consideration afresh – Transfer of Property Act, 1882 – s. 43 – Doctrine of feeding the estoppel. A religious institution, namely, Kannada Mutt, was granted certain Jagir lands. Upon abolition of Inams by virtue of Karnataka Certain Inams Abolition Act, 1977, the lands stood vested with the State Government. However, the appellant being the Matadhisathi of the Mutt was allowed re- grant of the land. The respondents, who were the erstwhile mortgagees, claimed possession of the land in question contending that by virtue of order of re-grant in favour of the appellant, the earlier mortgage was revived and possession of the land could not be granted to the appellant. When the matter reached the Division Bench of the High Court in writ appeals, it held that s. 43 of the Transfer of Property Act, 1882 was applicable. Aggrieved, the Mathadhipati filed the appeals. = Allowing the appeals, the Court HELD: 1.1 A bare reading of s.4 of the Karnataka Certain Inams Abolition Act, 1977 makes it clear that notwithstanding any contract, all Inam tenures stood abolished and the consequences were the passing of the rights, title and interests as provided in s.4(2)(b). Section 10 of the Act has no application to the facts of the case. [para 6-7] [ 442-E, F; 443-B] Syed Bhasheer Ahamed and Ors. V. State of Karnataka ILR 1994 Kar 159 – distinguished. 1.2 The sine quo non for application of s.43 is that at the initial stage the person should have fraudulently or erroneously represented that he is authorized to transfer certain immovable property or professes to transfer such property for consideration. Only then the question of option of the transferee arises in case the transferor acquires any interest in the property at any time during which the contract of transfer subsists. Therefore, the High Court was not justified in concluding that s.43 is relevant. [para 6] [ 442-G, H; 443-A] 2. Without expressing any opinion about the acceptability of any stand taken by the respondents, the judgment of the High Court is set aside and the matter is remitted to it for consideration afresh. It is made clear that the issue relating to applicability of s.43 stands closed. [para 8] [444-B, C] Case Law Reference ILR 1994 Kar 159 distinguished para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1040-1053 of 2009 From the Judgement and Order dated 12.09.2007 of the Hon’ble High Court of Karnataka at Bangalore in W.A. No. 1936-40 & 1941-45 of 2005 Rama Jois, G.V. Chandrshekar, N.K. Verma, Anjana, Chandrashekar, for the Appellant. A.K. Subbaiah, S.J. Amith, Aparna Bhat, Kiran Suri, Sanjay R. Hegde, for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1040-1053 OF 2009 (Arising out of SLP (C) Nos. 3733-3746 of 2008) Ni. Pra Channabasava D.S. Matadhipathigalu ..Appellant Kannada Mutt Versus C.P. Kaveeramma and Ors. ..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in these appeals is to the … Continue reading

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