//
archives

research

This tag is associated with 28 posts

The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995= Mental disorders – benefits under disability act = whether at the time of discharge from service he was suffering from a disease which made him unfit to continue in service and whether he would be entitled to disability pension.=Although, the Courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasized is that the opinion of the experts deserves respect and not worship and the Courts and other judicial / quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release / discharge from the Army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable.= “You have been diagnosed as a case of SCHIZOPHRENIC REACTION and not LUNATIC. As such your request to produce you before a medical board to examine you whether you are Lunatic or free from LUNACY does not arise. Therefore no resurvey medical board can be held in your case.”= His case was considered on 14.11.1977 by the Invaliding Medical Board held at Military Hospital, Meerut and on its recommendations, he was discharged from service. His claim for disability pension was rejected by Principal Controller of Defence Accounts (Pension), Allahabad on the ground that the disease, i.e., Schizophrenic Reaction, which was the cause of his discharge was not attributable to the military service.= Unfortunately, the Tribunal did not even bother to look into the contents of the certificate issued by the Invalidating Medical Board and mechanically observed that it cannot sit in appeal over the opinion of the Medical Board. If the learned members of the Tribunal had taken pains to study the standard medical dictionaries and medical literature like “The Theory and Practice of Psychiatry” by F.C. Redlich and Daniel X. Freedman, and Modi’s Medical Jurisprudence and Toxicology, then they would have definitely found that the observation made by Dr. Lalitha Rao was substantially incompatible with the existing literature on the subject and the conclusion recorded by the Invaliding Medical Board that it was a case of Schizophrenic Reaction was not well founded and required a review in the context of the observation made by Dr. Lalitha Rao herself that with the treatment the appellant had improved. In our considered view, having regard to the peculiar facts of this case, the Tribunal should have ordered constitution of Review Medical Board for re-examination of the appellant. 18. In Controller of Defence Accounts (Pension) v. S. Balachandran Nair (2005) 13 SCC 128 on which reliance has been placed by the Tribunal, this Court referred to Regulations 173 and 423 of the Pension Regulations and held that the definite opinion formed by the Medical Board that the disease suffered by the respondent was constitutional and was not attributable to Military Service was binding and the High Court was not justified in directing payment of disability pension to the respondent. The same view was reiterated in Ministry of Defence v. A.V. Damodaran (2009) 9 SCC 140. However, in neither of those cases, this Court was called upon to consider a situation where the Medical Board had entirely relied upon an inchoate opinion expressed by the Psychiatrist and no effort was made to consider the improvement made in the degree of illness after the treatment. 19. As a corollary to the above discussion, we hold that the impugned order as also orders dated 14.7.2011 and 16.9.2011 passed by the Tribunal are legally unsustainable. In the result, the appeal is allowed. The orders passed by the Tribunal are set aside and the respondents are directed to refer the case to Review Medical Board for reassessing the medical condition of the appellant and find out whether at the time of discharge from service he was suffering from a disease which made him unfit to continue in service and whether he would be entitled to disability pension.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40505 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5922 OF 2012 Veer Pal Singh …Appellant versus Secretary, Ministry of Defence …Respondent J U D G M E N T G. S. Singhvi, J. 1. This appeal is directed against order dated 19.12.2011 of the Armed Forces Tribunal, Lucknow … Continue reading

UNFAIR TRADE PRACTICE – QUACK DOCTOR = According to the appellant, she came across an advertisement published in a newspaper ‘Jan Satta’ dated 8.8.1993 offering treatment of the patients having fits with Ayurvedi medicine by Dr. R.K. Gupta­ respondent No.1. The advertisement impressed the appellant as the respondent No.1 claimed total cure of fits. The appellant wrote a detailed letter to respondent No.1 about her son’s fits during high fever. In response, respondent No.1 sent a letter dated 23rd November, 1993 assuring that he had specialised treatment for the problem of Prashant by Ayurvedic medicines. despite medicines being given regularly the condition of Prashant started deteriorating day by day and the fits which were occasional and occurred only during the high fever, started occurring even without fever. = he is a quack and guilty of medical negligence, criminal negligence and breach of duty as he was playing with the lives of innocent people without understanding the disease. He was prescribing Allopathic medicines, for which he was not competent to prescribe. It was, inter alia, prayed that direction be issued to respondents to pay a sum of Rs.20 lakhs as compensation; to refund the charges paid by the appellant to the respondents and to reimburse the expenses incurred by the appellant on travelling to Rishikesh and a sum of Rs.10 lakhs for undergoing termination of pregnancy. = The National Commission has already held that respondent No.1 was guilty of unfair trade practice and adopted unfair method and deceptive practice by making false statement orally as well as in writing. In view of the aforesaid finding, we hold that both Prashant and the appellant suffered physical and mental injury due to the misleading advertisement, unfair trade practice and negligence of the respondents. The appellant and Prashant thus are entitled for an enhanced compensation for the injury suffered by them. Further, we find no reason given by the National Commission for deducting 50% of the compensation amount and to deposit the same with the Consumer Legal Aid Account of the Commission. 16. We, accordingly, set aside that part of the order passed by the National Commission and enhance the amount of compensation at Rs.15 lakhs for payment in favour of the appellant with a direction to the respondents to pay the amount to the appellant within three months. The appeal is allowed but there shall be no separate order as to costs.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8660 OF 2009 BHANWAR KANWAR …. APPELLANT VERSUS R.K. GUPTA & ANR.  ….RESPONDENTS J UD G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This   appeal   has   been   preferred   by   the complainant­appellant against the order and judgment dated   29th  January,   2009   passed   by   the   National Consumer   Disputes   Redressal   Commission,   New   Delhi (hereinafter   referred … Continue reading

The competent authority in the present case, issued a caste certificate dated 19.10.1989, after following due procedure, in favour of the appellant stating that he does in fact, belong to Bhil Tadvi (Scheduled Tribes). On the basis of the said certificate, the appellant was appointed as Senior Clerk in the Municipal Corporation of Aurangabad (hereinafter referred to as the, ‘Corporation’) on 6.2.1990, against the vacancy reserved for persons under the Scheduled Tribes category. = Section 114 Ill.(e) of the Evidence Act provided for the court to pronounce that the decision taken by the Scrutiny Committee has been done in regular course and the caste certificate has been issued after due verification. A very strong material/evidence is required to rebut the presumption = “We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far- reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so.” = Affidavit – whether evidence within the meaning of Section 3 of the Evidence Act, 1872: It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence Act’). Affidavits are therefore, not included within the purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan & Ors., AIR 1988 SC 1381; and Range Forest Officer v. S.T. Hadimani, AIR 2002 SC 1147).

REPORTABLE IN THE SUPREMECOURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7728 OF 2012   Ayaaubkhan Noorkhan Pathan … Appellant Versus The State of Maharashtra & 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 … Continue reading

No provision of any statute or any rules framed thereunder has been shown to us, which permits rounding-off of eligibility criteria prescribed for the qualifying examination for admission to the PG course in M.SC (Nursing). When eligibility criteria is prescribed in a qualifying examination, it must be strictly adhered to. Any dilution or tampering with it will work injustice on other candidates. The Division Bench of the High Court erred in holding that learned Single Judge was right in rounding-off of 54.71% to 55% so as to make respondent 1 eligible for admission to PG course. Such rounding-off is impermissible. 11. We make it clear that this order merely settles the question of law and shall not have any adverse impact, in any manner, on the service of respondent 1. 12. The appeal is disposed of in the aforesaid terms.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5992 OF 2012 (Arising out of Special Leave Petition (Civil) No. 8442 of 2011) THE REGISTRAR, RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, BANGALORE … APPELLANT VS. G. HEMLATHA AND OTHERS … RESPONDENTS JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave granted. 2. … Continue reading

WORKERS’ COMPENSATION – “injury” – definition – exclusionary provision – administrative action in respect of employee’s employment – bank manager suffered major depressive disorder – multiple causes – organisational and staffing changes with respect to manager’s branch, humiliation in having to report unsatisfactory results in telephone conference, visit to branch by regional manager who did not spend time with manager, distribution of unsatisfactory results of customer satisfaction survey, impending further telephone conference – whether Administrative Appeals Tribunal erred in construction of exclusionary provision – whether any of causes capable of falling within exclusionary provision

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 (8 March 2012) Last Updated: 8 March 2012 FEDERAL COURT OF AUSTRALIA   Commonwealth Bank of Australia v Reeve [2012] FCAFC 21   Citation: Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 Appeal from: Reeve and Commonwealth Bank of Australia [2010] AATA 893 Parties: COMMONWEALTH BANK … Continue reading

COPYRIGHT – Proposed licensing scheme – reference of scheme to Tribunal for approval under s.154(4) of theCopyright Act 1968 (Cth) – licences for use of sound recordings in fitness classes – calculation of licence fee –rate of increase – whether calculated by monthly membership of fitness centres, or by attendance at fitness classes or by reference to the classes conducted – choice modelling survey – measurement of the value of sound recordings in fitness classes – measurement of willingness to pay for recorded music – flaws in survey – alternative basis for calculation of licence fee – consideration of bargaining principles – consideration of competition issues – whether only fitness centres should pay the licence fee – consideration of definition issues in the proposed scheme – observations on the role of the ACCC in Tribunal proceedings. 1) The licensee agrees that PPCA may in writing, notify the licensee that it wishes, on a day specified in the notice, being an ordinary working day of the licensee specified in the notice not earlier than 7 days after the day on which the notice is given, to do such of the following things as are specified in the notice: (a) assess the amount of public performance of Sound Recordings comprising part of the PPCA repertoire; (b) inspect all the relevant records that relate to the public performance of Sound Recordings comprising part of the PPCA repertoire; (c) inspect such other records as are relevant to the assessment of the amount of equitable remuneration payable by the licensee to PPCA. (2) Where PPCA gives a notice, a person authorised in writing by PPCA may, during the ordinary working hours of the relevant licensee on the day specified in the notice (but not before 10 a.m. or after 3 p.m.), carry out the assessment, or inspect the records, to which the notice relates and, for that purpose, may enter the premises of the licensee. (3) The licensee shall take all reasonable precautions, and exercise reasonable diligence, to ensure that a person referred to in subpara (2) who attends at the premises of the licensee for the purpose of exercising the powers conferred by that subsection is provided with all reasonable and necessary facilities and assistance for the effective exercise of those powers. Special Condition B: The licensee is to provide to PPCA on a quarterly basis month-by month reports indicating the number of Fitness Classes conducted by the licensee, the number of PPCA Fitness Classes conducted by the licensee and any other supporting documentation PPCA may reasonably require to verify the per class rate applicable to the licensee. Special Condition C: The licensee is to provide PPCA on a quarterly basis month by month reports indicating the number of attendees in Fitness Classes conducted by the licensee, the number of attendees in PPCA Fitness Classes conducted by the licensee and any other supporting documentation PPCA may reasonably require to verify the attendee per class rate applicable to the licensee.

Phonographic Performance Company of Australia Limited (ACN 000680 704) under section 154(1) of the Copyright Act 1968 [2010] ACopyT 1 (17 May 2010) Last Updated: 20 May 2010 COPYRIGHT TRIBUNAL OF AUSTRALIA Phonographic Performance Company of Australia Limited (ACN 000680 704) under section 154(1) of the Copyright Act 1968 [2010] ACopyT 1   Citation: Phonographic Performance Company of Australia … Continue reading

The request of patent is for “A New Crystalline Form of Adefovir Dipivoxil and its Composition”. Hearing was held on 20.8.2009. The Assistant Controller held that claims 1-4 could not be allowed in view of section 3(d) of the Patents Act, 1970 and no proof has been furnished to show enhanced efficacy. The impugned order also records that there is no data to show clinical trial on human beings to support the case of therapeutical efficacy. Thereafter, the Assistant Controller held that claims 4-7 are not allowable under section 3(e) of the Patents Act, 1970 and claims 7-10 are being beyond the scope of claim 1. It is seen from the paper book that the sentence starting from the word “The experimentation must be done……….” and ending with the words “its effect on man’’’’ has been taken from the extracts taken from the Internet which is a published article in Internet by one David W. TSCHANZ, MSPH, Ph.D. giving historical evidence of the work of earlier Islamic scholars with regard to pharmaceutical knowledge. In the para headed “Ibn Sina and Clinical Trials”, we found this sentence word for word except an addition of a word “monkey”. 5. Next we come to the 2nd para of the impugned order which starts with the word “what is clinical” and ends with “the disease being treated”. We find from the paper book that this is a web printout from Procter & Gamble’s website, where this paragraph is found in the same font and it has been extracted in the impugned order verbatim. 6. Next we come to the 3rd para, which starts with “Five (5) different types classifying trials;”. These are extracted word by word from the Wikipedia under “Clinical Trial” where just above the word-design the words in the paragraphs were extracted except for the photo. Instead of five different types of classifying trials, Wikipedia reads “Another way of classifying trials is by their purpose”. The US National Institute of Health (NIH) organizes trails into Five (5) different types. 7. After linking these three collection of materials from Internet, the impugned order comes to the conclusion that the claims 4-7 are not allowable and claims 7-10 are beyond scope of claim 1. As regards failure to submit clinical data, the learned counsel for the appellant submitted that this had been submitted to them but not considered. 8. This is not how an order shall be passed by the Patent Office. The Controller has the duty to examine the claims and test them for patentability. This order must be set aside. The application is sent back to the Controller who shall consider it independently. On examination and before holding the hearing, the Controller shall examine, if, apart from section 3(d), there are other objections. If so, the Controller shall inform the applicant that other objections shall also be addressed. After hearing the applicant, reasoned order shall be given. 9. The fact that this impugned order has been set aside does not mean that we have considered the merits of the patent application to found the invention patentable. We have not examined the merits at all. This shall be considered independently and in a judicial manner by the Controller. Such an order shall be passed in accordance with law within a period of three months from the receipt of this order. The Appeal is allowed as above and the matter is remanded back to the Controller.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex, Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018   OA/16/2012/PT/DEL WEDNESDAY THIS, THE 6th DAY OF JUNE, 2012   Hon’ble Smt. Justice Prabha Sridevan   —  Chairman Hon’ble Shri D.P.S. Parmar                    —  Technical Member (Patents)     TIANJIN DISHILI INVESTMENT HOLDING GROUP LIMITED FORMERLY KNOWN AS  —       Applicant TIANJIN KINSLY … Continue reading

Medical negligence on the part of the Hospital and concerned doctor , in providing external cardiac pacing and ventilatory support to the heart patient within 4 minutes after the failure of the insertion of stunt operation- amounts to medical negligence , the Hospital and doctor both are liable to pay compensation of 2 lakhs with 10% interest as they charged the patient for operation.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI                                                               FIRST APPEAL NO. 496  OF 2006 (Against the order dated 8-8-2006 in Complaint Case No.C-268 of 1995 of the State Commission, Delhi) 1. Shri S. C. Mathur R/o 182, Ashoka Enclave-I Faridabad– 121 003 2. Ms. Shipra Mathur R/o 46, Ashoka Enclave-I Faridabad- 121 003 3. Shri Puneet Mathur R/o 182, Ashoka Enclave-I Faridabad- 121003                                                                                               ……….Appellants Versus 1. Director, All India Institute of Medical … Continue reading

BT . BRINJAL ETC., Genetically Modified Organisms (for short ‘GMOs’)(1) There shall be the Technical Expert Committee, the constitution whereof shall be as follows: a. Prof. V.L. Chopra Specialization/Work Focus:Plant Biotechnology Genetics and Agricultural Science. Former Member, Planning Commission and Former Member, Science & Advisory Committee to the PMO, Recepient of several awards including the Padma Bhushan. b. Dr. Imran Siddiqui Specialization/Work Focus : Plant Development Biology Scientist & Group Leader, Centre for Cellular & Molecular Biology (CCMB) c. Prof. P.S. Ramakrishnan Emeritus Prof. JNU Work Focus : Environmental Sciences and Biodiversity. d. Dr. P.C. Chauhan, D.Phil (Sci) Work Focus : Genetics toxicology and food safety e. Prof. P.C. Kesavan Distinguished Fellow, MS SRF (Research Foundation), Emeritus Professor, CSD, IGNOU, New Delhi. Work Focus : Genetics Toxicology, Radiation Biology and Sustainable Science. f. Dr. B. Sivakumar Former Director, National Institute of Nutrition (NIN), Hyderabad. (2) The terms of reference of the said Committee shall be as follows: a. To review and recommend the nature of sequencing of risk assessment (environment and health safety) studies that need to be done for all GM crops before they are released into the environment. b. To recommend the sequencing of these tests in order to specify the point at which environmental release though Open Field Trials can be permitted. c. To advise on whether a proper evaluation of the genetically engineered crop/plants is scientifically tenable in the green house conditions and whether it is possible to replicate the conditions for testing under different agro ecological regions and seasons in greenhouse? d. To advise on whether specific conditions imposed by the regulatory agencies for Open Field Trials are adequate. If not, recommend what additional measures/safeguards are required to prevent potential risks to the environment. e. Examine the feasibility of prescribing validated protocols and active testing for contamination at a level that would preclude any escaped material from causing an adverse effect on the environment. f. To advise on whether institutions/laboratories in India have the state-of-art testing facilities and professional expertise to conduct various biosafety tests and recommend mechanism to strengthen the same. If no such institutions are available in India, recommend setting up an independent testing laboratory/institution. g. The Expert Committee would be free to review reports or studies authored by national and international scientists if it was felt necessary. The petitioners opined that they would like to formally propose three Expert Reports from Prof. David Andow, Prof. Jack Heinemann and Dr. Doug Gurian Sherman to be a formal part of the Committee’s deliberations. The MoEF may similarly nominate which experts they choose in this exercise. 3. The Court will highly appreciate if the said Committee submits its final report to the Court within three months from today. 4. The Committee may hear the Government, petitioners and any other intervenor in this petition, who, in the opinion of the Committee, shall help the cause of expeditious and accurate finalization of its report. 5. In the event and for any reason whatsoever, the Committee is unable to submit its final report to the Court within the time stipulated in this order, we direct that the Committee should instead submit its interim report within the same period to the Court on the following issue: “Whether there should or should not be any ban, partial or otherwise, upon conducting of open field tests of the GMOs? In the event open field trials are permitted, what protocol should be followed and conditions, if any, that may be imposed by the Court for implementation of open field trials.” 7. Let the matter stand over to 6th August, 2012.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.260 OF 2005 ARUNA RODRIGUES & ORS. … Petitioners Versus UNION OF INDIA & ORS. … Respondents WITH WRIT PETITION (CIVIL) NO. 115 OF 2004 AND CONTEMPT PETITION (CIVIL) NO. 295 OF 2007 IN W.P.(C) NO.260/2005 O R D E R Swatanter … Continue reading

THE CARIBBEAN COURT OF JUSTICE =The Claimant is a limited liability company which was incorporated under the laws of Trinidad and Tobago on 24 th March 1995 and which engages in the sale and distribution of flour. By virtue of section 5 of the Companies Act 1995 of Trinidad and Tobago, 2 HRM and other companies in the group controlled by the CEO and Chairman of HRM are considered to be “affiliated corporations”. In 2007 the Claimant changed its name to Caribbean Flour Mills Limited and traded as such until September 2010 when it reverted to being HRM. An affiliated company, Transit Shipping Agency Limited, incorporated in 2009 but which had carried on no business activity, then changed its name to Caribbean Flour Mills Limited. The main operation of the group of affiliates is the production and sale of rice and flour. In particular, Republic Grains Investments Limited engages in the production of flour but distributes it through HRM which sold the flour in its own name and then in its new name of Caribbean Flour Mills Limited. Indeed, after changing its name in September 2010 back to HRM, sales of flour were made to persons under invoices in the name of Caribbean Flour Mills Limited, the new name of Transit Shipping Agency Limited. It is unclear whether Caribbean Flour Mills Limited was acting for itself as principal or as agent for HRM. It became apparent from the documentation and the evidence of HRM’s three witnesses that in paying bills and in receipts from invoices insufficient attention was paid to the separateness of the individual companies’ debts and entitlements. [5] By reason of its acceptance of the original Treaty of Chaguaramas 1973, Suriname became a Member of the Caribbean Community in July 1995 and the Common Market in January 1996. On 10 th April 1997, the Government of Suriname issued a Ministerial Order suspending for an indefinite time the levying 2 Act No. 35 of 1995.of import duties on certain items including flour. As a consequence the Common External Tariff (the “CET”) payable on flour was never applied.Order [67] The Court: (a) Declares that Suriname breached its obligations under Article 82 of the Revised Treaty of Chaguaramas to establish and maintain the common external tariff during the period 1 st January 2006 to 14 th June 2010 (b) Refuses all other declarations claimed in the Amended Originating Application herein (c) Dismisses the claim for damages against the Defendants (d) Orders that written submissions as to costs be filed and exchanged within 21 days of the date of this judgment.

[2012] CCJ 1 (OJ) IN THE CARIBBEAN COURT OF JUSTICE Original Jurisdiction CCJ Application No OA 1 of 2011 Between Hummingbird Rice Mills Ltd Claimant And Suriname The Caribbean Community Defendants THE COURT Composed of R Nelson, A Saunders, J Wit, D Hayton and W Anderson, Judges Having regard to the originating application filed at … Continue reading

Blog Stats

  • 2,886,951 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers
Follow advocatemmmohan on WordPress.com