The Honourable

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When policy is only for Graduates – an 8th standard person can not apply for it – misstatement as B.Com., comes to material suppression- No claim =“Whether the insured is bound to explain the correct educational qualifications before the Insurance Company, when that insurance is meant only for Graduates?”. – yes = It is thus clear that there are two categories, one for Graduates and the other for Non-Graduates. The mis-statement made by the deceased go to the root of the case and violate the basic principle of ‘utmost faith’, which obviously forms the corner stone of any insurance contract. Due to this mis-statement, the complainant is not entitled to any claim. The Hon’ble Apex Court, in the case of Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd., reported in IV (2009) CPJ 8 (SC), was pleased to hold that : “The term “material fact” is not defined in the Act and, in therefore, it has been understood and explained by the Courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact which goes to the root of the Contract of Insurance and has a bearing on the risk involved would be “material”. Nonetheless, it is a contract of insurance falling in the category of contract ‘uberrimae fidei’, meaning, ‘a contract of utmost good faith, on the part of the assured’. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. – As stated in Pollock and Mulla’s Indian Contract and Specific Relief Acts, any fact, the knowledge or ignorance of which would materially influence an insurer in making the contract or in estimating the degree and character of risks in fixing the rate of premium, is a material fact”. – In view of this discussion, we allow the revision petition, set aside the orders rendered by both the fora below and dismiss the complaint. No costs.

published in NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI     REVISION PETITION NO. 3442 OF 2012 (From the order dated 13.07.2012 in Appeal No. 911/2011  of State Consumer Disputes Redressal Commission, GUJARAT ) MetLife India Insurance Co. Ltd. Through its Chief Manager – Legal Brigade Seshamahal, 5-Vani Vilas Road Basavanagudi, Bengaluru – 560 004                        …Petitioner Versus … Continue reading

WRIT- CONSUMER COMMISSION- SEC. 46,47 OF INSURANCE OF ACT – WHO HAS TO FILE A CIVIL SUIT IN CIVIL COURT = WHEN CONSUMER COMMISSION REFUSED TO DECIDED AN INSURANCE CLAIM = National Consumer Reddressal Commission, New Delhi, wherein it has opined that all the cases require recording of voluminous evidence and that realising this difficulty, the learned counsel representing the appellants/revision petitioners sought liberty to approach the civil Court for the purpose of recovering the claim amounts. Accordingly, liberty was given to them to approach the civil Court. ; who among the parties must approach the civil Court. under sec.47 of INSURANCE ACT= the occasion for the insurer to approach the civil Court under Section 47 of the Act would arise when there is no dispute as to the payment of the insured amount but the dispute as to the persons to whom the amount has to be paid or if there is insufficiency of proof of title to the amount secured or any other adequate reason which render it impossible for the insurer to obtain a satisfactory discharge for the payment of such amount. It is not the pleaded case of either party that the insurer is willing to discharge the insured amount but on account of any one or more of the above noted reasons contained under Section 47 of the Act, the insurer is unable to secure discharge. As noted herein before, all the insurance companies have resisted the claims of the petitioners before all the fora on the ground that there are serious suspicious circumstances rendering the very claims of the nominees of the insured, doubtful. Therefore, on a careful consideration of the facts of the cases on hand, I have no doubt in my mind that Section 47 of the Act has no application to the present cases and there is no obligation cast on the insurance companies to approach the civil Court. As rightly undertaken by the petitioners before the National Consumer Reddressal Commission, it is they who need to approach the civil Court by way of regular civil suits if they intend to claim the insured amounts as the purported nominees of the policyholders. For the above-mentioned reasons, I do not find any merit in these writ petitions and the same are accordingly dismissed.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9852     THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY   Writ Petition No. 30752 of 2012 and Batch   02-04-2013   Khalida Begum and another   The Life Insurance Corporation Ltd., Division Office at Opposite Secretariat, Saifabad, Hyderabad Rep.by its Divisional Manager Claims and another.   Counsel for the petitioners: Sri M.A.Barifor Md.Ajmal Ahmed … Continue reading

the damages/compensation cannot be claimed against the State. ? =Whether the death of son of plaintiff was due to want of care, negligence and callousness of defendants as pleaded by plaintiffs?- Whether there is any bar in law, prohibiting award of damages, on account of the death of a soldier or seaman, if it is proved that the death occurred under mysterious circumstances? = if the negligence or want of proper care on the part of State is proved, the tortious liability to pay damages/compensation would arise and the same needs to be treated as constitutional tort. No decided case is cited as to how a State can claim immunity from the obligation to compensate the dependants of its employee, if it is proved that the death occurred on account of its negligence and lack of proper care. The point is answered accordingly. REPORTED/ PUBLISHED http://judis.nic.in/judis_andhra/filename=9823

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE K.G.SHANKAR Appeal Suit No.3504 of 2004 04.04.2013 Union of India and another. Ashok Narayan Paldhe and others. Counsel for appellants: Sri Ponnam Ashok Goud Counsel for Respondents : Sri Sunil Ganu <GIST: >HEAD NOTE: ?Cases referred 2004 (1) ALD 19 JUDGMENT: (Per the Hon’ble … Continue reading

SECOND MARRIAGE NOT A BAR IN ALLOWING SET ASIDE EXPARTE DIVORCE DECREE = = Order – IX Rule 13 CPC with a prayer to set aside the ex parte decree OF DIVORCE. Since there was delay of 153 days in filing it, she filed I.A No.480 of 2006.= The very fact that the proceedings are pending in the Courts at Raipur and Visakhapatnam, discloses that the relationship was not cordial and the acts resorted to by the respondent in obtaining the ex parte decree and then immediately contacting second marriage can not at all be countenanced, much less the Court can put a seal of approval upon it. Though the status of the second marriage contacted by the respondent may be at a stake, it cannot outwit the gross injustice done to the petitioner. 6. Reliance is placed upon the judgment of the Rajasthan High Court in Surendra Kumar v. Kiran Devi1. It is difficult to treat that as a precedent for the proposition that whenever one of the spouses contacts second marriage, after obtaining a decree for divorce, the decree cannot be set aside thereafter. Further, in the instant case, the trial Court did not record any finding to the effect that the notice in the O.P. was served upon the petitioner. 7. Hence, the Civil Revision Petition is allowed and the delay of 153 days in filing the application to set aside the ex parte decree is condoned. Since the reasons that weigh with the Court for condonation of delay would hold good for setting aside the ex parte decree, the I.A. filed under Order – XXXIX Rule – 13 CPC was allowed. REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9784

HONOURABLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 6034 OF 2010 03-04-2013 Smt. Rachokonda Parvathi W/o. Venkata Subrahmanyam Rachakonda Venkata Subrahmanyam S/o.late R. Venkata Ramana. Counsel for the Petitioners: Sri Ravi Cheemalapati Counsel for the Respondent: Sri G. Ram Gopal <Gist: >Head Note: ?Cases referred AIR 1997 Rajasthan 63 ORDER: Petitioner is the … Continue reading

Repeated acquisition of land of the same family = whether by resorting to repeated acquisition of the properties belonging to the same person, the State is not acting contrary to the dictates of Article 14 of the Constitution. This question was answered in the affirmative.= The real question is not whether the petitioners will be left with 4 or 5 acres of land or a bit more or, that whether they are running some business or not. where there was no other possibility of providing house sites to the persons displaced in a project and the acquisition is found so inevitable, such cases may fall under exceptions, warranting acquisition of the properties belonging to the same family more than once. = The State and its Officials should display a reasonable and rational attitude in dealing with the properties of the private citizens As held by the Division Bench in K.Ramulu (cited supra), in the quest for providing house sites to one section of poor people, others cannot be ruined. The petitioners have succeeded in proving that acquisition of their lands is not inevitable in the face of availability of the land admeasuring Ac.5-20 cents comprised in Survey No.449 belonging to Mente Narayana Swamy. Such being the admitted position, I do not find any justification, whatsoever, in the action of the respondents in insisting on acquisition of the petitioners’ land.

reported in/published  inhttp:// * The Hon’ble Sri Justice C.V.Nagarjuna Reddy   + Writ Petition No.1449 of  2010   % Date: 21-12-2011 Between: # Thumurouthu Mallikarjuna Rao and another ….. Petitioners AND   $ 1.The State of Andhra Pradesh, Rep. by its Secretary, Revenue (L.A.) Secretariat, Hyderabad and 4 others. …..Respondents ^ Counsel for the Petitioners:                                  Mr.S.Subba Reddy ! Counsel for … Continue reading

Payment of family pension to the widowed/divorced daughter, irrespective whether she became widowed/divorced daughter either before or after the retirement of employee, provided the spouse predeceases the pensioner and sons/daughters become ineligible for the Family Pension; and Smt. Sajida Bano, who has been settled and paid family pension, as she is rightly entitled to be paid the same. Unfortunately, Smt Sajida Bano died on 06.03.2012. Hence, the question of payment of family pension to any other member in the family would not simply arise. Family pension, to my mind, is liable to be paid either to the spouse of the deceased pensioner, provided such a spouse is surviving, or to any other eligible family members organized to fall in category I and category II of G.O.Ms.No.315. For others to secure eligibility for sanction of family pension, the spouse must pre-decease the pensioner but not otherwise. In the instant case, the spouse of the pensioner Smt. Sajida Bano survived him and hence, the petitioner is not eligible to be granted family pension and the fact that the Corporation rejected her candidature on some other that ground is of not much of a legal significance for her claim to be upheld.

reported in / published in http://judis.nic.in/judis_andhra/filename=9882 THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.13243 of 2013 29-04-2013 MISS MEHER BANO .. PETITIONER GOVERNMENT OF ANDHRA PRADESH REP BY ITS PRINICIPAL SECRETARY TO GOVERNMENT ENERGY DEPARTMENT, A.P. SECRETARIAT, HYDERABAD AND OTHERS .. RESPONDENTS Counsel for the petitioner : Sri Syed Mushtaq Ahmed Counsel for the … Continue reading

SALE OF PLEDGED SECURITES WITH OUT NOTICE UNDER SEC.176 OF CONTRACT ACT NOT VALID AND LIABLE TO PAY COMPENSATION = M/s.Green Gardens Private Limited entered into Facility Agreement dated 26.06.2008 with M/s.Indiabulls Housing Finance Limited to avail loan of Rs.240 Crores. The loan was secured by pledge of shares equivalent to 200% of the loan amount. M/s.Indiabulls Housing Finance Limited disbursed the loan of Rs.227.5 Crores against sanctioned loan of Rs.240 Crores. 3. Mrs.A.Indira Anand and Mrs.K.Bharathi executed Pledge Agreement in favour of M/s.Indiabulls Housing Finance Limited to pledge their shares as security for the loan advanced to M/s.Green Gardens Pvt. Ltd. Mr.A.Ravishankar Prasad and Mr.A.Manohar Prasad gave personal guarantee to secure the loan. Along with the Pledge Agreement, Mrs.A.Indira Anand and Mrs.K.Bharathi also executed irrevocable power of attorney in favour of M/s.Indiabulls Housing Finance Limited. Taking note of pledge creation forms executed by Mrs.A.Indira Anand and Mrs.K.Bharathi, M/s.Indiabulls Securities Limited recorded pledge of share in their record. 4. 11.07.2008, Mrs.Gemini Arts Pvt. Ltd., and M/s.Gemini Foundation Pvt. Ltd., also became co-borrowers along with M/s.Green Gardens Pvt. Ltd. On 30.09.2008, M/s.Indiabulls Housing Finance Limited issued a recall notice to the borrowers as well as to Mrs.A.Indira Anand and Mrs.K.Bharathi. 5. In response to the notice, M/s.Green Gardens Pvt. Ltd., repaid a sum of Rs.5,00,00,000/- (Rupees Five Crores only). However, on 12.11.2008, notice was issued to the borrowers informing that the cheques issued for Rs.2 Crores and Rs.3 Crores were returned unpaid. M/s.Indiabulls Housing Finance Limited invoked the pledge on 12.11.2008 and accordingly, pledged shares were transferred to the account of M/s.Indiabulls Housing Finance Limited in terms of Regulation 58(8) of SEBI Regulations, 1996. 6. On 18.11.2008, margin call notice was issued and on 02.12.2008, M/s.Indiabulls Securities Ltd., sold a part of the shares pledged on instruction of M/s.Indiabulls Housing Finance Limited. Being aggrieved by the action of M/s.Indiabulls Housing Finance Limited in invoking the pledge and sale of shares by M/s.Indisbulls Securities Ltd., Mrs.A.Indira Anand filed C.S.No.1172 of 2008 in this Court.= On a plain reading of Section 176 of the Contract Act, it is clear that before exercising the power of sale the pawner should give to the pledger reasonable notice of the sale (of the pledged thing) Section 176 is mandatory and even if there is a term in the contract of pledge to waive notice, still, the pledge is not relieved of his obligation to give notice before the sale of pledged articles.”= Section 176 of the Contract Act provides that if the pawner makes a default in payment of the debt in respect of which the goods were pledged, the pawner may bring a suit against the pawner upon the debt, or he may sell the thing pledged on giving the pawner reasonable notice or the same. The contention that notice of the contemplated sale to the pawner should be inferred from his letter dated 13-8-1948, cannot hold water inasmuch as the said letter does not disclose that a reasonable notice had been given by the pawnee to the pawner to sell the securities. A notice of the character contemplated by Section 176 cannot be implied. Such notice has to be clear and specific in language indicating the intention of the pawnee to dispose of the security. No such intention was disclosed by the Bank in any letter to the respondent.- I am, therefore, clearly of the opinion that the sale of the securities by the appellant Bank without reasonable notice to the respondent was bad and was not binding on hint. What is contemplated by Section 176 is not merely a notice but a ‘reasonable’ notice, meaning thereby a notice of intended sale of the security by the creditor within a certain date so as to afford an opportunity to the debtor to pay up the amount within the time mentioned in the notice. No such notice was ever given by the appellant to the respondent. There can thus he no escape from the conclusion that the sale of the securities by the appellant was against law and not binding on the respondent. The conclusion reached by the lower appellate court was, therefore, legally sound.”=the arbitral award can be set aside if it is contrary to (a) fundamental policy of Indian Law, (b) the interests of India; or (c) justice or morality. A narrower meaning to the expression ‘public policy’ was given therein by confining judicial review of the arbitral award only on the aforementioned three grounds REPORTED IN / PUBLISHED IN judis.nic.in/judis_chennai/filename=41781

IN THE HIGH COURT OF JUDICATURE AT MADRAS     Dated: 30.04.2013 THE HONBLE MR. JUSTICE VINOD K.SHARMA O.P.Nos.228, 229, 258 and 272 of 2012   1. M/s.Indiabulls Housing Finance Limited *(previously known as Indiabulls Financial Services Limited) having its Registered Office at F-60, II Floor, Connaught Place, New Delhi-110 001. Rep. By its Authorized … Continue reading

SPECIFIC PERFORMANCE OF AGREEMENT OF SALE = Whether the agreement is barred by Section 4 of the Delhi Land (Restriction of Transfer) Act, 1972 and is void under section 23 of the Contract Act. (PO3 WS).= appellant had served a legal notice upon the respondents, in paras 5 and 6 whereof it was alleged against the respondents that they had suppressed from the appellant the fact that an award had been published with respect to the subject lands. Thereafter, in para 7 of the notice, it was asserted as under:- That apart from above, by virtue of Section 3 & 4 of the Delhi Lands (Restrictions on Transfer) Act, 1972, there is prohibition on transfer of such lands, which has been acquired by the Central Government under the provision of the Land Acquisition Act, 1894, by sale, mortgage, gift, lease or otherwise. Thus, you have also committed an offence u/s 3 & 4 of the said Act and you have made yourself liable to be prosecuted u/s 9 of the Delhi Lands (Restrictions on Transfer) Act 1972.” 5. It does not lie in the mouth of the appellant to now urge to the contrary.- The same is that it is not obligatory for a Court to decree specific performance of a contract for sale of immovable property merely because it would be legally permissible to do so.

‘     ITEM NO.31 COURT NO.3 SECTION XIV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil) No. 4628/2013 (From the judgment and order dated 31.8.2012 in RFA No.75/2012 of the High Court of … Continue reading

GIFT = WILL = SETTLEMENT DEED = whether a document can be treated as a gift where the executor reserves his interest of maintenance throughout his life with certain other conditions or will or rather a mere settlement of its own kind.= Thus, Section 122 defines ‘gift’ as gift inter vivos or an absolute gift. An absolute gift, (which is the subject matter under the Act, 1882) or gift inter vivos as distinguished from a testamentary gift or one made in contemplation of death, is one by which the donee becomes in the lifetime of the donor, the absolute owner of the thing given. Further, in case of a gift the provision becomes operative immediately and under transfer in praesenti is intended and comes into effect.= In terms of Section 122 of the Act 1882, it is necessary that there should be vesting of interest forthwith, though possession and enjoyment of the property may be postponed to a later date. Even if a document is styled and registered as a settlement deed containing the recital of devolution of interest in the properties to vest on the death of a settler after his life time, such a document may be termed only as a ‘Will’ and not ‘gift deed’. 7. The fact that the document purports to reserve a life interest in the property to the donor with certain other terms is a ‘Will’. = “Settlement Deed” executed in 1922 is neither a `Will’ nor a gift. However, it did not transfer the title in favour of the second party therein. The executor of the said settlement deed sold the land to the respondents for consideration. The sale deed was valid and appellants could not claim any benefit under the said settlement deed, the title did not vest in favour of their predecessors in interest.

‘     IN THE SUPREMECOURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2401 OF 2002 Sankaran Bhaskaran & Ors. …Appellants Versus Kumaran Sarasamma & Ors. … Respondents O R D E R 1. This appeal has been preferred against the impugned judgment and order dated 20.9.2001, passed by the High Court of Kerala … Continue reading

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

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