Diksha Sharma

Not luxury but a basic residential accommodation should be provided to the divorcee

Diksha Sharma — Thu, 04 Feb 2021 11:47:00 +0000

Not luxury but a basic residential accommodation should be provided to the divorcee written by Diksha Sharma student of Government Law College, Mumbai

Swapna Rani Sahoo vs Niranjan Sahoo

Facts:

A matrimonial dispute was raised before a family court when the respondent that is the husband filed an appeal in the court against her wife, who was said to have misbehaved with the in-laws by making use of foul language and other misappropriate conduct was reported. The appellant went to her parental house along with her child and did not inform about her whereabouts to the respondent. It was appealed to dissolve the marriage on the ground of cruelty. However, in reply, the appellant denied all such allegations and submitted that the respondent in order to fulfill his personal motive filed an appeal of divorce knowing that the respondent had an extramarital affair with one of his staff members. The learned judge, the family court allowed the prayer for divorce by discarding all the allegations made by the appellant and decided that the wife is not subjected to any permanent alimony. Aggrieved by the decision, the appellant moved to High Court.

Issues:

Whether the appellant is entitled to permanent alimony?

Legal Provisions:

• Section 13, Hindu Marriage Act, 1955 – Divorce
• Section 25, Hindu Marriage Act, 1955 – Permanent alimony and maintenance

Appellant’s Contention:

It was submitted by the appellant that the judgment was illegal and the learned judge had erred in the finding if there was any cruelty against the husband by the wife. The wife claimed that the respondent had performed second marriage before the appeal period and laid evidence that proved that the second marriage took place much before the appeal period. The appellant further submitted that she had been suffering from breast cancer despite this she had been staying with her in-laws, whereas the respondent was cohabiting in a separate house with a newly wedded wife.
Therefore, it is prayed to set aside the judgment of the learned judge, Family court.

Respondent’s Contention:

The respondent laid evidence to prove that he had performed second marriage after the decree of the divorce of the first marriage and presented a birth certificate of the female child, born out of the second wedlock along with a marriage photograph.

Observation of the court:

The court was of the opinion that the learned judge, Family court had erred in not granting permanent alimony to the appellant, but the court did not feel inclined to set aside the decree of divorce just because the respondent was remarried. The court determined the quantum of alimony be granted to the appellant as per the Hindu Marriage Act, 1955 after considering the income and age of the husband, it was felt appropriate to fix permanent alimony and provide for expenses relating to the child born out of wedlock from the first marriage.

Judgment:

The court ordered the respondent to pay a sum of Rs. 7,00,000/- as permanent alimony and to secure the appellant with residential accommodation.

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Failure in execution and attempt of crime are prime factors

Diksha Sharma — Tue, 02 Feb 2021 11:10:00 +0000

Failure in execution and attempt of crime are prime factors written by Diksha Sharma student of Government Law College, Mumbai

Pappu vs State

Facts:

The complainant while boarding the bus was confronted with robbery when two or three persons forcefully got into the bus and tried snatching the briefcase of the complainant. One of the accused was carrying a sword as a weapon while the other was in possession of a revolver; however, the complainant defended himself by using his briefcase. Later, the culprits fled from the scene but one of them was apprehended by the public. The sword was handed over to the Sub-inspector of the respective region. A case was filed against the appellant namely Pappu for committing a robbery. The trial court convicted the appellant under Section 392, Section 394, and Section 397. Aggrieved by the decision, an appeal was made in the High Court.

Issues:

• Whether the appellant is liable under Section 392, Section 393, and Section397, and if so then, whether he is liable to be convicted under Section 393/398 or Section 393/397?

Legal Provisions:

• Section 392, IPC – Punishment for robbery
• Section 393, IPC – Attempt to commit robbery
• Section 397, IPC – Robbery or dacoity, with an attempt to cause death or grievous hurt
• Section 398, IPC – Attempt to commit robbery or dacoity when armed with a deadly weapon

Appellant’s Contention:

The learned counsel appearing on behalf of the appellant contended there was no evidence to prove if the appellant was the culprit. It was further submitted that none of the prosecution witnesses succeeded in identifying the appellant. Moreover, the appellant along with the co-accused had attempted to rob; therefore he cannot be convicted under punishment for robbery. Taking in purview, Section 397 is not applicable because the appellant did not use the sword, which was in possession of the appellant at the time of the offense.

Respondent’s Contention:

It was submitted by the respondent that one of the prosecution witnesses who were present at the spot of incidence identified the appellant and the other witnesses that were the bus driver, the conductor was not able to identify the appellant due to lapse of time. Another witness identified the sword, which is sufficient to prove the crime committed by the appellant. The counsel relied on the judgment of Sanjay Ravindra N. Gaikwad and Anr. vs. the State of Maharashtra to support the contention that conviction under Section 393 and Section 397 both can be sustained.

Observation of the court:

It was observed by the court that the appellant tried snatching the briefcase from the respondent but he did not succeed in his action but the attempt cannot be denied, thus it would be a case of attempt of robbery. And when the appellant is once convicted under Section 393, he cannot be punished for the offense under Section 392. Since Section 397 is a major offense, the appellant can be convicted under Section 392. In the present scenario, the trial court had erred in convicting the appellant under Section 392 because the accused had failed in committing robbery, therefore the conviction is to be altered to Section 393.

Judgment:

The sentence awarded by the trial court is maintained since the minimum sentence which can be awarded is rigorous imprisonment for 7 years and has been already done.

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Expenses incurred without submitting receipts cannot be compensated

Diksha Sharma — Sat, 30 Jan 2021 11:30:00 +0000

Expenses incurred without submitting receipts cannot be compensated written by Diksha Sharma student of Government Law College, Mumbai

Sushil Kumar vs Ramesh Kumar

Facts:

A tempo being driven by the petitioner collided with a bus, the driver of which was said to be driving in a negligent and rash manner. As a consequence, the tempo was found in a bad state and the petitioner sustained many injuries due to the accident. A petition was filed for a claim of compensation but aggrieved with the award made by the tribunal; an appeal was filed in the High Court for enhancement of the award.

Issues:

Whether the tribunal had erred in the calculation of the compensation?

Legal provisions:

• Minimum Wages Act, 1948
• Section 171, Motor Vehicles Act, 1988 – Award of interest where any claim is allowed

Appellant’s Contention:

It was submitted by the learned counsel appearing on behalf of the appellant that the tribunal court had erred in estimating the income of the appellant, on the basis of which loss of income should be taken into consideration for enhancement. The appellant had to incur a huge expense on account of medical treatment but somehow is unable to produce the medical bills. As per the facts, the court should consider enhancing the award towards conveyance, special diet, mental pain and suffering, and permanent disability. The rate of interest should be increased from 9% p.a. to 12% p.a.

Respondent’s Contention:

It was contented by the counsel representing the respondent that the appellant had contributed to the accident as he was found in an intoxicated state, thus he is liable to be attributed 25% contributory negligence on his part. The award decided by the tribunal is just and fair and does not require any alterations.

Observations of the court:

After perusing the contentions and the award made by the tribunal court it was observed that no proof was submitted to bring the income of the appellant on record. Considering the compensation towards conveyance, special diet expenses, mental pain and suffering there did not lie any infirmity and does not require any interference with the same. The appellant has been rightly attributed 25% contributory negligence by the tribunal court. The court does not find any justifiable reason to enhance the rate of interest from 9% to 12%. Since, no rate of interest is fixed under Motor Vehicles Act and is awarded only in cases where a party has been kept out of money, which should have been paid to him.

Judgment:

The court enhanced the award to Rs.2,25,420/- from Rs. 1,78,000/- along with interest @ 7.5% p.a. on account of wrongly assessing the income of the claimant.

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Determining the cause of death determines the provision to be put under

Diksha Sharma — Thu, 28 Jan 2021 10:41:00 +0000

Determining the cause of death determines the provision to be put under written by Diksha Sharma student of Government Law College, Mumbai

In the High Court of Judicature at… vs Unknown [5, December 2008]

Facts:

The appellant was alleged to have assaulted a man named Bhaurao on the abdomen by using a spear causing multiple injuries and bleeding on the cheeks, chest, and ear of the person. Not only this, multiple injuries were inflicted upon two other witnesses before the appellant named Vinod ran away. Subsequently, a case was filed before the court, where the trial court convicted the appellant under Section 324 of the Indian Penal Code and awarded a sentence of rigorous imprisonment for one year. Aggrieved by the decision, an appeal was made in the High Court.

Issues:

• Whether the appellant should be convicted under Section 302 or Section 304 of the Indian Penal Code?

Legal Provisions:

• Section 302, IPC – Punishment for murder
• Section 304, IPC – Punishment for culpable homicide amounting to murder
• Section 324, IPC – Causing grievous hurt by weapons

Appellant’s Contention:

The learned counsel submitted contentions on behalf of the appellant that the real story has been suppressed and has been laid in the court in a manipulated manner. The situation is being corroborated only based on witnesses; there lies no evidence against the appellant which proves the action of the appellant. In short, the offense of the appellant has not been proved beyond a reasonable doubt.

Respondent’s Contention:

The learned counsel appearing on behalf of the respondent submitted that the judgment passed by the trial court was apt and does not need to be interfered with since the offense was proved beyond a reasonable doubt. The witnesses were close relatives of the deceased and ought not to have been believed by the trial court.

Observations of the court:

The statements submitted by the prosecution witnesses and the certificate issued after post mortem examination deposes as to the incident of assault that led to the death of the deceased. The question which arose before this court was whether the deceased met with homicidal death. As per the opinion of the doctor, the deceased died on account of hemorrhagic shock due to multiple stab injuries. The stabs were a result of continuous use of the spear, which the appellant used to cause grievous hurt to the deceased. The story appeared self-made by the wife of the accused and the accused; therefore it cannot be termed as reliable or acceptable. There is a lack of medical evidence to prove if multiple injuries by stabbing were sufficient to cause the death of the deceased in the ordinary course of nature. Thus, it is not safe to hold the accused guilty of an offense under Section 302. However, the accused cannot escape the liability of culpable homicide.

Judgment:

The appellant is liable under Section 304 Part-I of the IPC and the sentence is reduced.

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Negligence exists two ways

Diksha Sharma — Sun, 24 Jan 2021 14:47:00 +0000

Negligence exists two ways Diksha Sharma student of Government Law College, Mumbai

The Oriental Insurance Co Ltd vs Smt Mamta Devi and Ors.

Facts:

The deceased along with two pillion riders were traveling from scooter to Meerut after which they met with an accident and struck against a truck, parked on the road without the indicator lights turned on. They were taken to the hospital after being treated upon which they succumbed to injuries and lost life eventually. A complaint was filed for recovery of an insurance claim, which was repudiated by the Insurance Company on the grounds of negligence. The tribunal court ordered the appellant that is the Insurance company to award a compensation of Rs. 5,72,770, aggrieved by which the Company filed an appeal in the High Court.

Issues:

• Whether both the deceased and truck driver were negligent?
• Whether the family of the deceased is entitled to compensation?

Legal Provisions:

• Section 128, Motor Vehicles Act,1988 – Safety measures for drivers and pillion riders
• Tort of Negligence – Composite negligence

Appellant’s Contention:

It was submitted by the learned counsel from the appellant’s side that there lied partial negligence on the part of the truck driver but it cannot be denied that the deceased was not negligent because he did not conform to the rules of the Motor Vehicles Act, wherein it is clearly mentioned that the sitting capacity in case of a two-wheeler vehicle is only two. The provision of negligence speaks for itself which highlights the failure to exercise care towards others whether be it intentional or accidental.

Respondent’s Contention:

It was contented by the counsel that the truck driver was also negligent by parking the truck alongside the highway by not complying with the traffic rules. The vehicle was insured and therefore the Insurance Company is liable to pay compensation.

Observations of the court:

The court had to thoroughly check the applicability of composite negligence and contributory negligence. The tribunal had not erred in concluding that the scooter driver was 30% negligent. The court read the judgment of T. O Anthony v Karvarnan and Ors. to distinguish between contributory and composite negligence. If proved that the negligence has occurred on the part of a person because of a breach in his prime responsibility and care which any prudent man would exercise, he is liable for the consequences of his act. But herein, the Insurance Company failed to prove if there were more than two persons on the scooter.

Judgment:

The decision of the tribunal court is not liable to be set aside and therefore it was ordered that the entire amount of compensation will be deposited by the Insurance Company.

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Compensation cannot be guaranteed on permanent disability basis every time

Diksha Sharma — Sat, 23 Jan 2021 13:44:00 +0000

Compensation cannot be guaranteed on permanent disability basis every time written by Diksha Sharma student of Government Law College, Mumbai

The Branch Manager vs Agilan

Facts:

A petition was filed by the respondent for merely spectate of a demolition of a building being carried out, due to which a part of debris fell on the respondent and sustained several injuries. The claimant started to suffer from permanent disability in the lower limbs. The Tribunal decided on awarding compensation to the claimant on the basis of two heads i.e. loss of earning power and permanent disability, however, aggrieved by this decision the appellant that is Insurance Company filed an appeal in the High Court.

Issues:

• Is the area of demolition to be considered as a private place?
• Has the respondent contributed to negligence?

Legal Provisions:

• Tort of Negligence
• Motor Vehicles Act,1988

Appellant’s Contention:

The learned counsel appearing on behalf of the appellants submitted that the place of incidence that is the area of demolition is a private place and knowing that is not safe to enter in the respective arena, the claimant decided to spectate in close premises, hence, he has deemed to contribute negligence on his own. It was also contended that since the respondent was spectating from the backside of the building, it couldn’t have been foreseeable for the bulldozer driver to check any individual’s presence. As per this contention, this is a case of volenti non fit injuria. It was further submitted the basis of deciding compensation by the Tribunal was contrary to the judgment of Full Bench in Cholan Roadways Corporation Ltd vs Ahmed Thambi.

Respondent’s Contention:

It was contented by the counsel on behalf of the respondent that the contention presented by the appellant’s counsel regarding private place doesn’t stand. The counsel drew the attention of the court on the definition of ‘public place’ explainable under the Motor Vehicles Act, 1988 and said that road is a public place to which the public carries a right to access. The counsel relied on the judgment of Pandurang vs New India LIC Ltd. The driver of the bulldozer was solely responsible, therefore, there is no negligence on the part of the claimant.

Observations of the court:

The court was of the view submitting that there was 20% negligence on the part of the claimant as well as 80% on the driver of the bulldozer. The Tribunal had erred in the calculation of the claim of compensation. It was the duty of the driver of the bulldozer to issue a warning in the public place. Compensation awarded on the grounds of permanent disability should be set aside.

Judgment:

The sum decided on account of permanent disability is deducted and the claimant is subjected to a compensation of Rs. 4,11,377 from earlier Rs. 5,11,377 .

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Evidence corroborates the incident

Diksha Sharma — Fri, 22 Jan 2021 13:16:00 +0000

Evidence corroborates the incident written by Diksha Sharma student of Government Law College, Mumbai

Rajib Dey vs The State of Tripura

Facts:

A case was lodged against the petitioner for entering the premises of the respondent and snatching a gold chain from the neck of the respondent’s grandson. People living nearby detained the accused and recovered a gold chain from his possession following which the accused was handed over to the police. The trial framed charges against the accused after examining all the prosecution witnesses and was sentenced to one-year rigorous imprisonment along with a fine. The accused petitioner aggrieved by the decision filed an appeal to dismiss the judgment set by the trial court.

Issues:

Whether the accused is liable under criminal trespass and extortion?

Legal Provisions:

• Section 384,IPC – Punishment for extortion
• Section 411, IPC – Dishonestly receiving stolen property
• Section 447, IPC – Punishment for criminal trespass

Petitioner’s Contention:

The learned counsel appearing for the petitioner submitted that the trial court had erred in its decision without verifying the evidence. It was further submitted that the conviction of the accused under either Section 384 or Section 411 did not seem valid because the ingredients of the stated offense are completely different from each other. There is nothing to prove if the gold chain belongs to the respondent’s grandson and had not been produced before the court which implies that allegedly the accused has been framed for the said charges. It was pleaded to acquit the accused.

Respondent’s Contention:

It was submitted by the learned counsel that prosecution witnesses had in their submissions made clear about the presence of the accused and carrying a gold chain in his possession. It was after the hue and cry of the child that attention was drawn spotting the accused at the place of the incident. It was, therefore, pleaded to dismiss the appeal of the petitioner.

Observations of the court:

After going through the contentions presented by both parties, it was observed that no evidence could be laid down to prove if the property received was stolen or even dishonestly received. None of the prosecution witnesses produced before the court were able to confirm as to when, where, and how the accused was detained. A person who has been said to have been found with possession of the stolen property cannot be put under the provision of Section 411 unless it is proved beyond a reasonable doubt. There is no strong evidence which corroborates the aforesaid event.

Judgment:

The court delivered a judgment of acquitting the accused due to lack of evidence to prove if he’s guilty and therefore all the charges framed against him are set aside.

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Are Corporations responsible for stray dogs?

Diksha Sharma — Thu, 21 Jan 2021 12:51:00 +0000

Are Corporations responsible for stray dogs? written by Diksha Sharma student of Government Law College, Mumbai

Corporation of Calicut vs Veluthedath Bindu

Facts:

A girl residing within a Corporation on way to her house was bitten by a dog. The instance drew attention when the girl started crying and there was clamour around. The neighbors fulfilled a moral duty of taking the girl to a nearby hospital for treatment. The respondent that is the father of the girl claimed compensation from the Corporation authority, as the dog was believed to be a stray dog, on account of expenses he had to incur for the treatment of his daughter along with an additional amount for her mental health. The learned Sub judge concluded of rewarding a compensation of Rs.5, 500, which was challenged by the appellant.

Issues:

Whether the Corporation authority is liable to pay the damages?

Legal Provisions:

Municipality Act

Appellant’s Contention:

It was contented by the learned counsel on behalf of the appellant that a mandatory duty imposed upon the Corporation to remove all stray dogs is incorrect. There is no proof to justify the incident as worded by the respondent and the respondent was negligent. There is no proof to show if a stray dog was present on the spot of the incident. It was pleaded to dismiss the appeal of the respondent.

Respondent’s Contention:

The learned counsel submitted that a mandatory duty does lie upon the Corporation authority to issue a license to the owners of domestic dogs and be given the vaccine to prevent any spread of disease like rabies. The dog ran away from there and no one was present to witness the mishap. The counsel relied on the judgment of Jacob Mathew v. Corporation of Cochin, Municipal Commissioner v. David, and Municipal Corporation of Delhi v. Sushila Devi to support his contention. Therefore, the Corporation authority is liable to pay the damages.

Observations of the court:

The court observed that it was a misfortunate event that a girl was bitten by a random dog and had to sustain injuries. However, it did not occur on the failure on the part of the officers. The Corporation may howsoever take several precautions to prevent stray dogs but there is always a possibility of animals straying into the Corporation authority. The question which has to be answered is that the incident took place within the premises of the Corporation which was the only fact looked upon by the Learned Subordinate judge and did not consider other aspects involved.

Judgment:

The learned subordinate judge had erred in making a decision and therefore, the corporation is not liable to pay any damages.

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