Recent Judgments

SC invokes public trust doctrine

Fomento Resorts and Hotels Ltd. v. Minguel Martins, Civil Appeal No. 4154 of 2000. Date of Judgment 20-01-09

An interesting case where the attempt of the petitoner to secure a part of seashore as private beach is set naught by the SC. The court has discussed the 'doctrine of public trust' and found that the action of the petitioner is in violation of the doctrine.

Make sure your driver is having a valid license, or be ready to pay the compensation in case of accident

National Insurance Company Ltd. v. Meena Aggarwal, SLP(C ) No. 19513 of 2006. Date of Judgement 23-01-09

SC reversed the order of the State and National Consumer Disputes Redressal Commissions directing the insurance company to pay compensation to the victims of the accident. The undisputed facts reveal that the driver had no licence and he was plying the vehicle on commercial purpose, whereas it was registered as private vehicle. The holding of the commissions was based on the reasoning that there was no fundamental breach of the terms of the policy.

SC reversed the order highlighting an earlier decision of the court where it was held that "[t]he owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle."

Apprentice is not an employee in the common parlance of the term

New India Assurance Co. Ltd. v. M/S. Abhilash Jewellery, Civil Appeal No. 7972 OF 2002. Date of Judgment 22-01-09

The respondent had a policy called Jeweller's Block Policy for Rs.1,15,00,000/- with the appellant. During the pendency of the policy the repsondent lodged a claim for the loss of jewellery. The loss was occasioned from the custody of an apprentice . The relevant clause in the contract reads thus

S. 11(a) property insured whilst in the custody of the insured, his partner or his employees.

The decision of the case depended upon the interpretation of the expression 'employee', which was not defined in the contract. The National Commission determined the issue in favour of the respondent holding that an apprentice is an employee as per the Kerala Shops and Commercial Establishments Act and the Employees State Insurance Act.

The SC reversed this decision on the reasoning that "[t]he present case is covered solely by the contract of insurance.That contract of insurance no doubt uses the word 'employee', but it does not say that the word 'employee' in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishments Act or the Employees State Insurance Act or any other enactment."

Since the contract has not defined the term, the term employee has to be understood in the common parlance. In common parlance, an apprentice is not considered as an employee. At the best he is only a trainee and there is no master - servant relationship even if stipend is paid.

Recall Petition

Asit Kumar v. State of W.B. Writ Petition (civil) No. 110 of 2008. Date of Judgment 21-01-09

The SC distinguished between petition under Article 32, review petition and recall petition in the following words

"There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party."

On the right of private defence

Ranveer Singh v. State of M.P., Arising out of SLP (Crl.) No.3905 of 2008. Date of Judgment 21-01-09

"Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression `right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 ... the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."

What amounts to be an extra judicial confession

Shiva Karam Payaswami Tewari v. State of Maharashtra. Arising out of SLP (Crl.) No.1700 of 2008. Date of Judgment 21-01-09