Judicial Impact Assessment Study-‘Extra case load from new laws should be studied’

New Delhi, June 18

Even as more and more laws are introduced in the country, a scientific assessment ought to be made to estimate the “extra case load” which any new Bill or legislation may add to the burden of backlog in courts. This was the primary recommendation of a report submitted on Wednesday before Union Law Minister H R Bhardwaj by the task force headed by Justice M Jagannatha Rao to study the feasibility of “Judicial Impact Assessment”, a concept widely followed in the US.

The rationale behind the assessment, the report explained, is to estimate beforehand the additional workload to be borne by the judiciary due to new laws. The Government should make the necessary budgetary provisions for adjudication of cases coming under the new laws, whether passed by the state legislatures or the Parliament, at the bill stage itself, the panel recommended.

“The Government of India must make assessments and provide necessary financial support at the bill stage for implementation of Central laws on subjects in the Union List or the Concurrent List in the courts,” suggested the task force. It, however, expressed reservations about state governments bearing the financial burden of implementing Central laws, adding the Centre should financially gear up the states.

Even as the states provide the necessary finance and infrastructure to the judiciary for implementing the new “rights or offences” created by the fresh laws, the task force recommended that the Centre must establish additional courts for implementation of Central laws.

It proposed setting up of a judicial impact office at Delhi and identical establishments in state capitals with the help of social scientists, statisticians and legal experts.

“There is no point in blaming the judiciary for case arrears; the blame must also lie with other departments that help it,” said Justice Rao, a former Supreme Court judge. He said there were 2.5 crore cases still pending in lower courts in the country despite these courts disposing of 1.5 crore cases annually.
“The backlog does not get wiped out because fresh cases almost equal the cases disposed off every year,” said Justice Rao.

Consumer Forum fines Chennai-based High Court advocate for ‘deficiency in service’

The Coimbatore District Consumer Disputes Redressal Forum (CDCRF) has imposed a fine on a Chennai-based High Court advocate, holding him responsible for deficiency in service, causing mental agony and loss to a litigant in a civil dispute.

Petition


The forum led by its President S.A. Sriramalu along with members Madhavi and K. Rathnam passed the orders while disposing of a petition by V. Karuppusamy and two others from Avinashi.

The petitioners contended that in August 1995 they had moved a petition before the Tiruppur Munsif Court seeking relief in a civil dispute wherein the petitioner alleged that Marakutty & Muthusamy (legal heirs of Pongiya Gounder and Pongiammal who sold the land to the petitioner) were causing hindrance to his agricultural activities on the land.

The Tiruppur Munsif Court had granted an injunction in favour of the petitioner.

Challenging the same, the respondents moved a civil appeal before the Tirupur Sub Court which in its orders nullified the orders of the Munsif Court.

However the sub court did not grant any relief in terms of change of ownership of the land.

Seeking endorsements and modifications to the orders of the Tirupur sub court the petitioner in this case Mr. Karuppusamy approached the advocates for moving an appeal before the Madras High Court. Under such circumstances, the petitioner sought relief and compensation from the advocates K. Subburayan of Tirupur, K. Srinivasan of Madurai and E. Ulaganathan of Chennai, for the delay that had been caused in moving the appeal.

The petitioner observed that the delay of 3,728 days was a clear case of deficiency in service causing mental agony and loss.

For the act of colluding with the opposite parties contrary to the interest of the litigant and justice, the advocates were liable to pay compensation, the petitioner said.

He said that one of the advocates had misled the petitioner by not informing him that the High Court had rejected the petition seeking exoneration of the delay.

The opposite parties in this case i.e., the three advocates in their separate counters had maintained that the delay was not because of them and held the petitioner responsible.

Case


They further added the case was not sustainable before this forum either by the facts or by the merits of the case.

The forum on completion of the hearing concluded that the petitioner had failed to prove his case against the first respondent and added that the second respondent in this case was implicated wrongly.

Finally, the forum observed that the charges against the third respondent had alone been proved by the petitioner.

Hence, the forum directed the third respondent namely advocate E. Ulaganathan to refund the service charge of Rs.46,500 (collected from the petitioner) with interest from the date of remittance by the petitioner till the date of refund by the advocate.

It ordered compensation of Rs.1 lakh again with 18 per cent interest from the date of order till the date of settlement.

The petitioner was also entitled to receive Rs.2,000 as the cost of litigation.

Order


The above said compensation, refund with interest and cost of litigation would have to be paid within two months from the date of the order.

Failing this, the petitioner was at liberty to proceed under Sections 25 and 27 of the Consumer Protection Act, the forum said.

Evidence by child witness crucial in trials, rules SC

New Delhi, June 18
The Supreme Court has yet again held that a statement by a child witness can be treated as a crucial piece of evidence like any other given by a witness in a criminal trial and may form the basis for convicting an accused.
A Vacation Bench comprising Justices Arijit Pasayat and P P Naolekar asked the courts, including the high courts to treat such statements cautiously as minors can be influenced easily. “The evidence of a child witness cannot be rejected outright, but the evidence must be evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring,” it said.
While relying on their statements, it further asked the court’s to assess whether the victim’s statement is voluntary and not under the influence of others. The ruling came during the hearing of a case where the apex court decided to go by the statement of a minor rape victim who held the accused, Md Kalam, guilty of the crime.
It observed that the trial court and the Patna High Court have found the evidence provided by the child witness as “cogent, credible and had grain of truth.” It held that the HC rightly found that the evidence of the victim was free from any influence.
While the Bench upheld the conviction, it, however, felt that “five years custodial sentence with fine imposed by the trial court and maintained by the HC would meet the ends of justice.”
Earlier, the Sessions Court in Bihar had sentenced Kalam to ten years imprisonment for raping a six-year-old girl. Since the Patna High Court dismissed Kalam’s appeal, he had approached the apex court. Kalam’s advocate contended that the two subordinate courts had wrongly convicted him by relying upon the testimony of a child without further corroboration.
The state counsel submitted that the testimony of a child witness particularly in such a heinous case does not require corroboration, as long as it is credible. It was pointed out that the victim, immediately after the rape, had told her mother about the incident and, therefore, her evidence is of considerable importance.

Strict liability expanded

Storing and dealing in noxious materials could invite heavy damages.


In this industrial age, many companies are manufacturing and transporting hazardous substances to populated areas. Ordinary citizens cannot hope to understand the nature of such dangerous activities going on in their neighbourhood. The truck in front of your car in a traffic jam might even be carrying nuclear materials. Who will be liable to pay compensation if an accident occurs? Parliament had passed the Public Liabilities Insurance Act in 1991 to provide for such industrial accidents, but it is hardly noticed owing to the low amount of money prescribed as damages and a general lack of awareness of the entitlements.

The Supreme Court, in the Shriram Fertiliser Industries case (1987), had imposed the "strict liability" principle on erring industries. It ruled that "if the enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overhead". The court also emphasised that there are no exceptions to the rule of strict liability. Moreover, the amount of compensation would depend upon the capacity of the enterprise and not the earning capacity of the individual victims.

This principle has so far been applicable only to private concerns. However, in a judgment last month, the Supreme Court has extended it to cover public utilities like the railways, electricity distribution companies, public corporations and local bodies "which may be social utility undertakings not working for private profit". The ruling came in a claim against the railways, Union of India vs Prabhakaran. A woman fell on a railway track and was fatally run over. Her husband demanded compensation. The railways argued that she was negligent as she tried to board a moving train. The Supreme Court rejected this contention and said that her "contributory negligence" should not be considered in such untoward incidents ? the railways has "strict liability".

The doctrine of strict liability was propounded in a 19th century English case, Rylands vs Fletcher. According to the doctrine, people who engage in particularly hazardous activities should bear the burden of the risk of damage that their activities generate. Thus, corporations that handle water, electricity, oil, noxious fumes, colliery spoil and poisonous vegetation are covered by this doctrine. Negligence of the victims is no excuse. The doctrine also operates as a loss-distribution mechanism: The person indulging in such hazardous activities (usually a corporation) being in the best position to spread the loss through insurance and higher prices of its products. However, later decisions in England diluted the principle by introducing several exceptions. The Shriram judgment categorically said that such exceptions would not be applicable in India. The present verdict further emphasises this point and expands its scope.

The Supreme Court said that there is a swing in favour of the principle of strict liability. The unfinished stories of the Bhopal holocaust, the Chernobyl nuclear disaster, the crude oil spill of 1988 and other mishaps have aroused jurists to the dangers of industrial activities. But the state of the law of torts varies in common law countries. While the US and English courts do not enforce the doctrine rigorously, French courts (like in India) have accepted the principle.

Earlier, the Supreme Court had applied the doctrine to electricity mishaps. An electric wire had snapped and fallen on the road. On a rainy night, a cyclist came in contact with it. He died on the spot. His widow demanded damages from the electricity authorities, MPSEB vs Shail Kumari, 2002. The board argued that the wire belonged to a pilferer and that it was not negligent. Rejecting this contention, the Supreme Court said: "It is no defence on the part of the board that somebody committed mischief by siphoning off energy to his private property and the electrocution was from such diverted line? Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps." The basis of the liability is the "foreseeable risk inherent in the very nature of such activity".

In a road accident case (Kaushnuma Begum vs New India Assurance Co, 2001), the insurer resisted the claim of a widow contending that it was liable to pay only when the death was caused by the negligence of the driver. The court rejected this argument. Strict liability and liability on account of negligence are different in the law of torts. If a person has done his best to avoid harm, he is not liable if the claim is based on negligence. But in strict liability cases, a person engaged in dangerous activities is held liable once the damage is done.

CIC allows peep into babus' personal assets

Bureaucrats can't seek protection under right to privacy claim'

With the Chief Information Commissioner (CIC) ruling in a landmark
order that bureaucrats do not have "right to privacy" on personal
assets, babus may now find it difficult to stash away their ill-gotten
wealth. CIC Wajahat Habibullah passed the judgement on a petition
filed by Dr Kousthubha Upadhyaya against the denial of information by
the Department of Personnel and Training (DoPT).

Dr Upadhyaya, a senior ayurveda medical officer in the Central
Government Health Services, had sought details of personal assets of
his superior (Shiva Basanth IAS, Joint Secretary) in the Health
Ministry under the Right to Information Act from DoPT on October 27,
2006. He had sought the details of three years' property transactions,
including the purchase of a posh flat in Gurgoan by the IAS officer.

But DoPT refused to provide the details, saying such information was
"confidential" and "personal" in nature. "The immovable property
returns (IPRs), like the annual confidential reports, have always been
treated as confidential ... personal in nature. It was because of this
only that there has never been any occasion where it was felt
essential for bringing these documents in public domain," DoPT stated
in its reply.

Trashing the DoPT stand , the CIC quoted a Supreme Court judgement
which said, "When there is a competition between the right to privacy
of an individual and the right to information to the citizens, the
former right has to be subordinated to the latter as it serves larger
public interest." In his judgement, the CIC upheld the arguments of Dr
Upadhyaya for equating the status of politicians with civil servants
in declaration of assets. In this context, the CIC quoted two SC
judgments: Union of India vs Association for Democratic Reforms (May
2002) and People's Union of Civil Liberties vs Union of India
(February 2003). The court was ruling on the requirement for filing
nomination papers for elections and said that a candidate must also
submit the properties held in the name of the spouse.

Dr Upadhyaya argued that when such rigorous norms have been fixed for
those wanting to contest elections, and such people are in service for
only the limited term of their office, the Government servants --
engaged in life-long service -- could not be exempt. The CIC upheld
his contention.

Quoting another SC judgement (Roshan Lal vs Kendriya Vidyalaya
Sangathan), the CIC observed that the same was applicable to all civil
servants. "The annual property returns by Government employees are in
public domain and there seems to be no reason why they should not be
freely disclosed. This should also be considered as a step to contain
corruption in Government offices since such disclosures may reveal
instances where property disproportionate to known sources of income
has been acquired," the CIC ruled.

http://www.dailypio neer.com/ indexn12. asp?main_ variable= front%5Fpage& file_name= story4%2Etxt& counter_img= 4

CIC split over making public property details

Thanks to its disorderly functioning, the Central Information Commission (CIC) has ended up creating an anomaly on whether annual property returns filed by government employees should be put in the public domain.

Four different members of CIC dealing with cases from four different departments have given conflicting rulings under the RTI Act on this sensitive question. As a result, some departments are required to disclose the property returns of their employees while other departments have been allowed to treat the same as "personal information" exempt from disclosure under Section 8(1)(j) of the RTI Act.

This provision states that barring the overriding consideration of "larger public interest," the central public information officer of any public authority is exempt from disclosing personal information which has "no relationship to any public activity or interest" or which could cause "unwarranted invasion of the privacy" of the employee. Consider the manner in which coordinate benches of CIC have pulled in different directions while interpreting this provision.

In a recent case, CIC chief Wajahat Habibullah held on May 14 that the department of personnel and training (DoPT) could not claim exemption on the disclosure of property returns filed over three years by IAS officer Shiva Basanth. Since the information was "without doubt of concern to a third party," Habibullah entered a caveat saying that DoPT would have to give Basanth a hearing under Section 11 on whether his property returns could be disclosed.

Two months earlier, in a case relating to Kendriya Vidyalaya Sanghathan, CIC member O P Kejariwal ruled that the property returns of all Group A and B employees should be put in the public domain as a measure to "contain corruption in government offices." Accordingly, in Kejariwal's view, there was no need to give a hearing to the employees concerned before their property details were made public.

The liberal positions adopted by Kejariwal and Habibullah are a far cry from the order passed by their colleague, A N Tiwari, in July 2006 in a case pertaining to the Delhi Police. He held that property returns were "non-disclosable" because they were generally kept in sealed covers and would be used only when the employee faced a charge or an inquiry. "It is not held as public information but rather as a safety valve," Tiwari said.

CIC member M M Ansari was the first to disallow disclosure of property returns when he dismissed an appeal in February 2006. He upheld the decision of the department of revenue (finance ministry) refusing to disclose the property returns of income tax commissioner Virender Singh. In Ansari's view, property returns fell in the exempted category of personal information which was liable to cause "unwarranted invasion of privacy" of the employee concerned.

When coordinate benches, whether of the judiciary or of a regulatory body such as CIC, come up with conflicting interpretations of a key provision, it creates an uncertainty and gives scope for arbitrariness in the enforcement of the law.
In the event of disagreement between benches, the courts often refer the matter to be resolved by a larger bench. Following the judiciary's example, CIC would do well to dispel the confusion on the status of property returns in the RTI Act by constituting a larger bench.

CIC split over making public property details

Thanks to its disorderly functioning, the Central Information Commission (CIC) has ended up creating an anomaly on whether annual property returns filed by government employees should be put in the public domain.

Four different members of CIC dealing with cases from four different departments have given conflicting rulings under the RTI Act on this sensitive question. As a result, some departments are required to disclose the property returns of their employees while other departments have been allowed to treat the same as "personal information" exempt from disclosure under Section 8(1)(j) of the RTI Act.

This provision states that barring the overriding consideration of "larger public interest," the central public information officer of any public authority is exempt from disclosing personal information which has "no relationship to any public activity or interest" or which could cause "unwarranted invasion of the privacy" of the employee. Consider the manner in which coordinate benches of CIC have pulled in different directions while interpreting this provision.

In a recent case, CIC chief Wajahat Habibullah held on May 14 that the department of personnel and training (DoPT) could not claim exemption on the disclosure of property returns filed over three years by IAS officer Shiva Basanth. Since the information was "without doubt of concern to a third party," Habibullah entered a caveat saying that DoPT would have to give Basanth a hearing under Section 11 on whether his property returns could be disclosed.

Two months earlier, in a case relating to Kendriya Vidyalaya Sanghathan, CIC member O P Kejariwal ruled that the property returns of all Group A and B employees should be put in the public domain as a measure to "contain corruption in government offices." Accordingly, in Kejariwal's view, there was no need to give a hearing to the employees concerned before their property details were made public.

The liberal positions adopted by Kejariwal and Habibullah are a far cry from the order passed by their colleague, A N Tiwari, in July 2006 in a case pertaining to the Delhi Police. He held that property returns were "non-disclosable" because they were generally kept in sealed covers and would be used only when the employee faced a charge or an inquiry. "It is not held as public information but rather as a safety valve," Tiwari said.

CIC member M M Ansari was the first to disallow disclosure of property returns when he dismissed an appeal in February 2006. He upheld the decision of the department of revenue (finance ministry) refusing to disclose the property returns of income tax commissioner Virender Singh. In Ansari's view, property returns fell in the exempted category of personal information which was liable to cause "unwarranted invasion of privacy" of the employee concerned.

When coordinate benches, whether of the judiciary or of a regulatory body such as CIC, come up with conflicting interpretations of a key provision, it creates an uncertainty and gives scope for arbitrariness in the enforcement of the law.
In the event of disagreement between benches, the courts often refer the matter to be resolved by a larger bench. Following the judiciary's example, CIC would do well to dispel the confusion on the status of property returns in the RTI Act by constituting a larger bench.

Divulging FIIs' info: Sebi asked to decide soon

The Central Information Commission has asked market regulator
Securities and Exchange Board of India to decide whether information
pertaining to investments made by foreign institutional investors in
the country can be disclosed under the RTI Act.

The apex transparency panel also asked the market watchdog to decide
the matter within two months after holding consultations with the
government officials as well, besides taking a view point of FIIs in
this regard.

"Sebi can examine the matter closely in terms of extant practices,
consult all or a section of stake-holders, examine international
practices, and obtain views of top functionaries in the field and in
government before formulating response in the matter," Information
Commissioner A N Tiwari said.

The commission's directions came on an appeal of Abhishek Chowdhury
against the decision of the Sebi denying information on the yearly net
investment figures in March 2005, 2006 and 2007 by each FII.

Following a hearing on the matter, the commission noted that Sebi had
not examined the issue in details with due consultation with other
parties.

"It is also not clear whether Sebi has examined the practices
prevalent in other countries about disclosing such information about
FIIs," Tiwari said, adding, "nothing had been stated as to how
disclosure of this information would be injurious to the economy of
India."

The Sebi also failed to respond to a query by the CIC on whether such
information was regularly provided to the Government, Reserve Bank of
India [Get Quote] and Foreign Investment Promotion Board.

http://www.rediff. com/money/ 2008/jun/ 06fii.htm

Ministry working on corporate fraud detection system

Mumbai, May 27The ministry of corporate affairs (MCA) has started working on the second generation MCA21, which will help in the early detection of frauds committed by companies in the corporate world. Anurag Goel, secretary, ministry of corporate affairs said.

After addressing a conference on 'Capital market regulation and corporate governance' organised by Confederation of Indian Industry (CII), Anurag Goel said that the ministry has started working on the second generation MCA21 and the work is expected to be completed within the next two years. This will be an elaborate information system, which will maintain detailed data on fraud committing companies. The analysis of the data will help in receiving an early indication of a company committing a fraud, he said.

It may be mentioned here that MCA21 is an e-governance project, which enables electronic filing, storage, retrieval, processing, and transmission of transactions, including incorporation of a company, filing of annual and statutory returns.

Earlier, addressing the gathering at the conference, Goel said that efficient capital markets are a prerequisite for any developing economy. Indian capital markets have seen crucial reforms both, regulatory and operational, over a period of time. An important factor responsible for making Indian capital markets one of the best regulated markets is corporate governance.

Among others, M Damodaran, former chairman, Sebi, also addressed the gathering.

No exemption for the disabled from attending classes

BANGALORE: The Karnataka High Court on Tuesday held that even the physically challenged students should have the minimum attendance if they are to be permitted to appear for examinations.

Justice B.S. Patil passed the order on a petition by a student from Kolar district who had challenged the refusal by the authorities to permit him to appear for the sixth semester commerce examination. The student said he was severely handicapped (75 per cent) and he could not attend classes for the B.Com course.

He urged the court to direct the authorities to permit him to appear for the examination slated to commence from June 5, 2008.

The Government opposed the petition saying that the student had 100 per cent attendance shortage. It said all students were governed by the Karnataka Rules of 2006 which made it mandatory for students to have at least 60 per cent attendance in each subject. These rules had been revised last year and all educational institutions intimated about it.

It said even the physically challenged had to abide by the rules if they wanted to attend school or college. If any one did not want to attend classes, he or she is free to take up correspondence course. Moreover, the attendance rules did not make any distinction between a physically fit or physically challenged student. Students had to attend classes and have the minimum eligibility if they wanted to appear for the examination.

The Government made it clear that all students, irrespective of the class or community to which they belonged must meet the eligibility criteria.

Justice B.S. Patil accepted the arguments of the Government and dismissed the writ petition, saying that even the physically challenged had to meet the minimum standards prescribed by the authorities regarding attendance if they wished to appear for the examination.

In a related case, Mr. Justice Patil dismissed a petition by a student of MHM College in Udupi seeking a direction to the authorities to permit him to appear for the supplementary examination slated to commence from June 5.

The petitioner, Karthik Shetty, said he was not allowed to take the first year Pre-University Course examination on the grounds that he did not have sufficient attendance.

He said he wanted to appear for the supplementary examination and urged the court to direct the authorities to permit him to take the examination.

Mr. Justice Patil dismissed the petition, saying that Karthik did not have a minimum of 60 per cent attendance in the first year and, hence, he was ineligible to appear for the supplementary examination.

Can PIOs approach Indian court against verdict given in U.S. ?

SLP filed against ruling declining to interfere with U.S. court order

New Delhi: The Supreme Court on Tuesday decided to examine an important question, whether Persons of Indian Origin (PIOs), who had dual citizenship could approach Indian courts against an order passed by a family court in the U.S.

Special leave petition


A vacation Bench comprising Justice C.K. Thakker and Justice L.S. Panta issued notice to Rana Roy, a U.S. citizen on a special leave petition from his divorced wife Nandini Chowdhuri against an order passed by the Calcutta High Court declining to interfere with the U.S. court order.

According to Ms. Chowdhuri, she was married to Mr. Roy and they have a seven-year-old daughter. All of them are PIOs and U.S. citizens. The U.S. court granted divorce to the couple and the daughter stayed with the mother.

Ms. Chowdhuri remarried and in the new wedlock a child was born to her. She visited India to see her ailing father in Kolkata, where she admitted the daughter in school. As per the directions of the U.S. court, she was to send her daughter to Mr. Roy during vacation.

Visiting rights


Ms. Chowdhuri filed a petition in a court in Kolkata to restrain Mr. Roy from enforcing his visiting rights and from taking the child to the U.S. After the trial court refused to pass an interim order, she filed an appeal in the High Court.

Initially the High Court restrained the father from enforcing his rights. However, a Division Bench of the High Court by its order dated April 30 said: “We do not propose to enter into the question whether an Indian court can interfere with the order passed by a competent American court in the facts of the present case. It is not a case where the appellant or the child will suffer irreparable loss and injury if the ad interim injunction is not granted nor is it a case, where the child’s interest will be jeopardised.”

‘Fact suppressed’


“It is apparent that the appellant suppressed the fact that a competent American court had passed orders for the betterment of the child and also for sending the child to America during vacation. We vacate the interim order passed by another Bench of this court,” the Bench said and directed the trial court to dispose of the matter as early as possible. The SLP is directed against this order.

Notice issued


Ms. Chowdhuri, contended that since she was a PIO, the Indian court was competent to pass a restraint order against Mr. Roy.

The vacation Bench issued notice to Mr. Roy and posted the case for further hearing in July.

SC reprieve for Reliance Petroleum

The Supreme Court has held that second hand cranes imported by Reliance Petroleum Ltd from Europa BV of Holland in knocked down condition for setting up crude petroleum refinery were exempt from Customs duty.

The Customs authorities had questioned the application of certain exemption notifications dated March 1, 1997 and June 13, 1997 granting exemption to various imported goods, including second hand mobile cranes required for setting up oil refinery.

They had maintained that a crane when placed on a vehicle was a `motor vehicle' and would fulfil the description of a mobile crane or a `material handling equipment,' thus was not eligible for concessional duty. The court rejected these contentions and stated that the crane imported by the company in the knockdown condition would attract the benefit of the exemption under the notifications.

SC reprieve for Reliance Petroleum

The Supreme Court has held that second hand cranes imported by Reliance Petroleum Ltd from Europa BV of Holland in knocked down condition for setting up crude petroleum refinery were exempt from Customs duty.

The Customs authorities had questioned the application of certain exemption notifications dated March 1, 1997 and June 13, 1997 granting exemption to various imported goods, including second hand mobile cranes required for setting up oil refinery.

They had maintained that a crane when placed on a vehicle was a `motor vehicle' and would fulfil the description of a mobile crane or a `material handling equipment,' thus was not eligible for concessional duty. The court rejected these contentions and stated that the crane imported by the company in the knockdown condition would attract the benefit of the exemption under the notifications.

United India Insurance appeal dismissed

The Supreme Court has dismissed the appeals of United Insurance Company which had refused to renew mediclaim policies in high claim cases of senior citizens.

The court stated that the company's denial was highly arbitrary. Though the insured were not entitled to automatic renewal, the public sector companies should have been fair. The claimants had been hospitalised repeatedly and the company declined to renew their insurance.

The court said: "Only because the insured had started suffering from a disease, the same would not mean that the said disease shall be excluded. If the insured had made some claim in each year, the insurance company should not refuse to renew insurance policies only for that reason."

The parties are not required to go into all the formalities. Since the policy contemplates terms for renewal, it cannot be placed at par with a case of first contract.

Ponds India vaseline a drug: SC

The Supreme Court held last week that white petroleum jelly sold by Ponds India (now Hindustan Unilever Ltd) under the name Vaseline was a drug and not a cosmetic even if it had no curative value.

Therefore it should be taxed as a drug and not cosmetics under the UP Trade Tax Act. The revenue authorities had argued that since the product was applied for care of the skin, it came within the purview of the definition of "cosmetics" and not within the definition of "medicine".

The court rejected this view and ruled that Vaseline was a pharmaceutical preparation as it was used for cure and treatment of various skin disorders and not for beautification or care of the skin in the normal circumstances. Vaseline does not contain any perfume. A cosmetic ordinarily would contain some perfume, the judgment explained.

Hospital, not doctor, to pay for negligence

NEW DELHI: The state consumer commission has ruled that the hospital,
not the doctor, will be liable to compensate a patient in case of a
botched-up surgery or any other kind of medical negligence.

Delivering the judgment, Justice J D Kapoor said: "Whenever a patient
lands in any hospital, nursing home or medical centre, he is directly
availing the services of the said hospital...and not the treating
doctor. Hence, if the patient suffers due to medical negligence or
carelessness of the doctor, the liability will fall on the hospital."

The complaint filed by a patient, Mohammed Azmal, claimed that he was
admitted to the hospital in 1996 because of stomach pain. He was
diagnosed with gallstones and told by the doctors that the gall
bladder was to be removed through laparoscopy. Azmal agreed to undergo
the procedure for a package deal of Rs 37,500.

But the doctor botched the keyhole surgery. An endoscopy report after
the operation revealed a duct that was not sealed properly and
resulted in accumulation of fluid in the stomach. Three more
operations had to be performed on the patient whose condition had
become critical. This raised the bill to almost Rs 1.6 lakh.
In its defence, the hospital pleaded that the consulting doctor was
not an employee of the hospital and the hospital was not responsible
for any alleged negligence or deficiency in service in diagnosing and
giving treatment on the part of the consultant doctor. It also pleaded
the ailment required close investigation and detailed enquiry, hence
there was no question of a package scheme.

The hospital added the complainant was told that his gall bladder was
inflamed due to a stone and therefore the lap chole method
(laparascopic removal of the gall bladder) may not be feasible and
conventional surgery would have to be done.

Quashing this plea, Justice J D Kapoor asked that had lap chole not
been feasible, why was the patient subjected to this method?

Swiss Banking Association report 2007

Naman Sood on Apr 15, 2008

Deposits in Banks located in the territory of Switzerland by nationals of following countriesTop 5India---- $1456 billion
Russia----- $470 billion
UK-------- $390 billion
Ukraine $100 billion
China------ $96 billionNow do the math India with $1456 billion or $1.4 trillion has more money in Swiss banks than rest of the world COMBINED.
Public loot since 1947: Let us bring back our money

M R Venkatesh | April 15, 2008 | 09:34 IST

It is one of the biggest loots witnessed by mankind -- the loot of the aam aadmi (common man) since 1947 by his brethren occupying public office.It has been orchestrated by politicians, bureaucrats and some businessmen. The list is almost all-encompassing. No wonder, everyone in India loots with impunity and without any fear.What is even more depressing in that this ill-gotten wealth of ours has been stashed away abroad into secret bank accounts located in some of the world's best known tax havens. And to that extent the Indian economy has been striped of its wealth.Ordinary Indians may not be exactly aware of how such secret accounts operate and what are the rules and regulations that go on to govern such tax havens.

However, one may well be aware of 'Swiss bank accounts,' the shorthand for murky dealings, secrecy and of course pilferage from developing countries into rich developed ones.In fact, some finance experts and economists believe tax havens to be a conspiracy of the western world against the poor countries. By allowing the proliferation of tax havens in the twentieth century, the western world explicitly encourages the movement of scarce capital from the developing countries to the rich.

In March 2005, the Tax Justice Network (TJN) published a research finding demonstrating that $11.5 trillion of personal wealth was held offshore by rich individuals across the globe. The findings estimated that a large proportion of this wealth was managed from some 70 tax havens.

Further, augmenting these studies of TJN, Raymond Baker -- in his widely celebrated book titled Capitalism's Achilles Heel: Dirty Money and How to Renew the Free Market System -- estimates that at least $5 trillion have been shifted out of poorer countries to the West since the mid-1970s. It is further estimated by experts that one per cent of the world's population holds more than 57 per cent of total global wealth, routing it invariably through these tax havens. How much of this is from India is anybody's guess.What is to be noted here is that most of the wealth of Indians parked in these tax havens is illegitimate money acquired through corrupt means.

Naturally the secrecy associated with the bank accounts in such places is central to the issue, not their low tax rates as the term 'tax havens' suggests. Remember Bofors and how India could not trace the ultimate beneficiary of those transactions because of the secrecy associated with these bank accounts?

Cell co fined 50 lakh for 'pushing' calls

CELLULAR SERVICE providers can no longer offer schemes exhorting
subscribers to make 'extra' calls to be eligible for lucrative
contests. Declaring it as a "deceptive and unfair trade practice"
prohibited under the Consumer Protection Act, the Delhi State Consumer
Disputes Redressal Commission has imposed a penalty of Rs 50 lakh on
Vodafone Essar Mobile Services for its 'Baaton se banaiye sona, bees
minute mein' scheme.

Under the scheme announced in July 2007, Vodafone pre-paid or
post-paid subscribers whose talk-time was more than 20 minutes a day
were eligible. Those eligible stood to win 10 gold coins every day of
the contest and the 'bumper prize' of a Maruti SX4.

Directing Vodafone to "discontinue such a practice forthwith and not
to repeat it", the Commission, headed by Justice J.D. Kapoor, said:
"It is clear that the contest/lottery is being held not with a view to
enrich the phone users, but merely to ensure that they make more calls
and thereby generate more revenue and profits (for Vodafone)."

M.P.Varghese etc. etc. Vs. Mahatma Gandhi University (High Court of Kerala. Decided on 04.07.2007)

- For coming within the definition of 'Public Authority' under Section 2(h), either control or financing by the Government to be satisfied.

-Aided private colleges are bodies controlled and substantially financed by appropriate Government.

-Coleges are also privy to information relating to students and staff the information does not have the character of private or sensitve information

Transfers and promotion of employees not information held in 'fiduciary' relationship

Canara Bank Vs. The CIC & Anr [W.P. (C)No. 9988 of 2007 (L) High Court of Kerala

- Information as defined in S. 2(f)-is not confined to those mentioned in S.4

- All citizens have a right to information, not circumscribed by S. 4 at all

- Obligations laid down under s. 4 are to be compulsorily performed apart from other liability on part of the public authority to supply information available with them as defined under the Act subject to the exceptions laid down in the Act.

+ Information requested by employee of Nationalised Bank relating to transfer and promotion of employees (clerical staff) of the Nationalised Bank can be furnished to the employee by the bank

+ Such information does not pertain to any fiduciary relationship of the Bank with anybody coming within the purview of S. 8(1) (e)

+ Such information cannot be said to be held in interest by Bank on behalf of its employees-informed citizenry and transparency of information which are vital to the functioning of the Bank.

+ Such information does not pertain to any fiduciary relationship of hte Bank within the dictionary meaning of the word 'fiduciary'

+ Such information would not cause unwarranted invasion of privacy of other employees and therefore not exempt u/s 8(1)(j)

+ Information regarding transfers of clerical staff of a Nationalised Bank for a period of 5 years cannot be said to be that voluminous requiring tremendous man power and time.

+ In any event, the Act does not exempt voluminous information from disclosure.



THERFORE, HELD THAT INFORMATION WITH RESPECT TO TRANSFER AND PROMOTION OF EMPLOYEES MUST BE FURNISHED BY THE NATIONALISED BANK.