MADRAS HIGH COURT ISSUES ORDER TO GOVERNMENT TO RESPOND TO SUGGESTIONS ABOUT TRIGGER POINT THERAPY

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The Madras High Court recently passed an Order dated 08-11-2018 in R. Thirumeni vs Union of India thereby it has taken note of certain suggestions put forth by the Petitioner and has granted time to the Central Government and the State Government to respond to such suggestions with regard to the brain injuries and medical therapy for the same.

The Petitioner had approached this Hon’ble Court seeking euthanasia or mercy killing for his son, namely, T. Paavendhan, who is suffering from Hypoxic Ischemic Encephalopathy (HIE), a type of brain injury in which an infant’s brain doesn’t receive enough oxygen and blood and due to which he is in a Persistent Vegetative State (PVS). Further, his son also suffers ten to twenty epileptic attacks a day and the Paediatric Neurologist was of the opinion said that there were no chances of recovery.

The Bench comprising of Justice N. Kirubakaran and Justice Abdul Quddhose had appointed a three member search committee to nominate three doctors from various fields to examine the child. The medical team comprising of the nominated doctors opined that the clinical status of the child does not fit into the category of PVS. Further, a director of the Anirudha Medical Organisation Private Limited approached the Court seeking permission to treat the child through ‘Trigger Point Therapy’.

Photographs and video clips of the child after 10 days of undergoing the said ‘Trigger Point Therapy’ were shown to the Court, which displayed the improvement in his health, showed the boy sitting with minimal support and responding to light as also raising his hand on command. Upon seeing this the Court stated that “if that is so, really, it is a path-breaking achievement in medicine’.

The Petitioner’s Advocate put forth suggestions requiring awareness, training and formal education on the said therapy and also to provide the same in the syllabus of medical college’s curriculum with reference to brain disorders, a detailed study on the incidents of such disorders establishment of medical centres, to provide financial assistance to the families of such patients,  explore treatment methods for such disorders, etc. He further suggested establishment of medical centres specialising in above mentioned therapies for brain related disorders.

This Hon’ble Court suomotu impleaded Medical Council of India (MCI) to inform the Court whether there are any super speciality diploma courses available in Trigger Point Therapy and Musculo-skeletal Therapy, and in case there are no courses in the above mentioned therapy then the MCI ought to consider introducing such a course. If need be the MCI to get expertise from foreign countries by inviting then to give training to Indian students or physiotherapists.

Further, this Hon’ble Court granted time to Central Government and State Government in its next date of hearing, 29-11-2018.

Suchit Patel

Associate

The Indian Lawyer

SUPREME COURT ORDERS FOR INVOCATION OF ‘APPEAL’ AND NOT ‘ARBITRATION’ BY DISSATISFIED PARTY

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The Supreme Court has recently passed a judgment dated 22.11.2018 (Judgment) in the case of South Delhi Municipal Corporation vs. SMS AAMW Tollways Private Ltd. where it held that the jurisdiction of the designated officer invoked by the Respondent, i.e. the dissatisfied party, is under a departmental appeal and not under arbitration.

In this case the parties had agreed that in case of any dispute, the Respondent would approach a competent officer of the Appellant company and later, if dissatisfied by its response, to appeal to the commissioner of the Appellant company.

But, when a dispute arose between the parties and the Respondent approached a competent officer of the Appellant company, the Respondent being dissatisfied with the said response initiated arbitration instead of preferring appeal to the commissioner of the Appellant company.

The Supreme Court herein held that the departmental appeals are invoked only by a dissatisfied party for prevention of differences from arising and are decided by a designated officer of such department. Whereas, an arbitration can be invoked by both parties to dispute for the purpose of settling the dispute, if the agreement provides for the same.

Therefore, the Supreme Court set aside the High Court order ruling that “Neither the Competent Officer nor the Commissioner is enjoined to act judicially i.e. the decision on the basis of evidence adduced by both the parties. In fact, both the authorities, the Competent Officer and the Commissioner are required to deal with only one party i.e. the contractor. This cannot be characterized as an enquiry of a judicial nature which necessarily involves a consideration of the case of both sides by an independent Arbitrator. Additionally, there is no provision in the Agreement to refer any dispute or reference to arbitration.”

Satyam Singh Pal

Associate

The Indian Lawyer

NATIONAL GREEN TRIBUNAL APPROVES CONSTRUCTION OF LARGEST DAM ON RIVER DIBANG

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The National Green Tribunal (the Tribunal) has recently granted permission in the case of Pradip Kumar Bhuyan Vs. Union of India and others to build India’s future largest dam on the River Dibang in Dibang Valley District of Arunachal Pradesh on 13.11.2018, which will be constructed by the National Hydroelectric Power Corporation (NHPC), the biggest producer of hydro-electricity in India. Once the project is completed it will be India’s largest and world’s tallest concrete gravity dam standing 288 meters (945 Ft) tall.

As a result of the acquisition of land required for the 2,880 MW Dibang Multipurpose Project (DMP), 115 families of 5 villages are likely to be displaced and 744 families of 39 villages are likely to be affected.

In this case, the Tribunal observed that:

“Upon perusal of the minutes of the EAC meeting, and the various reports placed before us we find that adequate studies and steps had been undertaken to ensure sustainable implementation of the project….

…Multiple individual experts, expert bodies and institutions have expressed their opinion after undertaking detailed scientific and technical studies which we find difficult to brush aside in the absence of better materials which the Appellant have failed to place,”…

In the present case, the Tribunal heard the appeals filed by two Assam residents challenging the Environmental Clearance (EC) granted by the Ministry of Environment Forest and Climate Change around February 2015 in favour for construction of the DMP. The Appellants raised various issues like impact on biodiversity and the seismic sensitivity in the area due to the construction of the dam.

But the Tribunal held that the concerns by the Appellants have had already been examined and dealt with as required under Environmental Impact Assessment. It further upheld the EC and opined that the conditions listed in the impugned EC are to be scrupulously compiled with which would be monitored by a monitoring committee by making periodical field visits to the DMP.

Suchit Patel

Associate

The Indian Lawyer

BOMBAY HIGH COURT GRANTS NO RELIEF TO VIJAY MALLYA UNDER THE FUGITIVE ECONOMIC OFFENDERS ACT, 2018

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Indian Businessman and former Chairman of Kingfisher Airlines, Vijay Mallya, is facing charges of financial crimes such as money laundering and allegedly cheating a consortium of nationalized banks for defaulting on loan repayments amounting to Rs 9,000 Crore.

The Directorate of Enforcement is a law enforcement agency and economic intelligence agency responsible for enforcing economic laws and fighting economic crime in India. It is part of the Department of Revenue, Ministry of Finance, Government of India, renamed as Enforcement Directorate (ED). The prime objective of the Enforcement Directorate is the enforcement of two key Acts of the Government of India namely, the Foreign Exchange Management Act 1999 (FEMA) and Prevention of Money Laundering Act, 2002 (PMLA).

The ED filed a plea before a special PMLA Court on 27th August 2018, seeking the ‘fugitive’ tag for Vijay Mallya under the Fugitive Economic Offenders Act, 2018 (“FEOA”) so that confiscation of Mallya’s properties worth Rs 12,500 Crore could be carried out once he is declared a fugitive economic offender under FEOA. Under the provisions of the FEOA, Section 8 allows and gives power to an authorized officer to seize and confiscate the property of the person declared a fugitive economic offender.

Vijay Mallya had filed an application in the Lower Court in Mumbai seeking a stay on hearing a plea filed by ED, to declare him a fugitive economic offender and confiscate his properties, till the Appellate Tribunal functioning under the PMLA would hear matters filed by a consortium of banks on 26th November 2018 seeking their dues back.

On 30th October, 2018 the Lower Court rejected Vijay Mallya’s application, therefore, he approached the Bombay High Court.

Vijay Mallya’s Advocate argued in the Bombay High Court that the plea filed by his Client, Vijay Mallya should not be misunderstood as an act of running away from proceedings of the Court. He further argued that “We are also anxious to clear the dues and to see to it that the creditors get their dues back. We only do not want the properties to be seized by the ED which would then hamper the process of clearance of dues.”

However, the Division Bench comprising of Justices R.M. Savant and V.K. Jadhav held that, “The application has been filed at the threshold and at a very premature stage when the lower court is still hearing the prosecuting agency’s request to declare him a fugitive economic offender,”.

The Division Bench on 22nd November, 2018 dismissed the plea filed by Vijay Mallya pleading stay on proceedings under the Fugitive Economic Offenders Act.

The Bombay High Court also said that the Lower Court shall hear the application filed by the ED on merits.

Taruna Verma

Senior Associate

WORLD BANK ISSUES REPORT ON NEED FOR POLICIES TO PROMOTE HIGH GROWTH FIRMS IN INDIA

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The World Bank has recently published a report on 16.11.2018 on the need for policies to encourage and promote high-growth firms and companies in emerging economies such as Brazil, India, Mexico, South Africa, Thailand, Turkey, etc.

As per the World Bank, entities that are young and have crossed their start-up phase are known as high-growth firms (HGFs). Further, entities having the following features are likely to experience high growth in their business life:

HGFs, generally, comprise of 3-20 percent of the manufacturing and service industries and contribute to over 50 percent of new jobs and sales in these sectors.

HGFs are larger in size than start-ups and, generally, employ more than 50 workers.

HGFs operate in various sectors ranging from low-tech to high-tech industries across a range of locations.

Investment in research and development (R&D) and new products, adoption of innovative ideas and techniques, employment of highly experienced and skilled staff, payment of higher wages and salaries, participation in global trade and foreign direct investment, etc, in manufacturing and services sector may lead a company to the high-growth stage.

Certain HGFs may specialize in providing knowledge-intensive services such as technical support, professional know-how about a particular subject, hardware consultancy, legal, tax, business and accounting consultancy, etc.

Whereas, certain HGFs may specialize in providing technology-intensive services such as scientific and technological knowledge, R&D services, engineering and computer related services, technical consultancy, technical testing and analysis, electronics and electrical appliances, etc.

Thus, the HGFs are capable of contributing to the overall growth of the economy.

The World Bank has, therefore, acknowledged the extraordinary capabilities and competence of the HGFs which have the potential to boost economic performance of the country.

But the high-growth stage is very volatile, unpredictable and difficult to sustain. As a result, HGFs either go back to the start-up stage or exit the market.

Further, the existing policies of the Government of India mostly focus on facilitating and supporting high-tech companies (say, employing more than 3000 staff), and start-ups in specific sectors, through easier registration and licensing procedures, easy access to finance, etc.

Therefore, there is a need for policies and framework to encourage and facilitate companies at their high-growth stage, such as Government schemes or grants, ease of entry and exit of HGFs to and from new markets, access to use of technology parks and clusters, presentation of financial and non-financial incentives, etc. Such policies would ensure that the companies sustain the high-growth stage, continue to survive in the market, continue to create employment opportunities and improve the economy of the country.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

PETITIONER MOVES DELHI HIGH COURT TO CURB SALE OF EXPIRED MEDICINES

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In a public interest litigation petition filed in the Delhi High Court with the cause title, Amit Sahni vs. Union of India through Ministry of Health and Family Welfare and Anr., questions and challenges the serious issue of unlawful reselling and reuse of drugs/medicines by erasing original manufacturing dates, expiry date, maximum retail price and other details and re-stamping the already expired medicines for the purpose of selling.

The Petition was heard on 16th November, 2018 before the Division Bench comprising of Chief Justice of the Delhi High Court Rajendra Menon and Justice V Kameswar Rao. The Bench issued a notice to Ministry of Health and Family Welfare and the Drug Controller General of India, under Central Drugs Standard Control Organization, against the above-mentioned Petition filed to restrain the sale and re-use of expired medicines.

The Petitioner in his Petition stated that, “Bengal police had busted a Drug Mafia with fake drugs worth Rupees Ten Crores and the accused involved in the case were reselling medicines by changing the expiration date. The accused used to purchase such medicines from the medical shop saying that they would be disposing the same in crap.”

The Petitioner also stated that, “as per Environment Protection Act (Biomedical Waste Management and Handling Rules) expired or discarded medicines are either to be sent back to the manufacturer or disposed of as per the prescribed rules.”

The Petitioner in this public interest litigation seeks to restrain the drug mafia that is selling expired medicines to unsuspecting patients. It further seeks to protect such patients from the side effects that expired medicines can cause.

The matter is relisted on 11th March 2019 when Delhi High Court will hear Ministry of Health and Family Welfare and the Drug Controller General of India and probably ask them to explain their future cause of action to restrain the drug mafia hitherto.

Taruna Verma

Senior Associate

DELHI SESSIONS COURT ORDERS FIRST CONVICTION IN 1984 ANTI-SIKH RIOTS CASE

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The Hon’ble Delhi Sessions Court, Patiala House has recently passed a judgment dated 14.11.2018 (Judgment) in State vs. Naresh and another thereby convicting two accused persons of injuring and killing people in the 1984 anti-Sikh riots in Mahipalpur, Delhi.

In 1984, a group of people had attacked, killed, injured and looted few people from the Sikh community in Mahipalpur (Riots). But owing to lack of sufficient evidence, the police had closed the case sometime in 1994.

Therefore, the Ministry of Home Affairs had set up a Special Investigation Team (SIT) in 2015 for investigating/reinvestigating the cases of 1984 Riots appropriately. In one such investigation, it has been established that an unlawful assembly of about 800- 1000 persons were involved in criminal conspiracy with one another and had committed the offences of rioting, dacoity, murder, grievous hurt, attempt to murder, mischief (by destroying shops), destruction of property at Mahipalpur, Delhi. The SIT is yet to investigate other cases of 1984 Riots.

The Delhi Sessions Court herein made the following observations in this Judgment:

The testimonies of witnesses about the ordeals and the incidents that happened during the Riots including the details about the slogans raised by the accused persons against the Sikh community, the arms and weapons carried by the accused, the manner in which they attacked the deceased persons, etc, have established that the common object of the unlawful assembly was to murder people from the Sikh community.

In order to implement their common object, the accused persons had manhandled the deceased persons and the witnesses, wrongfully restrained them, destroyed their house, looted their shops, attempted to murder the witnesses (who survived the injuries and testified against the accused) and killed others.

Therefore, the Delhi Sessions Court convicted the accused persons for committing offences of house breaking, hurt, assault, wrongful restraint, murder, voluntarily causing hurt with dangerous weapons or means, dacoity, etc. Reportedly, this is the first conviction among the reopened cases in the 1984 anti-Sikh Riots.

Reportedly, the Delhi Sessions Court is likely to provide the quantum of punishment for the accused persons on or around 22.11.2018.

 

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

ABANDONED NRI WIVES SEEK SUPREME COURT HELP

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A petition has been filed in the Supreme Court of India by wives of Non-Resident Indians (NRIs) highlighting the marriage frauds committed by NRI men living abroad.

Citing data of close to 50,000 cases PAN India, the petition, argued by Senior Advocate Colin Gonsalves, states the following issues that are prevalent in cases of NRI marriage fraud:

NRI marriage fraud cases are wrongfully registered under section 498A of the Indian Penal Code, 1860 as well as the Dowry Prohibition Act, 1980.

Requests for husband’s deportation also have been rejected by the foreign countries in many cases.

Many a times, the husband withdraws the visa sponsorship for spouse following the matrimonial discord.

In India, the National Commission for Women and State Women Commissions have no power to act against NRI men who defraud their wives or direct police to take action against such men.

There is inefficient process in issuing Look Out Circulars and Non-Bailable Warrants against NRI husbands.

The police are lax in following up the process in such cases.

There are procedural delays at the level of Union Ministry in processing requests for issuance of Look Out Circulars and serving Non-Bailable Warrants through Indian Missions at foreign nations.

Able assistance is not forthcoming from Indian Embassies abroad.

In many cases, whereabouts of husbands abroad remain unknown for years.

Though section 10(3)(h) of the Passports Act gives power to the Passport Authority to impound passport in case of any warrant or summons is pending against the passport-holder, the provision is rarely invoked against NRI husbands who abandon or harass their wives.

The Supreme Court issued notice to the Centre and hinted at policy formulation in view of the absence of procedures to be followed by police, immigration authorities and embassies throughout the world for providing speedy justice to wives abandoned by NRI husbands.

These guidelines are also sought to enable service of summons and warrant on NRI husbands electronically through email, whatsapp and the like. Since women have to suffer physically, mentally and financially too, the petitioners sought free legal aid to them and a scheme for financial support as women lose their jobs after marriage to NRI men based outside the country.

Surabhi Aggarwal

Senior Associate

The Indian Lawyer

LEGAL NOTICE ISSUED TO AMITABH BACHCHAN FOR PAO BHAJI ADVERTISEMENT

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The popular Pao Bhaji advertisement starring Amitabh Bachchan and two junior artists has drawn flake from the Bar Council of Delhi for using lawyer’s attire in a television commercial. The Bar Council of Delhi has issued a legal notice on 31.10.2018 to Amitabh Bachchan and Everest Masala and also served the same on YouTube and Zee News where the advertisement has been seen.

The notice, issued by the Bar Council of Delhi chairman KC Mittal, to the actor stated, “You are informed that lawyer’s attire is prescribed exclusively for the court and the same is not permitted to be used for any advertisement, much less commercial advertisement.”
It further said, “This has undermined the dignity of the legal profession. You have failed to take due precaution before using the attire of lawyer for advertisement and are liable for legal action for telecasting the advertisement without any authority.”

 

The Bar Council of Delhi has asked the opposite parties to “immediately stop all such advertisement and also give an undertaking, to be furnished within 10 days, to the Bar Council of Delhi, Bar Council of India and other State Bar Councils that the lawyers’ attire shall not be used to any advertisement in future” and warns of action in case of any violation in the future.

 

Surabhi Aggarwal

Senior Associate

The Indian Lawyer

SUPREME COURT RULES THAT THE INTEREST TO BE LEVIED ON COMPENSATION FROM THE DATE OF ACCIDENT, AND NOT FROM THE DATE OF THE ADJUDICATION OF THE AWARD

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The Supreme Court has held in the case of North East Karnataka Road Transport Corporation vs. Smt. Sujatha, that the interest on compensation amount is to be levied from the date of accident, and not from the date of the adjudication of the Award.

Brief facts of the case are that one Mallikarjuna, a driver with the State Road Transport Corporation (SRTC) for the State of Karnataka, died on duty due to heart attack 06.04.1999. His wife filed a claim petition before the Commissioner under the Workmen’s Compensation Act, 1923 (“the Act”). The Commissioner allowed the claim petition and awarded a sum of Rs.3,79,120 (said amount) as compensation to the wife of the deceased, Mallikarjuna. ­ Along with the Award, a direction was laid down by Commissioner that SRTC has to deposit the awarded sum within 45 days, and if SRTC failed to deposit the said amount within 45 days, then it would be liable to incur an interest of 12% per annum on the Awarded sum.

Thereafter, against the Award allowed by the Commissioner, the SRTC moved the High Court of Karnataka (“The High Court”) for an appeal and the same was dismissed. Consequently, the SRTC filed a Special Leave Petition (SLP) in the Supreme Court.

It was observed by the Supreme Court that, an appeal under Workmen’s Compensation Act, 1923 (the Act) to the High Court against the order of the Commissioner is not similar to a Regular First Appeal akin to the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court can only examine the question of law in the case.

Therefore, when an appeal is filed by the aggrieved party (the employer) in the High Court, according to Workmen’s Compensation Act, 1923, the aggrieved party (the employer) is under a legal obligation to deposit the entire awarded sum in order to file an appeal.

It is only when the employer deposits the entire awarded money along with the memo of appeal duly certified by the Commissioner, his appeal is regarded as being properly filed in conformity with the requirement of the Act.

Then such appeal is heard on the fact whether it involves any substantial question of law or not; and whether it needs examination by the High Court. Thereafterthe High Court would admit the appeal for final hearing on merit, else it would dismiss the case in liminiwith the reason that it does not involve any substantial questions of law.

The Supreme Court with reference to the case of PratapNarain Singh Deo vs. Srinivas Sabata, 1976 AIR 222, held that, “when the personal injury is caused to a workman through an accident in the course of employment, then the employer becomes liable to pay the compensation as soon as the injury is caused to him, and that is date of the accident, not the date of the adjudication of claim”.

The Apex Court also observed that, contrary principle was appointed by the court in the case of, National Insurance Company Ltd vs. Mubasir Ahmed, 2007 AIR SC 1208 and Oriental InsuranceCompany Ltd. vs. Mohmad Nasir &Anr., 2009 AIR SC 3717, wherein the court held that “the payment of compensation would fall only after commissioner’s order with reference to the date on which the claim application was made.”

 

This principle was overruled by the Apex Court having said that, “the principle adopted in above cases has not adopted the correct principles of law”. That is why, it will not be considered as the binding precedent”.

Therefore, Supreme Court ruled in the favour of the claimant to the extent that the awarded sum of money will carry 12% interest per annum from the date of the accident, regardless of the fact whether it has been challenged by the claimant or not.

 Thus, the Apex Court held that “even though the respondent did not challenge this direction by filing any appeal in the High Court nor challenged it by filing any appeal in this Court too, yet the question being a pure question of law, this Court with a view to do substantialjustice to the respondent consider it just and proper to modify the order of the Commissioner in respondent’s favour so as to make the same in conformity with the law laid down by this Court in the above referred two decisions”.

Satyam Singh Pal

Associate

The Indian Lawyer