INFORMED CONSENT ESSENTIAL BEFORE SURGERY

Informed consent is the subject matter of several medico-legal litigation as invariably the consent taken from a patient or his attendant is not informed consent. Informed consent means that the patient must be made fully aware of the pros and cons of the line of treatment that he will be given by the treating Doctor and the concerned hospital staff. The very idea of informed consent is that the patient should be allowed to make a sensible decision concerning his or her treatment. In the legal parlance informed consent is always based on the basis of the treating doctors diagnosis, treatment, prognosis. A patient may gather some knowledge on his medical problem via discussions with medical/nursing staff, via the media/internet, or from friends who have undergone a similar procedure but this can not be equated to the information that the treating Doctor shares with the patient. Hence informed consent occurs only when the patient after being informed by the Doctor takes the decision to go ahead with the treatment decided by the Doctor. In informed consent the patient is fully aware of the risks and benefits of his treatment.

In a recent case, reported by Times of India, the Delhi State Consumer Disputes Redressal Commission (DSCDRC) held that merely asking patients to sign a consent form is not enough, as they ought to be informed about the consequences of a surgery. The panel clearly stated that an informed consent was when a patient was explained the consequences in layman’s language to decide on the surgery. It went as far as stating the merely writing “informed consent” on top of a form does not make it so. The clauses mentioned are very vague and signing such a form is no consent in the eyes of the Law.

The Commission observed this while awarding Rs. 8 lakh compensation to the family of a city-based journalist, Bhushan Raina, who lost vision in one of his eyes after cataract surgery in 2008.  He was advised to undergo a surgery after his right eye started giving him trouble.  He consulted Dr. Sudeep K Jain. He was given an option to wait for 2-3 months or in the alternative to undergo the surgery immediately. The surgery was performed and his eye checkup showed retinal detachment and thereafter he was advised to undergo another surgery, but was warned that he might not get his eyesight back. The real suffering came when he was asked to lie on his stomach for almost two months and he has to eat and sleep in same position. Due to aforementioned sufferings he lost his mental and physical strength and independence and lead a poor quality of life, which jeopardized his future. Mr. Raina died during the pendency of the case.

International guidelines state that, consent should begin with a brief explanation of the planned operation, including the anesthetic involved. It is wise to describe what the patient may expect to experience during surgery, if under a local anesthetic. Medical jargon should be avoided as it only serves to reduce understanding. Sufficient information to make a decision should also include an explanation of the risks and benefits involved; any alternative treatments; and the risks and benefits of abstaining from the treatment.

Therefore DSCDRC Member (Judicial) Mr. OP Gupta rightly found that the doctors are guilty of negligence and said, “ The life of a person is almost like death without eyesight. He cannot see properly or walk or eat with comfort. He feels secluded from society and his near and dear ones.”

This judgment not only holds importance in the life of Doctors but also for patients as they need to understand that consent is an opportunity to guide the patient to the right decision for them, and also dispel any unrealistic expectations concerning the procedure. Ultimately it is an opportunity to create a relationship of openness and trust between doctor and patient, which may help if operative complications are encountered. With high health-care expectations, a poorer than expected outcome may lead to surprise and subsequent anger: good patient education, during the informed consent process, is the surgeon’s chance to forge a relationship with the patient and make sure that the patient’s expectations are realistic.

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer

INDIA BARS THE EXECUTION OF MENTALLY ILL CONVICTS

India along with many other countries,as part of the League of Nations, has considered mental illness as a mitigating circumstance for the imposition of lenient sentences as the offender, due of his mental incapacity, is unaware of his actions. This has been the country’s policy for several years.

In the recent judgement in the case of Accused ‘X’ v. State of Maharashtra [Review Petition (Criminal) No. 301 of 2008] that was decided on 12th April 2019, the Hon’ble Supreme Court of India, has issued directions on the execution of mentally ill convicts. The ruling arises from the Supreme Court’s miscellaneous decisions where it has laid down the test of severity for the conviction of person’s with mental disability. The bench comprising of Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee has opined that the sole purpose of awarding a punishment is that it should act as a deterrent, however, when a condemned prisoner loses cognitive power by reason of post conviction mental illness, the essence of sentence awarded is lost.

In the instant case the accused was convicted and sentenced to death for sexually assaulting and murdering two minor girls in December 1999 at Gulumb in Maharashtra by the Trial Court in 2001. The High Court of Bombay confirmed the death sentence. Relieving him of the execution and commuting his death sentence to life imprisonment the Bench noted that the reports of psychiatrist suggested that the accused has been reeling under bouts of some form of mental irritability since 1994. The three judge Bench held that:

75. “In this state ‘accused x’ cannot  be ignored and left to rot away, rather, he requires care and treatment. It needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad­ spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally­ ill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems.”

The Court further noted that there are no set parameters for determining the degree of disability however a ‘test of severity’ can be a guiding factor for recognizing certain types of mental illness which qualify for an exemption. The Court said:

68. “The test envisaged herein predicts that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia.”

The Bench issued the following directives:-

  1. That the post-conviction severe mental illness will be a mitigating factor that the appellate court, in appropriate cases, needs to consider while sentencing an accused to death penalty.
  2. The assessment of such disability should be conducted by a multi-disciplinary team of qualified professionals (experienced medical practitioners, criminologists etc), including professional with expertise in accused’s particular mental illness.
  3. The burden is on a accused to prove by a preponderance of clear evidence that he is suffering from severe mental illness. The accused has to demonstrate active, residual or prodromal symptoms, that the severe mental disability was manifesting.
  4. The State may offer evidence to rebut such claim.
  5. Court in appropriate cases could set up a panel to submit an expert report.
  6. The test envisaged herein predicts that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment.

Relying upon the Provisions of Mental Health Care Act, 2017, the Court stated that as per Section 20(1) of the Mental Health Care Act, 2017 “every person with mental illness shall have a right to live with dignity”

The Judicial authorities in India have on previous occasions pronounced Judgements barring execution of death row convicts suffering from mental illness.  The Hon’ble Supreme Court, in the case of Shatrughan Chauhan and Anr v. Union of India and Ors. (2014) 3 SCC 1, based on the report of Neuro Psychiatrist set aside the death penalty awarded to the convict Sundar Singh. The three judge Bench held that insanity/mental illness/schizophrenia is also one of the supervening circumstances for commutation of death sentence to life imprisonment.

Similarly in the case of Navneet Kaur v. State(NCT of Delhi) (2014) 7 SCC 264 the Court held that execution of persons suffering from mental illness or insanity violates Article 21 of the Constitution and that such mental illness or insanity would be a supervening circumstance meriting commutation of the death sentence to life imprisonment.

This Judgement of the Supreme Court of India is a big step forward for the people sufferring from serious mental illness. India by joining the League of Nations and barring execution of mentally ill convicts has shown its concern over a long ongoing discussion on the subject of mentally ill convicts.  

Sourabh Mishra

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer

STABLE INDIA SMART INDIA

India has given its mandate to Prime Minister, Mr. Narendra Modi for his second term, thereby, ushering in an era of stability to the business community and investors. There were several sweeping changes that were introduced by Mr. Modi during his first term which included demonetisation, introduction of a new tax regime, etc which had its fair share of teething problems. This led to doubts about his re-election, as the general feeling was that many people were disgruntled with the stringent changes. However, patriotism got the better of most voters and they have voted in favour of the Prime Minister once again giving him a second term.

The mandate given by India has given Mr. Modi a full and clear majority validating that though he introduced several changes, people understood that changes are for the better of the country.

India has now arrived in the international arena as a good business destination. The fact that foreign investments in India has grown by leaps and bounds in the last 5 years, even overtaking foreign investments in China, speaks for itself. With Prime Minister, Mr. Modi, there are bound to be several further changes that will assure global business houses regarding successful business ventures in India.

The General Elections 2019 has also proved the popularity of Mr. Modi as a global Leader and the victory assures the people of India of speedy growth, stability and prosperity. This win is a signal to the global business community that India is stable and India will shine. Hats off! Prime Minister Modi.

Sushila Ram Varma

Chief Consultant

The Indian Lawyer

JUDICIARY GRANTS RELIEF TO HOME BUYERS

In the recent past the Real Estate industry suffered severe recession. This was a result of the spiral effect of the builders facing a money crunch, crashing real estate prices and lack of interested buyers. During the recession period in the Real Estate business in India, thousands of Home Buyers suffered a setback, as their hard-earned money was blocked in incomplete construction projects. When the Buyers claim their money back, builders make fake promises and fail to return their money back.  

This situation left the Home Buyers with no option but to initiate recovery proceedings which invariably led to delays for several reasons including the fact that builders delayed the proceedings further by either not appearing or taking multiple adjournments. To make the matter worse, the Home Buyers invariably got caught in technical grounds which sometimes even resulted in dismissal of their case. What was even more worrying was that builders approached the courts to declare themselves as bankrupt/insolvent causing even further problems for the Home Buyers. What was even more difficult for the Home Buyers was that in insolvency proceedings they were not considered as Financial Creditors or as Operational Creditors.[1]

The Home Buyers, to their relief, saw a silver lining in the dark clouds when Supreme Court of India in the case of Chitra Sharma & Anr. Vs. Union of India[2], Writ Petition (Civil) No 782 of 2017 stated that the Home Buyers should be considered as the Financial Creditors as the amount submitted by them to the builders are used for the development of the buildings.  After this case the status of Home Buyers has been recognized as Financial Creditors and now, they can initiate insolvency proceedings against the corporate debtor under Section 7 of the Insolvency and Bankruptcy code, 2016 as amended thereof (IBC).

Although the above-mentioned Judgment gave relief to the Home Buyers but they were still very far from recovering the amounts paid by them to the corrupt builders. The mounting interest on home loans added to their woes. The fact that they had to service their loan and were still not in possession of their home only made things more difficult. In most cases the Home Buyers were looking for a refund rather than possession, but the builders always evaded this by citing contractual provisions, in the buyer’s agreement, that the Home Buyers had entered with the builder. These agreements invariably did not consider refund of the buyer’s money but only had a clause that allowed them a small interest by way of penalty. This led to a nightmarish situation for the Home Buyers as they were trapped in a home loan which they could not foreclose as the money was with the builders.

The National Consumer Dispute Redressal Commission (NCDRC) passed a final order in the case of Ajai Kumar & Anr. V. Supertech Ltd., CC/1639/2017 dated 22-04-2019, stating that in case where the builder has delayed in handing over the occupancy certificate to the home buyers, then in such a case the whole amount shall be refunded to them along with the interest decided by the court. The complainants in the above mentioned case relied upon Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan Civil Appeal No. 12238 of 2018 decided on 02.4.2019 in which the Supreme Court has stated:

“6.1  In the present case, admittedly the appellant – Builder obtained the Occupancy certificate almost two years after the date stipulated in the Apartment Buyer’s Agreement. As a consequence, there was a failure to hand over possession of the flat to the respondent – Flat Purchaser within a reasonable period.  The Occupancy Certificate was obtained after a delay of more than two years on 28.8.2018 during the pendency of the proceedings before the National Commission.

In Lucknow Development Authority V. M.K. Gupta, AIR 1994 SC 787 this court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2(o) of the Consumer Protection Act, 1986.  The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. 

In Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., Civil Appeal No(s). 3533-3534 of 2017 this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

6.2   The Respondent – Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant – Builder.  The respondent – flat purchaser was justified in terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder.  The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.”

The NCDRC vide its order dated 16.04.2019 in CC No.2335 of 2017 STUC Awasiya Grahak Kalyaan Association Vs. Supertech Ltd., held that the general excuses made by the builders for the delay is not acceptable, unless they can show a direct causal link, and held as under:

“5.In case, there was an order restraining the OP from extracting ground water for construction purposes, it was for the OP to arrange water for construction purposes from alternative sources and the flat buyers cannot be made to suffer on account of such an order, if any.

6.     As far as challenge to the acquisition of land is concerned, even according to the OP, the writ petition filed by the farmers in Allahabad High Court came to be decided on 21.10.2011.  Though, Civil Appeals were later filed before the Hon’ble Supreme Court, which eventually upheld the order passed by Allahabad High Court, admittedly, no order was passed by the Hon’ble Supreme Court at any point of time, restraining the builders, particularly the builders in YEIDA from raising construction on the land, which were subject matter of the civil appeals pending before the Hon’ble Apex Court.   Moreover, the agreements with the allottees on whose behalf this complaint has been instituted came to be executed much later than the decision of the Allahabad High Court on 21.10.2011. 

9.     As far as the alleged agitation by the farmers is concerned, no direct evidence has been led by the OP to prove the dates on which and the period during which the farmers had actually prevented the construction work on the project in which allotment was made to the consumers, on whose behalf this complaint is instituted, or the period during which the OP was actually prevented by the farmers from starting the construction on the said plot.  In the absence of such an evidence, it cannot be known how much delay in the commencement and / or progress of the construction can be attributed to the alleged agitation by the farmers.”

In the case of Ajai Kumar (supra), NCDRC has ordered the builders to refund the home buyers the total deposited amount along with interest @ 10% p.a. and Rs. 25,000 for the cost of litigation.

In a recent NCDRC case of Amal Ganguli Vs. Unitech Ltd., CC/2712/2017 dated 09-05-2019, the NCDRC held that home buyers ought to be refunded the amount paid by them along with interest @ 10%. The facts of the case are similar to the one cited above. In this case also the payment was taken and the possession of the flat had to be given to the home buyers after 36 months from the execution of the Apartment Buyer Agreement. The NCDRC noted that it has been more than 3 ½ years after the completion of the 36 months contractual period and till date the builders have not given the possession of the desired flat even after around Rs.1,77,95,300/- was paid to the builders. The builders in this present case also gave the same set of excuses and dumped their fault on the Government Policies but the Commission dismissed all their excuses. The Complainant in this case placed the reliance upon the decision of the NCDRC in CC No. 1100 of 2015 Vibha Gupta Vs. M/s Unitech Ltd. & other connected matters which was decided on 28.11.2016 and which stated the following:

“6. The next question which arises for consideration is the quantum of compensation which should be paid to the complainants for the delay in completion of the villas. As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section-5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.”

Conclusion:

Due to the recent judgments discussed above, Home Buyers are now protected from corrupt builders and can claim their money back. The various judgments of the Supreme Court, High Courts, NCDRC etc. ensure protection to the Home Buyers and the builders cannot get away by citing flimsy grounds for delay. The fact that the courts are now granting interests on the money paid by the Home Buyers has given them further hope. In short, finally, the Home Buyers are now protected.

Asif Khan

Legal Associate

The Indian Lawyer


[1] Col Vinod Awasthy V. AMR Infrastructures Ltd., C.P NO. (IB)-10(PB)/2017

SUPREME COURT OF INDIA HELD THAT A COURT MAY ALLOW SUMMONS OF A PERSON NOT IMPLICATED IN A CHARGESHEET, TO FACE TRIAL

Recently, the Supreme Court of India, in a case of Rajesh and others vs. State of Haryana 2019, has held that in case a person is named as an accused or co-accused in a first information report (FIR) by a complainant, but the police, upon investigation, file a chargesheet without implicating them on the ground that they did not find such person(s) involved in the particular case, then in such cases the court may still have the power to proceed against such person(s). The law governing criminal procedure in India empowers a court to proceed against persons who have not been accused of committing any offence.

In this case the Trial Court and the High Court of Punjab and Haryana at Chandigarh that allowed the prosecution to file an application for summoning additional accused persons to face the trial.

Thus, the Supreme Court upheld the said Judgments on the ground that if the court finds that a particular person should be summoned as accused, the court may do so by giving a chance to the complainant to file a protest petition urging the court to summon other persons as well, who were named in the FIR but not implicated in the charge sheet.

Hemant Kumar Sunny

Student, 4th year

NLU Visakhapatnam

Intern

The Indian Lawyer

With

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT RULES THAT DISMISSAL OF CONSUMER COMPLAINTS ON MERE TECHNICAL GROUNDS AND DELAYS DEFEATS JUSTICE


The National Consumer Dispute Redressal Commission (NCDRC) and other consumer courts have regularly dismissed complaints on mere technical grounds and without condoning marginal delays. The NCDRC, vide order dated 15th February 2019 in the case of  “Vibha Bakshi Gokhale vs. Gruhashilp Constructions” dismissed the appeal, filed by the flat buyer against a construction firm, on failure to file the rejoinder and evidence. The order was based on the conditional order dated 16th November 2018 requiring the appellants to file a rejoinder and evidence within a period of four weeks, failing which the complaint was to stand dismissed automatically. Therefore on 15th February 2019 the court dismissed the appeal observing that it is perhaps because the appellants do not have any merit in the case, that there was a delay in filing a rejoinder and evidence. 

The Appellant appealed to the Supreme Court of India against the said Order of NCDRC.  On 10th May 2019 the Bench comprising of  Hon’ble Justice DY Chandrachud and Justice Hemant Gupta of Supreme Court of India, made an observation regarding the dismissal of consumer complaints on small technical grounds. While setting aside the said Order of NCDRC, the Hon’ble Bench observed that Orders like such not only detracts from the very purpose for which the NCDRC was established but the dismissal of consumer complaints on technical grounds adds to the burden of litigation and fails to ensure justice in consumer fora. The Hon’ble Bench also stated that the main motive behind the setup of NCDRC is protection of the rights of consumers by helping them to seek access to justice under the Consumer Protection Act,1986. 

The Court held that drawing an inference regarding the delay being caused by the appellant because of lack of merit in the case, was totally unwarranted.  The marginal delays, which are caused, needs to be condoned in order to safeguard the purpose of the Act.

The Court went further to state that while not condoning marginal delays on grounds that the Consumer Protection Act 1986 stipulates a period within which the consumer complaint has to be disposed off, the Courts need to keep in mind that complaints can not be disposed off due to non-availability of resources and infrastructure and therefore it is harsh to penalise a bona fide litigant for marginal delays that may occur in judicial process.

This Judgment has paved the way for justice for consumers by clarifying that there is a need of condoning marginal delays and technical grounds to ensure that the ends of justice are not defeated and no bona fide litigant shall be denied justice because of unwarranted inferences, technical grounds or marginal delays.

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer

INDIAN GOVERNMENT PLANS TO MAKE DIGITAL PAYMENTS MANDATORY

According to various newspaper reports, the Government of India has recently planned to make quick response (QR) code-based payment method using the Unified Payments Interface (UPI), mandatory for all shops and establishments beyond a certain threshold.

This Government measure is aimed at promoting digital payments in business to consumer (B2C) transactions and at curbing tax evasion in the country. Further, this move may help consumers to make cashless and hassle-free transactions and also enable shopkeepers to avail Goods and Services Tax (GST) benefits.

With the aim to establish a cashless economy in India, the Government had earlier allocated a target for banks to deploy 20 lakh physical and mobile points of sale (PoS) in FY 2018-19. But it has been noted that only 44% of the target has been achieved up to 31.01.2019.

But in furtherance of its objectives, the Government has recently raised its target to 4019 Crore digital payment transactions by FY 2020, in order to encourage digital payments across the country. Out of the said target, a target of 3411 Crore digital payment transactions has been allocated to banks and further, they have been mandated to deploy 8.5 Million PoS terminals across rural areas and north-eastern states of India. 

Although, as per various newspaper reports, a few states like West Bengal had previously opposed the move to roll out incentives to encourage digital transactions, as it may adversely affect rural consumers, but the Government seems to be positive in its endeavour to promote digital payments as the preferred option for consumers and continues to plan for introducing incentives to customers who prefer digital payment transactions over cash-based transactions.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

JOB POST: Hiring lawyers with an experience of minimum 3-4 years @ The Indian Lawyer [Hyderabad]

Organization Name

The Indian Lawyer

Job Description

We are looking at hiring lawyers with an experience of minimum 3-4 years for our Hyderabad Office

Eligibility/Qualifications

  • Candidates should possess good knowledge of law and strong communication skills in English.
  • Candidates should be enrolled with Bar Council and should have passed the All India Bar Examination

Salary

Depending on educational qualifications

How to apply

  • The cv file should contain the candidate’s name
  • Interested candidates may please mention their number of years of experience in the cover letter and cv.

Contact info

Ph- 040-27424466

Official link

For official website, click here

BOMBAY HIGH COURT HOLDS THAT SPEEDING ON A BUSY ROAD AMOUNTS TO RASH AND NEGLIGENT ACT

The High Court of Bombay in the case of Popat Bagiananth Kesar v State of Maharashtra passed a Judgment dated 16.04.2019 whereby, the Court held that driving a vehicle at a high speed in thickly populated and busy road is considered rash and negligent driving.

In the above case the Applicant was speeding in a busy road which lead to the death of a seven-year-old boy for which the Applicant was convicted under Section 304A and Section 279 of the Indian Penal Code, 1860 as amended thereof (the Code). The Trial Court in its Judgment dated 13.03.2006 convicted the Applicant under the following provisions:

  1. Awarded sentence of one year for the offence punishable under Section 304A of the Code and
  2. Inflicted one-month imprisonment for the offence under Section 279 of the Code and
  3. Awarded a sentence of one month and fine for the offence under Section 184 and 183(1) of Motor Vehicle Act, 1988 as amended thereof (the Act)

Later, upon an appeal to lower Appellate Court, the Applicant was acquitted for the offence under Section 279 of the Code and Section 184 of the Act. However, the lower Appellate Court approved the conviction of the Applicant for the offence punishable under Section 304A of the Code and punishment was reduced from one year to three months imprisonment.

Soon after, the Applicant filed a Review Petition before the Bombay High Court challenging the said Judgement dated on 21.12.2006. Herein the High Court observed that even though speeding of the vehicle is one of the factors that indicate that the driver was driving in the most rash and negligent manner but it is not the sole criteria to determine that there is negligence or rashness on the part of driver as it always depends on facts and circumstances of each case. But in this case the driver had the knowledge that the place of occurrence of the accident was heavily populated and that it was a busy road but he still drove the vehicle at a high speed. Thus, the Court held such an act to be rash and negligent under the Code.

Gokul R

5th year student, Mar Gregorios College of Law, Kerala     

And

Intern

The Indian Lawyer

SUPREME COURT OF INDIA HOLDS APPOINTMENT OF ARBITRATOR BY INELIGIBLE PERSON VOID AB INITIO

The Supreme Court of India in the case of Bharath Broadband Network Ltd Vs United Telecoms Ltd, passed a Judgment dated 16.04.2019 whereby the Apex Court held that the appointment of arbitrator by a person who himself is ineligible to be an arbitrator is void ab initio as per Section 12 (5) of the Arbitration and Conciliation Act, 1996 as amended thereof (the Act).

In the said case, disputes had arisen between the Appellant and the Respondent with regard to purchase order for a turnkey project for supply, installation, commissioning and maintenance of certain Gigabit Passive Optical Networks (GPON) and other equipments. As a result, the Respondent invoked the arbitration clause and called upon the Chairman and Managing Director of the Appellant Company in order to appoint an independent and impartial arbitrator for adjudication of such disputes. The Chairman and Managing Director of the Appellant Company nominated Mr. K.H Khan as the sole arbitrator (Arbitrator) on 17.01.2017 to adjudicate and determine disputes that arise between them. The Appellant requested the Arbitrator to withdraw himself from the proceedings as he was de jure unable to perform his duty as Arbitrator. Further they wanted to approach the High Court for the appointment of another arbitrator in his place. But the Arbitrator by an Order dated 21.10.2017 rejected the said application without giving any reason.

Thereafter, the Appellant filed a petition in the High Court of Delhi under Section 14 and 15 of the Act. But the Delhi High Court rejected the said Petition on the ground that the very person who appointed the Arbitrator is estopped from raising a plea that such Arbitrator cannot be appointed after participating in proceedings.

Further, the Appellant filed an appeal against the said Delhi High Court Judgment in the supreme court of India under Sections 12 to 14 of the Act based on the judgment rendered in TRF Ltd v ENERGY ENGINEERING PROJECTS Ltd.

The Apex Court followed the 2017 decision in TRF Ltd. (supra) and held that the Chief Managing Director (CMD) of Bharath Broadband Network Ltd (BBNL) was himself an ineligible person as per Item 5 of Seventh Schedule of the Act, which bars manager, director etc. of a party to the dispute from being an arbitrator. Thus, the Apex Court directed the High Court may appoint a substitute arbitrator with the consent of both the Parties.

Sali John

Legal Intern

The Indian Lawyer

 5th year Student

 Mar Gregorios College of Law