VOL III                                                      ISSUE NO. 24                                June 12, 2018          

In This Issue

India: Conviction of an Indian citizen by a Foreign Court won't be binding on Indian Courts

Significantly, the Hon’ble Full Bench of the Bombay High Court while delivering a decision in the case of Prabodh K. Mehta v. Charuben K. Mehta, held that ‘Conviction of an Indian citizen by a Foreign Court for the offence committed in that country can be taken note of by the Courts or Authorities in India. However, it cannot be said that the same will be ipso facto binding on such courts and authorities in India and they must exercise their discretion considering facts of the case and variety of factors involved therein.

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India: Awards of compensation are not Law’s Doles, says Supreme Court

The Supreme Court of India in its recent judgement in the case of Jagdish v Mohan, held that ‘Awards of compensation are not law’s doles. In a discourse of rights, they constitute entitlements under law.’   

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India: Conviction of an Indian citizen by a Foreign Court won't be binding on Indian Courts

 

 

Source: www.bombayhighcourt.nic.in

 

The Oxford English Dictionary defines conviction as ‘a formal declaration by the verdict of a jury or the decision of a judge in a Court of law that someone is guilty of a criminal offence.’ [1] A Court of law convicts a person or holds him/her guilty only after evaluating the facts, evidences placed on record and the merits of the case. One question that recently arose in a case was whether a conviction of an Indian by a Foreign Court for the offence committed in that country can be taken note of by the courts or authorities in India?

 

Significantly, the Hon’ble Full Bench of the Bombay High Court while delivering a decision in the case of Prabodh K. Mehta v. Charuben K. Mehta on March 1, 2018, held that ‘Conviction of an Indian citizen by Foreign Court for the offence committed in that country can be taken note of by the Courts or Authorities in India. However, it cannot be said that the same will be ipso facto binding on such courts and authorities in India and they must exercise their discretion considering facts of the case and variety of factors involved therein.

 

The Hon’ble Court clearly explained in its judgement that the consideration in a case would always be independent and will always be on a case-to-case basis, only after analyzing the effects of the foreign judgement and order of conviction.

 

Facts of the case

  • In January 15, 2007, Prabodh K. Mehta (hereinafter referred to as ‘the Appellant’) was appointed as a trustee of the Lilavati Kirtilal Mehta Medical Trust for a period of 5 years.

  • A Court in Belgium allegedly convicted the Appellant of an offence of moral turpitude.

  • On April 28, 2008, Charuben K. Mehta (hereinafter referred to as ‘the Respondent’) filed an Application, under Section 41D of the Maharashtra Public Trusts Act, 1950, before the learned Joint Charity Commissioner, Greater Mumbai, seeking removal/dismissal/suspension of the Appellant as a trustee on the ground that he was allegedly convicted of an offence involving moral turpitude by a Court in Belgium.

  • However, on October 18, 2011, through a resolution passed by the trustees of the said trust, the Appellant was again appointed as a trustee for a further period of 5 years.

  • On March 8, 2013, the Learned Joint Charity Commissioner allowed the said application filed under Section 41D thereby removing the Appellant from the said trust for the remaining tenure. The reasons for the order of the City Civil Court was that the Respondent had proved that the Appellant was convicted of an offence involving moral turpitude.

  • On July 20, 2013, an appeal was filed before the Division Bench of the Bombay High Court. The basis of the appeal was that the Court in Belgium later pardoned the Appellant and thus, his criminal record stood erased.

  • The Division Bench was of the view that the crime committed by the Appellant in Belgium during his tenure as a trustee in India could not be ignored, since its own laws on the subject were also very stringent.

  • The question of law was referred to the Hon’ble full bench and with the consent of the parties the question was reframed as under.

Issues

  • Whether the conviction of an Indian by a Foreign Court for the offence committed in that country can be taken notice of by the Courts or authorities in India while exercising their judicial or quasi-judicial powers?

  • As to whether such a conviction would be binding on the Courts and authorities in India while exercising judicial and quasi-judicial powers?

Appellants Contentions

  • It was contended that the judgment and order of conviction by a Foreign Court for the offence committed in that country cannot even be looked into or no notice should be taken of the conviction, by the Indian Courts.

  • In support of its contention, it relied upon decisions, namely Govind Kesheo Powar vs. State of Madhya Pradesh and others (Nagpur High Court) and Union of India and others vs. Susanta Kumar Mukharjee (Calcutta High Court) and various foreign decision from UK i.e. Kings Bench Division in Banco De Vizcaya vs. Don Alphons De Borbon [2] , Queens Bench in United States of America vs. Inkley [3] , Kings Bench in Raulin vs. Fischer [4] etc.

  • Further, it was submitted that it has been consistently held that the Court of one country would not directly or indirectly execute decree of the Court of another country and if the Court of one country is permitted to take note of decree of the Court of another country, it will amount to nothing else but indirect enforcement of decree of the Foreign Court. Defendants Contentions

  • It was submitted that though the judgment and order of conviction passed by the Foreign Court may not be binding on the Courts in India, the same, however, could be noticed and recognized while exercising judicial or quasi-judicial powers by the Courts and authorities as the case may be in India.

  • It further submitted that that, enforcement of a judgment of Foreign Court is distinct from recognizing or noticing the said judgment by the Courts and authorities in India.

  • Relying on the judgement in the case of Indian and General Investment Trust Ltd. v. Sri Ramchandra Mardaraja Deo, Raja of Khalikote, the Defendants contended that the Indian Courts are not bound to follow the rules of private international law, as are laid down by the English Courts.

  • Citing another judgement in the case of State (NCT of Delhi) vs. Brijesh Singh and Ors., the Defendants stated that the principle that “crime is local” cannot be stretched to such an extent that the judgment and order of conviction by Foreign Court even cannot be looked into by the Courts in India.

 

Court’s Decision

  • The Court observed that the Appellants have cited several English Judgements, however, reference to all of them was not necessary according to the Court.

  • The ratio of the judgments cited by the Appellants as noted by the Court was that if a decree passed under penal law by Foreign Court were sought to be enforced directly or indirectly through British Courts, the same would not be permissible. It is on a principle that, Courts of no country execute penal laws of another.

  • Referring to the decision in the case of Avinash Kumar Bhasin vs. Air India, Bombay and the judgment of the Apex Court in Brace Transport Corporation of Monrovia, Bermuda vs. Orient Middle East Lines Ltd, Saudi Arabia and others, the Court observed that an Award, if it has to be enforced, should necessarily be recognized. However, the converse is not necessary. The recognition may ipso facto be not enforceable.

  • After analyzing the judgements cited by both the parties, the Court observed that it appears to be a settled principle of law laid down by English Court that, though the decrees of penal laws of Foreign country cannot be enforced in United Kingdom, the laws of Foreign countries and especially the countries with which the United Kingdom has friendly relations, cannot only be looked into but on the principle of comity are required to be given due recognition.

  • The Hon’ble Full Bench referred to Article 20(2) of the Constitution, Section 300 of Criminal Procedure Code as well as Section 4 of the Indian Penal Code. Article 20 (2) of the Constitution guarantees fundamental right to the citizen that he shall not be prosecuted and punished for the same offence more than once. Section 300 of the Criminal Procedure Code provides that a person who is once tried by a Court of competent jurisdiction for an offence and acquitted for such offence while such conviction or acquittal remains in force, would not be tried again for the same offence. Further, Explanation (a) of Section 4 of the Indian Penal Code provides that the word “offence” includes every act committed outside India which, if committed in India, would be punishable under the Code.

  • The Hon’ble Full Bench held that accepting the contentions of the Appellant may even have an effect of depriving an Indian citizen of the fundamental right available to him under Article 20 (2) of the Constitution and to any person under Section 300 of the Code of Criminal Procedure Code. In addition, it would be against the public policy and principle of comity of Nations.

  • Regarding the question of binding nature of the conviction by a Foreign Court, the Court declined to make it binding. It was of the view that making it binding will amount to directly or indirectly enforcing the judgment of the Foreign Court.

Thus, the Court held that the judgment and order of conviction of a Foreign Court for the offence committed in India can be noticed/looked into and recognized by judicial and quasi-judicial authorities in India, while exercising their judicial and quasi-judicial powers, however it cannot be said that the same will be ipso facto binding on such courts and authorities. The Courts and authorities, while exercising their judicial and quasi-judicial powers will have to take a call on the facts and circumstances of each case and take a decision as to what is the effect of such judgment and order of conviction. This will depend on variety of factors, such as:

  • Nature of the proceedings

  • Purpose for which the said order of conviction needs to be taken into consideration

  • Nature of conviction and effect thereof on the proceedings

  • Nature of consequences of the ultimate decision to be taken in the said proceedings

 

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[1]https://en.oxforddictionaries.com/definition/conviction

[2][1935] K.B. 140

[3] 1989 1 Q.B. 255

[4] 2 Kings Bench 1911

 

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India: Awards of compensation are not Law’s Doles, says Supreme Court

 

 

Source: www.supremecourtofindia.nic.in

 

 

 

Introduction

 

Compensation in the legal world is payment towards an injury caused. It is an act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another, in order that thereby the person damnified may receive equal value for his loss or be made whole in respect of his injury. [1]

 

The purpose of compensation is to reestablish the position of the injured party to what it was before the injury took place. The assessment of compensation in itself is a complex process and is usually guided by way of applying precedents on the facts and circumstances of a particular case. One of the areas where assessing the compensation is complex is Motor Vehicle Accident Claims. The claims under the Motor Vehicle Act 1988 (hereinafter referred to as the ‘MV Act’) includes the claim of right with respect to accident caused due to the act of negligence of other.

 

In cases of accidental injuries, the compensation is decided on the injuries suffered and the gravity of it. In one of the leading judgements [2] by the Hon’ble Supreme Court of India in 2017 held that the determination of income while computing compensation has to include future prospects so that the method comes within "the ambit and sweep of just compensation" as postulated under the provision of the Motor Vehicle Act. [3]

 

While interpreting the MV Act, the Supreme Court has number of times held that this is a welfare legislation and the interpretation of provision of law is required to be made so as to help the victim. Last year i.e. in 2017, while delivering the judgement in the case of National Insurance Company Limited v. Pranay Sethi & Ors., the Hon’ble Supreme Court opined that ‘It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision based on materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability.’ Keeping up with the trend, the Supreme Court of India in its judgement in the case of Jagdish v Mohan delivered on March 6, 2018 held that ‘Awards of compensation are not law’s doles. In a discourse of rights, they constitute entitlements under law.’

 

Facts of the Case

  • On November 24, 2011, at 4 pm IST, an accident took place in which Jagdish (hereinafter referred to as the Appellant) got injured.

  • The Appellant and another person were riding on a motor cycle at a moderate speed. The Appellant, who was riding the motor cycle, indicated to a dumper, which was ahead of him to allow him to pass.

  • When the Appellant was passing the vehicle, it swerved on the driver’s side and hit the motor cycle of the Appellant.

  • The Appellant was gravely injured in the course of the accident. He suffered 90% permanent disability and the hands were not able to perform any function.

  • A suit was filed in the Motor Accidents Claims Tribunal No. 2, Kota (hereinafter referred to as the Tribunal). The Tribunal found that ‘there was negligence on the part of the driver of the dumper and that the Appellant was liable to be compensated for the injuries sustained by him.’

  • In computing the amount of compensation, the Tribunal noted that:

    • The Appellant was a carpenter and had claimed that he was in receipt of an income of INR 6,000 (USD 92 approx.) per month.

    • In the absence of documentary evidence, the Tribunal took the monthly income of the Appellant at INR 4,050 (USD 62 approx.)

    • The Appellant having been found to suffer from 90 per cent disability, the loss of the future monthly income was computed at INR 3645 (USD 56 approx.)

    • The Tribunal applied a multiplier of 18.

    • The future income was calculated to be INR 7,87,320/- (INR 3645 X 12 X 18) (USD 12132 approx.)

    • An amount of INR 1.80 lakhs (USD 2773 approx.) on account of mental and physical hardship and agony

    • INR 90,000/- (USD 1386 approx.) for loss of comfort

    • INR 25,000/- (USD 385 approx.) for expenses

    • INR 95,908/- (USD 1477 approx.) on account of medical expenses

    • INR 1 lakh (USD 1541 approx.) for attendant charges

  • After the calculation the Tribunal awarded a total amount of INR 12,81,228/- (USD 19743 approx) as compensation on which interest was allowed at the rate of 7.5 per cent per annum from the date of the filing of the claim petition.

  • Further, in appeal the High Court enhanced the award of compensation by an amount of INR 2,19,000 (USD 3372 approx.) and if the enhanced amount will not be deposited within 8 weeks, it would carry interest at 9 per cent per annum.

  • Hence, aggrieved with the computation of compensation the Appellant filed the present appeal.

Appellants Contentions

  • The Appellant submitted that he himself is unable to eat food or go to toilet. He requires assistance of someone else, as both his hands are unable to perform any function.

  • He further submitted that due to the injury there has been loss of 90% of earning ability of the Appellant.

  • He contended that he would be entitled to be compensated for loss of future prospects even though he is self-employed, which the Tribunal did not take into account.

  • He argued that the income as claimed of INR 6,000 (USD 92 approx.) per month should be the basis of computation and not INR 4,050 (USD 62.41 approx.) as allowed by the Tribunal and confirmed by the High Court.

Courts Judgement

  • The Court pointed out that certain settled principles need to be borne in mind while assessing the compensation payable. These principles are:

    • Pain, suffering and trauma resulting from the accident;

    • Loss of income including future income;

    • The inability of the victim to lead a normal life together with its amenities;

    • Medical expenses including those that the victim may be required to undertake in future; and

    • Loss of expectation of life.

  • Deciding on the issue of compensated for loss of future prospects; the Court threw light on the judgement in the case of National Insurance Company Limited v. Pranay Sethi & Ors. wherein it was held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40 per cent of the established income should be made where the age of the victim at the time of the accident was below 40 years. Therefore, it held that the Appellant would be entitled to an enhancement of INR 2400/- (USD 37 approx.) towards loss of future prospects.

  • The Court observed that the disability is indeed total as the Appellant needs assistance of an attendant even to eat or to visit a toilet.

The Court rightly held that the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law’s doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.

 

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[1]https://thelawdictionary.org/compensation/ 


[2] National Insurance Company Limited v. Pranay Sethi & Ors

[3] //economictimes.indiatimes.com/articleshow/61366734.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

 

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