Wife calling husband 'Hijda' is cruelty: Punjab and Haryana High Court

The Punjab and Haryana High Court recently ruled that a wife calling her husband Hijda (transgender) amounts to mental cruelty.

The Division Bench of Justice Sudhir Singh and Justice Jasjit Singh Bedi was hearing a wife’s appeal against the divorce decree granted in favour of her husband by a family court on July 12.

The husband’s mother had deposed that his wife would call her son a Hijda.  

“If the findings recorded by the learned Family Court, are examined in the light of the … judgments of the Hon’ble Supreme Court, it comes out that the acts and conduct of the appellant-wife amounts to cruelty. Firstly, terming the respondent-husband as Hijda (transgender) and calling his mother to have given birth to a transgender, is an act of cruelty,” the Bench said.

The couple had married in December 2017. The husband in the divorce plea had alleged that his wife used to wake up late at night and also ask his ailing mother to send her lunch on the first floor from the ground floor. 

“Considering the overall acts and conduct of the appellant-wife and further considering that the parties had been living separately for the last six years, it was rightly found by the learned family court that the marriage between the parties has ruptured beyond repair and it has become a dead wood,” the Court further said.

It was also alleged that she was addicted to porn and mobile games. In particular, the husband alleged that the wife used to ask him to record the duration of sex and would also state that it “must go on for at least 10-15 minutes at a time and that it must be at least thrice per night”. 

She used to taunt him for not “being physically fit to compete with her” and had disclosed that she wanted to marry someone else, the plea said.

The Court also said the parties have been living separately for the past six years and there is no possibility of reunion.

Accordingly, it upheld the family court's decision to dissolve the marriage and dismissed the wife’s appeal.

Supreme Court Upholds Maintainability Of Appeals Filed By Airports Economic Regulatory Authority Against Orders Of TDSAT On Tariff Imposition

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The Supreme Court on October 18 upheld the maintainability of appeals filed by the Airports Economic Regulatory Authority (AERA) assailing orders of the TDSAT under the AERA Act 2008 relating to tariff imposition on certain services.

The bench led by CJI DY Chandrachud comprising Justices JB Pardiwala and Manoj Misra permitted the appeals to be filed by AERA in the following order :

"The appeals by AERA against the TDSAT order are held to be maintainable. Registry to list the hearing appeals."

Voluntary Retirement Scheme Does Not Extinguish Employee's Right To Challenge Disciplinary Penalties: Delhi HC

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The court examined the scope and content of the SVRS and Sharma's undertaking. It acknowledged that while Sharma had accepted the scheme with the understanding that his salary would be calculated based on his reduced pay scale, the benefits being claimed did not form part of the retirement package.

The court analyzed BSES's reliance on the A.K. Bindal judgment. In that case, the Supreme Court ruled that an employee who avails voluntary retirement cannot later seek financial benefits like pay revision. However, the court here noted that A.K. Bindal dealt with pay revisions directly linked to retirement packages, whereas Sharma's claim arose from a disciplinary action unrelated to the SVRS package itself. Thirdly, the court referred to A. Satyanarayana Reddy, which allowed employees to claim certain financial benefits post-retirement if those claims were not explicitly covered under the SVRS. In Sharma's case, the court found that the pay revision linked to the penalty reduction was a separate issue, not part of the retirement benefits package under SVRS.

Government Employee Can't Refuse To Join New Place Of Posting While Contesting Transfer : Supreme Court

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The Court opined that when a person works for the government, the incidence of transfer becomes inherent in the terms of service unless it is specifically barred. As such, once relieved from a particular place of posting, the employee has no right to remain absent or to refute to the new place of posting. He can join the new posting place and continue contesting the transfer.

 "..an employee has no right to remain absent or refuse to join the new place of transfer once relieved from their current place of posting. The employee is entitled to avail all available remedies for redressal of grievances, but it does not entitle them to not comply with the transfer orders. The employee is well within his rights to join the transferred place of posting and still continue to avail the remedies available under the law for redressal of his grievances against the transfer."

Two primary concerns were flagged by the Court relating to such absenteeism of employees:

(i) Transfers are made by authorities to fill vacancies in new places of posting. If transferred employees don't join, optimal service at full capacity can't be provided;

(ii) While the challenge to transfer is underway, authorities would have to employ other individuals to fill the vacancies. This would amount to paying twice for the same job - firstly, to the individual who is actually performing the job, and secondly, to the transferred employee who is unauthorizedly absent.

"Such a situation would result in nothing but burning a hole in the pocket of public exchequer, lead to the excessive financial burden on the Government institutions, and would fundamentally jeopardize public interest", the Court said.

Briefly put, the Court was dealing with the case of Tamil Nadu Agricultural University and 6 private respondents, who initially challenged their transfer orders by the University before the Madras High Court. A Single Judge allowed the respondents' pleas and quashed the transfer orders. Against the same, the appellant-University filed writ appeals. The Division Bench of the High Court dismissed the appellant-university's appeals. Aggrieved by the same, it approached the Supreme Court.

Pursuant to the Supreme Court's initial orders, the private respondents joined their new places of posting. However, an issue remained with regard to regularization for the period during which they did not join services despite transfer.

With regard to 4 respondents, who had interim orders in their favor from the High Court, the appellant-University conceded that it was not opposed to regularization and payment of arrears.

So far as the other 2 respondents, the Court noted that without any interim order in their favor, they remained unauthorizedly absent from service during the pendency of their petitions before the Single Judge of the High Court. As such, they could not be regularized and/or paid arrears for the said period. However, they were entitled to regularization and payment of salaries for the period after the Single Judge pronounced the decision quashing the transfer orders.

"Despite there being no interim order in their favour, respondent nos. 4 and 7 continued to remain absent after being relieved from their original place of posting. As such, this Court is not inclined to extend any benefit of salary for the period of unauthorised absence. However, as the transfer order was quashed by the learned Single Judge, their service periods shall continue to be treated in continuity, and they would be entitled to whatever other benefits accrued to them due to this continuity, but no salary for the said period of unauthorised absence."

Ultimately, the appeals were allowed, with a direction to the appellant-University to clear arrears of the private respondents, subject to the condition that two respondents (who did not have interim orders in their favour) were not to be paid for the period of unauthorized absence.

Kerala High Court Refuses To Quash Case Against Man For Criticizing Muslim Girl's Handshake.'Can't Impose One's Religious Belief On Another'

This comes as the Court dismissed a petition filed by Abdul Noushad of Kottakkal, who has been accused of criticising a Muslim girl for shaking hands with former Finance Minister Thomas Issac at a public event. 

• Petition dismissed against woman shaking hands with ex-minister
• Court says shaking hands is a traditional gesture
• Video circulated accusing woman of violating Shariat Law

The Kerala High Court has refused to quash the proceedings against a man who made allegations against a Muslim girl that she committed adultery and violated Shariat Law by shaking hands with the former Finance Minister of Kerala, observing that no religious belief stands above the Constitution.

The ruling came by a single-judge bench of Justice P V Kunhikrishnan, who dismissed a petition filed by Abdul Noushad of Kottakkal, accused of criticising the Muslim girl for shaking hands with former Finance Minister Thomas Issac at a public event.

Justice P V Kunhikrishnan noted that "shaking hands" is a traditional gesture that symbolises greeting, respect, courtesy, agreement, deal, friendship, solidarity, etc

The woman complainant accused Abdul Noushad of circulating a video through WhatsApp that contained a speech claiming that she had violated Shariat Law by shaking hands with a man. According to the video, the act was considered adultery because she, as a woman, had touched another man.

The incident occurred when the woman, a second-year law student at Markaz Law College, participated in an interactive session with former Finance Minister Thomas Isaac, during which students received gifts for asking questions. After accepting the gifts, they shook hands with Isaac. However, the petitioner shared a video alleging that the woman had violated Shariat Law, leading to police charges against him under Section 153 of the Indian Penal Code and Section 119(a) of the Kerala Police Act, 2011.

The woman stated that the video brought disgrace to both her and her family. The court observed that a courageous Muslim woman had come forward, asserting that the video's distribution infringed upon her freedom of religious belief.

"In such situations, our Constitution will protect her interests. Moreover, society has to support her," Justice Kunhikrishnan said.

"No religious belief is above the Constitution. The Constitution is supreme," he added.

Emphasising the importance of personal choice in religious practice, the court also stated that "there is no compulsion in religion, especially in Islam".

In the ruling, the court highlighted that one individual cannot force another to adhere to their religious beliefs, reinforcing the idea that religious practice is a personal decision for every citizen. The court asserted, "The woman in the case has a right to follow a religious practice in her own way," stressing that no one should impose their beliefs on others.

Demanding sex from spouse does not constitute cruelty: Allahabad high court

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How will spouses satisfy sexual urges if not from each other? Allahabad High Court junks cruelty case

A husband or a wife demanding sex from the other does not constitute cruelty, Allahabad HC said while dismissing a dowry and torture case filed against a Noida resident by his estranged spouse as one motivated by "sexual incompatibility" between the couple.

"If a man would not demand sexual favours from his wife and vice-versa, where will they go to satisfy their physical urges in a morally civilised society," Justice Anish Kumar Gupta said in an Oct 3 ruling. He was hearing a petition filed by the husband, asking for criminal proceedings against him to be quashed. The dowry case against him - he was also accused of forcing his wife into "unnatural sex" - was pending in a Gautam Buddh Nagar court.

Justice Gupta cited the FIR and the complainant's recorded statement to conclude that assault, if any, was triggered not by any unfulfilled demand for dowry but by the wife's refusal to "fulfil the sexual urges of the husband". "In any of the events, the wife has ever sustained no injury. From the facts of the case, by no stretch of imagination, it can be said to be an offence of cruelty in Section 498A of IPC. There is no averment concerning any specific demand of dowry made by any specific person except general and vague allegations," Justice Gupta said.

The couple married in 2015, after which the man and his family allegedly demanded a dowry. The husband was also accused of abusing and assaulting his wife. When she objected, he allegedly tried to strangle her.

Suspension Of Sentence Can't Be Denied Merely Because Another Trial Is Pending Against Accused : Supreme Court

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The accused demanded parity with other co-accused, who were granted the benefit of suspension of sentence. The state opposed the plea for suspension of the sentence of one of the accused on the ground that a trial in another criminal case was pending against him. 

It was contended by the accused/appellant that mere pendency of the trial should not stand in the way of this Court considering The Supreme Court yesterday (Oct. 4) observed that the pendency of the trial against the accused in one case cannot be a ground for denying him the benefit of a suspension of sentence. 

The bench comprising Justices Dipankar Datta and Prashant Kumar Mishra granted a relief to the accused who was convicted in a murder case but denied the benefit of the suspension of sentence by the High Court. 

the prayer of the appellant-Narendra Singh for suspension of sentence. 

Setting aside the High Court's decision, the Court accepted the Appellant's contention and granted him the benefit of suspension of sentence. 

“That apart, mere pendency of the other trial where the appellant-Narendra Singh is an accused (on bail) cannot be regarded as sufficient for denying him the benefit of suspension of sentence in this case. After all, he is presumed to be innocent till found guilty.”, the court observed.

“Bearing in mind the above factors, we are of the view that the appellants have made out sufficient ground for suspension of sentence and release on bail upon such terms and conditions to be imposed by the Sessions Court.”,

Security Breach: HC Directs Not To Deploy Punjab Police For Security Of Judge Known For Exposing "Large- Scale Lapses Of Punjab Police"

The Punjab & Haryana High Court has directed not to deploy Punjab Police for security of a sitting HC judge who exposed "large-scale lapses on the part of investigating agencies" of Punjab and whose security was compromised in a recent incident.

The division bench of Chief Justice Sheel Nagu and Justice Anil Kshetarpal has ordered deployment of officers of a "neutral" police force and not Punjab Police, for securing the movement of the Judge. It observed,

" It is well known that large-scale lapses on the part of investigating agencies in the State of Punjab were exposed by various judicial orders passed by the learned Judge since last 12/24 months. This Court, thus, deems it appropriate that the security personnel dealing with security of the learned Judge ought not to be members of Punjab police force, but either of UT Administration or of State of Haryana. Deployment of a neutral police force but not of State of Punjab for securing the movement of the learned Judge shall certainly assuage the feeling of insecurity perceived by the learned Judge. "

The development comes in light of a September 22 incident where a man pulled out the gun of Judge's Personal Security Officer (PSO) at Golden Temple and ran towards entrance of the Golden Temple "with possible intent to harm the Judge". His advancement was thwarted by the PSO and in the scuffle that followed, the miscreant shot himself in the head.

The bench thus directed, "the personnel manning security of the learned Judge within and outside Chandigarh shall immediately be changed from Punjab Police to police personnel belonging to either UT Administration or the State of Haryana..."

In pursuance of a previous order, the Punjab Government had submitted a status report with regard to the nature and stage of investigation being conducted into the incident.

UT administration, Chandigarh also apprised the Court on enhancement of security of the Judge.

"From the stand taken by the State of Punjab with regard to progress in investigation, this Court finds that the same though lies within the exclusive domain of the State, but the threat perception has to be assessed as perceived by the learned Judge," the Court observed.

On investigation, the Court sought suggestion from UT Administration and Haryana Government for appropriate investigating officers not below the rank of Superintendent of Police of a district to conduct investigation in the incident.

The Court also impleaded Union of India through Secretary, Home Affairs and State of Haryana through its Home Secretary as parties to the petition.

ASG Satya Pal Jain assured the Court that all possible assistance within "four corners of law" will be provided.

The matter is listed for October 01, for further consideration.

Notary's Omission To Make Entry In Notarial Register Misconduct : Supreme Court

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In a case where a Notary was alleged to have notarized affidavit of the petitioner in his absence, and the petitioner denied filing the special leave petition, the Supreme Court recently observed that an act or omission on part of a Notary in violation of Rule 11 of the Notaries Rules 1956 would amount to misconduct, and such Notary would be unfit to be a Notary.

"...the Notaries Act 1952 regulates the profession of Notaries. The functions and duties of Notaries are enumerated in Section 8 thereof. The transaction of business by a Notary is contained in Rule 11 of the Notaries Rules 1956. Any acts or omissions thereof, on the part of the Notary would tantamount to misconduct, and the person complained against would be unfit to be a Notary", said the bench of Justices Bela M Trivedi and Satish Chandra Sharma.

For context, Rule 11 of the Notaries Rules stipulates how a Notary shall conduct his business. As per Rule 11(2), every notary shall maintain a Notarial Register in the prescribed Form.

In the present case, the concerned Notary did not make an entry regarding attestation of the petitioner's affidavit in the Notarial Register. The same was sought to be explained as follows:

"That the Deponent has attested the Affidavit dated 19.04.2024 of one Bhagwan Singh only after identifying the signature of Bhagwan Singh by an Advocate of this Hon'ble Court...However, the attested Affidavit was taken away by the Lawyer...and he did not turn up again, and that is why, the Deponent was not able to make entry in the Notarial Register.” 

Deeming it a misconduct on the Notary's part, the Court directed that the Registry send a copy of its order to the Bar Council of India and to the Government of India for appropriate action.

The Court was dealing with the case where the petitioner denied filing the SLP and claimed ignorance of advocates who represented him. The respondents had told the Court that the order impugned in the SLP put an end to criminal proceedings against the only witness in the 2002 Nitish Katara Murder case, and the SLP was filed in an attempt to continue the false case against him (without the petitioner's knowledge).

While the matter was being heard, the concerned Notary entered appearance and admitted the mistake of attesting the petitioner's affidavit in his absence, based on identification of his signatures by an advocate. Represented by Senior Advocate Sanjay Hegde, the Notary also tendered an apology to the Court.

On the day when the orders were reserved in the case, Hegde urged that the bench consider that there was no malice involved on the Notary's part. However, Justice Trivedi shot back that there was "clear dereliction of duty".

After going through the material, the Court observed in the judgment that the affidavit of the petitioner was notarized by the concerned Notary without the former being present before him and the same was submitted before the Court along with the SLP memo. Accordingly, it directed the Registry to forward a copy of the order to BCI and Govt. of India for appropriate action.

Other reports about the judgment can be read here.

Storage Of Child Pornography Without Deletion Or Reporting Indicates Intention To Transmit, Constitutes POCSO Act Offence :Supreme Court

Watching, Storing Child Pornography Is an Offence Under POCSO Act: Supreme Court

Setting aside a Madras High Court judgment which held that mere storage of child pornographic material without any intention to transmit the same was not an offence under the Protection of Children from Sexual Offences Act (POCSO Act), the Supreme Court on Monday (September 23) held that the storage of such material, without deleting or without reporting the same, would indicate an intention to transmit.

Observing that the High Court committed an "egregious error" in quashing the criminal proceedings, the  bench comprising CJI DY Chandrachud and Justice JB Pardiwala set aside the decision set it aside and restored the criminal prosecution.

Intention must be gathered from the circumstances

Justice Pardiwala read out the conclusions of the judgment as follows "

Section 15 of the POCSO provides for three distinct offences that penalise either the storage or possession of any child pornographic material when done with any intention to transmit, diplay etc as specified in sub-sections of the Section.

It is in the nature and form of an inchoate offence, which penalises the mere storage or possession of any pornographic material involving a child when done with the specific intent prescribed thereunder without requiring any actual transmission, dissemination etc.

Sub-section (1) of Section 15 penalises the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession with any person with an intention to share or transmit the same. The mens rea for the intention required under this provision is to be gathered from the actus reas itself, that is it has to be determined from the manner in which such material is stored or possessed and the circumstances under which the same was not deleted, destroyed or reported. To constitute an offence under this provision, the circumstance must sufficiently indicate the indication on the part of the accused to share or transmit such material.

As regards sub-section (2) of Section 15, the Court noted that to constitute an offence under section 15(2) of POCSO, apart from mere storage, there must be something more to show that the actual transmission or distribution of such material or facilitation etc. The mens rea for this offence has to be found from the manner in which the pornographic material was found to be stored or in possession.

Regarding Section 15(3), the Court noted that it penalised storage of child pornographic material for commercial purposes. To establish an offence under this provision, besides the storage, there must be some additional material to indicate that such storage was done with an intent to derive an economic gain or benefit. To constitute an offence under this Section, there is no requirement to establish that such gain or benefit actually was realised.

The Court held that sub-sections (1), (2) and (3) of Section 15 are independent of each other. If a case is not falling within one sub-section, that does not mean that it does not fall within the entire Section 15.

The judgment authored by Justice Pardiwala contains various guidelines and suggestions regarding the enforcement of the POCSO Act.

The Court also suggested the Parliament to amend the term 'child pornography' with the term 'child sexual exploitative and abusive material' and requested the Union to bring an Ordinance to bring about the amendment. The Court has directed the Courts to not use the term 'child pornography'.

The decision comes in a plea filed by Just Rights for Children Alliance. The coalition of NGOs has raised concerns over the potential impact of such a ruling on child welfare. 

Citizens Have 'Right To Free Speech', Not State's Burden To Ensure That They Only Know Truth: Bombay HC On IT Amendment Rules

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Summary of Legal Proceedings on Rule 3(1)(b)(v)

• The validity of Rule 3(1)(b)(v) of the Rules of 2021, amended in 2023, was upheld.
  
• Concerns were raised about the vagueness of terms like "fake," "false," and "misleading."
  
• The Supreme Court emphasized that due diligence by intermediaries is reasonable.
  
• The rule does not infringe on constitutional rights as it targets offensive information, excluding political satire and criticism.
  
• The court noted that restrictions on speech must align with Article 19(2) of the Constitution.
  

What was the conclusion regarding the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023?

The conclusion regarding the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 was that it was upheld and not liable to be struck down. The court found that the rule met the necessary legal standards and did not violate constitutional rights. However, there were differing opinions on its implications and potential vagueness.

Follow-up questions

What was the conclusion regarding the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023?

The conclusion regarding the validity of Rule 3(1)(b)(v) of the Rules of 2021 as amended in 2023 was that it was upheld and not liable to be struck down. The court found that the rule met the necessary legal standards and did not violate constitutional rights. However, there were differing opinions on its implications and potential vagueness.

The Bombay High Court's 'Tie-Breaker' Judge Justice Atul Chandurkar, while opining that the amendments to the Information and Technology Rules, 2021 are 'unconstitutional' held that the citizens only have the 'right to free speech and expression' but not a 'right to truth' and thus the State cannot claim to have a responsibility to ensure that citizens know only 'truth' and not 'fake or false information.'

Justice Chandurkar has given his opinion on a bunch of petitions led by comedian Kunal Kamra, challenging the amendments to the IT Rules, 2021, more specifically Rule 3(1)(b)(v), based on which the Central government could establish 'Fact Check Units' (FCUs) to identify "fake and misleading" information about its business on social media platforms.

The petitions were initially heard by a division bench of Justices Gautam Patel and Dr Neela Gokhale, however, the two judges, delivered a split verdict in January this year, due to which Justice Chandurkar was assigned the matter for a third opinion so that the issue could be finally decided.

In his opinion, pronounced on Friday, Justice Chandurkar agreed with the views of Justice Patel on almost all the points and differed with what Justice Gokhale held. The 'tie-breaker' judge held that the amendment was ultra vires to Articles 14 (right to equality) and 19(1)(a) (right to free speech).

"I would agree with the view of Patel, J that under the right to freedom of speech and expression, there is no further 'right to the truth' nor is it the responsibility of the State to ensure that the citizens are entitled only to 'information' that was not fake or false or misleading as identified by the FCU. Rule 3(1)(b)(v) seeks to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that are not in consonance with Article 19(2) of the Constitution," Justice Chandurkar observed in his order.

Amendment infringes right to equality on digital platforms

Further while holding that the amendment is against the 'right to profession' the judge noted that a piece of information that is not subjected to the rigors of Rule 3(1)(b)(v) of the Rules of 2021 when in the print media but is subjected to those rigors when in the digital form.

"There is no basis or rationale for undertaking the exercise of determining whether any information in relation to the business of the Central Government is either fake or false or misleading when in the digital form and not undertaking a similar exercise when that very information is in the print form," the judge held.

The judge while referring to the very aspect, held that the amendment would also infringe the right to equality of digital platforms as the amendment would not apply to information put on digital media but not when published in a newspaper.

In his 99-page judgment, Justice Chandurkar criticised the Central government for attempting to become an 'arbiter' in its own case.

The FCU, the judge noted, is to decide whether any information with regard to the business of the Central government is either fake or false or misleading and the Central government is the aggrieved party, the FCU constituted by it is required to decide which piece of information with regard to its business, is either fake or false or misleading.

"Taking into consideration all aspects including that the basis on whinse is the arbiter in its own cause. By contending that the decision of the FCU can be subjected to challenge before a constitutional Court, the same cannot be treated as an adequate safeguard and it would not be of much consequence. I am therefore inclined to agree with the view of Patel J that as the Central Government itself would constitute the FCU, it is an arbiter in its own cause," the judge observed.

No guidelines to be followed by FCUs

The judge further noted that the FCUs will identify information which is fake or false with regard to the business of only the Central government and not of the State governments.

Moreover, the judge found that there were no guidelines to be followed by the FCUs to ascertain or declare certain pieces of information as false or fake news.

"Absence of sufficient safeguards against the abuse of the Rules that tend to interfere with the fundamental rights are shown to be absent. Having found that the validity of the impugned Rule cannot be saved by reading it down as urged, the contention raised on behalf of the Union of India of having adopted the least restrictive mode to prevent the spread of 'fake or false or misleading information' in that regard cannot be accepted. I therefore find that even on the ground of proportionality, the impugned Rule cannot be sustained as observed by Patel J," the bench opined.

With these observations, Justice Chandurkar agreed with Justice Patel on almost all the issues before him and has now ordered the instant matter to be kept before a division bench so that the matter can be disposed of with a new and fresh opinion on the issues involved.

Motor Accident Claims - Contributory Negligence Of Driver Can't Be Vicariously Attached To Passengers Of Vehicle: Supreme Court

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The Supreme Court observed that the legal heirs of the deceased who died in the road accident can't be denied their rightful compensation on the ground that the driver of the car contributed to the accident.

Referring to a precedent, the Court observed, "The contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers to reduce the compensation awarded to the passengers or their legal heirs as the case may be."

As regards the present case, the Court said that no fault could be attributed to the driver of the car while colliding with the offending truck which was parked in the middle of the road without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle to warn the incoming vehicular traffic. 

In the present case, the appellant and four other persons (including her husband) were travelling in a four-wheeler that collided with an offending truck that was abandonly lying on the road without any whereabouts. Resultantly, except the appellant, other passengers died on the spot leading to the filing of a claim petitions under the Motor Vehicle Act, 1988 by the appellant and legal heirs of other deceased passengers. 

The Motor Accident Claims Tribunal (“MACT”) directed the owner of the offending truck and its insurer to jointly indemnify the appellants, however, reduced the compensation by 50% on the ground that the driver of the car had contributed to the accident because he failed to take appropriate preventive measures to avoid collision with the offending truck which was parked in the middle of the road. 

Being aggrieved by the High Court's decision to uphold the MACT's finding of a 50% reduction in the compensation awarded, the appellants preferred the appeal before the Supreme Court. 

Setting aside the concurrent findings of the High Court and MACT, the bench comprising Justices PS Narasimha and Sandeep Mehta observed that it would not be justifiable to reduce the compensation based on the fact that the driver contributed to the accident. 

Upon placing reliance on the case of Union of India v. United India Insurance Co. Ltd. 1997),( the Court said that “the contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers to reduce the compensation awarded to the passengers or their legal heirs as the case may be.” 

Moreover, the Court noted that the below courts committed an error upon holding that the driver of the vehicle involved in an accident had contributed to the accident. The court said that since the offending vehicle was parked on the road without taking due care and caution where there was not even the slightest possibility that the road would be illuminated by moonlight at the time of the accident therefore it would be improper to hold the deceased driver guilty for contributory negligence. 

“it is established beyond the pale of doubt that the offending truck was parked in the middle of the road without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic. This omission by the person in control of the said truck was in clear violation of law. The accident took place on a highway where the permissible speed limits are fairly high. In such a situation, it would be imprudent to hold that the driver of a vehicle, travelling through the highway in the dead of the night in pitch dark conditions, would be able to make out a stationary vehicle lying in the middle of the road within a reasonable distance so as to apply the brakes and avoid the collision.”, the judgment authored by Justice Sandeep Mehta said. 

According to the court, the courts below erred in concluding that it is a case of contributory negligence because to establish contributory negligence, some act or omission that materially contributed to the accident or damage should be attributed to the person against whom it is alleged. 

“Thus, the conclusion drawn by the Courts below that the driver of the car could have averted the accident by applying the brakes and hence, he was equally negligent and contributed to the accident on the application of principle of last opportunity is ex-facie perverse and cannot be sustained. Hence, it is a fit case warranting exercise of this Court's powers under Article 136 of the Constitution of India to interfere with the concurrent finding of facts.”, the court said. 

Accordingly, the court allowed the appeal and ordered as follows: 

“As a consequence, the deduction of 50% of compensation awarded to the appellant-claimants on account of contributory negligence, as directed by the Tribunal and affirmed by the High Court, cannot be sustained. The finding recorded by the Courts below on this issue is reversed as being perverse and unsustainable in the facts as well as in law. Resultantly, it is directed that there shall be no deduction from the compensation payable to the appellant-claimants who shall be entitled to the full compensation as assessed by the Tribunal and modified by the High Court by the impugned judgment.”