Doctor not called guilty of negligence
In Jacob Mathew v. State of Punjab and another, this Court held that the court should be circumspect before instituting criminal proceedings against a medical professional. This Court has held that negligence comprises of (i) a legal duty to exercise due care on the part of the party complained of; (ii) breach of the said duty; and (iii) consequential damage. It was held that in cases where negligence is alleged against professionals like Doctors the court should be careful before instituting criminal proceedings. It is not possible for any doctor to assure or guarantee that the result of treatment would invariably be positive. The only assurance which a professional can give is that he is professionally competent, has requisite skill and has undertaken the task entrusted to him with reasonable care.
Dr. Sou Jaishree Ujwal Ingole v. State of Maharashtra, 2017 (173) AIC 50 (SC).
Conveyance deed executed 104 years ago, cannot be fraudulent
Hon’ble M.B. Lokur and Deepak Gupta, JJ., have held that after 104 years of the execution of the original conveyance deed, and after acquiring various lands out of this very estate, we cannot permit the State to urge that the original conveyance deed is fraudulent or that the subsequent transfers are all collusive and, as such, void. There are many bona fide purchases and, even otherwise, we are not inclined to hold that the original transaction was invalid. Furthermore, a bare perusal of section 67 clearly indicates that it only applies to public roads, streets, lanes, etc. or to such lands which are not the property of individuals, or an aggregate of persons legally capable of holding property. A dispute of title of property between the State and individuals cannot be decided in terms of section 67. Merely because the Secretary of the Karnataka Public Service Commission has, in his complaint, opined that the deed of conveyance executed more than 100 years back was fraudulently claimed to be in favour of the First Princess, was not sufficient ground to proceed under section 67. It could not be held that all subsequent transactions relating to the estate property were fraudulent. Fraud must be pleaded and proved; it cannot be presumed. Therefore, we are of the view that the learned Single Judge was justified in holding that the proceedings under section 67 were without jurisdiction. We are also of the view that the proceedings are beyond the period of limitation.
M. Sanakaranarayanan v. Deputy Commissioner, Bangalore, 2017 (173) AIC 93 (SC).
Trust is not a person, therefore not a consumer
In these appeals a very short question has arisen, namely, whether a complaint can be filed by a Trust under the provisions of the Consumer Protection Act, 1986 (for short, ‘the Act’).
It is quite clear from the above definition of a complainant that it does not include a Trust. But does a Trust come within the definition of a consumer?
The Hon’ble M.B. Lokur and P.C. Pant, JJ., have held that a reading of the definition of the words ‘complaint’, ‘complainant’ and ‘consumer’ makes it clear that a Trust cannot invoke the provisions of the Act in respect of any allegation on the basis of which a complaint could be made. To put this beyond any doubt, the word ‘person’ has also been defined in the Act and section 2(m) thereof defines a person as follows :
(m) “person” includes,—
(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not.
On a plain and simple reading of all the above provisions of the Act it is clear that a Trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act.
In view of the above, we are of the opinion that the National Commission was quite right in holding that the complaint filed by the appellant Trust was not maintainable.
Pratibha Pratisthan v. Canara Bank, 2017 (173) AIC 103 (SC).
Law of place of arbitration would apply to arbitration
Hon’ble S.A. Bode and Ashok Bhushan, JJ., have held that the relationship between the seat of arbitration and the law governing arbitration is an integral one. The seat of arbitration is defined as the juridical seat of arbitrators themselves as the case may be.
It is clear that the place of arbitration determines the law that will apply to the arbitration and related matters like challenges to the award etc., see Eitzen Bulk A/S.
The significant determinant in each case is the agreement of the parties as to the place of arbitration and where in fact the arbitration took place.
If in pursuance of the arbitration agreement, the arbitration took place outside India, there is a clear exclusion of Part-1 of the Arbitration Act. In the present case, the parties expressly agreed that the arbitration will be conducted according to the ICC Rules of Arbitration and left the place of arbitration to be chosen by the ICC. The ICC in fact, chose London as the seat of arbitration after consulting the parties. The arbitration was held in London without demur from any of the parties. All the awards i.e. the two partial final awards, and the third final award, were made in London and communicated to the parties. We find that this is a clear case of the exclusion of Part-I vide Eitzen Bulk A/S, and the decision referred to and followed therein.
Imax Corporation v. E-City Entertainment (I) Pvt. Ltd., 2017 (173) AIC 68 (SC).