Compensation by MACT not subject to TDS : Madras HC

Keeping up the spirit of social jurisprudence evolved by writ courts in catena of cases beginning from Maneka Gandhi, the Madras High Court has ruled a commendable opinion. In Managing Director, TN State Transport Corp v Chinnadurai[1] the Court has declared compensation granted for motor accident not be subjected to TDS.

The facts leading to this permissive ruling, are straight:

“ Respondent in the instant Revision Petition  has filed an Execution Petition R.E.P.No.146 of 2010 before the Motor  Accident  Claims  Tribunal,  Dharmapuri  in  M.C.O.P.No.879  of  2006  wherein the amount that they are entitled to Rs.4,23,271/- and in the  memo filed before the Motor Accident Claims Tribunal, Rs.24,017/- has  been deducted for TDS.  R.E.P.No.146 of 2010 that has been filed was allowed by the Court below and accordingly, the bus belonging to the Revision Petitioner Corporation was attached and the Corporation was directed to deposit the balance amount of Rs.30,774.   Aggrieved by this order, the Petitioner has approached this Court”[2]

The Petitioner corporation submits that  as per Sections 194-A and 156 of  the Income Tax Act,  1961,  the  interest  portion  awarded  by  the  Motor  Accident  Claims Tribunal  should be subject  to  TDS.

The Question of Law

Q) Whether the provisions of the Income Tax  Act 1961,  and more specifically,  whether the compensation awarded  by the Motor Accident Claims Tribunal to the victim can be classified as  a taxable income under  the Income Tax law?.

The HC declines to classify compensation awarded by MACT to victim as a taxable income. To explain this conclusion the phrase compensation is first explained:

“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; remuneration  or  satisfaction  for  injury  or  damage  of  every  description;  remuneration for loss of time, necessary expenditures and for   permanent  disability if  such be the result; remuneration for   the  injury  directly  and proximately  caused  by  a  breach  of   contract  or  duty;  remuneration  or  wages  given  to  an  employee or officer.”[3]

On the other hand the Income-Tax Act, 1961 would apply when there has been generation of taxable income, which is not the case here. In reaching to this conclusion the court cited opinions of two High Courts

·         Court on its Motion Vs. H.P.State Co-operative Bank  Ltd & Ors 2014 SCC Online HP 4273

“13.While going through the said provisions of law, one  comes to the inescapable conclusion that the mandate of the  said provisions does not apply to the accident claim cases and  the compensation  awarded  under  the  Motor  Vehicles  Act  cannot  be said to be taxable income.  The compensation is  awarded in lieu of death of a person or bodily injury suffered in a vehicular accident, which is damage and not income.”(emphasis supplied)

14.  Chapters X and XI of the Motor Vehicles Act, 1988  provides  for  grant  of  compensation  to  the  victims  of  a  vehicular accident.  The Motor Vehicles Act has undergone a  sea change and the purpose of granting compensation under  the Motor Vehicles Act is to ameliorate the sufferings of  the  victims  so  that  they  may  be  saved  from social  evils  and  starvation, and that the victims get some sort of help as early  as possible.  It is just to save them from sufferings, agony and  to  rehabilitate  them.    We  wonder  how  and  under  what  provisions of law the Income Tax Authorities have treated the  amount awarded or interest accrued on term deposits made in  Motor Accident Claims Cases as income.  Therefore, the said  Circular  is  against  the  concept  and  provisions  referred  to  hereinabove  and runs  contrary  to  the  mandate  of  granting  compensation.

...23.   Having said so,  the Circular,  dated 14.10.2011,  issued by the Income Tax Authorities,  whereby deduction of  income  Tax  has  been  ordered  on  the  award  amount  and  interest accrued on the deposits made under the orders of the Court in Motor Accident Claims Cases, is quashed and in case any such deduction has been made by respondents, they are  directed to refund the same, with interest at the rate of 12%  from the date of deduction till payment, within six weeks from  today”.[4]

·         Further in New India  Assurance  Company  Ltd.  Vs.Sudesh  Chawla  and  others[5], the P&H HC ruled:

“award of compensation is on the principle of  restitution to place the  claimant in the same position in which he would have been loss of life  or  injury has not  been suffered and accordingly held that  the orders  calling upon the Insurance Company to pay TDS/deduct  Tds on the  interest part are not sustainable.”[6] (emphasis supplied)

In HC’s view the above line of thought is in consonance with the social objective of legislations like Motor Vehicles Act which provided compensation to victims as sort of solatium which is in form of remedy. A remedy cannot be treated as income for purposes of Income-Tax Act

Also when there a conflict of interpretation arises between a social welfare legislation and a taxation legislation, the latter must give way for former. Courts will always approve interpretation which involves larger public interest which is in line with ensuring public good.

moreover the courts avoid any pedantic or hypertechnical understanding of issues to rule something which is against larger social interest

All these factors move on to one stable conclusion that as far as compensation awarded to victims by MACT is concerned it cannot be treated as taxable income  for purposes of Income-Tax Act, 1961

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[1] Decided on June 2^nd 2016

[2] Managing Director, TNSTC  v Chinnadurai [CRP (PD) No 1343 of 2012; decided on June 2, 2016]

[3] R.Ramanatha Aiyar law dictionary referring to Black’s Law dictionary

[4] Supra Note 3

[5] CR.No.430 of 2015 (O&M)

[6] Supra Note 3

Transfer of Malice[Sec 301 IPC]: Intention to Cause death completes all

Section 301- Culpable homicide by causing death of person other than person whose death was intended-

The doctrine requires following:

If a person by doing anything which he intends/knows to be likely to cause death commits culpable homicide by causing death of any person Whose death he neither intends nor knows himself to be likely to cause Culpable homicide committed by offender is of description of which it would have been If he had caused the death of the person whose death he intended/knew himself to be likely to cause

Thus offender must have intention/knowledge to cause death of someone

+

He kills somebody else whose death he had not intended/known

Such offender would still be convicted under same degree of CH, he would have been if he would have succeeded in killing the person he intended/knows to kill.

The provision is founded on a doctrine called by Hale and Foster, a transfer of malice. Others describe it as a transmigration of motive. Coke calls it coupling the event with the intention and the end with the cause. If the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out.

When any factual matrix wherein death has been caused, the 1^st step is to ascertain whether the act of the offender has been the cause of death, thereafter inspection moves to determine whether the act of accused falls under Sec 299 or Sec 300. If it is affirmed that the act does fall in any one of these sections than further dissection has to be done.

 Sec 301 merely fixes the liability either under Sec 299 or Sec 300. What is to be seen is the intention/knowledge of accused in committing act which would have led to death of someone. The  section underlines that the accused did have the intention/knowledge  to commit death, it is only the intended person did not die. Therefore what is primarily to be ascertained is whether the act of accused falls under Sec 299 or 300.   

In case of transfer of motive the most crucial aspect is highlighted by Supreme Court in Shankarlal Kachrabhai & Ors vs State Of Gujarat (AIR 1965 SC 1260)

“Under the section if A intends to kill B, but kills C whose death he neither intends nor knows himself to be likely to cause, the intention to kill C is by law attributed to him. If A aims his shot at B, but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C, whether within sight or out of sight, under S. 301, A is deemed to have hit C with the intention to kill him. What is to be noticed is that to invoke s. 301 of the Indian Penal Code A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of C.” 

Most recently in a case SC again invoked this doctrine to nail the accused [St of Rajasthan v Ram Kailash Decided on Jan 28, 2016]

Two men were going on a motorcycle. Suddenly the pillion driver noticed that accused was firing on them while chasing on other motorcycle. The pillion rider succumbed to injuries after identifying the accused in DD.

The HC has noticed that  the  “ gunshot injury was of-course of such a nature as opined by the doctor was likely to cause death and was fired with an intention, but the offender was not knowing that as to whom he is causing harm out of the two on the motorcycle.”

The HC convicted the accused under Sec 299 secondly punishable under Sec 304 para 1 degrading from punishment inflicted by lower court under Sec 302 IPC.

The SC reversed the conviction ordered by HC, thereby upholding the 302 IPC charge awarded by trial court. The SC emphasized that the accused was fully conscious of the fact that his act of firing would result in death and hence was fully aware of ‘likelihood of death’.

Further the evidences fix culpability under sec 302. There was eye-witness account by driver of motorcycle on which victim was driving, than there was DD by victim himself, also empty bag of 12 bore cartoos was recovered from accused. All these confirm that accused had complete predetermined intention to kill and even though he may not be knowing as to whom he was firing, still by effect of Sec 301 and his intention to kill evident by circumstances lead to his conviction under sec 302

In all, Sec 301 in a rare asset which aims at fixing the responsibility when death is caused.  

Emperor vs Mushnooru Suryanarayana Murthy[ Madras HC 1912]

The Murthy case is considered as leading authority on Sec 301  

The accused with intention of killing A gives him some halva mixed with poison. A eats some of halva and throws the rest. The thrown part is picked up and consumed by R aged 8 or 9. Due to its consumption R dies but A though severely effected from poison, recovers.  

The question before court was whether accused is responsible for death of R.

The majority opinion convicted the accused for causing death of R. and this was in terms of Sec 301 IPC as death was caused and accused had intention to kill, though not R. An English case of Agnes Gore is cited by Benson J

“ In that case Agnes Gore mixed poison in some medicine sent by an Apothecary, Martin, to her husband, which he ate but which did not kill him, but afterwards killed the Apothecary, who to vindicate his reputation, tasted it himself, having first stirred it about. " It was resolved by all the Judges that the said Agnes was guilty of the murder of the said Martin, for the law conjoins the murderous intention of Agnes in putting the poison into the electuary to kill her husband, with the event which thence ensued; i.e., the death of the said Martin; for the putting of the poison into the electuary is the occasion and cause ; and the poisoning and death of the said Martin is the event, quia eventus est qui ex causa sequitur, et dicuntur eventus quia ex causis eveniunt, and the stirring of the electuary by Martin with his knife without the putting in of the poison by Agnes could not have been the cause of his death." (King's Bench 77 English Reports, p.853 at page 854)”

Thus emphasis is laid on final ensuing of event, i.e., death. Bensen J further explained the operation of Sec 301

“ 9. The section does not enact any rule not deducible from the two preceding sections, but it declares in plain language an important rule deducible, as we have seen, from those sections, just as an explanation to a section does. The rule could not well be stated as an explanation to either Section 299 or Section 300 as it relates to both. It was, therefore, most convenient to state the rule by means of a fresh section., The rule makes it clear that culpable homicide may be committed by causing the death of a person whom the offender neither intended, nor knew himself to be likely, to kill, a rule which though it does not lie on the surface of Section 299, yet is, as we have seen, deducible from the generality of the words '' causes death" and from the illustration to the section ; and the rule then goes on to state that the quality of the homicide, that is, whether it amounts to murder or not, will depend on the intention or knowledge which the offender had in regard to the person intended or known to be likely to be killed or injured, and not with reference to his intention or knowledge with reference to the person actually killed, a rule deducible from the language of the Sections 299 and 300 though not, perhaps, lying on their very surface. The conclusion, then, at which I arrive is that the accused in this case is guilty of murder as defined in Sections 299 to 301, Indian Penal Code.”

Though in Murthy court also drew from Sec 299/300 where the actus is ‘causing death’ and such ‘causing death’ is ‘with the intention of causing death’.

Since in all facts discussed above death has been caused and accused certainly possessed intention/ knowledge that death of victim would be the natural consequence of his acts, he cannot escape liability but since the person dead is not the one accused intended to kill his culpability shifts to sec 301.  

“It is sufficient if death is actually, even though involuntarily, caused to one person by an act intended to cause the death of another. It is the criminality of the intention with regard to the latter that makes the act done and the consequence which follows from it an offence.”

Extent of right to Self-Defence: Sec99 IPC

Q) A and B were both security guards posted outside the home of a senior army officer, Mr X. They often used to exchange hot words with each other in context to the other. On the day of holi festival both of them had a verbal exchange due to the fact that both wanted to go to home early for festival that led to altercation b/w the two, both of them instantaneously aimed their revolvers at each other respectively. ‘C’ who was also on duty with them intervened and pacified both of them. Both agreed to lower their weapons respectively. The moment ‘B’ noted that ‘A’ had lowered his revolver, he immediately fired at ‘A’ and killed him. On being tried ‘B’ was awarded death sentence. However, on appeal the HC acquitted ‘B’ on the plea of self-defence. The state intends to go in for appeal in the SC against the decision of HC. Advise in light of the case-law on the subject

 On perusal of the facts provided following are crucial:

a) It is a recorded fact that both A and B had no liking for each other and they would often engage in verbal spat

b) ‘B’ act of firing upon A was a  conscious fact for a simple reason that he waited for ‘A’ to lower his weapon. And seeing ‘A’ do so he fired the shot killing A

For completion of offence under Sec 300 culpable homicide of the degree mentioned in any of the four clauses of Sec 300 must be proved. The first three are at higher level as ‘intention’ of offender in causing death must be proved whereas for fourthly ‘knowledge’ of offender in causing death must be shown. Besides these other attributes too form part of these clauses

In the giving circumstances there is no doubt in the fact that B had garnered intention to kill A. this is clear from the fact that both A and B often entered in hot verbal exchanges in some context or other. The plea of self-defence has no application in this case because it is a noted fact that A had lowered his gun after which B shot him. This subsequent conduct of B precisely demolishes the self-defence plea because Sec 99 para 4 (IPC ) lays :

“ the right of self-defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence”

When A had lowered his gun the danger on B’s life ceased but B still had grudge against A which resulted in him firing at A and killing him. There cannot be a malicious or vindictive intent in act of self-defence.

Even Sec 100 under which the right of private defence to cause death is included, the restricitons are explicit: 

" When the right of private defence of the body extends to causing death.—The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—

(First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault"

There was no resonable apprehension on B's life or limb when A had lowered his pistol, still B shot A.  

In Darshan Singh v State of Punjab [(2010) 2 SCC 333] it was stated:

“ When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also

settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.”

 In Mahabir Choudhary v. State of Bihar [(1996) 5 SCC 107] where accused were alleged to have exceeded their private defence against property…..“The court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing”

Herein reasonable apprehension of death or grevious hurt upon body of B ceased as soon as A lowered the pistol after tempers were pacified at C behest. But  B acyions dilute his stand that he shot in order to protect himself.

Sec 300 Excp 4

Even if the plea of exception 4 of Sec 300 is taken by B, the same shall hold no good. The exception states:  

 “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

The above exception is applied on th premise that even if it is assumed that fight between A nd B was a sudden fight in heat of passion as both wanted to go home early for Holi. The exception requires that offender must not have taken undue advantage, which certainly is not the case here, B had fired upon A when he had lowered the gun which is a action emerging from violent intention aimed at ending the life of A. Moreover the heat of passion had cooled down as A had lowered his gun.

In State of MP v Shiv Shankar [Sept 2014 SC] An altercation took place between accused and complainant party.   The accused went inside his house, brought the licensed gun of his brother and fired a shot hitting the deceased on the stomach. Apart from the accused, acquitted co-accused and others had Kattas and 12 bore single barrel guns. The acquitted co- accused also fired in the air. The deceased succumbed to his injuries. Here SC convicted the accused for murder

“It is clear from the case of the prosecution mentioned above that the accused first slapped the complainant which was followed by verbal abuses and thereafter the accused brought the licensed gun and fired at the deceased, who died. It was, thus, a voluntary and intentional act of the accused which caused the death. Intention is a matter of inference and when death is as a result of intentional firing, intention to cause death is patent unless the case falls under any of the exceptions. We are unable to hold that the case falls under Exception 4 of Section 300, IPC as submitted by learned counsel for the respondent. Exception 4 is attracted only when there is a fight or quarrel which requires mutual provocation and blows by both sides in which the offender does not take undue advantage. In the present case, there is no giving of any blow by the complainant side. The complainant side did not have any weapon. The accused went to his house and brought a gun. There is neither sudden fight nor a case where the accused has not taken undue advantage.

In any case, the pleas of  accused do not withstand the scrutiny of self-defence principles. And HC was not justified in acquitting B on this ground. The conviction under Sec 302 must be restored, though the punishment could be lowered.

In Darshan Singh’s case following principles were evolved regulating the use of self-defence plea under IPC:

“(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one   who    is   suddenly    confronted   with    the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co- terminus     with       the   duration     of     such   apprehension.

 (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.”

Rash Driving Cases: When Punishment under Sec 304 II applied?

•       When a person through his rash or negligent act commits death of another than he is made punishable under Sec 304A
•       And when such act results in either endangering human life or causing hurt or causing grievous hurt than he could be made punishable under cluster of sec 336 to sec 338
•       In category of rash and negligent acts, is also covered driving or riding any vehicle on public way in a manner which is rash and negligent to the extent it endangers human life. Such driving or riding is punishable under Sec 279 IPC.

 In any case, IPC provides ample provisions to nail the accused, but much rests on investigative agencies and able prosecution. High and mighty may still go scot free if they press the right buttons.

It was in Alister Anthony Pareira v St of Maharashtra [(2012) 2 SCC 648] that a well-crafted issued was urged before the apex court: whether a person can be made liable under Sec 304 II and Sec 338 IPC together and is not such a framing mutually destructive ?

Before the charge is further expounded let’s have a brief of factual situation:

Appellant herein Mr Alister Pareira is accused of driving in rash and negligent manner and with knowledge that people were asleep on footpath rammed his car over a pavement. His act resulted in death of seven persons and injuries to eight persons. It is an established fact that he was fully familiar with the road on which he was driving and that he as under influence of alcohol.

 Issue:

It has been stressed by the defence that “the appellant was charged for the above offences for committing a single act i.e., rash or negligent for causing injuries to eight persons and at the same time committed with knowledge resulting in death of seven persons which is irreconcilable and moreover that has caused grave prejudice to the appellant resulting in failure of justice.”

For sake of convenience it is to be recalled that for punishment under Sec 304 II  accused must have committed culpable homicide not amounting to murder and the act done by him was done with the knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death. Thus the act should fall under Sec 299 clause 4. Though the knowledge attribute is also covered mentioned in Sec 300 Fourthly but facts of this case do not attract other requirements of Sec 300 Fourthly

Suffice it say following must be shown to bring any given set of facts under Sec 299 Clause 4:

•  Death must be caused;
• Act done was with knowledge that he (accused) is likely by such act to cause death

On the contrary Sec 338 has no knowledge element. It states:

“338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

Similarly Sec 279 also omits any specific mention of knowledge element:

“279. Rash driving or riding on a public way.—Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with im­prisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

So also Sec 304A: “Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

 The above three sections [including Sec 336, 337] do not require proof of either intention or knowledge in committing rash and negligent act and thus at lower footing from Sec 299 which requires either intention or knowledge to be proved with actus of accused. In similar terms following would be requirements for culpability in under any of above three sections:

“ (1) death of human being; (2) the accused caused the death and (3) the death was caused by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description.”

The absence of knowledge element in sec 338 and its must presence for conviction under Sec 299 makes it appear to be self-destructive charges, if pleaded for one set of facts. However in Alistar Pareira the SC has held otherwise. The Court states:

“In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 IPC.”

“41. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC.

42. There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC.”

In  State Tr.P.S.Lodhi Colony,New Delhi vs Sanjeev Nanda [(2012) 8 SCC 450]where the accused had through his high speed vehicle killed six persons. The accident was of nature that 2 persons who had come under the car were dragged upto a certain distance.

Hereto the State charged the accused with Culpable Homicide punishable under Sec 304 II. This was held valid charge considering the facts and circumstances of the case. ‘Knowledge’ was attributed to accused as he was driving in inebriated condition after excessive drinking and without any driving license. The car was at high speed and after hitting the persons he left them unattended, with bodies scattered all around. Such inaction would rightly indicate sufficient knowledge of accused about the crime he had done and was therefore convicted under 304 II and not 304 A. the Court reiterated Alistar Pareira: “ The principle mentioned by this court in Alister Anthony Pareira (supra) indicates that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a licence in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause death of the pedestrians on the road.”

The opinion of SC in Alistar Pareira has been basis of conviction in many cases where death was caused by rash and negligent driving by accused. It has been the jurisprudence of court that such cases of reckless actions must be dealt sternly. This is to send out a strong message that life and limb of pavement sleepers or pedestrians is as precious as that of any other person. Cases of drunken driving and ramming on-road people shake the societal conscience and accused in such cases must discharge the onus that they lacked knowledge or intention while doing such acts. By claiming benefit of inebriated condition one cannot absolve himself of such heart-rending crimes.

Res Judicata: Some Aspects

Under Sec 11 of Civil Procedure Code, 1908 the principle of Res Judicata is embodied. Herein the court is barred from trying suit or issue which has been previously decided.  For invoking this rule following requirements must be proved:

a) the matter should be directly and substantially in issue in former suit;

b) between same parties or their LR’s litigating under same title;

c) in a court competent to try such subsequent suit;

d) and has been heard and finally decided by such court

Res Judicata as is known is legislative avatar of following common law maxims:

“(1) no man should be vexed  twice for the same cause, (2) it is in the interest of State that there should be an end to a litigation and (3) a judicial decision once it has  attained finality must be accepted as correct between the parties” [Satyendra Kumar & Ors v Raj Nath Dubey & Ors (May 2016 Supreme Court) ]

First basic requirement in a plea of Res Judicata is that there should be identical Cause of Action in both suits (matter should be directly and substantially in issue in former suit). The congruency  between issues is determined on myriad platforms of which Cause of Action is one, the others will be viz, same titles, same parties, same subject-matter.

Cause has been explained in Kunjan Nair v Narayanan Nair [(2004) 3 SCC 277]: "cause  of  action  means  the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for  the maintenance of  the suit,  including not only the infraction of the right, but the infraction  coupled with the right itself. Compendiously the expression  means  every  fact  which  would  be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.  Every fact which is necessary to be proved,  as  distinguished  from every  piece  of evidence which is necessary to prove each fact, comprises in 'cause of action'."

It is also mandatory to show that there was 'hearing' and court has rendered a 'decision' on such issues. Even a ex-parte hearing could be termed as sufficient for purposes of Sec 11 if due notices were served on defendants and sufficient opportunity for afforded to them to present their case, despite of which they fail to present their case.

·         Whether determination on pure issues of law could operate as Res Judicata in respect of some other properties which were not subject to ‘former proceedings’?

No, In Mathura Prasad v Dossibai JeeJeebhoy [AIR 1971 SC 2355] it was stated:

“10. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness  or  otherwise  of  the  earlier  judgment.  The matter in issue, if it is one purely of fact, decided in the earlier  proceeding  by  a  competent  Court  must  in  a subsequent  litigation  between  the  same  parties  be regarded as  finally  decided  and cannot  be  reopened.  A mixed question of law and fact determined in the earlier proceeding  between  the  same  parties  may  not,  for  the same reason,  be questioned in a subsequent  proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties  where  the  cause of  action is  the  same,  for  the expression “the matter in issue” in Section 11 of the Code of Civil  Procedure means the right  litigated between the parties  i.e.  the  facts  on  which  the  right  is  claimed  or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of  the  Court  sanctioning  something  which is  illegal,  by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.”

Thus even ‘question of law’ can be of two types:

(a) Which is related to ‘interpretation of statute’ to any particular fact situation – decision on this is not subject to change;

(b) Which is related to any ‘formal defect’ (ex. error in exercise of jurisdiction etc)  - decision on this is not subject to Res Judicata and can be challenged   

·         In Saroja  v Chinnusamy (Dead) by Lrs & anr [(2007) 8 SCC 329] following issues emerged:

(1)  whether  an ex  parte  decree  could  attract  res  judicata; and

 (2)  whether the appellant could be held bound by the  judgment  in the earlier suit  when he was not a party to the same  although she had acquired title from the person who as a party had  suffered the ex parte decree.

Both the issues were decided against the appellant of that case by holding that an ex parte decree was as good  as a decree passed after contest and such ex parte decree, unless set  aside  on the  ground  of  fraud  or  collusion  will  not  only  bind  the  original  parties to the former suit  but also other parties who claim  under any of them and seek to litigate under the same title.

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·         Test for determining whether subsequent suit is barred by RJ

In Jaswant Singh v Custodian of evacuee property [(1985) 3 SCC 648] a simple test was laid to determine whether subsequent suit is barred by RJ or not: “…In order that a defence of  res judicata may succeed it  is necessary to show that  not  only the cause of action was the same but also that the plaintiff  had an opportunity of  getting the relief  which  he  is  now seeking in  the  former proceedings.  The test  is whether  the claim in the  subsequent  suit  or  proceedings  is  in  fact founded upon the same cause of  action which was  the  foundation  of  the  former  suit  or proceedings….”

·         In a court competent to try such subsequent suit v Exp VIII to Sec 11

Besides other requirements Sec 11 requires that party pleading Res Judicata must show that former court was competent to try subsequent suit. Ex Suit X was decided by Court 1. In Suit Y  before Court 2 a party claims RJ upon similarity of issues with Suit X. Now as per this requirement it is necessary to prove that Court 1 is competent to conduct trial of Suit Y.

However Exp VIII limits this requirement: If Court 1 above is court of limited jurisdiction and competent to decide issues under Suit X than such decision shall operate as RJ notwithstanding that Court 1 is a limited jurisdiction court having no competency to try Suit Y. 

[Court of limited jurisdiction: Such court which is restricted to preside over any particular subject-matter (as Special court under Protection of women under Domestic violence Act) or which is restricted by pecuniary limits]

Thus if Suit X above was between H & M regarding loan of Rs 20,000 and was decided by Court 1 which has pecuniary limit of Rs 1,00,000. than merely this limitation would not restrict application of RJ upon similar issues in Suit Y for loan of Rs 1 crore between H & M which is before Court 2 having pecuniary limit of Rs 1 crore

This is in furtherance of spirit of Res Judicata maxims (2) & (3) laid in  Satyendra Kumar & Ors v Raj Nath Dubey & Ors provided above

Negligence: Damages under Strict Liability [Vohra RajakBhai & Ors v St of Gujarat & Ors (2016)]

Appellants herein had berry trees planted on their land. From a nearby dam constructed and maintained by respondents 60,000 cusecs of water was released which destroyed the plantation. Respondents blame the heavy downpour which resulted in water levels of dam reaching alarming levels due to which water had to be released. Else the rising water level would have breached the dam.  It is the case of appellants that respondents had been negligent and had they controlled the alarming level of water keeping in mind the coming monsoon season no such sudden action was needed.

Thus appellants are claiming damages for loss of crop on account of sheer negligent attitude of respondents. Whereas respondents have raised the defence of ‘act of god’ pleading that heavy rains forced them for sudden heavy release of water.

Evidences before Trial Court and Court of appeal (HC) with their decision

Not much evidences have been lead by parties before the trial court and serious deficiencies have been pointed by SC :

• Respondents have stored more than retention capacity of water in dam during month of June 1997 knowing fully well that in coming monsoon season water level would increase
•  TC appointed court commissioners confirmed the loss of appellants through their reports adduced with photographs. They have noted that due to the alleged floods 1500 boar trees were uprooted and submerged in water

Both TC and HC decreed in favor of respondents specifically labeling the loss due to ‘act of god’

“The trial court also found that land of the appellants is situated adjacent to the river bank and, therefore, due to heavy rain, the river could have overflown resulting in entering of  the water into the fields of the appellants in any case. It further held that action of the respondents in releasing the water from dam was a prudent action keeping in view that minimum damage is caused to the public at large because of the heavy rains, which is dependent upon the nature.”

Pointing towards the lack of evidence by appellants in support of their case (as no exact determination of loss, price of produce allegedly destroyed) their prayer was dismissed by trial court.

HC ruled that “it  was a force majeure  circumstance  and,  therefore,  the  appellants  were  not entitled to any compensation.”

Issues before SC

• Whether the act of releasing the water from the dam would amount to negligence on the part of the respondents or it was inevitable due to heavy rains and is to be treated as an 'act of God'?
• If the answer to the aforesaid question is in the affirmative, whether the appellants would be entitled to some compensation even in the absence of proof of actual/exact damage caused?

The Case of Strict Liability: Rylands  v Fletcher (1868)

In Rylands v Fletcher the principle is well known:

a) If a person on his land brings and keeps something which is likely to do mischief upon escape, such thing must be kept in peril;

b) And if he does not do so resulting in escape of that thing;

c) The person would be prima facie answerable for damage which is the natural consequence of its escape

Blackburn J further expands his principle by stating: “The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or  whose mine is flooded by  the water  from his neighbour's reservoir, or whose cellar is invaded by the  filth  of  his  neighbour's  privy,  or  whose habitation  is  made  unhealthy  by  the  fumes  and noisome vapours of  his neighbour's alkali  work is damnified  without  any  fault  of  his  own;  and  it seems but reasonable and just that the neighbor who has brought  something on his  own property which was not naturally there, harmless to other so long as it is confined to his own property, but which he  knows  to  be  mischievous  if  it  gets  on  his neighbour's, should be obliged to make good the damage which ensues if  he does not  succeed in confining it to his own property.  But for his act in bringing it  there no mischief  could have accrued, and it  seems but  just  that  he should  at  his  peril keep it  there so that  no mischief  may accrue,  or answer  for  the  natural  and  anticipated consequences.”

Later on in Rickards v Lothian [(1913) AC 263] a clarification was made to above principle that there should be “non-natural use of land” to attract liability under strict liability. Thus “It is not every use to which land is put that brings into play this principle.  It must be some special use bringing  with  it  increased  danger  to  others,  and must not merely be the ordinary use of the land or such a use as is proper for the general  benefit  of the community.”

In Read v J Lyons and Co [(1947) AC 156 (HL)] a further addition was made that there should be ‘escape of thing’ from land of defendant. If no such escape of thing is shown by plaintiff he cannot secure relief under this rule.

Various improvements were made by Indian courts when strict liability principle was applied in national circumstances. Some diluted the above rule of ‘non-natural use of land’ being crucial ingredient to strict liability. One was St of Punjab v Modern Cultivators (AIR 1965 SC 17) where damages were sought for overflowing of water from breach of canal. It was held that construction of canal was natural use of land but this finding did not constrict the court in awarding damages.

In Jay Laxmi Salt Works (Pvt) Ltd v St of Gujarat [(1994) 4 SCC 1] “ damage was caused by overflow of water from a reclamation bundh constructed by the State of Gujarat for reclamation of vast area of land from saltish water of sea.  In this case, this Court held the Government responsible as the said act was treated as violation of public duty and negligence which lay in defective  planning  and  construction  of  the  bundh.   On  that premise,  damages  were  awarded.”

The Court also remarked: “In  a  welfare society construction of dam or bundh for the sake of community is essential function and use of land or accumulation of water for the benefit  of society cannot  be  non-natural  user.  But  that  cannot absolve the State from its duty of being responsible to its citizens for such violations as are actionable and  result  in  damage,  loss  or  injury.  What  is fundamental is injury and not the manner in which it has been caused.”

ACT OF GOD

The phrase is well-known exception to principle of strict liability. In words of SC “  Generally, those  acts  which  are occasioned by  the elementary  forces  of nature, unconnected with the agency of man or other cause will come under the category of acts of God……………………What  is  important  here  is  that  it  is  not necessary that it should be unique or that it should happen for the. first  time.It is enough that it is extraordinary and such as could not reasonably be anticipated.”

In S. Vedantacharya  &  Anr.  v.  Highways  Department  of  South Arcot & Ors. [(1987) 3 SCC 400] the situation was “State  Government  erected  a  reservoir  adjoining the plaintiff's land in order to provide drinking water facilities  to  a  village  in  the  State.   The  State acquired a part of the plaintiff's land for the purpose of constructing a channel for carrying the overflow of water from the reservoir to a Nalla which was at a distance of about 1500 feet from the waste-weir of  the reservoir.   This  channel  was however  not constructed except to the extent of 250 feet on the side of  the  Nalla.   Due to very heavy rainfall  the water  from  the  reservoir  overflowed  into  the waste-weir and thereafter flowed over the plaintiff's land, causing considerable damage to the land and the crops standing thereon.”

It was held: “It  was held  that  the  fact  that  the  danger  materialized subsequently  by an act  of  God was not  a matter which absolved the State  from its  liability  for  the earlier negligence in that no proper channel for the flow or overflow of water from the waster-weir was constructed by it in time; that the act of the State in constructing the reservoir for the supply of drinking water to its citizens at best could be considered a welfare  act  and  not  an  act  in  its  capacity  as  a sovereign; and that, therefore, the State was liable in negligence for the loss caused to the plaintiff.”

Thus what would lead to decide the present factual matrix was whether damage to appellant was due to some inevitable accident or unavoidable accident which could not have been prevented by ordinary care and caution

The respondents have specifically refuted the appellants argument that they failed to take pre monsoon season measures to keep check upon level of water. But this is not supported by any evidence. There is nothing to show that “  that the water  in the dam was kept at reasonable and proper level to take care of normal rains; the rains in the said monsoon season were more than the ordinary rains which could not  be foreseen; and that the public purpose was served in taking the decision to release the water which prevented larger catastrophe.” 

In age of advance meteorological equipment and satellite data where volume of rainfall could be roughly predicted, it was not prudent for respondents to further  unsubstantiated arguments that release of water was forced due to sudden heavy rains. Hence they were held responsible for negligent conduct and loss due to appellants