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Soli Sorabjee ‘the sentinel of constitutional rights’

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Erstwhile Attorney General of India and an eminent and victorious jurist Soli Jehangir Sorabjee was born on March 9, 1930, in the then called Bombay (now Mumbai). He passed away on April 30, 2021, at a hospital in New Delhi. As stated by his son, Hormazd Sorabjee the cause of his death was coronavirus. His roots were raised from a well-off Parsi family. At the age of 20 Soli Sorabjee lost his father, Jehangir Sorabjee who was a distinguished businessman while his mother Khorshed Sorabjee was a housewife. Even though he was born in a moneyed family he was never lured by the business career. He studied at St. Xavier’s College, Mumbai, and obtained his law degree from Government Law College, Mumbai. He tied the knot with Zena Sorabjee and had four children. His daughter Zia Mody is the only one to choose law as her career and she is currently the founding partner of AZB & Partners which is India’s one of the most significant corporate law firms. Sorabjee is also survived by three sons i.e., Jehangir who by profession is a doctor, Hormazd who is a car expert, and Jamshed.

CAREER

Mr. Sorabjee commenced his professional practice in the field of law in 1953 in the Bombay High Court. Being a great legal scholar, as soon as Sorabjee entered the bar, his learning, and eloquence made him eminent. He possessed clear discernment and deep learning of law. Sorabjee had a penchant for heated debating, he served the nation as a legal professional for decades. He was well versed with constitutional law and had a resolute faith in the constitutional ideals peculiarly those relating to the freedom of speech and human rights. He was a highly confident speaker who spoke with utmost accuracy, in-depth knowledge of law, and credibility of the case. He was a guardian of civil rights and liberties during the time of emergency as he provided legal guidance to the political prisoners from 1975 to 1977. He was even engaged in cases to protect the rights of minorities.

In his tenure, he made an immense contribution in the field of law and played a crucial role as a great jurisprudent in some of the most exemplary cases which defined the nation’s legal outlook that helped in crafting the country’s jurisprudence. Sorabjee was such a superior and virtuous lawyer that in the last few years many young lawyers who aspired to build a career in the field of law congregated to work under his guidance. He even nurtured many budding lawyers in his office and gave quick-witted legal minds to the nation. Mr. Sorabjee said “Lawyers don’t retire, they practice till they die. My only advice to young lawyers is to choose a stream of practice or even profession which interests you to continue till that time, don’t think of just making money out of it.”

While remembering Late Soli Sorabjee the current Chief Justice of India Justice N.V.Ramana stated that “I must admit that he was one of those who inspired me to continue in the profession apart from his courtroom genius Soli was an epitome of grace, modesty, humility, integrity, and kindness which always stood out to me.”

Apart from being a great lawyer and colleague, Soli Sorabjee was even an iconic and innovative author and columnist who mostly wrote regarding the issues related to the protection of human rights, validating constitutional law, and freedom of speech and expression. He earned great admiration and popularity for his contribution to the working of Indian constitution which also stems from his off-the-court interventions in terms of erudite columns to newspapers. Some of his commendable works are – The Laws of Press Censorship in India (1976); The Emergency, Censorship and Press in India (1977), and Law and Justice (2004).

During the early days of his career, he was notably assisting as a petitioner’s counsel to one of the greatest intellectuals of modern India i.e., Nani Palkhivala who was a brilliant mind and a courtroom genius in the landmark Keshavananda Bharti Case (also known as fundamental rights case) who contended against the government. With a stretch of numerous accomplishments at the Bar, Soli Sorabjee was eventually designated as a Senior Advocate in 1971 of Bombay High Court. He even gave his service as the Solicitor General of India from 1977 to 1980. He was appointed as the Attorney General for India twice – first from 1989 to 1990 and again from 1998 to 2004.

The honour Mr. Sorabjee received for his immense benefaction towards doctrines and provisions for free and fair elections cannot be revoked from the constitution, nor can the constitution be amended to the effect that elections would take place if and when parliament determines instead of every five years. To this, he also added that judiciary cannot be deprived of the power of judicial review, nor can the rule of law be abrogated.

Sorabjee was awarded The Kinloch Forbes Gold Medal in Roman Law and Jurisprudence in 1952. He was honoured with Padma Vibhushan for his work on Freedom of Speech and Expression and Protection of Human Rights. His leading issue was Censorship and Publication.

NOTABLE CASES

Mr. Sorabjee, made substantial attainment of fame and honour in his legal possession by making his witty and profound appearance in numerous landmark and torch bearer judgements.

Kesavananda Bharti v. State of Kerala (1973)

Cultivating the ‘basic structure’ doctrine as a safeguard against the exploitation of the Constitution.

Kesavananda Bharati v. State of Kerala dealt exclusively with three main issues:

1. Constitutional Validity of 24th Constitutional (Amendment), Act 1971

2. Constitutional Validity of 25th Constitutional (Amendment), Act 1972

3. Extent of Parliament’s power to amend the Constitution

Kesavananda Bharti v. State of Kerala is a case ‘unique in the history of international constitutional law for several reasons: the anxious political circumstances in which it was delivered, the shift in the balance of democratic power it caused, the unparalleled number of separate opinions delivered by the court as well as the sheer length of the judgment itself.

The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change. The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, the doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state.

MANEKA GANDHI V. UNION OF INDIA (1978)

Expanding the meaning of the ‘right to life’ under the Constitution of India

Delivered by a 7-judge bench of the Hon’ble Supreme Court on 25th January 1978, this decision marked the development of a new era with respect to the interpretation of fundamental rights guaranteed in the Constitution. Maneka Gandhi is a reflection of dynamic constitutional interpretation. It signifies the court’s changing approach towards the Constitution. In the decades that followed, it was treated as an organic document whose interpretation must evolve with the times. Substantive due process and, more broadly stated, the court’s power to review the content of legislation to ascertain if the mandate of Article 21 had been met, eventually found its way to India more than twenty-eight years after the founding fathers of our Constitution abandoned it.

HOBBIES

Apart from showcasing his brilliance in the courtroom and his deep understanding of law Soli Sorabjee had a keen interest in jazz and one can say who has known him that his love for jazz can be equalled to law. And his love was so pure towards jazz that he departed on the international day of jazz. His enthusiasm for jazz can be seen when you visit his home in Neeti Bagh, where you can find a cabinet full of vinyl recordsof jazz. In India, Sorabji had a great hand in making jazz popular. He was the first president of Jazz India. He also introduced the jazz festival in Delhi. His favourite artist was Benny Goodman, one of his favourite songs of Benny was ‘Farewell’. He played the clarinet and one of his favouritetunes was Moonglow by an American clarinettist. He was a very rapacious reader, he had keen interest in reading because according to him they were short and crisp. One of his favourite essayists was William Hazlitt. His interest can also be seen in the field of poetry, one of his favourites was Shakespeare’s sonnets and Victorian poets. He used to read the work of many authors one of his favourites was Bard of Avon by Shakespeare and also the literary works of Prime minister Nehru. He had a prodigious memory, once he remembered the timetable of western railways to sharpen his memory and he could recite it decades later also. Soli Sorabjee had little mischievous traits in him, he was often seen cracking jokes, he often used to lighten the mood in a serious meeting by saying something laced in mischief that would put a smile on the face of everybody. Mr. Sorabjee was very fond of celebrating his birthdays as his birthday planswould begin one month beforehand. Around his birthday i.e., 9th march he used to become very excited, he used to personally plan his birthdays, he looked after things likesending invitation cards to set the menu. He annually travelledto London, where his routine was also fixed, he used to stay at the Barbican, had meetings under Selfridge clock at noon, and spend his evening at his favourite bar at Mayfair. Soli Sorabjee showed how to live to the fullest by balancing work life and personal life and excelling at both.

Sorabjee’s endowment in legal jurisprudence and contribution to the Supreme Court in various remarkable cases will forever be treasured and remembered. He contended emulously to use constitutional principles to settle contemporary problems of politics and governance.

Apart from being a great lawyer and colleague, Soli Sorabjee was even an iconic and innovative author and columnist who mostly wrote regarding the issues related to the protection of human rights, validating constitutional law, and freedom of speech and expression. He earned great admiration and popularity for his contribution to the working of Indian Constitution which also stems from his off-the-court interventions in terms of erudite columns to newspapers. Some of his commendable works are – The Laws of Press Censorship in India (1976); The Emergency, Censorship and Press in India (1977), and Law and Justice (2004).

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NCLT BAR ASSOCIATION’S PLEA CHALLENGING 3-YEAR TENURE OF NCLT MEMBERS IN JUNE: A PLEA IN SUPREME COURT

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The Supreme Court in the case National Company Law Tribunal Bar Association Vs Union Of India observed in a petition filed by the NCLT Bar Association challenging the notification of the Ministry of Corporate Affairs fixing the tenure of the members of National Company Law Tribunal as 3 years, while adjourning the hearing.

It was being argued before the court that the discharge of full five years is necessary for Tribunals to functions effectively and efficiently and by the time the members achieve the required knowledge, efficiency and expertise and a term of three years is very short as one term will be over.

On April 5, a notice is being issued on the petition to the Centre by the bench comprising of Justice L Nageswara Rao.

Further it was argued that the Notification is contrary to the judgments passed by the Supreme Court in Madras Bar Association v. Union of India & Anr. (2010) and Madras Bar Association v. Union of India & Anr. (2021) The Court held that the term of members should be 5 years. It was also being observed in the Madras Bar Association Case in which the Supreme Court observed that a longer term was necessary to ensure independence and the Court disapproved the shorter term.

It was being argued by the Association that the said notification is contrary as according to Section 413 of the Companies Act, 2013 which clearly prescribes the term of members for 5 years and even also the early expiration of the tenure will create a void and will add to the pendency of cases before Tribunals.

The Committee is considering all aspects of the matter including the verification report, assessment of suitability etc As on June 20, one of the members is due to retire and it was being submitted by Solicitor General the matter can be considered on June 15.

Solicitor General Tushar Mehta submitted that a meeting was held by the committee On April 20.

The term prescribed by Companies Act, 2013 is 5 years was being submitted before the court by Senior Advocate Tushar Malhotra, Appearing for the Petitioner.

The Bench comprising of Justice DY Chandrachud and the Justice Bela M Trivedi observed deferred the hearing to June 15 as the bench was being told that a committee chaired by the Chief Justice of India and consisting of Justice Surya Kant and the Secretary of the MCA is holding a meeting to deliberate on the term of 23 NCLT members appointed in 2019 by the Solicitor General of India.

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UNDER COMMERCIAL COURTS ACTS, SC ORDERS EXCLUDING PERIOD FROM 15.03.2020 TILL 28.02.2022 AS PRESCRIBED UNDER THE ACT

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The Supreme Court in the case Babasaheb Raosaheb Kobarne vs Pyrotek India Private Limited observed with respect to the limitation prescribed under the Commercial Courts Act, 2015. The Court observed that for the purposes of limitation the period from 15.03.2020 till 28.02.2022 is also applicable.

In an order dated 10.01.2022, The Supreme Court had issued the following directives:

It is directed from 15.03.2020 till 28.02.2022 the period shall extend stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings and the order dated 23rd March, 2020 is restored and in continuation of the subsequent orders dated 8th March 2021, 27th April 2021 and 23rd September 2021.

It shall become available with effect from 1st March 2022 Consequently, the balance period of limitation remaining as on 3rd October 2021, if any

In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply and in cases where the limitation during the period between 15th March 2020 till 28th Feb 2022, would have expired all persons shall have a limitation period of 90 days from 01.03.2022, notwithstanding the actual balance period of limitation remaining.

The Sections which prescribe the outer limits i.e., within which the court or tribunal can condone delay and the period(s) of limitation for instituting proceeding includes Section 12 A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and as prescribed Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996 including the termination of proceedings and any other laws and it is further being clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods, The court observed while referring to the case Centaur Pharmaceuticals Pvt. Ltd. And Anr. v. Stanford Laboratories Pvt. Ltd

Therefore, the bench directed the Trial Court to take on record the written statement filled by the appellant-respondent.

The Commercial Courts Act, 2015 being a Special Law, the said order shall also be applicable with respect to the limitation prescribed under the Commercial Courts Act, 2015 also and the period from 15.03.2020 till 28.02.2022, in the view of this matter and for the purposes of limitation as may be prescribed under any General or SPECIAL LAWS shall have to be excluded as may be prescribed under any General or SPECIAL LAWS with respect to all quasi-judicial or judicial proceedings.

The Bench comprising of Justice MR Shah and the Justice BV Nagarathna observed while allowing the appeal filled by the defendant the purpose of filing the written statement and ought to have permitted to take the written statement on record as the High Court ought to have excluded the aforesaid period.

In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply and in cases where the limitation during the period between 15th March 2020 till 28th Feb 2022, would have expired all persons shall have a limitation period of 90 days from 01.03.2022, notwithstanding the actual balance period of limitation remaining.

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Supreme Court expresses disapproval of judicial officer for not releasing accused despite order granting bail

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The Supreme Court in the case Gopal Verma v State of UP observed the recently deprecated act of a judicial officer on the release of the accused despite Court’s order of directing his release against whom FIR was registered u/s 498A, 304B of IPC and section 3/4 of Dowry Prohibition Act.

Since October, 2020 the appellant has been in custody and the bench had granted bail to the accused after being apprised of the fact that the charge of the accused was as under Sections 304B and 498A, Indian Penal Code, 1860

In December, 2021, the charge sheet was filed and as yet only one witness had been examined whereas the prosecution had cited 64 witnesses, the counsel argued before the Court.

the bench while considering criminal appeal assailing Allahabad High Court’s order of refusing to grant bail to the accused on 17.05.202, the bench granted bail to the appellant on terms and conditions to the satisfaction of the Trial court and upon hearing learned counsel for both the parties.

The bench comprising of Justice SK Kaul and the justice MM Sundresh while observing in their order said:

the appellant was not released and that should have been the matter of concern by the trial court as from December 2021, only one witness has been examined rather than what is sought to be raised ad the bench have no hesitation in adding those provisions to the order but don’t appreciate the conduct of the judicial officer whereby despite the orders of this Court.

on the pretext that while the order mentions the charges under Sections 304B and 498A, IPC it does not mention Sections 3/4 of the Dowry Prohibition Act, The Judicial Officer refused to release the accused.

The bench further added that the bench has no hesitation in adding those provisions to the order but the conduct of the judicial officer won’t be appreciated despite the order of this courts the appellant was not released.

Further the court added that only one witness has been examined by the trial Court from December 2021 and that should have been the matter of concern rather than what is sought to be raised by the trial Court.

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The Unresolved Issue of AMP Expenses in Transfer Pricing – India

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One of the most perplexing yet significant concepts within the Transfer Pricing Dispute Resolution is with regards to the Advertisement, Marking and Promoting (AMP) Expenses that are drawn by the Indian Entities of a company for the products of its foreign Associate Entity. This concept has been surrounded by controversy and confusion since its inception within the practice and study of Transfer Pricing and this is because of the absence of any statutes or regulations dealing with it and its jurisprudence is built purely on the judicial precedents that have been delivered by the Tribunals and High Courts, however, interestingly even the courts appear to have a tough time dealing with issues pertaining to AMP expenses.

The origin of this dispute can be traced back to the United States Tax Court in the case of United States v. DHL Corporation, after the introduction of the US Regulations of 1968 which introduced an important concept pertaining to “Developer Assister Rules” as per which the entity which has incurred the AMP Expenses (Developer) would be treated as the economic owner of the brand which is being marketed even though it might not be its legal owner, and the legal owner of the Brand i.e., the Assister need not pay any compensation for the use of the brand by the developer. These regulations were grounded on the notion of equitable ownership of a brand on the basis of the fiscal expenditure and the risk incurred by them, and the legal ownership of the brand has not to be taken as one of the criteria for ascertaining who would be considered as the developer of the Brand or the intangible property in question.

However, it is pertinent to consider that the Transfer Pricing Rules in America create a clear distinction between “Routine” and “Non-Routine” expenditure, which is essential to understand the issue of the monetary remuneration that is given to the domestic associated entity for marketing intangibles. In DHL, the court framed the Bright Line Test (BLT) which created a distinction between the routine and non-routine expenses that were incurred by the companies. According to the Bright Line Test, it is necessary to ascertain the non-routine expenses that have been incurred i.e., for marketing purposes in contrast to the routine expenses that the incurred by the brand’s distributor for product promotion while ascertaining the economic ownership of the intangible in question.

The issue pertaining to AMP expenses was first dealt with in the case of Maruti Suzuki India Ltd. v. Additional Commissioner of Income Tax [(2010) 328 ITR 210] before the Delhi High Court, where the Bench held that the Advertisement, Marketing and Promoting Expenses will be considered as an international transaction only in cases where it exceeds the costs and expenses that have been incurred by comparable domestic entities which are similarly situated. However, the Delhi High Court’s judgement was remanded following which it was challenged before the Honourable Supreme Court in Maruti Suzuki v. Additional Commissioner of Income Tax [2011] 335 ITR 121 (SC) where it was overturned by the Apex Court.

In LG Electronics India Pvt. Ltd. v Assistant Commissioner of Income Tax [(2013) 140 ITD 41 (Delhi) (SB)], the Delhi Bench of the ITAT referred to the precedent by the Delhi High Court in Maruti Suzuki and held that the as per Chapter X of the Income Tax Act, 1961 the Assessing Officer has the right to make an adjustment for Transfer Pricing vide application of the Bright Line Test in issues pertaining to the AMP expenses that have been drawn by the Indian Entity, since this would fall within the ambit of an international transaction, and this would be deduced from the proportionally higher AMP expenses that were incurred by the Domestic Entity in contrast to two similarly situated domestic entities. The Revenue’s understanding that the AMP expenses which are incurred by the Domestic Associated Entity will inevitably result in a benefit to the Foreign Associated Entity in terms of increasing its brand value along with the lack of lack adequate compensation to the latter for the same, is the primary reason behind its attempt to bring all expenses pertaining to advertising, marketing and promotion within the ambit of the country’s Transfer Pricing Laws, thus it takes the job of applying an Arm’s Length Prince on such transactions which are used for AMP and the test that is most widely employed for this purpose is the Bright Line Test which used by the court in the case of LG Electronics, where it looked at the Bright Line, which is a line drawn within the total expenditure for the purposes of AMP which signified the average spending for the same purpose by comparable entities and any amount which would exceed the line would be considered as an international transaction which would represent the expenses that were drawn by the domestic entity for the building the brand value of the Foreign Associated Entity’s product.

The precedent in Sony Ericsson proved to be a gamechanger wherein the court went to the extent of overruling all of the abovementioned judgements with regards to whether AMP Expenses by the Domestic Entity would be considered as an internal transaction. In this case, the court did not face any issues in determining whether it would constitute an international transaction since the entities had submitted that the international between the Foreign Associated Entity and the Domestic Entity also included the money for the purposes of AMP. While the Revenue had relied on the precedent in LG Electronics to show cause for their application of the Bright Line Test in determining the part of the expenses towards AMP that would be considered as an international transaction. However, the court reject the Revenue’s submissions and reasoning while holding that the Bright Line Test did not have legislative or statutory backing and thus the precedent in LG Electronics was overruled with regards to the use and applicability of the Bright Line Test for ascertaining international transactions since this would be considered as an outcome of judicial legislation.

After the precedent in Sony Ericsson there has been a drastic change in the judicial approach towards issues pertaining to AMP expenses within the realm of transfer pricing. However, since the Court has failed to elaborate upon what would constitute an international transaction in Sony Ericsson, the courts and tribunals have gone back to the phase of drowning in confusion to deal with cases pertaining to AMP expenses and have struggled with determining a proper method for the same.

A transfer pricing adjustment can only be made when it has met the statutory framework of highlighting the existence of an international transaction, determination of the price and fixing an ALP in compliance with Section 92 C of the Income Tax Act. While the element of the international transaction was not disputed in all of the aforementioned cases, the primary issue was with regards what would constitute an international a transaction. The definition of an international transaction as per the Income Tax Act includes the parties to have an agreement between themselves for such a transaction and a shared understanding with regards to the transaction and its purpose. In LG Electronics and other cases prior to Sony Ericson, the primary criteria that were adopted by the courted in ascertaining international transactions and unsaid understanding, were on the basis of proportionally higher expenses with reference to comparable i.e. the courts had adopted the Bright Line Test which had been deemed incompatible with the Income Tax Act of 1961

At a glance at most of the cases pertaining to this issue, the Revenue has resorted to proving the existence of international transactions on the basis of the Bright Line Test, and most of the revenue’s judgements also fail to highlight or prove the same, otherwise except for the unique cases in which the Assessee Domestic Associated Entity and the Foreign Associated Entity had a written agreement between the two of them. This issue is purely because of the lack of any regulatory or statutory provisions within the Income Tax Act, and this was also brought to attention by the court in Maruti Suzuki(2011). In the absence of Statutory provisions and the inability to apply the Bright Line Test because of the precedent in Sony Ericsson, it becomes impossible for the revenue in such cases, especially in the absence of a written or express agreement between the Domestic and Foreign Associated Entities, where it is forced to assess the Domestic Entity’s subjective intentions however this method was also rejected in Maruti Suzuki(2011).

While the decision in Sony Ericsson has left the Revenue and Courts baffled with regards to the method, they should use to ascertain international transactions in matters pertaining to AMP expenses, hopefully, this will finally come to a conclusion since it is currently being heard by the Country’s Apex Court. It is of the utmost importance for the Apex Court to elaborate upon the method and procedure that must be followed by the revenue in determining cases pertaining AMP expenses and issue guidelines for the same.

The origin of this dispute can be traced back to the United States Tax Court in the case of United States v. DHL Corporation, after the introduction of the US Regulations of 1968 which introduced an important concept pertaining to “Developer Assister Rules” as per which the entity which has incurred the AMP Expenses (Developer) would be treated as the economic owner of the brand which is being marketed even though it might not be its legal owner, and the legal owner of the Brand i.e., the Assister need not pay any compensation for the use of the brand by the developer. These regulations were grounded on the notion of equitable ownership of a brand on the basis of the fiscal expenditure and the risk incurred by them, and the legal ownership of the brand has not to be taken as one of the criteria for ascertaining who would be considered as the developer of the Brand or the intangible property in question.

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INSURANCE COMPANY SHOULD NOT SEEK DOCUMENTS WHICH ARE BEYOND THE CONTROL OF INSURED TO FURNISH, SAYS SUPREME COURT WHILE SETTLING CLAIM

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The Supreme Court in the case Gurmel Singh vs Branch Manager, National Insurance Co. Ltd observed that due to circumstances which is beyond the insured control and which the insured is not in a position to produce while settling the claims, the insurance company need not be too technical and ask for documents.

While settling the claim, it is found that the insurance companies are refusing the claim on flimsy grounds and/ or technical grounds further which the insured is not in a position to produce due to circumstances beyond his control, While settling the claims, the insurance company should not be too technical and ask for the document As the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­ submission of the duplicate certified copy of certificate of registration as due to the circumstances beyond his control, the appellant could not produce on payment of huge sum by way of premium and the Truck was stolen, once there was a valid insurance. As the appellant was asked to produce the documents which are beyond the control of the appellant to produce and furnish those documents.

An amount of Rs. 12 lakhs along with interest @ 7 per cent from the date of submitting the claim, the appellant is entitled to the insurance and to pay the litigation cost of Rs. 25,000 to the appellant, the court held while allowing the appeal.

the insurance company has become too technical while settling the claim and the insurance company has acted arbitrarily, observed by the court in this case.

As when an appellant produced the registration particulars which has been provided by the RTO and further the appellant had produced the photocopy of certificate of registration and was just being solely on the ground that the original certificate of registration i.e., which has been stolen is not produced and the non-settlement of claim can be said to be deficiency in service. Therefore, the Insurance companies are refusing the claim on flimsy grounds and/or technical grounds, the facts and circumstances of the case. Furthermore, the appellant had tried his best to get the duplicate certified copy of certificate of registration of the Truck. the insurance company must have received the copy of the certificate of registration, even at the time of taking the insurance policy and getting the insurance.

the appellant has not produced either the original certificate of registration or even the duplicate certified copy of certificate of registration issued by the RTO, mainly on the ground the insurance company has not been settled in an appeal before the Apex Court. The bench further noted that the photocopy 5 of certificate of registration and other registration particulars as provided by the RTO, was being produced by the appellant.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and contended that, in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds.

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Supreme Court seeks response of Union and states on plea for guidelines to prevent sexual harassment of students in schools

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The Supreme Court in the case Nakkheeran Gopal v UOI & Or’s observed that any kind of harassment including the sexual harassment being carried out at educational institutions The Court while allowing the writ petition issued a notice seeking protection of children.

The plea stated that there is a vicarious liability upon the State Government to implement any law for the well-being and also for the protection of the children in their respective states.

the petition states that to implement any law for the well-being of children and also for the protection of the children in their respective states, it is the responsibility of the State Government and the plea further mentioned that it the vicarious liability of the State Government and It will be considered the lapse on the part of the State Government if there is Any lapse on the part of the educational institution as it remains a crucial department in the State Government With respect to the relevant organization, including Educational Institution, stated in the plea before the court.

The petitioner argued that till date no specific mandate or the law or the guidelines have been issued by the respective States and inspire of alarming rate in the offence against the children especially at school premises.

The petition further states with this regard that children can also themselves be coerced into becoming tools in furtherance of illegal and dangerous activities and under this circumstance the Increased online time can lead to grooming and both online and offline exploitation.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

The petition states that it indicates immediate concerns and measures for intervention are of paramount significance and further the court stated that this calls for the implementation of legislative actions and community-based interventions through virtual media to prevent a further rise in the statistics and to ensure child protection and when the safety of the children is at stake especially at educational institutions which is supposedly to be the safest shelter, and that too during this tough time. As it is necessary to Protecting the basic rights of children and is of utmost concern as otherwise there will be a posting of a substantial threat to the future and this would leave a regressive impression.

It is the fundamental right of the children under Constitution of India to engage and study in an environment when he/ she feels safe from any kind of emotional or physical abuse and is free, further being argued in the petition.

The bench comprising of Justice Indira Banerjee and the Justice CT Ravikumar observed and sought responses of the Union and the States for guidelines for the educational institutions for the protection of the children and also for the enforcement of the fundamental rights of Children at the educational institutions.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

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