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The juxtaposition of privacy and Competition Law

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INTRODUCTION

During the last decade, the digital business has expanded at a staggering rate in India and across the world. Even though this development has resulted in the emergence of new business models, the expansion of new markets, and the unlocking of significant efficiencies, it has also sparked concerns that tech giants may exploit the vast amounts of user data that they possess in order to manipulate digital markets to their advantage. Due to this, the Competition Commission of India (the “CCI”) has opened investigations against several players, including WhatsApp, Facebook, and Google. The investigations are ongoing. However, there are concerns regarding the use of competition law (rather than privacy and consumer protection legislation) to deal with such issues in the long run.

WHAT IS THE RELATIONSHIP BETWEEN DATA PRIVACY AND COMPETITION LAW?

“Prevent anti-competitive practices and promote market competition,” according to the Competition Act, is the mission of the Competition Commission of India. Under the Competition Act, the CCI has the authority to examine three areas of competition law:

1. Business agreements that are anti-competitive under Section 3 of the Competition Act are defined.

2. According to Section 4 of the Competition Act, a corporation may not misuse its dominant position and may not engage in price-fixing.

3. Sections 5 and 6 of the Competition Act govern the mergers and acquisitions that take place between companies.

When it comes to digital marketplaces, which are frequently referred to as ‘zero-price markets,’ the execution of the Competition Act may be complicated. This is because the phrase ‘zero-price markets’ violates common legal and economic assumptions regarding competitive harm. Several unique characteristics are present in such markets, including the difficulty in determining market power or market share; low entry barriers for players, which contrasts with network effects, which may prevent new entrants from expanding or achieving economies of scale; and the ability of customers to multi-home while remaining locked-in due to a lack of interoperability in the market (thereby complicating the analysis in respect of switching costs).

While the CCI has had several opportunities to review the digital sector since its inception in 2010, it has never previously looked at data as an asset or a source of value. “In January 2021, the CCI issued a report on India’s telecom business (the “CCI Telecom Report”), which highlighted the interaction between data privacy and competition regulations.” It categorizes data utilization as non-price competition, suggesting that information collected from customers might be used to an enterprise’s benefit in a price battle. “Additional warnings came from the CCI in 2020 research, which said that network effects resulting from enormous amounts of data collected allow firms to compete on a level unrelated to pricing, ultimately leading to a ‘winner takes all’ system.”

It is possible that data will be utilized as a proxy for evaluating market power, and if this determination is made, data misuse may be found to have a major adverse influence on competition.

“The CCI has issued an order launching an investigation against WhatsApp and Facebook in accordance with Section 26(1) of the Competition Act (“WhatsApp Suo Moto Order”), which recognizes data as a non-price competitive feature.”

For the purpose of determining market strength, the CCI examined its decisional history regarding WhatsApp and concluded that “given WhatsApp’s popularity and widespread use for one-to-one and group chats, as well as its distinct and distinctive features, WhatsApp appears to be dominating.” This finding is crucial since it is based on the platform’s user base, which has the potential to create a “network effect.”

Regarding data collection and processing, the CCI has said that firms such as Facebook have the “potential acquisition and processing of vast amounts of personal information about its users.” As stated in the WhatsApp Suo Moto Order, the CCI advances this theory by stating that “in a data-driven ecosystem, competition law must consider whether excessive data collection and the extent to which such data is subsequently used or otherwise shared have anti-competitive consequences that require antitrust scrutiny.”

According to the CCI, a similar approach should be used in evaluating mergers and acquisitions, noting that in “new age dynamic markets,” conventional market share analyses may serve as a starting point for investigation, but should not be used as the primary guiding metric for determining market dominance. “Recent decisions in these areas have taken into consideration issues such as net neutrality and the potential for data sharing concerns in the future.”

MISUSE OF A DOMINANT POSITION VIA THE MANIPULATION OF DATA

“The CCI Telecom Report provides the following examples of abusive behaviour: (a) a lax privacy standard indicating a lack of concern for the welfare of customers; (b) lax data security, which may also imply exclusionary behaviour; and (c) exploitation of a data advantage across a wide range of products and services.”

“In the WhatsApp Suo Moto Order, the CCI seems to support this notion of damage, opining that WhatsApp’s data-sharing with Facebook weakens non-price competition characteristics and that this behaviour prima facie amounts to imposition of unfair terms and conditions on WhatsApp users (Facebook is also included in the investigation as a direct beneficiary of this privacy policy).”

IS IT PROPER FOR THE CCI TO INTERFERE IN THE MARKET VIA REGULATORY MEANS AT THIS TIME?

When it comes to non-price competition, the CCI Telecom Report recognizes that data is a key metric; however, it also acknowledges that privacy may be fundamentally a consumer protection issue; this is in contrast to competition law, which is focused on preserving and fostering competition rather than protecting individual market participants (i.e., competitors or consumers).

Other bodies (in this case, the proposed DPA) that have been granted specific jurisdiction to set data protection laws should collaborate with the CCI in order to achieve the best results. While the CCI may be alerted to an anti-competitive deviation from such criteria, its foray into determining what constitutes an “excessive volume of data” runs the risk of generating conflicting viewpoints with other authorities who may be better equipped to make such determinations in any case in the first instance.

Furthermore, the CCI’s position on data exploitation is still in the process of being refined. The CCI has previously dismissed cases correctly based on “bald assertions” and “statements that have not been corroborated or otherwise substantiated in any manner,” and it has also refused to accept the notion of “potential future exclusion” as a basis for determining damages. Despite this, the CCI’s probes into the MMT Interim Order and the WhatsApp Suo Moto Order seem to be based on unconfirmed facts, according to a report by the Financial Times.

Given the fact that the essential restrictions or standards for data protection and usage have not yet been established and are now being disputed in higher courts, the CCI’s investigation into these issues may be a step too far. Increasing the leniency of the CCI at preliminary hearings might be a feasible answer, as it would enable the CCI to have a better understanding of the underlying technology and business models, while also allowing it to make better use of the CCI’s investigation resources.

This is the latest example of the dispute that exists between competition and privacy authorities over the manner in which and by whom data businesses should be controlled, as previously reported. According to the data protection authorities, since they are responsible for users’ privacy, they should have the last word in any disputes regarding personal information. “Competitor regulators, on the other hand, say that since the privacy-related actions of large technology companies reduce customer choice, they should be treated as a non-price problem that has an impact on consumer welfare.” Consequently, they argue, they have the right to govern within their regulatory jurisdiction If taken at face value, these opposing viewpoints indicate that privacy and competition are diametrically opposed to one another. Data protection laws, on the other hand, protects users’ reasonable expectations of privacy, while competition law forbids action that is damaging to consumer welfare. However, the situation is not as straightforward and straightforward as it seems. However, rather than being mutually exclusive challenges, privacy and competitiveness issues often cross, to such an extent that enforcement by one regulator may push a company to act in a manner that the other does not permit.

Take, for example, “the case of HiQ vs. LinkedIn, which was decided by the Ninth Circuit Court of Appeals in 2019. LinkedIn terminated HiQ’s access to profile data on the grounds that the latter was gathering personal information despite users expressly opting into a privacy choice referred to as ‘do not broadcast’ in respect of profile alterations, according to the company.” Specifically, HiQ said that its company could not exist without access to data kept on LinkedIn’s servers and that LinkedIn’s refusal to provide access constituted unfair competition, given the latter’s intentions to develop its own data analytics business. Although LinkedIn had deliberately chosen to prohibit broadcast, the Ninth Circuit concluded in favour of HiQ because it believed that competitive interests outweighed privacy concerns.

Other, harsher steps are not ruled out shortly. According to EU Commissioner Margrethe Vestager, the European Commission may order firms to share data with rivals if doing so would result in more competition. In the past, competition regulators have used data-access remedies to get access to corporate information (such as business plans or technical data), but applying them to data firms that deal with personal data is guaranteed to have significant consequences for user privacy.

It seems unlikely that one will be able to resolve these issues until he commits to a more coordinated regulatory approach. For example, in all circumstances where competition disputes generate privacy issues, the competition regulator will ensure that the data protection authority is not only informed of the investigation but that it is also included in the final finding. In cases where this has not been done, courts hearing appeals from a regulator’s decision should strike a balance between the interests of consumers and the rights of individuals to personal privacy.

If settling these conflicts has proved challenging in the United States and Europe, where privacy authorities are well-established, think how much more difficult it will be in India, where we still do not have a data protection law in effect.

Numerous other organizations have come in to fill the hole left by the absence of a data protection authority that provides rules on how data corporations should operate. Industry-specific legislation on how personal data should be used has been established in several different industries, including the financial sector. Unfortunately, rather than offering clarity, the resulting jumble of compliances has only served to further muddle the waters even more.

Indian competition regulator, the Competition Commission, has weighed in on the dispute, declaring in its Market Survey on Telecom that privacy is a non-price concern in competition and comes within its regulatory jurisdiction. It then followed up on that declaration by calling for an investigation into WhatsApp’s recently proposed amendments to its privacy regulations, which was approved by the company.

Following these developments, it seems that the Indian competition authority aims to incorporate privacy-related issues in its mandate for data-driven organizations. If we already had a data protection organization, this may have worked out perfectly. But since we don’t have someone who is campaigning for personal privacy, the regulation of Indian data firms will now be very much in the ‘competition-first’ mode. As a result, when it comes to difficulties at the nexus of competitiveness and privacy, our data jurisprudence will suffer as a result of this decision.

CONCLUSION

Experts say that India cannot afford to keep postponing the approval of a privacy act indefinitely.

These kinds of inter-jurisdictional differences highlight just how important this problem has grown. Any further delay would result in a regress in data law to a level that our data sector cannot bear.

An immediate and comprehensive data protection legislation must be enacted, and it must do so as quickly as possible.

This is an urgent demand at this time. “If such legislation creates a threshold for data collection, the CCI might then conduct an analysis of market power in digital markets. Contrary to popular belief, the Ministry of Electronics and Information Technology (MEITY) earlier released a notification defining a “major social media intermediary” as one with at least 5 million registered users in India.”

Therefore, it would be prudent for the CCI to refrain from developing data-related criteria or standards and instead focus on improving its understanding of the underlying problems through market research and preliminary conferences, with a particular emphasis on effects-based methods and techniques

Meanwhile, firms that operate in digital markets are asked to review their privacy policies and adhere to industry best practices for data collection, such as being transparent about data use and advertising, to avoid being blacklisted from the marketplace.

Regarding data collection and processing, the CCI has said that firms such as Facebook have the “potential acquisition and processing of vast amounts of personal information about its users.” As stated in the WhatsApp Suo Moto Order, the CCI advances this theory by stating that “in a data-driven ecosystem, competition law must consider whether excessive data collection and the extent to which such data is subsequently used or otherwise shared have anti-competitive consequences that require antitrust scrutiny.”

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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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IN MEDICAL NEGLIGENCE COMPENSATION CLAIMS, MCI FINDINGS REGARDING DOCTORS’ PROFESSIONAL CONDUCT HAVE GREAT RELEVANCE: SC

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The Supreme Court in the case Harnek Singh vs Gurmit Singh observed while considering medical negligence compensation claims that the findings of the report of Medical Council of India on professional conduct of doctors are relevant.

from the date of SCDRC order as compensation thereafter the court directed the Respondents to pay to the complainants a total amount of Rs. 25,00,000 with interest @ 6% per annum. the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service and the court hold that the decision of the NCDRC deserves to be set aside. in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI, the court is of the opinion that the NCDRC has committed an error. The case of medical negligence leading to deficiency in his services, the above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly, observed by the bench.

The bench further observed that he opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance while referring to the contents in the report of MCI.

The issue raises in the above-mentioned case is weather a professional negligence is established by the complainant as per the standards governing the duty to care of a medical practitioner on the part of Respondent As the NCDRC gave its decision without referring to the MCI finding the complainants/appellants submitted, in an appeal submitted by the Apex Court. this complaint got summarily disposed of and they filed appeals before Medical Council Of India The Ethics Committee of MCI held one doctor medically negligent and issued a strict warning to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation he complainants had also made a complaint to the Punjab State Medical Council against the professional misconduct of the doctors, hospitals, surgeons, While the proceedings were pending before the SCDRC.

the complaint and two among the opposite parties were allowed by SCDRC to directly pay Rs. 15,44,000 jointly and severally and Rs. 10,000 as costs as the appeal was allowed by The National Consumer Disputes Redressal Commission of these opposite parties and set aside the order of the SCDRC holding that negligence was not proved by the complainants.

The bench comprising of Justice UU Lalit, justice S. Ravindra Bhat and the justice PS Narasimha also observed and contended the question of intention does not arise that in the proceedings for damages due to professional negligence.

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WHERE THE CLAIMS OF EVENTS HAVE BEEN SUCCESSFULLY ESTABLISHED BY THE PROSECUTION, SECTION 106 OF THE EVIDENCE ACT APPLIES TO CASES: SUPREME COURT

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The Supreme Court in the case Sabitri Samantaray vs State of Odisha observed here chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused, the Section 106 of the Indian Evidence Act applies to cases.

in light of Section 106 of the Evidence Act the High Court rightly observed that as how the deceased lost his life and the onus was now on the appellants to disclose further the court observed that the appellants have failed to offer any credible defense in this regard and it can be deduced that the entire sequence of events strongly point towards the guilt of the accused appellants the burden was on the appellants to prove it otherwise as once the prosecution had successfully established the chain of events.

in the light of the statements made by all the sets of witnesses, with such an intention when analyzed and the fatal injuries sustained by the deceased at the relevant place and time further the court contended while dismissing the plea that it certainly makes out a strong case that death of the deceased was indeed caused by the appellants. in establishing intention of the accused-appellants for the commission of the offence, the prosecution has succeeded, the Court notice.

whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, in a case based on circumstantial evidence then in the chain of events such a response in itself becomes an additional link, when a case is based on circumstantial evidence As Section 106 of the Evidence Act from its burden to establish the guilt of an accused is in no way aimed at relieving the prosecution. where chain of events has been successfully established by the prosecution, it only applies to those cases from which a reasonable inference is made out against the accused.

the Section 106 it merely prescribes that when an individual has done an act and in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt Thereafter the onus of proving that specific intention falls onto 9 the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove, with an intention other than that which the circumstances indicate. As the Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, observed by the Bench as the said provisions Since it is all based upon the interpretation of Section 106 Evidence Act, the contentions of either

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed and contended whenever an incriminating question is posed to the accused and he or she either evades response or that which being offers a response is not true then such a response in itself becomes an additional link in the chain of event, in a case based on circumstantial evidence.

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A candidate has no legal right to insist that the recruitment process set in motion be carried to its logical end: SC

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The Supreme Court in the present case Employees State Insurance Corporation vs Dr. Vinay Kumar observed that the recruitment process set in motion be carried to its logical end as the candidate does not have a legal right to insist.

The bench directed the Corporation-appellants to take a decision regarding whether to complete the recruitment process, bearing in mind all relevant aspects within a period of two months, while allowing the appeal further it stated there is however no doubt from holding that the employer is free to act in an arbitrary manner.

A recruitment process which is set in motion be carried to its logical end candidate who has applied does not have a legal right to insist that Even in the select list may not clothe the candidate with such a right and that too even in the inclusion of a candidate.

A recruitment process carried to its logical end and the process set in motion, the candidate who applied does not have the legal right and thereafter the court further contended that the cardinal principle we must bear in mind is that this is a case of direct recruitment, observed by the bench.

The Court further said that it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold and by agreeing with the applicant the court contended and said that the direction to conclude the proceedings within 45 days is unsupportable.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

The ground raised by the appellants for not proceeding with the procedure of direct recruitment is untenable, the respondent contended before the court and on the other hand on account of certain developments which took place, there may really be no need to fill up the post of Associate Professor and the respondent may not have a right as such, the appellant contended before the Apex Court.

The High Court which dismissed the writ petition filled by the Corporation and it directed the Corporation to conclude the process positively within a period of 45 day. the Corporation filed appeal before the Apex Court, Aggrieved with this direction.

The bench comprising of Justice KM Joseph and the justice Hrishikesh Roy observed that Even inclusion of a candidate in the select list may not clothe the candidate with such a right and it does not mean that the employer is free to act in an arbitrary manner, the bench clarified.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

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