how to fix compensation when leg was ampituted= The decision reported in 2011 ACJ 1 (cited supra) has been relied upon both by the insurer as well as the claimant. In the said decision, the Apex Court has laid down that the ascertainment of the effect of permanent disability on the actual earning capacity involves three steps and the same has been laid down in paragraph 10, which reads as follows :

In the High Court of Judicature at Madras Dated : 04/1/2012 Coram : The Honourable Mr.Justice K.MOHAN RAM and The Honourable Mr.Justice G.M.AKBAR ALI CIVIL MISCELLANEOUS APPEAL(NPD)Nos.2597 and 2630 of 2011 and all connected pending MPs AND MP.NO.5 OF 2011 United India Insurance Co.Ltd., Rattan Bazaar, Chennai-3. Appellant in CMA No.2597/2011 and R2 in CMA.No.2630 Of 2011 Vs 1.K.Pachiappan R1 in CMA.No. 2597/2011 and appellant in CMA.No. 2630/2011 2.M/s.Sanco Trans Limited, Chennai-1. R2 in CMA.No. 2597/2011 & R1 in CMA.No.2630/2011 APPEALS under Section 173 of the Motor Vehicles Act against the award and decree dated 6.4.2011 made in MCOP.No.350 of 2009 on the file of the Motor Accidents Claims Tribunal (Fifth Judge, Small Causes Court), Chennai. For Appellant in CMA.No.2597 of 2011 & R2 in CMA.No.2630 of 2011 : Mr.S.Arunkumar For Respondent-1 in CMA.No.2597 of 2011 and appellant in CMA.No.2630 of 2011 : Mr.M.Swamikannu R2 in CMA.No.2597/2011 & R1 in CMA.No.2630/2011 : set Ex parte before the Court below COMMON JUDGMENT K.MOHAN RAM,J Being aggrieved by the award dated 6.4.2011 made in MCOP. No.350 of 2009 on the file of the Motor Accidents Claims Tribunal (Fifth Judge, Small Causes Court), Chennai, the insurer, which is the second respondent in the claim petition, has filed CMA.No.2597 of 2011. Not being satisfied with the quantum of compensation awarded, the claimant has filed CMA.No.2630 of 2011. 2. The brief facts, which are necessary for the disposal of these appeals are as follows : The claimant filed the aforesaid original petition claiming a total compensation of Rs.66 lakhs in respect of the injuries sustained by him in a road accident that took place at 14.30 hours on 24.11.2008. The case of the claimant is that when he was standing near the container lorry at the loading yard of M/s.Sanco Transport Limited, No.592, Ennore Express High Road, Ennore, Chennai-57, the Linde Fort container crane came in a very high speed in a rash and negligent manner unmindful of the person standing near the container lorry and dashed against the claimant, due to which, he had fallen down and the wheel ran over his right leg resulting in amputation of his right leg and other multiple injuries. According to the claimant, the driver of the crane is solely and directly responsible for the accident and as such, the owner of the crane and insurer are liable to pay the compensation. He was a heavy vehicle (container lorry) driver and was earning between Rs.15,000/- and Rs.20,000/- per month. In view of the amputation of his right leg, he can no longer continue his avocation of driving and he does not know any other avocation. 3. The claim was contested by the insurer alone, as the owner of the crane remained ex parte before the Tribunal. 4. The insurer, in their counter statement, inter alia contended as follows : The age and occupation of the claimant were not admitted. The various claims made under several heads were not admitted. The place, date, time, alleged narration of the accident, nature of injuries sustained, period of treatment taken and medical expenses have been specifically denied and the claimant was put to strict proof of the same. The negligence attributed to the driver of the crane has been denied and in any case, the insurer pleaded contributory negligence. On the aforesaid pleadings, the insurer contested that it is not liable to pay any compensation. 5. Before the Tribunal, on the side of the claimant, the claimant examined himself as PW1 and four other witnesses have also been examined. ExP1 to ExP10 have been marked on the side of the claimant. On the side of the insurer, one witness has been examined as RW1 and ExR1 has been marked. On a consideration of the evidence adduced before it, the Tribunal came to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the crane bearing Regn.No.L1-10-0820 and in view of the same, the owner of the crane as well as the insurer are liable to pay compensation. 6. So far as quantum of compensation is concerned, the Tribunal, on the basis of the evidence of the claimant as well as the doctor PW4 and other documentary evidence, fixed the disability at 90% and also came to the conclusion that the disability is total and permanent and applied 17 as the multiplier, as the age of the claimant was 25 on the date of accident. The Tribunal fixed the monthly income of the claimant at Rs.8,000/- and accordingly assessed the pecuniary loss at Rs.16,32,000/-. The Tribunal awarded a sum of Rs.1 lakh towards pain and suffering; Rs.50,000/- towards mental agony; another sum of Rs.50,000/- towards expectancy of life; again a sum of Rs.50,000/- for fixing the artificial limb; Rs.25,000/- towards loss of amenities in life; another sum of Rs.25,000/- towards extra nourishment, transport to hospital, medical expenses, etc.; and Rs.24,000/- towards loss of earnings for a period of three months. Being aggrieved by the award, both the insurer as well as the claimant have filed the above appeals. 7. Heard both. 8. Mr.Arunkumar, learned counsel for the insurer made the following submissions : The assessment of percentage of disability by the doctor PW4 is not in accordance with the Schedule to the Workmen s Compensation Act, as the Tribunal has fixed the monthly income placing reliance on the minimum wages fixed under the Minimum Wages Act. The percentage of disability for the amputation of leg is only 60% as per the provisions of the Workmen s Compensation Act and it should not have been fixed at 90%. The claimant is not completely disabled from doing any job and hence, appropriate deduction should have been made from the pecuniary loss arrived at by taking into consideration the fact that the claimant could have earned some amount from some other avocation. 9. Learned counsel for the insurer further submitted that the Tribunal has erred in not deducting some amount towards personal expenses/lumpsum payment. The Tribunal is not correct in granting a sum of Rs.50,000/- towards mental agony; Rs.50,000/- towards expectancy of life; Rs.25,000/- towards extra nourishment, transport to hospital, etc.; and Rs.50,000/- towards medical expenses without proper proof; so also the amount of Rs.1 lakh towards pain and suffering and the amount of Rs.25,000/- towards loss of amenities. 10. Learned counsel for the insurer submitted that the claimant s case that after the accident, he is left with no other alternative employment has been accepted by the Tribunal whereas the claimant is attending to some other job, which was revealed during the course of further investigation done by the insurer. Learned counsel further submitted that the claimant himself has issued a letter dated 17.11.2011 to the Investigator M/s.Vasu Associates that he is fixed with artificial limb and is working as a care taker/security guard in an abandoned petrol pump near Priya Kalyana Mandapam, Mogappair West, Chennai-37 and is being paid a sum of Rs.3,000/- as salary. In such circumstances, the subsequent developments should be taken into consideration and to prove the same, the following documents have been produced namely (i) photo ID card of the petitioner; (ii) discharge summary copy/disability certificate; (iii) letter from petitioner; (iv) photograph of the petitioner; and (v) video CD as additional evidence in the above matter. Learned counsel for the insurer submitted that unless the aforesaid additional evidence is received, cause of justice will be affected. 11. In support of his submissions, learned counsel for the insurer placed reliance on the following decisions: (i) Sri.Kumaresh Vs. The Divisional Manager, National Insurance Co.Ltd. {reported in 2011 (2) TN MAC 10 (SC)}; (ii) Tamilnadu State Transport Corporation Limited, Villupuram Vs. R.C.Selvakumar {reported in 2010 (2) TN MAC 211 (DB)}; (iii) Pal Raj Vs. Divisional Controller, North East Karnataka Road Transport Corporation {reported in 2010 ACJ 2859}; (iv) Arvind Kumar Mishra Vs. New India Assurance Co. Ltd (reported in 2010 ACJ 2867); (v) Govind Yadav Vs. The New India Insurance Company Limited (reported in CDJ 2011 SC 1131); and (vi) Raj Kumar Vs. Ajay Kumar (reported in 2011 ACJ 1). 12. Countering the aforesaid submissions, Mr.M.Swamikannu, learned counsel for the claimant made the following submissions : The Tribunal cannot take the monthly income of the claimant at Rs.8,000/-, when it is the categorical evidence of the claimant that he was earning Rs.15,000/- to Rs.20,000/- per month; the Tribunal has erred in awarding only Rs.24,000/- towards loss of earnings by taking three months income alone taking into consideration of the fact that he lost his income only for three months whereas considering the nature of injuries sustained by him and the nature of treatment taken by him, for more than one year, he was not able to do any work and he is now jobless; the Tribunal is not correct in awarding a sum of Rs.25,000/- only towards extra nourishment, transport to hospital, etc., when the claim itself was for Rs.1,50,000/-; the Tribunal has not awarded any amount towards attendant charges, as the claimant cannot attend to his daily needs without any assistance; the compensation awarded towards loss of expectation of life is too low; further, the sum of Rs.25,000/- awarded towards loss of amenities is meagre; the sum of Rs.50,000/- awarded towards mental agony, torture and humiliation at the young age is also too low; and the sum of Rs.1 lakh towards pain and suffering is less. 13. Learned counsel for the claimant submitted that the Tribunal has not awarded any compensation towards continuing permanent disability, when the claimant is entitled to the same as per the decision of the Apex Court dated 12.5.2011 in Civil Appeal Nos.4330 and 4331 of 2011 in the case of B.Kothandapani Vs Tamilnadu State Transport Corporation Limited. Learned counsel further submitted that the Tribunal ought to have awarded interest at 9% instead of 7.5% per annum. Learned counsel further submitted that though the claimant, in his chief examination, has stated that because of amputation of his right leg just below the hip, he has lost his job as a driver and he cannot be a driver any more and he cannot attend to any other clerical work, as he studied only upto 9th standard and he also cannot attend to any other work involving physical exertion and he had to depend upon somebody else for his livelihood, no cross examination has been done on these aspects and not even a suggestion has been put to him questioning the aforesaid evidence of PW1. 14. Learned counsel for the claimant submitted that the doctor PW4, in his chief examination, has stated that after amputation of his right leg, bone has grown upto 6 cms in a triangular shape and because of that, there has been infection in that portion and the claimant is having pain, due to which, artificial limb cannot be fitted to the claimant. The doctor also deposed that he can no longer drive any vehicle and cannot attend to any job involving physical exertion. But, no suggestion has been put to the doctor PW4 that the claimant can attend to some other alternate job. Therefore, the contention of the learned counsel for the insurer that the claimant can attend to alternate job cannot be countenanced. 15. Learned counsel for the claimant further submitted that the claimant has examined his employer as PW5, who deposed that he was paying a sum of Rs.5,000/- and 10% of the transportation charges earned by him and that the claimant was getting not less than Rs.15,000/- to Rs.20,000/- per month. But, the Tribunal is not right in disbelieving his evidence. 16. At the outset, Mr.Arunkumar, learned counsel for the insurer submitted that the finding of the Tribunal regarding negligence is not being disputed in the appeal filed by the insurer. But, they only challenged the quantum of compensation. Hence, we are not going into the question of negligence in detail. A perusal of the award passed by the Tribunal shows that the Tribunal has considered the entire evidence adduced before it and rightly come to the conclusion that the accident was caused due to the rash and negligent driving by the driver of the crane and hence, the finding of negligence recorded by the Tribunal is confirmed. MP.NO.5 OF 2011 : 17. The insurer has filed MP.No.5 of 2011 to receive (i) photo ID card of the petitioner; (ii) discharge summary copy/disability certificate; (iii) letter from petitioner; (iv) photograph of the petitioner; and (v) video CD as additional evidence in the above matter. In the affidavit, it has been stated that since the evidence relates to subsequent developments that have occurred after disposal of the said original petition, the same could not be filed before the Tribunal and the said documents are relevant for fixing the just compensation payable. The said averments in the affidavit were reiterated by the learned counsel for the insurer. 18. But, Mr.M.Swamikannu, learned counsel for the claimant submitted that the documents now sought to be produced as additional evidence cannot be received, as the veracity of the same could not be established without adducing oral evidence and subjecting the witnesses to cross examination. As far as the letter said to have been issued by the claimant is concerned, the same is also disputed by the learned counsel. As far as the discharge summary copy/disability certificate is concerned, according to the counsel, the same could not be received without examining the doctor concerned. 19. We have carefully considered the aforesaid submissions of the learned counsel on either side and perused the materials available on record. 20. As rightly contended by the learned counsel for the claimant, without examining the witnesses to prove the letter said to have been issued by the claimant and without examining the doctor said to have issued the discharge summary copy/disability certificate, the same could not be received as additional evidence. The photo ID card and the photograph of the claimant and also the video CD can only depict the nature of amputation undergone by the claimant. As the nature of amputation is already available on record by way of medical evidence, the same will not be of any assistance to assess the disability. Therefore, we do not find any valid reason for entertaining MP.No.5 of 2011 and accordingly, the same is dismissed. CMA.NOS.2597 AND 2630 OF 2011 : 21. The admitted facts in this case are that the claimant was 25 years old at the time of accident and was having a valid driving licence under ExP3 to drive heavy transport vehicles as well as light motor vehicles. His right leg five inches below the hip has been amputated. He was a driver by profession at the time of accident and because of amputation of his right leg, he can no longer drive any vehicle and the same is corroborated by the evidence of the doctor PW4. The doctor PW4 has assessed the permanent disability at 90% due to amputation of leg and other disabilities have been assessed at 10%. But, considering the nature of avocation namely driving, the Tribunal has taken the disability as 100% and applied multiplier method for assessing the pecuniary loss. It is also not disputed by the learned counsel for the insurer. 22. The main contention of the learned counsel for the insurer is that in spite of amputation of his right leg, the claimant can attend to some other avocation and earn some amount and that has to be deducted from the pecuniary loss assessed. In the alternative, learned counsel submitted that the functional disability alone should have been taken into consideration and accordingly, pecuniary loss should have been arrived. Learned counsel further submitted that the claimant is now engaged himself as a security guard in a petrol pump and he has admitted the same in his letter given to the Investigator. As we have rejected the petition for adducing additional evidence, the said contention cannot be accepted in the absence of any supporting material evidence. 23. It is pertinent to point out that PW1, in his evidence, has categorically stated that he had studied upto 9th standard and because of amputation of his right leg, he cannot drive any vehicle, he cannot sit and do any clerical job or any other job and he also cannot do any other job involving physical exertion. But, in the cross examination, the same has not been questioned nor even suggested to him that he can attend to some other job. The claimant has categorically stated that he has lost his earning capacity. But, the same has not been questioned in the cross examination. 24. The said evidence of PW1 has been corroborated by the doctor PW4, who has categorically stated that because of amputation of his right leg, he cannot attend to the avocation of driving and cannot attend to any other avocation. The doctor has categorically stated that 5 inches below the hip, the right leg has been amputated and after amputation, the bone has grown for 6 cms in a triangular shape and because of it, there has been infection and the claimant was having pain and artificial limb cannot be fitted. No cross examination has been done on this aspect also. Nothing has been elicited in the cross examination of either PW1 or PW4 to disbelieve their evidence. When such evidence is available on record, it is futile on the part of the insurer to contend that the claimant can attend to some other avocation and earn some amount and that such amount should be deducted from the pecuniary loss assessed. The doctor has categorically stated that even the artificial limb cannot be fitted to the claimant, that he has to walk with crutches, that he cannot even sit on his own from a standing position and that he cannot raise from a sitting position without the assistance of another. The doctor further deposed that it will be difficult for him to use Indian toilet and that he cannot spat in the floor. With this permanent disability, it will be difficult for him to attend any family or social functions and in his day to day life, throughout his life, he has to face all these difficulties. Therefore, the Tribunal is right in awarding Rs.25,000/- towards loss of amenities in life. 25. Learned counsel for the claimant is right in contending that the Tribunal has erred in not granting proper compensation towards permanent disability, as per decision of the Apex Court in B.Kothandapani s case. Even if multiplier method is applied and pecuniary loss is assessed, yet, the claimant is entitled to compensation towards permanent disability. 26. As far as the salary of the claimant is concerned, according to the claimant, he was earning a sum of Rs.15,000/- to Rs.20,000/- per month from his employer and PW5 his employer also corroborated the same. But, the employer has not produced any account book. The Tribunal has not accepted it and chose to fix the monthly income of the claimant as Rs.8,000/- on the basis of the Minimum Wages Act. We do not find any reason to interfere with the same. 27. In the decision reported in 2011 (2) TN MAC 10 (SC) (cited supra), the claimant in that case was aged about 20 years and he was a building centring worker and he suffered amputation of right leg below the knee. The doctor assessed the disability at 70% of right lower limb and at 35% of whole body. The High Court and the Apex Court fixed the disability at 50% and accordingly assessed the pecuniary loss. The said principle is sought to be applied in this case by the learned counsel for the insurer. The facts of this case and the fact of the said case are totally different. There, the amputation was below the right knee and there also, the Apex Court applied the multiplier method and therefore, the said decision will not, in any way, advance the case of the insurer. 28. In the decision reported in 2010 (2) TN MAC 211 (DB) (cited supra), a Division Bench of this Court, while considering the case of an injured, who is a marine radio officer and who got his left hand amputated, fixed the disability at 80% and after considering Section 4 and Part II Schedule I of the Workmen s Compensation Act, this Court awarded a sum of Rs.7.5 lakhs as compensation for the amputation of left hand. The said decision is not applicable to the facts of this case, as, in this case, the right leg 5 inches below the hip has been amputated and the claimant has lost his job as a driver and he cannot be employed as a driver ever in future. 29. The facts of the case reported in 2010 ACJ 2867 (cited supra) are totally different and therefore, this decision is not applicable to the facts of this case. 30. In the decision reported in 2010 ACJ 2859 (cited supra), the claimant was a driver of a corporation bus and the bus met with the accident during the course of his employment, due to which, he sustained injuries and was no longer able to drive a vehicle and the corporation retained him as a peon on the same salary. In such a factual background, the compensation was assessed. The Apex Court observed that the workman has lost his capacity to function as driver, but with the help of external aids, his mobility has been restored to some extent and he is able to perform the work suitable to his physical condition and that the injuries did not disable the workman permanently from earning his living other than as a driver. The Apex Court further held that the alternate employment given to the claimant on the same salary which he was enjoying before the accident has to be kept in mind while computing loss of earning capacity. In this case, it is not the case of the insurer that the claimant has got alternate employment for the same salary whereas the finding in this case is that the claimant has lost his employment as a driver and is unfit to be a driver in future and it is proved by medical evidence as pointed above that the claimant is not able to attend any other alternate employment. Therefore, the said decision is not applicable to this case. 31. In the decision reported in CDJ 2011 SC 1131 (cited supra), the claimant was a helper and he had not produced any evidence to prove the factum of employment and the payment of salary by his employer. In such circumstances, the Apex Court held that the salary payable to a worker under Minimum Wages Act should be taken into consideration. But, in this case, the claimant was a driver and the Tribunal, having disbelieved the evidence regarding salary of the claimant, has applied minimum wages as prescribed under the Minimum Wages Act. 32. The decision reported in 2011 ACJ 1 (cited supra) has been relied upon both by the insurer as well as the claimant. In the said decision, the Apex Court has laid down that the ascertainment of the effect of permanent disability on the actual earning capacity involves three steps and the same has been laid down in paragraph 10, which reads as follows : The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (sic disability) (this is also relevant for awarding compensation under the head loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions, and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings , if claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100 per cent (or even anything more than 50 per cent), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. A reading of the aforesaid extracted passage of the Apex Court s decision shows that the Apex Court itself has pointed out that if the left hand of a claimant is amputated, the permanent physical or functional disability may be assessed around 60%. If the claimant was a driver or carpenter, the actual loss of earning capacity may virtually be 100%, as he is not able to do either driving or carpentry. 33. Therefore, when the claimant in this case has suffered 80% permanent disability due to the amputation of his right leg 5 inches below the hip and he has lost his job as a driver and he cannot drive any vehicle any more, the actual loss of earning capacity is virtually 100%. Therefore, the Tribunal is right in coming to the conclusion that the permanent disability is 100%. In the absence of any acceptable evidence that in spite of amputation of his right leg, the claimant is able to do some other alternate job and earn, the contention of the learned counsel for the insurer that he can attend to some other alternate employment cannot be countenanced. 34. As far as the fixation of monthly salary of Rs.8,000/- and the adoption of multiplier as 17 by the Tribunal are concerned, we are of the considered view that the Tribunal is right. Therefore, we do not find any reason to interfere with the pecuniary loss, which has been assessed at Rs.16,32,000/-. 35. As far as the other conventional damages awarded by the Tribunal are concerned, the sum of Rs.1 lakh awarded towards pain and suffering cannot be said to be on the higher side and hence, the same is confirmed. But, the Tribunal is not justified in granting a sum of Rs.50,000/- towards mental agony. Therefore, the same is set aside. As far as the sum of Rs.50,000/- awarded towards loss of expectancy is concerned, the same appears to be reasonable and hence, the same is confirmed. The Tribunal is not right in awarding a sum of Rs.50,000/- for fixing the artificial limb, when it is the evidence of the doctor PW4 that no artificial limb can be fitted to the claimant and therefore, the award of the said sum of Rs.50,000/- is set aside. Certainly, the claimant will be having several inconveniences in his day to day life and he cannot act independently and hence, the award of Rs.25,000/- towards loss of amenities is confirmed. Further, the award of Rs.25,000/- towards extra nourishment, transport to hospital, medical expenses and damages is also found to be reasonable and therefore, the same is confirmed. In our considered view, the sum of Rs.24,000/- awarded towards loss of earnings for a period of three months is not correct, since, admittedly, the claimant was taking treatment not only as an inpatient, but also thereafter as an outpatient for a number of months and considering the nature of injuries sustained by him, the loss of earnings should have been awarded for a minimum period of one year and accordingly, for twelve months at Rs.8,000/-, Rs.96,000/- is awarded. 36. Mr.M.Swamikannu, learned counsel for the claimant, placing reliance on the decision in Kothandapani s case, has rightly contended that even though the pecuniary loss has been arrived by applying multiplier method, the claimant is entitled to compensation towards permanent disability. In this case, the permanent disability has been assessed at 80% by the doctor and accordingly, the claimant is entitled to a compensation of Rs.1,60,000/-. Thus, in total, the claimant is entitled to a sum of Rs.20,88,000/- with interest at 7.5%. 37. For the aforesaid reasons, CMA.NPD.No.2597 of 2011 filed by the insurer is dismissed and CMA.NPD.NO.2630 of 2011 filed by the claimant is partly allowed. The claimant is entitled to a sum of Rs.20,88,000/- (Rupees twenty lakhs eighty eight thousand only) together with interest along with accrued interest and costs awarded by the Court below. It is seen that this Court, at the time of granting interim stay on 12.8.2011, directed the insurer to deposit a sum of Rs.12 lakhs with proportionate interest to the credit of the said original petition and it is represented that a sum of Rs.10 lakhs has also been directed to be withdrawn by the claimant by an order dated 26.9.2011. Therefore, the insurer is directed to deposit the difference in the award amount to the extent indicated above in this judgment together with interest to the credit of the said original petition within a period of eight weeks from the date of receipt of a copy of this order and on such deposit, the claimant is permitted to withdraw the entire amount lying to the credit of the said original petition. Consequently, all connected pending MPs are closed. No costs. RS To The Registrar, Small Causes Court Chennai

no grounds to discharge the accused =Smt.Shanthi had made allegations against the petitioner that posing himself to be an L.I.C. Agent, he collected money from her and other persons on the pretext of investing the same with L.I.C. under certain schemes, which would bring attractive returns and also by promising to get loans sanctioned for them and cheated those persons by not investing the same as promised and misappropriated the same for his personal use. As pointed out supra, after investigation, the Investigating Officer submitted the final report to the effect that there were enough materials to prosecute the petitioner for the offence of cheating punishable under Section 420 I.P.C. As many as 25 witnesses were cited. 5. The petitioner on appearance sought an order discharging him from the above said case on the following grounds: (i) Though several persons were alleged to be cheated, except the complaint of Shanthi, no other complaint is available. (ii) The said Shanthi has sworn an affidavit, when requested by the petitioner, stating that she did not lodge any complaint against the petitioner. (iii) One Paulraj cited as witness No.19 is said to have given statement under Section 161(3) Cr.P.C., whereas he was not in India on the date on which his statement was allegedly recorded. (iv) Though the complaint to Police is said to have been lodged by Shanthi, who is cited as witness No.1 in the annexure to the charge sheet, the complaint was actually signed by one Srimathi in Malayalam. AND (v) After the filing of the discharge petition, the signature of Srimathi in Malayalam found in the complaint was erased and the signature purporting to be that of Shanthi has been put up, showing mutilation and even forgery.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/01/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.(MD) No.865 of 2011 and M.P.(MD) No.1 of 2011 Vijayakumar . . . Revision Petitioner/ Accused Vs. The State Rep. by its Sub-Inspector of Police, Kollencode Police Station, Kanyakumari District. Crime No.216 of 2008. . . . Respondent/Complainant Prayer Criminal Revision Case is filed under Sections 397 and 401(1) of Cr.P.C praying to set aside the order passed in Cr.M.P.No.864 of 2009 in C.C.No.4 of 2009 dated 06.07.2011 passed by the Judicial Magistrate No.2, Kuzhithurai in Crime No.216/08 on the file of the respondent police. !For petitioner... Mr.T.Jeen Joseph ^For Respondent... Mr.P.Kandasamy Government Advocate (Criminal side) :ORDER The sole accused in C.C.No.4 of 2009, on the file of the learned Judicial Magistrate No.2, Kuzhithurai is the petitioner in the present Criminal Revision Case. A case was registered on the file of Kollencode Police Station as Crime No.216 of 2008 on the file of the said police station for the offence punishable under Section 420 I.P.C. On completion of investigation, the respondent submitted a final report alleging commission of the said offence on the part of the petitioner herein, who allegedly cheated several persons including one Shanthi, the defacto complainant, based on whose complaint the case was registered by the police. The said final report was taken on file by the learned Judicial Magistrate No.2, Kuzhithurai in C.C.No.4 of 2009 on the file of the said Court. 2. On appearance, the sole accused, who is the petitioner herein submitted a petition seeking an order of discharge under Section 227 of the Code of Criminal Procedure. The same was taken on file as Cr.M.P.No.864 of 2009 in C.C.No.4 of 2009 on the file of the Judicial Magistrate No.2, Kuzhithurai. After enquiry, the learned Judicial Magistrate dismissed the said petition, declining the relief of discharge sought for by the accused/petitioner in the Criminal Revision Case. The impugned order came to be passed on 06.07.2011. The correctness and legality of the order is sought to be challenged by invoking the revisional powers of this Court. 3. Notice before admission was given to the learned Government Advocate (Criminal side) representing the respondent. The submissions made on both sides were heard and the Revision Petition, certified copy of the impugned order of the Court below and copies of the relevant documents produced in the form of typed set of papers and additional typed set of papers by the petitioner were also perused. 4. It seems one Smt.Shanthi W/o Rajan of Kennakadu Veedu, Kollancode preferred a petition before the Superintendent of Police, Kanyakumari District alleging cheating on the part of the petitioner herein of the above said Shanthi and several others, which was referred to the jurisdictional police, namely Kollancode Police Station by the Office of the Superintendent of Police for necessary action. In the said complaint Smt.Shanthi had made allegations against the petitioner that posing himself to be an L.I.C. Agent, he collected money from her and other persons on the pretext of investing the same with L.I.C. under certain schemes, which would bring attractive returns and also by promising to get loans sanctioned for them and cheated those persons by not investing the same as promised and misappropriated the same for his personal use. As pointed out supra, after investigation, the Investigating Officer submitted the final report to the effect that there were enough materials to prosecute the petitioner for the offence of cheating punishable under Section 420 I.P.C. As many as 25 witnesses were cited. 5. The petitioner on appearance sought an order discharging him from the above said case on the following grounds: (i) Though several persons were alleged to be cheated, except the complaint of Shanthi, no other complaint is available. (ii) The said Shanthi has sworn an affidavit, when requested by the petitioner, stating that she did not lodge any complaint against the petitioner. (iii) One Paulraj cited as witness No.19 is said to have given statement under Section 161(3) Cr.P.C., whereas he was not in India on the date on which his statement was allegedly recorded. (iv) Though the complaint to Police is said to have been lodged by Shanthi, who is cited as witness No.1 in the annexure to the charge sheet, the complaint was actually signed by one Srimathi in Malayalam. AND (v) After the filing of the discharge petition, the signature of Srimathi in Malayalam found in the complaint was erased and the signature purporting to be that of Shanthi has been put up, showing mutilation and even forgery. 6. It is not the case of the petitioner that the documents produced and the evidence sought to be adduced on the side of the prosecution are not enough to make out a case of cheating as alleged in the final report and hence, the petitioner is entitled to an order of discharge. In short, what the petitioner wants is an appreciation and evaluation of evidence proposed to be adduced by the prosecution to find out whether the accused could have committed the alleged offence or not. It is trite law that while considering the question of framing of charge or discharging the accused, the Court shall not attempt to evaluate or appreciate evidence and the Court has to decide whether a conviction is possible if the records produced by the prosecution are believed to be hundred per cent true and genuine. 7. In this case, as stated supra, it is not the case of the petitioner that the case shall not end in conviction even if the materials placed by the prosecution are presumed to be genuine. On the other hand, what the petitioner attempts is to seek an order of discharge based on pleas of defence that can be raised during trial in order to disprove the case of the prosecution or prove his innocence. The first contention of the petitioner is that though more than 30 persons are said to have been cheated and all of them made complaints, except the complaint of Shanathi, the complaints of others alleged to have been cheated are not available. Normally in case of cheating of the public, a case will be registered based on the information of one of the persons, who have been allegedly cheated. The complaint that is received by the police first in point of time shall form the basis of F.I.R. and the informations received from the other persons shall be treated as their statements recorded under Section 161(3) Cr.P.C. In this case, the complaint in writing was given by Shanthi, who has been cited as witness No.1 and the same has been made the basis of F.I.R. We cannot expect any further complaint in this case to have been received from any other person. The other persons, allegedly cheated by the petitioner seems to have given their statements before the police and the same have been recorded under Section 161(3) Cr.P.C. Therefore, there is no substance in the contention raised by the petitioner that though several other persons were alleged to have been cheated, no complaint of any one of them is available and that the absence of the complaint of others will vitiate the prosecution leading to the discharge of the petitioner (accused) and the said contention deserves rejection. 8. The second contention raised by the petitioner is that the alleged defacto complainant Shanthi has sworn an affidavit at the request of the petitioner to the effect that she did not lodge any complaint with the police against the petitioner. The said material may, at the best, serve as a defence material for the proof of the defence case of the petitioner and such an evidence shall not be looked into at this point of time to decide whether the complaint is true or false. If such a contention is accepted, then every accused will try to win over the complainant and get an affidavit to the effect that no complaint was given by the defacto complainant against the accused, to get an order of discharge. Hence, the second contention also is rejected as untenable. 9. The next contention of the petitioner is that one of the victims Paulraj cited as 19th witness, could not have given any statement under Section 161(3) Cr.P.C., as he was not in India on the date on which the alleged recording of his statement by the Investigating Officer was done. In support of his contention, the petitioner wants to produce a photo copy of the Passport of the said Paulraj. In effect, the present contention seems to be an evidence of alibi that the concerned witness was somewhere else and hence, he could not have been examined by the Investigating Officer on the date on which he was allegedly examined. Such a plea of alibi has to be raised and proved by the person making such plea of alibi. Therefore, the said ground cannot be pressed into service as a ground for seeking discharge. 10. The next contention raised by the petitioner is that though the complaint was allegedly given by one Shanthi, it was in fact signed by one Srimathi in Malayalam and when the same was brought to the notice of the Police, Police caused manipulation in the complaint after the same had been submitted to the Magistrate and while the same was in the custody of the Court. Such a far- fetched allegation cannot be accepted on its face value at this point of time. Evidence is needed to be adduced to prove such a fact of alteration and mutilation of complaint and First Information Report. 11. The learned counsel for the petitioner submits that the petitioner has also preferred a complaint against the Police Officer concerned on the allegation of effecting corrections in the complaint and the first information report. Whether there is any correction? If so, on what point of time that was made? What evidentiary value can be attached to such corrected complaint? are the questions to be considered only in trial. The said question cannot be gone into at this point of time. 12. The learned Judicial Magistrate No.2, Kuzhithural applied the correct principles of law and on proper consideration of the materials in the light of the provisions dealing with discharge of accused, for the limited purpose of deciding whether the accused can be discharged or not, has arrived at a correct conclusion that the case is not a fit one for passing an order discharging the accused/ petitioner herein and that the petition seeking discharge deserves to be dismissed. There is no defect or infirmity, much less illegality in the order passed by the learned Judicial Magistrate warranting interference by this Court by exercising of its revisional powers. The Criminal Revision Case deserves dismissal in limine. 13. Accordingly, the Criminal Revision Case is dismissed. Consequently, connected M.P.(MD) No.1 of 2011 is dismissed. sj To: 1.The Judicial Magistrate No.2, Kuzhithurai. 2.The Sub-Inspector of Police, Kollencode Police Station, Kanyakumari District. 3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Or.1 rule 10 impleading of a party ?=Basically, it is for the plaintiff in a suit, to identify the parties against whom he has any grievance and to implead them as defendants in the suit filed for necessary relief. He cannot be compelled to face litigation with the persons against whom he has no grievance. Where, however, any third party is likely to suffer any grievance, on account of the outcome of the suit, he shall be entitled to get himself impleaded. The question as to whether an individual is a proper or necessary party to a suit, would depend upon the nature of relief claimed in the suit and the right or interest projected by the persons, who propose to get themselves impleaded. No hard and fast rule can be weighed, that would cover a possible situation in this regard.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY C.R.P.No.716 of 2011 08-07-2011 Pallapu Mohanarao (died) per LRs ..petitioners And Thammisetty Subba Rao & others ..Respondents Counsel for the petitioners: Sri M.R.S. Srinivas Counsel for respondents : ORDER: The 1st respondent filed O.S.No.229 of 2005 in the Court of Principal Senior Civil Judge, Ongole, against the respondents 2 and 3 for the relief of specific performance of agreement of sale in respect of the suit schedule property, a rice mill. Petitioners 2 to 4 are the children, and petitioner No.5 is the wife of the 2nd respondent, i.e. the 1st defendant. They filed I.A.No.520 of 2008 under Order 1 Rule 10 C.P.C., with a prayer to implead them as defendants. It is pleaded that the 2nd respondent herein colluded with the 1st respondent, the plaintiff, who is none other than his brother-in-law and got filed the suit, to knock away the joint family property. They also stated that the alleged agreement of sale is inoperative in law. Reference was made to a decree dated 25-01-2008 in O.S.No.102 of 2007 passed by the Court of Additional Senior Civil Judge, Ongole, for partition between themselves and the respondents 2 and 3, in respect of various items, including the suit schedule property in O.S.No.229 of 2005. The application was opposed by the 1st respondent. He pleaded that the petitioners are neither proper nor necessary parties and that the application is filed only with an object of protracting the proceedings. The trial Court dismissed the I.A., by placing reliance upon the judgment of the Supreme Court in KASTURI V. IYYAMPERUMAL1. Sri M.R.S. Srinivas, learned counsel for the petitioners submits that the view taken by the trial Court is not correct, and that the subsequent judgment of the Supreme Court in SUMTIBAI v. PARAS FINANCE CO.2 holds good. He contends that it is only when the proposed party does not have any right or interest whatever, that an application to get himself impleaded in a suit for specific performance can be rejected. Learned counsel submits that by virtue of there being properties of the joint family, and the beneficiaries under a preliminary decree, passed in O.S.No.229 of 2005, the petitioners are necessary parties. The notice sent to the 1st respondent was returned with an endorsement that the addressee refused to receive it. Hence, it is deemed that the notice is served upon him. The record discloses that the 2nd respondent did not contest the I.A. Basically, it is for the plaintiff in a suit, to identify the parties against whom he has any grievance and to implead them as defendants in the suit filed for necessary relief. He cannot be compelled to face litigation with the persons against whom he has no grievance. Where, however, any third party is likely to suffer any grievance, on account of the outcome of the suit, he shall be entitled to get himself impleaded. The question as to whether an individual is a proper or necessary party to a suit, would depend upon the nature of relief claimed in the suit and the right or interest projected by the persons, who propose to get themselves impleaded. No hard and fast rule can be weighed, that would cover a possible situation in this regard. In KASTURI'S case (1 supra), the Hon'ble Supreme Court was dealing with an application filed under Order 1 Rule 10 C.P.C., in the suit filed for the relief of specific performance of an agreement of sale. It was held that unless the proposed parties have any subsisting rights, their application to get themselves impleaded cannot be entertained. It was also clarified that, if they specify or indicate any subsisting right, they can certainly be impleaded. In a subsequent decision rendered by the Supreme Court in SUBTIBAI'S case (2 supra), the purport of the judgment in KASTURI'S case (1 supra) was explained. It was mentioned that mere likelihood of persons acquiring right or interest in the subject- matter of a suit would be sufficient for the concerned individual to get himself impleaded. This Court in INDU BAI AND ANOTHER v. RAJENDRA KUMAR BHANDARI AND ANOTHER3 held as under: "...It is true that an individual cannot be subjected to unnecessary litigation and he cannot be made to answer a person with whom he does not have any privity of contract or other relation. This principle, however, needs a different approach, when it comes to the suits for specific performance. Though the ultimate obligation, in the event of a suit decree for specific performance being passed, would rest upon the vendor under the agreement, in the context of recovery of possession or neutralizing the subsequent developments, it becomes essential to add everyone, who had a right or interest, vis--vis the property, either as on the date of the agreement of sale, or subsequent thereto". Recently, in MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY CONVENTION CENTRE & HOTELS PVT. LTD. AND OTHERS4, the Supreme Court rendered another judgment. It was held that as long as the addition of a third party as a defendant does not widen the scope of the suit, the application can be ordered. The principle was explained as under: "Para-12.4: If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides etc., the Court will normally implead him, if he is found to be a proper party. On the other hand, if a non- party makes an application seeking impleadment as a proper party and Court finds him to be a proper party, the Court may direct his addition as a defendant; but if the Court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the Court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if 'D' claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of 'P' representing that he is the co- owner with half share, and 'P' files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the Court may permit the other co-owner who contends that 'D' has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the Court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the Court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject-matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the Court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party." In the instant case, the petitioners pleaded that the mill is the property of the joint family headed by the 2nd respondent, i.e. the 1st defendant in the suit, and that a preliminary decree for partition was obtained by them, in respect of the properties held by the joint family. The 2nd respondent did not file any counter, disputing the claim made by the petitioners. The allegation of the petitioners that the 1st respondent is the brother-in-law of the 2nd respondent and that the suit engineered by both of them in collusion with each other, to deprive the other members of the joint family of their share, was not rebutted. It is a matter of record that there exists a preliminary decree, to which the petitioners, on the one hand, and respondents 2 and 3, on the other hand, are parties, and the subject-matter of the present suit is one of items therein. Therefore, the petitioners are proper and necessary parties to the I.A. The C.R.P is accordingly allowed, and the order under revision is set aside. As a result, I.A.No.520 of 2008 is allowed, and the petitioners 2 to 5 shall stand added as defendants at their proper places in the suit. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.08-07-2011. KO 1 AIR 2005 SC 2813 2 AIR 2007 SC 3166 3 2009(5) ALD 402 4 2010 (5) ALD 24 (SC)

child custody =In normal course, natural parents cannot be deprived of visiting rights of their child. But, in the instant case, the approach of the respondents to have the custody of the minor ward is something different from that of a normal parents' approach. The child was born on 25.04.2001. It is the case of the respondents that they left the child with the petitioners in the year 2004. But, the same is denied specifically by the petitioners and it is the case of the petitioners that on the 9th day after the birth, the minor ward was given to them and since then she is with them. Practically, the child has grown with the petitioners and is treating them as natural parents. Instead of seeking custody of their child through the competent court of law, it is clear that respondents made a futile attempt to have the custody forcibly, by making false allegations of kidnap and demand of money by the petitioners and obtained search warrant. Pursuant to such warrant, not only search was made in the house of the petitioners, but also in the School of the minor ward and she was taken by the Police from the School to the learned Magistrate. It appears, after enquiring the wishes of the child and her grandparents, petition was closed. Thereafter, the said order was also confirmed in Criminal Revision Case filed by the respondents referred hereinabove. Even thereafter, when the respondents filed a Writ of Habeas Corpus before this court, the same too ended in dismissal. In view of such steps taken against the petitioners and the minor ward, it appears, a sort of fear is developed in her mind and thereby she is even refusing to spare any time with them. Such attitude of the child was clearly discernible when she was examined by this court. When her wishes were enquired, she started crying inconsolably. Therefore, it cannot be said that she was tutored by the petitioners herein not to go with the respondents. For the aforesaid reasons, I am of the considered view that allowing visiting rights of the minor ward by the respondents, as ordered by the court below, will definitely have an adverse impact on the welfare of the minor ward and therefore I hold that the respondents are not entitled for any visiting rights of the minor ward unless a congenial atmosphere is developed.

HON'BLE MR. JUSTICE R. SUBHASH REDDY Civil Revision Petition No.1681 of 2011 16.12.2011 Mohd. Haleem @ Sajid and another Dr.Shafiuddin Ali Ahmed and another Counsel for the petitioner:Sri Mirza Safiulla Baig Counsel for respondents: Sri P. Keshava Rao Order: This civil revision petition, under Article 227 of the Constitution of India, is filed by the respondents in O.P.No.131 of 2010, questioning the order dated 22.03.2011 passed, in I.A.No.211 of 2010 in, by the learned III Additional District Jude, Warangal. 2. The aforesaid O.P. is filed under the provisions of the Guardians and Wards Act, 1890 (for short 'the Act') for grant of custody of minor ward - baby Shaika Ali Ahmed. Pending adjudication of the claim in the said O.P., they filed I.A.No.211 of 2010 under Section 12 of the Act for grant of interim custody of the minor ward. 3. The said I.A. is filed with the allegations which read as under: In the year 2004, the 1st respondent had to go to East Africa on his job assignment and the 2nd respondent was staying at Kazipet along with her in-laws. They were blessed with twins and as the Doctor advised to keep them separately to avoid infections, and as the petitioners are not having children, they were given custody of their minor ward temporarily. Later, they shifted to Hyderabad and used to visit their daughter once in a week and also used to bring her to Hyderabad during festivals and other occasions. It is alleged that from 2005 onwards, petitioners are claiming that the minor baby is their child, but at their instance, petitioners have executed a document dated 16.03.2005 admitting that the stay of the minor ward with them is temporary and they will hand over to the respondents whenever they request. Pleading that in spite of their request from the year 2005 onwards, petitioners are avoiding to hand over their minor ward to them and as they have no legal right on her for her custody, respondents have moved the I.A. for interim custody and also for visiting rights. It is alleged by the respondents that petitioners are not bestowing proper care to their daughter; as such they prayed for interim custody and also for visiting rights. 4. Petitioners herein, opposing the I.A., have filed counter. While denying the allegations of the respondents, it is the case of the petitioners that the minor ward was born on 25.04.2001 and on 02.05.2001, i.e. on the 9th day after birth, custody was given to them with complete willingness and consent and they have been looking after the child with care; she is aged about 9 years and she is not willing to join the respondents-parents. 5. In the aforesaid I.A., no evidence was let in by the parties, but the learned III Additional District Judge, Warangal, by the impugned order, by recording a finding that paramount consideration for grant of custody is the welfare of the minor and after enquiring with the minor ward, who has bluntly refused to go with the respondents, has rejected the claim of the respondents for custody of the minor during pendency of the proceedings. But, the I.A. was partly allowed permitting the respondents to have the visiting rights on the child on every 1st and 3rd Sunday between 3.00 to 7.00 p.m., at the house of the petitioners or at any place at Hanamkonda agreed by both parties, till the disposal of the O.P. 6. In this revision petition, it is contended by Sri Mirza Safiulla Baig, the learned counsel for petitioners, that the court below has committed serious error by permitting the respondents to have visiting rights. As the minor ward is not willing to spare any time even for visiting rights and in spite of her blunt refusal when she was examined, in spite of the same, the impugned order is passed. It is further contended that in view of the various steps taken by the respondents before filing of the I.A., if visiting rights are allowed, as ordered by the court below, it will affect the studies as well as the overall welfare of the child. 7. In support of his arguments, the learned counsel for petitioners has relied on a decision of the Hon'ble Supreme Court in Smt. Anjali Kappor v. Rajiv Baijal1 8. On the other hand, it is contended by Sri P. Keshava Rao, the learned counsel for respondents that as it is not in dispute that respondents are the natural parents, they are entitled for custody of the minor ward and also for visiting rights; as such, there is no illegality in the order under challenge wherein visiting rights were granted to them to visit the minor on every 1st and 3rd Sunday. It is further contended that as the minor ward is staying with the petitioners for the last several years, to maintain relationship and contact with her, such visiting rights are essential and therefore the same are granted by the court below. The learned counsel, in support of his contentions, relied on the following decisions. Vishnu Priya and Others v. Jaya2 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi3 Mohd. Zafarullah Khan v. Yasmeen4 Baddi Reddi Bulliraju v. Kedam Surya Rao5 9. Having heard the learned counsel for the parties, I have perused the order under challenge, the affidavit filed in support of the I.A. and also the counter filed thereagainst. 10. It is to be noticed that the minor ward was born on 25.04.2001. Whereas it is the case of the respondents that they left the child with the petitioners when the 1st respondent was proceeding to East Africa on an assignment, on the other hand, it is the case of the petitioners that respondents were blessed with twins; the child was handed over to them on the 9th day after birth, i.e. on 02.05.2001 with complete willingness and consent; they have admitted the child in a good school in Warangal and are taking good care of her. It is stated that the minor ward is not willing to spare any time with respondents. 11. In normal course, when visiting rights are given to natural parents, this court is slow in interfering with such orders passed during pendency of the main proceedings. The learned III Additional District Judge had enquired the wishes of the child. Further, when it was represented that the minor ward is not willing to spare any time with the respondents, even for visiting, on 13.09.2011, I personally enquired the wishes of the child in the presence of the parties and their counsels. When the child was asked whether she was willing to spend some time with the respondents, she started crying instantaneously and bluntly refused to go with the respondents. However, it is the case of the respondents that she was tutored not to go with the respondents; as such she is reluctant to join the respondents. But, the conduct of the child, when I examined her on 13.09.2011, would go to show that she has developed some sort of fear and is unwilling to spare any time with the respondents. It appears, respondents themselves are responsible for developing such attitude on the part of the child, by taking steps against the petitioners and the child. As evident from the additional material placed before this court and the averments made in the counter filed by the petitioners to the I.A., it is clear that respondents have not proceeded fairly to claim custody of the minor ward at initial stages. The 1st respondent herein, who is the natural father of the child, has filed Crl.M.P.No.9618 of 2008 before the XI Additional Chief Metropolitan Magistrate, Secunderabad alleging that the petitioners herein are demanding a ransom of Rs.1 crore to hand over the child by kidnapping her and obtained a search warrant. It appears, in pursuance of the order passed by the learned Magistrate, search was carried out in the house of the petitioners and as the minor ward was not found, the Police went to the School of the minor ward, took her and produced before the learned Magistrate. Ultimately, after examining the minor ward and also her grandparents, the learned Magistrate has passed the following order: "Police, Trimulgherry produced the baby by name Sheeka Ali Ahmed at 5.00 PM. On examination of both the persons and also baby, the baby has informed before the Court she want to go along with Mohd.Haleem, and wants to live with them. The grandfather and grandmother were also present and stated that they have given the baby for adoption. Hence it shows there is no criminal act for kidnap of the child. If at all there is any dispute with regard to the ownership of the child both parties are directed to approach the concerned court as this court has no jurisdiction. Hence baby was returned back to the respondent. Hence petition is closed." 12. Against the said order, respondents have filed Crl.R.C.No.289 of 2009 before this court, which was dismissed by a learned single Judge, by order dated 18.03.2009 confirming the order passed by the XI Addl. Chief Metropolitan Magistrate, Secunderabad. Further, alleging that the minor ward was detained illegally, respondents filed W.P.No.6409 of 2009 under Article 226 of the Constitution of India seeking a Writ of Habeas Corpus for production of the minor ward. The same was dismissed by a Division Bench of this court by order dated 03.06.2009. 13. It is not in dispute that the natural parents have preferential right for the custody of the child and in normal course they cannot be denied visiting rights of the child, but, the claim for visiting rights and custody are to be examined keeping in mind the welfare of the child, which is the paramount consideration. Such view is taken by the Hon'ble Supreme Court in number of decisions wherein it is stated that ward's welfare is to be taken as paramount consideration while considering applications for grant of interim custody and visiting rights. At this juncture, I refer to the judgment of the Supreme Court in the case of Anjali Kapoor (1 supra) wherein, while allowing the maternal grandmother of the ward to retain the custody of the child, the Hon'ble Supreme Court has held as under: "Ordinarily, under the Guardians and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child." 14. Further, in the judgment in the case of Vishnu Priya and others (2 supra), relied on by the learned counsel for respondents, when the minor children refused to go with the father, the Supreme Court has held that forcibly putting children in the custody of the mother would traumatize them and do no good to anybody. In such circumstances, it is held that better course would be to allow the mother to make initial contact with the children and build her relationship with them and gradually restore her position as mother. In the case of Kirtikumar Maheshankar Joshi (3 supra) when there was a claim for grant of custody of minor children by father as well as maternal uncle, the Hon'ble Supreme Court has held that though the father, being a natural guardian, has a preferential right to the custody, but, in the interest and welfare of the children, directed to hand over custody of the children to their maternal uncle instead of their father. Further, in the case of Mohd. Zafarullah Khan (4 supra), a learned single Judge of this court has indicated the factors to be taken into account in considering the question of granting interim custody of minors pending consideration of applications under Section 7 of the Act. From the said judgment, it is clear that, ultimately, the welfare of the child is the paramount consideration for the purpose of giving interim custody and also visiting rights. In this case, it is to be noticed that when wishes of the minor child were enquired into even by this court, she has bluntly refused to go with the respondents. Even with regard to grant of visiting rights, the same are not absolute and paramount consideration is to be given to the welfare of the child. The word 'welfare' has no precise meaning. While considering the welfare of the child, various aspects such as wellbeing, happiness of the child and the surroundings in which the child is being brought up and also the education of the child are to be examined having regard to the facts and circumstances of each case. In normal course, natural parents cannot be deprived of visiting rights of their child. But, in the instant case, the approach of the respondents to have the custody of the minor ward is something different from that of a normal parents' approach. The child was born on 25.04.2001. It is the case of the respondents that they left the child with the petitioners in the year 2004. But, the same is denied specifically by the petitioners and it is the case of the petitioners that on the 9th day after the birth, the minor ward was given to them and since then she is with them. Practically, the child has grown with the petitioners and is treating them as natural parents. Instead of seeking custody of their child through the competent court of law, it is clear that respondents made a futile attempt to have the custody forcibly, by making false allegations of kidnap and demand of money by the petitioners and obtained search warrant. Pursuant to such warrant, not only search was made in the house of the petitioners, but also in the School of the minor ward and she was taken by the Police from the School to the learned Magistrate. It appears, after enquiring the wishes of the child and her grandparents, petition was closed. Thereafter, the said order was also confirmed in Criminal Revision Case filed by the respondents referred hereinabove. Even thereafter, when the respondents filed a Writ of Habeas Corpus before this court, the same too ended in dismissal. In view of such steps taken against the petitioners and the minor ward, it appears, a sort of fear is developed in her mind and thereby she is even refusing to spare any time with them. Such attitude of the child was clearly discernible when she was examined by this court. When her wishes were enquired, she started crying inconsolably. Therefore, it cannot be said that she was tutored by the petitioners herein not to go with the respondents. For the aforesaid reasons, I am of the considered view that allowing visiting rights of the minor ward by the respondents, as ordered by the court below, will definitely have an adverse impact on the welfare of the minor ward and therefore I hold that the respondents are not entitled for any visiting rights of the minor ward unless a congenial atmosphere is developed. 15. For the foregoing reasons, civil revision petition is allowed. Order dated 22.03.2011 passed, in I.A.No.211 of 2010 in, by the learned III Additional District Jude, Warangal, is set aside. Consequently, I.A.No.211 of 2010 stands dismissed. No order as to costs. _____________________ (R.SUBHASH REDDY, J) December 16, 2011 N.B: L.R. Copy be marked B.O. MRR

Division Bench of the Karnataka High Court in Writ Petition No. 31587 of 2011 whereby it had permitted JSS Medical College, Respondent No. 1 herein, to increase the seats for MBBS Course from 150 to 200 for the academic year 2011-2012,= "14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2012 (@ SLP (C) No. 27239 of 2011) MEDICAL COUNCIL OF INDIA ... Appellant Versus JSS MEDICAL COLLEGE & ANR. ... Respondents J U D G M E N T CHANDRAMAULI KR. PRASAD, J. 1. Medical Council of India, aggrieved by the interim order dated 24th August, 2011 passed by a Division Bench of the Karnataka High Court in Writ Petition No. 31587 of 2011 whereby it had permitted JSS Medical College, Respondent No. 1 herein, to increase the seats for MBBS Course from 150 to 200 for the academic year 2011-2012, has preferred this special leave petition. 2 2. Leave granted. 3. In view of the order which we propose to pass in this appeal it is inexpedient to give in detail the facts of the case. Suffice it to say that JSS Medical College, Respondent No. 1 herein (hereinafter referred to as `the College'), is recognized for imparting MBBS education with intake capacity of 150 students. On 27th of November, 2010, the College submitted an application for increase of intake capacity for the MBBS Course from the academic year 2011-2012 from 150 to 250. The Board of Governors, the body to which power has been vested to carry out the functions and duties of the Medical Council of India (hereinafter referred to as `the Board of Governors') appointed assessor by order dated 23rd of February, 2011 to assess the physical and other teaching facilities available for grant of letter of permission for the increase of MBBS seats from 150 to 250 to the College for the academic year 2011-2012. 4. In the light of the aforesaid order the assessor visited the College and made assessment of the 3 physical and other teaching facilities available for grant of letter of permission for increase of MBBS seats from 150 to 250 and submitted its report. The assessment report was considered by the Board of Governors which decided not to issue letter of permission for increase of seats as the infrastructure facilities, clinical material and faculty were inadequate. It also found deficiency in equipments and other deficiencies as pointed out in the assessment report. Accordingly, the Board of Governors by its letter dated 5th of May, 2011 called upon the College to submit its response as to why its proposal for increase of seats be not disapproved and returned. The College by its letter dated 21st May, 2011 submitted its response and claimed that it has adequate infrastructure, clinical material and teaching facilities to meet the teaching and training requirement for the enhanced intake of 250 students and, at the same time, wrote that in the event of the Board of Governors finding that the same are not adequate for granting increase of seats to 250, the request may be considered for enhanced intake from 4 150 to 200 seats. The compliance report submitted by the College along with assessment reports of the assessor were forwarded by the Board of Governors to the assessor by letter dated 1st of June, 2011 for their perusal and for carrying out the assessment for increase of MBBS seats from 150 to 250. It is relevant here to state that the College by its letter dated 3rd of June, 2011 wrote to the Coordinator of the assessment team "to revise the assessment for increase of MBBS seats from 150 to 200 admissions instead of 250 seats". By the said letter the College claimed that it had infrastructure facilities, clinical materials and teaching facilities including the instruments for 200 admissions for MBBS Course. 5. The claim for increase of seats from 150 to 250 was considered and the Board of Governors decided "to return the applications as disapproved for increase of seats from 150 to 250" for the academic year 2011- 2012 by its letter dated 30th of June, 2011. The College by its letter dated 8th of July, 2011 made request for reconsideration of increase of seats from 5 150 to 200 inter alia stating that "the team of assessors who visited the College on 3rd of June, 2011 after assessing the seats have not only recommended for continuation of 150 seats but also have recommended for additional 50 seats intake taking into account adequacy of additional facilities, book space, equipment and other facilities". The Board of Governors reconsidered the claim of the College with regard to increase of seats in MBBS Course from 150 seats to 200/250 seats and decided to reiterate its earlier decision as the cut of date for issuance of letter of permission, i.e., 30th of June, 2011 is already over. 6 6. Aggrieved by the same, the College filed the writ petition inter alia praying for quashing the decision of the Board of Governors dated 30th of June, 2011 and 5th of August, 2011 by issuance of a writ in the nature of certiorari or any other appropriate writ and further prayed for issuance of a writ in the nature of mandamus directing the Medical Council of India for issuance of letter of permission for increase of intake in its MBBS Course from 150 to 200 for the year 2011-2012 as also to admit 200 students. By way of interim relief the petitioner made the following prayer : "Pending disposal of the above writ petition, it is prayed that this Hon'ble Court may be pleased to permit the petitioner institution to admit to an intake of 200 students for its MBBS course as per recommendation of its expert body, subject to further orders of this Hon'ble Court in the interest of justice and equity" By the order impugned the High Court passed the following interim order : "The petitioner institution is permitted to increase the intake of MBBS students from 150 to 200 for the academic year 2011-2012. Medical Council of India is at liberty to indicate any deficiency if it comes across for the intake of 200 seats in MBBS for the academic year 2011-2012 and direct 7 compliance of the same within three months from the receipt of their communication. This order is subject to final result in the writ petition". 7. Mr. Nidesh Gupta, Senior Advocate appears on behalf of the appellant whereas Respondent No. 1 is represented by Mr. K.K. Venugopal, Senior Advocate. To put the record straight Senior Counsel representing the parties had addressed us in detail and invited us to finally pronounce the judgment on all issues. At one stage we were inclined to do that but finding that the present appeal is against an interim order and the High Court is yet to finally pronounce the judgment on merits, we declined to take the final call and intend to decide the validity of the interim order only. 8. Power to grant final relief implies within itself power to grant interim relief unless it is specifically prohibited by law. However, in the facts and circumstances of the case we are of the opinion that the High Court erred in permitting the increase of the seats by an interim order. It is not 8 in dispute that the Board of Governors for exercise of its statutory power under Section 10.A of the Medial Council of India Act, 1956 has fixed various schedules including last date for submission of the application for increase in the seats as also the date till when the Board of Governors had to take the decision. It is an admitted position that the College had made request for increase of seats from 150 to 250 within the time prescribed. It had not filled application for increase from 150 seats to 200 seats within the time stipulated but made request for increase of 200 seats after the assessor's report. It is not on prescribed format but by means of a letter. By that time the schedule fixed for increase of seats by the Board of Governors had already expired. 9. In view of these facts, following questions arise for consideration: 1. Whether or not the application filed by the College later on for consideration of its claim for the reduced seat of 200 after the expiry of period will date 9 back to the date of original application? 2. Whether or not the application for increase filed after the scheduled date is required to be considered? 3. Whether or not the assessors exceeded in its jurisdiction to consider the claim of the College for increase of 200 seats, when undisputedly they were assigned the task of assessing the College's claim for increase of 250 seats? 4. Whether or not the Board of Governors was right in rejecting the claim of the College on the expiry of the outer limit by which the decision to increase the number of seats was to be taken by it? 5. Whether or not the High Court while exercising the power under Article 226 and 227 of the Constitution of India 10 could straightaway permit increase of seats or direct for consideration of the claim by the competent authority? 10. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. High Court ought to realize that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in very awkward and difficult situation. If on ultimate analysis it is found that the College's claim for increase of seats is untenable, in such an event the admission of students with reference to the increased 11 seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase the seats, a task entrusted to the Board of Governors and that too by interim order. In a matter like the present one, decisions on issues have to be addressed at the interlocutory stage and they can not be deferred or dictated later when serious complications might ensue from the interim order itself. There are large number of authorities which take this view and instead of burdening this judgment with all those authorities it would be sufficient to refer to a three Judge Bench decision of this Court in the case of Medical Council of India v. Rajiv Gandhi University of Health Sciences, (2004) 6 SCC 76, in which it has been held as follows: "14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim 12 orders students who have been admitted in such institutions would be put to serious jeopardy, apart from the fact whether such institutions could run the medical college without following the law. Therefore, we make it clear that the High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of Section 10-A of the Medical Council Act. If interim orders are granted to those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutions." 11. For all these reasons we are of the opinion that the interim order passed by the High Court is unsustainable. Any observation made by us in this judgment is for disposal of the present appeal and shall have no bearing on the merits of the case. Further, as the matter pertains to increase in seats in educational institution, we deem it expedient that the High Court considers and disposes of the case on merit expeditiously. 12. Resultantly, we allow this appeal, set aside the impugned interim order of the High Court with the observation aforesaid. However, there shall be no order as to costs. 13 ...................................................................J (H.L. DATTU) ...................................................................J (CHANDRAMAULI KR PRASAD) New Delhi, January 11, 2012.