service matter – the appellant applied for the post of Laboratory Assistant, which is a District cadre post. He appeared before the Selection Committee consisting of respondent Nos. 4 to 6 but was not interviewed on the ground that he was not a permanent resident of District Udhampur.= There is nothing in the language of Rule 13(i) or any other Rule from which it can be inferred that for the District cadre post only a permanent resident of the particular district can apply. Rather, Rule 13(i) postulates inviting of applications from the permanent residents of Jammu and Kashmir and not any particular district. Only in terms of clause (ii) of Rule 13 the candidature of a person who applies for more than one district can be considered for the district in which he is ordinarily residing. In our view, in the absence of any statutory stipulation in that regard, it cannot be said that a candidate who is a permanent resident of the State of Jammu and Kashmir is not eligible to be considered for a District cadre post merely because he is not a permanent resident of the particular District for which the post has been advertised. It is declared that the appellant was eligible to be considered for the post of Laboratory Assistant for District Udhampur. The Board is directed to declare the result of the appellant’s interview within a period of 4 weeks from today. If it is found that the appellant’s name would have figured among the selected candidates, then the Board shall forward its recommendation to the appointing authority. This shall be done within 2 weeks of the declaration of result. Within next 4 weeks, the competent authority shall issue order appointing the appellant on the post of Laboratory Assistant. The appellant shall be entitled to have his seniority fixed in accordance with the Rules. The parties are left to bear their own costs.

                                                              NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.5217   OF 2012
                (Arising out of S.L.P.(C) No. 30744 of 2010)

Vinod Kumar Koul                             … Appellant
                                   versus
State of J & K and others                                … Respondents

                               J U D G M E N T
G. S. Singhvi, J.

1.    Leave granted.

2.    In response to an  advertisement  issued  by  the  Jammu  and  Kashmir
Services  Selection  Board,  Jammu  (for  short,  ‘the  Board’)  which   was
published in the newspaper dated 29.3.1996, the appellant  applied  for  the
post of Laboratory Assistant, which is a District cadre post.   He  appeared
before the Selection Committee consisting of respondent Nos. 4 to 6 but  was
not interviewed on the ground that  he  was  not  a  permanent  resident  of
District Udhampur.

3.    The appellant challenged the decision of the  Selection  Committee  in
SSWP No.1656 of 1996 not to  consider  his  candidature  on  the  ground  of
violation of Articles 14 and 16 of the Constitution. The  appellant  pleaded
that he was qualified for the  post  and  fulfilled  other  conditions.   In
support of his assertion that  he  was  a  permanent  resident  of  District
Udhampur, the  appellant  annexed  certificate  dated  15.2.1994  issued  by
Additional Deputy Commissioner, Udhampur.

4.    By an interim order dated 31.12.1996, the learned Single Judge of  the
High Court directed the Selection Committee to interview the  appellant  but
made it clear that his result shall not  be  declared  without  the  Court’s
order.

5.    The Board contested the writ petition primarily  on  the  ground  that
the appellant is not a permanent resident of District Udhampur and  that  in
view of Circular dated 20.5.1993, only an  unambiguous  permanent  residence
certificate issued by the competent  revenue  authorities  of  the  district
could be accepted.  Similar written  statements  were  filed  by  the  other
respondents.

6.    After considering the arguments of the counsel for  the  parties,  the
learned Single Judge dismissed the writ petition on  the  premise  that  the
selection was to be made only from  the  candidates  belonging  to  District
Udhampur and being a permanent resident of District Anantnag, the  appellant
was not entitled to be considered for appointment in District Udhampur.  The
Division Bench of the High Court agreed with the learned  Single  Judge  and
dismissed the appeal preferred by the appellant.

7.    We have heard learned counsel for the parties and perused the  record.
 In exercise of the powers conferred upon  him  under  Section  124  of  the
Constitution of Jammu and Kashmir, the Governor  of  the  State  framed  the
Jammu and Kashmir Subordinate Services Recruitment Rules, 1992  (for  short,
‘the Rules’).  Rules 3(ii), (v), (vi), (vii), (viii), 12,  13,  14  and  17,
which are relevant for deciding the question raised in this appeal, read  as
under:


      “3.  Definitions:-  In  these  rules  unless  the  context   otherwise
      requires:


        i. xxx         xxx


       ii. “Board” means the Services  Selection  Board  constituted  under
           these rules;

      iii. xxx         xxx

       iv. xxx         xxx

        v. “Subordinate Service” means and includes all non-gazetted  posts
           under the Government whether grouped into organized  service  or
           not;

       vi. “State Cadre” means the sanctioned strength of the  non-gazetted
           posts borne on the establishment of the headquartered offices of
           the departments having jurisdiction over  the  whole  state  but
           does not include the posts borne on the Divisional and  district
           cadres;

      vii. “Divisional Cadre” means the cadre  of  the  department  in  the
           Division comprising the following posts:-

           a.    All non-gazetted posts, the maximum of the  pay  scale  or
                 the pay as the case may be, of which exceeds Rs.  6000  per
                 month, exclusive of all allowances and dearness pay;


           b.    All non-gazetted posts, the maximum of the  pay  scale  or
                 the pay as the case may be of which  does  not  exceed  Rs.
                 6000 per month, exclusive of all  allowances  and  dearness
                 pay but which are borne on  the  establishment  of  offices
                 above the District level;

      viii. “District cadre” means the cadre of a department in  a  District
           comprising  all  the  posts  whether   executive,   ministerial,
           technical or manipulative maximum of the pay scale or the  basic
           pay of which does not exceed Rs.6000 per month exclusive of  all
           allowances and dearness pay;

      12. Procedure of referring vacancies to the Board
      (1) The Administrative Department concerned shall refer all  vacancies
      in the Subordinate Services to the Board by 15th January of every year
      strictly in accordance with SRO 166 of 2005 dated 14th January,  2005,
      as amended from time to time, for making selection of  candidates  for
      appointment to the posts.


      Provided that the Government may for any recruitment to be made  under
      rule 9-A, refer the vacancies in one go at any time.


      (2) While referring the vacancies to  the  Board,  the  administrative
      department shall specify the number of posts for which selection to be
      made from the reserved categories;


      Provided that the Appointing Authority may with the prior approval  of
      the Government  in  the  General  Administration  Department  and  for
      sufficient reasons to be recorded make appointment in individual cases
      or class of cases out side the purview of these rules.


      13. Procedure of selection by the Recruitment Board:-
      The Board shall make selection to the various posts in  the  following
      manner;-


           i)    The Board  on  receipt  of  the  reference  of  vacancies,
           advertise the posts, communicate copies of the advertisements to
           the respective employment exchange,  Government  Gazette,  press
           and other publicity media so as to achieve wide publicity;


           Provided that it shall be mandatory for the Board to:-


           (a)   club the vacancies of District  cadre  of  similar  nature
                 referred to it by any department in a calendar year;


           (b)   club the vacancies of Divisional cadre of  similar  nature
                 referred to it by any department in a calendar year;


           and advertise the same in one go as per laid down procedure  and
           invite applications from the permanent residents  of  Jammu  and
           Kashmir  without  prescribing  the  conditions  of   domiciliary
           requirements.


           ii) A candidate can apply only  in  one  district  for  District
           cadre posts and in one division in respect of  Divisional  cadre
           posts;


           Provided that  if  any  candidate  applies  for  more  than  one
           district or one division, his candidature  shall  be  considered
           only for the district or the division in which he is  ordinarily
           residing.


           iii)  The  Board  shall,  ordinarily,  restrict  the  number  of
           applicants for oral and/or written test, as the case may be,  to
           at least five times the number of  vacancies  on  the  basis  of
           academic merit in  the  qualifying  examination  converted  into
           points on prorata basis out of the total  points  allocated  for
           the basic eligibility qualification and grant of  weightage  for
           the higher qualification  in  the  discipline  concerned  to  be
           allowed in the manner and to the extent as the  Board  may  deem
           appropriate for according due consideration  to  the  merit  and
           proficiency in higher qualification:


           Provided that the Board may,  for  reasons  to  be  recorded  in
           writing, conduct a written test for short listing the candidates
           for admission to the oral test and for purpose of  selection  of
           candidates.


           iv) The Board shall allot the requisite number of candidates  in
           order of merit and reservation as  referred  by  the  appointing
           authority. The Board shall not maintain any select list for  any
           casual or future vacancies;


           v) The General  Administration  Department  may  prescribe  such
           proformae as are required for  reference  of  vacancies  to  the
           Board and for communicating the select list from time to time.


      14. Power to make regulation: -
      The Services Selection Board may if it considers  necessary  formulate
      regulations to provide for the procedure and method for  carrying  out
      its functions under these rules:


      Provided that prior approval of the Government shall be necessary  for
      issuance of such regulations by the Board.


      17. Power to issue instructions:-
      a)    The Government in the General Administration Department may from
           time to time, issue such directives or instructions  as  may  be
           necessary for the purpose of  carrying  out  the  provisions  of
           these rules.


      b)    The Government in the General Administration  Department,  where
           it is satisfied that the operation of any  provisions  of  these
           rules causes undue hardship in any particular case or  class  of
           cases, by order, dispense with or relax the requirement of  that
           rule as it may consider necessary.”




8.    Circular dated 20.5.1993 issued by the Board  on  which  reliance  has
been placed by the respondents and which constitutes the foundation  of  the
impugned judgment and the order of the learned Single Judge reads as under:
      “J&K SERVICES SELECTION BOARD SRINAGAR


      The Board in its 11th meeting on 20.4.93 took the  following  decision
      with regard to the Permanent Residence Certificates.


            Only un-ambiguous Permanent Residence Certificate issued by  the
      competent Revenue authorities of  the  District  to  which  the  posts
      belong should be accepted in respect of  District  cadre  posts.   The
      PRC’s having statements like presently living at should not  be  taken
      any cognizance of same will hold good for Divisional  Cadre  posts  as
      well.
                                                                        Sd/-
                                                              (Gouhar Ahmad)
                                                                   Secretary
      No:SSB/787-806/93                              dated 20.5.1993.”

9.    It is not in dispute that  the  post  of  Laboratory  Assistant  is  a
Subordinate Service post and is included in the  District  cadre  for  which
recruitment is required to be made by the Board on  the  recommendations  of
the Selection Committee.  In terms of Rule 13(i), the Board is  required  to
club the vacancies of District cadre referred to  it  in  a  calendar  year,
advertise the same in one go and invite applications from the  residents  of
Jammu and Kashmir without prescribing the conditions of domicile.  In  terms
of clause (ii) of Rule 13, a candidate can apply only in  one  district  for
the District cadre posts and  in  one  division  for  the  Divisional  cadre
posts.  If a candidate applies for more than one District or Division,  then
his candidature is required to be considered only for the  district  or  the
division in which he is ordinarily residing.   In  terms  of  Rule  14,  the
Board can, with the prior approval of the Government, frame regulations  and
lay down the procedure and method for carrying out its functions  under  the
Rules.

10.   There is nothing in the language of Rule 13(i) or any other Rule  from
which it can be inferred that for the District cadre post only  a  permanent
resident  of  the  particular  district  can  apply.   Rather,  Rule   13(i)
postulates inviting of applications from the permanent  residents  of  Jammu
and Kashmir and not any particular district.  Only in terms of  clause  (ii)
of Rule 13 the candidature of  a  person  who  applies  for  more  than  one
district can be considered for  the  district  in  which  he  is  ordinarily
residing.  In our view, in the absence of any statutory stipulation in  that
regard, it cannot be said that a candidate who is a  permanent  resident  of
the State of Jammu and Kashmir is  not  eligible  to  be  considered  for  a
District cadre post merely because he is not a  permanent  resident  of  the
particular District for which the post has been advertised.

11.   It is neither the pleaded case of the  respondents  nor  it  has  been
brought to  our  notice  that  the  decision  contained  in  Circular  dated
20.5.1993 is a part of the scheme of the Rules or  the  same  embodies  some
directive or instructions issued by the  State  Government  in  the  General
Administration Department under Rule 17 of the Rules.  As a matter of  fact,
a plain reading of the circular shows that  it  contains  an  administrative
decision taken by the Board in its meeting held on 20.4.1993.

12.   In our view, the administrative decision of the Board,  which  is  ex-
facie inconsistent with the plain language of Rule  13(i),  could  not  have
been  relied  upon  for  determining  eligibility  of  the   appellant   for
appointment as Laboratory Assistant in District  Udhampur  and  the  learned
Single Judge and the Division Bench of  the  High  Court  committed  serious
error  by  negating  the  appellant’s  challenge  to  the  decision  of  the
Selection Committee  not  to  consider  his  candidature  and  that  too  by
overlooking the fact that  at the time of  submission  of  application,  the
appellant was residing in District Udhampur, which is an  integral  part  of
the State of Jammu and Kashmir.

13.   In the result, the appeal is allowed.  The impugned judgment  and  the
order of the learned Single Judge are set aside.  It is  declared  that  the
appellant  was  eligible  to  be  considered  for  the  post  of  Laboratory
Assistant for District Udhampur.  The  Board  is  directed  to  declare  the
result of the appellant’s interview within a period of 4 weeks  from  today.
If it is found that the  appellant’s  name  would  have  figured  among  the
selected candidates, then the Board shall forward its recommendation to  the
appointing authority.  This shall be done within 2 weeks of the  declaration
of result.   Within next 4 weeks, the competent authority shall issue  order
appointing the appellant on the post of Laboratory Assistant. The  appellant
shall be entitled to have his seniority fixed in accordance with the  Rules.
 The parties are left to bear their own costs.


                                                …..……….....……..….………………….…J.
                                     [G.S. SINGHVI]



                                                    …………..………..….………………….…J.
                                     [SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
July 16, 2012.


-----------------------
10

The A.P. Amendment Act 17 of 1986 came into force with effect from 16-08- 1986 and definition of 'instrument of partition' under Section 2 (15) of the Indian Stamp Act has been amended. As referred in the above paragraphs even a memo recording past partition is also brought within the definition of 'instrument of partition' by virtue of the said amendment.

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR        

CIVIL REVISION PETITION No.4950 OF 2011    

16-12-2011

Lakkoji Mohana Rao, S/o. late Annayya, Aged 58 years, Cultivation,
R/o.Kottapalli Village, Kotabommali Mandal, Srikakulam District


1. Lakkoji Viswanadham, S/o.late Annayya, Aged 75 years, Cultivation.
2. Siva Kantha Rao, S/o. late Jogulu, Aged 50 years, Cultivation.
3. Simma Narasimhulu, S/o.late Jogulu, Aged 34 years, Cultivation.
4. Bommali Chandrayya, S/o.late Rajappadu, Aged 37 years, Cultivation.
(All are R/o.Kottapalli village, Kotabommali mandal, Srikakulam district)

Counsel for Petitioner: Sri P. Raj Kumar

Counsel for Respondents: Sri G. Surapu Naidu

? Cases referred :
1. 2004 (4) ALD 84.
2. AIR 1969 AP 242.
3. AIR 1988 SC 881.
4. 1998 (5) ALT 704.
5. 2004 (3) ALD 66.
6. 2010 (2) ALD 847.
7. (2008) 8 SCC 564.
8. 2011 (6) ALT 299.
9. 2010 ALT (2) 648.
10. 1977 (4) SCC 60.


ORDER:        

        Being aggrieved by the order dated 21-09-2011, passed in I.A. No.115 of
2011 in O.S. No.55 of 2005 on the file of Junior Civil Judge, Pathapatnam,
Srikakulam District, the present Civil Revision Petition is filed.

2.      The Petitioner herein is the first Defendant in O.S. No.55 of 2005, first
Respondent herein is the Plaintiff and the Respondents Nos.2 to 4 herein are the
Defendants Nos.2 to 4 in the said suit.
       
3.      The brief facts of the case are as follows :  The petitioner herein is the
elder stepbrother of the first respondent-plaintiff. The petitioner herein, his
mother and his elder sister filed O.S. No.87 of 1976 on the file of Principal
Senior Civil Judge, Srikakulam against the first respondent herein and his elder
sister for partition of the family land and the house property, the said suit
was decreed.  In the Appeal i.e. in A.S. No.163 of 1978, the District Court,
allowed the Appeal in part and accordingly final decree was passed in I.A.
No.450 of 1978 and in terms of the said final decree, the properties were
partitioned and possession was delivered to each of the parties in E.P. No.61 of
1983, since then, the parties are in possession of their respective allotted
shares. The first respondent herein filed O.S. No.55 of 2005 alleging that the
petitioner herein has been attempting to trespass into the land allotted to him.
The petitioner herein has admitted about passing of the decree in O.S. No.87 of
1976 and also about the execution proceedings, but his main version is that
there was no actual delivery of the properties as per the proceedings in E.P.
No.61 of 1983, though it was only a paper delivery.  His main case is that after
conclusion of the E.P. proceedings, the parties were not satisfied and the
disputes were not ended, then both the parties approached the elders and as per
the advice of the elders, the properties were again partitioned on 14-03-2004
and since then the petitioner herein is in possession and enjoyment of those
properties.

4.      The further case of the petitioner is that the settlement entered into
before the elders was reduced into writing in the month of March, 2004 and
signed by both the parties and attested by elders.  It is also his case that the
present case has been filed on the evil advice of one Guntamukkala Malati Rao of
Chatlathandara village without any cause of action. In the above circumstances,
the petitioner filed I.A. No.115 of 2011 under Order VIII Rule 3 C.P.C. to
receive the document dated 14-03-2004 and mark the same as an exhibit on his
behalf.  His main case is that he could not file the said document when he was
examined as it was misplaced and that the said document is highly essential for
just determination of the case.

5.      The first respondent-plaintiff opposed the marking of the said document.
His case is that the parties have partitioned their properties long back and the
first respondent-plaintiff is in possession and enjoyment of the plaint schedule
properties and that the alleged partition deed, dated 14-03-2004 is forged one
and created for the purpose of this case.  It is also his case that the said
document requires registration and it is not stamped, so it cannot be looked
into.

6.      The lower Court dismissed the said petition holding that the said document
cannot be marked since it is neither stamped nor registered and the same is
inadmissible in evidence for any purpose under Section 35 of the Indian Stamp
Act, 1899 and also under Section 49 of the Registration Act, 1908.

7.      Sri P. Raj Kumar, learned counsel for the petitioner, submits that the
petitioner could not file the document when he was examined as the document was
misplaced and that the document is necessary for the just conclusion of the
case.  It is also submitted that the petitioner filed the said document only for
the purpose of proving his possession over the suit schedule property and not
for the purpose of proving his title.  It is also argued that since the suit is
for bare injunction the lower Court ought to have allowed the application and
received the document for collateral purpose to enable the petitioner to prove
his possession.

8.      The learned counsel for the petitioner has relied on the case between
Khaja Habeebuddin Vs. Md. Ibrahim and others1 wherein, a suit for partition was
filed in the year 2001, the defendants pleaded that there was prior partition
way back in the year 1957, they filed the partition deed dated 15-07-1957 and an
award dated 16-08-1957, it was held that the documents can be received in
evidence for collateral purpose i.e. to show the severance of status and nothing
more. For the same proposition he has relied on the case between
Chinnappareddigari Pedda Muthyalareddy V. Chinnappareddigari Venkatareddy and  
others2. Reliance is also placed in the case between Roshan Singh and others V.
Zile Singh and others3 wherein it was held that a mere agreement to divide does
not require registration. He has also relied in the case between Smt. Kaheeda
Moin and others Vs. Md. Iqbal Ali and others4 wherein it was held that
unregistered partition deed can be admitted in evidence for collateral purpose
for proving the factum of partition and nature of possession of the parties.  He
has also relied on the case between Amangenti Prameela and another Vs. P. Venkat
Reddy by LRs and others5 wherein it was held that a Xerox copy can be admitted
as secondary evidence.  Reliance is also placed on the case between Pariti
Suryakanthamma and another V. Saripalli Srinivasa Rao and another6 in support of
his contention that an unregistered and unstamped document can be received in
evidence for collateral purpose. For the same proposition, he has relied on the
case between K.B. Saha and Sons Private Limited V. Development Consultant  
Limited7.

9.      Sri G. Surapu Naidu, learned counsel for the first respondent-plaintiff
submits that the suit in O.S. No.55 of 2005 filed by the first respondent was
decreed long back and the parties were put in possession of the property in E.P.
No. 61 of 1983 long back and since then the first respondent has been in
possession of the same property.  It is also his submission that the alleged
document filed at a belated stage cannot be received unless valid reasons are
shown for not producing the document along with the written statement, in
support of which he has relied on the case between Voruganti Narayana Rao V.
Bodla Rammurthy and others8 and also relied on the case between Pariti
Suryakanthamma and another Vs. V. Saripalli Srinivasa Rao and another9 wherein
it is held that when the purpose of filing of the document is not for any
collateral purpose, the same cannot be received and when it is unstamped, the
same cannot be received for main purpose under Section 35 of the Indian Stamp
Act, 1899.

10.     The simple case of the petitioner is that the alleged partition deed dated
14-03-2004 was misplaced and therefore he could not file the same along with his
written statement.  The case of the first respondent is that the document is
forged, unregistered and unstamped one, which is inadmissible in evidence,
therefore cannot be received.  The facts are not in dispute.  The petitioner
herein filed the suit in O.S. No.87 of 1976 on the file of Principal Senior
Civil Judge, Srikakulam and the said Suit was decreed and subsequently an Appeal
was filed in A.S. No.163 of 1978 on the file of District Judge, Srikakulam and
the said Appeal was allowed in part and a corresponding final decree was passed.
It is also not in dispute that E.P. No.61 of 1983 was filed and in pursuance of
the said E.P., the shares of the parties' were allotted to them and possession
was delivered to them in terms of the final decree and the final decree
proceedings came to an end.

11.     Now the specific case of the petitioner is that though a final decree was
passed and documents revealed that possession was delivered to the parties, but
in fact, it was only on paper and no such delivery of property had taken place.
It is also his case that subsequently petitioner and the first respondent have
settled the matter before elders and accordingly partitioned their properties on
14-03-2004.

12.     A reading of recitals of the document makes it clear that the parties have
partitioned their properties on 14-03-2004 and that they have been enjoying the
lands allotted to them with absolute rights, list of the properties allotted to
each of the party have been mentioned in the said document. Thus, the document
is a clear document of partition creating absolute rights and title in the
properties allotted to the parties to the said document i.e. the petitioner and
the first respondent herein.

13.     Therefore, the question that arises is whether a document, which creates a
right title in the properties allotted to the parties by virtue of a partition,
can be admitted when it is unstamped and unregistered?

Section 35 of the Indian Stamp Act, reads as follows :
"No instrument chargeable with duty shall be admitted in evidence for any
purpose by any person having by law or consent of parties, authority to receive
evidence, or shall be acted upon, registered or authenticated by any such person
or by any public officer, unless such instrument is duly stamped".

In view of the bar as referred in Section 35 of the Indian Stamp Act stated
supra, it is clear that the disputed document becomes inadmissible in evidence
for any purpose.

Section 2 (15) of the Indian Stamp Act defines 'instrument of partition' as
follows :

"'Instrument of Partition' means any instrument whereby co-owners of any
property divide or agree to divide such property in severalty, and includes also
a final order for effecting a partition passed by any revenue authority or any
civil Court and an award by an Arbitrator directing a partition (and a
memorandum regarding past partition)".

Section 17 of the Registration Act reads as follows :

"Documents of which registration is compulsory -

(1) The following documents shall be registered, if the property to which they
relate is situate in a district in which, and if they have been executed on or
after the date on which, Act No. 1864 (XVI of 1864), or the Indian Registration
Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the
Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force,
namely :--
(a) instruments of gift of immovable property;
(b) other non- testamentary instruments which purport or operate to create,
declare, assign, limit or extinguish, whether in present or in future, any
right, title or interest, whether vested or contingent, of the value of one
hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation or
extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding
one year, or reserving a yearly rent;
(e) 1[non- testamentary instruments transferring or assigning any decree or
order of a Court or any award when such decree or order or award purports or
operates to create, declare, assign, limit or extinguish, whether in present or
in future, any right, title or interest, whether vested or contingent, of the
value of one hundred rupees and upwards, to or in immovable property:] Provided
that the State Government may, by order published in the Official Gazette,
exempt from the operation of this sub- section any leases executed in any
district, or part of a district, the terms granted by which do not exceed five
years and the annual rents reserved by which do not exceed fifty rupees".

Section 49 of the Registration Act reads as follows :

"Effect of non-registration of documents required to be registered : No document
required by Section 17 or by any provision of the Transfer of Property Act, 1882
(4 of 1882) to be registered shall -
affect any immovable property comprised therein, or
confer any power to adopt, or
be received as evidence of any transaction affecting such property or conferring
such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required
by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered
may be received as evidence of a contract in a suit for specific performance
under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of
any collateral transaction not required to be effected by registered
instrument."

14.     As per the decision of Khaja Habeebuddin (1st supra), relied upon by
learned counsel for the petitioner, the facts of the said case are that the
defendant in the said case had taken a plea that there was a prior partition way
back in the year 1957 and he filed a partition deed dated 15-07-1957 and an
award dated 16-08-1957.  When the admissibility of the said document came up for
consideration, this Court held that the document in question did provide for
extent of shares of various individuals.  This fact can be brought in evidence
only through a registered document. Therefore, the documents in question are
inadmissible to establish the factum of partition of the property by mets and
bounds. It was further observed that as far as the severance of status and
nature of possession of the various sharers are concerned; the document could be
received for the collateral purpose of severance of status and nothing more.

15.     Reliance is also placed on the decision of Chinnappareddigari Pedda
Muthyalareddy (2nd supra), wherein the Full Bench of this Court has elaborately
dealt with the issue of admissibility of an unregistered document i.e. three
lists were prepared, when the parties prepared lists to denote the properties
which have fallen to the share of each in the partition which was effected about
a fortnight, before this the partition had already taken place and after about a
fortnight three lists were prepared and each party was given one list showing
the property which had been fallen to their respective shares.

This Court held as follows :

        "Where a partition takes place, the terms of which are incorporated in an
unregistered document, that document is inadmissible in evidence and cannot be
looked for the terms of the partition.  It is in fact the source of title to the
property held by each of the erstwhile coparceners. That document, though
unregistered, can however, be looked into for the purpose of establishing
severance in status, though that severance would ultimately affect the nature of
the possession held by the members of the separated family who from thence
onwards, hold it as co-tenants.  It was also observed that for severance in
status, all that is required is a communication to the other members of the
joint family, of an unequivocal intention to separate and this communication of
intention could be done orally or by a notice in writing to the other
coparceners or by other means depending upon the facts and circumstances of the
case and if the intention is expressed by reducing the same to writing such a
document, though unregistered, is admissible and can be looked into, as long as
it is not the source of any title of the properties which each of the erstwhile
coparceners hold as a result of that partition".

16.     Reliance is placed on the decision of Reliance Singh (3rd supra) wherein
it was held that mere agreement to divide does not require registration but if
the writing itself effects a division, it must be registered.

17.     Reliance is placed on the decision of Smt. Kaheeda Moin (4th supra wherein
the plaintiffs contended that the suit property was jointly purchased under
registered sale deed and all of them continued to be in joint possession and
enjoyment of the said property that subsequently there was a partition of the
properties effected on 17-02-1983 in the presence of elders and that in the said
partition the suit properties fell to their shares.  They filed the suit for
declaration of title and for recovery of possession, objection was raised for
marking of the said document on the ground that it is an unregistered partition
deed.  Holding that it is clearly mentioned therein that the partition of the
properties between the parties was effected and thus the properties were
allotted to their respective sharers and when the parties had taken possession
of their respective shares on the date of the document itself and in view of the
clear terms and conditions of the disputed document, the said document since
created and declared the rights of the respective parties, it is compulsorily
registrable under Section 17 of the Registration Act.  It was further held that
the document can be admitted in evidence for the limited purpose of proving the
factum of partition and nature of possession of the parties.

18.     Reliance is also placed in the decision of Amangenti Prameela (5th supra)
wherein the suit for partition and separate possession was filed when the first
defendant was being cross-examined, it was elicited through him that a partition
took place among various members of the family on 12-01-1980 and two sets of
documents were executed evidencing the said partition.  It was also elicited
from him that one of the documents was kept with him and the other with one Mr.
Pratap Reddy.  Then the petitioners got issued a notice to DW.1 calling upon to
produce original document, dated 12-01-1980 before the Court and there was no
representation from him.  Then the petitioners secured Xerox copy of the said
document and filed the same.  Then this Court held that Xerox copies can be
received as secondary evidence under Section 65 (a) of the Evidence Act. This
Court observed that the petitioners are not responsible for not impounding the
document and it can be received for collateral purpose as held in the decision
cited 4th supra.

19.     Reliance is also placed on the decision of Pariti Suryakanthamma (6th
supra) wherein the petitioners in that case filed a suit for declaration of
title and for permanent injunction.  The defendants wanted to mark the partition
list contending that the said document is only a partition list and not a
partition deed and therefore does not require any stamp duty or registration.
This Court taking into consideration the definition of 'instrument of partition'
under Section 2 (15) of the Indian Stamp Act and Section 35 of the Stamp Act
held that the document cannot be received in evidence since the main purpose was
to prove the alleged title to the suit property.
20.     Reliance is also placed on the decision of K.B. Saha and sons (7th supra)
wherein the alleged memo dated 30-03-1976 was in dispute as per the terms of the
said memo, the existing tenant had no right to allot the suit premises to
another employee after it was vacated by the tenant.  M/s. K.B. Saha and Sons
Private Ltd., was the owner of the premises which was leased out to M/s.
Development Consultants Limited for the residential accommodation of a
particular officer, Mr. Keshab Das and after the said Officer vacated the suit
premises, the respondent wanted to allot the same to another employee, for which
the appellant objected; whether an un-registered document was admissible or not
was the question that came up for consideration therein.

        From the principles laid down in the various decisions of this Court and
the High Courts, as referred to hereinabove, it is evident that :
       
        1.      A document required to be registered, if unregistered is not
admissible into evidence under Section 49 of the Registration Act.
        2.      Such unregistered document can however be used as an evidence of
collateral purpose as provided in the proviso to Section 49 of the Registration
Act.
        3.      A collateral transaction must be independent of, or divisible from,
the transaction to affect which the law required registration.
        4.      A collateral transaction must be a transaction not itself required
to be effected by a registered document, that is, a transaction creating, etc.,
any right, title or interest in immovable property of the value of one hundred
rupees and upwards.
        5.      If document is inadmissible in evidence for want of registration,
none of its terms can be admitted in evidence and that to use a document for the
purpose of proving an important clause would not be using it as a collateral
purpose.
21.     In the decision reported in Smt. Krishnabai Bhritar Ganpatrao Deshmukh Vs.
Appasaheb Tulja Rama Rao Nimbalkar and others10, it is observed as follows :
 "A coparcenary is purely a creature of Hindu Law; it cannot be created, or re-
created after disruption, by the act of parties, save insofar that by adoption a
stranger may be introduced as a member thereof, or in the case of reunion".

        Thus the well settled legal position is that once there is a disruption of
joint family and partition has taken place and parties have allotted separate
shares, coparcenary cannot subsequently created. A coparcenary as observed by
the Apex Court, is purely a creature of Hindu law and it cannot be subsequently
created by any agreement or settlement between the parties.

22.     As seen from the facts of this case, the facts and circumstances of this
case are peculiar.  It is not in dispute that the petitioner himself had earlier
filed O.S. No. 87 of 1976 and the said suit was decreed and properties were
partitioned and delivery of possession was affected in E.P. No.61 of 1983 in
pursuance of the final decree passed in the said suit.  The case of the
respondent is that the parties have been enjoying their respective allotted
shares since the date of delivery of possession to them as per the partition.
The specific case of the petitioner is that though the Execution Proceedings
reveal that the possession has been delivered but it was only on paper and no
actual delivery had taken place and that the parties subsequently approached the
elders and as per the advise of the elders the properties have again partitioned
on 14-03-2004. The petitioner herein though referred to the said partition deed
but did not specifically give the date of that partition date in his written
statement when he was examined as DW.1.  He deposed that in the year 2004 the  
elders of the village advised him and others and allotted shares but not in
accordance with the final decree.  He further submitted that prior to 2004 the
elders never interfered and never allotted the shares to them.  He further
admitted that he cannot say the day and month when the said partition had taken
place.  He further admitted no document was reduced into writing at the time of
partition.  He further admitted the details of the alleged partition deed were
not mentioned in his pleadings.  He further admitted that he did not state in
his chief-affidavit that 25 cents of Item No.3 was allotted to the plaintiff by
the elders.
       
23.     It may not be appropriate to comment on the merits of the case basing upon
the past evidence, but one thing is sure if the parties are allowed to deny the
Court proceedings particularly allotment of respective shares as per the final
decree proceedings in execution proceedings or execution of any decree, there
will be no end to the litigation; that too after a period of more than 22 years
as occurred in this case.  The parties approached the Court and after a long
litigation they obtained decree and the fruits of the decree would be available
to them only after it is successfully executed and possession has been
delivered. Normally, the parties do not enter into any settlement contra to a
decree passed in their favour. Parties may settle the disputes during the
pendency of the proceedings but it would be most unnatural and most improbable
to say that after the shares have been allotted in Execution Proceedings and
possession has been handed over, the parties again sat together and
repartitioned the properties that too under an unregistered, unstamped partition
deed creating right in the properties allotted to them. Rights and title cannot
be transferred to any other party except by way of a registered document. No
right in any immovable property which is of worth more than 100 rupees can be
neither created nor extinguished except through a registered document and the
document must be scribed on the required stamp paper otherwise, the very purpose
of the relevant provisions of the Registration Act, Stamp Duty will be defeated.

24.     As discussed above, the document sought to be filed is nothing but a
partition deed creating right and title in the lands said to have been allotted
to the parties.  It is settled law that registration of document which is to be
required under Section 17 (1) (b) of the Registration Act makes the document
inadmissible in evidence.  Under Section 49 (c) of the Registration Act, no
document required by Section 17 to be registered shall be received as evidence
of any transaction affecting the said property unless it has been registered.
Of course the proviso says that an unregistered document affecting immovable
property and required to be registered, may be received as evidence of a
contract in a suit for specific performance or as evidence of part performance
of a contract for the purpose of section 53-A of the Transfer of Property Act or
as evidence of any collateral transaction not required to be affected by
registration of instrument.

25.     The A.P. Amendment Act 17 of 1986 came into force with effect from 16-08-
1986 and definition of 'instrument of partition' under Section 2 (15) of the
Indian Stamp Act has been amended.  As referred in the above paragraphs even a 
memo recording past partition is also brought within the definition of
'instrument of partition' by virtue of the said amendment. Thus, the argument
that a document is merely a record of family arrangement, settlement or
acknowledgment of prior partition and admissible for collateral purpose is no
more available after the above amended provisions of Indian Stamp Act came into
force.  Section 35 of the Indian Stamp Act is very clear and creates a clear bar
and therefore unstamped document is inadmissible in evidence for any purpose.
Admittedly the alleged document i.e. partition deed is chargeable with duty.  In
view of the settled legal position i.e. the bar engrafted under Section 35 of
the Indian Stamp Act is an absolute bar and therefore the document cannot be
used for any purpose unlike the bar contained in Section 49 of the Registration
Act.

26.     Now it is argued that the petitioner was ready and even prepared to pay
the deficit stamp duty to take the said document into consideration; whenever
any unstamped document is sought to be admitted on the same day, when it is
filed before the Court, the parties file such document and take steps to pay the
stamp duty or the deficit stamp duty but not at a subsequent stage when the
issue of admission of that document comes or when it is objected by the other
side. Collateral purpose means not for the purpose of proving the partition or
allotment of shares or creating of any right.  For example, in a case the
Parties have partitioned their properties in 07-01-1953 and after some time they
prepared the lists of properties allotted to the parties or prepared a memo of
family arrangement and a suit for partition is filed in the year 1960 and the
party who leads that partition had taken place on 07-01-1953 proves his
possession by filing documentary evidence that he has been in exclusive
possession of the properties allotted to him and that there was a severance of
joint family and his status is no more as a member of Joint Hindu family and his
status has changed.  Then in such circumstances only for the purpose of proving
that his possession commenced from 1953 on wards or that his status is not as a
member of joint Hindu Family, for that purposes a family arrangement which was
reduced into writing as the lists prepared alone amounts after the actual date
of partition could be received for collateral purpose.  If the said document
cannot be proved to show that the partition had taken place on 07-01-1953 or
that the properties were allotted to those parties in pursuance of the said
partition on 07-01-1953, thus it is clear that a document for the purpose of
proving the terms of such document cannot be admitted in evidence.  Thus the
document cannot be received to say that it created or declared assigned or
limited or extinguished a right to immovable properties. The term collateral
purpose would not permit the parties to establish any of these facts from the
deed.  In the name of collateral purpose, no document can be received nor any
right said to have been created, declared or assigned or limited or extinguished
can be inferred from such document.

27.     It is our experience that though document is received or marked for
collateral purpose but when it is before the Court and at the time of
appreciating the evidence, many Courts are not taking into consideration for
what purpose the said document could be considered.

        In view of the above discussions, I hold that there no merits in the
Revision and accordingly, the Civil Revision Petition is dismissed. No order as
to costs.

        However, it is made clear that the lower Court without being influenced by
any of the observations made supra, may appreciate the evidence in proper
perspective and dispose of the suit.  Before parting with this judgement, it is
necessary to caution the parties not to sign on blank papers or on stamped
papers under any circumstances, may be while obtaining private loans or loans
from chit fund companies, money lenders or even from Banks because our
experience shows that there are several instances where innocent persons who
signed on white papers or on stamped papers, on blank receipts or blank pronotes
and blank cheques etc., while taking loans have been subsequently cheated.  It
is also desirable to mention that the learned Advocates who are dealing with the
noble profession should instruct their clerks and parties to see that signatures
or thumb impressions of parties are not obtained on any blank papers or stamped
papers because the risk of the same being misused by any unscrupulous persons or
by any person in future cannot be ruled out.  Since the files cannot be with the
same Advocate always and they will be moving into the hands of several others
persons.  Therefore, whenever unstamped papers and unregistered documents are
presented before the Court, the Court must examine the same cautiously and
should not admit them in a routine manner in the name of using them for
collateral purpose.

_____________________  
B. CHANDRA KUMAR, J    
Date:16-12-2011

“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL  NO.115 OF 2005

(From the order dated 02.03.2005 in Complaint No.70/2000 of the

State Commission, M.P.)

Prem Bala                                                                                                                                                                                …Appellant

Versus

Dr.(Mrs.) Satinder Saluja & Ors.                                                                                                                                            …Respondents

BEFORE :

          HON’BLE  MR. JUSTICE  ASHOK  BHAN,  PRESIDENT

          HON’BLE  MRS. VINEETA RAI,  MEMBER

For the Appellant                            :         Mr. D.S. Chauhan, Advocate

For the Respondents                       :         NEMO.

Pronounced on 13^th July, 2012

ORDER

PER VINEETA RAI, MEMBER

          Smt.Prem Bai, Appellant herein, has filed this First Appeal being aggrieved by the order of the State Consumer Disputes Redressal Commission, Madhya Pradesh(hereinafter referred to as the ‘State Commission’) which had dismissed her Appeal of medical negligence against Dr.(Mrs.)Satinder Saluja (Respondent No.1), Dr.Paras Shrimal (Respondent No.2) and others, Respondents herein.

          The facts of the case according to the Appellant are that on 15.07.1998 she had consulted the Respondent No.1 at her Nursing Home in Ujjain with complaints of abdominal pain for which she was prescribed medicines and in case there was no relief, she was asked to contact the Respondent No.1 again.  Since the pain in the abdomen persisted, Appellant again visited the Respondent No.1 on 28.07.1998 and after undergoing ultra-sonography, she was diagnosed with bilateral T.P.Masses in the uterus and Pelvic Inflammatory Disease (PID) for which she underwent a hysterectomy on 08.09.1998 for removal of her uterus. Appellant was discharged on 16.09.1998.  But since the abdominal pain continued and after a few weeks, Appellant also experienced leakage of urine, she again consulted Respondent No.1 who referred her to Respondent No.2, Dr.Paras Shrimal, a Urologist who after diagnosis and examination advised that another another surgery was required to repair a small Vasico Vaginal Fistula (VVF).  According to the Appellant, this occurred because the hysterectomy was not performed with due care.  The Appellant was discharged on 14.09.1999 and during this period, the doctor also inserted a catheter in her vagina.  However, when this was removed, leakage of urine restarted.  It is only when Appellant went to Indore for further treatment under one Dr.Rajendra Lahoti to repair the VVF that she could get relief.  Since the Appellant had to undergo unnecessary physical and mental agony and three surgeries because of the negligence in treatment by Respondents No.1 and 2 and had also to incur a heavy expenditure on her treatment/medicines,  she approached the State Commission with allegations of medical negligence and deficiency in service on the part of the Respondents and requested that the Respondents be directed to pay her Rs.12 lakhs for the expenditure incurred and the mental and physical sufferings caused to her.

The allegations of medical negligence were denied by the Respondents who stated that all necessary care and precautions were taken in the treatment of the patient and there was no medical negligence in this case.  Respondent No.1 contended that on the basis of clinical diagnosis including ultrasound, patient was detected with bilateral T.P. Masses in the uterus and Pelvic Inflammatory Disease (PID) for which she was initially prescribed medicines but when this did not clear the infections, she underwent a hysterectomy and was discharged from the hospital in a satisfactory condition.  Since, it takes about 6 weeks to recover from hysterectomy, she was given  post-operative advice not to lift heavy items and also to abstain from sexual intercourse.  During her subsequent visits on 13.10.1998 and 16.11.1998, Appellant did not have any complaints except general complaint of abdominal pain for which she was given medicines and tonics.  It was only on 28.01.1999 i.e. after a period of 4½ months of the hysterectomy that Appellant approached Respondent No.1 with a complaint of leakage of urine. As this was a urological problem, she was referred to Dr.Paras Shrimal, a Urologist, who after examination and ultra-sonography diagnosed that this was a case of small Vasico Vaginal Fistula(VVF) and surgery was advised to repair the VVF.  The Appellant was again discharged in a satisfactory condition with post-operative advice and it was only 6 months later i.e. on 06.09.1999 that she approached the Respondent No.2 with a complaint of leakage of the urine for which a Cystoscopy was performed on 21.09.1999 and she was discharged from the hospital in a satisfactory condition.  Respondents stated that the problem of urine leakage was not linked to hysterectomy because if this was so, this would have occurred within 7 to 10 days of this surgery and not after 4½ months.  Medical literature on the subject was also cited in support of this contention.  According to the Respondents, the problem of leakage of urine occurred on both occasions i.e. after the hysterectomy and the repair of VVF because the Appellant did not take due care to heed medical advice given to her i.e. not to have sexual intercourse.

The State Commission after hearing the parties and on the basis of evidence on record concluded that there was no medical negligence.  The operative part of the order of the State Commission is reproduced below:

“So far as the question No.2 is concerned, whether Dr.(Smt.) Satinder Saluja has correctly diagnosed the problem of the complainant and has acted with due diligence and care, we find that on clinical examination the opposite party No.1 doctor has diagnosed pelvic infection disease and therefore gave treatment in the prescription dated 15.07.1998.   It was after a month when there was no relief then her sonography test was performed which confirmed the swelling in uterus i.e. bulky uterus with tubooverial masses and pelvic inflammatory disease (PID) and therefore the hysterectomy operation was advised.  All this shows that the opposite party No.1 doctor rightly diagnosed the disease which was also confirmed in ultrasonography and therefore rightly performed hysterectomy operation.  This was the standard procedure as per medical text and norms.

What has been stated above we find that the delayed development of VVF cannot be attributed to hysterectomy and therefore we do not find that the opposite party No.1 Dr.(Smt.) Satinder Saluja has acted negligently and therefore we do not find her guilty of committing medical negligence.

So far as the operation performed by the opposite party No.2, Dr.Paras Shrimal is concerned, it is clear from the record that the complaint of leakage of urine was reported on 28.01.1999 and on the same day ultrasonography test was advised.  The ultrasonography report revealed that Irregular echogenic area seen in posterior bladder wall – appears to be small VVF with simple rt.ovarian cyst.  The operation was performed on 29.01.1999 and the patient was discharged after 10 days with instructions that she should not lift the weight, should refrain from intercourse and keep better hygiene.  On 22.02.1999 the catheter was removed and it was found that there was no complaint and there was no leakage of urine per vagina.  It was on 09.09.1999 i.e. after six months from the operation of VVF that the complainant came to the opposite party No.2 and told that there is leakage of urine as per vagina.  Then again VVF was repaired and the patient was discharged on 14.09.1999 with the same instructions for observing precautions.  In her complaint the complainant herself has stated that after this operation she felt some relief but after some time the problem of VVF again developed.  This shows that the operations performed by the opposite party No.1, Dr.(Smt.) Satinder Saluja and opposite party No.2, Dr.Paras Shrimal were performed as per procedure prescribed in the medical norms and therefore they cannot be said to have committed any medical negligence.”

Hence, the present Appeal.

Counsel for the Appellant was present.  None appeared on behalf of the Respondents.  Since, service is complete it was decided to proceed with the case ex parte.  In his oral submissions, Counsel for Appellant contended that the State Commission erroneously concluded that there was no medical negligence whereas it is a fact that even after the hysterectomy, the Appellant continued to suffer from various medical complaints and the leakage of urine started only after the hysterectomy.  Counsel for Appellant contended that when the Appellant first came for a post-operative check-up on 13.10.1998, she was only given a painkiller and Respondent No.1 did not care to properly diagnose the problem by conducting an ultra-sonography or any pathological or diagnostic tests which could have revealed the exact problem at an early stage.  Further, no written medical advice was given in the discharge slip about any precautions to be taken.  Counsel for Appellant pointed out that the State Commission also failed to appreciate that it was only after the third surgery conducted by Dr.Rajendra Lahoti at Indore which gave relief to the Appellant because it was properly conducted and Dr.Lahoti rectified the errors made in the earlier operations including the surgery to repair the VVF by Respondent No.2 which apparently did not give due relief to the patient.  From this sequence of events, it is clear that the subsequent complications of urine leakage from which the Appellant suffered following the hysterectomy and the VVF was clearly due to medical negligence by Respondent No.1 which persisted even after the second surgery performed by Respondent No.2 because this was also not properly done.   Both Respondents were therefore, clearly guilty of medical negligence and deficiency in service.

We have considered the submissions made by the Counsel for Appellant and have carefully gone through the evidence on record including the medical literature on the subject.  The fact that Respondent No.1 conducted a hysterectomy on the Appellant and that a subsequent surgery was conducted about 4½ months later by Respondent No.2 to repair the VVF are not in dispute.  In this connection, we have perused the evidence on record and note that the patient was correctly diagnosed for her medical problems and following the hysterectomy she was discharged in a satisfactory condition.  There is no evidence on record that at that time or even during the two post-operative visits, she had any complaints regarding leakage of urine.  The only complaints that she had were of some abdominal pain which as per medical literature is not unusual since it takes about 6 weeks for a patient to recover from a major surgery like hysterectomy.  We have also gone through the medical literature filed by Respondents in this case that leakage of urine after 4 ½ months of the surgery cannot be attributed to any complications or defects in the surgery itself.  It is only when such complications occur within 4 to 10 days of the hysterectomy that there could be a nexus between the problem and the surgery [Source: Postgraduate Obstetrics   & Gynaecology (3^rd Edition) by M.K. Krishna Menon, P.K. Devi & K.Bhasker Rao].  Respondent No.1 in her cross-examination had sought to explain the medical complication of urine leakage suffered by the Appellant by citing evidence that this can occur several weeks after hysterectomy if the patient not heeding medical advice indulges in sexual intercourse (Source: Principles of Gynaecology by Prof. Jeff Cate).   In the instant case, since the patient was discharged in a satisfactory condition with no complaints of leakage of urine, it is obvious that it occurred because patient had not followed the post-operative medical advice given to her in writing to abstain from sexual intercourse.   We further note that Appellant has not produced any medical expert or medical literature to contradict or counter these contentions. Therefore, keeping in view the evidence on file from which it appears that due medical care was taken by Respondent in both in diagnosing the Appellant’s problem and subsequently treating it as also the medical literature on the subject, we are unable to conclude that there was any medical negligence or deficiency in service on the part of Respondent No.1. 

Regarding the second surgery conducted by Respondent No.2 to repair the VVF, we note that this was conducted after it was correctly diagnosed through ultra-sonography and a clinical examination and successful surgery conducted, she was discharged after 10 days with no complaint of leakage of urine.  It was only after 6 months that the problem occurred and, therefore, it cannot be attributed to surgery to repair the VVF.  This time also, it appears that the patient did not take due care in following medical advice to abstain from specific activities which are contra-indicated following such surgery.  Further, the Appellant on whom there was onus to do so has not been able to produce any evidence to indicate that there was any medical negligence on the part of the Respondent No.2 in treating her case. 

What constitutes medical negligence is now well established through a catena of judgments.  The Hon’ble Supreme Court inJacob Mathew v. State of Punjab, (2005) 6 SCC 1 has observed as follows:

“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”

Applying these principles in the instant case, it can be seen that there is no evidence to conclude that the Respondents did not have the necessary qualifications or that they did not exercise reasonable competence and skills in dealing with the case.  Both surgeries were performed after correctly diagnosing the problem and giving proper post-operative care/medical advice.  On both occasions, the patient was discharged without any medical complications. Medical literature on the subject also confirms that the problems suffered by the patient were not linked to the surgeries. The State Commission in its well-reasoned order has documented all these facts and concluded that no case of medical negligence is made out against the Respondents.  We see no reason to disagree with the findings of the State Commission and uphold the same.   The First Appeal is dismissed with no order as to costs.

Sd/-

…………..…………………

(ASHOK BHAN   J.)

PRESIDENT

Sd/-

………….……………….

(VINEETA RAI)

MEMBER

/sks/

the vehicle was covered for private use but was being used for commercial purpose. The driver of the vehicle was not in a fit state of health to drive the vehicle on the main roads. The incident in question was not the first and the solitary incident of this driver feeling suddenly unwell while driving. In the circumstances, the claim of the petitioner could not have been accepted by the insurance company. Both the Fora below have given their concurrent findings against the petitioner. In this context, we wish to make it clear that while we agree with the dismissal of the complaint of the petitioner on the ground of violation of condition of the policy with reference to the commercial use of the vehicle even though its insurance cover was for private use and the vehicle being driven by a driver who was not fit in a state of health and hence not competent to drive the vehicle, we do not agree with the finding of the District Forum to the effect that the petitioner was not a Consumer because he was using the vehicle for commercial purpose. In view of judgment of this Commission in the case ofHarsolia Motors, the petitioner has to be treated as a consumer qua the insurance company providing insurance cover for his vehicle even if it was being used for commercial purpose and hence for earning profits. This, however, does not obliterate the fact that by using it for commercial purpose, there was violation of the insurance policy, which had been taken for private use. Consequently, we do not find any reason to interfere with the impugned order and hence dismiss the revision petition with no order as to costs.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO.3122 OF 2007

(From the order dated 19.07.2007  in  First Appeal No.546/2007 of the

State Consumer Disputes Redressal Commission, U.T. Chandigarh)

Chander Parkash

S/o Sh. Shriram

R/o H. No.1260, Spattu Road,

Ambala City.                                                     ...... Petitioner

                                               Versus

ICICI Lombard General Insurance Co. Ltd.

SCO No. 174-175, Sector 9-C,

Chandigarh.                                                   ....... Respondent

BEFORE:

HON’BLE MR. ANUPAM DASGUPTA, PRESIDING MEMBER

 

HON'BLE MR.SURESH CHANDRA,  MEMBER

       

For the Petitioner          :    Mr. K.C. Dua, Advocate

For the Respondent     :    Mr. Anuj Kumar Chauhan, Advocate

 

 

PRONOUNCED ON:    13^th   JULY, 2012

         

ORDER

PER SURESH CHANDRA, MEMBER

          In this case, the insurance claim of the petitioner Chander Parkash in respect of his vehicle, namely,  Tata Sumo bearing Registration No. HR-37-B-1646 was repudiated by the respondent-insurance company.  The vehicle was duly insured with the respondent for the period from 20.01.2006 to 19.01.2007 for Rs. 3.40 lakh and the accident took place on the night intervening 08/09.02.2006 when the driver of the vehicle was driving the said vehicle from Ambala to Mohali.  Admittedly, the driver abruptly felt giddy and was so perplexed that the vehicle went out of his control and fell into a pit.  The driver had to be removed and taken to the Government Medical College Hospital at Chandigarh.  The driving licence of the driver, Suresh Kumar was valid upto 21.03.2007. Alleging deficiency in service, the petitioner lodged a complaint with the District Forum for direction to release the claim for Rs.3,16,559/- along with interest @ 18% from the date of accident till realization, compensation of Rs.1 lakh and Rs.5500/- as litigation expenses.

2.      The respondent company resisted the complaint and filed its reply stating that the vehicle in question was insured as private vehicle but was being used for commercial purposes and further that the driver was having trouble of getting drowsiness while driving the vehicle and as such was not competent to drive the vehicle.  Denying any deficiency on its part, the insurance company pleaded for dismissal of the complaint.

3.      On appraisal of the pleadings and the evidence adduced by the parties, the District Forum vide its order dated 30.04.2007 dismissed the complaint being meritless.

4.      Aggrieved by this order, the petitioner approached the State Consumer Disputes Redressal Commission, U.T. Chandigarh (‘State Commission’, for short) by filing an appeal against the order but the appeal also came to be dismissed by the State Commission vide its order dated 19.07.2007 against which the petitioner has filed the present revision petition.

5.      We have heard Mr. K. C. Dua, Advocate for the petitioner and Mr. Anuj Kumar Chauhan, Advocate for the respondent.

6.      Learned counsel for the petitioner has submitted that the State Commission has passed the impugned order without considering the fact that the insurance company had repudiated the claim solely on the ground that the vehicle was used for commercial purpose but the State Commission dismissed the complaint by making out a new ground that even though Suresh Kumar, the driver of the vehicle had obtained licence, he was feeling giddy and was not competent to drive the vehicle.  He, therefore, submitted that this conclusion of the State Commission was totally erroneous.  Learned counsel for the petitioner further argued that the dismissal of the claim by the District Forum on the ground that the vehicle was being used for commercial purpose and hence, the petitioner was not a Consumer was contrary to the decision of the National Commission in the case of Harsolia Motors Vs. National Insurance Company (2005 (1) CPJ 26 NC) because even if the vehicle is being used for commercial purpose the vehicle had been insured against accident, etc., and as held by the National Commission in the case of Harsolia Motors insurance cover by itself cannot be directly related to the generation of profits and hence, the insurance company having accepted to insure the vehicle, cannot be allowed to repudiate the claim on the ground that it was being used for commercial purpose.  He further added that it is now settled law that even if the vehicle was registered as a private car and is being used as a taxi its claim for damage at the time of accident cannot be repudiated for this reason.  Besides this, he submitted that the premium for the private vehicle and commercial vehicle is almost the same and hence in case damage to the car takes place, the insurance company, does not suffer loss in any way on account of breach of this condition.

7.      Per contra, learned counsel for the respondent submits that the petitioner had taken the policy for the vehicle as a vehicle for private use under “Private Motors Package”.  In view of this, it has not been denied that the vehicle was being used for commercial purpose.  This was in gross violation of the condition of the insurance cover and as such the respondent company was right in repudiating the claim in question.

8.      In support of his submissions, the petitioner has placed on record a copy of the Cover Note No. 1320074.  It confirms that the vehicle in question was covered under a “Private Motors Package”.  At the same time, admittedly, the vehicle was registered as a passenger car and was being run for commercial purpose by the petitioner.  The District Forum while dismissing the complaint of the petitioner as meritless, has given the following reasons in its order:-

“… All this shows that the case set up by the complainant in the complaint and as reiterated by him in his affidavit dated 04.05.2006 and documentary evidence placed on the record by him is that he had purchased and he was running the Tata Sumo vehicle in question for commercial purpose by employing Sh. Suresh Kumar who as per his own information and knowledge was not competent to drive the vehicle on the main road as he suddenly and abruptly could feel giddy and resultantly could lapse into being perplexed state of mind.”

9.      The State Commission while confirming the order of the District Forum and dismissing the appeal of the petitioner has recorded the following reasons in favour of the impugned order:-

“10. Copy of registration certificate annexure C.1 which has been placed on file shows that Sh.Chander Parkash is owner of vehicle bearing No. HR-37-B-1646 and it was insured with the respondent for Rs.3.40 lacs vide cover note dated 20.01.2006, annexure C-2.  It is also not denied that the vehicle on the night intervening 8/9-2-2006 when it was being driven by Sh.Suresh Kumar, driver from Ambala to Mohali was involved in the accident in the way.  It is also admitted case of the appellant that Suresh Kumar while driving the vehicle felt giddy and became perplexed and as a result, vehicle became uncontrolled and fell into a pit, regarding which DDR was lodged in the Police Station.  It is also admitted in the complaint that earlier also Sh.Suresh kumar had acted in the same manner.  This means that it was not solitary insurance when Suresh Kumar became giddy and perplexed but was having fits earlier also.  This fact is proved from DDR No.28 dated 11.2.2006 recorded in P.S. Sector-31, Chandigarh.  It positively shows that he was not physically competent to drive the vehicle.  He may have obtained driving licence by concealing this fact of his illness.  Since, he was not physically competent to drive and Chander Parkash employed him driver with eyes wide open, so, he is liable to suffer the consequences if the driver Suresh Kumar had thrown the vehicle in a pit.  Respondent is not liable to pay any compensation because Suresh Kumar was not physically competent to drive.”

10.    In view of the above, it is clear from the undisputed facts of this case that the vehicle was covered for private use but was being used for commercial purpose.  The driver of the vehicle was not in a fit state of health to drive the vehicle on the main roads.  The incident in question was not the first and the solitary incident of this driver feeling suddenly unwell while driving.  In the circumstances, the claim of the petitioner could not have been accepted by the insurance company.  Both the Fora below have given their concurrent findings against the petitioner.  In this context, we wish to make it clear that while we agree with the dismissal of the complaint of the petitioner on the ground of violation of condition of the policy with reference to the commercial use of the vehicle even though its insurance cover was for private use and the vehicle being driven by a driver who was not fit in a state of health and hence not competent to drive the vehicle, we do not agree with the finding of the District Forum to the effect that the petitioner was not a Consumer because he was using the vehicle for commercial purpose.  In view of judgment of this Commission in the case ofHarsolia Motors, the petitioner has to be treated as a consumer qua the insurance company providing insurance cover for his vehicle even if it was being used for commercial purpose and hence for earning profits.  This, however, does not obliterate the fact that by using it for commercial purpose, there was violation of the insurance policy, which had been taken for private use. Consequently, we do not find any reason to interfere with the impugned order and hence dismiss the revision petition with no order as to costs.

……………….……………

                                                       (ANUPAM DASGUPTA)

                                                                                                                                                PRESIDING MEMBER

  ……………….……………

                                                       (SURESH CHANDRA)

bs                                                                                                                                                                         MEMBER