Citation-7

1.     INDIAN PENAL CODE, 1860- Sections 279/337/304-A-What constitute negligence varies under different condition- In case of negligence two tests considered to be important to determine the liability- The test of probability and the test of Foreseeability- In the former case, it is to be seen whether it could have foreseen the danger/possibility of accident- The accident was a natural or necessary, or probable consequences of the act of the accused- In the latter case, it is to be seen whether the accident was a reasonable and possible consequences of this act. Baburam Majhi vs. State of Odisha reported in 2022(II) OLR-237. DOJ. 20.6.2022.

2.     PENSION- The moot question whether a divorced daughter of a deceased government employees is entitled to get part of the family pension for her sustenance as directed by the tribunal between the legally wedded wife (Petitioner) and the opp. Party no. 5 born out of the second wife  of the deceased employee- Discussed factual matrix, contention records, provision of law laid down by the office memorandum’ held the petitioner (step mother) was living separately even during the life time of the father of the Opp. Party 5 and the latter had authorized pension in her favour being a divorcee daughter and suffering from mental disability- Petitioner had never disputes the factum that O.P. 5 is the daughter of the deceased employee through second wife- The legal heir certificates issue by the Tahasildar reveals the mother of O.P. 5 to be the widow of the deceased employee and O.P. 5 is the daughter- These fact has never been assailed by the present petitioner before any proper forum and thus the legal heir certificate issued by the competent authority to te sacrosanct and the O.P. 5 has a right to claim pension of her father- Tribunal committed no irregularity or illegality in directing splitting the pension between the legally wedded wife and O.P. 5- Writ petition no consideration and accordingly dismissed. Jyotsna Rani Mohanty vs. Secretary, Indian Council of Agricultural Research & Ors. reported in 2022(II) OLR-263. DOJ. 13.4.2022.

3.     CRIMINAL PROCEDURE CODE, 1973- Section 167(2) read with section 36A(4) of the NDPS Act- Application under- Petition by the investigating agency seeking to extend the period of investigation- Copy served to the Advocate for accused- Plea that notice was not served to the accused personally- Law on the issue discussed-Question arose as to whether personal notice to the accused is mandatory/necessary?- Held, No- Insistence on issuance of personal notice to the accused even when he is represented by a counsel and the counsel has participated in the proceeding relating to consideration of a petition u/s 36-A(4) of NDPS Act would amount to legislation and rewriting the provisions contained in S.36-A(4) of NDPS Act which is beyond the powers of this Court- It is settled principle of law, which stood the test of time that Courts cannot legislate or interpret the provisions of statute so as to render the intention of legislature otiose- On a conspectus of materials on record, this Court is of the considered opinion that there has been no infraction of the right of the accused as guaranteed u/s 167(2) of the Cr.P.C. r/w S. 36-A(4) of the NDPS Act. Surendra Gadaba Vs. State of Odisha reported in 2022(II) OLR-271. DOJ. 13.5.2022.

4.     ODISHA ESTATE ABOLITION ACT, 1951- S. 38-B-Power of Board of Revenue to revise any order- No time limit- Duty of constitutional court- Revisional power conferred u/s 38-B of the OEA Act should be exercised in a reasonable manner which inheres the concept of exercise of power not arbitrarily and rather, absence of limitation is an assurance to exercise the power with caution and circumspection to effectuate the purpose of the Act- As a constitution court, it has a duty and obligation to protect the rights of the litigants and to strike a balance to ensure that injustice does not result. M/s. Maruti Estate India (P) Ltd. Vs. State of Odisha & Ors. 2022(II) OLR-278.

5.     CRIMINAL PROCEDURE CODE, 1973- S. 457- Petition rejected for release of the vehicle for commission of offence u/s 279 IPC on the ground that it was not insured on the date of accident as per the provision contained in rule 6 (i) of the Orissa Motor Vehicle (Accidents claims Tribunal) Rules, 2018-Petitioner having later assured his vehicle and willing to deposit the entire value of the vehicle- No truthful purpose would be served by keeping the vehicle detained in the police station- Direction for release of the vehicle of the petitioner subject to the conditions stated in details. Rabindra Mohanty vs. The State of Odisha. 2022(II) OLR-282.

6.     CONSUMER PROTECTION ACT, 1986- S. 2(g)- Deficiency of service- Negligence on the part of the service provider- The factual matrix of the case is that the complainant has purchased Medi-claim policy for sum assured of Rs.10.00 lacs under the plan ‘senior citizens Red carpet Health Insurance Policy’- While filling up of the proposal form has admitted to have suffered from diabetic and hypertension- Complainant having suffered from high fever got him admitted to the Apollo Hospital and after necessary treatment discharged on18.1.2018- But the insurer raised the issues with regard to two more diseases i.e. Rheumatoid Arthritis and COPD which he has not disclosed during filling up of the proposal form- Held, complainant has proved the deficiency in service and unfair trade practice on the part of the OP-In view of above discussion, allowed the complaint directing the OP to pay Rs. 3,20,000/- as hospitalisation expenses, Rs. 15,00,000/- towards compensation and Rs. 5,00,000/- as punitive damages and litigation expenses of Rs.25,000/- t complainant within 45 days- Failing which carry an interest at the rate of 12% per annum from the date of this order till the date of payment. Ranjan Mohapatra Vs. Star Health & Allied Irtsurance Co. Ltd. 2022(II) OLR-(CSR)-326.

7.     MOTOR VEHICLE ACT, 1988- Ss. 173- Deceased was a young girl aged about 21 years prosecuting her studies in 4th year MBBS at VSS, MCH, Burla- Insurer challenges contending that deceased was admittedly a non-earning person fixing her notional income- Held, such argument advanced by the insurer is completely unacceptable- It is for the reason that a 4th year student of MBBS course having a meritorious educational career can never be treated as a highly skilled labourer nor can her income be equated with such amount prescribed in the second schedule of the M.V. Act as notional income for non-earning persons- compensation amount increased- MACA allowed. Bishnupriya Panda & Anr Vs. Basanti Manjari Mohanty & Anr. 2022(II) OLR-344.

8.     STATE  CONSUMER DISPUTES REDRESSAL COMMISSIOIN-Appreciation of evidence- Evidence to be brought before the commission by complainant must be tested- Document has to be proved- For the purpose of proof of oral and documentary evidences, cross examination must be allowed. Manoj Mohapatra & Anr. Vs. State Consumer Disputes Redressal Commission & Anr. Reported in 2022 (II) OLR-360. DOJ. 07.07.2022.

9.     ODISHA LAW OFFICERS RULES, 1971- Rule 24(4)-Daily fees of Assistant Public Prosecutor- “In a Court where more than one prosecutors are engaged for a day’s work in a Court one day’s fees payable, has to be proportionately divided amongst the prosecutors”?- Rule 24 (4) of the Rules does not provide for any proportionate division of the daily fees between two or more APPs-Nothing in the above Rule indicates that if more than one APP is appointed, the daily fees payable will have to be divided proportionately. In other words, a plain reading of the Rules indicates that the daily fee has to be paid to every APP so appointed-Held, it is ultra vires the Rule 24 (4) of the Rules, which does not permit or envisage such a pro rata division of daily fees among the APP if there is more than one is appointed. Narayan Muni Vs. State of Odisha and Ors. reported in 2022 (II) OLR-362. DOJ. 05.07.2022.