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[No.101]
October 20, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
The United States Supreme Court
has denied certiorari in an Eleventh Circuit case in which the question
presented is whether it is per se unlawful under the Sherman Act for a
pharmaceutical patentee to pay a competitor to keep the competitor's generic
drug off the market during the pendency of patent litigation between the
patentee and the competitor. The Eleventh Circuit held that such agreements not
to compete, to extent they had no broader exclusionary effect than that provided
by the disputed patents were not per se unlawful. According to the petition,
Congress main purpose in enacting the legislation was to bring generic drugs
onto the market as rapidly as possible. Brand-name companies are required to
submit to the FDA for listing in the FDA's "Orange Book" patents they
own that claim the drug or a method of using the drug for which they have
received FDA approval. The petition claims that brand-name companies list
"weak" or "narrow" patents in an effort to extend their
patent protection after patents on the chemical compound itself have expired,
and that a government study has indicated that that brand-name companies sued
the first generic applicant in nearly 75% of the cases studied and that the
generic prevailed in 73% of those cases.
Valley Drug Co. v. Geneva
Pharmaceuticals, Inc.
Denying certiorari, the United
States Supreme Court has declined to decide whether an interim settlement of
patent infringement litigation, in which the alleged infringer, for
consideration, agrees to keep its product off the market until the claim of
infringement is resolved, constitutes a per se violation of the Sherman
Antitrust Act, irrespective of the validity of the claim of infringement or the
reasonableness of the interim settlement.
The suit involved a generic
pharmaceutical company that was sued by a brand pharmaceutical company for
seeking to sell a generic version of the brand product in alleged violation of
the brand company's patent rights. When the brand company threatened to seek
preliminary relief to prevent the generic company from selling its generic drug,
the generic company settled by agreeing to preserve the status quo until the
infringement litigation was resolved. Purchasers of the medication then sued
both companies, alleging the agreement was a per se illegal restraint of trade
in violation of the Sherman Act.
In re Cardizem CD Antitrust
Litigation
The United States Supreme Court
has declined to grant certiorari from a District of Columbia decision that the
Food and Drug Administration (FDA) reasonably interpreted the Federal Food, Drug
and Cosmetic Act (FFDCA), as amended by the Nutrition Labeling and Education Act
(NLEA), in classifying saw palmetto extract, which bore a label stating that it
might improve symptoms associated with benign prostatic hyperplasia (BPH), as a
"drug." The FDA acted pursuant to its policy of treating claims
regarding the cure, mitigation, or treatment of existing disease as drug claims,
and exempting from the definition of "drug" only health claims that
concerned reducing the risk of contracting disease. The Court of Appeals further
held that the FDA did not violate the marketer's commercial speech rights in
using the marketer's speech, in the form of the label, as a basis to infer the
marketer's intent. Claims about a product by its manufacturer and vendors,
including product labeling, serve as evidence of the sellers' intent that
consumers will purchase and use the product for a particular purpose, and,
therefore, as evidence whether the product is or is not a drug. The First
Amendment allows the evidentiary use of speech to establish the elements of a
crime or to prove motive or intent. Thus it is constitutionally permissible for
the FDA to use speech, in the form of labeling, to infer intent for purposes of
determining that a proposed sale would constitute the forbidden sale of an
unapproved drug, the Court of Appeals held.
Whitaker v. Thompson
An amendment to the DNA Act
which required that persons convicted of enumerated offences who were paroled
"on or after" the amendment's effective date submit a DNA sample for
inclusion in the DNA database applied to a defendant who was paroled on his life
sentence for murder prior to the amendment's effective date, in view of the
legislature's intent to create an extensive database to assist in criminal
investigations and to protect the public. The application of the Act as an
additional condition of defendant's parole did not violate the prohibition
against ex post facto laws, since the requirement was not penal in nature.
Cannon v. South Carolina
Dept. of Probation
Under Louisiana law, a
student's negligence claim against a school board for injuries the student
sustained in a fall at recess was timely. The fact that the student refrained
from filing suit for the initial diagnosis of minor injuries, namely a
hemorrhage and a non displaced skull fracture, which the student sustained in
the fall, did not preclude the student from later filing suit for an epileptic
lesion. The lesion was unknown to the student until approximately one year and
six months after the student's fall when an EEG revealed that the student had an
epileptic lesion, allegedly from the fall. Since the student filed her
negligence action against the school board approximately one month after she
discovered the existence of the lesion, her claim was timely pursuant to the
applicable one-year limitations period.
Hebert v. Calcasieu Parish
School Bd.
The Florida District Court of
Appeal held that the Women's Right to Know Act, an abortion informed-consent
statute, violated the state constitutional right of privacy. The Act did not
further a compelling state interest because its requirements were not limited to
the second and third trimesters of pregnancy, when the State's interest in
safeguarding a woman's health becomes compelling. The Act also failed to use the
least restrictive means of serving an interest in women's health in that it
restricted the categories of physicians authorized to provide informed consent
information to an abortion patient.
State v. Presidential
Women's Center
A workers' compensation
claimant, who was a Pennsylvania resident who had been injured in Pennsylvania
and had been receiving workers' compensation benefits under New Jersey law until
those benefits were terminated, was entitled to receive benefits under
Pennsylvania law for the period from the date of the work injury, less a credit
for the payments the employer paid under the New Jersey law. Because the New
Jersey benefits had ended, the claimant would not be receiving benefits from two
jurisdictions at same time. The Pennsylvania statute that would permit a similar
award, with a credit for payments made under another jurisdiction's statute, if
the injury had occurred in the other jurisdiction, did not foreclose the right
of a claimant injured in Pennsylvania to receive benefits under Pennsylvania law
subsequent to the termination of the other jurisdiction's award, given the
legislative intent to provide the maximum award for the entire period.
Lesco Restoration v. W.C.A.B.
(Mitchell)
The rights of a minority
stockholder in a close corporation were not oppressed by his firing and removal
from the board of directors. This was an issue of first impression in the state.
The governing statute provided a cause of action only for the stockholder in his
role as a stockholder, not as an employee or board member.
Franchino v. Franchino
The federal Sentencing
Guidelines, as modified by the PROTECT Act provision known as the Feeney
Amendment, violated the Separation of Powers Doctrine by effectively uniting the
powers to prosecute and to sentence within the executive branch. First, the
Amendment gave the executive effective control over the Sentencing Commission by
eliminating the requirement that at least three of seven members had to be
federal judges. The shift in control was exacerbated by other elements of the
Amendment, including eliminating the court's authority to grant a third
downward-departure point for acceptance of responsibility absent the
prosecutor's request, requiring de novo appellate review of most sentencing
decisions, and requiring reporting to the Attorney General of the identity of
any judge granting a downward departure not requested by the prosecutor.
U.S. v. Detwiler
A trial court erred when it
approved a settlement between an insured and the insurer's agent as in good
faith without analyzing the insurer's potential implied indemnity claim against
the agent after the insurer settled with the insured. The court was required to
analyze the degree that the insurer's settlement accounted for its active
liability and its passive liability, and on that basis, then look to see whether
the agent's settlement was fair.
The Doctors Co. v. Vincent
The conduct of an attorney
defending a gas utility in a negligence action relating to a fire at a home, in
sending, to the supervisor of the state trooper who investigated the accident
scene, the trooper's deposition testimony, was not so egregious and flagrantly
violative of accepted professional norms that the attorney, in the absence of a
violation of any other attorney disciplinary rule, could be found to have
violated the rule prohibiting conduct prejudicial to the administration of
justice. The attorney was not attempting to influence the trooper's testimony or
affect the admissibility of the trooper's opinion. While the attorney realized
his conduct was likely to redound to the utility's favor, he was concerned that
the trooper was incompetent and could, without further training, be assigned to
investigate future incidents involving the utility.
In re Discipline of Attorney
The evidence was sufficient for
a jury to find that the seller of a house had actual knowledge that the house
was serviced by a failed septic system, and that the seller fraudulently
concealed this information from the buyers, and that the buyers could not have
discovered the problem even after a careful examination, thereby precluding
judgment for the seller as a matter of law. The seller's testimony was
contradicted by an experienced septic tank service worker, and a trier of fact
could have inferred from the evidence that the seller knew she was selling a
house with a failed septic system.
Alejandre v. Bull
Before it could be held that a
former employee, who had been company president, was not an "employee"
for purposes of the state Wage Payment and Collection Act, it was necessary to
establish that the employee fit all three requirements under the statute for
determining that an individual was not an "employee" for purposes of
the Act. Thus it had to be shown that the employee (1) had been free from
control and direction over the performance of his work, and (2) he performed
work which was either outside the usual course of business, or was performed
outside of all places of business of the employer, and (3) he was in an
independently established trade, occupation, profession, or business.
Byung Moo Soh v. Target
Marketing Systems, Inc.
Two Vermont state court judges,
and a court clerk, were entitled to qualified immunity as to a claim of denial
of access to the courts, brought in a civil rights action by a protestor who had
been barred from the courthouse and its grounds, because that right had not been
clearly established at the time the incident took place. The judges and the
clerk, however, were not entitled to qualified immunity as to the protestor's
claim that the prohibition violated his free speech rights, but the judges were
entitled to judicial immunity as to that claim.
Huminski v. Corsones
News
In a recent move, a piano
teacher has been imprisoned for more than two years on charges of being involved
in child pornography, for more than four years. The said teacher, Robert
Howieson, of Lambley Notts, has pleaded guilty to several counts including the
making, possessing and attempting to make indecent photographs. She was found in
possession of more than 70, 000 indecent videos/images, from the Internet. The
Judge has ordered that as a future recourse, she should never be allowed to work
with children.
The treatment levied to women
prisoners in Northern Ireland has been greatly criticized by the Human Rights
Commission. The grounds of criticism are that women have been dying in their
cells and two suicide attempts have also been committed so far. However, the
Prison Service Authorities have said that conditions at a new facility in
Belfast, to which the women have now been moved, offered inmates a better
environment. Further, they have said that the regime neglected the needs of
female prisoners, lacked constructive programmes to assist their development,
compromised on their physical and mental health and failed to meet minimum
standards of a "duty of care". They also found that in this regime,
women were regularly locked in cells for 17 hours a day, workshops were
permanently closed and education classes rarely held.
A leading consultant
gynaecologist, Dr. Loukas Klentzeris, has been found guilty of professional
misconduct, while submitting his paper to the European Society of Human
Reproduction and Embryology. In the paper presented in April 2002, Dr Klentzeris,
who had been based at the University Hospital of Wales, Cardiff, had claimed
that 38
women had taken blood tests, when in fact none of them had. The GMC's
professional conduct committee has decided to conclude Dr Klentzeri’s case
with a reprimand. They further reiterated that this was a case where "He has
not only let down not just himself but also the medical profession at large."
One of Italy's best-known
multinationals, Parmalat, was declared insolvent in December after its
declaration that the 4 billion euros it supposedly held in an offshore account, did not in fact exist. This inflicted heavy losses on shareholders, and sent
shock waves through Italy's financial markets. Its former managers, banks and
auditors are already facing a claim for damages from the firm's
government-appointed administrators. Any damages awarded would help fund a
restructuring exercise aimed at putting Parmalat back on a secure financial
footing. A court in Milan is separately currently considering whether a total of
29 former employees of Parmalat, its banks and auditors should be prosecuted
over their alleged role in the affair. The company's former banks and auditors
had previously denied the wrongdoing. A lawsuit filed in a US Court on Tuesday
listed the defendants including Bank of America, Citigroup, and audit firms
Deloitte & Touche and Grant Thornton. Lawyers for the investors said they
would be seeking damages of more than $8bn (£4.5bn; 6.4bn euros).
A law intended to uphold
France's constitutionally guaranteed principle of secularism, mainly focused on
Muslim girls who wear headscarves to school. French Education Minister Francois
Fillon said that there are still 70 cases of students defying the law — mainly
involving girls refusing to remove their Islamic headscarves. In a separate
case, three
Sikh students in France have filed a suit against the country's new law banning
religious signs and apparel, refusing to remove their turbans. The Sikh
community has also asked an administrative court to re-admit the students back into
classes or force their school to convene a disciplinary council to break the
deadlock over the turbans. The court is expected to decide this case on
Wednesday.
The attorneys of Martha Stewart
plan to file an appeal against her conviction on the grounds of insider trading,
arguing that her Sixth Amendment right to confront a witness was violated
during her trial. The basis of the appeal is the US Supreme Court ruling in an
earlier case, which was decided three days after Stewart conviction. The Courts
held that the tape-recorded statements from a witness could not be
cross-examined and be used, indicating that this was clearly a violation of the
Confrontation Clause of the Sixth Amendment. In addition, one of the allegations
is that the jury was never informed that Stewart had not been charged with
illegal insider trading.
In a recent report published by
the Scottish Trade Union Congress (STUC) and the National Inspection Day, they
have urged all the workers to become aware of certain employment related hazards. According to the
available statistics, 39% of workplaces with union safety representatives had
never been inspected by the Health and Safety Executive or an environmental
health officer. And only 42% of the companies had actually involved
representatives. Further, nearly 40% of safety representatives were aware that an
inspector had visited their place of work, but had not been spoken to during the
visit.
Toronto law firm Rochon Genova LLP has filed a
lawsuit against Merck & Company in Ontario Superior Court of Justice, on
behalf of all patients who suffered from cardiovascular complications including
heart attack and stroke. Recently, Vioxx had been pulled out from all the
worldwide markets on September 30, 2004, after a study confirmed that its
use increases a patient’s risk of complications, including heart attack, stroke,
angina, blood clots and congestive heart failure. According to statistics, in
2003 IMS Health had reported that there were over 3.4 million prescriptions for
Vioxx in Canada last year, making it the 10th most prescribed drug in the
country. It is estimated that over 700,000 Canadians have taken the drug to
alleviate arthritis, acute pain and severe menstrual pain.
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Department of Company Affairs
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Notification No.
GSR661(E) Dated 08.10.2004: Vide the said notification Cost Accounting Records
(Milk Food) Amendment Rules, 2004, were brought into notice. These rules came
into being as consequence of amendments to the Cost Accounting Records (Milk
Food) Rules, 1986, and shall be applicable to every company engaged in the
production, processing or manufacture of Infant Milk Food or Milk Food as malted
milk food, energy food or food drink under any brand name excepting those
companies falling under the category of "Small Scale Industrial
Units".
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RBI
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Circular No.
A.P.(DIR Series)Circular No.18 Dated 16.10.2004: As nomenclature of the Exchange
Control Department of the Reserve Bank of India was changed from ‘Exchange
Control Department’ to ‘Foreign Exchange Department’ and necessary
amendment/s to the Foreign Exchange Management (Current Account Transactions)
Rules, 2000, were brought around. The Reserve Bank of India vide this circular
has asked its authorised dealers to bring about these developments in the notice
of their constituents and customers concerned.
Notification No.
DBOD.NO.BP.BC.458/21.04.152/2004-05 Dated 30.09.2004: With this notification,
name of the "Industrial Development Bank of India Limited" has been
included in the Second Schedule to the Reserve Bank of India Act, 1934 with
effect from October 11, 2004. The Reserve Bank of India, further circulated this
information via Circular No. DBOD.CO.No.Ret.BC.47/12.06.121/2004-05 Dated
14.10.2004, amongst all scheduled commercial banks.
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Ministry of Chemicals and Fertilizers
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Orders No.
SO1133(E), SO1134(E), SO1135(E) Dated 15.10.2004: The National Pharmaceutical
Pricing Authority has vide these orders fixed/revised the prices of bulk drugs
Phenyl Butazone, Aspirin and Ibuprofen. The price of Phenyl Butazone, has been
fixed at Rs. 352.00/Kg. Aspirin Rs.134.00/kg. and Ibuprofen Rs.384.00 /kg.
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Telecom Regulatory Authority of India (TRAI)
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Notification
No.301-37/2004-Eco. Dated 07.10.2004: TRAI vide this notification passed The
Telecommunication Tariff (Thirty Second Amendment) Order, 2004. The Authority
after considering the provisions relating to billing in the license agreements
for basic, Cellular, Unified Access, NLD and ILD licenses and also the consumer
interest in general, has decided to mandate that the bills raised by service
providers should contain sufficient information required by the customer and
also that an itemized bill relating to long distance calls shall be provided
free of charge to the customer, in case any customer requests for such bills.
Notification No.
414-7/99–FA Dated 30.09.2004: The Reporting System on Accounting Separation
Regulation, 2004 was issued on 23rd February 2004, which had initially envisaged
the submission of Accounting Separation Reports with the Authority within six
months from the end of accounting year. TRAI vide this amendment has expressed
that the reports could be submitted to the Authority within nine months of the
end of this accounting year. However, from the next year submission period shall
continue to be six months from the end of the accounting year.
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Department of Industrial
Policy
and Promotion
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Order No. SO1105(E)
Dated 11.10.2004: Subsequent to rescinding the Newsprint Control Order, 1962,
the Central Government has, vide this notification, brought in the Newsprint
Control Order, 2004, so as to have improved regulation of the Newsprint
Industry.
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Ministry of Home Affairs
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Notification No.
GSR676(E) Dated 14.10.2004: The Central Government has issued the Procedure for
Admission and Disposal of Application Rules, 2004, with reference to the
Unlawful Activities (Prevention) Act, 1967.
Notification No.
GSR675(E) Dated 14.10.2004: The Ministry of Home Affairs has released the
Qualifications for the members of the Review Committee Rules, 2004, prescribing
the prerequisite for qualifying as a member of the Review Committee, constituted
under Sub-section (1) of Section 37 of the Unlawful Activities (Prevention) Act,
1967.
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Ministry of Civil Aviation
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Notification No.
GSR672(E) Dated 12.10.2004: The Central Government vide this notification makes
the Aircraft (3rd Amendment) Rules, 2004, further to amendment of the Aircraft
Rules, 1937.
Notification No. GSR673(E) Dated
11.10.2004: The Ministry of Civil Aviation has brought forward the Airports
Authority of India (Manner of Service of Notice on Unauthorized Occupant) Rules,
2004, which addresses the issues like manner and service of notices to
unauthorised occupants, etc.
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Department of
Telecommunications
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Ref. File No.
813-07/03-LR Dated 14.10.2004: The Department of Telecommunication has declared
the Broadband Policy for the current year, so as to accelerate the growth of
Broadband services, including tele-education, tele-medicine, e-governance,
entertainment as well as employment generation by way of high speed access to
information and web-based communication.
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Department of Post |
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Notification No.
GSR670(E) Dated 14.10.2004: Vide the said notification the Department of Posts
has brought in the provision of ‘Express Parcel Post’ and specified the
tariff to be charged, as regard to it.
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Ministry
of Personnel, Public Grievances and Pensions |
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Notification No.
GSR654(E) Dated 28.09.2004: Department of Personnel and Training has passed the
Central Vigilance Commission (Removal of Difficulties) Order, 2004, vide the
said notification.
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Ministry of
Shipping, Road Transport
and Highways |
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Notification No.
GSR664(E) Dated 08.10.2004: Department of Shipping has amended the Merchant
Shipping (Levy of Seamen's Welfare Fee) Rules, 1974, vide this notification.
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Supreme Court |
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The Director, National
Heart Institute
The petitioner’s
husband was admitted to the National Heart Institute for medical
treatment. But since he did not received proper medical treatment and on
account of negligence of the doctors of the Heart Institute, he died.
Prior to the said treatment he was being treated at G.B. Pant Hospital
and since there was no improvement in his condition, his case was
referred to the National Heart Institute by on one of his employers.
Later his angiography had been carried out at the Institute and blood
transfusion had taken place, which resulted in jaundice and ultimately
his death.
The main issue in this
case was regarding the amount of compensation to be awarded in such
circumstances. In addition, the Hon'ble Court was also to decide whether non-impleading
the treating doctor as a party could result in dismissal of the original
petition on grounds of non-joinder of the necessary parties.
The Supreme Court while
allowing the appeal held that the Consumer Forum was primarily meant to
provide better protection to the interests of the consumers and not to
short circuit the matter or defeat the claims on technical grounds.
While examining the relevant facts of the case, the Court held that it
is very difficult for a patient to give details as to which doctor had
treated the patient and whether the doctor was negligent. Therefore, the
petitioners were not at fault in not impleading all those doctors who
had treated the patient. Further the Court also said that in cases where
the hospital was negligent and this resulted in the death of the
patient, the burden of proof was on the hospital and the doctor who
treated the patient, to prove that there was no negligence involved in
the treatment. As regards the payment of compensation, the Court ordered
the respondents to pay an amount of Rs. 45 lacs to the petitioner.
The State of West
Bengal had passed the West Bengal College Teachers (Security of Service)
Act, 1975 (the Security of Service Act) and the West Bengal College
Service Commission Act, 1978 (the College Service Commission Act). But
pursuant to the said acts, the West Bengal College Service Commission
(Manner of Selection of Persons for Appointment to the Posts of Teachers
including Principals) Regulations, 1980 was made.
The main issue in this
case was whether the appointment of teachers in an aided institution by
the College Service Commission by restricting the petitioners right to
appointment is a reasonable restriction in the interest of the general
public. The main contention of the petitioners was since they were a
religious minority and religious denomination under Article 25, 26 and
30(1) of the Constitution, the appointment made by the West Bengal
College Service Commission Act, 1978 was unconstitutional. Further they
also contented that they alone had the right to appoint teachers and
therefore any kind of appointment made by the State was incorrect. On
the other hand the respondents prayed for dismissal of the said
petition, on the ground that the petitioners society did not belong to a
minority religious community.
The Supreme Court while
allowing the petition held that merely because the Government gives aid
to a particular school, such a school would not belong to it. Also this
could not be a ground for the school to loose its autonomy. But the
Court added a restriction on the powers of the Government, saying that
such a control of the Government could not extend to day-to-day matters.
Further the Court also said that there could be certain exceptional
cases where the State could provide for basic qualifications for the
teachers. |
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High Courts |
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Gujarat
The complainant
purchased two bottles of Pepsi and kept them under refrigeration. Later, after
consuming the same, he suffered from pain in throat and heavy fever. This
resulted in his treatment for 5-6 days and some amount of money was also spent
during this. The main contention of the complainant was that he had suffered
from such illness as a result of consumption of the said drinks. Later, during
investigation, the said bottles were also sent for examination to the Food and
Drugs Laboratory at Baroda, who confirmed the presence of fungal mycelia and
other spores in the sample, thereby making it unfit for human consumption. On
the other hand, the opponent contented that there was no privity of contract
between him and the complainant.
The Gujarat State
Consumer Disputes Redressal Commission, while dismissing the appeal ordered for
the payment of Rs. 3, 046/- within 30 days from the date of order, failing an
interest @18% and cost quantified at Rs. 500/-, would have to be paid.
Kerala
The employees of the
establishment were agitating about their entitlement to bonus for the year
2002-2003. A conciliation settlement had been arrived at between the employees
and the establishment. The scheme, which had been worked out was to be valid and
applicable till a long-term settlement was signed. The national productivity
council (NPC) was to act as an expert body to evolve and work out a fresh scheme
for productivity-linked bonus.
As per the final
report given by NPC the bonus payable came to be 20%, however, an excess payment
stood paid consequent to settlement. The management decided to recover excess
amount in equal monthly installments. The employees association took up the
matter before Additional Labour Commissioner questioning the reasonableness and
fairness of the scheme. As the Additional Labour Commissioner took no consequent
action, the employees filed a Writ petition seeking directions forbearing the
management from recovering the amounts.
The Kerala High
Court disposed of the writ petition with the observation that a settlement under
section 18 of the Industrial Disputes Act, is binding. The recovery of the
amounts due was nothing but enforcement of the settlement.
Madras
The respondent had
been working with the appellant for a period of eight years. Since he was not
permitted to join work by the management on the premise that the he had tendered
his resignation, the respondent sent a letter to the management wherein he
denied ever having submitted a resignation, as alleged by the management. The
Industrial Dispute between the parties on this issue was decided in favor of the
management.
In a writ petition,
the order of the Labour Court was reversed and the management filed an appeal
against the same primarily on the ground that the respondent had submitted his
resignation and therefore he should stand dismissed. The High Court of Madras
held that keeping in view the circumstances of the case and the fact that no
reply had been sent by the management to the respondent – worker, the
acceptance of resignation was not valid.
New Delhi
The complainant on
encountering certain problems in his eyes contacted the appellant doctor, who
suggested that certain tests were to be carried out. On completion of the said tests,
except B-scan, the petitioner carried out the surgery. But during the surgery,
it was found that the lens could not be implanted. Later, the condition of the
complainant’s eye worsened and this resulted in loss of sight. During one of
the visits, the doctor told the complainant that his eye could not be cured.
This led to the filing of the present petition by the complainant.
The main issue in
this case was firstly, whether this was a case of medical negligence and
secondly, as regards the amount of compensation to be paid in such
circumstances.
The National
Consumer Disputes Redressal Commission while dismissing the appeal held that
operating a person without the B-scan report was of no consequence, since only
through this report, could the status of the eye including the retina
detachment, be ascertained. Therefore, this was a clear case of medical
negligence. As regards the amount of compensation payable in such circumstances,
the Court while applying the principle of whether the loss resulted directly
from negligence or not, ordered for payment of a sum of Rs. 1 lakh, in favor of
the complainant.
Rajasthan
A criminal case was
registered against the petitioner and consequentially the petitioner was
arrested. The police completed the investigation and forwarded the case to the
Court of Additional Chief Judicial Magistrate, treating the accused to be of
eighteen years of age. The matter was committed to the Court of Session, where
charges under Section 302 were framed.
During the course of
trial, the petitioner moved an application for being treated as a juvenile and
for being tried by a Juvenile Court. A prayer was also made for an inquiry to
ascertain the correct age of the petitioner. The Sessions Judge declined to make
any inquiry in respect of the age of the petitioner.
In a revision petition challenging
the said order, the High Court of Rajasthan held that the burden of proving the
age of delinquent is not on the juvenile but it is for the Court to hold an
inquiry to ascertain the correct age. It was also held that plea of minority may
be taken at any stage of the case.
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