November 14, 2014
In Kushal Rao vs The State Of Bombay case the Supreme Court of India observed that the provision of s. 32(I) of the Indian Evidence Act makes the statement in a dying declaration as to the cause of death and the circumstances that brought it about relevant, is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross-examination. From the spirit of the law it is clear that the purpose of this law is to keep the principle of “Leterm Mortem” which means “words said before death” & in a legal term it is called ‘Dying Declaration,’ are reliable.
In the above mentioned case, the Supreme Court had further observed that the special sanctity which the Legislature attaches to such a declaration must be respected unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable and any evidence adduced for this purpose can only detract from its value but not affect its admissibility.
The case of Kushal Rao v. State of Bombay set several precedents for future cases involving the dying declaration.
- First, a dying declaration which has been recorded by a competent Magistrate in the proper manner i.e. in the form of questions and answers, &, as far as practicable in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony. The court observed that dying declaration that depends upon oral testimony may suffer from all the infirmities of human memory & human character.
- Second, there is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated and therefore, a true & voluntary declaration can be sole basis of conviction, provided, it is corroborated.
- Third, a dying declaration stands on the same footing as other piece of evidence. Therefore, it has to be judged in the light of surrounding circumstances and with reference to the principle governing the weight of evidence.
- Fourth, a dying declaration is not a weaker kind of evidence than any other piece of evidence; however, each case must be determined on its own facts and the court must keep in view the circumstances in which the dying declaration was made.
- Fifth, the court must test the reliability of the dying declaration for which it has to keep in view the circumstances like the opportunity of the dying man for observation. For instance, whether there was sufficient light if the crime was committed in the night. The court must also test whether the capacity of man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control.
- Sixth, the court must also test whether the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of i. Also, the statement had been made at the earliest opportunity & was not the result of tutoring by interested party.
What evidentiary value does a dying declaration have?
Whereas Kushal Rao vs The State of Bombay case set the importance of dying declaration and what is the right process to record it to have value in the court of law, the case of K.R. Reddy v. Public Prosecutor showed the evidentiary value of dying declaration. In this judgment the Supreme Court of India observed that the dying declaration is undoubtedly admissible under section 32. Also, it not being statement on oath could be tested by cross-examination.
In the case the observation made by the apex court has since then become vital precedent for the future cases. For instance, the court held that the scrutiny & the closest circumspection of the statement before acting upon it must be done by the courts trying the cases that involve dying declaration.
It was further held that while great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination.
Therefore, according to the Supreme Court of India the court must be satisfied that the deceased was in a fit state of mind to make the statement after he or she had a clear opportunity to observe & identify his assailants. It must be made sure that the deceased was making the statement without any influence or rancor.
Least but not the last, the Supreme Court of India in the case held that once the court is satisfied that the dying declaration is true and voluntary, it can be sufficient to found the conviction even without further corroboration.
October 11, 2014
If you visit a hospital or a doctor and you suffer losses physical or financial or even psychological due to the negligence on the part of the medical services provider, you may claim for compensation. Medical negligence happen a lot when the medical practitioner fails to take precautions. What has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient.
The established norm of medical negligence is that it includes any act or omission in treatment of a patient by a medical profession, which deviates from the accepted medical standard of care. The medical practitioners could be a doctor, dentist, nurse, surgeon or any other medical professionals who perform their job in a way that deviates from the accepted medical standard of care.
Three components of medical negligence and liability of doctor
A negligent act comprises of three main components.
1) Existence of legal duty;
2) Breach of legal duty
3) Damage caused by the breach of trust to patient.
However, the liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor as he failed to provide reasonable care.
What you need to prove is that there has been existence of a duty and there was the breach of duty and the causation because when there is no breach or the breach did not cause the damage, the doctor will not be liable. Thus, the burden of proof is on the plaintiff to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree.
There are some instances wherein the plaintiff need not prove anything. For instance, a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, etc. In such situations the principle of ‘res ipsa loquitur’ i.e. the thing speaks for itself that the respondent was negligent.
Generally, the doctor is held liable for negligent act; however, he can also be held liable for the acts of another person which injures the patient as he somehow allows the others to cause damage to the patient as it is breach of duty. For instance, a doctor doing surgery leaving patient at the mercy of assistant when he knows he cannot do the surgery is medical negligence.
October 10, 2014
You can file a written complaint before the District Consumer Forum for pecuniary value of up to Rupees twenty lakh and to State Commission for value up to Rupees one crore and the National Commission for value above Rupees one crore in situations you feel the services or goods provider did not respect your consumer rights which may come in defective goods and deficient services.
It’s not that if you file consumer complaint in consumer court you waive your right to file civil suit. You can still look for the civil suit as that is the main remedy; consumer protection complaint is a quick remedy under the Consumer Protection Act wherein complaint/appeal/petition submitted under the Act does not ask for any court fees but only a nominal fee.
Moreover, as Consumer Forum proceedings are summary in nature, you can seek swift justice. You must check if any sub-rules have been passed in your state or union territory as the Act allows this freedom to respective governments i.e. State Forums and National Forums may have their own rules.
The Procedure for Filing Complaint before the District Forum
- This one is the most important, there is time limit to file the complaint to the consumer forum i.e. it must be filed within two years of the cause of action and if there are reasonable causes for delay in filing the complaint, you can always request the Consumer Forum to condone the delay.
- Though you can file a handwritten complaint, typed complaint will make things easy not just for the adjudicating officer but for you and the respondent. Ideally, it should be double spaced, with at least 1½ inches of margin space on the left, top and bottom like any standard document.
- Arrange the complaint in order and give page number all documents for convenience. For instance, if you are submitting application for condonation of delay in situation there is some delay, you should put it before all documents.
- You complain should have details of the grievance, put in the language that can be comprehended by the officer and the respondent. Preference should be to put in a narrative and chronological manner and must come with what the issue is and what relief you want from the complaint.
- Best part is, you can appear before the Consumer Forums in person and don’t need any lawyer to represent your case. Even your close relative can appear for you. However, if you wish to hire a lawyer to represent you, you must enclose a Vakalatnama, you may prefer this if you are busy and don’t want to do paperwork and attend the hearing.
- Place affidavit that the contents of the complaint are true and put the copies of all documents on which you rely upon in support of your Complaint. You also need to submit one original and two photocopies of the same. Also, you should submit as many more copies as there are parties.
- Being a complainant, you are also asked to send notice in writing to the supplier or service provider you are complaining against. Make sure the notice is simple, clearly pointing out your grievances, and requesting the supplier or service provider to rectify the faults, defects, etc. or replace the goods.
- You are also required to give ample time to the respondents to either address the issue you raised or come prepared in consumer forum. Make sure that the notice you sent reaches to the respondents/defendants and for that send it to the address where they are actually available.
What Happens Once You Have Fulfilled All Conditions
You are asked to be present on the said date at the Consumer Forum office. If you have asked a lawyer to represent you, he will do this for you. During the admission of the case, you or your lawyer records the presence, whereupon a date is assigned in future. The time is taken to allow the complaint copy to reach to the opposite party.
The next hearing takes place when both the parties are present and the adjudicating officer asks to submit affidavits, written arguments, etc. Verbal arguments are listened during this and subsequent hearings which generally take place in some 15 days apart.
What if You Missed the Hearing?
In situation you were unable to represent your case as you were engaged somewhere else you can call up the PRO and get the next hearing date by giving the complaint number and the date of the hearing you missed. However, make sure that if you are absent at two consecutive hearings, the Consumer Court reserves its right to struck out the case. Even then there is some hop in the form of a letter that you can write addressing the Forum within a month of closure.
What after Order/Ruling?
As consumer forum hearings are summary decisions, it does not take much time to decide and you can get your issues addressed within a couple of months. The adjudicating officer delivers the order after verbal arguments on or after 15 days. You must show your presence on the day of the passing of the order.
In situation you are not satisfied with the order passed by the Consumer Forum, you may appeal against it within one month of the date of the order, with the appellate authority. However, if there is no appeal, and not compliance, the court has right to issue an arrest warrant against the defaulter.
