KANTH AND ASSOCIATES

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Agreement on Social Security between the Republic of India and the Federative Republic of Brazil. India has been entering into bilateral Social Security Agreements (SSAs) with other countries in order to protect the interests of Indian professionals / skilled workers working abroad for short durations and enhance the competitiveness of Indian companies. The SSAs broadly provide the following three benefits: (a) Avoiding making of double social security contributions by the workers (detachment); (b) Easy remittance of benefits (Exportability); (c) Aggregating the contribution periods (in two countries) to prevent loss of benefits (Totalization). The agreement will also provide for disability insurance benefits to the Indian nationals working abroad. India, as on date, has signed SSAs with 18 countries.

The Cabinet has given ex-post facto approval on an Agreement on Security Cooperation between the Government of the Republic of India and the Government of the Kingdom of Saudi Arabia that was signed on 29.10.2019.The Agreement aims to improve the effectiveness of both countries in the prevention and suppression of crimes including crime relating to terrorism and its financing and organized crime and to establish a framework for enhancing cooperation between the officials of intelligence and law-enforcement agencies of the two countries, in line with national and international obligations.

The Government has relaxed the travel rules for Overseas Citizens of India (OCI) until June 30.06.2020.According to the rules, OCI are supposed to get their OCI cards reissued with renewal of passport if they are below the age of 20 years and once after they attain the age of 50.However, sources said, these rules were not being strictly followed earlier, leading to a CORPORATE, CAPITAL MARKET, ECONOMY &

FOREIGN TRADE

Cabinet approves Agreement on Social Security between India and Brazil

Cabinet approves ex-post facto agreement on Security Cooperation between India and Saudi Arabia

Travel norms for OCI card holders relaxed

CONTENTS

— News Alerts

Corporate, Capital Market, Economy &

Foreign Trade 1

Legislations/Notifications 1

Judgments 2

— Article 3

Motor Vehicle (Amendment) Act, 2019: An Overview

By Kamakshi Sehgal, Associate, Kanth & Associates

trend where OCI were not getting their cards reissued. As per the Order of the Ministry of Home Affairs, the Ministry of External Affairs is requested to advised Indian Missions to provide a temporary relaxation to the OCI till 30.06.2020. The notification said that in case an OCI card holder below the age of 20 has not got the OCI card re-issued on change of passport, he/she may travel on the strength of his/her existing OCI card bearing the old passport number until 30.06.2020 subject to the condition that along with the new passport, the OCI card holder carries the old passport mentioned in the OCI card. In case an OCI card holder who has attained the age of 50 years and got his/her passport renewed subsequently but has not got his/her OCI card re-issued on renewal of passport, he/she may travel till 30.06.2020 on the strength of the OCI card along with the new and old passports.

The President of India gave his assent to the Citizenship (Amendment) Bill, 2019 pursuant to which the same has been turned into an Act. According to an official notification, the Act comes into effect with its publication in the Official Gazette. As per the Act, members of Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have come from Pakistan, Bangladesh and Afghanistan till December 31, 2014 and facing religious persecution will not be treated as illegal immigrants but would be given Indian citizenship. The Act says the refugees of the six communities will be given Indian citizenship after residing in India for five years, instead of earlier requirement of 11 years. The Act also proposes to give immunity to such refugees facing legal cases after being found as illegal migrants. According to the legislation, it LEGISLATIONS/NOTIFICATIONS

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Meghalaya, Mizoram and Tripura as included in the Sixth Schedule of the Constitution and in the areas covered under the Inner Line Permit, notified under the Bengal Eastern Frontier Regulation, 1873.The Inner Line Permit regime is applicable in the States of Arunachal Pradesh, Nagaland and Mizoram.

The Cabinet approved the proposal to make amendments in the Insolvency and Bankruptcy Code, 2016 (Code), through the Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019. The amendments aim to remove certain difficulties being faced during insolvency resolution process to realize the objects of the Code and to further ease doing of business. The Amendment Bill seeks to amend sections 5(12), 5(15), 7, 11, 14, 16(1), 21(2), 23(1), 29A, 227, 239, 240 and insert new section 32A in the Insolvency and Bankruptcy Code, 2016 (Code). The Amendments to the Code may have the following impact: (a) remove bottlenecks and streamline the Corporate Insolvency Resolution Process (CIRP); (b) Additional thresholds introduced for Financial Creditors in order to prevent frivolous triggering of CIRP; (c) Ensure that the substratum of the business of corporate debtor is not lost, and it can continue as a going concern by clarifying that the licenses, permits, concessions, clearances etc. cannot be terminated or suspended or not renewed during the moratorium period; and (d) Ring-fencethe corporate debtor resolved under the Code in favour of a successful resolution applicant from criminal proceedings against offences committed by previous management/promoters.

The Cabinet approved a proposal to promulgate an Ordinance and to amend the Insolvency and Bankruptcy Code, 2016.The Amendment will remove certain ambiguities in the Insolvency and Bankruptcy Code, 2016 and ensure smooth implementation of the Code. Under the Amendments, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority, if the resolution plan results in the change in the management or control of the corporate debtor to a

Cabinet approves Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019

Cabinet approves promulgation of Insolvency and Bankruptcy Code (Amendment) Ordinance, 2019

management or control of the corporate debtor or a related party of such a person; or (b) A person with regard to whom the relevant investigating authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory authority or Court. Subject to relevant provisions the corporate debtor shall, as required, extend all assistance and co-operation to any authority investigating an offence committed prior to the commencement of the corporate insolvency resolution process.

The Supreme Court recently dissolved a marriage by exercising its inherent powers under Article 142 of the Constitution, even as it recognized that there is no statutory law for recognizing irretrievable breakdown of marriage as a ground for divorce in India. The Court passed a judgment to this effect after taking note that the Supreme Court has earlier invoked its inherent powers under Article 142 to grant a divorce on the ground of irretrievable breakdown of marriage. The Court observed that, in numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it. However, the Court added the caution that such powers are not exercised routinely and the same could be invoked “in rare cases, in view of the absence of legislation in this behalf, where it is found that marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably.”

The Supreme Court reiterated that a hospital is also vicariously responsible for the medical negligence committed by the medical professionals employed or retained by it. The Court observed that, “it is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empaneled to provide medical care.” The Court further explains that, “it is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the JUDGMENTS

Article 142 can be invoked to dissolve a marriage: SC

Hospital vicariously liable for medical negligence committed by its doctors: SC

DISCLAIMER- Kanth and Associates newsletter is for private circulation only. It does not purport to be or should not be treated as professional advice or legal opinion. Kanth and Associates also disclaim any responsibility and hereby

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their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.”

The Supreme Court has observed that a delay of more than 120 days in filing an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 is not liable to be condoned. The Court was dealing with an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 that was filed challenging an order rejecting a petition under Section 34 of the Arbitration & Conciliation Act, 1996 challenging the Arbitral Award passed by the Arbitrator. The Court dismissed the appeal on the ground that there was inordinate delay of more than 120 days in filing of the said appeal. The Court relied upon an earlier judgment wherein it was held that any delay beyond 120 days in the filing of an appeal under Section 37 of the Arbitration and Conciliation Act, 1996from an application being either dismissed or allowed under Section 34 of the Arbitration and Conciliation Act, 1996 shouldn't be allowed as it will defeat the overall statutory purpose of arbitration proceedings.

The Supreme Court held that a High Court cannot dismiss a second appeal on merits where the appellant is unrepresented on the date fixed for hearing. If the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits. The Court, referring to the provisions of Order XLI Rule 17(1) of the Code of Civil Procedure, 1908 observed that the explanation was introduced in the said provision to clarify the law by making an express provision that where the appellant does not appear, the Court has no power to dismiss the appeal on merits. Thus, Order XLI Rule 17(1) read with its explanation makes it clear that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date of hearing of the case. In other words, if the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits.

Delay of more than 120 days in filing arbitration appeal not liable to be condoned: SC

Second appeal cannot be dismissed on merits when appellant is unrepresented on the day of hearing: SC

pension: SC

Preliminary inquiry is not mandatory in all corruption cases: SC

The Supreme Court of India has held that the Government employees will not be entitled to pension if they resign from service as it forfeits their past service. The Court, while making this observation, made a distinction between voluntary retirement and resignation. The Court observed that in of resignation, the entire past service would be forfeited, and consequently, an employee would not qualify for pensionary benefits under the Central Civil Services Pension Rules, applicable to Government servants, including civilian government servants in the defence services, appointed before December 31, 2003.The Court, however, explained taking voluntary retirement and resigning from job are two different things and pension cannot be given in case of resignation and the decision to resign is materially distinct from a decision to seek voluntary retirement. The decision to resign results in the legal consequences that flow from a resignation under the applicable provisions. These consequences are distinct from the consequences flowing from voluntary retirement and the two may not be substituted for each other based on the length of an employee's tenure.

The Supreme Court held that the preliminary inquiry is not mandatory in all corruption cases and an information disclosing a cognizable offence is sufficient to initiate prosecution. The Court observed that the scope and ambit of such inquiry or probe being necessary before lodging an FIR would depend upon the facts and circumstances of each case as the objective of the preliminary probe is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. The Court accordingly said, “Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari versus state of Uttar Pradesh (2014 verdict) is not required to be mandatorily conducted in all corruption cases.” The Court added, "……the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.”

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The Amendment Bill to the Motor Vehicle Act, 1988 was formerly introduced in 2017 and was passed by the Lok Sabha in April 2017, however, it lapsed in the Rajya Sabha. The Amendment Bill was again tabled and re-introduced in 17th Lok Sabha on 15thJuly 2019 and was passed on 23rdJuly 2019. The Bill was passed by the Rajya Sabha on 31stJuly 2019 and received the assent of the President on 9th August, 2019. The Bill was based on the recommendations of the Group of Transport Ministers (GoM) of States constituted by the Ministry of Road Transport & Highways to address the issue of road safety and to improve the facilitation of the citizens while dealing with transport departments. At present, as notified by the Central Government on 28th August,

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2019 , 63 clauses of the Motor Vehicles (Amendment) Act, 2019 (“Act”) are to be implemented from 01st September, 2019 as the same do not need any further modifications in the primary Motor Vehicles Rules, 1989.

The Act alters and updates the thirty-year-old law primarily enacted in 1988. The Act endeavours to transform the transportation laws in India and provide the country with an enhanced road safety system. The Act aspires to meet international commitments in accordance with Brasilia Declaration of 2015 & UN Sustainable Development Goals. The Act strives to brace rural transport, public transport and last mile connectivity through automation, computerization and online services. The Act attempts to curb violation of rules, weed corruption and reduce/prevent menace of deaths due to road accidents. The Act pioneers the stringent norms for acquiring a driving license, and strict penalties for traffic violations, in an effort to reduce road mishaps and deaths in the Country.

Related to penalties for breach or defiance of the traffic rules, the Act prescribes enhanced penalties and introduces certain new penalties. For instance, for driving under influence of drugs/alcohol, penalties are increased from Rs.2,000/- to Rs.10,000/-. A new penalty for not giving way to ambulance has been introduced with a fine of Rs.10,000/- and imprisonment upto 6 months. Section 177A has been introduced for Motor Vehicle (Amendment) Act, 2019: An

Overview

By Kamakshi Sehgal, Associate, Kanth & Associates

penalty for Overloading of passengers is also an offence under the Act with a penalty of Rs.1,000/- per extra passenger. Furthermore, the Act also covers offences by the Enforcing Officer. The Officer shall be liable to pay twice the penalty under relevant provision, if found to be in violation of the Act. Along with the aforesaid, the Act introduces penalties for suspension of driving license, unauthorized utilization of vehicle, and driving by disqualified person. The Act further provides for drivers to undergo “driver refresher training course” for revival of licenses. That another main essence of the Act relates to compulsory alteration of vehicle for especially abled people.

Along with the revised penalties, there are some notable changes on licensing as well. The Act further sets up cashless treatment scheme for victims during” . It also constitutes Motor Vehicle Accident Funds for compulsory insurance cover to the victims and their representatives, Good Samaritans , development of National Transport Policy, recalls vehicles on defects and Road Safety Boards. In addition to what is mentioned above, the Act holds contractors, concessionaires, authorities, guardians liable and responsible for failure to follow road standards and juvenile causing accident. It sets for 6 months' time limit for filing insurance claims for accidents and makes Aadhar Card mandatory for driver's license and vehicle registration. The Act further has removed the cap on third party insurance liability which as per 2016 Act was Rs.10,00,000/- on death and Rs.5,00,000/- for grievous injury.

The Delhi Traffic Police issued an advisory to its personnel that talk about the traffic violation by the police personnel. The order further stated that all the Deputy Commissioners of Police Districts/ Units are bound to brief and sensitize the staff working under their operational control accordingly to follow traffic rules and regulations in true letter and spirit whether they are riding/ driving police vehicles or their own private vehicles. The offences committed by enforcing officer shall have to pay twice the penalty under relevant provision. The move by the government came in wake of growing concerns over sharp hike in penalties for traffic violations. The steep surge in penalties under new Motor Vehicles Act has triggered worry among law-breaking motorists across the country.

In a survey , an organization involved in policy making and complaints redressal, 96 per cent of the consumers 2

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per cent by 2020. Ninety-seven per cent felt the Bill should be supported by all the parties since it was important to bring down fatalities due to road accidents, currently the highest in the world at 1.46 lakh yearly.

In recent times, seldom would there have been changes in legislation touching all arena/phase. Whether it is about making it mandatory for a child younger than four years, to wear a helmet, or making guardians liable for a juvenile driving a vehicle, or escalating penalties manifold for offences such as drunk and dangerous driving, over-speeding, driving without permit, the Motor Vehicles (Amendment) Act, 2019 will sway/affect all and sundry. The Act strives to strike balance between the disciplinary approach amongst authorities, citizens essentially required for penalizing corrective measure to prevent road accidents, corruption thereby developing a transportation system and citizen- centric approach being liberal towards victims with their struggle for compensation along with simplified/ accessible methods and policies.

As far as road safety is fretful, discipline is exigent where sharp augment in the vehicle population has increased the number of fatalities and injuries from road accidents. If implemented in spirit, the law can transform road habits of all by not only imposing stiffer penalties for flouting rules, but also trying to inculcate a sense of accountability among the citizens to abide by them. The death toll by road accidents runs into 5 lakhs and 1.5 lakh getting killed every year which is behind China, the most populous country. The Amendment becomes the need of the hour. The law provides a provision for a National Transport Policy, wherein the Centre, in consultations with states, will develop a medium and long-term policy framework for all forms of road transport, work towards an integrated multimodal transport system, and promote innovation, competition and seamless mobility.

The State of Hyderabad has started a campaign to educate the public about provisions of the Act i.e., to inculcate awareness/knowledge of pubic and across the state of Telengana, the issuance and release of order by state transport is awaited for implementation. The State of Rajasthan awaits to take a call for reviewing the penalty amount and State of West Bengal and Madhya Pradesh have put the implementation on hold citing differences over amount of penalty on traffic

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issuing notifications for compounding certain offences for fixing fee/ penalty and moreover power to designate officials to oversee compounding process. The State of NCT of Delhi prior to issuing Notification with respect to compounding various offences, seeks to hold wider consultations with various traffic police and stakeholders. Thus, the Notifications stands on hold and awaited till further considerations and deliberations.

The Gujarat government on 10thSeptember 2019 condensed fine amounts stipulated in the new Motor Vehicles Act passed recently on “compassionate and humanitarian” basis is now likely to pave way for other states to lower fines as well. Under the new fine arrangement in Gujarat, the penalty for not wearing a helmet is changed to Rs 500, which is Rs 1000 under the MV Act, for not wearing seat belts Rs 500 will be charged, as against Rs 1000, driving a vehicle without driving license will attract a fine of Rs 2000 for the two-wheelers and Rs 3000 for the rest, as against Rs 5000 under the new rule, If the license, insurance, PUC, RC book is not there, the fine will be as per the new Motor Vehicles Act. For the first time, Rs 500 will be fined and second time penalty is Rs 1000, For triple riding, the fine will be Rs 100 as against Rs 1000 in the MV Act, Driving a vehicle with pollution has a fine of Rs 10,000 under the new Act, whereas in Gujarat it will be Rs 1000 for small vehicles and Rs 3000 for large vehicles. The new fines will come into force in Gujarat from September 16. The original fines for offenses such as drunken driving & jumping traffic lights remain untouched/ unaffected as these cannot be changed. Uttarakhand happened to be the second state after Gujarat to proclaim/pronounce a cut in penalties for traffic violations introduced under the Centre's amended Motor Vehicles Act. Few states have adopted the Act in its entirety, while several states have put it on hold.

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accept no liability for consequences of any person acting or refraining to act on the basis of any information contained herein.

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reservations in execution the amended legislation.

Their anguish being that hefty penalties besides being an additional burden on citizens, calls for review failing which might have deterrent effect, can be against the spirit/ purpose of the whole Act and furthermore boost/ enlarge corruption. Thus, the unanimous reaction of penalties being enormous plus the expressed opposition desires to be given a substantial contemplation to appraise/evaluate whether the law is “Bane or Boon”. 'Alert today, alive tomorrow' – goes the popular saying with the new Act. It is: 'Be alert to rules, to save your pocket'.

1. The Gazette of India Notification dated 28.08.2019 bearing No. S. O. 3110(E)

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2019 which defines Golden Hour - time period of up to one hour following a traumatic injury, during which the likelihood of preventing death through prompt medical care

3. Explanation to Section 134A defines Good Samaritans as a person, who in good faith, voluntarily and without expectation of any reward or compensation renders emergency medical or non-medical care or assistance at the scene of an accident to the victim or transports such victim to the hospital

4. Section 199A-Offences by Juveniles

5. Survey was conducted by Consumer Voice last year in 2018.