Author: yazdi

Criminal Antecedents of Elected Candidates

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Date: 4th November, 2018 Press Release

Wide Publication of Declaration of Criminal Antecedents of Contesting Candidates

New Delhi: Addressing the issue of increasing criminalisation of politics, a five-judge bench of the Hon’ble Supreme Court, had on 25th September, 2018, given five main directions to the candidates and the political parties distributing tickets to these candidates for contesting elections (Page-97 of the Judgement) They are:

(i)Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

(iii) If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.

(iv) The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

(v) The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity,we mean that the same shall be done at least thrice after filing of the nomination papers.

After the Judgement of the Apex Court, the Election Commission of India (ECI) had issued a circular to all the Chief

Election Officers of the States and Union Territories apart from the President/ General Secretary of all recognised National and State Political Parties on 10th October, 2018ii. This circular, apart from highlighting the changes made to the format of the affidavits of the contesting candidates, had also directed all candidates with criminal cases against them, either pending or cases of conviction in the past, to publicise this information in newspapers with wide circulation. This direction of the Election Commission was also to all the political parties that set up candidates with criminal cases against them.

Directions to the contesting candidates

 

The ECI had insisted that a format (Format C-1) be followed …“at least on three different dates from the day following the last date for withdrawal of candidatures and up to two days before the date of poll.” While insisting that the order of the ApexCourt be followed in letter and spirit,the ECI had also recommended that “The declaration in newspapers should be published in font size 12 and should be placed suitably in the newspapers…”

The ECI had also directed the contesting candidates to submit copies of the newspapers in which their declarations about criminal cases were published to the District Electoral Officers at the time of filing their election expenditure statements (within 30 days of declaration of results of Assembly Elections).

Contesting candidates are required to “…publish the above declaration on TV channels in the State concerned on at least three different dates…” In order to adhere to the Model Code of Conduct, such declarations should be completed before 48 hours of polling date.

The candidates are also required to declare before the Returning Officers that they have informed their political parties of their criminal antecedents. This declaration has been included in the newly amended format of affidavit (Form-26) for contesting candidates.

 

Directions to the Political Parties

Similar to the format for declaration of criminal antecedents by contesting candidates,the ECI has also recommended a format (Format C-2) for political parties (recognised and unrecognised) to “… publish declaration giving details in this regard, for wide publicity, on their website as well as in TV channels and newspapers having wide circulation  in the State concerned.”

This declaration by political parties is also required to be done at least thrice on three different dates before the date of poll, in the same format and font size recommended for contesting candidates.

Political parties are required to “… submit a report to the Chief Electoral Officer of the State/ UT…” so as to confirm that the direction of the ECI had been followed, along with relevant newspaper cuttings.

The ECI has also stated that “… failure to abide by these directions would be treated as failure/ refusal to carry out a lawful direction of the Commission for the purposes of paragraph -16A of the Election Symbols (Reservation & Allotment) Order, 1968.

This release is being circulated by ADR for larger public interest and wider voter awareness. We appeal to the print,  electronic and online media to monitor and highlight the fact whether the above mentioned directions of the Hon’ble Supreme Court and the ECI are being followed and implemented by the Political Parties and their candidates.

Contacts

Media and Journalist Helpline +91 80103 94248

Email: adr@adrindia.org

Maj Gen Anil Verma (Retd.) Head – ADR & NEW +91 8826479910 anilverma@adrindia.org

Prof Jagdeep Chhokar IIM Ahmedabad (Retd)  Founder Member- ADR & NEW +919999620944 jchhokar@gmail.com

Prof Trilochan Sastry IIM Bangalore  Founder Member- ADR & NEW +919448353285, trilochans@iimb.ac.in

 

i For the complete judgement of the Supreme Court: https://adrindia.org/sites/default/files/judgment_on_de-criminalization_25-Sep-2018.pdf

ii For the notification of the ECI dated 10th Oct, 2018: https://eci.nic.in/eci_main1/Current/ImpInsPolPar_10102018.pdf

Courtesy : National Election Watch – http://www.myneta.info  & ADR – Association for Democratic Reforms – http://www.adrindia.org

How to Claim Road Accident Compensation As Per M.A.C.T Guidelines

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Road Accident Compensation As Per M.A.C.T Guidelines

This article written by Anubhav Pandey perceives the Road accidents that happen in a day-to-day life, from a different angle and narrates How a victim can claim for Road Accident Compensation as per M.A.C.T. Guidelines.

What is the process that one should follow to get compensation after facing a road accident?The sight of the accident is very common on Indian roads. Over 400 people were killed in road accidents every day in 2015, government data reveals. The hapless victims are left paralyzed on the street and after by the intricacies involved in legal machinery.

Here is a simplified guide on how one can get compensation if it ever becomes a victim of a road accident.

Compensation to the Victims of Motor Vehicle Accidents

Rapid justice and speedy trial are two eyes of any justice delivery system. The justice delivery system in M.A.C.T (Motor Accident Claims Tribunal cases) is far away from satisfactory. Say, an owner of a brand new Mercedes while returning from his game of hunting crashes his car into a footpath, killing civilians over it.

There are two facets in this circumstance-

  1. One is the commission of the criminal offense.
  2. Second is the compensation claim.

What to Do After an Accident?

  • A case is registered by the local police on complaining or either they will take cognizance on their own. (Registration of F.I.R). For this-
  • One should take pictures of the accident scene or even a video for use as evidence later on. Even just a passer-by can do this and provide the photos or videos to police for support in investigation and delivery of justice.
  • They should, however, call the 100 number (police hotline) and inform what the situation is in a clear and calm manner.
  • What is said on this call gets recorded and can be used as evidence later on.
  • After this, police has to register FIR, investigate and then charge-sheet the accused. After this, the judicial mechanism will set itself into motion.
  • Legal intricacies involving demand of proper compensation to be put forward before MACT tribunal.

Who Can Claim Compensation in Motor Accident Cases?

Section 165 (claim for compensation) can be made–

  1. By the person who has sustained the injury.
  2. By the owner of the property where death has resulted from the motor accident.
  3. By all or any of the legal representatives of the deceased.
  4. By any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be.

Suggestive Read: How and when to file claims with Motor accidents claims tribunal?

Jurisdiction: Where Should One Claim Compensation for Motor Accident?

If a man from Calcutta is on a tour to Kanyakumari and gets involved in the motor accident at Kanyakumari then, where should he file a road accident compensation claim? The Procedure requires as follows:

  • Every application is to be mad at the option of the claimant, either to the Claims Tribunal who is having jurisdiction over the area in which the accident occurred. (Place Of Accident)
  • Or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides (Nearest Tribunal to Victim) or carries on business.
  • Or within the local limits of whose jurisdiction the defendant resides(Nearest Tribunal Where The Accused Resides).[1]

If the Driver Had No Fault in the Motor Accident then, Can the Victim Still Get Road Accident Compensation?

A, as per her mother’s instruction went to a shop for local veggies. First, she looked left then right and then left and then took the zebra crossing. But, while crossing hurriedly, she was hit by a car. Even though there was no fault on either side, what could be the intricacies involved while demanding road accident compensation in this case?

No Fault Liability in Case of Motor Accident for Drivers

Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle or the owners of the vehicles, will be liable to pay road accident compensation in respect of such death or disablement.

In the case of death, the minimum sum to be paid is INR 50,000/- and in the case of disablement, a minimum sum to be paid is INR 25,000/-[2], and this minimum is subject to additional compensation which the tribunal might grant under s 163A.

For a victim, one does not need to prove the negligence of the opposite side, it is assumed. The victim need not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made, was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.

How Much Road Accident Compensation is One Entitled to in Case of Motor Vehicle Accident in India?

Simply put, if a driver is involved in an accident in India and if it caused victim’s death then, a minimum of INR 50,000/- and if permanent disablement is caused then, a minimum of INR 25,000/- must be paid.

A claims tribunal can pay even more after considering the case. The owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of a motor vehicle under section 163A.

“There can be no doubt that, compensation claimed u/s 140 is governed by the no fault principle”.[3]

 

Permanent disablement for this purpose means–

  1. Permanent privation of the sight of either eye or the hearing of either ear or privation of any member or joint.
  2. Destruction or permanent impairing of the powers of any member or joint.
  3. Permanent dis-figuration of the head or face.

Third Party Liability in Case of Car Accidents and Insurance Requirement

For instance: ‘A’ purchases a motor vehicle through a Nationalized Bank on 1.10.1993 and the said vehicle is insured for ‘The Period Of One Year’. He sells the vehicle to ‘B’ on 3.11.1993. The Motor Vehicle in the custody of ‘B’ meets with an accident on 6.11.1993 and the name of the owner of the said vehicle is not yet changed in the R.C Book. ‘A’ has not sent an application in the ‘Prescribed Form’ about the Transfer of Motor Vehicles to the Insurance Company immediately.[4]

  1. Whether the transfer of motor vehicle has to be allowed to put an end to the Insurance Policy automatically or
  2. Whether the mere transfer of motor vehicle entangles the statutory protection of just compensation amount to the victims.

The driving of an uninsured Motor Vehicles is an offense, requiring punishment for 3 months Or fine of one thousand Rupees under Section 196 of the act.

Moreover, in case of sale of a car or other vehicles, the person selling the motor vehicle shall apply within fourteen days, from the date of transfer, in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favor and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.

The transfer of the motor vehicle puts an end to the compulsory insurance policy itself as the application in the ‘prescribed form’ is not sent to the Insurance Company.

Further, the complication arises when the said vehicle is hypothecated by a Nationalized Bank and under such circumstances, the poor victims are shoved to the ‘sea of troubles’ for their inability of getting the compensation amount in time.

Is A Pillion Rider Entitled to Road Accident Compensation in A Case of Two-Wheeler Accident Or A Co-Passenger in Case of Car Accident?

The Supreme Court created a precedent to be followed in cases involving pillion riders and co-passengers.

  • The liability of the insurance company in a case of this nature is not extended to a pillion rider or a co-passenger of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk.
  • The pillion rider in a two wheeler or a co-passenger in a car is not to be treated as a third party when the accident has taken place owing to the rash and negligent riding of the two-wheeler or car and not on the part of the driver of another vehicle.[5]

It is thus settled that, the liability of the insurance company is not extended to a pillion rider or a co-passenger of the motor vehicle unless the requisite amount of premium is paid for covering this risk.

  • The legal obligation cannot be extended to an injury or death of the owner of the vehicle or the pillion rider. Further, the pillion rider on a two-wheeler cannot be treated as a third party when the accident has taken place owing to the rash and negligent riding of the scooter and not on the part of the driver of another vehicle.

Road Accident Compensation in Case Where Both Driver And the Victim Were Negligent

What if victims were also negligent while the driver was also negligent and the accident occurred due to the contributory negligence of both parties?

For example, someone starts driving on a one-way road in the wrong direction while another car is driving in the right direction but, without headlights on. The two collide which results in severe injury to the two wheeler driver. Would he be entitled to any road accident compensation?

  • Contributory negligence is when the claimant himself has been negligent and has contributed to the occurrence of the accident. In contributory negligence, the victim himself has contributed and therefore, his compensation gets reduced in proportion to his fault. Thus, if the victim is equally negligent and has contributed to the accident in equal measures, he would get only half the compensation.
  • On the other hand, Composite negligence means where the accident occurs due to the negligence of two or more persons but, not the victim. In an accident involving two or more vehicles, where a third party claims damages for loss or injuries, it is said that the road accident compensation is payable in respect of the composite negligence of the drivers of those vehicles.

In such a case, each wrongdoer is jointly and severally liable to the injured for the payment of the entire damages and the injured person has the choice of proceeding against all or any of them.[6]

What Happens in Case of the Accident Caused by an Underage Driver?

Chachu giving keys to his niece and nephew is common in India. But, what would a person do if he is hit by a minor driving a vehicle? In these cases, Insurance company does not provide with road accident compensation on behalf of the insurer and the liability lies on the child’s legal parent or guardian.

Compensation Provided in Motor Vehicle Accident Where Victim is a Child

A child is not the bread earner of the family and hence, the death of a child during a motor vehicle accident involves different intricacies. Along with awarding for pecuniary losses, the court also has to award for future losses. Pain and suffering caused because of the sudden demise of life, the age of the child, while the accident took place, etc has to be factored in.

The apex court formed a point that, while considering such claims, child’s performance in school, the reputation of the school etc. might be taken into consideration.When records show that the children were good in studies and were studying in a reasonably good school [7] then naturally, their future prospect would be presumed to be good and bright. Since they were children, there is no yardstick to measure the loss for future prospects of these children. However, as already noted, they were performing well in studies, the natural consequence was supposed to be a bright future.

What Happens in the Case Where Victim of a Motor Vehicle Accident is a Housewife?

When the victim of an accident is a housewife then the settled law is [8] “for the purpose of awarding compensation to the dependents” some pecuniary estimate has to be made of the services of housewife/mother.

The amount payable to the dependants cannot be diminished on the ground that some other family member can take care of the well-being of the family as the deceased housewife did. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in the case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the road accident compensation.

Plight of the Victims Due to Ambulance Chaser

The legal profession has its share of ‘ambulance chasers,’ as they are called in some of the western countries. These are the lawyers who make a living out of the motor vehicle accidents. It is a well-oiled network where the lawyers and the police act in close co-ordination[9].

It is woeful to note that the moment an accident takes place, the Police Inspector concerned gets in touch with the particular network of lawyers. Such lawyers swoop on the hapless victims who are in a confused state and even when the dead body is placed for funeral ceremony or the said ceremony is just over, they allure the said victims with promises of getting the huge road accident compensation amount, without spending any amount of money from their purse even for the stamps in the M.A.C.T petitions.

The poor overwhelmed accident victims believe the promises of such lawyers and entrust the briefs to them by signing the blank papers, including stamped papers and withdrawal slips, in advance without the knowledge of the victims in such cases. Further, their counsels themselves enter into the compromise with the Insurance company as to the compensation amount, even without the consent or knowledge of the victims.

Compensation Provided to the Victim in Hit And Run Cases

In Salman Khan’s case– “The verdict doesn’t really affect us in any way,” Mohammad Kaleem, 35, tells The Indian Express from Sultanpur. “How do we benefit if he is sent to jail? I received Rs 1.5 lakh in compensation but, it was spent on my treatment. We’re poor and the jail term won’t fill our stomachs.”

Section 163 A  of M.V. Act deals with the situations involving hit and run cases.After the accident, either the victim or his legal representative can file an application to the Claim Officer of the taluka where the jurisdiction lies. After the proper inquiry and the procedure involving submission of post mortem certificate or injury certificate, road accident compensation may be provided from the solatium fund created by the government within 15 days.

Time Limit for Filing of Complaint Before the Tribunal for Motor Vehicle Accidents in India

There is no time limitation for filing road accident compensation claims before the tribunal in respect of any accident. Parliament realized the grave injustice and injury which was being caused to the heirs and legal representatives of the victims, who died in accidents, by rejecting their claim petitions only on the ground of limitation. [10]

Who is to Compensate in Cases of an Accident of Bus Passengers in India

Situations, where passengers get down of bus even before the bus stops or in the traffic jams, in such or similar circumstances, the conductor and the driver must be careful and they have a duty towards the passengers in not allowing them to be injured in any way. [11]

A lady passenger was getting down the bus and her one foot was on the footboard and other on the road, when the conductor gave the whistle and the driver moved the bus and she was knocked down and was dragged along by the body of the bus and sustained fatal injuries. It is the crew of the bus who is negligent for the accident which occurs at a place where the bus is to stop, though it is not a bus stop.

“But the fundamental duty of both the driver as well as the conductor is to verify specifically, whether any passengers is getting into the bus or is getting down from the bus, before actually the bus is moved from the bus stop where it is stopped, irrespective of the fact whether that place or stopping is a bus stop or not”.[12]

The onus to compensate the victim lies on the owner of the bus or the insurance company of the bus owner.

Factors Affecting the Claim for Compensation of Motor Vehicle Accident in India

While awarding a claim for compensation, the court looks for the following factors-[13]

  1. All the parties are heard (including the insurer). Tribunal decides the case on merits (Example on above as, whether there was a third party risk involved or not, whether there was composite or contributory negligence or not etc.)
  2. When a road accident compensation is awarded, the person who is required to pay that amount has to pay it within 30 days of announcing of orders.
  3. Even simple interest is applied on the amount from the date of making of claims.[14] When the person required to pay the road accident compensation is willingly or otherwise not paying the amount, the tribunal can order Collector to recover the money as it happens in cases of arrears of land revenue.[15]

 

That’s all about “How can one claim for Road Accident Compensation as per M.A.C.T. Guidelines”. Comment Below your views. And, Don’t forget to share the article.

 

References:

[1] Section 166,(3)(2) of Motor Vehicle Act,1988.
[2] Section 140, Motor Vehicle Act,1988
[3] (National Insurance company ltd v Sinitha and ors, 2012 2 scc 356
[4] Sri. C. Lakshmi Narain, Claims for Compensation Before Motor Accidents Claims Tribunals,(1998) 1 LW (JS) 17
[5] Oriental Insurance Co. Ltd. vs. Sudhakaran K.V.(2008) 7 SCC 428.
[6] Andhra Pradesh Road Transport Corporation vs. K. Hemlatha,AIR 2008 SC 2851.
[7] General Manager, Kerala S. R. T. C. v. Susamma Thomas, (1994) 2 SCC 176
[8]  Arun Kumar Agarwal vs. National Insurance Company AIR 2010 SC 3426
[9] LEGAL FILE’ in the Sunday Magazine, ‘Hindu’ Dated: 27.12.1992)
[10] 1994 Amendment of the Motor Vehicles Act, 1988 as
[11] M.Jaganath V. Pallavan Transport Corporation Ltd,1996 SCC Online Mad 524
[12] Venkataswami Motor Service v. C.K Chinnaswamy, 1989 ACJ 371
[13] S 168, Motor Vehicle Act, 1988.
[14] S 171, Motor Vehicle Act, 1988.
[15] S 174, Motor Vehicle Act, 1988.

 

https://blog.ipleaders.in/road-accident-compensation-claim/

An Ordinance to amend the Maharashtra Cooperative Societies Act of 1960

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An Ordinance to amend the Maharashtra Cooperative Societies Act of 1960, dated 30th October 2018 with immediate effect

Salient features of New Housing Chapter in MCS Act 1960.
1. Elections to the housing societies fir less than 200 members to be conducted internally by the society .

2. Concept of new members like Joint and provisional members introduced

3. Concept of Coop Hsg Association introduced to facilitate the formation of association of less than 5 societies for conveyance or Deemed conveyance matters .

4. Penaltyof Rs.25000 on Management committee introduced for not allowing inspections of documents u/s 32.

5.Scope of Sec.32 in inspection of documents widened .

6.Role of Housing federations widened .

7. HUF is specially included as person in the definition which was not included earlier .

8. Defaulter is specifically defined now in the Act itself.

CA Shilpa Shinagare
Member of Hsg Chapter Committee of Ministry of Coop .MH

How Government Agencies Harass Consumers through Endless Litigation

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It is not for nothing that Indian courts are clogged and government is the biggest litigant. What is worse, the actions of government agencies in shirking responsibility for deficient service actually ends up harassing the people, tantamount to using public money with no accountability.
Whenever a complaint is filed against a government department, the standard ploy to evade accountability is to claim that the complainant is not a ‘consumer’ within the definition of the Consumer Protection Act, 1986 (COPRA). If nothing else, it ensures a delay in legal proceedings while the court first decides this issue.
Until recently, every one of us had to engage with the post-office for multiple reasons. In the initial years after COPRA came into force, any complaint against the postal authorities used to be brushed aside on the claim that post-office was doing duty as a part of the government and no action can be taken against the government.
Over the years, it has been settled that when a government agency is not performing a sovereign duty, but providing services of commercial nature, it cannot hide behind the cloak of sovereignty and shirk its responsibility towards its consumers.
Let’s look at some examples of how government agencies harass consumers by dodging responsibility and delaying grievance resolution.
Late Rama Chandra Jain had purchased 692 Indira Vikas Patras (IVP) in the name of his sons, daughters, etc, from the head post-office at Bolangir (Odisha). He lost all the 692 IVPs and reported it to the local police station on 25 June 2001. This, in turn, was intimated to superintendent of post-office, Bolangir, requesting it to stay payment of the maturity value of the lost IVPs until the claim was properly verified.
The deceased Mr Jain had also purchased 88 IVPs in favour of his son, the complainant in this case. On maturity of these 88 IVPs, the complainant raised a demand of Rs8,80,000 towards maturity value. The claim was rejected by the post-office citing some rules.
A complaint was filed in the district forum which ruled in favour of the son, on the basis of a precedent in the case of Ram Nath Mathuria vs Union of India in RP No. 1725/2001 decided by the National Consumer Disputes Redressal Commission (NCDRC) in March 2002.
In that case, it had been held that “in the absence of any other claim on the basis of the original IVPs, maturity value should be released in favour of the claimants after taking an indemnity bond to secure interest of the department.”
Accordingly, the district forum directed the post-office to release payment of the maturity value of 88 IVPs amounting to Rs880,000 to the complainant on his furnishing an indemnity bond within 35 days of the order. For any delay in payment, a penalty of Rs20 per day would be imposed until realisation.
The post-office filed an appeal before the state commission; this was dismissed on 30 December 2016 because representatives of the post-office failed to turn up for hearings before the commission. Shockingly, the post-office then filed a writ petition before the Odisha High Court in 2017 against the order of the state commission. As was to be expected, the Court dismissed the writ petition as withdrawn, since it was misconceived. That didn’t end the matter. The post-office again filed a miscellaneous case before the state commission which, too, was dismissed on 13 April 2018.
Once again, notwithstanding the pain inflicted on the complainant, the post-office had the temerity to file a revision petition in NCDRC against the state commission’s order.
The counsel for the post-office contended that complainant was not a consumer and, hence, no deficiency in service had been committed by the post-office. As such, the complaint was not maintainable.
But, remember, the district forum had already given a detailed order covering this issue and had even referred to an NCDRC order of 2002 on the subject.
NCDRC noted that there was no other claimant for the said amount; but the post-office could verify and take due precautions like indemnity bond, etc, for securing its interests and directed it to pay at least the maturity value to the complainant, after having failed in the several rounds of litigation.
In 2002, NCDRC had elaborately discussed a similar matter and directed the postal department to release the money, as sufficient time had elapsed since the date of maturity. Therefore, NCDRC concluded that it was clear that there was no error in the order passed by the district forum.
The sad part is that a hapless consumer, who was a customer of the post-office, was dragged through various rounds of litigation by an obdurate government agency for no fault of his (Superintendent of Post Office, Bolongir vs Jambu Kumar Jain, Rourkela—NCDRC order dated 11/09/2018).
Another case involves the regional provident fund commissioner’s office, Haryana (RPFC) and a provident fund (PF) subscriber. The subscriber filed a complaint against the RPFC on the ground that his pension had been wrongly fixed as Rs551 per month instead of Rs835 per month as per the Employees Pension Scheme, 1995. The complainant claimed that he was a member of Employees Provident Fund Scheme, 1995, for more than 35 years; therefore, he was entitled to the maximum benefit under the Scheme.  After hearing both parties, the district forum, on 25 August 2003, observed that the minimum monthly pension will be Rs 335 plus Rs500 adding up to Rs835 and not Rs551.
The order also directed the RPFC to re-examine the complainant’s case on the basis of a notification by the labour ministry on 16 November 1995. The RPFC was ordered to comply with the consumer forum’s order within 30 days. When the RPFC failed to comply with the order, the district forum issued bailable warrants of Rs5,000 with one surety for the like amount on 1 May 2006. RPFC filed a revision petition before the state commission against both orders; but it was also dismissed.
RPFC then filed a revision petition before NCDRC which heard counsel for RPFC including a request to condone a 246-day delay in filing the petition. Although NCDRC condoned the delay through its order of December 2008, it imposed a cost of Rs10,000 on RPFC.
NCDRC noted that the primary issue involved was to re-fix the complainant’s pension as per directions of the district forum. However, it noted that application for condonation of delay made two things very clear. One, that the department had agreed to abide by the order of the state commission and fix the pension as per the order of the district forum. Secondly, that the revision petition was based on the notification dated 15.6.2007 which was perhaps not available before the district forum or the state commission. Since the notification was a new ground that had been taken up by RPFC in the revision petition, it could not be considered at that stage. Finding no merit in the revision petition, NCDRC dismissed it.
Once again, it is the hapless consumer who was made to run from one forum to another due to the dilatory tactics adopted by a government department with public money.
While we correctly raise a hue and cry for poor service rendered by private companies, the fact is that government departments, often, fail the consumer even more because of the ineptitude, lack of accountability and high-handedness of government babus.

Death by Mosquito Bite is Accidental Death

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“Death of Policyholder due to Malaria after Mosquito Bite is an accidental death and hence Insurance Company is liable to pay the sum assured.”

In an interesting Case of National Insurance Co. Ltd. V/s Mosumi Bhattacharjee, (R.P. No.1270/2016), a question came before the National Commission to decide whether death of a Policy holder due to Malaria after a mosquito bite can be termed as accidental Death ?

Facts in short.
1. Late Mr. Debashish Bhatacharjee, the husband of the Complainant took the home loan from Bank of Baroda and along with it, he also availed facility of Term insurance like policy by name “Bank of Baroda Loan Suraksha Vima”, issued by the National Insurance Co. Incase of an accidental death, the policy amount was to be paid to the claimants

2. During the subsistence of the Policy, the Policy holder died due to Malaria and hence his legal heirs (LRs) applied to the Insurance Company fir getting the sum assured.

3. But the Insurance Company turned down the claim on the ground that Malaria itself is a disease and not an accident. Hence the LRs filed the complaint before the District consumer forum, which was allowed in their favour. Hence the Insurance Company filed the appeal in state commission, which was also rejected and hence the matter came to national Commission.

Held :
1. The National Commission upheld both the judgments of lower foras and observed that the Policy does not define the Term “Accident”. It relied upon the definition of Accident given in oxford dictionary, wherein it is defined as “An Accident is something that happens unexpectedly and not planned in advance and causes injury”.
2. Thus no one can predict about the mosquito bite and it can happen anywhere and anytime, like an accident. It relied upon the earlier judgment of Matbarsingh V/s Oriental Insurance Co.) wherein it has been held that Snake-bite, dog-bite, frost-bite are also accidents. It rejected the argument of the National Insurance company that Malaria itself is a disease and not an accident.

A) I feel this is an important judgment. Few days back, at least a person in every family was suffering from Dengue / chikungunya and Malaria. Few patients were succumbed to death due to such diseases.This judgment may be helpful to such families. Obviously terms of Policy, if any, will play an important role.
B) This decision also underlines the importance of having Term Insurance like policies. Consult an expert in this field.

 

https://www.casemine.com/judgement/in/590a32924a932663936ff762

Cooperative housing societies: Common issues and solutions

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Common issues in any cooperative housing societies or CHS can be resolved by discussion. If this does not solve the issue, the complainant may have to raise it to appropriate authorities, like municipal corporation, deputy registrar for cooperatives, consumer court and police

The recent Campa Cola episode shows that co-operative housing societies (CHS) must exercise due caution, when it comes to maintaining and ensuring that their buildings comply with the law. Sometimes, there are infractions between housing societies and individual apartment owners, as well as outsiders. However, many individual apartment owners are at a loss as far as grievance is concerned and do not know how to proceed with their complaint. There are several issues in a CHS, like car parking, leakages, fraudulent auditing, unauthorised construction (ala Campa Cola), and many other issues. Home owners need to know the right recourse to take action to ensure that their rights are maintained and upheld. Advocate Vinod Sampat who is the speaker at a seminar being hosted by Moneylife Foundation has given a brief of what you should do when you encounter various problems.

Some of the common problems related to co-operative societies and the solution to the same are produced as under:

Problem Suggestion Solution
A AGAINST BUILDERS (ACT FAST BEFORE NEW ACT IS INTRODUCED!)
1 Sale of open parking space by builder, sale of pocket terrace by builder, not executing the conveyance, not giving statement of accounts, not obtaining occupation certificate, not obtaining building completion certificate, not handing over original documents of title of the property, not transferring the property card in favour of the legal entity
 a) Approach Consumer Court for deficiency of service;

 

b) Approach the criminal court for cheating, criminal breach of trust, mischief, violations of the provisions of Sec. 11 & 13 of MOF Act;

 

c) Lodge  complaint  with  ULC  Department  as undertakings are given that conveyance will be executed within a stipulated period of time at the time of release of the plot from ULC;

 

d) Lodge complaint with ISO authorities if the builder has got an ISO certificate;

 

e) Lodge complaint with SEBI if the builder is going for a public issue and has not made the disclosures in the prospectus;

 

f)  Lodge complaint with BMC to black list the builder;

 

g) Lodge complaint with police seeking permission to take out morcha by peaceful means to protest against the acts of the builder.
2 Builder  not  sharing  the  amounts received from allotment of hoardings, installation of mobile tower on the societies terrace a) Approach the consumer courts for deficiency of service;

 

b) Request police authorities to file an FIR;

 

c) Approach city civil court;

 

d) Approach High Court.
3 Builders developing adjacent plot and apprehension  is  there  that  the FSI/TDR of the society is being used a) Write letters to BMC objecting to the same;

 

b) File a suit in High Court/ city civil court/ consumer courts praying for an injunction restraining the builder from utilizing the FSI/TDR of the plot of land for which the society has already been formed.
B CO-OPERATIVE SOCIETY
1 Society not allowing visitors to park their vehicles in the building premises
 a) Approach the police authorities stating that there is violation of the provisions of Table 15 READ WITHRegulation 36 of the Development Control Rules, read with Regulation 36 which stipulates that 10% (now 25%) of the parking space has to be kept vacant for the visitors;

 

b) Lodge a complaint with Bombay Municipal Corporation requesting the Corporation to cancel the occupation certificate as the terms and conditions pertaining to IOD have been violated.
2
Society not allotting car parking space to members		 a) Draw the attention to the provisions of Table 15 Regulation 36 of Development Control Rules of Greater Mumbai;

 

b) Approach Consumer Forum for deficiency of service;

 

c) Approach Co-operative Court;

 

d) Approach Registrar’s office;

 

e) Note if you have other like minded members who are deprived of parking one each can approach different authorities;

 

f)  It will not make difference if the builder has sold car parking space to some other flat purchasers.
3 Co-operative Housing Society collecting exorbitant amounts at the time of transfer of flat, collecting exorbitant amount towards non occupancy charges a) Approach consumer court for deficiency in service;

 

b) Approach police station for extortion, mischief against all the members of the managing committee with a specific request to lodge a First Information Report (FIR);

 

c) Approach metropolitan magistrates court;

 

d) Lodge complaint against auditor for professional misconduct.
4 a) Managing committee members not  issuing share certificate to members;

 

b) Co-operative Housing Society not taking action against the members of the managing committee who have misused the funds of the society;

 

c) Co-operative Housing Society not taking action against defaulters who are managing committee members

 a) Approach Consumer Forum against society;

 

b) Approach Co-operative Court;

 

c) Approach the office of the registrar to remove the managing committee members;

 

d) If more complainants are there they can approach different authorities.
5 Co-operative Housing Society and its members employing minors a) Lodge complaint for violations of Juvenile Workers Act, 1986, Bye law No 161(C), stipulates a punishment up to one year imprisonment and/or fine up to Rs20,000

 

b) Lodge complaint with labour & police authorities
C CRITICS CORNER
1 Office bearers behaving as dictators.

Some members are having parties and disturbing the peace in the building

 To lodge complaints with the registrar of co-operative societies, approach co-operative court or consumer forum;

 

For certain matters contact police authorities
2 Co-operative Housing Society not taking action against unauthorised construction Lodge complaint with Bombay Municipal Corporation (BMC) for unauthorised construction
3 Co-operative Housing Society not responding to queries as regards payment of service tax Do the correspondence with service tax department
4 Co-operative Housing Society not maintaining fire fighting equipments As per section 3(1) Maharashtra Fire Prevention and Life Safety Measures Act 2006 read with rule 4(2) Maharashtra Fire Prevention and Life Safety Measures

Rules every society having a building of ground plus four floors and above have to submit / arrange to submit every half yearly a certificate to the fire authorities. I would like to have a copy of the same at my cost for the last three years. Take up such matters with fire authorities.
5 Co-operative Housing Society not showing records related to

various expenses being incurred by the society

 Draw the attention of office bearers to the circular dated 10/3/1995 issued by co operative department.
6 Complaint  against  chartered accountant who has audited the accounts of the society Write to Institute of Chartered Accountants of India highlighting provisions of act, rules and bye laws; Example: Exorbitant amount collected as donation, security not given by persons handling cash. Rule 107-B.

 

Money collected for car parking deposit, amounts of some members waived off, legal expenses recovered from only some members + action at consumer forum.
7 Complaint against auditor on the panel of registrar Request the authorities to take disciplinary action against the auditor;

 

Request the authorities to remove the name of the auditor from the panel of auditors;

 

If it is a case of negligence approach the consumer forum for the losses caused with a prayer to recover the same from the auditor;

 

File criminal case. In our view permission to file criminal case from government authorities is required only if the person is appointed by the government;

 

If the employee is appointed by the head of the state then permission is not required.
8 Complaint against government officers for not giving the proper information

 

Always keep camera spy pen with you. It is not known when it can come handy

 Approach the higher authorities;

 

Ask for the actions initiated against him in his earlier postings;

 

Ask the pending departmental proceedings going against him as of date;

 

Here RTI Act can be of help to you.
D COURT MATTERS
1 Government officer not passing the order after the matter is kept closed for order.

 

 

 Politely state that the judgment in the case has been reserved since a long time. Order XX Rule 1 of Code of Civil Procedure Code, 1908 fixes a model Time Limit of 30 for pronouncement of Judgment. Therefore please pronounce the judgment at an early date and do the real justice since ‘Justice Delayed is Justice Denied’ (You may also ask for all orders being passed by the said quasi judicial authority)
2 No track record as to the court case Insist on roznamas of all the dates of the hearing
3 Reply received from advocates that

court is not sitting

 Tell the advocate to take up the matter with the judge; who has got additional charge of the said court.
4 How to speed up court case

 

 

 If you are a senior citizen you have a right to request the court to take up the matter for expeditious hearings in the light of the high court circular dated 3/08/2009. If a long date is given insist for a shorter date;

 

You can approach the higher court for directions to expedite the court case if there is urgency in the matter. File miscellaneous applications to get the necessary information.
5 How to protect ones interest in matters where there is possibility of litigation.

 

ALWAYS  CARRY  LATEST GADGETS AND RECORD

 Use modern technologies like Google search and ask for help;

 

Tell your advocate to pray for ad interim injunction;

 

Tell the court for the appointment of court commissioner.
E Right to Information -RTI
1 Despite writing no action is being initiated by government officers Make an application under the Right to Information Act (RTI) to the public information officer.
2 Evasive replies are given by the public information officer. 4578 illegal cell towers in Mumbai. Action taken big zero. If a common man breaks the law will the BMC be lenient. What was our sleeping giant doing when such towers were installed? Why are criminal cases not being filed by BMC suo moto? File an appeal. You may also file another application with the public information officer asking for information which may include copies of all the registers being maintained by the office, when the said registers are being updated, details of the registers which are incomplete, number of files in the office which are misplaced, not traceable, number of letters received per month by the office, details of the number of matters disposed of within one week, inspection of the files with specific reference to the files of the matters disposed of within one week. If you have asked for documents like certified true copy you can also approach the consumer forum as you are a consumer;

 

To put pressure you can tell your relative at say Gujarat to file a complaint from Gujarat in Gujarati. Section 11(c ) of the Consumer Protection Act, which stipulates that a case can be registered where the cause of action wholly or in part arises. (Samajnewale ko ishara kafi hai);

 

Ask for inspection and reply given to RTI queries in the last six months.
3 Society not getting copy of building plan Write to the Bombay Municipal Corporation (BMC) authorities asking for the necessary information using  the Right to Information (RTI) act;

 

Also approach consumer forum for deficiency of services.
F Police-related matters
Police not taking steps to lodge an FIR in case of a cognisable offence Approach the magistrate u/s 154 of Criminal Procedure Code (CPC) to direct the police officers to register an FIR.
G How to draft complaint letters
Letter to Co-operative Society/ Government authorities.

 

 

 Address to society, managing committee members and various government authorities;

 

Follow up with email to various government authorities;

 

Take up the matter on Lokshahi Din;

 

Just do not stick to one subject. Highlight all the wrong things done in the society;

 

Dramatise the facts; For eg: Say that the collective value of the property is approx Rs50 crore. If it is government department like BMS say that the yearly budget is Rs2,800 crore and the same is not properly utilised. Ask for information which will result in time being spent by the opposite party which information may not be very important for you;

 

Highlight instances of corruption, inefficiency pointed out by government authorities eg. Anti corruption bureau, comptroller and auditor general;

 

Request the government authorities to download the orders as is stipulated in Right to Information act. It is common knowledge that authorities do not do all their jobs as per provisions of all in all cases, follow up with Right to Information application if the matter pertains to government department.

 

LASTLY reserve your right to take action as per due process of law.
H Action against auditors
Vinod Sampat
18 November 2013 

(Adv Vinod Sampat is a practising lawyer since past 28 years. He has authored several articles on property-related matters and written 46 books on cooperative societies, transfer of flats, recovery of dues, registration and stamp duty matters. He has been an Hon. Patron member of the Estate Agents Association of India. He is also the Hon. Advisor of the Federation of Accommodation Industry of India and is an advisor to the Maharashtra Chamber of Housing Industry as well as the Federation of Accommodation Industry in India, apart from being part of many committees and winning several honours.)

https://www.moneylife.in/article/cooperative-housing-societies-common-issues-and-solutions/35303.html

Aadhaar Judgement of Supreme Court

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Here is the judgement of Supreme Court in the Aadhaar Matter – https://www.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_26-Sep-2018.pdf

Here are some updates and commentaries :

Linking PAN To Aadhaar Stands, Not Mandatory For Bank Accounts: Supreme Court - https://www.ndtv.com/business/aadhaar-verdict-pan-linking-for-income-tax-stands-bank-account-linking-set-aside-1922379

1.Three Out Of Five Supreme Court Judges Uphold Legality Of Aadhaar

_(There are three judgements. One by J. Sikri. CJI and J. Khanwilkar concur with him. Other two judgments are by J. Chandrachud and J. Bhushan.)_

2.Bank Accounts Need Not be Mandatorily Linked to Aadhaar: SC

3. Aadhaar Act Does Not Violate Privacy of Citizens: SC

4. Aadhaar Not Compulsory For School Admissions: SC

5. SC strikes down Section 57 of #Aadhaar Act which allows private entities to demand Aadhaar to access services.

6. Aadhaar can be passed as money bill

7. Pan-India linking of Aadhaar is valid

8. Top court strikes down mobile-Aadhaar linking

9. Aadhaar cannot be mandated for opening of bank accounts

Thank You Shernaz Ramanath for the inputs

https://www.livelaw.in/breaking-aadhaar-project-wholly-unconstitutional-landmark-disssent-by-justice-chandrachud/

Aadhaar verdict live updates | Supreme Court upholds validity of Aadhaar, sets conditions for use

https://www.thehindu.com/news/national/aadhaar-verdict-live-updates-supreme-court-to-decide-the-validity-of-aadhaar-scheme/article25044764.ece

Tata Nano to face Class Action Suit?

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Tata Motors may have stopped production of its high-profile ‘small car’ (it will now be available only on order basis), but the problems do not seem to go away.
A buyer, who approached the consumer forum claiming a design flaw in his Nano, has been advised to find like-minded customers to file a class-action suit against Tata Motors. According to this consumer, about five lakh Tata Nano buyers are probably affected by the same design defects and asserts Tata Motors ought to recall all the affected cars immediately.
Here is what happened with Prakash Chanderkar, a mechanical engineer, when he bought the Nano. “I own two Tata Nano cars. I experienced a life-threatening situation while driving one of the Nanos. After some investigation, I found two problems in the design of Nano car. When certain part of the bottom place corrodes, the steering of Tata Nano completely fails. Secondly, after over 5,000 kms journey, the seal of the coolant pump shaft starts leaking. While this is common for all engines in all the cars, in the case of Nano, the leaked coolant enters in to the crankcase chamber and contaminates engine lubricating oil. This causes damage to the engine journal bearing on the engine crank shaft, which can lead to seizure of engine or total failure of an engine of Nano,” he says.
He filed a complaint before the District Consumer Forum, which however rejected it on point of limitation from the date of cause of action. Mr Chanderkar, then approached the State Commission.
The Bench of Justice AP Bhangale and Dr SK Kakade of the Maharashtra State Consumer Commission, stated, “The averments general in nature as also the prayers in the complaint reflects that the complainant (Mr Chanderkar) is interested in relief of broad direction to the opponent (Tata Motors) to recall the ‘Nano’ cars on the road and to take corrective measures in respect of certain portions of the car engine to make it road worthy.”
Ironically, unlike most consumers, Mr Chanderkar did not merely want his issue resolved — something that Tata Motors was willing to do. It has even offered to buy back his car after adjusting depreciation value if he buys a new Nano. But he flatly refused to buy Nano again.
So the consumer court ruled as follows in its order dated 18 July 2018: “… we direct the complainant (Mr Chanderkar) to issue a public notice in leading newspapers, which can inform the public in general about defects in ‘Nano’ cars manufactured by Tata Motors so that complainant’s grievances can be supported and considered as a class action”.
Mr Chanderkar is seeking responses from Tata Nano owners and had created a web portal http://www.no2nano.in for this. The public notice for class action suit is returnable before the Consumer Commission on 28 September 2018. Nano buyers affected by similar issues can contact Mr Chanderkar through the website.
Talking about the issue, Mr Chanderkar said, “Tata Motors noted these defects early on and should have recalled these cars and offer some solution. However, they continued to manufacture and sell the Nano with these defects, thus exposing unfortunate and unsuspecting buyers to life threatening accidents. I faced this situation on 11 July 2016 the steering wheel of my Nano swayed uncontrollably and was by luck, I was saved from getting hit by a truck on a fly over. When I took the car to Concord Motors, the authorised service centre of Tata Motors at Worli, the technician told me that this (the steering wheel) was a problem due to rusted bottom part of the car. He even showed me how the rusted part was moving left and right with the steering wheel.”
Our mails to senior officials of Tata Motors, including its Head for Corporate Communication, remain unanswered till writing this story. We will update this story, as and when we receive any reply from Tata Motors.
Only one Nano was assembled in June 2018 against the 275 assembled in June 2017. Due to the low sales of the model, Tata Motors announced the end of production without any direct successor to Nano.
Small Car’s Big Issues
Earlier in 2010, Tata Motors had rebutted some media reports about recall of Nano, saying that there were no generic defects in its small car. It, however, had said that the company can provide additional protection to the exhaust system of the vehicle and the electrical system at no extra cost. During an investigation by a team of internal and international experts, Tata Motors had found instances of “additional foreign electrical equipment installed” or “foreign material left on the exhaust system”. (Read: Tata Motors says it’s not recalling the Nano, but will provide extra fittings free of cost)
Next year, Tata Motors agreed to change free of cost old starter motors in about 1.40 lakh Nano cars. Vehemently denying this is a recall, the company had said it changed the old starter motor with a new and ‘better’ one, an exercise that  reportedly cost it around Rs110 crore. (Read: Tata Motors to replace starter motor in 1.40 lakh Nano cars)
There were reports of several fire incidents involving the Nano. The company denied those were connected to the car’s design or its parts and blamed “foreign electrical equipment” found on top of the exhaust system. The company offered to retrofit the exhaust and electrical systems but refused to recall the cars.

Airline can’t leave behind flyers with boarding passes

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Kalpana and Swadesh Debbarma and their two minor children were booked on an Indigo Airlines flight from Kolkata to Agartala. They were issued boarding passes, but the flight took off without them.

They approached the airline with a written complaint, but it was not accepted, and the staff even allegedly forcibly took away their boarding passes. Their pleas to put them on some other flight are said to have gone unheeded. The family was compelled to book a hotel room and also spend on food till they could arrange money to buy fresh tickets. After two days, they finally travelled back to Agartala.

Due to this, the couple, both of whom are engineers with the Tripura government, could not attend office for two days, resulting in loss of salary.

The family approached the District Forum. The airlines contested the case, contending the family did not reach the boarding gate 25 minutes prior to flight departure so it was considered as ‘Gate No Show’ and the boarding passes were cancelled in accordance with the conditions of carriage. The airline stated that it had offered to accommodate the family on the next flight subject to availability of seats and payment of reaccommodation fees, but its offer was turned down. It denied liability to refund the fare.

The Forum allowed the complaint. Both sides appealed. The one filed by the airline was dismissed while Debbarma’s appeal was allowed by the Tripura State Commission. It ordered the airlines to refund ticket charges of Rs.16,432, reimburse Rs10,000 for hotel accommodation, and also awarded Rs10,000 toward compensation and Rs5,000 toward costs.

Indigo then filed a revision. The National Commission questioned the airlines if there was any evidence to show the boarding passes were cancelled as the family could not be located despite several announcements. The airline was unable to produce any proof. The Commission observed that once a passenger checks in, movement is restricted to a very limited area, so it is beyond comprehension why a passenger would not report at the gate despite announcements. The Commission further questioned why the airline, which takes a passenger’s contact details, had not attempted to telephonically contact the family. The airlines had no explanation to offer.

The Commission deprecated the attitude of the airline in snatching away the boarding passes and indicted it for failing to reduce the inconvenience to the family with two minor children. It also castigated the airline for filing a revision even though a meagre amount of Rs20,000 had been awarded as compensation.

Accordingly, by its order of September 12, 2018 delivered by the bench of justice RK Agrawal and M Shreesha, the National Commission dismissed Indigo’s revision.

Impact: If a person who has been issued a boarding pass does not report at the boarding gate, the airline has a duty to telephonically contact such a passenger instead of leaving him behind.

 

Jehangir Gai – Times of India 170918

(The author is a consumer activist and has won the Govt. of India’s National Youth Award for Consumer Protection. His email is jehangir.gai.columnist@outlook.in)