Posted: November 1, 2017 Filed under: Consumer Law and Cases, Insurance
Diabetics, especially those who are insulin dependent, have to monitor their blood sugar before every shot of insulin, to determine its correct dosage.This requires a glucometer and test strips, which are quite costly. Can the insured recover the cost under a mediclaim policy?
Case Study: Purvi Kamlesh Shah and her daughter were covered under a mediclaim policy issued by New India Assurance. The policy was first taken in 2005 and then renewed without any break. However, while renewing the policy with continuity, a fresh proposal form had been obtain in 2008.
During the tenure of the renewed policy from March 13, 2010 to March 12, 2011, Purvi had to be hospitalized on July 13, 2010 due to fluctuating blood glucose levels. After she was discharged on July 16, 2010, she lodged two claims, one for the hospitalization expenses of Rs 55,409 and the other of Rs 7,680 towards medicines. The insurer’s TPA, MD India Healthcare Services settled the claims at Rs 47,931 and Rs 3,680 respectively. The deductions were in respect of expenses incurred on purchase of glucometer strips to check the sugar levels. The reason for disallowance was that these were considered as “nonmedical expenses“, and so were not payable under the policy .
Purvi protested against this disallowance, but New India’s Grievance Cell failed to respond to her representation. She filed a complaint before the South Mumbai Forum through the Consumers Welfare Association and sought a direction to reimburse these expenses along with interest and also claimed compensation and costs.
The TPA as well at the insurer contested the case and claimed that the amount had been correctly computed. They claimed that Purvi was not entitled to dispute the amount after having accepted the claim in full and final satisfaction.
The forum observed that the policy conditions had been changed, so a fresh proposal had been taken in 2008. So the new terms under the revised policy would be applicable, which provided for limiting the claim on the basis of the room category. The forum concluded that there was no deficiency in service and dismissed the complaint. Purvi challenged the order, but her appeal was dismissed by the Maharashtra State Commission. Purvi then questioned the orders in revision. The National Commission noted that various clauses of the policy providing for certain exclusions had been inserted in the Mediclaim Policy (2007). The Commission observed that it was beyond comprehension how any claim for medicines could vary with the room category opted for, as medicines treatment would be the same regardless of the room category .
The Commission pointed out that glucometer strips are essential for a diabetic to monitor blood glucose levels and adopt a medical regime to prevent the consequences of elevated or declined blood sugar levels. So it would be wrong to consider the expense on the test to be nonmedical expenses. The deduction of Rs 9,350 on this pretext was held to be wrong.
The National Commission’s bench comprising of justice D K Jain, along with M Shreesha, held the TPA and the insurance company jointly liable to pay the cost of the test strips amounting to Rs 9,350 with interest at 9% from the date of filing of the complaint. Six weeks time was given for compliance of the order. In addition, costs of Rs10,000 were awarded to Consumers Welfare Association for espousing the cause of the consumer.
(The author is a consumer activist and has won the Govt. of India’s National Youth Award for Consumer Protection. His email is firstname.lastname@example.org)
Jehangir B Gai
ePaper, The Times of India (Bombay), Oct 30 2017, Page 7 :
Posted: October 27, 2017 Filed under: Consumer Law and Cases
The Consumer Complaints Council (CCC) of the Advertising Standards Council of India (ASCI) has banned as many as 114 advertisements out of 193 complaints it received across segments during August 2017.
Out of 114 advertisements against which complaints were upheld, 51 belonged to the Healthcare category, 31 to the Education category, followed by 17 in the Food & Beverages category, five in the Personal Care category, and 10 advertisements from other categories, the self-regulatory industry body said in a statement.
ASCI said it processed complaints against advertisements from general public, industry as well as from the Department of Consumer Affairs’ Grievances Against Misleading Advertisements (GAMA) Portal. Out of 93 advertisements, complaints against 52 advertisements were upheld.
The self-regulatory industry body also picked up 100 advertisement through its suo moto surveillance of print and TV media via National Advertisement Monitoring Services (NAMS) project. Out of the 100 advertisements, total of 62 advertisements were considered to be misleading. Of these 32 advertisements were from Healthcare, 26 belonged to the Education category, two from Personal Care category and two from Food and Beverage category, ASCI said.
The banned ads are from prominent companies like Bharti Airtel Ltd, Amazon.com Inc (Parachute Advanced Coconut Hair Oil, Dabur India Ltd (Dabur Odomos), Haier Appliances India Pvt Ltd (Haier refrigerator), Dainik Bhaskar Group (Dainik Bhaskar Newspaper), Hindustan Unilever Ltd (Dove Hair fall Shampoo and Fair & Lovely anti-marks treatment), Heinz India Ltd (Complan), Kelloggs India Pvt Ltd (Kelloggs Special K), among others, they range from FMCGs to autos, personal accessories to alcohol, and education to media.
Posted: September 15, 2017 Filed under: Consumer Law and Cases
A writ is just a written command given out by a legal authority like a court. It can be to enforce an action, or stopping an action from happening. Now, a Public Interest Litigation (PIL) is a form of writ, with just one specification that the matter is related to the general well being of the public instead of a particular litigant.
A petition is another type of writ, where the people raise a request to a legal authority demanding an action in a particular cause in the interest of general public. Usually, it’s signed by a number of people.
So, in short, PIL and petition are writs but the reverse is not always true.
I’ll quote a legal expert, Mr. M.V. Gupta, from one of the many law forums out there :
Writs are filed by individuals/corporates and other persons for reliefs in their own causes whereas the PILs are applications filed by any citizen for remedying the hardships faced by the public at large. PIL is not defined in any statute. It is the outcome of judicial activism to take cognisance of a cause at the instance of any person (whether he is personaslly affected or not) affecting the public at large. It is an exception to the doctrine of Locus Standi applicbale to actions in courts of law.
Public interest law loosely, refers to legal practices undertaken to help poor or marginalized people, or to effect change in social policies in the public interest, on ‘not for profit’ terms
a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way
a formal written request, typically one signed by many people, appealing to authority in respect of a particular cause
PIL is writ only but PIL means litigation in the interest of public and not in the interest of the litigant.
It is also important to understand basic difference between a regular Writ Petition and PIL Writ Petition.
Whenever a person affected by any illegal act or omission of Public Officials or of any Public office, he may approach the High Court for issue of appropriate Writ (authoritative direction).
However a person may approach the High Court for issue of appropriate Writ in the larger public interest even when he is directly not affected by illegal acts or omissions of Public Officials. I hope the difference is quite visible.
Can a Writ Petition be Treated as a Public Interest Litigation?
Yes, a writ petition filed by the aggrieved person, whether on behalf of group or together with group can be treated as a PUBLIC INTEREST LITIGATION however,
The writ petition should involve a question, which affects public at large or group of people, and not a single individual.
Only the effected /Aggrieved person can file a writ petition.
There should be a specific prayer, asking the court to direct the state Authorities to take note of the complaint /allegation.
Writs refers to constitutional remedy for all citizens under art 226. These can be in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose, where the complainant can directly approach the high court.
PIL stands for public interest litigation. Earlier it was only a person whose interest was directly affected along with others, whereby his fundamental right is affected who used to file such litigation. Now, the trend has changed, and, any Public-spirited person can file a case (PUBLIC INTEREST LITIGATION) on behalf of a group of person, whose rights are affected. It is not necessary, that person filing a case should have a direct interest in this PUBLIC INTEREST LITIGATION
Petition is a complaint filed by any aggrieved person for, award of remedy by court. Known also as ‘case’.
Writ: A formal, written order issued by the Court, which is to be obeyed by the individual/authority to whom it is addressed.
The Indian Constitution provides for writs for the enforcement of Fundamental Rights. High Courts can issue writs for purposes other than the Fundamental Rights, while the Supreme Court can only issue writs for the enforcement of Fundamental Rights.
Writs are of various types, such as Habeas Corpus, Mandamus, Certiorari, etc.
PIL (Public Interest Litigation): A writ filed by an individual in the interest of the public at large (rather than in the interest of the litigant, who might or might not have been affected). The main objective of a PIL is to protect public interest.
So, a PIL is a writ, but not all writs are PILs.
seeing relief on legal grounds. For example, a petition seeking issuance of a writ is known as a writ petition.
Courtesy : Adv. Vinod Sampat
Posted: September 6, 2017 Filed under: Consumer Law and Cases, News - Miscellaneous
Legal notice is a formal communication to a person or entity informing him that you intend to undertake legal proceedings against him / her. It is a step taken before filing a suit, and is meant to warn the other party that legal action may be taken against him/her, if he/she fails to comply with some specified condition.
In what cases can we send a Legal Notice
Most common cases where I have engaged with my clients in sending legal notices is in case of Property disputes, Dishonor of Cheque, Family disputes pertaining to asset distributions, Husband / Wife conflicts as a warning before taking legal action against the spouse, Consumer complaints and cases where salary / wage commitments are not met.
How to send a Legal notice / what is the process for sending a Legal Notice
Many times we do not know the legal importance and meaning of the usual words which we use in a casual manner, engaging a qualified lawyer helps in drafting the legal-notice. Extreme care is taken about the choice of words and language used and measures of caution about not admitting any fact which you may later be denied in a court of law. Once the legal notice is dispatched than you cannot make any changes in that and later on also you cannot make any contradictory statement from what you have already stated in a legal notice. The Notice is sent on a plain paper or on the letterhead of the lawyer.
Step 1: Connect with a lawyer who carries good in drafting skills, the notice can be sent in any Indian Language, usually English is been the preferred choice of my clients. The notice should be addressed to the person against whom you have the grievances.
Step 2: In your consulting session with the lawyer, please explain the information in detail with names of parties involved; address, dates when commitments were made and not honoured, challenges and issues faced, any previous attempts of dialogue etc…
Especially in case of husband-wife dispute, in my personal experience I have observed a legal notice often brings the spouse for negotiation and in many instances disputes are resolved via counselling or mutual consent
Step 3: The lawyer carefully studies your information shared, makes relevant and required notes in the conversation with you and seeks any additional information if required.
Step 4: The lawyer then drafts the notice in a legal language clearly mentioning the reason for sending the notice, all previous communications regarding the cause of notice and offer the addressee a reasonable time say 15 days or 30 days or 60 days to settle the matter by negotiating and by performing the desired action.
Depending on the grievance usually the lawyers on behalf of the client sending the notice stress for an action to be performed in the stipulated period of time to either fulfils the demand or seek a reply.
Step 5: The notice is duly signed by both the client and the lawyer and is either sent via Registered Post or Courier and ensure the acknowledgement is retained. Usually a copy of the notice is retained by the lawyer.
Step 6: The expectation is after the notice is received by the other party; he/she will reply back, but as a standard best practice the lawyer in some time calls up the other party. I ethically believe it’s a good practice to follow and especially in cases of husband-wife conflicts usually I call up the person to whom notice is sent requesting to come up for counselling or discussion and try resolve matters out of court.
What should you do after receiving the Legal Notice
In case you are not the sender but have received a legal notice the steps to be followed are as follows:
Step 1: Unlike a traditional advice, not always after receiving the legal notice you need to consult a lawyer. You can opt to call up the party in concern who has sent you the notice to amicably settle down the matter and resolve the same in the best interest of time and money.
Step 2: If you believe the notice sent or the information in the notice is not accurate or need to contest and need legal help, approach a qualified lawyer who can take necessary actions. The first step after reaching the lawyer is to share your side of the story and the facts with date and time when the events occurred so that the lawyer will review the notice you have received and will draft a reply based on the facts collected from you.
Step 3: In this case too, the lawyer will send the reply to the notice via courier or registered post. A copy of the notice sent and received both are retained in the lawyer office along with the acknowledgement receipts or all communications. Your lawyer will also in sometimes communicate with the lawyer of the other party to enable a smooth flow and try resolving matters at your end.
The exchange of legal notices usually results in the commencement of litigation between the parties as the party sending the notice may take recourse to civil/criminal law remedies.
Points to remember
· The party being served with the lawsuit / notice is called “the respondent” or “defendant”. A legal notice may be responded to only if it has merit and needs to be replied to.
· One of the simplest reasons to understand why legal notices are used deals with fairness. It is possible that the notice sent by the plaintiff may not reach the respondent, this can be due to change in address location or information about the respondent is not available to the plaintiff, so far I have not come across such a situation, there are definitely certain legal steps we can take in these situations.
· If the notice has substance and the facts stated therein, if litigated against in the court would go against you, then do consult a qualified and reputed lawyer who practices in the issues related to the notice being sent and discuss with him / her. For ex. If the notice is with respect to property disputes visit a civil lawyer, or if family disputes visit a lawyer who practices family law and so on…
· Leave it to your lawyer whether or not to reply the notice. Your initial consultation with the lawyer will help you understand if its required to reply or not or what are the right steps to resolve the issue at hand.
· In case the notice is converted into a suit it’s mandatory for you to respond. Ensure all your facts are in place so that the next steps by your lawyer are advised in due course of action.
Legal notices are a vital principal of the courts providing fairness and due process by giving all parties affected by the lawsuit or legal proceeding notice of the legal procedure. No party can operate in secret and all court actions must be apparent to all parties to the case.
In my experiences especially in matters of cheque defaults and family disputes, husband wife conflicts I have resolved matters before reaching the courts through counselling and arbitration / mediation and mutual understanding, legal notice plays a very vital role here and it all depends on how you draft one, the focus of your lawyer should be to resolve the issue at hand and not to create or escalate tensions.
Shared by Adv. Vinod Sampat
Posted: August 10, 2017 Filed under: Co-operative Societies, Consumer Law and Cases, Housing, RERA
By Dr Sanjay Chaturvedi, LLB, PhD
RERA – The Real Estate Regulatory and Development Act 2016 came into force on the 1st of May 2017. With the aim to regulate the sector and bring clarity in the real estate market and the act is a key reform measure in the vast real estate sector. The Act mainly enacted to protect real estate buyers and enhance transparency.
The first question before you plan a complaint with RERA authorities in India is weather it is registered with the state authorities or not. The question is which are the projects needs to qualify for registration.
- In accordance with the Section 3(1) the RERA Act aims at demanding the promoters to register each of their real estate projects be it commercial or residential with the RERA authority and thus barring the developers from advertising or offering for sale or inviting any such proposal for sale of any project before such registration. With an exception that such builder shouldn’t have received the completion certificate of the project so advertised. If you think and have proof that your builder have advertised in Print, Digital, Social Media, Hoardings, out door media, calls, messages, email or any thing which you can prove on paper.
Mind you, if the project is falling between Commencement Certificate and Occupation Certificate (OC) by whatever name called on 1st May 2017 then the project must be registered with State RERA concerned. By no means, the date was extended and it is statutory obligation of the builder to register the project.
- Section4 (2)(c-f) has provisions for the promoters to provide all necessary and important information relating to the project- sanctioned plan, allotment letter, and the appropriate specifications of the proposed project along with the authenticated approvals and the commencement certificate thus imparting important information of the project to the consumers. Make sure you see that Plan he has uploaded matches with the plan you got in your agreement for sale. If there are deviations then you qualify for complain. Also, builder has to take NOC from 2/3rd buyers at whatever stage the project is.
- With respect to the consumers interest the builder as mentioned in Section4 also has to provide the carpet area for each unit, the verandah or balconies if any, the garages or parking as to be provided to the consumers promoting transparency for the consumers and to gain access to all necessary information before investing their capital in the project. The carpet area must be as per the definition of RERA Act. It says inner surface of the wall to inner surface of the wall and space below internal wall. It varies from state to state as to the definition includes inner column. The Architect certificate uploaded must be seen.
- The provisions as mentioned in Section11 (4) holds the promoter responsible for the obligations, and all the promises made to the allottees and thus assuring the consumers against unfair trade practices of the builders. Keep all the statement made by the builder to you either in written, expression and oral.
- The Act in section 11 provides for the builders being responsible for the repair work of all the structural defects or any such defect that may arise in a period of 5 years from the date of conveyance of all flats in the particular project. Many developers have put conditions in agreement for sale that if without written permission you are not allowed to do any repair. Also a usual wear and tear conditions are imposed. But nothing will stand against this provisions. Builder has to obey the section and give repair to default in workmanship and for every successive occupant within five years.
- Section 14(2)(i) of the Act prohibits the developers from making any alterations or modifications in the approved plans , fixtures, fittings or amenities of a proposed project without the mutual consent of the allottees, so as to safeguard the interest of the consumers unfamiliar to such alteration. It requires 2/3rd member NOC to do so.
- The aim of the act is to ensure that the allottees are provided with their respective units according to the stipulated time as provided by the developer at the time of the registration, failure of which penalizes the promoter under Section 18 to compensate such allottee for the delay in possession of such property. Almost every developer took the liberty to raise possession date by four to five years. But if ou have entered into agreement and the date is given then you can always go to court for recourse irrespective of date filled by builder at the time of Registration.
- Section 19 (4) entitles the consumer to claim refund of the amount of the property along with the interest from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act, thus securing the capital funds of the allottees who invested in the project.
- The Act provides for establishment of an authority to be known as Real Estate Regulatory Authority under Section 20 for the effective functioning of the provisions of the act and also securing the interests of the buyers against the ill fitted plans and intentions of the project builders. The authority is having cosi judicial powers to make any arrangement to complete the project and charge penalties.
- The provisions in S.29 empowers the aggrieved allottees to file a complaint against a developer to the authority, thus enabling the authority to deal with such a subject of protection of a consumer expeditiously and ensuring the disposal of such complaints within sixty days from the date of filing of the complaint with the appropriate authority. In Maharashtra, its online with a fees of Rs5000/- and in other states, the fees varies and sometime off line.
- The Authority under the act has been vested with the functions of promoting consumer protection under Section 43 which enables the appropriate Government for the formation of a Real Estate Appellate Tribunal for the quick redressal of grievances of the consumers, which also provides of the disposal of cases within sixty days of such filing.
- Section 59 & Section 60 of the Act provides for the penalty of the developers for contravening the provisions of the act, thus keeping in mind to create a consumer friendly real estate sector.
- Section 59- Penalizes the promoter to pay up to 10% of the project cost for non-registration their project with the RERA Authority.
- Section 60 – proscribes that the developer pays 5% for violating the provisions of the act and providing false information to the consumers.
In fact, the preamble of RERA says that the Act is enacted to established RERA Authority in every state and to enhance transparency in real estate transactions and development process.
Posted: May 10, 2017 Filed under: Consumer Law and Cases
If a vehicle requires repeated repairs, one can infer manufacturing defect–establishes the following case.
Case Study: Naryan Thakkar had purchased a Mercedes Benz diesel car, model E 220(211). It was purchased in 2003 for Rs 34,88,105. He also spent Rs1,54,524 to get the vehicle registered.
The vehicle was purchased on July 28, 2003, was covered under a two years’ warranty .Within 18 months of purchase, there was a problem with the turbo charger and the engine mount. As spare parts were not available, the vehicle stood idle for a considerable period, awaiting repairs.
After considerable correspondence, the service representative of Daimler Chrysler, inspected the vehicle at Auto Hanger. He also extended the warranty for a further period of four months. The vehicle continued to give problems.
Thakkar filed a complaint before the Maharashtra State Commission. He pointed out that in another case, taking cognizance of an article published in Times Global Business, which had reported about problems when Mercedes had launched its E Class series in 2002 and faced a barrage of complaints about cars not starting or breakingdown repeatedly , the manufacturer had withdrawn 1.3 million defective cars. Thakkar pointed out that the same treatment was not given to Indian customers. Since the company had failed to replace his car, he sought a refund of Rs 36,42,629, claimed a reimbursement of the interest paid for a bank loan to purchase the car. In addition, he demanded a refund of Rs 20,40,871incurred on repairs of the vehicle and asked for compensation and costs.
Auto Hanger contested the case stating that the service centre is only provided certain spares to cover replacements required due to normal wear and tear. If other parts are required, these have to be procured from the logistics centre located in Pune or have to be obtained from the Regional Centre in Singapore or the global centre in Germany has to supply the parts. So Auto Hanger claimed that it could not be faulted for its inability to replace the parts.
Diamler Chrysler questioned the maintainability of the complaint,contending that the vehicle was used for commercial purpose. It alsotried to attribute the problem to unprecedented floods in July 2005 andtermed this to be a natural disaster for which it could not be heldresponsible. The company stated that the vehicle should be inspected by an approved laboratory at Thakkar’s cost to ascertain if there was any manufacturing defect.
The state commission observed that no evidence was produced to show that the vehicle was being used for commercial purpose. So the complaint was held to be maintainable. Defects had developed during the warranty period, and the complaint was filed within two years. So the complaint was held to be within limitation.
On merits, the commission noted that the defects had even before the deluge of July 2005. Even after replacement of several parts, problems persisted. On December 8, 2006, the manufacturer had noted that the torque converter required replacement. The commission concluded that this established that there was a manufacturing defect in the vehicle, without the necessity of it being examined by a laboratory .
Accordingly, by its order of April 28, delivered by P B Joshi along with D R Shirsao, the state commission held Diamler Chrysler and Auto Hanger jointly liable torefundRs36,42,629paidforthevehicle,alongwith12%interest from February 22, 2007 onwards. Additionally Rs 2 lakh was awarded as compensation and Rs 25,000 towards litigation costs.
Conclusion: Testing is not required as repeated defects establish manufacturing defect.
Jehangir B Gai
ePaper, The Times of India (Bombay), May 08 2017, Page 6:
(The author is a consumer activist and has won the Govt. of India’s National Youth Award for Consumer Protection. His email is email@example.com)