Archive for August, 2009

Agreement For Properties

Friday, August 14th, 2009

Agreement For Properties

Agreement to purchase properties is an important document which forms part of purchasing any property. There are many forms to have agreement:-
1. Written agreement is always advisable, without any written agreement between the parties nothing is abidable.
2. For property agreement one has to pay stamp duty on prevailing circle rates subject to policy of the state government.
3. Agreements with possession or without possession have variable rates of stamp duty.

Their must be clear-cut description of name, addresses, date, place and details of property to be purchased along with detail of possession or without possession. Land use of the property total area, dimensions of the property and ownership rights of the property to whom its belong. Present status of the ownership along with past ownership description.

I think to avoid any litigation in future for your rights in the property you are going to purchase it is essential part of your documentation.

CITIZENS AGAINST

Thursday, August 13th, 2009

CITIZENS AGAINST
TERROR

A new threat demands a new response and strategy to combat terrorism. It is evident that multiple authorities like custom immigration, coast-guard, ports, airports and border control forces & states police must be equipped and modernized. But most important thing is better co-ordination having better coordination with each-other there must be in one umbrella for all these authorities. Even IB, RAW and states Intelligence Agencies should have better sharing information enforcement system may be provided immediate air lifting and air landing facilities of their commandos. I am of the view that the purposed federal investigating agency to combat terrorism should be autonomous under one minister or must report to cabinate secretary with fix accountability. Our states police is not adequately equipped enough to fight war on terror the security reform must reach to states also. We should introduce biometric identifications system to all the licensing authorities from boats to cycle, rickshaws to all movable vehicles, enforce multipurpose citizen identity cards having biometric marks for identification to check the infiltration from our porous boarders with counties which are home to element hostile to India. Public should be educated on war against terror. Study the model of American and Israel Anti Terrorist mechanism and adopt them with modification suiting Indian condition.

INSURANCE CLAIMS AND SUPRRESSION OF MATERIAL FACTS

Thursday, August 13th, 2009

INSURANCE CLAIMS AND SUPRRESSION OF MATERIAL FACTS

Insurance companies cannot repudiate the claim of the insured on the mare ground of suppression of material fact. This was held by National Consumer Disputes Redressal Commission in the case senior divisional manager of India Vs. Smt. J. Vinaya 2003 CPJ 50(NC) in which the material information withhold was not proved by insurance company by oral or documentary evidence, the repudiation was held not to be justified .Many decision of the State Consumer Disputes Redressal Commission particular in the case of L.I.C Vs. Nathuli Devi and L.I.C. Vs Shashi Bala while delivering the order in State Consumer Commission of Uttrakhand that the case of the complainant was that her husband was employed in the State Bank of India he took insurance policy he died of all of a sudden the information of the death was duly conveyed to the insurance company. The insurance company repudiated the claim on the ground that prior to Insurance the insured was treated for disease. This fact was concealed in the proposal form at the time of Insurance.
It will be not out of place to mention here that the proposal form, cover note of the policy, certificate of policy and claim form are the essential documents for insurance the insured are advised before filling the proposal form it and the claim form it should be examine carefully there are various columns in the proposal form and which details are to filled for the purpose of the insurance including the detail of the health status where which is also certified after examining the insured by a doctor also cover note and the certificate of the insurance policy are important document and the contract between the parties, while claim form is to be filed to avail the insurance claim in which all required information with health status to be summited to the Insurance authorities.
According to Insurance Development regulatory authority and Insurance Act Insurance Company are dutybound to decide the claim of the insured within specific time limit.
In above mentioned cases the life Insurance company raised the plea of jurdiction and contended that the jurdiction to decide the dispute is only with the civil; court and as such Consumers fora has no such jurdiction to entertain and decide the complaint pertaining to policy of insurance and alleged dispute. The complainant alleged that this plea of the appellant is misconceived and not legally tenable.
There are a common practice that while purposing the insurance policies insurance companies are very much eager and active to issue policies and received premium accordingly but at the time of settling the claim of the insured they were completely uncooperative and repudiate the claim of the insured on flimsy grounds which is not maintainable at the Consumer Fora.
In above cases the insured was examine by the Doctors of the Insurance Company and found and mention in the proposal form hail and healthy there was no evidence available in the proposal form details of any disease even insurance company failed to prove there eligation the State Commission held that the insurance company is not justified in repudiating the claim of the insured. The complaint of the complainant was allowed and the claim along with interest is allowed by state commission.
National Commission in the revision petition No.3507of 2003 Fateh Chand Kalra vs. L.I.C. of India in which there was sufficient material evidence available on the record to prove that insured was held guilty of suppression of material fact. The insurance company submitted relevant documentary evidence in support of there case.
The plea of Insurance Company regarding the jurdiction to decide the dispute in civil court “in my view” has no legal ground. As the Consumer Protection Act 1986 is an additional remedy available to the Consumers and it is not in any way in derogation of remedy and relief provided by the Civil Courts.

Consumers Help line

Wednesday, August 12th, 2009

Consumers Help line

Development authorities are liable to pay damages on their negligency. Consumers are entitled for default.
It is common practice that development authorities are floating various schemes for allotment of plots, flats, and lands for common public. But in many cases development authorities are failed to give possessions or allotment to the bonafide alloties which is definitely default and deficiency on the part of development authorities. This was held in various cases decided by various commission and Supreme Court of India.
The hon’ble Supreme Court of India and National Dispute Redressal Commission has held in many cases that State or his agents is liable for deficiency in its services. It was held in many cases if there is a complained against business or trading activity but even against service rendered by statuaries and public authorities. The theoretical concept is that the king can do no wrong here is abounded in England itself and the state is now held responsible for toughness Act of his servant. The jurdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities.
The State and development authorities many time trade defend for being a statue authorities that the services rendered by them are statuaries duties and not covered by Consumer protection Act 1986. Hon’ble supreme court held that the services rendered by the state are services covered by the Consumer Protection Act in case L.I.C. Versus V.P. Shanta and Gaziabad development authorities Vs. Balbir Singh. The authorities are liable to compensate for misfeasance in public office. Consumer is entitled for compensation constitutes actual or expected loss and extends to compensation for mental, physical and emotional sufferings insult or injury loss the provision of Consumer Protection Act and empowers to redress the injustice. In case deficiency in service awarding interest in deposited amount, irrespective of period of delay, irrespective of type of case is not justified. According to consumer protection Act 1986 section 14(1) (D) State consumer for an entitled to award the value of goods or services and must determinant that sufferance is due to melafite or capricious or oppressive Act. If Consumer for a is satisfied to award compensation.
It is settled law that if development authorities launched a scheme for allotment of plots or a House and it is booked accordingly in the scheme and there is a delay in giving the possession or allotment of land, plots, flats under that scheme the Consumer is entitled for the delay in allotment or giving possession to the alloty. In my view in light of Hon’ble Supreme Court and has National Dispute Redressal Commission in my view as judgment delivered by Hon’ble Supreme Court and Hon’ble National Consumer Redressal Commission the development authorities are liable to pay compensation for there deficiency in service. If one booking is made and all allotment order is made accordingly and if there is no justification for cancellation of booking. It is held that Commission/form must now award compensation under various head if it is concludes that there has been deficiency of service or misfeasance in public office. Even in the deposits amount of the Consumers. Consumers are also entitled interest on the amount which was deposited in the account of the development authorities. The word interest are compensation are sometimes used interchangeably and on the other occasion there have distinct connotation interest in general terms is the return or compensation for the use of all retention by one person of a sum of money belonging to or own to another. In its narrow sense interest is understood to mean the amount which one has contracted to use a borrow money.

My views on medical negligencies and its effects

Wednesday, August 12th, 2009

My views on medical negligencies and its effects

A person who holds himself out ready to give medical advice and treatment impliedly under takes that he possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. A duty of care in deciding him whether to under take the case, A duty of care is deciding which treatment to give, duty to inform impact of the treatment or A duty of care in the administration of that treatment. A breach of any of those duties gives a right of action of negligence of patient.
Whether government hospital where treatment is given free of cost are under the preview of consumer protection act
The government hospital may not be commercial in that sense but on the over all consideration of the objective and the scheme of the Consumer Protection Act it would not be possible to treat differently the view is that in such a situation the person belonging to “poor class” who are provided service free of charge are the beneficiaries of the service, which is hired or availed of by the “paying class” this was held by Hon’ able supreme court of India in “Indian Medical Association” versus V/P Shantha and others reported in 111 rd (1995)CPJ1 (SC) and also reported in AIR1998 supreme court 1801 M/S Spring Meadow Hospital Harjol Alluwalia and others Hon’ble supreme court held that definition of consumer is wide and it includes not only those who persons hires or availed services but also includes beneficries of such services other than persons who hires or avail the services. In my view it is settled that government hospitals are also under the preview of Consumer Protection Act. The Hon’ble supreme court has held that the definition of ‘service’ in section 2(1) (0) of the Consumer Protection Act can be split into three parts-the main parts, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description, which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both housing construction, entertainment, amusement or the purveying of news or other information. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service.it was further held that the Medical Practitioners, Government hospitals/nursing homes and private Hospitals/nursing homes (hereinafter called “Doctors and hospitals”) broadly fall in three categories:
I. Where services are rendered free of charge to everybody availing the said services;
II. Where charges are required to be paid by availing the services; and
III. Where charges are required to be paid by persons availing the services but certain categories of persons who cannot afford to pay are rendered service free of charge.
It was held that the question for consideration of the Act is whether the service rendered to patients free of charge by the doctors and hospitals in category (iii) is excluded by virtue of the exclusionary clause in section 2(1)(O) of the Act. In our opinion the question has to be answered in the negative. It was further held that that irrespective of that part of the service is rendered free of charge, would nevertheless fall within the ambit of expression “service” as defined in Section 2(1) (O) of the Act. We are further of the view that persons who are rendered free service are the “beneficiaries” and as such come within the definition of “consumer” under section 2(1) (d) of the Act. In para 55(10)of this ruling, it was held that the service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ‘service’ as defined in section2(1)(0) of the Act irrespective of the fact that the service is rendered free of charge to person who do not pay for such service. Free service would also be “service” and the recipient a “consumer” under the Act. Therefore the complainant is definitely a consumer. Even otherwise there is definitely evidence of the complainant that he has paid fee to the opposite party when she was consulted.
A case of Gopal vashisth versus State of Uttranchal and others decided by state commission Uttrakhand complained no.27/2002 decided on 23-8-2004.preganant lady admitted due to stomachache-Found piece of muscle-M.T.P. conducted and discharged but pain again started, within 12 hours admitted on the same bed ticket-who admitted not mentioned-what treatment was given not mentioned-condition of patient disclosed as critical but was not advised to go to other hospital-victim died due to “Septicemia shock”- Consideration of-Held-A doctor owes certain duties to patient-A breach of any of the duties gives a right of action for negligence to the patient-Carelessness and negligence is established beyond reasonable doubt-Government of Uttrakhand State as employer patent was treated at Government Hospital of doctor is vicariously liable to pay compensations-Victim was the wife of complainant having 24 years of age and had two minor children. State Consumer Protection redression Commission awarded Rs.2, 50,000 -@9% interest from the opposite party No.1 State Government of Uttrakhand.
In Vinod Prasad Nautiyal versus Savitri Uniyal and others State Commission of Uttrkhand complainant No. 7/2002 held patient admitted with labour pain and bleedings in Govt. Hospital-Operation conducted without an aesthesia-O.T. not fully equipped –No necessary facilities available- Doctors left patient in bleeding conduction-No treatment or care after wards-Consideration of-Held-Clear deficiency in service-State is vicariously liable for its employees-A lumpsum compensation of Rs.2,50,000/-awarded.
In both above cases it was evident that doctrine of res ipsa loquitor clearly applied and the State was held liable to pay damages. It is established that in both the cases of negligence per se is evident on the part of the doctors no other evidence is required
But a charge of professional negligence against a medical man was a serious. It stood on a different footing to a charge of negligence against the driver of a motorcar. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best skill in the world, things sometimes went a mess in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable to mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure of inexcusable.”

Surendra kumar

Ex-Acting Chairman
State consumer Redresal Commission Uttrakhand.

Website:- consumershelpline.info
Surendrakumar@consunershelpline.info
Email:- Esskay_enterprises@yahoo.com