Month: October 2020

Ministry of Defense vs. Babita Puniya

Posted on

This case analysis is written by Prithiv Raj Sahu, a student of KIIT School of Law, Bhubaneswar (4th year).

Court

Supreme Court of India 

Civil Appeal No’s

9367-9369 of 2011

Citation

MANU/SC/0194/2020

Date of Judgement

17th February 2020

Bench

Dr DY Chandrachud, Ajay Rastogi, JJ

Subject

Defense Law, Constitutional Law

Introduction

Gender stereotypes always create barriers for third gender and women in the professional spaces and it also deepens gender discrimination at work. One of the many gender discriminations from which women were battling ended in their favour as the Supreme Court of India in a landmark, and extremely laudable judgment named The Secretary, Ministry of Defence v. Babita Puniya & Ors. Ordered the grant of permanent commission (hereinafter PC) in 10 non-combat service units at three months and held them to be eligible to hold command posts by enervating the existing ceiling. It also provides equal opportunity for women in the Indian Army by providing them long-term job security, and the judgment is regarded as the watershed moment in the history of the Indian army. In various countries, these positions were granted a long time before like Norway allowed women in all combat battles in 1985, Pakistan also inducted its first women fighter pilot in 2013, the USA also allowed all ground combat roles for women in 2016, etc. Further, we will discuss the major events, facts, issues raised, and the judgment in detail to get a logical conclusion about this noteworthy case.

Facts

In February 2003, a PIL under the watchful eye of the Delhi High Court looked for permanent commission for women officials enlisted through the Short Service Commission (SSC) in the military compared to their male associates.  As in Strategy amendment in 2006 permitted them to serve for a limit of 14 years as an SSC official. The Centre chose in September 2008 to concede the permanent commission to SSC ladies officials in the Judge Advocate General office and Army Education Corps and their comparing branches in the Air Force and Navy. In March 2010, a Delhi High Court Bench admitted the appeal of such petitions and guided the Defence Ministry to stretch out permanent commission advantages to the SSC women officials of the Air Force and Army who had decided on permanent commission yet not conceded the equivalent. In July, the Army tested the request. It was on September 2, 2011 that the case arrived at the Apex Court in advance. The Apex Court held that the activity of the denounced judgment hasn’t remained in any way. In May 2018, Centre disclosed to Apex Court that it is thinking about giving permanent commission to women officials enrolled through SSC in the Army. In August, PM Modi reported a significant move by announcing that women officials will have the option to decide on changeless commission in parts of the military separated from existing ones like law and instruction. In February 2019, the legislature brought a notification reporting permanent commission of women officials yet tentatively made it appropriate just to those women officials dispatched after this request. The serving officials were kept out of the ambit of this notification. In the same month, the Centre issued a request for an award of perpetual commission to new SSC officials in eight battle bolster arms/administrations. 

Issues

  1. Whether women should be granted Permanent Commission in the Indian Army?
  2. Whether the guidelines issued by the Government of India dated 15th February 2019 should be implemented?
  3. What are the conditions governing the Women Officers in the Indian Army?

The Specific Argument Points of the Union Government was:

  1. Grant of PC
  2. Pensionary Benefits
  3. Policy considerations
  4. Occupational hazards
  5. Discrimination
  6. SSC as a support cadre
  7. Employment in staff appointments

The Specific Argument Points of the Respondent was:

  1. Battlefield Scenario
  2. Unit cohesion
  3. National security

Judgment

The court held that a plain reading of section 12 of the Army Act asserts that the policy decision of UOI dated 25 February 2019 allows for PC of women officers in ten streams. This policy decision of UOI recognizes the right of women officers to equality of opportunity. This right has facets Principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution and Equality of opportunity for all citizens in matters of public employment Under Article 16(1). The court regarded the submissions given to it by UOI as one promoting sex stereotypes and gender discrimination. It is assumed that domestic responsibility rests solely on women. The idea that there is an inherent psychological difference between men and women is constitutionally flawed as assumes that women are the weaker sex. 

Conclusion

This decision by the Supreme Court no doubt is appreciable and commendable and should be admired by all of us. It ensures the women’s position in the Indian Army and also prevails in gender justice in the Army also. It removed the blanket restrictions imposed on the women officers for holding higher rank posts. It is rightly observed by the decision given by the bench headed by Justice Chandrachud that it is an insult to women officers and to the Indian Army also when aspersion is cast on women, their potential, ability, and achievements in the army.

Reference

  • https://indiankanoon.org/doc/117198144
  • https://main.sci.gov.in/supremecourt/2010/20695/20695_2010_8_1501_20635Judgement_17-Feb-2020

Latest Posts

Archives

Delhi HC Grants Bail To 24-yr-Old Youth In POSCO Case

Posted on

The single Bench of Justice Anup Jairam Bhambhani was considering the bail application of a 24 year old man, who is accused of coercing a 17 year old girl to have sexual intercourse with him and having consensual relationship, at the threat of publicizing her private pictures against her consent to embarrass her. Whereas the bail applicant had contended that he should be enlarged on bail since the investigation is complete and the charge-sheet in the matter has been filed, the prosecution had pleaded the application of Section 29 of POSCO to contest bail. Section 29 of the POSCO Act creates a ‘Presumption of guilt’ on the part of the accused if he is prosecuted for committing, abetting or attempting offences under Section 3,5,7 and 9 of the Act. It was submitted that evidence was not been recorded in courts by reason of the pandemic thus stated the detention of accused unfair and unwarranted. On another, opposing to grant of bail, the prosecution argued that since charges have alrady been framed in the matter. Section 29 of the POSCO Act will apply with full vigour, whereby the court must presume the applicant to the guilty of the offences charged till he proves otherwise; and as record clearly showed that the complainant was minor and question of physical relationship being consensual does not arise. It was submitted that while having sexual intercourse continuously with that girl and made her position worse and thus bail must not been given. Afterwards, the court observed that while hearing a bail application for offences alleged under the POSCO Act, certain very significant factor requires to be addressed, in addition to general principles of granting bail. It was noted that while ordinarily there is a ‘presumption of innocence’ via-a-vis an accused, Section 29 of the POSCO Act reverses this position. Section 29 of the POSCO Act creates a ‘presumption of guilt’ on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. It added that if a bail plea is considered at any stage ‘’prior to framing of charges”, then Section 29 has no application since upto that stage an accused is not being prosecuted. The POSCO Act was enacted to specifically address sexual offences against children and to establish Special Courts for trail of such offences and secondly presumption has been provided that the accused in case of sexual assault has committed the offence unless proved contrary.

Justice Bhambhani was of the opinion that if the accused is asked to disclose his defence or to adduce evidence in his defence even before the prosecution has marshaled its evidence, the same would be “anathema to fundamental criminal jurisprudence. Thus the court was in factors were that there was age difference of 4-5 years and also both were at an age when a reciprocal physical relationship between two was not so young. It was appeared to be very little to support any allegation of serious violence or injury that would betray brutality in the offence alleged. Thus it was held that even though trial had commenced and charges had been framed against the accused, the court allowed the bail plea as the complainant and the bail applicant were at an age when reciprocal physical relationship between them was not so young. Further, there was no element of brutality in the allegations and it was not a case where the accused had tried to threaten the complainant between the registration of FIR.

KRISHNA JANAMABHOOMI CASE- G. SELVAKUMAR VS. THE STATE OF TAMIL NADU ETC.

Posted on

INTRODUCTION

The criminal revision is filed under Sections 397 and 401 of crpc , challenging the order , dated 25.09.2009 passed by the learned Judicial Magistrate No.II, Tirunelveli, in Crl.M.P.No.441 of 2009 in C.C. no. 4 of 2009. It is seen that the case was registered against the petitioner, who was arrayed as A8 and other accused under Section 408,467,468,477,471(A) r/w 120 (b) IPC and the petitioner herein filed the petition under Section 239 of Crpc seeking discharge. By the impugned order dated 25.09.2009, it is seen that the same was dismissed by the court below. Aggrieved by which, this revision has been preferred.

The revision petitioner has stated that during the relevant period between 03.06.2003 and 17.07.2003, A1 was the secretary of the Naduvakurichi Primary Agricultural Bank. The allegation is that the accused 1 to 3 had created forged document and thereby created misappropriation. The petition herein was an employee of the Central Co-operative Bank, holding the post of field manager and he has stated that he was nothing to do with the alleged offence. Learned counsel appearing for the petitioner drew the attention of this court to the charges framed against the petitioner / A8 and submitted that the petitioner herein was a field manager in the central co-operative bank and that no primary work was done by him. He was attending only supervising of the work done by the other officials. A hundred percent audit was conducted in the year 2004 in the Nduvakurichi Primary Agricultural Co-operative Bank, where discrepancies were noted and enquiry was ordered under Section 81 of the Co-operative Societies Act. The report of the enquiry officers was sent to the Director of prosecution , opined to take criminal action against the accused A1 to A3.

It is an admitted fact that so far as the petitioner and four other are concerned, the director of prosecution has given his opinion in writing. On perusal of the enquiry report that there was no intention on the part of the petitioners and others to fix any criminal liability on them and if any rules or orders were found violated by them, they might be departmentally dealt with. It is seen that the FIR was also registered originally against A1 to A3. Though the name of the revision petitioner did not find a place in the FIR and he was stated initially a prosecution witness, subsequently, he was arrayed as an accused.

Learned counsel appearing for the petitioner further submitted that under Section 84 of the Tamil Nadu Co-operative Societies Act 1983, the chief executive i.e the principal paid officer of every resistered society or the president of that society shall be bound to keep and maintain such account and other books and registers. According to the learned counsel appearing for the petitioner, as per section 84 of the Tamil nadu Co-operative Societies Act,1983, the petitioner is not responsible for the maintenance of the accounts and other books of the registered society and on this ground itself, the petitioner is entitled to be discharged from the criminal proceedings.

Per contra, learned Government Advocate appearing for the respondent/complainant submitted that the petitioner is not entitled to the relief of discharge, as sought for by him in the Revision. Learned counsel appearing for the petitioner further contended that A4 is a similarly placed officials, who preffered revision against the dismissal of his discharge petition. However this court allowed the revision and a copy of the order passed by this court in Crl.O.P(MD) No.s 981 and 982 of 2010, dated 28.04.2010 was also produced. In support of the contention. Learned counsel for the petitioner relied on the order passed by this court in favour of one Manoharan Jebaraj Julin, who was arrayed as A4 and further submitted that in the departmental proceedings, the petitioner was given punishment of stoppage of increment for about 6 months. A copy of the order passed by the Deputy Register , Co-operative  Societies , as special officer, dated 27.07.2007 available in the typed set was also brought to the notice of this court. After the enquiry, stoppage of increment for 6 months with cumulative effect was imposed on the petitioner by the Deputy registrar as Special Officer of the Tuticorin District Co-operative Bank Limited.

According to the learned counsel appearing for the petitioner, even as per the finding in the departmental proceedings, it could be construed only dereliction of duty and not an offence so far as the petitioner is concerned and the allegation against the petitioner would not be sufficient to initiate any criminal proceedings against the petitioner. According to the learned counsel appearing for the petitioner, there is no prima facie case made out against the petitioner to maintain the criminal complaint against the petitioner herein. The learned counsel appearing for the petitioner, in support of her contention, relied on the decision in Dy. Chief Controller of imports and Exports vs. Roshanlal Agarwal reported in 2003 (4) SCC 139. The petitioner has been arrayed as A8, on the ground that he had not discharged his duty in his supervising capacity as a field manager and he has not committed any offence, as alleged and further, as per the original FIR his name, does not find a place, he was admittedly stated only a prosecution witness. However, without sufficient grounds, subsequently, he was implicated as A8, which is not legally sustainable.

Learned counsel appearing for the petitioner further drew the attention of this court to the counter filed by the respondent herein and also the arlier counter filed in the case in Crl.O.P filed by the co-accused/ A4. As contented by the learned counsel for the petitioner. In both the counters only identically similar averments were made against the petitioner and the co-accused/ A4. Learned counsel appearing for the petitioner submitted that it is clear that the petitioner has been a similarly placed person as that of the co-accused A4, who was discharged by order dated 28.04.2010 passed in Crl.O.P.Nos 981 and 982 of 2010.

In the light of the decisions of the Hon’ble Apex Court, referred to by both the learned counsel, I am of the view that there is no prima facie case made out against the petitioner/ A8 who was subsequently arrayed as one of the accused in the criminal case and accordingly he is entitled to get discharge and accoprdingly, yhe impugned order passed by the court below is liable to be set aside.

In the result, the revision petition is allowed and the impugned order passed by the court below is set aside and the petitioner/ A8 is discharged from the criminal proceeding, as prayed for. Consequently, connected miscellaneous petitions are closed.

The Apex Court Held Narco Analysis Test Cannot Be Forcibly Conducted On The Victim.

Posted on

Introduction

The case of Smt. Selvi & Ors. Versus State of Karnataka was delivered on May 5, 2010 by the Apex Court. The bench consisted of Justice K.G. Balakrishnan, R. V. Raveendran and J.M. Panchal. The case was regarding the narco analysis test during the investigation in criminal cases.

Key Highlights

  • The Court exercised its Criminal Appellate Jurisdiction
  • This was Criminal Appeal No. 1267 of 2004

Court’s Decision

The Supreme Court observed in this case that the compulsory administration of the techniques like narco analysis test constitutes ‘cruel, inhuman or degrading treatment, in the context of Article 21. Hence, the Court held that no individual should be forcibly subjected to such tests, whether in the context of investigation in criminal cases or otherwise, as the same would amount to an unwarranted intrusion into personal liberty. Such techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases. For the cases of forcible tests during the investigation the , the Court said that no person who is a victim of an offence can be compelled to undergo any of the tests in question, such a forcible administration would be an unjustified intrusion into mental privacy and could lead to further stigma for the victim.

However, voluntary administration of such techniques in the context of criminal justice is permissible, provided that certain safeguards are in place. The Court stated,

“Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act.”

Finally the Court gave ‘Guidelines for the Administration of Polygraph Test ( Lie 249 Detector Test) on an Accused’ published by National Human Rights Commission and directed that they should be strictly adhered to and similar safeguards should be adopted for conducting the ‘ Narcoanalysis technique’ and the ‘Brain electrical Activation Profile’ test.

Call for Papers by Delhi Law Review, Volume 8 [Student Edition]: Submit by Nov 1

Posted on

About Delhi Law Review (Student Edition)

The Delhi Law Review (Student Edition) is an annual, double-blind, student-reviewed and edited journal.The objective of DLR is to involve students in promoting academic research and facilitating debate on contemporary legal issues in India. The journal includes national and international legal and policy-based issues within its sweep. As of 2020, seven volumes of the journal have been made available online which can be accessed on the Faculty of Law website.

About the Opportunity

Volume VIII of the journal invites original and unpublished manuscripts from all academicians, authors, legal professionals and students from India and abroad in the following categories (with their respective word limits):

  • Long Articles: 6,500 to 8,500 words
  • Essays/Short Articles: 3,500 to 6,000 words
  • Case Notes and Legislative Comments: 1,500 to 2,500 words
  • Book Review: 1,000 to1,500 words

Submission Guidelines

Check the detailed submission guidelines  here.

How to Submit

Volume VIII will only accept electronic submissions.

E-mail the submissions to: student.delhilawreview@gmail.com under the subject heading ‘Delhi Law Review (Student Edition) Vol. VIII Submission’.

Deadline

November 01, 2020 by 11:59 PM IST.

Contact Information

For all correspondence and queries, write to:

student.delhilawreview@gmail.com

The Editorial Board

Delhi Law Review (Student Edition)

CLICK HERE FOR THE WEBSITE.

CfP: NLUO & Sarkari School’s National Conference [Oct 18]: Submit by Oct 5 [Extended]

Posted on

About Legal Aid Society, NLU Odisha

National Law University Odisha (NLU Odisha) was established in the year 2008 by the Odisha government, as a Centre of Excellence in Legal Education.

In furtherance of the same, the Legal Aid Society of NLU Odisha was established in the year 2012 with a mission to implement the mandate of the Legal Services Authorities Act, 1987.

About Sarkari School

Sarkari School works with an initiative to build a platform for those working in the field of school education, to uplift the future of the younger generation through their hard work. Find more information about it  here.

About the Conference

Article 21-A of the Constitution of India provides free and compulsory education of all children in the age group of 6 to 14 years as a Fundamental Right in such a manner as the State may, by law, determine. This RTE Act came into effect on 1 April 2010.

This conference will highlight the changes that came in our country post 10 years of RTE: our achievements as well as challenges that still need to be addressed.

About the Call for Research Papers

NLUO & Sarkari School invites submissions about the implementation and challenges faced by the Right to Education Act in India.

  • The best 10 authors will be given an opportunity to present their paper at the conference.
  • Every selected article will be acknowledged with a certificate of appreciation.

Themes and Sub-Themes

Impact of RTE on

  • Girl’s Education.
  • School infrastructure.
  • Enrollment rate.
  • Inclusion of differently-abled.
  • Literacy rate.
  • Social and economical implication on right to education.
  • Role of RTE in child-centered education.
  • RTE in view of government and private schools.
  • RTE paving the way for the democratization of education.
  • How has the RTE act failed to ensure a 25% reservation to poor students in private schools?
  • Revolution of the education system and the way forward.
  • Right to education and gender equality.
  • The education system for the disabled.
  • The need to uphold the RTE act during a pandemic.
  • How can India’s Education System escape the vicious cycle of inequality and discrimination?
  • Impact of media on the Right to education.
  • Right to education in the era of digital learning.

Submission Guidelines and Rewards

Click the link at the bottom for submission guidelines and rewards.

Important Details and Deadlines

  • Deadline for abstract submission: October 5, 2020 (Extended)
  • Deadline for final submission: October 14, 2020 till 11:59 PM
  • Conference Date: October 18, 2020
  • Time: 10 AM to 4 PM

Contact Details

For queries regarding the conference and for submission, write to rteconf2020@gmail.com.

CLICK HERE FOR THE WEBSITE.

Call for Papers by CCI Journal on Competition Law and Policy: Rolling Submissions

Posted on

About CCI, India

The Competition Commission of India (CCI) is a statutory body established under the Competition Act, 2002 with the objective of preventing practices having an adverse effect on competition, to promote and sustain competition in markets, to protect the interest of consumers, and to ensure freedom of trade carried on by other participants in markets in India.

CCI is also mandated to take suitable measures for the promotion of competition law by organizing various advocacy programs for the stakeholders.

The Commission brings out its annual Journal on Competition Law and Policy in both print and online versions.

About the Opportunity

The Commission invites original high-quality research papers, articles, case law, and book reviews on competition law, the economics of competition law, and contemporary antitrust issues for publication in its aforesaid journal.

However, research papers/ articles/book reviews on the following themes, in the Indian context and based on empirical research, would be encouraged:

  • Cartel
  • Vertical restraints and competition
  • Market definition, measuring market power and abuse of dominance
  • Merger and acquisition
  • New age economy, platform markets and challenges for antitrust enforcement
  • Intellectual property rights and competition law
  • Recent development in competition law and policy
  • Any other issues related to competition law and policy

Process of Selection

Initial stage: The Joint editors will carry out a blind review to determine the eligibility of the paper for further review. On clearing the initial stage: The paper will be sent to the editorial board.

A double-blind review process will be followed at both stages.

Based on the editorial board recommendations, the paper will be rejected or accepted or sent.

Submission Guidelines

View the detailed submission guidelines.

CLICK HERE

How to Submit

Full papers along with a CV of the author(s) and duly signed certificate of originality sent to journals@cci.gov.in

Contact Information

Requests for further information or any other queries may be sent to the abovementioned email ID.

Please Note: There is no specific deadline for the submission of papers. Papers cleared by the Editorial board will be published in the next available issue of the Journal. 

CLICK HERE FOR THE WEBSITE.

Recently Uttar Pradesh CM Yogi Adityanath Recommended CBI Probe In Hathras Gangrape Case.

Posted on

2020 Hathras Gang Rape

On 14 September 2020, a Dalit girl was allegedly gang- raped by four upper caste men in Hathras district, Uttar Pradesh, India. After fighting for her life for nearby two weeks, she lost the battle of her life. The incident took place on 14 september 2020, when the victim, a 19 year old girl went to a farm to collect cattle fodder. The victim was dragged away by dupatta around her neck injuring her spinal cord in the process. She was left paralyzed with a severe spinal cord injury that was permanently damaged. She was at first taken to the Chand Pa police station, where the police rejected her claims and humiliated them. Afterwards victim was initially admitted to the Jawaharlal Nehru Medical College and Hospital in Aligarh 15 days before her death. Later on shifted to Safdarjung Hospital in Delhi and due to her worse condition she was not able to survive and died on 29 september 2020. After her death inDelhi, India’s body was whisked away and despite the fierce protests of her family, was cremated around 2.30 am by the police. The police then tried to prevent the press from taking any  pictures or recording their actions. Meanwhile, on October1, the Additional Director General of Police, Prashant Kumar, apparently relying on the FSL stated that the cause of death was injury to the spinal cord , he denied of rape occurrence. With the reports indicates that the FSL samples which were taken showed that there was not any kind of fluids like sperm to be found there. However, the amendments to our rape law mandate that only penetration is required to establish rape or gang rape not a presence of sperm. The way the body of victim was cremated the judges points that it mandates the right to dignity and fair treatment is available to all in life and death. The historical reality of our country is that events like the gangrape have been common. In pre-constitutional feudal India, there was sanctioned control of the upper castes on the labour, especially for dalits. Our Constitution, recognizing the systemic degradation of lower caste persons, mandated prohibition on caste and sex based discrimination. But India’s case shows that no constitution has any meaning if those tasked with enforcing it have aligned themselves to an unconstitutional caste based code of loyalty. “why on earth was her body torn from the family and burnt in the dark somewhere like it’s a piece of trash? This is something like that, no dignity not even mercy in death”. Repeated rape cases have angered many Indians. Some are now demanding the capital punishments for rapists.“People often say a tough law can bring about change.

Law needs to be effective and the investigating agency and prosecution more efficient for which there is a dire need.’’Uttar Pradesh Yogi Adityanath recommended CBI probe in this case.

M/S MAGMA FINCORP LTD. VS RAJESH KUMAR TIWARI DELAY IN RE-FILING THE PETITION IS CONDONED .

Posted on

The appeal was against an order dates 2nd August 2018 passed by the National Consumer Disputes Redressed Commission, dismissing Revision Petition no. 5 of 2018, filed by the appellant, under Section 21(b) of the Consumer Protection Act, 1986, against an order dates 31st August 2017 passed by the State Consumer Disputes Redressed Commission, Uttar Pradesh, dismissing appeal No. 2017 of 2008 filed by the financier and affirming the order dates 22nd August 2018 passed by the District Consumer Disputes Redressed Forum , Ambedkar nagar, Uttar Pradesh whereby the District Forum allowed Complaint Case no. 105/2005 filed by the Respondent, Rajesh Kumar Tiwari and directed the financier to pay Rs. 2,23,335/- to the Complaint along with interest at 10% per annum Rs. 10,000/- as litigation expenses.

On 2nd August 2002, the Complainant entered into the hire-purchase agreement with the financier, then known as Magma Leasing Ltd. For hire purchase of a Mahindra Marshal Economic Jeep, which is hereinafter referred to as the vehicle the cost where of was Rs.4, 21,121/- of which the complainant made an initial payment of Rs. 1, 06,121/- According to the financier an amount of Rs. 1.04, 000/- from out of the initial payment of Rs. 1.06,121/- was paid by the complainant to the dealer directly. The balance amount of Rs. 3, 15,000/- was paid by the Financier.

The Complainant agreed to repay a sum of rs. 4, 38,585/- which was inclusive of finance charges of Rs. 83,650/- to the financier in 35 monthly installments of Rs.12, 531/- commencing from 1st August 2002. The monthly installments were to be paid till 1st June 2005. The complainant apparently deposited postdated cheques of Rs. 12,531/-

By an order dated 22nd August 2008, the District Forum allowed the complaint and directed the financier to pay Rs. 2, 23,335/- to the complainant along with simple interest at 10% per annum from the date of filing of the complaint till payment as also Rs.10, 000 towards damages for physical and mental agony and Rs.1000/- as litigation expenses, within 45 days from the date of the order.

Being aggrieved by the order of the District Forum allowing the complainant, and directing the Financier to pay the complainant the entire amount paid by the complainant to the Financier towards installment and other charges as well as the sum of Rs.1,04,00/- paid by the complainant directly to the dealer , along with interest at 105 the Financier filed an appeal before the State Commission. The financier contended that the vehicle had to be sold since the complainant had not paid an outstanding amount of Rs. 2, 80,132/-

By a judgment and order dated 31st August 2017 the state commission dismissed the appeal. The Financier filed a revisional Application before the national Commission under Section 21(b) of the Consumer protection act, which has been dismissed by the judgment and order under appeal.

A forum constituted under the Consumer protection Act has, has observed, the power to award punitive damages. Punitive damages should, however, be granted only in exceptional circumstances, where the action of the Financier is so reprehensible that punishment is warranted. To cite an example, where a financier erroneously and wrongfully invokes the power to repossess without notice to the hirer, causing thereby extensive pecuniary loss to the hirer or loss of goodwill and repute a forum constituted under the Consumer Protection Act may award punitive damages.

In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several installments remained unpaid. After repossession the complainant contracted the financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding installments and gave an assurance to pay future installments in time. If the financier was not agreeable to accept the offer, the Financier was within its right under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier. The complainant had not tendered payment.

The Financier admittedly paid Rs. 3, 15,000/- for accusation of the vehicle, out of which the Financier had been able to realize Rs. 1, 19,000/- inclusive of all charges. There was depreciation in the value of the vehicle by reason of usage by the complainant for about a year. The District Forum did not even notionally assess the depreciation in the value of the vehicle.

The District Forum was not justified in directing the Financier to pay the Complainant Rs.2.23.335/- being the entire amount paid by the complainant to the Financier from the inception as well as the payment of Rs.1, 04, 000/- made by the complainant to the dealer along with damage of Rs.10, 000/- and litigation cost of Rs.1000/- after the complainant had held and used the vehicle for almost the year. The complainant admittedly a defaulter has in effect been allowed free use of the vehicle for about a year, plus damage, for an error in the notice of repossession, without considering the prejudice, if any, caused to the complainant by the error and consequential non receipt of the notice, and without making any assessment of the loss, if at all, to the complainant by reason of the error.

For the reasons discussed, the impugned orders of the National Commission the state Commission and the District Forum under the consumer  protection act cannot be sustained and the same are set aside.

The appeal is accordingly allowed. The financier shall, however, pay a composite sum of Rs.15,000/- to the complainant towards damages for deficiency in service and costs for omission to give the complaint a proper notice before taking repossession of the vehicle.

IRDA Issues Guidelines resulting in Major Changes to Health Insurance Policies from 1st October,2020.

Posted on

INTRODUCTION

This pandemic made us realise the importance of medical backup in our lives and that how the cost of healthcare is taking a new hike everyday because of the ever-growing demand for medical services. Health and medical insurance proves to be a helping hand in these kind of situations and prevents any impact on the savings for the future educational and personal goals. But the main hurdle lies in the understanding of terms and conditions of the health insurances as they are pretty technical in nature. Average customers find it difficult to understand the meaning of each and every condition and that’s why comparing the health plans become quite an issue for them.

To provide a solution The Insurance Regulatory and Development Authority of India (IRDA) on 11th June, 2020 issued guidelines on Standardization of general terms and clauses in Health Insurance Policy Contracts so that it could be easily understood by the customers and transparency could be maintained.

The guidelines are as follows:

  • The policy shall be void and all the premium paid shall be forfeited to the company in the event of misrepresentation or non-disclosure of any material information by the policyholder whereby material facts shall mean all relevant information sought by the company to enable it to take informed decision in the context of underwriting the risk.
  • The company shall settle or reject a claim, within 30 days from the date of last necessary document and in case of delay in the payment of claim the company shall be liable to pay interest to the policy holder at 2% above the bank rate. In case the claim warrant of an investigation in the opinion of the Company, such investigation should be completed at the earliest and not later than 30 days from the date of receipt of last necessary document. The Company shall settle the claim within 45 days in such a case and in the event of any delay the Company shall pay interest to policyholder at 2 above the bank rate.
  • If an insured person takes multiple policies, he/ she shall have the right to require a settlement of his/her claim in terms of his/ her policies. The insurer chosen by the insured person shall be obliged to settle the claim and he/she shall have the right to prefer claims under this policy/policies even if the sum insured is not exhausted. If the amount claimed exceeds the sum insured under a single policy, the insured person shall have a right to choose insurer from whom he/she wants to claim the balance amount and the insured person shall only be indemnified the treatment of the costs in accordance with the terms and conditions of the chosen policy.
  • The benefits of the policy and the premium paid shall be forfeited if any claim made by the insured person is fraudulent, or any false statement, or declaration is made or used in support thereof, or if any fraudulent means or devices are used by the insured person or anyone acting on his/her behalf to obtain any benefit under the policy. Any amount already paid against claims made under this policy but which are found fraudulent later shall be repaid by all recipient(s)/policyholder(s), who has made that particular claim, who shall be jointly and severally liable for such repayment to the insurer. The Company shall not forfeit the policy benefits or repudiate the claim, if the person prove that the misstatement was true to the best of his knowledge and there was no deliberate intention to suppress the fact or that such misstatement of or suppression of material fact are within the knowledge of the insurer.
  • The policy may be cancelled by the policymaker by giving 15 days written notice and in such an event, the Company shall refund the premium for the unexpired policy period and it can be cancelled on the ground of misrepresentation, non-disclosure of material facts, and fraud by the insured person. However, no refunds shall be made in respect of cancellation where, any claim has been admitted or has been lodged or any benefit has been availed by the insured person under the policy and on the grounds of misrepresentation, non-disclosure of material facts or fraud.
  • The insured person will have the option the migrate the policy to other health insurance products/plans offered by the company by applying for migration of the policy at least 30 days before the policy renewal date and if such person is presently covered and has been continuously covered without any lapses under any health insurance product/plan offered by the company, the insured person will get accrued continuity benefits in waiting periods.

The insured person will also have the option to port the policy to other insurers by applying to such insurer to port 45 days before, but not earlier than 60 days from the

  • policy renewal date and such insured person will get accrued continuity benefits in waiting periods if such person is presently covered or has been continuously covered under any health insurance policy with an Indian General/ Health insurer.
  • The Company shall attempt to give notice for renewal but it’s not obligatory and it can only be denied on the grounds of misrepresentation, fraud by the insured person and not on the ground that the person had made a claim or claims in the preceding policy years and the request for the same shall be received by the Company before the end of the policy period. At the end of the policy period, the policy shall terminate and can be renewed within the grace period specified by the insurer as per product design to maintain continuity of benefits without break in policy.
  • The Company will intimate the insured person about the withdrawal of the policy 90 days prior of the expiry date and the insured person will have option to migrate to similar health insurance product available with the company.
  • After the completion of 8 continuous years under the policy no look back is to be applied and this is known as the moratorium period and the same would be applicable for the sums insured of the first policy and subsequently completion of 8 continuous periods would be applicable from the date of enhancement of sums insured only on the enhanced limits. No health insurance claim shall be contestable except for proven fraud and permanent exclusions specified in the policy contract after the expiry of this period.
  • Certain guidelines related to the person who has opted for payment of premium on an installment basis has been laid down which includes grace period, waiting period, specific waiting periods. The company has the right to recover and deduct all the pending installments from the claim amount due under policy.
  • Insurers are required to give you a free-look period to review your policy and if you are dissatisfied, return it and get your money back and it shall be applicable on new individual health insurance policies and not on renewals or at the time of porting/migrating the policy. The insured person shall be allowed free look period of 15 days from the date of receipt of policy document to review the terms and conditions of the policy, and to return the same if not acceptable.
  • The definition of the “Pre-Existing Disease” at Clause 3 of Chapter 1 under Section 1 of the Master Circular on Standardization of Health Insurance Products was rectified.

These guidelines will be applicable to all health insurers who are providing indemnity-based health insurance (excluding Personal Accident and Domestic/Overseas Travel) products for individuals and groups on or after 1st October, 2020.