Consumer Law issues & forum

The apex consumer court in Maharashtra has shown insurance firms their place, directing that it is the doctor — and not the insurer — who
can decide whether a case requires emergency medical attention or not. It has also fined the insurer Rs 5,000 for rejecting a claim on this ground lodged by a Versova resident.

The order — coming at a time when insurance firms are desperately trying to whittle down expenses on claims — will spread cheer among the insured, feel consumers’ organizations.

“An insurance company’s officials are not experts who can decide whether a particular case is of medical emergency or not,” the Maharashtra State Consumer Disputes Redressal Commission observed while ordering an insurance company to pay mediclaim to a Versova resident. “It is for the expert doctor in the field to give an opinion if this is a case of medical emergency or not,” the commission stated in its order.

The case dates back to 2000. Shamim Khan was working as a schoolteacher in Jeddah, Saudi Arabia. It was during a visit to India in July 2000 that she suffered unbearable stomach pain that led to severe bleeding.

She also experienced breathing problems and her haemoglobin levels began to drop considerably. Khan was admitted to Bombay Hospital immediately where an emergency surgery was conducted. She was discharged after eight days of stay in the hospital and, after incurring a total expenditure of Rs 41,158, Khan lodged a claim for insurance with the New India Assurance Company Limited from whom she had taken a policy. The policy was in force from April 2000 to March 2001.

Khan’s claim was, however, rejected on the ground that there was “no emergency need to undergo the operation”. Aggrieved by the the repudiation letter she filed a complaint in a district consumer forum, where the insurance company argued that “she (Khan) knew of the illness even before she came to India and had purchased the policy by suppressing material facts of her illness”; so it had the right to repudiate the claim, the insurer pleaded.

Khan had, however, procured a doctor’s certificate to the effect that there was an emergency situation and the doctor was required to operate on her to save her life.

Based on this document, the district forum on July 7, 2007, directed the insurance company to pay the medical claim and also Rs 5000 for causing mental harassment to Khan.

source: Economic Times

Popularity: 5% [?]

The South Goa consumer disputes redressal forum on Monday, held that it had no jurisdiction over a telecom service dispute against Bharat Sanchar Nigam Limited (BSNL) in view of a supreme court judgment.

However, complaints against private telecom service providers can be filed before the forum, it stated.

While stating that the apex court judgment applies to all pending consumer complaints against BSNL, the forum disposed of six cases against the government telecom service provider pending since 2002.

The forum also granted liberty to the parties to refer their disputes against BSNL, subject to the provisions of law, to arbitrators as contemplated under the supreme court judgment.

The Supreme Court in 2009, in the General Manager, Telecom, versus M Krishnan case, involving BSNL as a party, had ended the jurisdiction of consumer courts to entertain disputes relating to the telecom service provider.

It ordered that these disputes be resolved through arbitration provided under Section 7B of the Indian Telegraph Act, 1885.

In view of the judgment of the apex court, the forum had on April 15, 2010, heard final arguments to decide its jurisdiction in telecom matters.

The lawyers of BSNL, private telecom service providers and consumers had submitted their views in the matter before the forum.

Twenty-two telecom cases were pending before the forum which pertained to issues ranging from dropped calls and over-charging of customers to unwanted value-added charges and false calls. The complaints were against mobile service providers, internet service providers, broadband service providers, DTH operators, cable TV operators and landline service providers.

Relying on the Punjab State Commission judgment in the Spice Communication Pvt Ltd case, the forum held that private service providers, operators and companies are beyond the scope of the apex court judgment and as such, all such cases shall continue to be heard on merits by the forum.

Around 16 cases against various private operators are lying before this forum

The commission had also noted in its order that “the private service providers are the licencees to operate mobile lines under section 4 (1) of the Indian Telegraph Act, 1885, and therefore they cannot be equated with the director general of posts and telegraphs nor can they be termed as officers appointed by the director general of posts and telegraphs to discharge the functions of the telegraph authority.

“They are only the licencees, therefore any dispute between the licencee and their consumer is not covered by provisions of section 7B of the Indian Telegraph Act, 1885,” the Punjab State Commission had observed.

Before parting with the judgment, forum president Jagdish Prabhudessai and member Kala Dalal observed that they were aware of the general anxiety and apparent dissatisfaction in the minds of consumers and NGOs after the apex court judgment.

“A submission was made before us that upon the representations received from various NGOs, the central government is seriously thinking of making suitable amendments to the Indian Telegraph Act of 1885,” said the forum.

This is to bring the consumer disputes alternatively within the purview of the Consumer Protection Act, 1986., the forum further said.

“With utmost respect we heard the submission that Parliament is seriously thinking of making necessary amendments to the existing laws concerned so as to best protect the interests of the consumers at large.

“However, the consumer forum cannot wait till then. We do justice in accordance with the law as it stands today,” stated the forum in its order on Monday.

Times of India

Popularity: 6% [?]

In a far-reaching verdict, a consumer court has held that a private doctor is as much bound as his government counterparts to render help to dying persons, irrespective of whether they are his patients or not.

Slapping a fine of Rs 3 lakh on Dr A K Manocha for not attending to an injured person lying outside his clinic, the Delhi Consumer Commission has said a 1989 Supreme Court judgment casts absolute liability even on a private doctor to save life. The doctor becomes a service provider to a dying person who is in need of urgent medical help while the person becomes a consumer.

Referring to a UN resolution that every patient has a right to treatment in case of emergency, the commission said it was callous and cruel of Dr Manocha, a pediatrician, to slam the door of his Janakpuri clinic on K L Gulyani, a soldier who was bleeding profusely from a knife injury after resisting a gang of pickpockets. Gulyani died before reaching another hospital.

Every doctor is bound by Hippocratic oath: Panel

Citing a Supreme Court verdict, the consumer ciourt rejected Dr Manocha’s plea that he was under no obligation to help the injured person as he was a private practitioner and there was no relationship of consumer and service provider between the two. The commission said, “It is not only a doctor of the government hospital who is bound to render help to a dying man. Every doctor is bound by the Hippocratic oath and must render help to seriously injured persons.”

This is in keeping with the Supreme Court verdict in Pandit Parmanand Katara vs Union of India, which laid down that whenever a person needed emergency treatment, it was the duty of a medical professional to render all possible help and see to it that the person reached the proper expert as early as possible.

The commission headed by Justice Barkat Ali Zaidi, however, ruled that the hospital to which Gulyani had been subsequently taken was not liable to pay any damages. This is because Gulyani was found dead by the time he reached Orchid Hospital.

The couple that took Gulyani to hospital had testified to Dr Manocha’s failure to attend to Gulyani when he was still alive. The commission held that the evidence given by Naveen Kumar and his wife Vandana could not be disbelieved because they were deposing against a doctor to whom they had gone for the treatment of their daughter.

source: Times Of India

Popularity: 7% [?]

Consumer to soon be king: Govt mulls more power for buyers through Consumer Protection (Amendment) Bill 2010 to be Introduced in parliament very soon.

Bill amplifies the provisions of the Act, facilitates quicker disposal of consumer complaints and rationalizes the qualifications and procedure of selection of President and members of the consumer fora.

If a shopkeeper doesn’t give you a bill for your purchase, you may soon be able to take him to court. At the same time, anything and everything you buy can be challenged legally if it is found to be of poor quality. A product need not be “hazardous” at the beginning to be “unsafe” later. Most importantly, consumers will be able to receive extra money from consumer fora in case of protracted litigation.
The central government is mulling a clutch of amendments to Consumer Protection Act, 1986, to empower consumers and to inject transparency in the three-tier consumer protection fora at the district, state and national levels. If accepted, the Act will make a shopkeeper not issuing cash memo or bills for goods sold as guilty under the law. The possession of bill makes a consumer a “bonafide” customer and its absence robs him of a stronger footing in courts if he challenges a sale. It will henceforth be dubbed an “unfair trade practice”.
The most consequential change may be the widening of the definition of “defect” and “deficiency”. While the Act clubs a few shortcomings in a product to qualify as “defect”, it is proposed to keep the definition open-ended — by replacing “means” which follows the spelt-out defects with “includes” — to qualify any unspecified flaw as defect.
The seller will in future have to give the buyer every bit of information about a commodity. It is proposed that withholding information about a good, which can influence the choice of a customer, should be treated as an offence.
The definition of “unfair trade practice” is to be expanded to include the unforeseen modus operandi of traders as offences. It will allow the law to not specify every unfair practice in the law.
A key change relates to safeguarding the consumers who are fleeced by the sellers through various contracts or conditions which place them in “unequal bargaining capacity”. The 199th report of the Law Commission had suggested the change to bring the consumers on a stronger footing to challenge any unfair practice. A contract or a condition will be “unconstitutional and illegal” if it is between two parties of unequal bargaining capacities, one-sided and unfair to the weaker party. Such a contract is said to be offending spirit of the Constitution.
The amendments also seek to bring transparency in consumer courts with regard to selection of presiding officers, filing of cases and discharge of justice. Consumers will be able to file “cases online” in what is an attempt to empower them. A key proposal says that presidents or members in consumer fora should be barred from pleading before them. This includes those who either held office in these fora or wielded administrative control there. It is an attempt to stop any unfair clout to be pedalled in the courts.
The Act seeks to empower consumer courts to award “interest” to compensate consumers who suffer from prolonged court battles.
State commissions are to be given more power to be able to renew their own orders if they notice factual mistakes in the records. The powers of judicial magistrate first class will be more explicit under the Act.
The quasi-judicial three-tier consumer disputes redressal machinery — national, state and district — provided by the Consumer Protection Act has led to a culture of consumer protection. The rising consciousness among people about their rights has led to consumers going to courts to seek redressal against unfair deals or cases of cheating.

source: Times Of India

Popularity: 8% [?]

For deficiency in service and causing harassment to a complainant, UT consumer forum has directed Chandigarh Housing Board (CHB) to pay him Rs 50,000 as compensation, along with Rs 5,500 as costs of litigation.

Complainant Tarsem Singh, a resident of Sector 40-A, here, had alleged that he was allotted house number 911/1, Sector 40-A, Chandigarh, by the Chandigarh Housing Board (CHB) on October 1, 1978, for which he had deposited the full and final payment in lump-sum. He was accordingly issued No Dues Certificate in November, 1979. In June, 2006, the complainant had applied for conversion from leasehold to freehold and submitted the required documents, along with a draft of Rs 2,870. Thereafter, he repeatedly visited the office of respondents and also submitted letters and reminders umpteen times to know the status of his application.

Then, he filed an RTI plea for his application and in its response, he received a letter in June, 2009, from the respondents, stating that the original application could not be traced. He later issued a legal notice, but to no avail. In their written reply, the respondents admitted that the original file with respect to house number 911/1, Sector 40-A, was missing from the record since 2006 and could not be traced despite best efforts. The forum in its order said, “It is very unfortunate that important records of title are not being properly maintained in the office of CHB and at the top of it, the respondents are taking no action against the officials responsible for maintaining the said records or causing the loss thereof.”

The forum directed CHB to issue letter of conversion within 30 days from the date of receipt of documents and also pay to the complainant Rs 50,000 as compensation, failing which it would pay the amount with interest of 12% per annum. CHB was also directed to pay Rs 5,500 to the complainant as costs of litigation. The forum said the respondents were free to recover the amount of Rs 50,000 and litigation costs of Rs 5,500 from their officials responsible for delaying the matter.

source: Times Of India

Popularity: 7% [?]