LEGAL NEWS 23.11.2008

Justice for widow, panel fines insurance major
22 Nov 2008, 0349 hrs IST, Swati Deshpande, TNN
MUMBAI: The Maharashtra State Consumer Disputes Redressal Commission recently imposed a fine of Rs 25,000 on ICICI Prudential Life Insurance Company Limited after holding that it had played a fraud in denying a widow payment on her husband’s insurance policy by adopting “an ingenious method”. For the widow based in Solapur, it was a vindication of her rights after nearly 18 months of taking on an insurance giant. Latika Salunke is the widow of Shivshankar Salunke, who had taken a lifetime insurance policy for a sum assured of Rs 5.5 lakh in 2006. She lodged a claim for the insurance money when her husband died in December 2006, having paid two instalments of his premium. But the company repudiated her claim saying the policy had lapsed as both his cheques had been dishonoured because of signatures that did not match. The shocked widow complained to the district consumer forum in Solapur, which allowed her claim and directed the insurance company to pay up along with 9% interest from May 2007. But the company was in no mood to let go and moved the state commission in appeal where it argued, through lawyer Sachin Chandarana, that both the cheques issued by Salunke had bounced because of a mismatch of his signatures. So, his policy had lapsed, said the company, adding that it was not the company’s legal duty to inform the policy-holder under the law. Advocate Bindu Jain, appearing for the widow, argued that there was sufficient balance in Salunke’s account and that the district forum’s order was correct. The commission, however, did note that the district forum had trespassed the legal position by holding that it was the “moral duty of the insurance company to inform the policy-holder of the dishonoured cheque”. The insurance contract does become void when premium remains unpaid because of non-encashment of cheques, the law says. The commission, however, said the non-encashment here could not be the result of a fraud. The widow complained that the insurance company committed a fraud through its sister concern, ICICI Bank. The premium cheques were presented to Salunke’s account in ICICI Bank at Solapur. But the memo on mismatched signatures was issued by ICICI Bank, Kolhapur. The commission stated, “We fail to understand how the cheques presented at Solapur travelled to Kolhapur. The specimen signatures were at Solapur and not Kolhapur.” “It is beyond our comprehension how the Kolhapur branch dishonoured the cheques on account of a mismatch in signature. This is a fraud played by the bank to avoid payment to the widow by adopting an ingenious method to show that the cheques were dishonoured due to mismatch of signature,” the commission, headed by Justice B B Vagyani, said in its order.

Law panel: Judiciary and Executive must have equal say
J. Venkatesan
It’s time balance of power is restored in appointments
Reconsider judgments of 1982, 1993 and 1998 for clarity, consistency in appointments Collegium not familiar with the antecedents of candidates
NEW DELHI: Even as a controversy is brewing over the elevation of three judges to the Supreme Court, the Law Commission of India has recommended an equal role for the Judiciary and the Executive in the selection and appointments to High Courts and the apex court.
The Centre returned the files on the recommendations made by the apex court collegium to appoint the Chief Justices of the Kerala, Madras and Patna High Courts, H.L. Dattu, A.K. Ganguly and R.M. Lodha, judges of the Supreme Court.
The collegium, reiterating its recommendations, sent the files to the Law Ministry for being forwarded to President Pratibha Patil for her approval.
In its 214th report submitted to Law Minister H.R. Bhardwaj, the Commission, headed by Justice A.R. Lakshmanan, has suggested that the three Supreme Court judgments of 1982, 1993 and 1998 be reconsidered to bring about clarity and consistency in the process of appointments.
The report, analysing the position in various countries, said: “It may be seen that in all other Constitutions either the Executive is the sole authority to appoint judges or the Executive appoints [judges] in consultation with the Chief Justice of the country. The Indian Constitution has followed the latter method. However, the ‘second judges case — Advocates on Record Association vs. the Union of India’ — of 1993 has completely eliminated and excluded the Executive and the opinion of the Supreme Court in the presidential reference of 1998 has reaffirmed this view with slight modifications.”
It said “the Indian Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of judges of the Supreme Court and the High Courts where both the Executive and the Judiciary have been given a balanced role. It is time the original balance of power is restored.”
The views of the parliamentary standing committee on Law and Justice recommending the scrapping of the present procedure was of great relevance, the Law Commission said. Referring to this report, Mr. Bhardwaj said the collegium system had failed as the decisions on appointments and transfers lacked transparency. The Minister said,
“We feel courts are not getting judges on merit and the government cannot be a silent spectator on such a serious issue.”
Government policy
The Law Commission pointed out that in every High Court the Chief Justice “is from outside the State as per the policy of the government. The seniormost judges who form the collegium are also from outside the State. The resultant position is that the judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information.”
Therefore, “two alternatives are available to the government. One is to seek a reconsideration of the three judgments before the Supreme Court. Otherwise, a law may be passed restoring the primacy of the CJI and the power of the Executive to make the appointments.”
Restoring the balance between the Judiciary and the Executive would improve the quality of selection and appointments, the report said.

Ensure rural job scheme’s success: Chief Justice to judiciary
Saturday, November 22, 2008
Bangalore, Nov 22 (IANS) Chief Justice of India K.G. Balakrishnan Saturday called upon the judiciary to ensure the successful implementation of the National Rural Employment Guarantee Scheme (NREGS) for empowering the rural people and bridging the rich-poor gap.
‘As the right to employment has been made a fundamental right of the citizen under the directive principles of the state, the judiciary has the legal and moral obligation to ensure the executive implemented the NREGS Act for guaranteeing livelihood of the rural folk,’ Balakrishnan said.
Inaugurating the first two-day regional conference of southern states on ‘Initiative on supporting the NREGS through state legal services authorities’, Balakrishnan said the scheme was one of the most progressive social welfare measures in the country to tackle chronic rural poverty.
‘The onus is on the judiciary to intervene and assist the state governments through local bodies for effective implementation of the scheme, launched by the central government in 2005 with huge budgetary support every year,’ the chief justice pointed out.
The scheme, a flagship initiative of the Manmohan Singh government, ensures 100 days of employment in a year for one adult from each rural household.
It seeks to ensure livelihood security and improve the purchasing power of rural households through the payment of statutory minimum wages for the work undertaken.
The scheme is also intended to check rural-urban migration and utilise the labour for building public works such as bridges, water-flow channels well, rainwater harvesting units, roads, schools, health centres and granaries.
The potential of the scheme remains only partially fulfilled even three years after its launch. Though there are reports of its success in limiting distress migration in some districts, systemic problems have been coming in the way of realising its full potential in other districts. Implementing agencies, civil societies and the legal system have to be involved to address the issues.
‘The primary problem is corruption, lack of transparency in maintaining muster rolls and records of payment of wages. The unholy nexus between local contractors and governmental officials is complicated by social realities such as exploitation of illiterate workers, particularly those belonging to vulnerable sections such as Scheduled Castes, Scheduled Tribes and women,’ the chief justice lamented.
Referring to media reports and complaints by NGOs on manipulation of wage payment records, Balakrishnan decried the tendency of contractors to not allow workers or social activists access to muster rolls.
The chief justice advised state legal services authorities to generate awareness about the scheme through legal literacy camps and provide a grievance redressal mechanism in the form of Lok Adalats (people’s court) to hear and decide complaints related to the scheme.
The success of a scheme like the NREGS lies on the initiative and efforts of the local community. It is important for individuals to be aware of their entitlements under the scheme and participate in the social audits concerned with the implementation of the same.
‘Social audits are not only a method to gauge the implementation of the scheme, but also provide a forum for the beneficiaries to interact with the implementing agencies on the working conditions and the nature of projects to be undertaken. In this way, the government’s role of guaranteeing the employment can act as a precursor to wholesome rural development,’ Balakrishnan added.
On this occasion, the chief justice unveiled a specially designed bus, which serves as a court room to conduct the Lok Adalat and take justice and legal literacy to the doorsteps of the people across Karnataka.
Christened ‘Mobile Lok Adalat and Legal Literacy Chariot’, the bus has been designed like a mini-court room with enough space to seat litigants and their lawyers. The Lok Adalat comprises a judicial officer and a conciliator.
Besides solving small and petty cases, the mobile court will help in spreading legal awareness among the masses.
Posted by Indian Daily News

Govt files appeal against KMF
23 Nov 2008, 0010 hrs IST, TNN
Bangalore: The government has filed a writ appeal against an order by a single Bench that stayed the operation of another order passed in November 5 by the director of cooperative audit relating to Karnataka Milk Federation (KMF). The director had sought verification and re-examination of KMF’s audited accounts for 2001 to 2002 and 2007 to 2008. The writ appeal will come up for hearing before a division Bench headed by justice Deepak Verma on Monday. On November 13, a single Bench had passed an interim order and directed the government to file objections in four weeks to a petition filed by KMF’s management. “The director of cooperative audit passed this order in response to the direction of the government under Section 63 (11) of the Karnataka Cooperative Act. Under this provision, he should have passed an independent order after ascertaining facts. This order was passed blindly without following the government’s directive,” the court observed. The court adjourned the hearing on a separate petition filed by KMF chairman and former minister H D Revanna. He had challenged re-examination and re-verification of KMF’s audited account. Also, he had stated that the government’s move to probe recruitments made for KMF’s Channarayapatna plant was “politically motivated”.

NREG scheme hindered by corruption: CJI
Bangalore, Nov. 22: Chief Justice of India Mr KG Balakrishnan today termed the National Rural Employment Guarantee Scheme as one of the most progressive welfare measures but said it was hindered by factors such as corruption, lack of transparency and nexus between contractors and officials. The scheme seeks to ensure livelihood security and improve the purchasing power of rural households through the payment of statutory minimum wages for work undertaken, in the process the NREGS also seeks to check rural-urban migration and deploy labour for building public works, he said in his address to a Regional Conference on the scheme. He, however, said though the scheme had received some favourable reports in limiting distress migration in some districts, there were several systemic problems. PTI

Sensitisation of officials must to curb human trafficking: CJI
Posted on : 17 November 2008 by Shambasiv
Sensitisation of officials must to curb human trafficking: CJINew Delhi, Nov 15 (PTI) The fight against Human trafficking crimes would require sensitisation of law enforcement officials and other stakeholders, the Chief Justice of India K G Balakrishnan said today, pressing for an intensified action to curb the social menace.”We need sensitive police officers, prosecutors and magistracy,” he said, adding that it was the only way of improving the quality of justice delivery in such crimes starting from registration of cases to investigation and to the delivery of justice in such cases.”We have a lot of talented people and we just need to increase the creed of fine prosecutors and judicial officers,” he said, inaugurating a colloquium on Justice Delivery in Human Trafficking Crimes here.Linking the social problem with attempts to give it a colour of religion in some states, the Chief Justice said “It is not merely an economic problem but is also associated with superstition…People need to be made aware of the problem and we, through NALSA, are trying to sensitise people on their rights.” Trafficking is a complicated problem and it requires a co-ordinated and interdisciplinary response. “It touches on the domains of human rights protection and gender justice while posing some difficult problems for law-enforcement officials,” the CJI said.Releasing a resource book on the Legal Framework for Anti-Human Trafficking measures, Chief Justice Balakrishnan said “This book is meant for use by law enforcement officials and other stakeholders with the aim of sensitising them about effective role that they can play.” PTI

Centre to increase number of judges in SC, HC: Defence Minister
Kochi, Nov 23: Union Defence Minister A K Antony on Sunday said that the Centre is planning to increase the strength of judges in Supreme court and High courts and a legislation in this regard is in the offing. Supreme Court Chief Justice K G Balakrishnan had pointed out that there were three lakh pending cases before various courts and hence the government had decided to increase the number of judges in various High courts and Supreme court, Antony said addressing a special session at the Indian Lawyers Congress Legal Enrichment camp here. However, increasing the strength of judges alone is not enough, he said, adding lawyers should also stop seeking frequent adjournments and the legal community should also ensure that benefits of law reaches the common man. Stressing the need to preserve the rule of law, he said, all political parties and organisations should be committed to it. Earlier, Antony told reporters after inaugurating the Special Olympics here that the Centre would provide financial help to state governments to modernise their police department with modern electronic equipment. He said it would also provide modern equipment to military and paramilitary forces to fight terrorists. The Minister also presented awards to the winners of Special Olympics Kerala state meet. Bureau Report

Maharashtra stable owners move HC against eviction plan
Mumbai (PTI): Twenty-five stable owners in suburban Malad have approched the Bombay High Court against government’s plan to drive them out in order to facilitiate a Slum Rehabilitation (SR) scheme.
These stables house cattle sheds, with over 2000 cows and buffalows. They occupy an area admeasuring around 10,000 sq ft.
This land is a part of a 45,473 sq ft piece of land on which a slum stands.
Under the SR scheme, three builders, namely Rashmi Infrastructure, Parasrampuria Industries and Amalgamated Building Corporation are developing it.
Under SR scheme, slums are demolished, and builder gets permission to build more than what is normally allowed, in return for providing free flats to the slum dwellers.
The issue in the present petition is whether the 25 stable owners can be evicted from the land or not.
Petitioners’ lawyer Anil Singh contended before the High Court last week that “neither stable owners nor their buffaloes” fall within the definition of slum dwellers, hence the area where stables stand cannot be redeveloped.
There is a ‘nullah’ which separates slums from the stables, he said.
On the other hand, builders contend that stable can very well be a part of SR scheme. But in this case, the stable owners are not eligible for rehabilitation, they said.
The case will come up for hearing on December 4.
Meanwhile, division bench of Chief Justice Swatanter Kumar and Justice Sharad Bobde has restrained the developers from pulling down the stables.

Police in tight spot after HC directive
PANJIM, NOV 22 The High Court’s lashing to the police in the investigating pertaining to the German minor’s rape case on Friday may have left them flustered, even as they have been left with no choice but to tighten up the investigation once again. SP North Bosco George told Herald the police would respect the order of the court and conduct a fair investigation into the case in which Education Minister Babush Monserrate’s son was arrested and released on bail.While police claimed the investigation into the case was fair, sources said there are many loose ends and hidden truths and if ever it goes to an agency like CBI the men-in-khaki would have to face the blushes.Giving one of the reasons why the police could face the blushes, the sources said earlier during the questioning into the SMS messages sent to the German girl from different phones, the investigation officer (IO) was taken aback to see a constable in the queue.They said the constable had told the IO during the questioning that the phone from which the SMS message was sent had been bought by a public prosecutor (PP) in his name. The phone was, however, operated by the PP’s son most of the time, the constable told the IO, they stated. The sources mentioned that there is clear photographic evidence that the PP’s son knew the girl and they were seen at a party together posing for the camera. This PP boasts of close political connections.They stated even though wards of many high-profile personalities, including a BJP MLA’s son, were associated with the girl, the police were helpless to act on their own as there was no mention of them by the girl.The sources said with the no-nonsense direction from the court yesterday, the SP North may be finding himself in a tight spot as an affidavit pertaining to the case has to be filed on December 10. The SP is also saddled with the IFFI, Old Goa feast security arrangements and the Pale by-poll bandobast. The sources opined that since the HC was now strictly monitoring the high-profile case, the DGP should give the IO sole charge of the case without any other additional duties that could hamper or delay his investigation. The issue has no doubt thrown a gamut of questions over the investigation conducted in the present and similar cases earlier. But it also brings to the attention of the Government the seriousness of bifurcation of police for effective investigation and law and order duties.

RTI shows bail plea pending in HC for 4 yrs
23 Nov 2008, 0542 hrs IST, Abhinav Garg, TNN
NEW DELHI: At a time when the Chief Justice of India (CJI) has asserted that judges are working very hard to clear backlog of cases, an RTI reply from Delhi High Court (HC) shows the oldest bail plea pending before it is more than four years old. The stunning disclosure, which many might view as violation of the Right To Speedy Trial of an accused, came in response to an RTI query filed by a lawyer and is one of the rare instances where HC has responded positively to the plea of an information seeker, furnishing an answer without questioning the locus of the information seeker or invoking its special rules of RTI. HC’s answer reveals that while two of the oldest bail applications pending before it date back to 2004 and are yet to be decided (Sanjay vs State 1569/04 is one of them), others still pending include two bail pleas from 2005 and six filed in the year 2006. HC’s reply came in response to an RTI query filed by a lawyer who sought to know “10 oldest bail pleas still pending in the court.” Speaking to TOI, noted criminal lawyer K T S Tulsi saw this as ” lack of concern for liberty of people accused of crime.” While he readily conceded the accused whose bail plea is yet undecided might no longer be in jail, Tulsi was quick to point out that “there can be no justification for a bail plea pending for all these years. It shows a declining sense of urgency.” The legal fraternity echoed Tulsi, saying this went against the SC’s repeated emphasis that ” bail applications be expeditiously decided as adjournments are violative of right to speedy trial under article 21.” In fact, keen to know if any step had been taken to speed up disposal of cases as this one instance showed backlog of cases, the RTI also asked if any administrative orders were passed by HC in this regard. HC replied in the negative, asserting that no administrative orders are passed and it is the judge’s sole discretion to list a case for a particular date. Incidentally, the need for streamlining in the procedure for listing and hearing of cases – so that cases are decided at a faster pace – is increasingly being felt even by lawyers themselves and not just the litigants. This has prompted the Delhi HC Bar Association (HCBA) to approach Chief Justice A P Shah. In a set of recommendations, HCBA president K C Mittal has urged the judges to streamline hearing of cases, especially bail matters. Few recommendations are that ” matter should not be adjourned beyond 3 weeks in any case’ ‘ and “all bail pleas should be decided finally within one month as speedy trial is a fundamental right of the accused.” HCBA has also sought that anticipatory bails be decided within a period of five days and judges don’t adjourn proceedings in bail matters if the investigating officer is not present. “We want our HC to be a model high court for the country,” said HCBA president K C Mittal.

Grant Permanent Commission to serving women officers: HC
New Delhi, Nov 23: Pressing for gender equality in armed forces, the Delhi High Court has directed the Centre to ensure serving woman officers in defence forces are granted Permanent Commission without delay. The High Court’s tough talk on benefits for women serving officers followed the government’s claim that it had decided to grant Permanent Commission to women officers who would be recruited in future. The government’s policy decision, however, did not go down well with the High Court which directed it not to overlook the cause of the serving women officers. “This is a salutary step taken by the three armed services but still falls short of our expectations. This would imply that there was no jam yesterday, no jam today and only jam tomorrow,” observed a Division Bench of Justice Sanjay Kishan Kaul and Justice Mool Chand Garg in an order. “It may not be possible to reopen past cases but we can see no cogent reason why at least for women personnel who are still in service, the policy can not be made applicable,” the court ordered. Following High Court’s earlier direction to treat women officers at par with their male counterparts in armed forces, the Central government in September took a policy decision to grant Permanent Commission to those women officers who would be recruited in future in Judge Advocate General and education departments. It was decided that the benefits would not be extended to serving women officers. The direction came on petitions filed by women officers, through counsel Rekha Palli, seeking direction to the Centre to stop alleged discrimination against them in the matter of grant of Permanent Commission.
Bureau Report

Govt goes against HC order, own undertaking
Lalmani Verma Posted: Nov 23, 2008 at 0201 hrs IST
Lucknow, November 22 : Razes Parikalp Nagar colony housing irrigation dept engineers
Contradicting its own undertaking submitted in the High Court this week that it had no plans to demolish Parikalp Nagar (East) colony in Alambagh, the state Government got the flats vacated and razed the entire colony late on Friday night. Defending its decision, the government said the housed were pulled down because their condition was very poor. (See box)
Engineers of the state irrigation department were living in the colony. The demolition drive also violated a High Court ruling, which restricts demolitions between 5 pm and 9 am.
According to eyewitnesses, the Lucknow Development Authority (LDA) and the Lucknow Municipal Corporation (LMC) started demolishing the colony at 12:30 am after police and Provincial Armed Constabulary forces cordoned off the entire locality.

Permanent structures were demolished in the presence of Secretary to Chief Minister Navneet Sehgal who was accompanied by LDA Secretary Mani Prasad Mishra, Joint Director (land acquisition and development) SB Mishra, Additional Municipal Commissioner AC Sinha and other officials from the district administration and the police.
When The Indian Express correspondent reached the site and tried to talk to Sehgal and other LDA officials about the sudden move by the government, they did not comment. Later, the officials directed the police to keep mediapersons out of the premises.
Demolition squads also brought down a few other nearby buildings, including Central Design Directorate, a guest house and a field hostel — which are reserved for department officials.
UP Engineers Association President A Farooqui said the directorate building was demolished without being vacated and hence several important documents including designs of projects, guidelines and Indian Standard codes, got buried in the debris. Farooqui said November 22 was a ‘Black Day’ for irrigation department engineers.
Kamlesh Kumar Dwivedi, who runs an electrical goods shop, near the colony said, “I am conducting my business from this place for the last 12 years. But today morning, policemen are repeatedly forcing me to vacate the shop, even though I have not been provided with any alternate place.”
Parikalp Nagar (East) houses 145 flats and is very close to Buddha Sthal, which is under construction. The engineers, residing in these flats, were asked to submit their options where they would like to be rehabilitated on November 25. By Friday night, however, all the occupants were shifted to different locations including the adjacent PWD colony, OCR Building, Raj Bhawan colony and others.
Govt issues explanationThrough an official release issued by the Information and Public Relation Department on Saturday, the state government said it decided to demolish the Parikalp Nagar housing colony as the condition of these houses was very poor.The government said following complaints from residents, a technical survey of these houses was conducted by a high-level committee before evacuation of the buildings. The survey reported poor condition of houses and office buildings. The irrigation department had submitted before the state Cabinet a proposal to dismantle these houses. The demolition drive was undertaken after the Cabinet approved the proposal of the committee.

HC tells govt to file affidavit
23 Nov 2008, 0331 hrs IST, Vaibhav Ganjapure, TNN
NAGPUR: The Bombay high court’s Nagpur bench has taken serious cognisance of increasing encroachments over public-utility land that has resulted in decreasing breathing space of already crowded city. In a petition moved by the residents of Bezonbagh, a division bench comprising justices B H Marlapalle and Ambadas Joshi has directed the state secretary of urban development department to file an affidavit on steps taken in this regard in four weeks. The bench also asked the secretary to inform in the affidavit whether the government has framed any scheme to regularise illegal constructions. The petitioners — Atmaram Ukey and other residents of Bezonbagh — had filed a plea for alleged inaction on the part of respondents to remove encroachments from the public utility land in the erstwhile Empress Mills and now Bezonbagh. The land was earmarked for the garden, dispensary, roads, and for educational purposes. A multi-storied building for the economical backward classes was also planned on the said land, they claimed. As per the petitioners’ counsel Firdos Mirza, after taking the said land from Empress Mills, the government allotted it to Bezonbag Pragatisheel Kamgar Griha Nirman Sanstha Maryadit. The society entered into an agreement with the collector at the time of taking over the land. As per the sanctioned map and the plan, the entire layout was consisted of four big plots admeasuring 80.09 Acres. In all the layouts, plots for public utility were reserved. The petitioners who were members of the society were allotted the plots as well. However, after some time, the petitioners noticed that illegal constructions are being carried out on the public utility land by some persons including two MLA’s. An enquiry also revealed that the society’s office-bearers have illegally sold those plots. The residents made several complaints to the respondents and also to the governor, but no cognisance was taken. The petitioners claimed that even a map prepared by town planning department shows encroachment on the public utility land that has resulted in residents getting deprived of enjoying civic amenities. During the last hearing, the court had asked collector to file an affidavit on steps for removal of encroachments. However, the court refused to accept collector’s affidavit citing some discrepancies.

Divorced woman entitled to provision for residence as well: SC
23 Nov 2008, 1131 hrs IST, PTI
NEW DELHI: Divorced woman struggling to find a shelter despite getting alimony have been offered succour by the Supreme Court which has held that the maintenance given to them by their divorced husbands should include provision for residence. “Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less to which she was accustomed,” a bench of Justices Arijit Pasayat and Mukundakam Sharma observed. The bench passed the observation while dealing with an appeal filed by Komalam Amma in a civil suit. According to the apex court, the provision for residence may be made either by giving lumpsum money, or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure, the bench said. Quoting Mulla’s Hindu Law, the apex court said that in a Hindu undivided family (HuF) the kartha (manager) of a joint Miakshara family is under an obligation to maintain all male members of the family, their wives and their children. “On the death of any one of the male members he is bound to maintain his widow and his children. The obligation to maintain these persons arise from the fact that the manager is in possession of the family property,” the bench said. The apex court said that a wife is entitled to be maintained by her husband, whether he possesses property or not.

Follow policy conditions strictly: CONSUMER RIGHTS
Pushpa Girimaji
23 November, 2008
WHENEVER you buy an insurance policy, make sure that you read the policy conditions carefully and follow them stringently. I say this with particular reference to motor insurance claims where clients have lost out only because they failed to fulfil some simple policy conditions. Let us look at insurance claims pertaining to theft of a vehicle.In all such cases, clients have to fulfil two important but simple policy conditions: (a) report to the police about the theft immediately; and (b) inform the insurance company without any delay.In a case that came up before the apex court some time ago, for example, the main issue was whether the insurance company was right in rejecting the claim on the ground that the consumer had failed to report the theft of his truck to the police for several months.It was quite possible that the aggrieved person was doing his own investigations and was sure of tracing the vehicle, and, therefore, did not file a first information report with the police. Whatever the reason, eventually, when he filed his claim papers, one of the first objections raised by the insurance company was that he had not reported the theft to the police immediately and, therefore, the claim ought to be rejected. The apex court, too, agreed with this view.Now in a recent case decided by the national consumer disputes redressal commission, the central issue was whether the insurance company was justified in rejecting a claim on the ground that the consumer did not report the loss of vehicle to the insurance company immediately. In this case, following the theft of the vehicle parked in front of his house, the client lodged a police complaint without any delay. But he did not report the theft to the insurance company. He might have thought that he needed to inform the police only. It is also obvious that he was not aware of the policy condition. So when he eventually asked the insurance company to make good his loss—the vehicle was insured for Rs 1.85 lakh—the insurance company pointed to condition number 1 of the policy, which required the customer to inform the insurance company of the theft immediately, and said it was, therefore, rejecting the claim. The district consumer disputes redressal forum, before which the client had filed a complaint, came to his rescue and said since the theft was established and the police had closed the case, saying that the car could not be traced, the insurer was not right in repudiatingthe claim.However, on the ground that the consumer had violated the policy condition and reported the theft to the insurance company only four months after its occurrence, it directed the insurer to settle the claim on non-standard basis at 75 cent of the loss. It also directed that the insurer pay 12 per cent interest on the amount. (Oriental Insurance v. Parvesh Chander Chadha, RP No 496of 2005).Thus, for a theft that had taken place in January, 1995, the aggrieved person had to fight a long legal battle spanning over 13 years, and even then, got only 75 per cent of the claim amount, all because he had not followed a simple policy condition of writing to the insurance company about the theft.So, whatever the policy, always read the conditions stipulated in the policy and follow them without fail. Of course, if the conditions are patently unfair, then you can always bring these to the notice of the Insurance Regulatory and Development Authority (IRDA). The courts may also come to your aid if you have failed to follow a condition that is highly unfair and one-sided. But there is no escape in so far as certain basic policy conditions such as reporting the matter to the insurance company and the police are concerned.
Source:-Sunday, November 23, 2008 Spectrum The Tribune
Posted by Deepak Miglani

Tax relief on interest from accident tribunal
T. Banusekar
I am a widow aged 40 years. My husband passed away in a road accident in 2001. In 2007, Motor Accidents Claim Tribunal awarded me a compensation of Rs 7.22 lakh along with an interest of Rs 3,28,920. The insurance company issued a TDS certificate for deducting Rs 33,880 on the interest payment. The interest belongs to the period 31.07.2001 to 28.02.2008.
As the award was issued in 2007-08, tax was deducted at source on the interest in 2007-08. I have no other income other than the interest from the compensation deposited.
Will I be able to claim refund or relief in respect of the tax deducted at source of Rs 33,880 on the basis that the interest received is for 78 months since 31.07.2001 and that if the same is bifurcated the proportionate interest would be much lesser than the maximum amount not chargeable to tax in each of the years from 31.07.2001. — Meera Raj
You would be well within your rights in seeking to spread the interest over the period to which it relates. The interest belonging to the various years would get assessed in the respective years whereby your income may be lesser than the maximum amount not chargeable to tax. In such a case, you would also be entitled to refund in respect of the tax deducted at source.
I have contributed Rs 10,000 each for three years from 2005 in Bajaj Allianz Insurance Easy Gain Pension Scheme. Now after completion of three years I have the option of surrendering all the units and exiting. The fund value is about Rs 44,000 now.
I understand that if income-tax benefit for the original contributions has been claimed u/s 80CCC, then the whole amount of the surrender value, i.e. Rs 44,000, will be my taxable income if I exit from the scheme now. Is this correct? What would be my tax liability if I had claimed the benefit u/s 80C? — V. Subramani
The sum received on exit from the scheme will be taxed in your hands as income. Section 80CCC(2) provides that if the amounts standing to the credit to the fund are received on surrender or as pension, the same will be taxed in the year the withdrawal is made or pension is received.
You may note that in respect of the sums received out of investments made for the purpose of claim of deduction u/s 80C, the same will not apply. In such cases it may be only the excess over the sum invested that would be taxable. The return of the sum invested will not be taxable like in case of an amount received from an investment towards the pension fund which qualified for deduction u/s 80CCC and where such deduction has been claimed.
I jointly own a house property with my wife. We availed a loan for construction of the house. The interest on the above loan amounted to Rs 3,08,000 for 2007-08 which was paid by us equally.
I understand that Rs 1,50,000 is eligible for deduction u/s 24 in respect of interest payments for a self-occupied property. Are we eligible for a deduction u/s 24 of Rs 1,50,000 each or Rs 75,000 each? — S.S. Binulal
You and your wife will be eligible to claim a deduction of Rs 1,50,000 each though you are the joint owners of the self-occupied property.
I had taken a housing loan a few years ago and had pre-closed it by taking a loan from my father. I am repaying my father the principal along with interest. Will I be able to claim tax benefits in respect of the principal and interest payment on the loan taken from my father? — Neeraj K.R. Sharma
The interest paid to your father will be eligible for the claim of deduction u/s 24 in computing the income from house property. The deduction u/s 80C in respect of the principal repayment of the housing loan will however not be available to you as to claim the deduction u/s 80C, it is necessary that the loan must have been taken and the repayment made to certain specified institutions.

Pending cases no ground for stopping promotion, says tribunal–says-tribunal/389409
Mohan Kumar Posted: Nov 23, 2008 at 0037 hrs IST
Mumbai, November 22 : The Government cannot deny promotion to an officer on the ground that he had been placed under suspension and as cases were pending against him, the Maharashtra Administrative Tribunal (MAT) has ruled in a case.
This comes at a time when the Bombay High Court, hearing appeals on the matter of DGP AN Roy’s appointment, is looking into the government’s stand of not considering S S Virk for the top post as he was once placed under suspension.
The MAT case pertains to the Lohar brothers, accused in MPSC scam. Sunil Bharadwaj, Deputy Superintendent of Police (Protection of Civil Rights), Manoj Lohar, Additional Deputy Commissioner (State Intelligence Unit) and Nitin Pawar Lohar, Vice Prinicipal, Police Training School, had approached MAT after the Home Department denied them promotion even though the Departmental Promotional Committee found them fit to be promoted, subject to the outcome of the pending criminal cases.
The Lohars were terminated from service after the MPSC decided to cancel their nomination following allegation regarding caste certificate and manipulation of records in connivance with MPSC employees.

The high court had in 2007 quashed the MPSC order following which they were reinstated in September 2007. The MPSC and the government then challenged the HC decision in the Supreme Court, which is still to grant a stay.
Lawyers M D Lonkar and Samir Vaidya, appearing for the brothers, cited an apex court judgement before the tribunal which observed that “promotion can be denied only where a chargesheet or a criminal case has been filed.”
The tribunal observed since no chargesheet has been filed and the Anti-Corruption Bureau has found no evidence, the government’s stand is not tenable. “In the face of these facts, it is difficult to sustain the government decision to deny promotion only because of cases pending before SC or the criminal case under investigation by the ACB,” the tribunal held.


5 Responses

  1. dear sir,
    My brother is a project manger in industries department of j&k govt. He is appointed as a I.P.o ( industrial promotion officer ) in 1979. In 1985 he put in the grade of project manager in his own pay scal. in 1990 a FIR has been logeed against him by vigilance department. and govt can not releases his grade of project manager.But he is continusley working as project manager in his own pay scale. in 1996 his mates can prometed as gernal manager and inducted in K.A S and also gave them selection grade. In 1999 vigilance produce charge sheet in vigilance court at jammu. in 2006 his mates again prometed as joint director . in 2009 vigilance court aquitted him from the charges againgt him. and after 5 months the govt files an aquitted appeal in the high court of j&k at jammu .
    my question is that can govt give him hia all benifits from 1985. as he is continusely working in his department without any break.

    • Yes, if he had been acquitted by the court and had been providing his services, he is entitled to all the benefits and promotions as per original, subject to the departmental rules.

      • respected sir,
        please send me the supreme court order or any other judgment of apex court. because govt. can not gives him benefits on the grounds that we file an acquittal appeal in the high court at jammu. , but till date the acquittal appeal can not condone by the high court .
        please sent me information on my e mail id

        • Dear Bharat Mansotra,

          It is not possible to give you any advice without knowing the case properly. You may call me in my number 9312079439 is you think want to talk to me.

    • Yes, if the allegations against him have been found to be false and he had been acquitted by the court and he had been providing his services and was not absent, he is entitled to all the benefits and promotions as per original, subject to the departmental rules.

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