My Quora Answer to: How can I sue a doctor in India for medical negligence?

Read the following paragraphs from the Supreme Court Judgment, before taking a decision of suing the doctor.

94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV.    A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
 

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.

Source: Supreme Court of India : Kusum Sharma & Ors vs Batra Hospital &Med.Research ... on 10 February, 2010 Bench: Justices Dalveer Bhandari, Harjit Singh Bedi

And again, in the Judgment - Supreme Court of India - Nizam'S Institute Of Medical ... vs Prasanth S.Dhananka & Ors on 14 May, 2009 Bench: Justices B.N. Agrawal, Harjit Singh Bedi, G.S. Singhvi

(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam case (1957) 2 All ER 118 (QBD)holds good in its applicability in India.

Further in the same case as above,

32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence. In Savita Garg (Smt.)vs. Director, National Heart Institute (2004) 8 SCC 56 it has been observed as under:

"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."

In conclusion, my answer to your question would be, you can approach the Consumer Forum, where you don’t have to pay any Court Fee on your claim, and you may win the case with substantial evidence on your side. For the degree of evidence that is required to win a claim of Medical Negligence see the explanation above. Whether you have winning stuff in your case or not, can be best diagnosed by a independent, equally qualified Doctor, and not a lawyer. Approach a doctor first, and then with his opinion, approach a lawyer or directly the Consumer Forum of your district.

Disclaimer: The opinion expressed above, based on assumptions, is not tantamount to Legal Advice.

My Quora Answer about Action against Bank Officers

My Quora Answer to:

What sort of legal action can be taken against bank officers for continuously ignoring unfair trade practices complaints? What sort of legal action can be taken against bank corporate office for not taking any action against it's own officers?

If your bank does not address your complaint within a month, you can approach the banking ombudsman. This is a senior official appointed by the Reserve Bank of India to redress customer complaints against deficiency in banking services, as per its scheme introduced in 1995. All scheduled commercial banks, regional rural banks and scheduled primary cooperative banks are covered under the scheme. So far, there are 15 ombudsmen, whose offices are located mostly in state capitals. Their addresses and contact details are available on the RBI website. You have to file the complaint at the office of the ombudsman under whose jurisdiction your bank branch is located. The grievances relating to credit cards and other types of services with centralised operations are to be filed with the ombudsman in whose territorial jurisdiction the billing address of the customer is located. You can put it down on a plain paper, send an e-mail, or fill the complaint form on the RBI website. There are no charges for filing a complaint.

Source: How to file a complaint against your bank

The Banking Ombudsman Scheme is an expeditious and inexpensive forum for bank customers for resolution of complaints relating to certain services rendered by banks. The Banking Ombudsman Scheme is introduced under Section 35 A of the Banking Regulation Act, 1949 by RBI with effect from 1995. Presently the Banking Ombudsman Scheme 2006 (As amended upto July 1, 2017) is in operation. [1] The addresses of the Ombudsman are here : link . Before filing the complaint, have a look at the types of the cases handled by the Banking Ombudsman, listed here.

Hope this answers your question.

Footnotes

[1] Frequently Asked Questions

My Quora Answer to : Can an IA be filed while a court case is under CAV (i.e., judgement reserved)

My Quora Answer to : 

Can an IA be filed while a court case is under CAV (i.e., judgement reserved)

If only absolutely necessary, and is inevitable.

An Interim Application can be filed, when the case is reserved for passing Judgement, provided it is not amounting to abuse of process of the Court, and it is in the interest of justice.

Supreme Court J. P. Sathasivam, Jagdish Singh Khehar, have opined in their judgment in “M/S Bagai Construction Tr.Prop vs M/S Gupta Building Material Store on 22 February, 2013”:

“19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

12) After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.[1]

Also, Karnataka HC - J. N Jain, V Sabhahit in “Rabiya Bi Kassim M. vs The Country Wide Consumer ... on 5 April, 2004” reported at ILR 2004 KAR 2215, and 2004 (4) KarLJ 189:

Even if we assume it for the sake of argument without accepting, in view of the amendment in CPC, as we find, the law relating to procedure in suits and civil proceedings are governed by CPC, The CPC has been amended from time to time.

Recently also, in order to cut short the delays at various levels in disposal of civil cases, CPC was amended by the Amendment Act of 1999 with effect from 1.7.2002.

In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant's evidence and ultimately the case was heard and reserved for judgment on 20.6.2001.

In our view, if the matter is reserved for pronouncement of judgment, such an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases.[2]

It is seen by all, and also observed by the Courts that one of the major causes of delay in decision of suit, is the practice of seeking and granting time, delaying in filing of written statements and objections, filing excessive number of Interim Applications, delaying leading of evidence, and seeking adjournments for frivolous reasons.

The Supreme Court in ARJUN SINGH v. MOHINDRA KUMAR, has held that once the matter has been finally heard and posted for judgment, the Court has only to pronouncement the judgment.

After the deletion of the Clause (4) of Order 18 Rule 2

it clearly shows that it is not the intention of the Legislature to permit filing of the interlocutory application, even after the arguments are heard and the matter is reserved for pronouncement of judgment, and therefore, such interlocutory applications cannot be entertained..[3]

Footnotes

[1] M/S Bagai Construction Tr.Prop vs M/S Gupta Building Material Store on 22 February, 2013

[2] Rabiya Bi Kassim M. vs The Country Wide Consumer ... on 5 April, 2004

[3] Arjun Singh vs Mohindra Kumar & Ors on 13 December, 1963

We, The People. ... saw 400 deaths everyday in 2015 Road Accidents!

An official report, released by Union Road Transport and Highways Minister Nitin Gadkari on Thursday, said 1.46 lakh people were killed in road accidents in India in 2015 — an increase of five per cent from 2014.

Road accidents, as a whole, rose 2.5 per cent during 2015 to 5.01 lakh or 374 accidents every day, claiming 400 lives, the report said.

Majority (54.1 per cent) of those killed in 2015 were in the age group of 15-34. Thirteen States, including Tamil Nadu, Maharashtra, Madhya Pradesh, Karnataka, Kerala and Uttar Pradesh, accounted for the highest number of accidents. Among cities, while Mumbai had the highest number of accidents (23,468), Delhi saw the most number of such deaths (1,622).

Also, drivers’ fault was responsible for 77.1 per cent of the accidents, deaths and injuries, mainly because of overspeeding, the report noted.

So many were not killed even in wars, epidemic and militancy,” Mr. Gadkari said.

Source: http://m.thehindu.com/news/national/146-lakh-lives-lost-on-indian-roads-last-year/article8710699.ece

India's Business set-up Bottlenecks

Building a factory in India is not for the faint hearted. 

Even if a company is fortunate and manages to buy land - which, by the way, is becoming more and more difficult, expensive and time-consuming due to complex laws, people's rising expectations and local politics - that is just a start. 

A manufacturing company in India, on average, has to comply with nearly 70 laws and regulations. Apart from the multiple inspections, it has to file around 100 returns in a year, according to a 2013 report by consultancy firm Deloitte. 

Then there is the double maze of tax and labour laws that can be a big pain even in the best of times. Poor infrastructure does not help either. 

Will the NDA government, whose economic programme hinges on boosting the manufacturing sector, be able to bring about the required change? 

Will it be able to debottleneck the process of setting up and running a factory in the country so that its plan to create millions of new jobs in manufacturing sees the light of day? 

Problems in acquisition of land, delays in environmental and other clearances and infrastructure bottlenecks have taken a toll. 

In the past five years (2011 to 2015), new projects have seen a marked reduction of 44 per cent from the period between 2006 and 2010. The value of stalled projects more than tripled during the period. 

Worse, straddled with huge distressed assets, core sector companies are more concerned about avoiding default rather than making fresh investments. 

As a result, India's investment-to-gross domestic product ratio has fallen for five straight financial years now. 

The NDA government has tried to correct this through a massive increase in investments to build infrastructure. It is likely to follow this policy in the coming Budget, too.

Source -http://www.businesstoday.in/magazine/features/indias-manufacturing-hub-plan-is-in-a-host-of-problems/story/229415.html 

Court Practice or Corporate Jobs....

Law students seem to be having a gradual change of mind and heart, which is good given the shortage of lawyers in the country. Students are slowly realizing that litigation is more gratifying both personally and professionally.

Bruinda Rao (28) graduated from the premier National Law School of India University in 2011 and bagged a job with a reputed law firm in Bengaluru. A year later, she made it to the prestigious Oxford University to pursue civil law. Bruinda came back in 2013 to take up litigation, and now practises at the Karnataka high court. "I have a greater sense of satisfaction today, much more than I got from a fat paycheque," she said.


Bruinda represents the new tribe of law students who take the corporate plunge after getting their law degrees but are quick to get back to their passion — litigation.

NLSIU vice-chancellor Prof R Venkata Rao said: "There is a belief that brilliant students choose lucrative corporate jobs over litigation. Five years ago, this was the truth but today the scenario has changed. Now, psychological satisfaction takes precedence over monitory bliss. Earlier, in a given batch of 75 students, the majority opted for corporate jobs. Today, at least 25 pick careers in litigation, join NGOs or human rights groups."

Last year, five of NLSIU alumnus were designated as senior judges at the district court as well as the high court. The public prosecutor in the Nirbhaya case is also an NLSIU alumnus, Rao stated.

Echoing Prof Rao's views, Sajan Poovayya, senior advocate at the Supreme Court and former additonal advocate general of Karnataka said: "The trend seems to have changed as compared to 20 years ago. But even today, corporate jobs are preferred over litigation. However, law students seem to be having a gradual change of mind and heart, which is good given the shortage of lawyers in the country. Students are slowly realizing that litigation is more gratifying both personally and professionally. The payscales in ligitation may not match those in the corporate sector, but the satisfaction one gets is something that money can't buy.''

At University Law College, more than 80% of the students go in for litigation, out of which over 40% are from a rural background. "We encourage our students to opt for litigation as there is a dearth of good advocates. Former Chief Justice of India MN Rao Venkatachaliah and former Justice of the Supreme Court are students of University Law College. While the salaries and the struggle period may deter some from pursuing litigation, those who are passionate about it go ahead nevertheless,"said Dr Suresh V Nadagoudar, principal.

Experts believe that paycales have improved in litigation. "Our college witnesses an equal number of students opting for litigation and corporate jobs. While those into co-curricular activities join the corporate sector, those who have connections in litigation often choose the bar," said prof Sreenidhi KR from CMR Law School.

TAKING HEADS

"Almost 60% of our students pursue careers in litigation, 20% join corporate firms and the remaining opt for higher education in foreign universities. But those who land corporate offers seem to get bored within 2-3 years. This is mainly because of job and psychological dissatisfaction." - A G Asha, principal, Seshadripuram Law College

"Students with a lawyer in the family or contacts in litigation find it easier to establish their careers while others may have to struggle. But today, we are seeing almost the same number of students opting for corporate jobs and and litigation." - Dr Seema Surendran, principal, BMS College of Law

"While most students choose corporate jobs, we also have an increasing number of girls interested in litigation, especially when it comes to anti-human trafficking. We also get some prominent lawyers to talk to students about litigation being a prospective career path." - AP Porkodi, Principal, Bishop Cotton Women's Christian Law College.




Source -Times of India

Law ministry lists ways to reduce backlog - A Rehash of the same old Story?

Seems like an Old Read....
Would have helped if the previous Governments had given it a serious thought to Ramp up the Justice Delivery System in India.

From the Times of India dated:Jan 29, 2015, 06.47 AM IST

The law ministry has drawn up a list of good practices followed by some of the high courts (HC) and circulated them recently to chief justices of all HCs to implement the same as part of a common action plan to bring down pendency of cases, particularly those which are older than five years.

Setting up fast track courts, designating a special day in a week for disposal of older cases and adopting a case flow management system are some of the measures the Centre has suggested to all chief justices of high courts to be adopted for reducing pendency.

The government has also highlighted best innovative initiatives undertaken in many other countries to address the backlog. Encouraging pre-trial proceedings by several countries prior to commencement of the trial, court performance measurement and monitoring and mandatory prior notice in civil cases are some of the initiatives suggested.

In the pre-trial proceedings, followed in some countries, a meeting is arranged in chambers between judge, counsel for accused, and the prosecution and specific issues of trial are narrowed down in order to save time.

Regular assessment and monitoring of performance of courts is an effective way to bring about improved efficiency, transparency and accountability in judicial system. The law ministry suggests this could be done by introducing measurement indicators based on globally accepted benchmarks such as leadership and management, court planning and policies, court resources, court proceedings and public trust and confidence.

The government has also suggested mandatory prior notice in civil cases that would help in speedy trials. For this it has mooted a provision similar to section 80 of the Civil Procedure Code (CPC) for all categories of civil cases.

Section 80 of the CPC requires that a litigant must give two months' notice to the concerned party. The government thinks introducing this guideline by the court would help in curtailing unnecessary litigation.

Among the good practices followed by some of the HCs, the Allahabad HC has come in for praise for organizing Lok Adalats regularly during weekends. More than 3.22 lakh cases have been settled in 766 Lok Adalats in the state during March-June 2014. The largest HC in the country has also set up 171 reconciliation and mediation centres in districts with the help of the state government.

These mediation centres have settlement rates of 26%. The HC has also proposed to set up 81 fast track courts for trial of rape cases.

IPL, Natural Disasters And Morality - Ranjeev Dubey

A well written Article - IPL, Natural Disasters And Morality:

"When social elites endorse immoral conduct, society cannot have moral underpinnings. 

When social elites don't act on their professed ethical constructs, pointing fingers at politicians and celebrities at best comes off as part of weekend time pass.

If we want a society that genuinely strives to a better and higher moral standard, we will have to put the interest of the group taken as a whole above our dharma, as a warrior, a corporate executive or even as a father. 

That is a huge cultural shift and till we can all get there, all the indignation and the hysterics is just purgation."

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Facts about 0% EMI Finance Schemes | InvestmentYogiInvestmentYogi

Facts about 0% EMI Finance Schemes | InvestmentYogiInvestmentYogi:


This festival season you might have decided to upgrade your television set from LCD Flat Screen to LED Smart Television or purchase Samsung Note Book / Apple Iphone / Nokia Lumia replacing your old Android Mobile Handset, etc. Attractive promotional schemes from manufacturing companies and retail stores will roll out in the market from this week as Navratri – the first festival of the season is commencing from 5th Oct, 2013 followed by Dussehra, Diwali and Christmas. When we look at the statistics of last few years, purchase of consumer goods through 0% finance schemes has attracted many customers and sales through this scheme has contributed 20-30% to top-line for retailers in the market. However, before you take a decision to purchase consumer goods and get trapped in some promotional offers we recommend avoid 0% emi finance schemes offered by banks or credit cards because there are some hidden costs and disadvantages attached to it, which we will discuss in this article. Now, RBI has also stepped in from 24th Sep, 2013 to halt 0% finance schemes offered by banks to purchase consumer goods.

Disadvantages of purchasing consumer goods on 0% finance schemes are as follows:

1) Processing and documentation fees

Banks charge one time processing and documentation fees from customers, while purchase on 0% finance schemes. The fees vary from bank to bank, but will be in the range of Rs 500 to Rs 1,000. So, this will be additional cost on products you have purchased.

Take an example, Mr Abhishek opts to purchase 42 inch LED Smart Television Set which costs Rs 60,000 from store. Now, he applies for 0% finance scheme to pay monthly EMI on his purchase. To apply for the EMI schemes, he shells out additional cost of Rs 1,000 against processing and documentation charges. Now, his LED set would cost him for Rs. 61,000 (inclusive of processing charges).

2) Pay interest rates on your purchase

As per information gathered from various retail stores, it can be said that banks are charging hefty interest rates from customers while purchase on these finance schemes with 0% EMI. Interest rates vary for six months and nine months tenor among banks. These interest rates are as follows:

Banks                         6 months tenor     9 months tenor

State Bank of India  4.25%                     6.35%

HDFC Bank               5.2%                        7.25%

ICICI Bank               4%                            6-6.15%

Now, after RBI intervention in the 0 interest finance schemes to purchase consumer goods, banks such as SBI, Axis bank, Kotak Mahindra, etc have already withdrew zero percent facilities.

Taking forward Mr. Abhishek’s example, the cost price of Rs 60,000 for LED will have additional cost of interest expense over it. So, consider if he had opted to purchase LED with 6 months tenor (EMI instalments) from ICICI bank. The interest rate applicable will be 4% on his purchase. Now, EMI for 6 months will be Rs 10,117. So, at the end of 6 EMIs, total amount he pays off is Rs 60,702. So, purchase of RS 60,000 has now led him to pay additional cost Rs 1,702 (Rs 1,000 processing fee + Rs 702 interest cost).

3) Losing out on discount while shopping

Retail stores and shop dealers on roadside offer discount when you opt to purchase through cash or debit card. This discount varies on your negotiation skills and brand of the product you opt to purchase. I did a survey in few retail stores and dealer shops to understand cash discount they are ready to offer if shown interest to book the order immediately and pay full amount by debit card. Retail stores offered me cash discount in the range of 3-5% on purchase of LG, Panasonic, Toshiba, Onida, etc LED sets. On the other hand, dealer shops on roadside offer cash discounts between 5-10% while purchasing similar brands and models from them. But, getting a discount on Sony and Samsung LED’s is a difficult task as they are market leaders and have marginal operating price across all retail / dealer stores in India. However, it’s possible to get a price break or complementary gifts of Rs 2000 to Rs 2,500 on Sony and Samsung LEDs, but require smart negotiation skills to deal with the Store manager / Associates.

Next time, before stepping into a retail store to purchase any consumer good, get a best price for the same product from a nearby dealer store. Then, take a decision to purchase from a store which saves money from your pocket and gives better sales service.

Here, we can say Mr. Abhishek missed an opportunity to save Rs 3,000, assuming 5% cash discount on purchase of Rs 60,000 LED set. Instead, he paid Rs 61,702 for LED costing Rs 60,000 in the market.

Set your preferences before stepping out for shopping consumer goods

There are few questions which you require an answer to, before stepping out to purchase any consumer products in the market. There is a high probability you will be confused with various brands and features in the market. So, take an example of Mr. Abhishek, who decides to purchase LED television set. The points he would discuss with his family / wife will be:
Size of the LED set required to be installed in drawing room
Should we give preference to brand or additional features at best price?
Whether we want to buy from retail store or nearby dealer shop?
Payment option i.e. 0% emi finance scheme or cash (debit card)?
Set a budget price for consumer product you intend to purchase.

Based on a survey at few retail and dealer stores, I would like to share some insights as follows:
Associates at these stores tried to push products which have attractive features and gives them better commission (profit) on sales if you have not decided your preference before stepping out for shopping.
Associate gives demo of branded LEDs like Samsung and Sony on request but makes them inferior in features while compare to other brands like LG, Panasonic, Toshiba, etc. Also, prices of Samsung and Sony are much higher compared to other brands, so consumer easily gets diverted to other known brands while purchasing to get additional features at discounted price compared to branded market leaders. So, here if you have set your preference clearly, you will not fall in the trap of seller while shopping.

Conclusion

Let us calculate in table the total savings Mr. Abhishek will have from purchase of LED on cash with discount.

Particulars      Purchase on 0% finance schemes         Purchase on cash with discount
Cost price of LED (Rs)                 60,000                                             60,000
Add: Processing Fee (Rs)                  1,000                                             0
Add: Interest Payable (Rs)                 702                                                 0
Less: Cash Discount (@5%)                  0                                               3,000
Total Cost (Rs)                   61,702                                                         - 3,000
Total Savings (Rs)                4,702
Additional Expense Incurred (%) 8% (approx.) by opting for 6 months financing scheme


With purchase on cash, Mr. Abhishek has saved Rs 4,702 as computed above. This saving can be utilised for other expenses (shopping) or invest in short term FD to earn cumulative interest. So, for consumer benefit, RBI has also intervened and is now against 0% finance schemes on emi offered by banks at retail / dealer stores. They want shoppers (consumers) to do shopping on debit card/cash and get additional benefit of discount from stores. So, improve your negotiation skills to get the best price for consumer goods of your preference and enjoy your shopping in this festival season….!!!!!

The author has presented his personal views in this article through knowledge and interaction with people at few retail/dealer stores in Mumbai.

About the Author:

Hiral Thanawala is a PGDM (Finance) graduate and Certified Financial Planner with an experience of over 5 years in equity market and personal finance domain. He can be reached at expert@investmentyogi.com
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Contract Law: A Unique solution for corruption free politics - An Interesting Read

National development of a country is based on a sound social, economic and political system and it can sustain only when these systems are free from corruption, specially politics. Corruption is the synonym of politics today. Politicians have forgotten their legal and ethical duties towards the people and towards their nation. During elections they promise to provide a better government to the nation but after winning, they remain engaged in scams, corruption and other illegal activities. To curb these activities Indian Penal Code, Prevention of Corruption Act, etc have been enacted but all in vain because administration of law and justice becomes puppet before their muscles and money power. The Lokpal law was considered to be the ray of hope but its demand is still not fulfilled by the government. In this paper an attempt is made to present a totally different legal weapon to fight against corruption, not in criminal law but in civil law, especially in The Contract Act 1872. This Act has capability to be the best to eradicate corruption from Indian politics.
The landmark decisions of Hon'ble Courts in Balfour v Balfour, Carlill v Carbolic Smoke Ball Company and many more are in support of this view. Lokpal and other laws will be required no more if this Act is applied. Lord Stovel had said that contract is not a joke to pass time; it is that powerful medium by which we can explore the "Right to reject" and this right is the demand of present. The author through this paper is exploring the hidden power of the Contract, which can stop corruption in Indian politics and also suggesting the minor changes required to make this Act capable to be the best anti corruption law of India.

Introduction
The whole India is suffering from a disease popularly known as "corruption" and it is now on incurable stage due to its corrupt political system. Therefore removal of corruption from politics is the most important task (the giant task). Here the question is "what is corruption?" 

Corruption Corruption is an act which is done with intent to give somebody (including himself) undue benefit and which is inconsistent with the legal and official duties and the rights of people. It is understood an act against law; such as, giving money to get a government job or to get a judgment in one's favor etc. It includes bribery, supply of girls etc.
In a simple word corruption means to get work by means of illegal gratification. Politicians of India were not corrupt at the time of its transformation from slave country to democratic country .Mahatma Gandhi, Sardar Patel, Lai Bahadur Shastri etc. were some of them. But India is that unfortunate country where above great leaders took birth and presented a value-based ethical politics, is now facing the problem of corruption. As we all know that India has a system of Executive Parliament, therefore, Centre Government, State Government, their offices and even Public Corporations are not untouched by the untouchable disease of political corruption. This political corruption has polluted not only the government acts but also the industries, educational system, society and even the valued culture of India's age long civilization. 

According to the report of Transparency International's CPI of 2012, India's image on tackling corruption has not improved. In the list of most corrupt countries it is at 94th position out of 176 nations. Recent example is helicopter deal scam, while 2 G spectrum case, fodder scam (Chara Ghotala), uniform scam etc. are already well known scams. Thus corruption is that cancer like disease which has developed its poisonous roots in the nation's body and is killing its life. Contract In a general sense contract means a deal between two parties. In The Contract Act 1872 under section 2(h) it is defined as an agreement enforceable by law is a contract. When we try to understand it we find two phrases in this definition. The first is "enforceable by law" that means legal assistance and protection is available on dispute, while second is an agreement which is defined in section 2 (e). This section states that every promise and every set of promises, forming the consideration for each other, is an agreement.
Here we again find two key words in this definition.
The first is consideration which means something in return while another is promise which is defined in section 2 (b) and states that when offer is accepted it becomes a promise. Promise is also having two key words, one is offer and the second is acceptance. It is here not noteworthy that for offer and acceptance at least two parties are required. Section 10 of The Indian Contract Act 1872 says that these parties must be competent according to the Indian Majority Act 1875, and their agreement must be based on free consent with lawful consideration and for lawful object.
Contract Law:
How Capable to Fight Against Corruption in Politics Now the question arises that how Contract Law is capable to eradicate corruption from Indian politics. To understand it we have to look the essentials of contract, as prescribed in section 10 and in other provisions of ICA 1872. It can be presented as follows:
Competent Parties Offer and Acceptance. Not based on family or social relationship. Terms and Condition must be certain Received free consent of parties. Agreement must not be declared void by law. Consideration and Object must be lawful. Time and place must be certain. Analysis of Politics as Contract (during elections) Politics during elections is contract because it has all the features of contract, for this we analyze the politics during elections on the basis of essentials of contract required under section 10 and above mentioned description.
Offer in Politics during election Section 2(a) of Indian Contract Act defines it as When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal. Here at the time of election the contesting politician makes proposal/ offer to the people that he would give a fair and corruption free governance, employment, education, health facilities to the people if public cast vote in his favor and make him winning candidate. It is an express offer and communication of this offer is also completed by means of propaganda. Acceptance in Politics during election Section 2 (b) of this Act defines it that When a person to whom the proposal is made, signifies his assent thereto, the proposal is said to be accepted. Here when a candidate is won it means his offer was accepted by the people and in such a manner as prescribed by the offerer. It is notable here that, politician's offer was of general nature because it was given to the people. Rules regarding communication state that acceptance must also be communicated in such way as offer was communicated. But in Carlill v Carbolic Smoke Ball Company [1893] Q.B. 256 (C.A.)'s case the court decided that for general offer, communication of acceptance is not necessary.
Facts of this case in brief are as follows:
Carbolic Smoke Ball Co. manufactured and sold The Carbolic Smoke Ball by placing ads in various newspapers and offered a reward of 100 pounds to any person who after its contract influenza, colds, or any other disease. Carlill purchased and used it as directed but contracted influenza and made a claim for the reward. Carbolic Smoke Ball refused to pay and plead that the acceptance was not communicated by Carlill, The court held that a person who makes an offer may decline to require notice of acceptance if he or she wishes. To accept an offer, a person need only follow the indicated method of acceptance. If the offerer either expressly or impliedly intimates in his offer that it will be sufficient to act without giving notice of acceptance, performance is sufficient acceptance without notification. Therefore Co. was liable One may ask a question here that his election winning was caused by the votes of only a part of people not by the whole of population; thus, his offer was accepted only by a few people which cannot be identified so why should he be bound for all. It has two answers.
Firstly the people is a group and is one party and if majority of that group has expressed their intention by giving him votes more than other candidate, that must be considered unqualified acceptance. In this reference it is notable that if for acceptance, people's full voting be only considered than in same condition India cannot be called a democratic country in literal sense (i.e. government of people for people and by people) because here too the government is not formed "by the people" but by the majority of people e.g. the current UPA government is a result of votes of majority of people not by whole people so what about the people who gave vote to BJP or others. Therefore, his winning is acceptance from other party i.e. people of India.
Secondly the remaining people is stranger to consideration (that means beneficiary); therefore they also Section 2 (b) also states that A proposal, when accepted, becomes a promise.
The offer of that politician has been accepted by the people; therefore, it has become a promise. People's promise to give him vote (which was performed as he has been elected) and politician's promise to provide a fair and corruption free government (now it is his turn to fulfill the promise). Consideration in Politics during election As per section 2 (d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise. This contractual requirement is also fulfilled in the situation because fair government is consideration for people while seat in election is consideration for that politician.
These considerations are not unlawful, immoral or opposed to public policy as per under section 23 ICA. Legal Relationship in Politics during election In the landmark case of Balfour v Balfour [1919] 2 KB 571 the court held that contract must not based on family or social matters like domestic arrangement, invitation for picnic etc. The facts of this case in short are that Mr. Balfour is the Defendant and Mrs. Balfour is the Plaintiff. The two lived in Ceylon and visited England on a vacation.
The plaintiff remained in England for medical treatment. The defendant has agreed to send her a specific amount of money each month until she could return. The defendant later asked to remain separated. Mrs. Balfour sued for restitution of her conjugal rights and for alimony equal to the amount her husband had agreed to send. Mrs. Balfour obtained a decree nisi and five months later was granted an order for alimony. The lower court entered judgment in favor of the plaintiff and held that the defendant's promise to send money was enforceable. The court held that Mrs. Balfour's consent was sufficient consideration to render the contract enforceable and the defendant appealed. In appeal it was finally decided that social agreements are not contract, intention to create legal relation is an essential element of a contract and in this case, there is no intention to create a legal relation. The question is, whether voting and contesting in election is social or family matter or a legal matter. Answer is that it is a legal matter based on creating legal relationship; therefore, this requirement is also fulfilled. In other words the court hereby not denied that political matters are based on legal relationship.
Competent Parties in Politics during election According to section 11. Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject. It is beyond any doubt as voters age and contestant's age is already fixed which is 18 years or above. Parties must not be of unsound mind or disqualified by law under ICA. This requirement is also required for contesting election. Free Consent in Politics during election.
Under section 14 0f ICA it is defined as:
Consent is said to be free when it is not caused by-
1. coercion, as defined in section 15, or
2. undue influence, as defined in section 16, or 
3. fraud, as defined in section 17, or 
4. misrepresentation, as defined in section 18, or
5. mistake, subject to the provisions of sections 20, 21, and 22. 

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation, or mistake. In election people cast their vote without any coercion, undue influence, fraud, misrepresentation, or mistake and The Election Commission of India does all efforts to make it free and fare.
Thus this element is also present in election process. Lawful Object and Consideration in Politics during election Under Section 23 of ICA it is provided that The consideration or object of an agreement is lawful, unless -
1. it is forbidden by law; or
2. is of such nature that, if permitted it would defeat the provision of any law or is fraudulent; or
3. involves or implies, injury to the person or property of another; or
4. the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. Here participating in elections is not unlawful, immoral or opposed to public policy. Not Declared Void by Law Participating in elections is not that type of agreement which is declared void by law Other Requirements All other features of a contract are also present in elections like certain terms and conditions, time and place etc.
The Indian Contract Act:
The Best Anti Corruption Law In the above mentioned facts we find that the whole election is nothing except contract. Therefore the author is of firm opinion that why election should not be declared a contract and applied The Contract Act. The question is that how will it work? As it is already discussed that politician promised the people for a fair government and people promised to vote for him so it is a promise. On the day of election people performed their part. The result of polling is its evidence. Now it is his turn to perform his part by fulfilling the promises made to the people. Here politicians breach contract and do nothing; therefore an action for breach of contract must be brought by the people after lapsing a reasonable time. The court on this can provide remedies available in The Contract Act 1872.
These remedies are-
1. Compensation for no fulfillment of promises: people should be awarded compensation from that politician who breached contract. Author's suggestion is that from the awarded compensation a part of it should be given to the complainant as cost of his efforts and remaining should be deposited in a welfare fund made for this purpose so that welfare schemes can be maintained. Collection should be according to the process of collection of arrears of revenue.

2. Perpetual Injunction on future participation: His remaining tenure should be terminated so that he could not continue. In another words "Right to Reject" can be introduced. Though it will be more than Right to Reject.
3. Quantum Merit: His salaries allowances and benefits should be minimized as per ratio of the work done.
4. Specific Relief for unperformed tasks: He should be compelled to perform the incomplete tasks for which he had availed grants, funds etc. If this happens, politicians will definitely deprive themselves from making false promises and misusing of public funds. It will certainly lower down the rate of corrupt activities. No FIR, no police, no prosecution, no imprisonment and no new law still the corrupt and corruption will be stopped. 

Suggestions or Things Needed to do Few changes as well as arrangements will be required like:
1. Declaring elections a "contract". 
2. Creating right to reject in the form of perpetual injunction.
3. Setting up of election courts to dispose these cases on fast track. This can be done by giving this power to the High Courts (by making a separate Bench) or Election Commission of India. Lower courts should be barred to exercise this jurisdiction.
4. All procedure should be under judicial review of Supreme Court.
5. Complaint procedure should be strictly regulated to stop its misuse.
6. Compensation or specific relief on the principles of Specific Relief Act 1963 should be given.
7. Heavy compensation should be imposed so that it will be a lesson for the new comer in politics.
8. Legal awareness program should be introduced regarding this issue.
9. Public notices of their breach of contract and perpetual injunction on his contesting in elections should be given so that everyone can take lesson.
10. A guilty of this breach must be stopped permanently in all types of elections.
11. Even he must be debarred in public employment.
12. Criminals as well as undertrials must be declared legally disqualified for this contract (in contesting).

We can hereby say that one breach of promise means end of political life permanently Conclusion In the case of Darlimpal v. Darlimpal (1811) 161 ER 161, Lord Stovel rightly said that contract is not a joke to pass time. Its provision can resist corruption. Corruption is a communicable disease which kills of the spirit of substantial development .Basically the whole election system is nothing but a contract so after declaring election as a contract and applying the Indian Contract Act, 1872, this can give far better result than "Right to rejectâ€. Politicians will definitely deprive themselves from making false promises, misleading of public and misusing of public fund corruption rate will certainly decrease.

This scheme to impose contractual obligation is required to derogate the deceptive promises and fairy tales which is generally pronounced by our leaders in fun. In search of effective anti corruption tools, it will turn the demerits of election system into merits as well as corruption related to the politics. There is no need of Lokpal, ICA is competent to be a unique solution for corruption free politics. It was well said by The American scholar G.Edward Griffi that- "To oppose corruption in government is the highest obligation of patriotism".
Therefore start opposing corruption by making it contract.

List of key words: ICA: Indian Contract Act 1872
KB: Kings Bench
CPI: Corruption Perception Index
Q.B: Queen's Bench
C. A.: Court of Appeal
ER: England Reporter
R.S. Jha*
*Research Scholar,
Email: radheyshyamjha@gmail.com

References:1. Singh, Avtar, Contract & Specific relief, Eastern Book Company Lucknow, 2010
2. Kapoor, ND, Elements of Mercantile Law, Sultan Chand & Sons Educational Publishers, New Delhi, 1997
3. Subbarao, G.C. Venkat, Jurisprudence & Legal Theory (translated by Tej Prakash), Eastern Book Company Lucknow, 1997 4. Paranjape, N. V., Jurisprudence & Legal Theory, Central Law Agency, Allahabad, 1997

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'via Blog this'

Freedom of Expression on Face Book and its Aftermath....

Minister of State for Communications and IT Milind Deora on Tuesday slammed the police for “acting in haste” by arresting two young girls for their Facebook post questioning shutdown of the city for Bal Thackeray‘s funeral and called for checks to prevent misuse of the IT Act.

“Question isn’t about amending 66A of the IT (Information Technology) Act, it’s about preventing misuse by the police, who clearly acted in haste and applied wrong sections of IPC & IT Act,” Deora wrote on social networking Website Twitter.

Police had on November 18 arrested 21-year-old Shaheen Dhada under section 66A of IT Act and section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) for posting a message on Facebook questioning the shutdown in the city for Shiv Sena patriarch Bal Thackeray’s funeral.

http://www.firstpost.com/india/milind-deora-criticises-cops-over-fb-post-case-529419.html

Firstpost said - It is hard to see how Shaheen Dhada violated the two sections of the law under which she has been charged – Section 295A of the Indian Penal Code (“outraging religous feelings of any class”) or even the draconian Section 66A of the IT Act (“sending offensive messages through communication service, etc.”) – with her contemplative post, or what crimes Renu Srinivasan committed in merely ‘liking’ the post.

http://www.firstpost.com/politics/arrests-over-facebook-posts-why-were-on-a-dangerous-slide-528537.html

The message posted by Shaheen read: “With all respect, every day, thousands of people die, but still the world moves on. Just due to one politician died a natural death, everyone just goes bonkers. They should know, we are resilient by force, not by choice. When was the last time, did anyone showed some respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev or any of the people because of whom we are free-living Indians? Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect.”

Now consider this - 

Mumbaites shutting down their shops and offices and sitting at home fearing violence is one thing, and more than 20 Lakh people actually marching in the funeral procession is another. 

Any political party cant bring 20 lakh people for a funeral procession, the economics is just not workable. So by that yardstick late Thackeray had earned public respect and support, and its but natural for his supporters to react or overreact when someone publishes a statement, even before the deceased's funeral pyre had not even stopped burning.
IPC Section 297 - Whoever, with the intention of wounding the feelings of any person, or.....with the knowledge that the feelings of any person are likely to be wounded,.... or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies,....

http://www.vakilno1.com/bareacts/indianpenalcode/s297.htm
The statement, which is the subject herein, is posted in the course of the funeral procession, and so section 297 IPC is applicable. And how would we expect the police to handle the situation, when the whole City is on its nerves; one wrong step and everything will fall down. We should admire how the situation in its totality was handled by the Mumbai Police. 

And again The Indian Constitution protects freedom of speech as a facet of fundamental rights under Article 19, subject to reasonable restrictions, including decency and defamation. What becomes critical therefore is balance: The fine equilibrium required between protecting freedom of speech, fair comment and criticism (including investigative journalism and whistleblower action) on the one hand and transgression into malicious defamation of a person for oblique or political purposes on the other.

IT Act 2002 Section 66A. Punishment for sending offensive messages through communication service, etc..- Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.

http://www.thehindu.com/news/states/tamil-nadu/validity-of-section-66a-of-it-act-challenged/article4116598.ece

In the case of Mr. Srinivasan he had tweeted that “karthick chidambaram had amassed more wealth than vadra” and the police arrested him on the basis of an e-mail complaint lodged by Mr. Karti.
The same IT act was used to arrest a person in Pondicherry who supposedly posted comments against Karthi Chidambaram. 
What was the media doing then ?

http://www.firstpost.com/india/it-act-should-not-be-used-to-throttle-dissent-says-sibal-528414.html

..... it is doubly perverse for Kapil Sibal to claim in all innocence that he is “deeply saddened” by the arrest of the two young women and to insinuate that the IT Act, which he was instrumental in passing, was being misused on grounds of improper implementation.
The fact of it is that the IT Act that he fathered, and particularly the notorious Section 66A, was deliberately worded to give maximum potential for mischief. There have been far too many egregious instances of its misuse by discredited governments and politicians for Sibal to claim that these are random incidents of misuse of the law. Just last month, Finance Minister P Chidambaram’s son Karti had a Puducherry businessmen and anti-corruption activist hauled up by the police for a Twitter post in which the businessman alleged that Karti had “amassed more wealth” than Sonia Gandhi‘s son-in-law. 

http://www.firstpost.com/politics/arrests-over-facebook-posts-why-were-on-a-dangerous-slide-528537.html
Now what's your take on this ??