insurance In Tort Laws
Introduction
This scheme has been an eye opener for me. It is highly relevant to the contemporary times and as the time to come of India we should understand that it is the tasteless mass that runs the country. Consumer security possession are an leading issue in contemporary days. The law can be effectively used to stop any abuse of the tasteless people especially illiterate masses who do not understand the rules and regulations which is to be followed while buying singular item. It is law, the controller of the whole community which can stop this abuse from taking place. It can place effective standards guiding a product's genuinity and the proper verification of its price. No extra taxes should be issued according to the seller's wish. I have proceeded by referring to the books written by Avtar Singh, Venkat Rao and others. It has been a marvelous and educational satisfaction in going about this topic and manufacture a scheme which is of many importance in the gift day scenario.
insurance In Tort Laws
Definition Of Consumer
The words "consumer", "consumed", "consumption" is all cognate, and when one is defined, the contents of the definition go into all of them wherever they occur in the same act.
Section 2 of the act wherein 'consumer' is defined. according to him, the definition of the Consumer will not take a client who engaged the advocate for pro services.
Consumer means any someone who-
- Buys any goods for a notice which has been paid or promised or partly paid and partly promised or under any principles or deferred payment and includes any user of such goods other than the someone who buys such goods for notice paid or promised or partly promised or under any principles of deferred payment when such use is made with the approval of the person, but does not consist of a someone who obtains such goods for resale or for any commercial purpose
- Hires or avails of any services for a notice which has been paid or promised or partly paid or partly promised or under any principles of deferred payment and includes any beneficiary of such services other than the someone who hires or avails of the services for the notice paid or promised or partly paid or partly promised or under any principles of deferred payment when such services are availed of with the approval of the first mentioned someone but does not consist of a someone who avails of such services for any commercial support
In Black's Law Dictionary it is to mean:
One who consumes. Individuals who purchase, use, pronounce or dispose of products and services. A member of that broad class of people who are influenced by pricing policies, financing practices, quality of goods and services, credit reporting debt collection and other trade practices for which the state and federal Consumer laws are enacted.
Objectves Of The Act
The act is dedicated, as its preamble shows, to furnish for best security of possession of consumers and for that purpose to make provisions for the preparation of Consumer councils and other authorities for community of Consumer disputes and for other related matters. In the statement of objects, reasons it is said that and the act seeks to furnish speedy and straightforward redressal to Consumer disputes. Quasi judicial body machinery has been set up at the district, state and central levels. These quasi judicial bodies have to recognize the principle of natural justice and have been empowered to give relief to a definite nature and to award, wherever appropriate, compensation to consumers. Penalties for non compliancy of orders given by quasi judicial bodies have also been provided.
The object and purpose of rendering the act is to render simple, reasonable and speedy remedy to consumers with complaints against defective goods and deficient services and for that quasi judicial machinery has been sought to be set up at the district, state and national levels. These quasi judicial bodies are required to apply the principle of natural justice and have been empowered to give relief of definite nature and appoint wherever necessary, compensation to consumers.
Insurance
An operational definition of guarnatee is that it is
- the advantage in case,granted by a singular kind of indemnity contract, called an guarnatee policy;
- that is issued by one of any kinds of legal entities (stock company, mutual company, reciprocal, or Lloyd's syndicate, for example), any of which may be called an insurer;
- in which the insurer promises to pay on profit of or to indemnify an additional one party, called a policyholder or insured;
- That protects the insured against loss caused by those perils branch to the indemnity in transfer for notice known as an guarnatee premium.
The sway of guarnatee on the law of torts has been significant, both on theoretical level and on practice. guarnatee has undermined one of the two main functions of awarding of damages, and it has in cast doubt on the value judgements made by the courts in determining which singular test of liability is thorough in the given circumstances.
Regardless of either in the singular circumstances the thorough principle of liability is intention is malice, fault or exact liability, the purpose of tasteless law damages remains the same. The original purpose of an award of damages is to compensate the victim for his loss, with view to restoring him as near as possible to the position he would have been in but for the tort of the wrongdoer. But damages have another: by manufacture the wrongdoer responsible for meeting an award of damages, the courts are trying to deter others from committing similar tortuous wrongs.
Insurance vitiates the secondary purpose of damages, at the same time incidentally ensuring that the original purpose is more often achieved.
It can scarcely be realistically asserted that insured defendants are deterred by the hope of losing no-claims bonus or by addition of premium on renewal of their policies. Once it is conceded that guarnatee renders compensation for the sole purpose of damages but then the tort action itself becomes vulnerable to attack, for there are many ways-some possibly fairer and administratively cheaper than tort- of compensating a victim for a loss he has suffered.
Prima facie, where a someone suffers loss of recognized kind as the effect of another's act, then the latter should have to make good that loss. But for valid reasons, the courts have held that, in inescapable circumstances, the actor will have to compensate his victim only if he is at fault. The victim's right to compensation is, therefore curtailed in an endeavor to be fair to both the parties. The courts have made a procedure decision that, in the circumstances, it is right to repaymen a defendant who has been specific by protecting him from liability for the consequences of his actions and that, as a effect the plaintiff must forego his compensation. The procedure decision is made on the supposition that the wrongdoer would himself have to pay for the damages but for this protection; it by no means follows that the same decision would be made if there were no risk of the wrongdoer having to furnish the compensation.
It is difficult to judge the victim's right to compensation should be curtailed when that curtailment is not justified by a corresponding advantage to the wrongdoer. The requirement of fault ceases to play its role as the leveler in the middle of the victim's legitimate expectations and the wrongdoer's legitimate expectations, and becomes simply a hurdle to the victim's strengthen to compensation. If it is thorough that no one can insure against liability for harm caused by intentionally to an additional one , then similar arguments can be made by the inappropriateness of the victim's having, in inescapable circumstances to prove an intention to do him wrong or harm, when it is irrelevant to the wrongdoer either he had such an intention or not.
Again the victim's right to compensation is being curtailed without any corresponding advantage to the wrongdoer.
However, guarnatee has influenced the law of tort on a much more practical level as well. While the fact of guarnatee is not of itself a reckon for imposing liability , there can be no doubt that it does add "a itsybitsy extra tensile strength" to the chain which a wrongdoer to his responsibilities.
As well it has given new horizon to damages ; it is true that traditionally it was determined to acquaint the court that a defendant was insured , but "those days are long past" and now it is oftentimes openly recognized that the defendant would be insured.
The procedure of guarnatee constitutes a ageement of guarnatee in the middle of Life guarnatee Corporation or a subsidiary of normal guarnatee company of India, as the case may be, such services such has been undertaken to render under the ageement of insurance. However as a rule, chance to render services arise only when insured surrenders his policy, or the procedure matures for payment or the insured dies or any other contingency which gives rise to render assistance occurs.
Breach of ageement of guarnatee may give rise to a cause of action to file a civil suit, but such breach of ageement may itself constitute scantness in service, so as to give a cause of action to file a complaint under the Consumer security act for one such more relieves awardable hereunder.
Section 13(4) of the act vests in a redressal branch powers of the Civil Court, while trying a suit in respect of such matters as test of witnesses on oath and output of documents. Declining to rehearsal jurisdiction in a case before it only because it involves test and cross test of facts, witnesses and output and notice of documents would whole to abdication of its jurisdiction.
Such discretion can be exercised only when the gives rise to any issues and necessities taking of voluminous oral and documentary evidence, or otherwise involve complicated questions of fact and law which cannot be decided in time bound proceedings under the Consumer security act.
Motor car Insurance
Where the sale of a car is complete, the title therein passes to the purchaser notwithstanding that his name has not been recorded in the R.C.Book. Such owner is entitled to get his car insured and also to pronounce a claim on the basis of such insurance. The earlier owner, who has lost insurable guarnatee on the sold vehicle, cannot strengthen a claim on the basis of procedure of the said vehicle, earlier taken by him, on the ground that he is still the recorded owner of the said vehicle.
Section 157 of the motor vehicles act is only in respect of third party risks and provides that the certificate of guarnatee described therein shall be deemed to have been transferred in favour of the someone to whom the motor car is being transferred. It does not apply to other risks, if any, covered by the policy. If the transferee wants to avail the benefits of other risks covered by it, he has to enter into an business agreement thereof with the investor.
Fraud By Insurer
If it is established that the removal voucher was obtained by fraud, misrepresentation, undue sway or coercive bargaining or compelled by circumstances, the authority of the Consumer forum may be justified in granting relief. Mere execution of the removal voucher would not deprive the Consumer of his claim in scantness of service.
Delay In community Of Claim
In Sarveshwar Rao v. National guarnatee company Ltd. , it was held that the delay of two or more years in settling the guarnatee claim would effect in inadequacy in the quality, nature and manner of the assistance which the guarnatee company has undertaken to render, and amounts to scantness in service.
In Delkon India Pvt. Ltd. V. The Oriental guarnatee company Ltd. . The National Commission has held that it was a scantness of assistance to have delayed the claim by two years on the ground that the final police report was not coming.
Interpretation Of Terms
In Skandia guarnatee company v. Kokilaben Chandravadan , the honorable supreme Court ruled that the exclusion terms of the guarnatee must be read with so as to serve the main purpose of the policy, which is to indemnify the damages caused to the vehicle.
Conduct Of The Insurer
In Oriental guarnatee Co. Ltd. V. Mayur restaurant and bar , the conduct of the insurer was under question. The commission held that scantness of the assistance was established on the part of the opposite party on two counts i)delay in community of claims and ii) unreasonable and un maintainable reasons for repudiating the claim of the complainant, and the compensation with the interest and cost was awarded.
Suicide By The Assured
In Life guarnatee Corporation v Dharma Vir Anand, the national commission refused to hold the guarnatee commission liable as the insured committed suicide before the expiry of three years from the date of the policy.
Breach Of Terms
In B.V.Nagarjuna v Oriental guarnatee company Ltd., the terms of guarnatee ageement permitted the insured car to carry six passengers at a time but the driver allowed two more persons to get in. It was held that merely adding two more persons without the knowledge of the driver did not whole to indemnification by the guarnatee company.
Nominee'S Rights
In Jagdish Prakash Dagar v. Life guarnatee Corporation , it was held that a nominee under a procedure of life guarnatee will be a Consumer within the meaning of section 2(1) (d) of the Consumer security Act. The commission held that the nominee could legislatively pronounce an action against scantness raised in assistance by the arbitrary decision of the insurer.
Repudiation
Repudiation is defined as the renunciation of a ageement (which holds a repudiator liable to be sued for breach of contract, and entitles the repudiatee on accepting the repudiation to treat the ageement as at an end
This notion of repudiation is needed in the notion of insurance. The notion of repudiation will be dealt hereto a whole of times and to furnish beneficiary evidence, the definition has been given.
Unilateral repudiation of its liability, under the perceive of by the life guarnatee corporation or an guarnatee company does not, by itself oust the jurisdiction of a redressal agency, to go into the sustainability of such repudiation, on facts and in law and to conclude and to adjudicate if, in the facts of the case, it amounts to scantness in assistance or unfair trade practice, and if so, to award to the aggrieved person, such relief or reliefs under Section 14(1) of the said Act as he or she is entitled to. The fact that before such repudiation it obtained a report from a surveyor or surveyors also does not oust the jurisdiction of a redressal agents to into the merits of such repudiation, for otherwise in each case the corporation or such company, and deprived the aggrieved someone of the cheap and expeditious remedy under the Consumer security act.
Where, However the corporation or the company conducts thorough investigations into the facts which have given rise to claim and other related facts, and repudiates the claims in good faith after rehearsal with due care and proper application of mind, the redressal branch should decline to go into the merits of such repudiation and leave the aggrieved someone to resort to the regular remedy of a suit in a civil court.
The law does not require the life guarnatee corporation or an guarnatee company to accept every claim good or bad, true or false, but it does require the corporation or the company to make a thorough investigation into such claim and to take decisions on it, in good faith, after rehearsal of due care and proper application of mind and where it does so it renders the assistance required by it and cannot be charged with deficiencies in service, even if, in the greatest analysis, such decisions is wrong on the facts and in law and the redressal branch would be disinclined to substitute its own judgement in the place of the judgement of the corporation or guarnatee company.
The quiz, as to either repudiation of its liability does or does not whole to scantness in assistance would depend upon the facts of each case.
Where a cheque sent towards a premium is dishonoured by the drawee bank and consequently the procedure is cancelled or it lapses or the injured dies before the proposal is thorough and ageement of guarnatee results, no claim can be founded in such a policy, which was cancelled or has since lapsed, or a ageement of insurance, which did not materialize at all. Repudiation of such claim can never whole to scantness in service.
Insurance agent is not entitled to fetch premium on profit of the corporation. Where an insured issues a bearer cheque towards premium and hands it over the guarnatee agent who encashes it, but does not deposit the premium with the corporation event till the expiry of the grace duration and consequently the procedure lapses and meanwhile the insured also dies, his nominee has to blame himself or herself for the indiscretion of the insured and cannot blame or fault the corporation.
Basic principles Of Insurance
There are some basic principles about the topic of Consumer security Law and Insurance.
- community of guarnatee claim is service, default or negligence therein is scantness of that assistance
In the case of Shri Umedilal Agarwal v. United India guarnatee Co. Ltd, the National Commission observed as under:
"We find no merit in the contention put transmit by the guarnatee company that a complaint relating to the failure on the part of the insurer to the conclude the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not within the jurisdiction of the redressal forums constituted under the Consumer security act.
The provision of facilities in relationship with guarnatee has been specifically included within the scope of the expression "service" by the definition of the said word contained in section 2(i) (o) of the act. Our attentiveness was invited by Mr. Malhotra, learned counsel for the guarnatee company to the decision of the Queen's Bench in national transit co. Ltd. V. Customs and central excise commissioners . The observations contained in the said judgement relating to the scope of the expression guarnatee occurring in the program of the enactment referred to therein are of no aid to all of us in this case because the context in which that expression is used in the English enactment determined in that case is wholly different. Having regard to the doctrine of the Consumer security act and its avowed object of providing cheap and speedy redressal to customers affected by the failure on the part of persons providing assistance for a consideration, we do not find it possible to hold that the community of guarnatee claims will not be covered by the expression guarnatee occurring in section 2(1)(d).Whenever there is a fault of negligence that will constitute a scantness in the assistance on the part of the guarnatee company and it will perfectly open to the implicated aggrieved buyer to advent the Redressal Forums under the act seeking thorough relief."
- L.I.C. Agent has no authority in collecting the premium
The supreme court held that under regulation 8(4) of life guarnatee corporation of India (agents) regulation, 1972 which had acquired the status of life guarnatee corporation agents rules with effect from January 31, 1981, which were also published in the gazette, Lic agents were specifically prohibited from collecting premium on profit of Lic and that in view thereof an inference of implied authority cannot also be raised.
- Rejection of claim as false after full investigation
The national commission held as follows:
" from the facts disclosed by the report and particularly averments contained in the Consumer affidavit filed by the first respondent it is seen that the guarnatee company had fully investigated into the claims put transmit by the complainant that his claim was rejected. Thus it is not a case where the guarnatee company did not take a prompt and immediate option for deciding the claims against the guarnatee company. Having regards to the facts and circumstances of this case and the nature of the controversy in the middle of the parties we reconsider that this is a matter that should be adjudicated before a civil court where the complainant as well as the respondent will have ample opportunities to recognize witnesses at length, take out the commission for local inspections etc. And have an clarify trial of the case."
- Unilateral discount in the guarnatee amount.
The national commission held that the guarnatee company is not entitled to make a unilateral discount of Rs. 4, 29,771 from Rs. 30, 12,549 at which its own surveyor assessed the loss.
- Mere repudiation does not render the complaint not maintainable.
The national commission overruled the objection of the guarnatee company that merely because the insurer had totally repudiated its liability in respect of the claim, no proceedings could validly be initiated by the insured under the Consumer security act.
- Mere unilateral repudiation does not oust the jurisdiction.
The national commission held that merely because the insurer has repudiated the guarnatee claim under the procedure unilaterally, it is difficult to hold that the varied redressal forums constituted under the Consumer security act, 1986 will have no jurisdiction to deal with the matter that if such a contention of the guarnatee company can get a report from the surveyors, repudiate the claim and oust the jurisdiction of the redressal forums, that the redressal forums are, therefore, bound to see either or not the repudiation was made in good faith on valid and justifiable grounds that if the surveyor or surveyors pick to submit the wrong report and the guarnatee company repudiates the claims without applying its mind then the repudiation cannot be said to be justified that the report of the surveyor will show that the investigations have been proper, fair and thorough and that it has to be remembered that the surveyors bread comes from the employer.
- Mere unilateral repudiation no ground to oust jurisdiction.
The national commission repelled the objection and observed as under:
"Ordinarily a remedy is ready to a Consumer in Civil Court but mere repudiation of claim arising out of procedure of guarnatee under section 45 of the guarnatee act, 1938, cannot take away the jurisdiction of the redressal forum constituted under the act. The avowed object of the act is to furnish cheap, speedy and efficacious remedy to the consumers and it is with this object that section 3 of the act lies down as follows:
3. Act not in derogation of the provisions of any other law: - the provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
The national commission overruled the objection in the view of repudiation of ageement of guarnatee by the corporation; the redressal agencies under the act cannot entertain the claim of the insured and reiterated the law laid down by it in the Divisional Manager, Life guarnatee Corporation of India, Andhra Pradesh v. Shri Bhavnam Srinivas Reddy.
- removal of insured goods on attachment no theft.
It was ruled in the stated case that attachment of inescapable items of insured Machinery and goods by the bailiff of a civil court, though later found to be illegal and effect removal did not whole to theft and or house breaking by force so as to entitle the insured to prefer a claim under the policy.
- When repudiation amounts to scantness and when it does not?
The national has held:
In M/s Rajdeep Leasing and Finance and others v. New India guarnatee company itsybitsy and others -
That rejection of the claim by the guarnatee company after examining and considering the two separate recognize reports from powerful surveyors and three legal opinions from dissimilar oriental counsels could not be said to constitute a scantness in assistance so as to give a rise in the cause of action for a complaint under the Consumer security act.
In Oriental guarnatee Co. Ltd. V contemporary Industries Ltd. , the national commission has held that where the cover note inter alia mentions that the risk is branch to the usual terms and conditions of the thorough policy, it is equally the responsibility of the complainant to call for these terms and conditions even if they are not sent by the guarnatee company, as alleged, to understand the extent of risk covered under the procedure and related aspects.
In Life guarnatee Corporation of India v. Dr. Sampooran Singh
The complainant had taken out an guarnatee procedure of 40,000 rupees in 1982, for the purpose of payment of estate duty on his only residential house in chandigarh in the event of his death and paid 5 premia, but with the abolition of estate duty on one residential house owner in 1985, the procedure became inoperative due to the act of the state and not due to any scantness on the part of the corporation any dispute in the middle of the parties as to the whole payable there under cannot be construed as scantness in assistance on part of the corporation.
In Lic of India v M/s Kanchan Murlidhar Akkalwar
The complainant applied to the opposite party for housing loan, and on the advice of the latter, she took two Lic policies, one for Rs. 90000 and the other for Rs. 20000 entered into an business agreement for the purchase of the house with the house with the owner on the advice of the opposite party obtained a fire procedure for Rs. 2 lakhs. The opposite party advised the complainant to fetch a release deed from the zilla parishad co operative community in respect of the she proposed to purchase with a certificate that the said plot is not mortgaged therein. The complainant got a certificate from the Maharashtra government that the seller had re paid the housing loan and interest thereon due to Zilla Parishad Krishi Karmachari Sehakari Gribe Narman Sanstha and that there was nothing outstanding from him towards loan whole or interest. Still the opposite party did not release the loan. On these facts the national commission by its majority judgement observed that:
"We have determined gone straight through the records and heard the counsel. Clause 1 (c) of the loan offer letter clearly states that the strengthen of the loan is branch to the property being free from encumbrances to the satisfaction of the guarnatee company and a good and marketable title. At the same time it appears that the respondent-complainant had to go straight through a whole of steps, although necessary, having financial implications and causing reasoning and bodily stress to her and at the end of all of which she was told that no dues certificate given by the maharashtra government in respect of the prospective distributor of the property in question, was not "release of mortgage" certificate that was obtained. The respondent complainant possibly also had in her mind the case of Mr. Vaishempayam who got the loan under similar circumstances. Thus the evasion request for retrial is disposed of as above."
Conclusion
This scheme topic is increasingly useful in the contemporary times with the Consumer security possession being redressed with due care. It is being advertised in the mass media in our country. The motto which our Consumer is using is: "Jago Grahak Jago". The time has come to perceive the ideal shop situation in which the buyers are not persuaded or coerced falsely into buying items which are of no use to them at all. Also the relationship in the middle of buyer and distributor should not be damaged at any cost. The relationship in the middle of the buyer and distributor is said to be a fiduciary relationship and the trust in the middle of them should remain intact. A time has come in which the buyer should get his proper position in the shop conditions. He has to have proper knowledge about what is going on in the shop and the implicated prices and the furnish and the dissimilar other practices referred to.
Insurance is a very sensitive issue in the contemporary times. people are being hoodwinked into signing up in clubs which are turning out to be frauds in the true sense of the term. This scheme has been an eye opener to me and I have come to perceive the importance of the Consumer security act and insurance.
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