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DIVORCE NOTICE:-

Divorce among Hindus, Buddhists, Sikhs, and Jains are governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956 respectively.

HINDU MARRIAGE ACT,1955

Under the Hindu Marriage Act, 1955 there are two sections for Divorce.
  • Mutual Divorce U/s .13 (B)
  • Divorce U/s. 13
The Notice regarding divorce is the way where both the parties have one chance of reconciliation, or come in front and talk on issues and try to solve them.

Mutual Divorce under Section 13(B) of the Hindu Marriage Act: Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court. Mutual Consent Divorce is the simplest way of coming out of the marriage and dissolve it legally. Mutual consent means that both the parties (i.e husband and wife) are agreed for a peaceful separation.

Divorce under Section 13 of the Hindu Marriage Act: Under this section, there are various grounds i.e. adultery, cruelty, deserting the other party for 2 years, conversion to another religion, unsound mind, mental disorder, etc. to file divorce.

Procedure for filing the divorce is that you may send a notice to the other party, stating the reason to file a divorce petition, asking another party whether they are ready to reconcile the issues. This notice should mention waiting period of 15 or 30 days in order to receive the revert from the other party. After the completion of the waiting period, if other party refuses to reply or is not replying then you can file a Civil case against him/her.

There is no compulsion to send a Legal Notice to the other party, you can directly file a case against him/her. The jurisdiction to file divorce may be the place the party resides, or they lastly resided together.

SPECIAL MARRIAGE ACT, 1954

Under the Special Marriage Act, 1954 there are two sections for Divorce.
  • Mutual Divorce U/s .28
  • Divorce U/s. 27
The Special Marriage Act, 1954 is an Act of the Parliament Of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century. Marriages solemnized under the Special Marriage Act are not governed by personal laws. It can apply in inter-caste and inter-religion marriages.

Now a day’s youth generation was getting married with their own choice and they prefer who has a better compatibility with them, rather than marrying someone who belongs to their caste or their religion.

All religions are equal and marriage amongst it should not be a big deal. Caste or religion is conferred on us by birth and not by choice. Thus, the Special Marriage Act is a special legislation that was enacted to provide for a special form of marriage, by registration where the parties to the marriage are not required to renounce his/her religion.

Under this Act, if any spouse wants to take a divorce she/he can file a case at any District Court. Explained in detail as below:

Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction.

  • (i) the marriage was solemnized; or
  • (ii) the respondent, at the time of the presentation of the petition, resides; or
  • (iii) the parties to the marriage last resided together; or 2[(iii a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]
  • (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.]


(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.

Before filing case, one legal notice of waiting period for 15 or 30 days be dispatched to the other party, in order to notify him/her whether he/she wants a divorce or is intending to go for reconciliation. If another party has replied within and he/she is ready for divorce then they can go for the Mutual Divorce. In case there are clashes in resolving problems and disputes between both, so you can file divorce on followings ground i.e. Adultery, Cruelty, desertion, imprisonment for seven years and more or unsound mind, or mental disorder respectively.


Tenant Eviction Notice

Tenant can be evicted from the premises after considering the rental Laws of the India, the conditions prescribed in the rent agreement and valid reasons of the eviction. Tenant Eviction Notice is a way to remove the tenant from rented premise of landlord, before filing lawsuit.The landlord must give reasonable time to tenant to vacate the rented property by serving a written notice not less than 30 days or of a period as mentioned in the rent agreement.Notice shall contain valid reasons of eviction and it is advisable to get it drafted through expert property lawyer. It should contain the time and date by which tenant has to vacate the property.

The landlord can file the lawsuit in appropriate jurisdiction of court, in case of refusal of notice or not satisfactory reply from tenant.After filing the case court may send the eviction notice to the tenant to vacate rental property. In the majority of cases, the tenants leave the rented premises after receiving a legal notice from the court.

Always remember that, don’ttakematters into your “Hand”

Without help of court and police, evictions are illegal in every state. Even if tenant is liar, deadbeat and causing physical damage to landlord’s property, landlords cannot do any of the following actions without court permission:-
  • Removing the tenant’s stuff from the property.
  • Removing the tenant or his family members.
  • Changing the locks or lock-out the tenant.
  • Shutting off essential utilities (electric, gas, water, etc)
  • Unleashing a family of skunks in the tenant’s basement (aka, harassment)

Eviction Notice Procedure:-

The eviction notice,considered valid only when it contains all the necessary requirements. It should indicate tenant name, date, reason and requires a response as per mention in notice.Eviction notice process also depends upon court jurisdiction and the various situations including time taken by the tenant for reply.

Types of Eviction Notices:-

  1. Notice to Pay Rent or Quit:- if tenant is not paying rent then landlord can give 10 to 15 days notice period. Law suit can be filed in case tenant is not paying rent even after receiving the said notice.
  2. Notice to Correct a Violation of the Lease or Quit:-if tenant violates the lease and rental agreement, landlord can give notice to the tenant with fix reasonable time to fix the violation. In case of failure by tenant Lawsuit can be filed by the landlord.
  3. Notice to Quit:-In this case landlord gives a simple notice to tenant to vacate the premises, failing which the landlord can move to the court with Lawsuit.

As mentioned above in detail, in case you are facing any issue with the tenant, legal notice is the option to be exercised before approaching the Court. Legato helps you in connecting with experienced lawyers who can assist you in drafting legal notice and even in filing lawsuit as a next step.


Refund of Security Deposit

In India most probably peoples reside on a rental basis. Because of exorbitant rates of properties in metro cities like Mumbai, many people are in the form of traveller workers. Living as a tenant can be a comfortable deal but sometimes there are cases where the tenant has to face rental issues and other related problems like getting an unwarranted eviction notice, or rude behaviour and also Refund of Security. So, let us understand the steps for a refund of security deposit from the landlord.

If you want to vacate the rented premises or to the shift any other place, you have to inform the landlord before one month about vacating the premises and ask refund of security deposit. In case the landlord is not ready to return the security deposit, always give your landlord 30 days written notice when you decide to move and ask him regarding refund of security deposit along with a photocopy of security deposit receipt through Registered post Ad/ Speed Post via email or Courier. After receiving notice, if the landlord does not reply positively then you can file Civil Suit for money inform of deposit and a criminal case for Cheating and Criminal breach of trust Or Continue to live the premises without paying rent till the security money is adjusted.

CONTENTS THAT’S NEEDS TO BE CHECK

Provide your Forwarding Address to Landlord
Notify your landlord of your forwarding address in writing, regardless if he asks. In many states, if a renter doesn't provide a forwarding address then, landlords aren't responsible for the same deposit refunds.

Before Moving to check the list of Premise
Before moving from rented premise prepare the checklist of the things, that helps you to what charges if any, you'll be responsible for. Bring your move-in checklist for cross-referencing. If you disagree with damages you can ask the landlord for the same.

If you are living group/ friends
Most leases with multiple renters hold each individual fully accountable for the group as a whole. That means each renter is responsible for the full amount of the rent and any damages, regardless of who caused it. So make sure you're not stuck with the bill for your roommate's wild party that resulted in three holes in the wall. In some states, the security deposit is refunded in equal portions, regardless of who wrote the original check.

Charges?
Typically, damage charges can't exceed actual repair costs. Fees for items like carpet, which depreciate in value over time, should take normal wear and tear into account.

When you will get a security deposit?
(1)After completion of agreement period or when you vacate the rented premises.
(2) You'll receive a letter with itemized deductions that explains why some or all of your deposit is not being returned.

No Letter or Deposit?
What if the allotted time passes and you never receive a letter or a refund? Don't worry. These are steps in place to protect your rights.

  • A form of Request for Return of Security Deposit along with a photocopy, this is usually available from a local tenants association.
  • Send it to your former landlord via certified mail with a request for return receipt.
  • Keep the return receipt.
  • Wait seven days (from the date of receipt) for a response.

If your landlord doesn't refund the deposit after the seven-day notice, you can sue him in small claims court. If your landlord sends a letter on time saying he is withholding some or all of your deposit, but you think the amount is too high, you can still sue him in small claims court.


Consumer Protection

Consumer Protection is always been very evolving sector due to increase in consumerism. In this outlook of business competition, the consumer is and will always be the king. In this scenario, it is very important to understand your rights as a consumer under the Laws of the Land.

In 1986, the Consumer Protection Act was passed for the better protection of the interest of consumers. It is the first and the only Act of its kind in India, which has enabled ordinary consumers to secure less expensive and often speedy redressal of their grievances. The Act provides for consumer protection councils at district (district forums), state (state consumer redressal commissions) and centre (centre consumer redressal commissions) level.

Section 7 of the Consumer Protection Act, 1986 defines the word “CONSUMER”.It regulates the relationship between individual consumers and the business that sell or buy or avail, goods and Services.The act provides for the path of preventing consumers from frauds and scams of service and sales contracts, eligible fraud, bill collector regulation, pricing, utility turnoffs, consolidation, personal loans that may lead to bankruptcy. Following are the rights to the consumers, as provided in the Act.

  • Right to Safety
  • Right to be Informed
  • Right to Choose
  • Right to be Heard
  • Right to be Seek Redressal
  • Right to Education

SECTORAL LAWS PROTECTING CONSUMERS IN INDIA

Besides the Consumer Protection Act 1986, various laws and Regulations in India protect the interests of consumers, some of which are:
  1. The Bureau of Indian Standard Act 2016: This Act contains provisions for establishing voluntary standards to bring under compulsory certification regime any article, process or service which it considers necessary from health, safety, environment, prevention of deceptive practices, security etc. point of view. Some provisions of this act have also been made for making hallmarking of the precious metal articles mandatory.
  2. The Legal Metrology Act 2009: The Act helps to weight and measure that is used for trade or commerce or for protection of human health and safety.
  3. The Essential Commodities Act 1955: The Act empowers the Government to regulate prices, production, supply, distribution etc. of essential commodities for maintaining or increasing their supplies and for securing their equitable distribution and availability at fair prices.
  4. The Food Safety and Standards Act, 2006: The Act envisages regulation of the manufacture, storage, distribution, sale and import of food to ensure availability of safe and wholesome food for human consumption and for consumers connected therewith.
  5. The Contract Act 1872: The Act binds people on their promises made in a contract. The Act also provides remedies available to parties in case of breach of contract.
  6. The Sale of Goods Act 1930: The act provides safeguard and relief to customers in case goods that are not complying with the expressed conditions and warranty.
  7. The Competition Act, 2002: The Act governs Indian competition law. It replaced the Monopolies and Restrictive Trade Practices Act, 1969. Under this legislation, the Competition Commission of India was established to prevent the activities that have an adverse effect on competition in India.
  8. The Drugs and Cosmetics Act, 1940: The Act regulates the import, manufacture and distribution of drugs in India. The primary objective of the act is to ensure that the drugs and cosmetics sold in India are safe, effective and conform to the state quality standards.
  • The Agriculture Produce Act, 1937 provides grade standards for agricultural commodities and livestock products. The quality mark provided under the act is known as AGMARK-Agricultural Marketing.
  • The Consumer Guarantees Act, states that when a business supplies you with consumer products and any problem occurs, you can ask them to fix the problem under the Consumer Guarantees Act (CGA). This act applies for auctions, online sales, or an agent or broker who sells on behalf of someone as well. An online trader has to make it clear if they are in the trade.

In India, the rights of consumer protection are specified in the Consumer Protection Act, 1986. There are Separate Consumer Dispute Redress Forums set up throughout India in each and every district level in which a consumer can file his complaint in simple format along with nominal court fees and his complaint will be decided by the Presiding Officer of the District. The complaint can be filed by consumers for goods as well as of the services. An appeal could be filed to the State Consumer Disputes Redress Commissions and after that to the National Consumer Disputes Redressal Commission (NCDRC).

Under the Consumer Protection Act, 1986, in case Consumer is not getting any refund, clarification, claims or good services, then he has a right to knock the door of the redressal forums. Consumers can file Complaint within 2 years from the date of action arise. In case of delay, he has to give a specific reason for it. If the Judge i.e the President and the members get satisfied with the reason for filing the complaint then and only then the matter is admitted. The consumer has a right to file the Complaint in a District Forum within the local limits were the cause of action arose or at the place of a branch of the Opposite party.


CHEQUE BOUNCE NOTICE

Cheque bounce is very much common term we hear or experience in day to day life. As word suggests it is dishonor of the cheque issued. Cheque bouncing cases comes under Section 138 of the Negotiable Instrument Act, 1881 (the Act) and creates criminal liability, punishable with fine and imprisonment under the Act and under Indian Penal Code, 1960.

Meaning of Cheque:-

‘Section 6’ of said Act, says that, “A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.”

Meaning of Cheque Bounce Notice:-

Cheque bounce notice is only intimation to the issuer that legal action will be taken by the cheque beneficiary in case of non-payment of cheque amount on an immediate basis. Cheque bounce is a condition arising due to dishonor of the cheque issued. Sending notice to the person issuing cheque, for the dishonor of said cheque is the first and foremost step to initiate legal case under the Act. Notice provides chance to the issuer of the cheque to make the payment good and so as to avoid the law suit. Recently, Parliament has passed The Negotiable Instruments (Amendment) Bill, for quick prosecution in case of cheque bounce. Under this, once lawsuit is filed, an order may be passed by the Court asking the payment of interim compensation to the complainant by the defaulter.

Things to be looked at while issuing Cheque Bounce Notice:-

  1. It must be in reference to Section 138 of the Negotiable Instruments Act, 1881.
  2. In case the defaulter if the Company then notice should give reference to Section 138 along with section 141 of the Act.
  3. Information regarding the cheque presentation.
  4. Reason for non-realization of payment.
  5. Information regarding the request made to the cheque issuer to make payment on an immediate basis.
  6. A notice must be sent within 30 days of return of cheque to the cheque issuer.

Methos of sending Legal Notice:-

  • It is always advisable to draft and send the notice by taking assistance of the legal professional so as to avoid any future issues, which may be caused due to lack of substantial content as per legal requirements. Generally notice needs to be on a plain paper or on the letterhead of the business/lawyers. Notice shall be duly signed and also sealed, in case sender is the Company. It needs to be dispatched at the address of the cheque issuer through Registered post AD/ Speed post/ courier . Sending notice through email is allowed if the sender is business entity. Cheque beneficiary/ Complainant can retain one copy (called as a OC Copy) of the notice with himself. Legal notice shall contain following details and information.
  • Name of the cheque beneficiary;
  • Name and address of the check issuer/s;
  • Cheque retun date;
  • Reasons for cheque return;
  • Request made to check issuer for immediate alternate payment; and
  • That it is issued as per the Sec. 138 of Negotiable Instrument Act
  • Reference of Section 141 also needs to be provided in case notice being issued to non-individuls

When Cheque Bounce Notice is Issued and Next Procedure?

  • The first condition is that cheque must be towards the liability.
  • Within a period of 6 months of validity of cheque, it should be presented by the beneficiary.
  • Due to insufficient funds/Stop Payment the bank must have returned the cheque.
  • Within 30 days of the receipt of information from the bank regarding the insufficiency of funds, demand is raised by the payee by giving a written cheque bounce notice for the payment.
  • Within 15 days of the receipt of the written notice of cheque bounce, drawer fails to make payment of the said amount then payee can file a complaint before a magistrate within 30 days.
  • A complaint has to be filed in such a state where the bank is situated.

In case, you forgot to send the legal notice within 30 days from the date when bank memo received at that time there is only one option, if the cheque is still within its validity period, he can again present the cheque to the bank for clearing the amount. If the cheque is returned unpaid for the second time, then this time he can issue a legal notice within 30 days from the date of the cheque being returned unpaid for the second time. [However, if the validity period of the cheque is already over, then this option cannot be exercised.


Labour and Services in India

In India, there are different types of Act which are governed by state and central to protect and provide all facilities to the labourers. It is safeguarding the interest of workers as part of the fundamental rights of the constitution of India. Indian labour law makes a distinction between people who work in "organized" sectors and people working in "unorganized sectors". People who do not fall within these sectors, the ordinary Law of contract applies. The working people and their organizations include trade unions and employee unions, enforced by government agencies.

Labour is the amount of physical, mental and social effort used to produce goods and services in an economy. It supplies the expertise, manpower, and service needed to turn raw materials into finished products and services

The labour law is reflective of various struggles in the society, including employers cost capabilities, employees demands, health safety conditions, political pressures during a given point of time. Following are the few points:-

  • Working hours per day and week.
  • Guidelines for spread-over, rest interval, opening and closing hours, closed days, national and religious holidays, overtime work.
  • Employment of children, young persons and women. Rules for annual leaves, maternity leaves, sick leaves and casual leaves, etc.
  • Rules for employment and termination of service.
  • Unemployment
  • The minimum age for employment
  • Night Shifts for Men’s and Women’s.
  • Maternity production

Domestic workers in India

Child labour in India is prohibited by the Constitution, article 24, in factories, mines and hazardous employment, and that under article 21 the state should provide free and compulsory education up to a child is aged 14.

Sexual Harassment at the Workplace (Prohibition, Prevention and Redressed) Act, 2013

The Sexual Harassment at Workplace (Prohibition, Prevention and Redressal) Act, 2013 (SHW Act) was enacted by the Parliament to provide protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment and for matters connected therewith. The SHW Act makes it mandatory for every organization having 10 employees and more to constitute an Internal Complaints Committee (ICC) to entertain complaints that may be made by aggrieved women.

The SHW Act also provides that the aggrieved women may in writing make a complaint of sexual harassment as the case may be within a period of three months from the date of occurrence of such incident. Further, in a case where the aggrieved woman is unable to make a complaint on account of her physical incapacity or Death, a complaint may be filed inter alia by her relative or legal heirs.


TRADEMARK AND COPYRIGHT

Protection of Intellectual property repeatedly goes un-noticed by the business owners. Very few business or start-up owners understand the importance of safeguarding their Intellectual Property in long run. It is therefore highly very important for a business owner, a startup owner, a creative person or an inventor to have clarity about the concepts of Trademark, Copyright.

Trademark: A trademark is a symbol, logo, design, word, phrase, colour, sound or a combination of these which is used for the purpose of trading goods or providing services. It indicates the source of goods and services and distinguishes them from the goods and services of others. It provides individuality of rights to the use of a trademark in relation to the product or service

Procedure for Registration of Trademark

Documents can be filed by a person or through his duly authorized agent to the appropriate office of the trademark registry. The Registry must be in the territorial jurisdiction where the business is located. Documents must be a filed at the office personally through registered post Ad or by submitting Documents on their official website.

Documents must be a filed in Hindi or English, it must be handwritten or typed. It should contain the detailed information/contents of the business i.e. Name, the address for service of person, details, and grounds, etc.

Types of Trademark

  • Product Trademark
  • Service Trademark
  • Collection Trademark
  • Certification Trademark

Types of Trademark

Suit for infringement/breach/violation, etc., to be instituted before District Court.—
(1) No suit—
  • for the infringement of a registered trademark; or
  • relating to any right in a registered trademark; or
  • for passing off arising out of the use by the defendant of any trademark which is identical with or deceptively similar to the plaintiff's trademark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

(2) For the purpose of clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or another proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation —For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user.

Copyright: Copyright is a right given to the creators of literary, dramatic, musical and a number of other works of the intellect. It normally means that only the creator has the right to make copies of his or her works or prevents others from making copies. The basic idea behind such protection is the premise that innovations require incentives. Copyright recognizes this need and gives it a legal sanction. Copyright protects all of them.

Section 62 of the Copyright Act, 1957:

Jurisdiction of court over matters arising under this Chapter.—

(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction.

(2) For the purpose of sub-section (1), a "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. The Copyright Act, 1957 gives the rights, procedure, authorities established and relief modes under copyrights. It lays down a definition of copyright and states the types of works protected under this law i.e. literary works, dramatic works, artistic works, musical works, cinematograph films, and sound recordings.


Corporate

The definition of corporate is something related to a business group or a business that operates as a single legal unit.

A corporation is a form of organization that has an existence independent of its owners. It has powers and liabilities of the separate and individual form of its owners. They can be organized for many purposes and can come in many ways.

Corporate Structure:-

  • How a business is organized to accomplish its objectives.
  • It determines the ownership, control, and authority of the organization.
  • There are three group of characteristics are represented: shareholders, directors, and officers.
  • Ownership belongs to the shareholders.
  • Control is exercised by the board of directors on behalf of the shareholders, while authority over the day-to-day operations is vested in the officers.

Limited Liability:-

If the corporation cannot pay debts, in this case, company assets must be seized and sold. But although you can lose your investment, the creditors cannot attach your personal assets (such as cars, houses, or bank accounts) to satisfy their claims.

Personal liability may also be imposed if the corporation does not comply with required legal formalities or fails to keep proper records.

Forming a Corporation:-

If you want to form a corporation, it is necessary to obtain a state charter. Here are some things to do before you apply:
  • Choose the state in which you want to incorporate, this will be your head office or where it conducts most of its business.
  • Choose and decide the Officers.
  • Although many states require at least two or three parties to form a corporation, they need not all be the shareholders.
  • Friends or family members to serve as the initial officers.
  • If you are the sole shareholder, you alone will control the corporation's activities.

Shareholders:-

In a corporation, a group of shareholders has shared ownership, represented by holding shares of common stock. Most business corporations are established with the goal of providing a return for its shareholders in the form of profits. Shareholders have the right to share in the profits of the business but are not personally liable for the company's debts. This concept is known as limited liability and is one of the main advantages of the corporation in a form of doing business.

Board of Directors:-

The board of directors is responsible for overseeing and directing the business of the corporation in the best interest of the shareholders. The key point here is an oversight; the board is not expected to actually operate the business. Rather, its purpose is to oversee operations, approve major plans, and monitor financial performance. The board generally performs the following functions:
  • Select, evaluate, fix the compensation for, and, when necessary, replace the company's chief executive officer
  • Oversee the business operations to evaluate whether the business is being properly managed
  • Review and approve major corporate plans, financial objectives, annual budgets, and strategies
  • Review the adequacy of financial accounting, auditing, and other systems to comply with applicable law

The board of directors is generally comprised of three types of people. The chairman of the board is technically the leader of the corporation, responsible for running the board effectively.

To prevent the concentration of power and information in one or a few individuals, boards are advised to have a balance of executive and non-executive directors, some of whom are independent.

An executive director is also an executive of the company, such as a CEO or CFO. A non-executive director is not a part of management and is valued for external perspectives and unique expertise.

“Non-executive” directors should meet in private regularly, without the presence of “executive” directors, according to governance experts.

Employees must be appointing any of Director to fix their salary.

Profit and losses are not always fixed in the corporation as they are always fluctuating in nature. It mainly depends upon the share market.


STARTUP

There are no limits on who can become a great Business entrepreneur. You don't necessarily need a college degree, a bunch of money in the bank or even business experience to start something that could become the next major success. However, what you do need is a strong plan and the drive to see it through.

Things to remember and required to start a business/company.

1. Select a Name & Legal Structure:- There are 4 types of legal structure/organization, of which you can select any one of them.

  • Sole Proprietorship
  • Partnership
  • Limited Liability Company (LLC)
  • Corporation or S-Corporation

2. Start a Market Research:- Is anyone else already doing what you want to start doing? If not, is there a good reason why? Start researching on the thing what you have decided to start and collect the information, also contact the peoples who can help you in this matter.

3. Write your Business Plan:- A Business Plan is a written description of how your business will evolve and from when it starts to the finished product.

  • Title Page: Start with the name, the name of your business, which is harder than it sounds.
  • Executive Summary: This is a high-level summary of what the plan includes, often touching on the company description, the problem the business is solving, the solution and why now.
  • Business Description: What kind of business do you want to start? What does your industry look like? What will it look like in the future?
  • Market Strategies: Who is your target audience, and how can you best sell best to that market?
  • Competitive Analysis: What are the strengths and weakness of your competitors? How will you overcome them?
  • Design & Development Plan: What is your product or service and how will it develop? Then, create a budget for that product or service.
  • Operations & Management Plan: How does the business function on a daily basis?
  • Finance Factors: Where is the money coming from? When? How? What sort of projections should you create and what should you take into consideration?

Start learning as much as you can about the production, New thing, development of Busines/company, so you can improve the process and your hiring decisions as time goes along.

4. Obtain your Federal Employer Identification Number (FEIN): If you are set up as a Corporation, LLC or Partnership (or a sole proprietorship with employees), apply for a Federal Employer Identification Number (FEIN) from the IRS. A FEIN will be necessary to open a bank account or process payroll.

5. Open the Company Bank Account:- Select a bank and open the company bank account.

6. Lease Office, Warehouse or Retail Space (if not home-based):- Depending on your type of business (retail, office or warehouse), arrange for office space to be leased. Contacting a commercial realtor in your area can be helpful. Also, make sure to arrange for utilities and office furniture.

7. Obtain Licenses and Permits:-

  • A. Federal Permits: Depending on the type of business you are in, you may need a Federal license or permit.
  • B. State Licenses: Some occupations and professions require a State license or permit. Laws vary from State to State, however, if you are engaged in one of the following professions, you should contact the responsible state agency to determine the requirements for your business. State license and permits are based on the Products sold.
  • C. Sales Tax Permit: If your company sells physical products within the state where it does business, you may have to collect and pay sales tax. This is usually accomplished by obtaining a State Seller’s Permit or Resale Permit.
  • D. Business License: Most Cities or Countries requires you to obtain a business license, even if you operate a home-based business. This is a license granting the company the authority to do business in that city/county.

8. Hire Employees (if applicable):- If you intend to hire yourself or others as a full or part-time employee of your company, then you may have to register with the appropriate State Agencies or obtain Workers Compensation Insurance or Unemployment Insurance (or both).

9. Set up an Accounting and Record-Keeping System:- Setup your Accounting and Record-keeping system and learn about the taxes your new company is responsible for paying.
Company documents generally are required to be kept for 3 years, including a list of all owners and addresses, copies of all formation documents, financial statements, annual reports, amendments or changes to the company. All Tax and Corporate Filings should be kept for at least 3 years.

10. Obtain Business Insurance:- There are many types of insurance for businesses but they are usually packaged as “General Business Insurance” or a “Business Owner’s Policy”. This can cover everything from product liability to company vehicles. A decent policy can run as little as $300/year and offers a great extra level of protection.

11. Systemize and Organize:- Prepare the business as if someone needs to take it over and run it for you. These means have a method to process orders, pay bills, pay employees, pay taxes, maintain your permits, etc. Basically, try to make the operational aspect of the business as automated and efficient as possible so you can concentrate on growing your business.

12. Develop a Business Identity:- Order business cards, letterhead and promotional materials for your business. A professionally created logo can make your business look professional and established.

13. Get the Word Out (Marketing):- Now that you’ve set-up the company for success, you need to get the word out. Create a marketing plan for your products and services that target your ideal customer.


SUPREME COURT OF INDIA

Supreme Court of India is the highest court in the Republic of India; it is a ladder of the court in many legal jurisdictions. Supreme Court is also known as apex court and the highest or final court of appeal. The decisions of a supreme court are not subject to further review by any other court, but their Orders are full and final and duty bound to all lower courts and can only be modified in some cases like death sentence by the President of India. It has several jurisdictions namely Original, Appellate, and Advisory.

Supreme court typically functions as an Appellate Court, which means hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts. Supreme Court of India is located at New Delhi. The Supreme Court judges are appointed by the President of India, as per the guidelines of the Constitution Of India. These judges get retired at the age of 65. There are currently 24 judges including Chief Justice of India against a maximum possible strength of 31.

COURTS IN INDIA:-

  • Supreme Court
  • High Court of every state
  • City Civil and Session Court
  • Metropolitan Magistrate Court.
  • District Court.
  • Lower Courts

In India, the Supreme Court of India was created on January 28, 1950, after acceptance of the Constitution. Article 141 of the Constitution of India states that the law declared by the Supreme Court is to be binding on all Courts within the territory of India. It is the highest court in India and has ultimate judicial authority to interpret the Constitution and decide questions of national law (including local by-laws). The Supreme Court is also vested with the power of judicial review to ensure the application of the rule of law.

FACILITIES OF SUPREME COURT OF INDIA:-

  • Display Board
  • Judge’s Library
  • E- Committee
  • Law Officers
  • Mediation and Conciliation Committee
  • Legal Aids
  • Important Links
  • List of Advocates on record
  • Notice and circulations.
  • Museum
  • E- visitors pass

Note that within the constitutional structure of India, Jammu and Kashmir (J&K) has a special status vis-a-vis the other states of India. Article 370 of the Indian Constitution is an article that gives independent status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution namely Temporary, Transitional and Special Provisions.

The principles applied by the Supreme Court in its decisions are binding upon all lower courts; this is intended to apply a uniform interpretation and implementation of the law. The decisions of the Supreme Court are not necessarily binding beyond the immediate case before it; however, in practice, the decisions of the Supreme Court usually provide a very strong precedent, or jurisprudence consternate, for both itself and all lower courts. It is also known as the court of records, i. e. all judgments are recorded and printed. These are cited in lower courts as case - law in various cases.


IMMIGRATION

Now a day’s India has been receiving large numbers of immigrants, mostly from the neighbouring countries and some from other parts of the world, and hence it needs to be seen as a major immigration country. The objective of immigration is gaining citizenship or nationality in a different country. In India, the law relating to citizenship or nationality is mainly governed by the provisions of the Constitution. The Constitution of India provides for a single citizenship for the entire country.

The provisions relating to citizenship are contained in Articles 5 to 11 in part II of the Constitution of India. Articles 5 to 9 of the Constitution determine the status of persons as Indian citizens at the Commencement of the Constitution. Article 10 provides for their continuance as such citizens subject to the provisions of any law that may be enacted by the legislature. Under article 11, the Constitution expressly saves the power of parliament “to make any provisions with respect to the acquisition and termination of citizenship and all other matters relating to citizenship”. Article 5 states that at the commencement of this constitution, every person belonging to the following categories, who has his domicile in the territory of India, shall be a citizen of India:

  1. Who was born in the territory of India; or
  2. Either of whose parents were born in the territory of India;
  3. Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement

Article 6 of the Constitution provides for the rights of citizenship of certain persons who have migrated to India from Pakistan. Article 7 of the Constitution has made provisions for citizenship of certain migrants to Pakistan and Article 8 of the Constitution provides for the rights of citizenship of certain persons of Indian origin residing outside India

When a person enters a new country for the purpose of establishing permanent residence and ultimately gaining citizenship, it is called Immigration. Immigration Law constitutes a very complicated set of rules, regulations, and exceptions. But the residence of immigrants is subject to the conditions set by the Immigration Law. Every nation has specific laws to govern Immigration within it.

There are 86 Immigration Check Posts all over India, catering to international traffic. Out of these, 37 ICPs are functioning under the Bureau of Immigration, while the remaining are being managed by the concerned State Governments.

Immigration Law is the law which exclusively governs Immigration in a nation. For instance, a Government may in its discretion determine who it may allow in, and for how long, and who it may deport, the subject of course to internationally accepted basic human rights and principles.

The objective of immigration is gaining citizenship or nationality in a different country. In India, the law relating to citizenship or nationality is mainly governed by the provision of the Constitution. The Constitution of India provides for a single citizenship for the entire country.

So far as foreign citizens are concerned, Immigration Law is related to the Nationality Law of a national governing the matters of citizenship. International Law regulates Immigration Law concerning the citizens of a country. Hence, Immigration law refers to national government policies which control the phenomenon of immigration to their country.

What is Embarkation Form?

A departure card, also known as an outgoing passenger card or embarkation card, is a Legal Document used by immigration authorities to provide passenger identification and an effective record of a person’s departure from certain countries. It also serves as a declaration in relation to health and character requirements for non-citizens entering a particular country.

Typically the information on the departure card includes

  • Full name
  • Nationality
  • Passport number
  • Flight number or name of aircraft, ship or vehicle
  • Purpose of trip: vacation, education/study, visiting relatives/families, business, diplomatic
  • Duration of stay
  • Destination (next stop of disembarkation)
  • Address in country

VARIOUS ACTS GOVERNING IMMIGRATION INTO INDIA:

  • The Citizenship Act, 1955
  • The Registration of Foreigners Act, 1939
  • The Immigration (Carriers Liability) Act, 2000
  • The Passport (Entry into India) Act, 1920
  • The Passports Act, 1967
  • The Emigration Act, 1983
  • Foreign Contribution Regulation Act, 1976
  • The Foreigners Act, 1946
  • Foreigners Law (Application and Amendment) Act, 1962.


Read up

Is legal documentation important in medical practice?

Introduction

As a medical practitioner, it is very important that the doctors maintain legal documentation and manage the medical records of the patient properly.

What are medical records?

The medical records include mainly the medical history, the clinical findings, the results of the test carried out, the care administered before operation, the notes which are taken down during the operation of the patient, the care taken after the patients operation is complete and the daily progress of the patient, and also the medications which are prescribed to the patient.

Consent

The consent which is acquired through legal means shall be very helpful to the doctor in the long run. For example consent for major or minor operations or for starting a new course of treatment for the patient’s betterment. And it is the duty of the doctor to acquire consent as per the principles of valid consent which are laid down for reference under the Indian law. Therefore, it is important that the medical staff and other officials at the hospital must be trained in maintaining the medical records of the patient in a systematic manner.

Indian medical council and record-keeping

 

All details regarding maintenance of medical records have been given under the Medical Council of India regulations 2002, and the regulations have laid down certain guidelines with respect to the number of years the medical records of the patient has to be maintained. They are as follows:

  1. Every doctor must maintain the medical records of the patient for a minimum period of three years from the date of the treatment of the patient.
  2. If a request would be made by the patient or the legal authorities of the court to produce the documents, the medical practitioner shall submit the same within 72 hours, and if the medical practitioner refuses to submit the documents, it might lead to serious consequences.

 

Reasons why medical documentation is important

 

There are two important reasons why there is a need to maintain the medical records of the patient. They are:

Seamless evaluation of the patient: Maintaining medical records of the patient will be helpful for analyzing and evaluating the patient’s profile and it will also help in analyzing the course of the treatment and the results. It will determine whether the health of the patient is improving or deteriorating and to what extent. It will also assist in planning out future procedures.

Legal documentation: It is always useful in cases where the medical practitioner has been alleged of medical negligence in the court of law. However, it can only be used in the form of documentary evidence when called upon to produce the same. The medical documentation becomes very important while pronouncing a judgment in favour of the medical practitioner. And it shall be helpful in cases with regards to a medical insurance claim with respect to medical negligence from the doctor’s end.

 

Essentials of managing medical records

 

  1. Comprehensive: Simple language should be used while recording the data and it should be easily understood by an individual. This step is important for planning, policy-making and making decisions for the patient or for the betterment of the hospital.
  2. Proper planning: The medical records must be looked at regular intervals during the working hours of the hospital or the clinic. One must rule out the information from the database of the medical records, which is not required for future reference.
  3. Cost-effective way: It is always important that one must maintain the medical records of the patient in a cost-efficient way (electronic records) where no loss is incurred to maintain the medical records of the patients for future reference.
  4. Fully accurate: The information which is going to be recorded should be confidential and true in all aspects.

 

Conclusion

 

It is the duty of the doctors to maintain the confidentiality of the medical records of the patient. However, in cases of medical negligence; it becomes important to produce the documents in the court of law. If the medical reports, at the time of submission in the court, are well maintained by the doctor, it may be an added advantage to the doctor or any other medical practitioner during the legal proceedings. These legal documents maintained by the medical practitioner hold an evidentiary value.

Why do doctors need to be updated with medical negligence laws?

Introduction

The medical profession is considered as one of the noblest professions in the world. The professionals in this area of practice are capable of serving humanity, provide care, efficiency and render professional skill while treating their patients. However, nowadays due to the communication gap between the doctor and the patient or due to the profit motive-oriented profession, the cases of medical negligence is increasing day by day. Thus, there are some lacunae in today’s medical treatment and professional expertise. Therefore, in order to safeguard oneself from the strict laws which are in favour of the patient, it is important to know the medical laws with respect to medical negligence so that they can protect themselves from the case which is registered against the doctors if they are not guilty of committing such an offence.

Since the time public awareness has spread in India regarding the types of cases which fall under medical negligence and the actions that have been taken against the medical fraternity, the hospitals and the doctors are facing a huge number of legal complaints with regards to even petty matters of medical negligence. Therefore, it is essential for a doctor to know what actions amount to medical negligence in India.

It is also expected from the medical professional that they follow the code of medical ethics which has been laid down by the Indian Medical Council which also provides the duties towards the patients which has to be fulfilled by the doctor.

 

Reasons why a doctor must be updated with medical negligence laws

 

  1. A doctor may be called upon in the court of law and may be questioned regarding the alleged medical negligence through which harm has been caused to the patient.
  2. Even if the doctor is summoned to the court, the burden of proof lies upon the applicant who has filed the case against the doctor. However, it is also better if the medical practitioner has the knowledge regarding the provisions of the law with regards to the burden of proof and how he can safeguard himself from the medical negligence case that has been filed against him/her. The doctor can hire a legal person who can explain the law to the accused doctor.

 

Medical negligence case is a legal case that can be defined as a case injury which is caused due to the malpractice of the doctor while treating the injury of the patient for which the patient had approached the doctor.

The cases that fall under the purview of the medical negligence cases are as follows:

  1. Misdiagnosis of an ailment of the patient.
  2. Incorrect medication prescribed to the patient.
  3. Mistakes during surgery, for instance, leaving a piece of equipment in the body of the patient.
  4. Fake doctor treating a patient.

Therefore, it is very important for the doctor to have the basic legal knowledge, especially with regards to cases which requires police investigation as well as for cases where the doctor is accused of medical negligence in India.

 

Laws which the doctor must know

 

  1. The Indian penal code
  2. Criminal procedure code 1908
  3. The Consumer Protection Act
  4. Medical negligence as per the Indian Medical Association.

And such laws which are decided by the Indian Medical Council from time to time.

 

Conclusion

 

To conclude, it is said that the medical profession with special reference to the doctor, must be aware and up to date with the recent rules and regulations that deal with cases of medical negligence. It becomes essential for the doctor to maintain the medical records and the history of the patient so that such records can be produced in the court of law when a case of medical negligence arises.

In order to change the current landscape of the Indian Healthcare System, the government is constantly trying to tackle the challenges faced in an overpopulated country. As per news updated on 16th September 2019, there are certain rules set to keep track of doctors and hospitals through maintaining a complete record of all the medical professionals practising in hospitals, in order to hold them accountable for their wrong-doings, through the National Medical Commission Act. Hence, now more than ever, doctors and other medical professionals are required to be updated with the changes in the law.

Personal Data Protection Bill, 2019

Introduction

Data Protection refers to the procedures and policies inviting to minimize the intrusion of privacy of an individual by collecting and using the data. In December 2019, a bill named as Personal Data Protection Bill was introduced in Lok Sabha by the Minister of Electronics and Information Technology, Mr Ravi Shankar Prasad. A decade agoin India, the Information Technology Act, 2000 was passed by the government to protect the information of individuals. However, the new bill has enacted a separate law for the personal data, in the hopes that India will face a significant positive change.

The Personal Data Protection Bill, 2019 refers to the fundamental right of “Right to Privacy” by the honourable Supreme Court of India, in the famous case of Puttaswamy VS Union of India.

The Government of India has now realized the need for an act which will solely look into the matters related to the right of privacy and to protect the data of an individual. The Bill has been passed in the Lok Sabha and has now been passedto the Standing committee.

 

History

 

In recent years, India haspassed through several technological developments which have led to the huge amount of data generation through various activities and the need to protect this data has also increased. Many companies rely on this data to make important decisions in a firm. Even the government for its state affairs and benefits depends upon the large scale collection and usage of this data. One such example of this is the biometric identification and Aadhar verification by the government.

A petition in Supreme Court of India was filed in the year 2012 challenging the constitutional validity of Aadhar on the grounds of that it violates the individual’s right to privacy. After this in August 2017, a Supreme Court bench consisting of 9 judges declared the right to privacy as a fundamental right of Indian citizens. The court alsostated that the right to privacy is protected by the right to life and personal liberty under Article 21 of the constitution. The court also observed that privacy of personal data and information or “informational privacy” is also a characteristic of right to privacy.

Other countries formulated regulatory bodies and frameworks a while agoto protect an individual’s personal data. Taking cognizance of this, in July 2017, a committee of experts was formulated under the chairmanship of Justice B.N. Srikrishna to:

  1. Research issues related to the protection of data
  2. Find solutions through which an individual’s data could be protected
  3. Suggest a Bill for the same so that it can be enacted in legislation

Finally, on July 27, 2018, the Bill was presented to the Ministry of Electronics and Information Technology which asked for the protection of an individual’s personal data in a manner through which data would be protected and the regulatory bodies set up could oversee the data processing method.

 

Protection of Data through the Bill

 

The data protection Bill imposes few obligations on the entities which have the right to control the data, and these entities are known as “Data Fiduciaries”. These fiduciaries can determine the purpose and means of its processing, and it includes both government as well as private entities. The person whose data is referred or processed is known as “Data principal”. If these compliance obligations are not been followed, then the burden is shifted to the data fiduciary.

The obligation mainly includes:

  1. It has now become essential to let the data principal know before collecting their data.
  2. To make sure that the data which is stored is accurate and correct.
  3. The data shouldbe stored and processed only for specific reasons.
  4. A valid consent has to be taken from the data principal before processing the data. If the purpose is to transfer the data to any third party, then the consent required under such circumstance is relatively of a higher degree.
  5. Under this Bill, one of the major obligations is to provide the data principal with certain rights. He/she should have the right to erase, protect, access, correct, and prevent disclosure of the data.

The obligations are structured in such a way that it secures the position of the data principal and also gives them ownership.

The Regulatory body/Adjudicatory body is called the “Data Protection Authority” which will check and imposepenalties for non-compliance of the above-mentioned obligations. It is considered as an overlooking authority which will look into all the matters related to the Bill.

 

Exemptions under the Bill

 

Though the Bill is enacted for the majority of the firms of India, it still has certain exemptions:

  • Manual processing done by the small entities is not mandatory as they don’t have the sources to implement such commitments.
  • The entities which process data for BPO industry, research industries, and for statistical purposes are also excluded whether it is a public or private company.
  • The entities which work in relation to legal proceedings, journalist purposes, national security, prevention, detection, investigation and prosecution of contraventions to law, or for personal and domestic purposes are also exempted from the obligations of data fiduciaries.

Apart from the above exemptions, there is a specific exemption which only applies to the Government. The Central Government can exempt any of its agency from all the provisions of the Bill and such agency which can also be referred as data fiduciary will be able to process all the data of the data principals ( without informing them ). The list of such exempted agencies can also be formatted from time to time, which means such agencies can be added or subtracted on a timely basis.

 

The vested interest of the Government

 

Data protection authority has been formed to look after all the matters related to the data processing methods of the data fiduciaries. These data fiduciaries are obligated to work under the procedure laid down by the Bill and therefore, a regulatory body has been formed to keep a regular check. If the regulatory body is not formulated, then the obligations imposed on the data fiduciaries is meaningless as there would be no procedure through which this data fiduciaries could be held responsible.

Data Protection Authority will look after matters such as:-

  • how the consent is taken from the data principal,
  • the method through which data is processed,
  • deletion of the data, the safeguards used to protect the right of the data,
  • form of manner and maintaining records, etc.

But a “Memorandum” attached to the Bill, clearly states that making of any regulations by the Data Protection Authority may make such regulations only with the due consideration of the Central Government. The regulatory body has to be formed by the Central Government.

This control of the Data Protection Authority by the government is a clear picture of the vested interest of the government in the powers to make rules and regulations for the data fiduciaries. The government will act as a data fiduciary and on the other hand, it will also be involved in controlling the obligations of data fiduciaries. Therefore, this role of government where it plays both the victim and the attacker is highly questionable and will require certain amendments or removal of such memorandum.

 

New terms enacted in the Bill

 

With the formulation of a new Bill, the Government of India has also enacted certain new terms in the Bill. Those terms are:

  1. Sandbox

However, the creation of a sandbox is slightly questionable as these fiduciaries would be allowed to access the personal information of an individual without any obligation, thus violating the fundamental right of Indian citizens that is “right to privacy”.

 

  1. Non-Personal Data

It was highly recommended that the Bill should be only limited to the personal data of an individual which reveals personal information. In fact, the Bill which was drafted in 2018 by the Srikrishna committeeclearly stated that the Bill is applicable only to the Personal and not the anonymized data.Quashing this, the new Bill proposed in Lok Sabha takes in consideration the non-personal or anonymised data too leading to better formulating of evidence-based policy by the Central Government.

This consideration is questionable as non-personal data of an individual has no direct connection with the right to privacy. Further, most of the companies which are data fiduciaries legally have the right to process the non-personal data which they have generated through the databases.

 

  1. Social Media Role

The Bill introduced a new concept known as Social Media Intermediary and empowers the government to make some social media intermediaries as the “significant data fiduciaries”. These fiduciaries will have to follow all the norms and regulations laid down by the Data Protection Authority once the Bill is enacted.

These social media intermediaries will then be verified by the Data Protection Authorityand will show a verification mark. The documents required to get the verification mark will further depend on the type of social media intermediary, thus leading to biases and partiality.

 

Loophole of the Bill

 

In the proposed Bill, there has not been any timeframe given within which the Data Protection Authority will be formed which will regulate the working of the data fiduciaries. On the other hand, as soon as the Bill becomes an act, the government will be allowed to access the data without any obligations due tothe exemption policy mentioned in the Bill.

 

Conclusion

 

The Personal Data Protection Bill, 2019 has been proposed in Lok Sabha and is yet to be passed by the Rajya Sabha. The Bill will work in favour to protect the individual's data, thus protecting the right to privacy and other fundamental rights of the Indian citizens. Once the Bill is passed in the Rajya Sabha itwill formulate to become an act. The Bill will be helpful to access the data legally with obligations.

Jurisdiction of Consumer Redressal Forums

Introduction

The Indian economy has been growing since independence and reaching new standards year by year. A rapid growth in the economy has always resulted in surprising the existing market players with new refined and polished players, increasing the gravity of the competition among the vendors and urge of strengthening the position of the business either by profit or broad customer base. In such an area, where there is a cut-throat competition, it became essential to maintain the consumer’s safety. Sellers, in order to make more money, may use unethical practices that may put consumers at risk. In order to avoid the situation and promote consumer’s safety, the government of India came up with a law known as the Consumer Protection Act,1986. The Consumer Protection law came with the provisions conditioning sellers to sell goods and provide services in compliance with the law made on this behalf. Consumer Protection Act, 1986 established three different authorities at three different levels to regulate and resolve matters related to consumers, such authorities have received their powers from the Act, following are the three authorities:

  1. National Consumer Dispute Redressal Commission.
  2. State Consumer Dispute Redressal Commission.
  3. District Consumer Dispute Redressal Commission.

 

Consumer Protection Act, 2019 has repealed the Consumer Act, 1986.

 

Jurisdiction of National Consumer Dispute Redressal Commission

 

National Consumer Dispute Redressal Commission is at the top of the hierarchy, and it works as a Redressal Forum as well as an appellate authority. It also plays a vital role in monitoring the activities of the State Consumer Dispute Redressal Commission and the District Consumer Dispute Redressal Commission.

 

Jurisdiction of National Consumer Dispute Redressal Commission is categorized under the following heads:

  1. Pecuniary: - The National Commission deals with matters that exceed the monetary limit of Rs. Ten crores and above.
  1. Territorial Jurisdiction:  The territorial jurisdiction expands to all states except the state of Jammu and Kashmir, but the person filing any complaint from outside the territory of India will not be entertained by the National Commission under this Act.
  1. Appellate Jurisdiction: - National Commission has an appellate authority that means it can entertain appeals against the orders issued by State and District Consumer Dispute Redressal Commission. Any person intending to file an appeal before the National Commission can file it within the period of 30 days, condonation of delay will be allowed only if a proper justification is provided.
  1. Revisional Jurisdiction: - A revisional jurisdiction states that the National Commission can ask for the records of the State Commission in the situation of any decision provided by the State Commission is incorrect in the opinion of the National Authority. Following are the instances on which the National Commission can demand the records from State Commission:
  1. Whether the commission has exercised its jurisdiction beyond their authority
  2. Whether the commission has failed to exercise their jurisdiction entitled to them
  3. Whether the commission has exercised their jurisdiction illegally
  1. Review Jurisdiction: - National Commission can review its judgements if they are of the opinion that such judgement/ decision requires a revision.

 

Section 67 of the Consumer Protection Act, 2019, states that if any person who is not satisfied with the decision of National Consumer Dispute Redressal Commission may appeal against such authority to the Supreme Court within the period of 30 days from the order. Any person wanting to file an appeal against the National Commission will only be entertained by

 

Jurisdiction of State Consumers Dispute Redressal Commission

 

State Consumer Dispute Redressal Commission is established to resolve the matter related to consumers at the state level under the Consumer Protection Act, 2019. Currently, there are 35 State Commissions in India.

 

Jurisdiction of State Consumer Dispute Redressal Commission:

  1. Pecuniary Jurisdiction: - State Commission will entertain the matters where the cost of goods and services exceeds One CroreRs, but it won’t entertain or deal in any matters that exceed the cap limit of ten crores.
  1. Territorial Jurisdiction: - As far as the State Commission is concerned, it can deal in all the matters related to its geographical limits of the state.
  1. Appellate Jurisdiction: State Commission has been authorized by the Consumer Protection Act to deal and accept all the appeals against the order of the District Commission. Hence, any person who is aggrieved by the decision of the District Consumer Dispute Redressal Commission can file an appeal in the State Commission within a period of 45 days. Delays can be condoned if any valid justification provided by the concerned person only at the discretion of the court. Any person wanting to file an appeal against the District Commission will only be entertained by the State Commission if such person deposits a minimum of 50% of the amount involved.
  1. Revisional Jurisdiction: The State commission can act as the revisional board for the records of the District Consumer Redressal Commission if the States Commission is of the opinion that District Commission has laid down a judgement that is not complying with the provisions of the law. Following are the following reason on the basis, State Commission can ask for the record:
  1. Whether the commission has exercised its jurisdiction beyond their authority.
  2. Whether the commission has failed to exercise its jurisdiction.
  3. Whether the commission has exercised its jurisdiction illegally.

 

Jurisdiction of District Consumer Redressal Commission

 

District Consumer Redressal Commission is the district level commission established under the Consumer Protection Act to resolve and regulate the matters dealing with district-level problems of the consumer.

 

Jurisdiction of the District Consumer Redressal Commission.

  1. Pecuniary Jurisdiction: District forum can entertain all the matters relating to the district level where the cost of transaction or goods and service is below One CroreRs. If the monetary amount exceeds Rs one crore, the matter will be filed in the State forum.
  1. Territorial Jurisdiction: As far as the territorial jurisdiction is concerned, the district forum can entertain all the matters related to or to the extent of its geographical limits.
  1. Appellate Jurisdiction: Being the lowest court in the hierarchy of the authorities according to the Consumer Protection Act, it does not have any appellate jurisdiction.
  1. Review Jurisdiction: - The District Commission has the power to review its own order if it is of the opinion that there is an apparent error in its order or in any application made by any parties, within a period of 30 days.

 

Statute of Limitation

Any person willing to file a suit under the Consumer Protection, 2019 will only be allowed or permitted if such person files the suit within the period of two years. The National Commission, State Commission and District Commission will provide condonation of delay at the discretion of the mentioned authority only under exceptional circumstances.

 

 

Case Laws

 

Rajeev Hitendra Pathak Vs Achyut Kashinath Karekar, (2011) 9 SCC 541

In this case, the main question which arose was ‘whether the District Commission and State Commission have the power to set aside their own ex-parte orders?’ It was held that the Statute does not provide any provision for exercising such powers. Hence the District and the State Commission cannot exercise power to set-aside their own ex-parte orders.

 

Coco-Cola Case(2016)

In the year 2007 Hanfi, bought the bottle of Coco-Cola and was admitted to the hospital for food poisoning. The bottle that he bought was found contaminated by fungus and insects, later to this act, MosoofHanfi moved the District Court, which gave its decision in his favour and the company was liable for a compensation of Rs. 50,000.

As the amount claimed by him was Rs.4 Lacs, he moved the State Commission of MP which also gave a decision in his favour. Appealing against the decision of State Commission, Coco-Cola filed a suit in the National Commission.  NCDRC dismissed the appeal of Coco-Cola giant filed against the order of Madhya Pradesh dispute redressal commission by awarding compensation to Masoof Ahmed Hanfi of Rs. 50,540 payable by the Company. 

 

Manjeet v/s National Insurance Company (2017)

‘A’ a person hired a truck from ‘B’ on hire purchase agreement which was insured for a year. One day as he was transporting the goods from one place to another in the truck, he saw few men asking for a lift, as the road had no other way for commutation he decided to help these people by giving them lift in his truck, after a while of a drive these men asked to halt the truck to sideways for a nature’s call, as everyone alighted from truck these men assaulted the driver and tied his hand with a rope and stole the truck after the owner made claims to insurance company for payment of insurance amount, insurance company disagreed with the claim stating that giving lift to stranger was beyond the provision of policy and performing of such act does not hold insurance company liable to pay the amount. Repealing the arguments of the insurance company, Supreme Court decided that giving lift is a humanitarian gesture and such act does fundamentally nothing contrary to anything that states contrary to the provision of insurance. Justifying, the Supreme Court awarded monetary compensation in a way that insurance company would be liable to pay 75% of the total amount with interest of 9% P.A. to the appellant.      

 

Ms. Rajni Devi Vs Astha Hospital and Maternity (2019)

Rajni Devi was suffering from the medical problem (stones) in both her kidneys. She approached Astha Hospital for her medical treatment. The doctors of Astha hospital advised her to undergo surgery for removal of stones from the kidneys. The surgery was performed and Rs.60,000/- was charged. After discharge, she was suffering from the same pain which she had earlier before the surgery. She obtained ultrasound report and in that it was clearly seen that the stones were not removed properly. There was a deficiency in service. District Commission ordered to refund the sum of Rs. 60,000 with interest at the rate of 9% P.A from the date of complaint till the date of payment, Rs. 10,000 as an expenditure incurred for re-conducting operation, Rs. 3000 for litigation cost and Rs. 10,000 for mental agony. An Appeal was filed before State Commission by Rajni Devi for more compensation. The State Commission held that the District Commission had granted reasonable compensation for mental agony and harassment.

Does telephonic consultations amount to culpable negligence?

What is section 304 of the Indian Penal Code

The section states that whoever commits culpable homicide not amounting to murder shall be awarded imprisonment for life or for a specific term which may be extended up to 10 years and also fine may be imposed on certain cases. It is a non-bailable offence. There are two parts in this section:

First is when an act is done with the intention of causing the death of that particular individual or causing bodily pain or injury which may result in the death of the person then they shall be awarded imprisonment with up to 10 years or more depending upon the discretion and decision of the judge in a particular case.

Secondly, when an act is committed, with the idea that the act may result in death, but not with the intention of causing death(or to commit an act that may directly result in the death of the person).

 

Telephonic consultation by doctors resulting in culpable negligence

 

It is important that the doctors should note that prescribing medicines via telephonic conversation to the patient without diagnosing the problem from which the patient is suffering may result in culpable negligence under section 304 of the Indian penal code.

In today’s times, it is always better that all medical practitioners follow a prescribed set of standard care treatment which they shall provide to the patient so that the medical practitioner does not get punishment with respect to any form of medical negligence as the laws are strict towards the medical practitioner and hence, it is always better to follow the prescribed norms which shall be as per laws.

An error in diagnosing the patient’s health issue shall come under medical negligence under section 304 but, in the case of prescribing medicines without diagnosing the patient’s health issue will result in culpable negligence.

 

Cases

 

  1. Doctor Jacob Mathew’s Case

In this case, the Supreme Court stated that if a doctor has to be made criminally liable for the patient’s death it is very important that the patient or the relatives of the patient must prove that the doctor was incompetent in performing the task or he/she was negligent towards the patients’ health. Whereas cases which are filed under the civil liability, mere compensation is awarded to the victims of medical negligence.

The Supreme Court has laid down certain guidelines as to when an action be taken against medical practitioners with reference to medical negligence, they are as follows-

  • In cases of the error caused while judging the best alternative treatment that could be done in the case. The doctor cannot be accused of culpable negligence in such a case.
  • The medical professionals shall be held liable if they do not possess the requisite professional skill.

 

  1. Martin F D’souza Vs Mohd Ishfaq Case No- 3541 of 2002

In this case, decided by the Supreme Court of India, the two-bench judge explained certain precautions which should be taken by all medical practitioners so that they can protect themselves from complaints which arise due to medical negligence. Further, it lays down that telephonic conversation is under the preview of culpable negligence and one must not prescribe medicines on phone without properly examining the patient.

Sometimes, the telephonic consultation may save time and is more flexible in terms of accessibility as it is more convenient for both the doctor and the patient but it is important that the doctor must arrange a face to face meeting if the condition of the patient is not improving so that there is efficiency in the treatment and the method or the medicines can be changed timely.

The medical practitioner can also record the conversation that is happening between the doctor and the patient with the prior approval of the patient. So, it can be used as proof in case a matter involving culpable negligence arise.

It is important that all medical practitioners maintain all medical records and important data regarding the patient’s health and maintain the confidentiality of the same. It should also be the duty of the doctor to make sure, the information about the patient shouldn’t be shared with anyone.

In cases where the medical practitioners do not follow the rules laid down, it may sometimes lead to medical negligence and charge sheet may be filed against the doctor committing the act.

 

Protection from medical negligence or culpable negligence

 

  1. Meeting the standard care treatment method: The medical practitioner can keep himself up to date with the latest standard care treatment so that the health of the patient is not hampered, and so that it improves through the latest treatment methods which in turn will help the medical practitioner to avoid cases arising out of medical negligence or culpable negligence.
  2. Maintain proper documentation and health records of patients with that of prescribing medicines: It is always better to maintain a record of everything including the medicines that are being prescribed to the patient for improving the health condition. This step will face difficulty in execution in terms of telephonic consultations to maintain a record. And also, the conversations between the doctor and the patient, which can be used as evidence in the court of law if required in future.
  3. The doctor must engage in an interactive session with the patient:It is important that the doctor must speak to the patient and take prior permission before starting any treatment and also it is the duty of the doctor to explain the risks involved and the method or the process in which the treatment will be carried out by the doctor. This must also be recorded in the form of a document or in any other format.

 

Conclusion

 

Thus, if the medical practitioner is prescribing medicines to the patient on call, it would be the duty of the professional to record the conversation and maintain proper documentation of the treatment that he is giving to the patient on call so that he can protect himself from the cases of culpable negligence and as well as medical negligence. This will help the doctor to produce such documents as a part of the evidence in the court of law. The medical professionals shall discharge their duties and responsibilities with the utmost care and shall be careful while giving treatment or performing any minor or complex surgery.

Consumer dispute Redressal Forum in dealing with Medical Negligence

On 24th December 1986, the Consumer Protection Act (COPRA) had been established by the government of India to safeguard the rights and interests of the consumers. However, this act was later modified, and new clauses were added and amended to provide better protection to the consumers in general. This article is going to elucidate certain concepts relating to medical negligence and its involvement under COPRA.

 

Who are consumers?

 

The consumers with relation to the medical industry are:

  1. The patient who pays the doctor for availing the services.
  2. Either of the spouses, parents or any other family relatives.
  3. The legal heirs or the legal representatives of the patient.

 

It was only after the landmark judgment given by the Supreme Court in the case of Indian Medical Association Vs V. P. Shanta that the medical industry and the medical professionals were brought within the ambit of the Consumer Protection Act 1986 under section 2(1)(o) of the Act.

The relationship between a doctor and a patient is completely based on trust and confidence. In the course of the treatment, if the doctor violates any of his/her duties, it amounts to medical negligence by the doctor.  Thus, it is important for the doctors and the patients to know the rules and regulations laid down through the various landmark judgements of the Supreme Court and other such provisions laid down through COPRA in order to safeguard themselves.

 

How can a patient approach the consumer forum

 

The consumer has the option to approach the consumer forum for exercising speedy redressal of medical negligence cases or they can also file a criminal case against the medical practitioner. The consumer must note that in order to file a consumer case under  medical negligence, they must be ready with the following documents:

  1. The prescription, the bills and the references given by the medical practitioner.
  2. One must maintain the medical history records before filing the case in the consumer forum.
  3. It should also be noted that the consent which is given by the patient or the relatives can also be used as evidence in the court of law.

 

Role of consumer dispute redressal forum

 

The Medical Council Act has enlisted provisions to control the negligent acts of medical practitioners in cases of medical negligence. The Indian Medical Association (now, the National Medical Commission) has the right to take disciplinary actions against the medical professionals, who have committed such an act.  Therefore, the consumer dispute redressal forum or the consumer court works as an additional remedy through which compensation is given to the consumers, in this case, patients and their representatives.

The consumer redressal forum, may or may not give the judgment in the favour of the consumer.

There is no specific set of the rules laid down for the consumer dispute redressal forum or the court with regards to medical negligence in India. However, it is high time to make guidelines that the consumer courts have to follow in cases of medical negligence so that the cases of medical negligence are disposed of faster with appropriate compensation and justice to the consumer.

Even in cases of medical negligence under the consumer court, the court says that the burden of proof lies upon the patient or his family. For filing a medical negligence case, it is important to prove that the patient was treated wrongfully by the doctor.

 

Conclusion

 

In the light of recent events with relation to medical negligence, it is important to note that the consumer court should establish specific set of roles for themselves so that if patients approach the consumer forum or the court, then it would be the easier for the patients to determine whether their case stands a chance for speedy redresses of dispute, also, these guidelines will provide certainty. The consumers in the case of medical negligence should make a note that only compensation or monetary gains are awarded to them under COPRA and not imprisonment and other such punishments.


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