Spanish brand, Zara has helped considerably in resolving legal complexities of the fashion industry and Haute Hippie’s allegation of Zara’s copyright infringement is the latest addition to it. Haute Hippie has claimed infringement of a design print by Zara which has fetched the latter huge profits. It claims that Zara “intentionally copied [Haute Hippie’s] Royal Paisley [print] … without license or authority from [Haute Hippie].”

The US law defines copyright as any tangible medium of expression, including the design of a “useful article”. Recognising the definition’s limited scope and growing garment industry, there has been substantial recognition of design rights under the Act. The U.S Copyright law is based on functionality, an essential component of a copyright to be registered. Increasing the ambit of copyrights, all clothing is recognized as functional and can be registered by the Copyright Office.

However, there continues to be a growing demand from the fashion industry to increase protection for its designs, often citing the strict legal remedies in the global fashion capital, Europe. EU law has a very wide definition of design and includes the appearance of the whole or a part of a product resulting from the features of the lines, contours, colors, shape, texture or its ornamentation.

Encouraged by the same designers in the U.S argue that fashion is also a form of ‘artistic expression’ and the lack of recognition has led to perpetual losses being borne by the industry. As a result of the same, a recent effort has been made in the form of Innovation Design Protection Act, 2012 which proposes an extension of copyright protection of fashion designs for 3 years.

The Indian Perspective

The Indian Copyright Act, 1957 vests in original, literary, dramatic, musical and artistic works. The Act is in harmony with the Berne Convention for the Protection of Literary and Artistic Works, 1886 and the Universal Copyright Convention, the Geneva Act, 1952.

Beyond the legal framework, the Indian judiciary has also played an active role in shaping copyright law in the country, allowing wider interpretation to definitions and enabling greater protection to designers. The Delhi High, for instance, in the case of Louis Vuitton Malletier v. Atul Jaggi recognized copyright of plaintiff in ‘Toile Monogram’ pattern as well as in the ‘Murakami’ monograms of the plaintiff.

The application of law to fashion has been extremely painstaking. Every new case brings with it a different aspect of the law, helping it to adapt to the industry, one case at a time.

This roar is just to advice people at a large. Lots of people have booked flats in real estate companies but the companies are delaying the possession and making fool of the customers. Incase you sense that there is something wrong and your possession has been delayed, please take immediate steps or else you will make your case weak. People can file a consumer case under deficiency of services against the builder/company. And also people can file a criminal complaint under section 420 ipc against the builder/ company.  

1- Send a legal notice to the builder/ company.

2- Give them 30 days time to settle the issue.

3- File a consumer complaint u/s 12 of consumer protection act.

4- File a criminal complaint in police station u/s 420 i.e cheating and fraud.

 Start the proceedings immediately which will in turn help you to win the case. 

In case of a cheque bounce, it is mandatory to send a legal notice within 15 days from the date of returning memo. It is also mandatory to give 15 days time to the accused to settle the issue. Without issuing a legal notice, you cannot file a cheque bounce case against the accused. 

Incase the time limit has been crossed, then you will not be able to file a criminal case against the accused. Then the only way to get the money back will be via recovery suit which is a civil suit. 

Thus, it is advisable to take immediate steps  in case of cheque bounce to secure your right to file a criminal case. Any delay in taking action in case of cheque bounce can bar you from filing a criminal case. 

The white soft mithai doused in a sugary syrup was the subject matter of tussle between West Bengal and Odisha. West Bengal government has filed a court petition along with an application for a Geographical Indication (GI) recognition for the Rasgolla. Odisha too applied for a Geographical Indication tag for the sweet.

The Odisha government even formed a committee Odisha's science and technology minister Pradip Kumar Panigrahi to claim that the desert had its roots in Odisha. Rhetorics were high in both the neighboring states as Odisha step further and declared 30 July as 'Rasagolla Dibasa' to celebrate its origin. Odisha had claimed that the sweet originated from the Jagannath Temple in Puri, where it has a part of the religious rituals since the 12th century. Odisha called it 'Pahala Rasgulla' but in its original application to the Geographical Indication, West Bengal had sought the Geographical Indication tag on what they call it as "Banglar Rasogolla" (Bengal's Rasgulla) which was different from that of Odisha in terms of colour, texture, taste, juice content and the manufacturing process.

West Bengal claimed that confectioner Nobin Chandra Das is widely known as the one, who created Rasgolla in the 1860s.The GI Registrar Office settled the issue once and for all granting West Bengal the desired GI tag.

Did You Know - Darjeeling tea became the first Geographical Indication tagged product in India with the enactment of Geographical Indications of Goods (Registration and Protection) Act, 1999. Since then nearly 300 goods have been added to the list. So, what is a Geographical Indication Tag and why were the stakes so high? As defined by the section 2 (3)(e) of the Act, Geographical indication has been defined as "an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be." Essentially, the GI tag is an intellectual property identifier recognizing the origin of a product and providing an assurance of quality and uniqueness, which are attributable to the place of its origin. Once the GI tag is granted to a product, it prevents unauthorized use of the geographical indication by producers elsewhere.

Under Section 39 of the Act anyone who falsely applies or falsifies any geographical indication, tampers the origin of a good or even makes or has in possession machines or other accessories to use in the falsification of GI is an offender. This helps in boosting the business in its indigenous place due to higher export demands owing to its unique identity. A GI is registered for an initial period of ten years, which may be renewed from time to time.

For now, with bragging rights secured over the sweet West Bengal can help manufacturers with better incentives. For Odisha with all the hype it created, the Sweet has left a bitter taste in their mouth. Kolkata the city of Joy can now rejoice even more over its blue-eyed sweet “Rasgolla”.

                                                           INDEX

·         INTRODUCTION

·         INTERCONNECTED GLOBAL ISSUES

·         CLIMATE CHANGE, NCDS AND SUSTAINABLE HUMAN DEVELOPMENT

·         AIR POLLUTION

·         TRANSPORT

·         FOOD AND AGRICULTURE SYSTEMS

·         MEETING THE CHALLENGES OF CLIMATE CHANGE.

·         CONSLUSION

Introduction.

                         Climate change is debatably the most severe challenge facing our planet during the 21st century. Person meddling with the climate system mainly through the emission of conservatory gases and changes in land use has increased the global and annual mean air temperature at the Earth's surface by approximately 0.8 °C since the 19th century. The spatial and temporal degree of the climate challenge intensely connects it to ethical questions as well. These arise both from the fact that the poorest people on Earth are not considerably contributing to global emissions but may well feel the impacts most harshly and from the long-term commitment to future warming and climate change impacts like sea level or the prejudiced melting of the large ice sheets which will be felt by future generations.

INTERCONNECTED GLOBAL ISSUES:

                                                                          Notwithstanding the worsening health impacts of climate change, the links flanked by these two areas create as much an occasion as a danger. NCDs split ordinary risk factors, of which air stain, bodily idleness and poor diet are major causes of morbidity and mortality. These three risk factors share some of the same origins and solutions as climate change, diagonally sectors including energy, transport systems, food and agriculture, and production from industry, commerce and workplaces.                        

CLIMATE CHANGE, NCDS AND SUSTAINABLE HUMAN DEVELOPMENT:

                                                                                                                                                  In September 2015, 193 world leaders committed to achieving seventeen Sustainable Development Goals (SDGs) and 169 targets to end extreme poverty, fight inequality and injustice, and protect our planet by 2030. Referred to as Agenda 2030 for Sustainable Development, health, NCDs and climate change feature prominently in this new set of goals. There is a devoted target on NCDs under goal 3 for health, and goal 13 focuses exclusively on climate action.

AIR POLLUTION:

                                   According to the World Health Organization, air pollution causes 7 million premature deaths annually. Of these, approximately 4 million are attributable to indoor air pollution, due primarily to unclean cook stoves, heating and lighting methods (using solid fuels such as charcoal, wood and crop waste . Around 3 billion people worldwide use unimproved cook stoves , and the resulting smoke inhalation is comparable to smoking two packets of cigarettes daily , significantly increasing the risk of stroke, respiratory diseases, is chaemic heart disease and lung cancer.

TRANSPORT:

                           Urbanisation has brought with it changes in occupation and ways of life, leading to lower levels of physical activity and higher car use. Physical inactivity causes 3.2 million deaths annually and correlates directly with car ownership, which also contributes to rising emissions. Total global annual passenger transport is set to more than double from from 33 trillion to 74 trillion km from 2000 to 205023. Promoting active transport (i.e. forms of transport which involve physical activity, such as cycling and walking) has the dual benefit of reducing emissions and incorporating exercise into daily routine.

Extreme Weather-

                                Many scientists believe that the increase in heat waves, episodes of extreme rainfall, and the intensity of hurricanes may be related to climate changes caused by global warming, and that we can expect harsher weather if the warming trend is allowed to continue.

Droughts Rising-Temperatures may increase the number of droughts, which will in turn affect food crops and water availability across the globe. Many scientists are warning that we may already be seeing agricultural problems as a result of global climate change.

Economic Downturn-In addition, recent economic studies warn of the economic consequences of climate change. One warns that they could be as bad, or worse, than the Great Depression of the 1930s.Of course, there continues to be uncertainty about what the exact consequences of global warming will be, but an overwhelming majority of scientists and leaders are warning that since higher global temperatures and sea levels are a virtual certainty, we cannot afford to wait to see exactly what happens. Uncertainty should not be treated as a reason to sit on our hands and hope that the problem resolves itself. Instead, we must roll up our sleeves and take steps to address this problem now.

Meeting the Challenges of Climate Change.

                                                                              As both the leading producer of greenhouse gas emissions and the world’s most powerful country, the United States has a special responsibility to lead the way in the search for solutions. Fortunately, we have a long tradition of solving big problems and meeting new challenges. It is high time for the American spirit of innovation to be put to work on meeting the challenges of climate change. A final section of this guide suggests a few of the ways that you, as a citizen, can make a difference.

CONCLUSION:

                             After studying the whole topic we would like to conclude that climate change is a very biggest problem in 21^st century. In the recent years there are many type of pollutions which affecting the environment. And it is also considered that ozone layer is 75% damaged by which the rain is very dangerous and gives birth to many diseases. Urbanisation has brought with it changes in occupation and ways of life, leading to lower levels of physical activity and higher car use. Physical inactivity causes 3.2 million deaths annually and correlates directly with car ownership, which also contributes to rising emissions. Total global annual passenger transport is set to more than double from from 33 trillion to 74 trillion km from 2000 to 205023. According to the World Health Organization, air pollution causes 7 million premature deaths annually. Of these, approximately 4 million are attributable to indoor air pollution, due primarily to unclean cook stoves, heating and lighting methods..

KDK_1_GUJ_122773

Motor Vehicles – Motor Vehicles Act, 1988 S 173 – Motor Vehicles Accident – Liability of Insurer when claimant is not third party -  Held, claimant stands as driver, owner, tortfeasor, insured and the claimant also claimed  compensation against his own insurer which is not maintainable - Claimant himself is registered owner of  vehicle - Statute has made it compulsory for securing risk of third party - Claim petition preferred by respondent - Original claimant is not maintainable under provisions of 1988 Act - Tribunal  committed manifest error in entertaining claim petition and making award - For breach of  contract, respondent cannot maintain  claim petition before  Tribunal – Judgment and Award of Tribunal set aside – Appeal allowed ( P 5, 8, 9 and 10)

1_GUJ_122773

The Judgment of the Court was delivered by

R.P. Dholaria, J.:— This appeal is preferred by the appellant against the judgment and award dated 24.9.2014 passed by learned Motor Accident Claims Tribunal (Aux.), Sabarkantha District at Modasa below Exh.47 in Motor Accident Claim Petition No. 1705 of 2013 whereby learned Tribunal was pleased to award compensation of Rs. 3,35,600/- with interest and cost proportionately in favour of the respondent herein - original claimant.

2. The appellant - insurance company has preferred the present appeal, inter alia, contending that the award passed by learned Tribunal is contrary to the provisions of law, the claimant is indisputably not the third party and he cannot maintain the claim petition before the learned Tribunal under the provisions contained under Chapter XI of the Motor Vehicles Act 1988 (“the Act” for short). It is further contended that learned Tribunal fallen in error in holding that as the insurance company has recovered Rs. 50/- towards coverage of personal accident and, therefore, the insurance company is bound to compensate the insured/owner as such.

3. The facts necessary for disposal of this appeal are narrated as under.

3.1 That the respondent - original claimant who is the owner of motor cycle No. GJ 9 AG 7615 himself was proceeding upon his motor cycle on 6.12.2010 at about 6.00 hours in the morning from Modasa to Himatnagar and while the motor cycle was proceeding within vicinity of Lalpura Kampa Na Patiya, at that time, one truck was coming from opposite direction in full light, due to dazzling effect, he fell down and sustained injuries and ultimately, he received permanent disability which led to filing of the claim petition against the appellant - insurance company making the claim that the insurance company has recovered additional amount of premium of Rs. 50/- and, therefore, the insurance company should compensate for the injuries sustained by him.

3.2 Learned Tribunal, after conclusion of trial and hearing, awarded compensation of Rs. 3,35,600/- and along with interest at the rate of 8% and cost proportionately.

4. This Court has heard Mr. Rathin Raval, learned advocate for the appellant - insurance company and Mr. Abhishek Joshi, learned advocate for the respondent - original claimant.

5. Mr. Raval, learned advocate for the appellant - insurance company has submitted that since the claimant himself is registered owner of the vehicle being Morot Cycle No. GJ 9 AG 7615 which is involved in the accident in question and while the accident occurred, he himself was driving. In his submission, the claimant stands as driver, owner, tortfeasor, insured and the claimant also who claimed the compensation against his own insurer for the injuries and damages sustained by him by way of invoking the provisions of Chapter XI of the Act before learned Tribunal.

5.1 Mr. Raval, learned advocate for the appellant submitted that in view of several decisions, the issue involved in the present appeal has been discussed and decided and hence, this issue remains no longer res integra. In support of his submissions, Mr. Raval has placed reliance on the following decisions.

5.2 In 1986 GLH 573 (United India Ins. Company Ltd. v. Jagatsinh Valsinh, this Court has held as under.

“The claimant is held to be tort feasor. It is beyond comprehension as to how a tort-feaser can be awarded compensation for the tortious act committed by him. If the claimant sustained injuries and suffered disablement as a result of such injuries he has to blame himself for it was his own negligence which caused these injuries. If the claimant was negligent he cannot come forward and say “pay me compensation for my own negligence”. The Tribunal has not examined whether the position of a tort-feaser who is employee', would be different from other tort-feasers. (Para 7)”

“The owner has not been found to be liable to pay compensation to the claimant. Thus what is startling is that without holding the owner liable, the insurance company is made liable to pay compensation to the claimant. In fact, award has been passed against the appellant insurance company alone and the claimant's application as against respondent No. 2 owner has been dismissed. The insurance policy taken out by the owner of the vehicle is a contract of indemnity and liability of the Insurance Company, if any is to indemnify the owner of the vehicle to the extent he is made liable to pay damages or compensation. Therefore, unless the owner is made liable, the insurance company cannot be held liable. Unfortunately, we find that the Tribunal has lost sight of this elementary principle and passed award against the appellant insurance company without making respondent No. 2 liable to pay compensation, to the claimant. (Para 9).”

5.3 In 2007 V (0) GLHEL-SC 38690 (Oriental Insurance Company Limited v. Jhuma Saha, the Honourable Supreme Court has held as under.

“Motor Vehicles Act, 1988 - S.147, 166-motor accident - owner himself involved in accident, resulting in his death - he himself was negligent - accident did not involve any othr motor vehicle liability of Insurance Company - claim petition under S.166 - maintainability of - held, liability of insurer-company is to the extent of indemnification of insured against injured persons, a third person or in respect of damages of property - if insured cannot be fastened with any liability, question not arise-additional premium under the insurance policy was not paid in respect of entire risk of death or bodily injury of owner of vehicle - present case did not fall under S.147(b) as it covers a risk of a third party only - impugned judgment, being unsustainable, set aside - appeal allowed.”

“3. The deceased was the owner of an insured vehicle bearing Registration No. TR 03-2304, a maruti van. While he was driving the said vehicle, allegedly, in olrder to save a goat which was running across the road, the steering of the vehicle failed and it dashed with a tree on the road side. He suffered injuries. He later on succumbed thereto.”

“10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving, the question which arises for consideration is that the deceased himself being negligent, the claim petition u/s 166 of the Motor Vehicles Act, 1988 would be maintainable.

11. Liability of the insurer-Company is to the extent of indemnification of the insured against the respondent or a injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of Motor Vehicle Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.”

5.4 In 2004 (0) GLHEL-SC 7855 (Dhanraj v. New India Assurance Company Limited, the Honourable Supreme Court has held as under.

“8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or raising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.

9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi, 1988 0 ACJ (SC) 121, it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured, i.e., an owner of the vehicle has no liability to a third party the insurance company has no liability also.”

5.5 In 2009 (0) GLHEL-SC 43604 (Ningamma v. United India Insurance Company Limited), the Honourable Apex Court has held as under.

“19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.

20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs……”

5.6 In III (2007) CPJ 12 (SC) (National Insurance Co. Ltd. v. Laxmi Narain Dhut), the Honourable Apex Court has held as under.

“21. Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company. But it has to be decided by an other Forum i.e. Forum created under the Consumer Protection Act, 1985 (in short the ‘CP Act’). Before the Tribunal, there were essentially three parties i.e. the insurer, insured and the claimants. On the contrary, before the Consumer Forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come in to the picture. Therefore, these are cases where there is no third party involved.

22. According to learned Counsel for the appellants, in such cases the logic i.e. let the insurer pay and recover from the insured company does not apply.

23. As noted above, there is no contractual relation between the third party and the insurer. Because of the statutory intervention in terms of Section 149, the same becomes operative in essence and Section 149 provides complete insulation.

24. In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake licence has to be considered differently in respect of third party and in respect of own damage claims.”

5.7 Relying upon the aforesaid decisions, Mr. Raval, learned advocate for the appellant has submitted that since in the present case, two parties are involved and there is no third party, learned Tribunal has no jurisdiction to decide the claim itself. He further submitted that insured/owner of the offending vehicle cannot maintain the claim invoking the provisions of section 166 of the Act before learned Tribunal against his own insurance company for claiming compensation for the injuries sustained by him. He submitted that even on perusal of the provisions of law contained in Chapter XI of the Act itself, it is amply clear that learned Tribunal has wrongly exercised the jurisdiction though learned Tribunal is not having any authority to decide the claim petition when the third party I is not involved in such claim petition and wrongfully awarded the compensation which is required to be set aside as such.

6. On the other-hand, Mr. Abhishek Joshi, learned advocate for the respondent - original claimant has supported the judgment and award passed by learned Tribunal. He submitted that since the insurance company has already recovered additional premium of Rs. 50/- for coverage of risk of the owner/driver himself, the award passed by learned Tribunal is in consonance with the contractual liability undertaken by the insurance company. In support of his submission, Mr. Joshi has relied upon the following decisions.

6.1 In (2008) 5 SCC 736 (Oriental Insurance Company Limited v. Rajni Devi), the Honourable Apex Court has held as under.

“12. According to the terms of contract of insurance, the liability of the Insurance Company was confined to Rs. 1,00,000 (Rupees one lakh only). It was liable to the said extent and not any sum exceeding the said amount.”

6.2 In 2009 (0) GLHEL - SC - 44069 (Bhagyalakshmi v. United Insurance Co. Ltd.), the Honourable Apex Court has held as under.

“Before this Court, however, the nature of policies which came up for consideration were Act polices. This Court did not deal with a package policy. If the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third party risk which would include all persons including occupants of the vehicle and the insurer having entered into a contact of insurance in relation thereto, we are of the opinion that the matter may require a deeper scrutiny.”

6.3 In 2012 (0) GLHEL - SC 52350 (Oriental Insurance Company Ltd. v. Surendra Nath Loomba), the Honourable Apex Court has held as under.

“14. We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record. The learned counsel for the appellant - insurer would submit that it is an “Act Policy”. The learned counsel for the respondent would seriously dispute and submit that extra premium might have been paid or it maybe a “Comprehensive/Package Policy”. When Certificate of Insurance is filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.”

7. The precise contention of Mr. Joshi, learned advocate for the respondent - original claimant is such that if learned [Tribunal having no jurisdiction, in that case also, once the insurance company has recovered additional premium of Rs. 50/- for personal accident coverage of the owner himself in terms of the contract of the insurance, liability of the insurance company is already confirmed to Rs. 1,00,000/- for the coverage of personal accident insurance and in that case, learned Tribunal can surely make the award to the extent of Rs. 1,00,000/-.

8. Taking into consideration the rival submissions made by learned advocates for both the sides, ratio laid down in the above referred decisions by the Honourable Apex Court in light of the peculiar facts and circumstances of the case, indisputably, the claimant himself stands as registered owner and he himself was driving the offending vehicle as well as he himself has preferred the claim petition against his own insurance company claiming compensation for injuries sustained by him and resultant damages suffered by him. Indisputably, the claimant is not the third party. He is insured and the respondent insurance company is the insurer. Chapter XI of the Act makes the provision for insurance of the motor vehicle against the third party risk and the statute has made it compulsory for securing the risk of the third party and in the case on hand, if the injury or damage is suffered by the third party, then the third party can claim and maintain the claim petition before the Motor Accident Claims Tribunal constituted under the said Chapter.

9. In view of the ratio laid down by the Honourable Apex Court in the above referred decisions, the claim petition preferred by the present respondent - original claimant is not maintainable under the provisions of the Act and learned Tribunal has committed manifest error in entertaining the claim petition and making the award, as such.

10. So far as the argument of Mr. Joshi as regards to passing the award to the extent of contractual insured amount of Rs. 1,00,000/- is concerned, the said liability arises between the parties by virtue of the contract and in case of breach of contract, party to the contract can avail legal remedy either before the competent civil court or before the consumer forum as may be advised, but surely for breach of such contract, he cannot maintain the claim petition before the learned Tribunal constituted under the Act.

11. For the reasons recorded above, the appeal succeeds. The impugned judgment and award dated 24.9.2014 passed by learned Tribunal is quashed and J set aside. If any amount is deposited by the appellant insurance company either before the registry of this Court or before the learned Tribunal, the same shall be refunded to the insurance company forthwith. Record and Proceedings, if any, be sent back to the lower court forthwith. No order as to costs.

12. In view of the above order, the Civil Application does not survive and the same stands disposed of accordingly.

———

KDK_1_KER_247502

 Kerala High Court

Taxation – Direct Taxation – Income Act, 1961 S 264 – Claim for deduction – Held, if there is failure on part of petitioner in making claim for deduction, whether it is possible for Commissioner to grant one more opportunity - Petitioner sought for deduction of Rs. 4,60,617/- on premise that said expenditure was claimed as application for purpose of charitable purpose - Commissioner in Ext. P1 observed that intimation under S 143(1) of 1961 Act is not  order of assessment for purpose of S 264 of 1961 Act  - Statutory provisions that mere intimation does not amount to  order which could be revised under S 264 of 1961 Act - Revisional powers are very wide - Even if no such claim has been made earlier, such a claim can be entertained by Commissioner under S 264 of 1964 Act - Commissioner of  Income Tax is directed to reconsider matter – Petition disposed (P 13, 16, 17 and 19)

1_KER_247502

The Judgment of the Court was delivered by

A.M. Shaffique, J.:— This writ petition is filed challenging Ext. P1 by which the Principal Commissioner of Income Tax, Kochi-2 has issued an order under Section 264 of the Income Tax Act, 1961 dismissing a petition for revision filed by the assessee. Petitioner also seeks for a direction to hear him and pass appropriate orders.

2. The short facts involved in the writ petition would disclose that the petitioner is a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955. Return was filed for the assessment year 2013-14 on 26/12/2013 showing the taxable income of Rs. 3,03,183/-. Petitioner received an intimation under Section 143(1) of the Income Tax Act, 1961 on 16/11/2014 disallowing the claim of expenses for the reason that petitioner does not have registration under Section 12A of the Act. Petitioner was assessed to a liability of Rs. 2,85,190/-. Petitioner filed an objection to the proposed assessment. Thereafter no response was received. Petitioner later revised its return on 3/2/2015. Ext. P9 is the revised return. No action was taken by the revenue based on the revised return. Petitioner thereafter received a reminder dated 19/2/2015 for non payment of the outstanding amount of Rs. 2,85,190/-. Petitioner sent a reply requesting to consider his revised return. Since there was no response, he filed a revision petition under Section 264 of the Act (Ext. P12). It was heard by the Principal Commissioner of Income Tax Kochi on 23/3/2016 and by Ext. P1 order dated 28/3/2016, he declined to exercise the revisional authority.

3. The main contention urged by the petitioner is that revenue has assessed the petitioner to tax without affording him an opportunity of being heard. The assessing officer has not responded to his claim to consider the clarifications on the income and expenditure. He is prejudiced on account of the failure of the 2^nd respondent to entertain the revision petition under Section 264 and hence challenging the impugned order, this writ petition is filed.

4. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the respondents. Several judgments have been cited which are dealt hereunder:—

5. In Parekh Brothers v. Commissioner of Income Tax [1983 (15) Taxman 539 (Kerala)], a Division Bench of this Court had occasion to consider a question regarding the scope of revisional power of the Commissioner under Section 264 of the Income Tax Act, 1961. After an evaluation of the various judgments, it was held that even though a mistake was committed by the assessee and it was detected by him after the order of assessment, and the order of assessment is not erroneous, nonetheless it is open to the assessee to file a revision before the Commissioner under Section 264 and claim appropriate relief. In the said case, the question under consideration was whether the Commissioner can exercise the revisional jurisdiction, when the assessee having included the income for assessment, can claim the relief of weighted deduction under Section 35B for the first time in a petition filed under Section 264. It was held that the Commissioner has jurisdiction to entertain a revision under Section 264.

6. In S.R. Koshti v. Commissioner of Income Tax [2005 (146) Taxman 335 (Guj.)], a Division Bench of the Gujarat High Court held that an intimation under Section 143(1) of the Act is not an order of assessment. However, regardless of whether revised return was filed or not, once an assessee is in a position to show that he had been over assessed under the provisions of the Act, regardless of whether the over assessment is a result of assessee's own mistake or otherwise, the Commissioner of Income Tax has the power to correct the assessment as per Section 264(1) of the Act.

7. In Manoharlal Agarwal v. Commissioner of Income Tax (2014 (222) Taxman 138 (Guj)), a revision under Section 264 was rejected and one of the grounds was that the petitioner's return under Section 143(1) of the Act cannot be described as an order which is subject to revision under Section 264. It was held that if any person having furnished a return under sub section (1), or in pursuance of a notice issued under sub section (1) of Section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of assessment, whichever is earlier. It was held that the revised return submitted by the petitioner was within time and therefore he was entitled for refund of the TDS already deposited with the Department.

8. Yet another judgment relied upon is Assam Roofing Ltd. v. Commissioner of Income Tax [2014 (43) Taxman.com 316 (Gauhati)]. In this case, placing reliance upon judgment in Parekh Brothers (supra), the High Court held that intimation passed under Section 143(1) by the assessing authority is equally an order which can be questioned and can be made subject matter of revision under Section 264 before the Commissioner for deciding the issues raised therein by the assessee on merits.

9. The Delhi High Court in Vijay Gupta. v. Commissioner of Income Tax [2016 (238) Taxman 505 (Delhi)], held that intimation under Section 143(1) is regarded as an order for the purpose of Section 264 and therefore an application under Section 264 is maintainable against such an intimation.

10. In Larsen and Toubro Ltd. v. Asst. Commissioner of Income Tax [2010 (190) Taxman 373 (Bombay)], it was held that rejection of an application under Section 197 amounts to an order and the expression “order” for the purpose of section 264 has a wide connotation. Any order passed by an authority subordinate to the Commissioner, other than an order to which Section 263 applies, is subject to the revisional jurisdiction under Section 264.

11. On the other hand, learned standing counsel for the revenue placed reliance on the judgment of this Court in Commissioner of Income Tax v. K.V. Mankaram and Company [2000 (245) ITR 353]. In this case, the Division Bench considered the question as to whether a proceeding under Section 143(1)(a) amounts to an order of assessment. It is held that the expression “assessment” is clearly referrable to sections 143, 144 and 147 of the Act. A proceeding under Section 143(1)(a) does not result in an order of assessment. For the purpose of Sections 154, 246 and 264, proceeding under 143(1)(a) is treated as an order by the assessing authority. However, the intimation given under Section 143(1)(a) cannot be treated to be an order of assessment. It is only to be deemed as an order for the limited purpose of sections 246 and 264 of the Act. Under section 143(1)(a)(i), the intimation is deemed to be a notice of demand under Section 156 of the Act and it is not treated as an order of assessment. The two are conceptually different and except intimation, no other order is contemplated under 143(1)(a). It was also held that there is a distinction between an order of assessment and a notice of demand and an intimation under Section 143(1)(a) is deemed to be a notice of demand. However, in the judgment, it is held that an intimation under 143(1)(a) is deemed to be an order for the limited purpose of Section 264 of the Act as well.

12. In Asst. Commissioner of Income Tax v. Rajesh Jhaveri Stock Brokers Private Ltd. (2007 (291) ITR 500 SC), the Apex Court had occasion to consider the scope of Section 143(1)(a). It was observed that as a result of the insertion of Explanation to Section 143 by the Finance Act, 1991 from October 1^st 1991 and subsequently with effect from 1^st June, 1994 by the Finance Act, 1994 and ultimately omitted w.e.f. 1^st June, 1999, an intimation sent to the assessee under Section 143(1)(a) was deemed to be an order for the purposes of Section 246 between 1^st June, 94 and 31/5/1999 and under Section 264 between 1^st October, 91 and 31^st May 1999. It is held that the expressions “intimation” and “assessment order” have been used at different places. Assessment is used as meaning sometimes “the computation of income” sometimes “the determination of the amount of tax payable” and sometimes “the whole procedure laid down in the Act for imposing liability upon the tax payer”. It is held that in the scheme of things, the intimation under Section 143(1)(a) cannot be treated to be an order of assessment.

13. Coming back to the facts, Ext. P7 is the intimation received by the petitioner under Section 143(1) of the Act. Pursuant to Ext. P7, petitioner submitted Ext. P8 reply on 11/12/2014 indicating that receipt of Rs. 7,63,800/- consists of voluntary contribution of Rs. 7,41,300/- and its interest. The sum of Rs. 7,41,300/- was received towards specific projects or activities and not a blanket contribution against which the petitioner had incurred the expenditure as directed by the donor. The relevant details were also furnished. Hence, the petitioner sought for deduction of Rs. 4,60,617/- on the premise that the said expenditure was claimed as an application for purpose of charitable purpose. Petitioner also sought for rectifying the return and accordingly a rectified return had been furnished as Ext. P9. Ext. P12 dated 22/4/2015 is the revision filed before the Commissioner. The Commissioner in Ext. P1 observed that intimation under Section 143(1) is not an order of assessment for the purpose of Section 264 whereas it is deemed to be a notice of demand under Section 156 as held by the Karnataka High Court in Avasaraja Automation Ltd. v. Deputy Commissioner of Income Tax (2004 (269) ITR 163).

14. The power of the Commissioner of Income Tax to revise orders is dealt with under Section 264. The short question involved in the present lis is whether an intimation issued under Section 143(1) amounts to an order which could be revised under Section 264. In fact, it is relevant to note that there had been some changes in the statutory format over a period of time. Section 143 has undergone certain changes w.e.f. 1/6/1999. The statute uses the word intimation and not order. Section 143(2) further provides that in an instance where a return has been furnished or in response to a notice under Section 142(1), the assessing officer has reason to believe that any claim of loss exemption, deduction, allowance or relief made in the return is inadmissible, it is open for him to serve on the assessee a notice specifying particulars of such claim, loss, exemption, etc. and after conducting such enquiry in terms with sub section (2), the assessing officer can pass an order under Section 143(3). It is in the light of the aforesaid change in the statutory provision that one has to consider the scope and effect of the revisional powers under Section 264. The Delhi High Court in Vijay Gupta (supra) held that an intimation under section 143(1) is regarded as an order for the purpose of section 264 of the Act. Reference was made to the judgments in K.V. Mankaram and Co. (supra), Assam Roofing Ltd. (supra) and S.R. Koshti (supra). But it is relevant to note that there is a modification or change in the statutory format where an intimation under Section 143(1) was deemed to be an order for the purpose of Section 264 at some point of time. This aspect of the matter has been explained by the Kerala High Court in K.V. Mankaram and Co. (supra), wherein, it was held that a proceeding under Section 143(1)(a) is treated as an order by the assessing authority for the purpose of Section 264. The Division Bench was considering the question relating to assessment year 1995-96. The change in the statutory provision had been explained by the Apex Court in Rajesh Jhaveri Stock Brokers P. Ltd. (supra) wherein it is clearly indicated that an intimation sent to the assessee under Section 143(1a) was deemed to be an order for the purpose of Section 264 from 1^st October 1991 to 31^st May 1999. The Apex Court was in fact considering the question relating to assessment year 2001-02. It was held at paras 12 and 13 as under:—

“12. What were permissible under the first proviso to section 143(1)(a) to be adjusted were, (i) only apparent arithmetical errors in the return, accounts or documents accompanying the return, (ii) loss carried forward, deduction allowance or relief, which was prima facie admissible on the basis of information available in the return but not claimed in the return and similarly (iii) those claims which were on the basis of the information available in the return, prima facie inadmissible, were to be rectified/allowed/disallowed. What was permissible was correction of errors apparent on the basis of the documents accompanying the return. The Assessing Officer had no authority to make adjustments or adjudicate upon any debatable issues. In other words, the Assessing Officer had no power to go behind the return, accounts or documents, either in allowing or in disallowing deductions, allowance or relief.

13. One thing further to be noticed is that intimation under section 143(1)(a) is given without prejudice to the provisions of section 143(2). Though technically the intimation issued was deemed to be a demand notice issued under section 156, that did not per se preclude the right of the Assessing Officer to proceed under section 143(2). That right is preserved and is not taken away. Between the period from April 1, 1989 to March 31, 1998, the second proviso to section 143(1)(a), required that where adjustments were made under the first proviso to section 143(1)(a), an intimation had to be sent to the assessee notwithstanding that no tax or refund was due from him after making such adjustments. With effect from April 1, 1998, the second proviso to section 143(1)(a) was substituted by the Finance Act, 1997, which was operative till June 1, 1999. The requirement was that an intimation was to be sent to the assessee whether or not any adjustment had been made under the first proviso to section 143(1) and notwithstanding that no tax or interest was found due from the assessee concerned. Between April 1, 1998 and May 31, 1999, sending of an intimation under section 143(1)(a) was mandatory. Thus, the legislative intent is very clear from the use of the word intimation as substituted for assessment that two different concepts emerged.

While making an assessment, the Assessing Officer is free to make any addition after grant of opportunity to the assessee. By making adjustments under the first proviso to section 143(1)(a), no addition which is impermissible by the information given in the return could be made by the Assessing Officer. The reason is that under section 143(1)(a) no opportunity is granted to the assessee and the Assessing Officer proceeds on his opinion on the basis of the return filed by the assessee. The very fact that no opportunity of being heard is given under section 143(1)(a) indicates that the Assessing Officer has to proceed accepting the return and making the permissible adjustments only. As a result of insertion of the Explanation to section 143 by the Finance (No. 2) Act of 1991 with effect from October 1, 1991, and subsequently with effect from June 1, 1994, by the Finance Act, 1994, and ultimately omitted with effect from June 1, 1999, by the Explanation as introduced by the Finance (No. 2) Act of 1991 an intimation sent to the assessee under section 143(1)(a) was deemed to be an order for the purposes of section 246 between June 1, 1994, to May 31, 1999, and under section 264 between October 1, 1991, and May 31, 1999. It is to be noted that the expressions intimation and assessment order have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer. In the scheme of things, as noted above, the intimation under section 143(I)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(I)(a) as it stood prior to April 1, 1989, the Assessing Officer had to pass an assessment order if he decided to accept the return, but under the amended provision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent.

Various circulars sent by the Central Board of Direct Taxes spell out the intent of the Legislature, i.e., to minimize the departmental work to scrutinize each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D.K. Jain J.) in Apogee International Limited v. Union of India [(1996) 220 ITR 248]. It may be noted above that under the first proviso to the newly substituted section 143(1), with effect from June 1, 1999, except as provided in the provision itself, the acknowledgment of the return shall be deemed to be an intimation under section 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any Assessing Officer, but mostly by ministerial staff. Can it be said that any assessment is done by them? The reply is an emphatic no. The intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise.”

15. The next question to be considered is whether the said intimation being a demand under Section 156 of the Act, can a revision under 264 be filed. Section 156 reads as under:—

“156. Notice of demand.- When any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under this Act, the Assessing Officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable.”

16. It is clear therefore from the statutory provisions that a mere intimation does not amount to an order which could be revised under Section 264. In Parekh Brothers (supra), the question which was considered was whether Section 264 can be invoked for the purpose of making a claim of deduction under Section 35B.

17. The argument is that independent of the notice issued under Section 143(1)(a), if there is failure on the part of the petitioner in making a claim for deduction, whether it is possible for the Commissioner to grant one more opportunity in the matter. It is settled law that the revisional powers are very wide. Petitioner is now faced with a demand which according to the petitioner is liable to be reduced on specific reasons. In Parekh Brothers (supra), this Court held that even if no such claim has been made earlier, such a claim can be entertained by the Commissioner under Section 264. Viewed in that angle, I am of the view that though not as a challenge to Section 143(1) notice, when the petitioner has filed a revised return and has sought for interference by the Commissioner, necessarily the claim has to be considered in accordance with law.

18. In the result, I am of the view that taking cue from Parekh Brothers (supra), the Commissioner will be justified in considering the claim for deduction by the petitioner in accordance with law under Section 264 of the Act.

19. Accordingly, this writ petition is disposed of as under:—

(i) Ext. P1 is set aside.

(ii) The Commissioner of Income Tax is directed to reconsider the matter in accordance with law. This shall be completed within a period of three months from the date of receipt of a copy of this judgment after hearing the petitioner.

———

CONTENTS

1)  INTRODUCTION.. 1

2)  MEANING.. 1

3)  THE COMPLEXITY OF DEFINITION.. 3

4)  ORIGINS OF DISCRIMINATION.. 5

5)  THE EXPERIENCE OF DISABILITY.. 6

6)  CONCLUSION.. 8

1)   INTRODUCTION

Discriminatory action against the physically or cognitively less able in some form or other has been an integral part of almost every society throughout history. And although it is undoubtedly true that the more extreme forms of negative discrimination which were synonymous with earlier epochs, such as violent persecution and infanticide have largely disappeared, the fact remains that the quality of life experienced by the majority of handicapped people in modern society is considerably lower than that enjoyed by their able-bodied contemporaries. Moreover, it appears that as our society becomes ever more socially and technologically complex the numbers of people perceived as disabled is steadily increasing. Indeed one writer has estimated that there are over nine million handicapped people living in the British Isles (see chapter one) and there is little evidence to suggest that these figures are likely to decline in the foreseeable future.

2)   MEANING

 Now the fact that the general standard of living experienced by this increasingly large section of the community is consistently lower than that of the majority indicates that the discrimination against the disabled in modern society is still a reality, and although the social effects of this phenomenon are less obvious than those associated with earlier more violent times they are none the less debilitating for those concerned. This essay is an attempt to understand the causes and effects of discrimination against disabled people. Generally speaking, apart from the work of Erving Goffman and Fred Davis, relatively little has been written on the subject of disability within Sociology. While their work has highlighted the complexity of the process of social interaction between the handicapped and the able-bodied, both authors have been content to place the subject of disability alongside deviance and minority group membership as a social phenomenon. This I feel is a mistake - apart from the fact that deviance and deviant behaviour, and to some degree, minority group membership are generally associated with some elements of choice, freedom of action and morality, the same cannot be said of the disabled. They are as they are through no fault of their own and given the option most would welcome the opportunity to return to normality - certainly in terms of mental or physical limitations at least, the same cannot be said of many forms of deviance. Further, this tendency to position disability with other minority groups has allowed the several unique features of this most fundamental - albeit unrecognised - of social phenomenon to be overlooked as hopefully this essay will demonstrate. With reference to the opening quotation my own interest in this subject can be explained with some trepidation on my part by the fact that I was born with a hereditary eye disease which meant that I was educated as special schools for the deaf and blind until the age of eleven and had it not been for the remarkable, pardon the pun, far-sightedness of my parents would have remained there until the school leaving age - then fifteen. This would have meant that I would have ended up in a 'sheltered' workshop for the handicapped or permanently unemployed as most of my primary school peers apparently did. After a careful reading of much current sociology it became evident that very little work had been done in this area. Therefore it seemed natural that I should look to the experience of disability as a subject for analysis. I must emphasize at this juncture that I have much sympathy with the view of Peter Townsend in 'Sociology and Social Policy 1975' who has argued that in many instances the separation of sociology from social policy is quite illegitimate - disability it would appear is just such an instance. Throughout this analysis I have tried to remain within the boundaries of sociology although I have drawn heavily upon material from other disciplines particularly social policy. Moreover I believe it is quite legitimate for the sociologist to draw upon material from other 'sciences' in order to prove his case and this is what I have tried to do. The following dissertation then is divided into four distinct sections, plus of course a conclusion. Indeed for most it is essential - simply because in order to ensure the welfare benefits available - often their only source of income - they are forced to accept the stigmatizing mantle of 'disabled person'. Moreover, although this chapter briefly discusses the numerous attempts at definition which have been used in the past and even adopts a broad description for the purposes of this analysis, I am not attempting to define disability. This chapter should be seen as a ground clearing exercise simply due to the fact that many concepts need to be clarified if the problems associated with society's attitude toward the handicapped are to be fully understood. The second part of the essay is concerned with the strategies of exclusion which our society has adopted toward the physically and mentally impaired throughout history. This chapter illustrates how the open hostility and persecution which characterized earlier less socially and technologically diverse societies slowly gave way to what can only be described as the less predictable ambivalence associated with the modern welfare state.

3)   THE COMPLEXITY OF DEFINITION

Disability has many dimensions - medical, economic, legal and bureaucratic. In fact one of the most significant features of handicap, both physical and mental, and the problems it creates both for the individual and society, is its sheer diversity. Differences in causation alone are indeed many while the degree of dissimilarity between impairment, severity and prognosis are often quite extreme. It could be argued that the experience of handicap is no respecter of class, age, sex or ethnicity. Although undoubtedly different social classes are exposed to different causes of impairment. For example, the upper classes are less likely to suffer disabilities associated with heavy industrial work such as coal mining than are the working class. Equally ethnic minorities are often subject to racial discrimination and economic deprivation and may have a higher instance of diseases associated with poverty such as rickets than other social groups. But generally it would be true to suggest that disability can strike anyone, regardless of his or her social rank or status. To move from impairment to handicap is to cover the ground between symptom and social role. disability handicap. Two people with similar functional limitations often react to the circumstances in which they find themselves completely differently. Here variations in resources both personal and communal are extremely important. In Britain quantitative analysis of the handicapped to date has provided relatively adhoc and inconclusive. The first attempt at such an enterprise occurred in the census of 1851 which posed questions concerning the deaf and blind. However the British people were medically examined for the first time ‘en masse’ in 1917 for military service. It was concluded that 10% of the total male population were unfit for military service, 41.5% (in London 48-49%) had marked disabilities, 22% had ‘partial’ disabilities, while only a third were considered to be in satisfactory shape. It is important to note that the author who reported these findings does not give any details of criteria used in the examinations.

4)   ORIGINS OF DISCRIMINATION

To pinpoint precisely the root causes of our attitudes toward the disabled would, I believe, be almost impossible. One author goes so far as to suggest that our primitive ancestors lived in such an extremely harsh hostile environment, which placed such a high emphasis upon the basic techniques of survival, that there could be no margin for the provision for those unfortunate members of society who were unable to take care of themselves, such as the weak, the sick and the disabled. With the advent of basically stable communities which were able to produce a limited economic surplus, due principally to the evolution of some form of agriculture, the possibilities of survival for the physically and mentally incapacitated became more feasible although social acceptance was much more difficult. As a result these unfortunate infants were quietly returned to what was thought of to be their natural relatives - the hippopotamuses and their natural habitat - the river. Another example of a similar culture’s response to such apparent anomalies is illustrated by Mary Douglas’ description of a West African community which believed two humans cannot be conceived in the same womb at the same time. Therefore twins were mercilessly murdered at birth

5)   THE EXPERIENCE OF DISABILITY

As the previous discussion has clearly shown, to be disabled is to be discriminated against. As a result to become disabled is to acquire a new identity. To be born with a handicapping condition is to have this new identity assigned the instant the condition is detected and diagnosed. A world in which the rich tapestries of sound are nothing more than a cherished memory or an incomprehensible experience seemingly taken for granted by the rest of society, where conversation is restricted to the constraints of sign language - a language which despite its immense scope is generally only understood by the deaf themselves; where communication with the rest of society largely depends upon mastery of the difficult techniques of lip reading - a method of communication with obvious limitations. How can anyone blessed with the gift of sight contemplate the prospect of spending the rest of their lives in complete darkness. How are we to empathise with someone who can never be free of a dependence upon others for the simplest of tasks. For the blind it is a reality which can stimulate a wide spectrum of emotions ranging from resentment and isolation to complete apathy and total dependence. Can the experience of disability be any the less devastating for the thousands of unfortunate individuals who are crippled and maimed in our factories and on our roads each year? How can anyone who is lucky enough to have good health ever understand what it feels like to be told they have contracted a debilitating degenerative disease such as Multiple Sclerosis? The realization that one has been relegated to the ranks of the sub-normal - the handicapped, invokes a number of reactions both from the disabled themselves as well as the rest of society. Some writers have suggested that the psychological adjustment to the realization one is disabled can be perceived as a series of psychological stages which have to be worked through. This concept is particularly pertinent to the newly afflicted due to accident or the onset of a crippling disease, but may also be applicable to children who may not realize they are disabled until they come into contact with normality, say after leaving home or special school. One author has characterized these typologies and claims they all partially assume the individual has to pass through this sequence of stages in order to be socialized. A typical example of these psychological stages which the disabled are expected to pass through is a) shock, b) denial, c) anger, d) depression. Movement is one way, each stage has an acceptable time frame and the individual can be placed at each stage by operational criteria.

6)   CONCLUSION

My objective throughout this essay has been to bring to the attention of sociology one of the most consistent and complex features of all known human societies, namely discrimination against the physiologically and cognitively less able. The systematic separation of the handicapped from normal everyday society has meant that they and the enormous difficulties, both social and economic, which they encounter in the course of their daily lives, are generally outside the boundaries of our consciousness. To a large extent this also applies to many sociologists. They too have tended to overlook the handicapped members of society, both as individual social actors and as a social group. This in my view is a fundamental mistake. As this essay has shown, the majority of the problems associated with physical and mental disabilities are socially constructed and as such are the legitimate subject matter of this discipline.