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In a recent Judgment dated 19-08-2020 that was passed by the Hon’ble Supreme Court of India by J. Rishikesh Roy in a Transfer Petition (Crl) No. 225 of 2020 titled Rhea Chakraborty vs State of Bihar was read more
In a recent Judgment dated 19-08-2020 that was passed by the Hon’ble Supreme Court of India by J. Rishikesh Roy in a Transfer Petition (Crl) No. 225 of 2020 titled Rhea Chakraborty vs State of Bihar was filed by Actress, Rhea Chakraborty. The matter before the Supreme Court was whether the FIR filed by Mr. Krishan Kishore Singh (the Complainant), father of Late Sushant Singh Rajput (the Deceased) was maintainable in view of the fact that police investigations were underway in Mumbai.
To read more, please find the link below:
#sushantsinghrajput #ssr #supremecourt #fir #crpc #rheachakraborty #biharpolice #mumbaipolice
Difference between Revision, Review and AppealArticle 21 of the Constitution expresses that, "no individual will be denied of his life or individual freedom with the exception of as indicated by strategy read more
Difference between Revision, Review and Appeal
Article 21 of the Constitution expresses that, "no individual will be denied of his life or individual freedom with the exception of as indicated by strategy built up by law."
In this manner each individual merits the option to at any rate one appeal with the goal that equity is dispensed reasonably in any lawful system, characteristic equity wins and the privilege to life and freedom might be safeguarded. The force given to residents, of revision and appeal, hold jurisprudential, philosophical and handy noteworthiness. This privilege might be utilized by anybody, the blamed or vindicated just as the one asserting the violations. Here, we will talk about the arrangement of appeal, review and revision
Review is the intensity of exploring of its own judgment is given on the court. Section 114 and Order 47 of Civil procedure Code gives the option to audit the judgment. Section 114 gives just option to audit the judgment and order 47 of CPC gives restrictions and conditions. Article 137 of the Indian Constitution permitted the Supreme Court to audit its own requests and judgment. The target behind this force is to guarantee equity. It is properly said that Law needs to twist before equity. The dictionary meaning of Review is a conventional evaluation of something with the aim of founding change if vital. A) No Right of appeal is permitted
Where no right of appeal is permitted to a wronged party, he can record a review application. At the point when an appeal is excused on the ground that it was inept or was time – banished, the arrangements of review would get pulled in.
B) Right of appeal lies however not profited.
A review request is additionally viable in situations where appeal is given yet no such appeal is favoured by the oppressed party. An application for review can be introduced insofar as no appeal is favoured against the request.
Reason for review
(I) Discovery of new and significant issue or proof.
(ii) Mistake or blunder
(iii) Other adequate explanation.
The other adequate explanation has not been characterized in the Code. There are the reasons which has been seen in the quantity of cases are following;-
(a) Where the announcement of the appointed authority isn't right.
(b) The declaration or request has been passed under a misunderstanding of the genuine condition of conditions.
(c) Where a gathering had no notification or reasonable chance to create his proof.
Revision is the demonstration of looking again so as to expel any imperfection or award help against unpredictable or inappropriate exercise or non-exercise of locale by a lower court. Update resembles re-working and re-composing. Modification implies the activity of overhauling, particularly basic or cautious assessment or scrutiny with the end goal of remedying or improving.
In Criminal Procedure Code (Cr.P.C.), the arrangements identifying with bid are contained in Sections 372 to 394, while arrangements identifying with correction are contained in Sections 397 to 405.
In Civil Procedure Code (CPC), the arrangements identifying with bid are contained in Sections 96 to 112, while arrangements identifying with amendment are contained in Section 115.
Section 115 approves the High Court to fulfil on three issues:
(I) That the request for the subordinate court is inside ward.
(ii) That the case is one in which the court should practices its purview;
(iii) that in practicing locale the court has not acted unlawfully, that is, in penetrate of some arrangement of the law, or with material inconsistency, that is, by submitting some blunder of system over the span of the preliminary which is material in that it might have influenced a definitive choice.
Appeal An intrigue happens when an appealing party resorts to a prevalent (redrafting) court to audit the choice of a second rate (preliminary) court or authoritative office. A grievance to a higher court of a blunder or shamefulness submitted by a lower court may right or opposite that mistake or bad form. A litigant is the gathering who takes an intrigue starting with one court purview then onto the next.
On claim, no new proof is presented. The higher court is restricted to thinking about whether the lower court failed on an issue of law or gave a choice doubtlessly in opposition to the proof introduced during preliminary. Regular legitimate mistakes that might be justification for offer incorporate the accompanying:
If a litigant's sacred rights were abused while proof was being acquired, and that proof was permitted during the preliminary procedure, this is viewed as unacceptable proof. Permitting prohibited proof in a preliminary is a lawful mistake and reason for bid.
Absence of persuading proof to help a blameworthy decision.
Mistakes made in the appointed authority's directions to the jury previously or during a preliminary.
There are two phases of an intrigue in the government and many state court frameworks. These stages incorporate intrigue from preliminary court to middle of the road re-appraising court, and afterward from transitional investigative court to Supreme Court. Except if exceptional authorization is allowed by the higher court to hear an interlocutory (temporary) claim, an intrigue can't be made until the lower court renders last judgment.
The support of equity which is significant for each general public in a majority rules system is conceivable because of the nearness of the Constitution. The standards of majority rules system have been protected by the arrangements of review.
The arrangements have been utilized by the investigative courts while conveying decisions. The primary guideline behind review is to secure the holiness of complete equity and ensure the rights of the person through the legitimate procedure that is territory over the republic of India. Review ensures the right as well as the poise of the individual and ensures that there is no unsuccessful labour of equity.
Equity versus legal executive is a theme that has been a century-long discussion yet the review framework goes about as an undetectable extension and guarantees congruity between both by the due technique of law. The arrangement evacuates the chance of human mistake while conveying decisions and guarantees that the rights of each individual are ensured according to law.
The idea of review enables to an individual to uphold his rights to build up equity against bad form. The review framework is likewise fundamental for checking and adjusting the overextending demonstrations that the legislature may act throughout organization. On the off chance that the council makes any law or the legislature plays out any demonstration that repudiates the right of any individual in India and that negation essentially isn't permitted by law, at that point review goes about as an instrument to salvation for that individual, and any such demonstration or law passed will be put aside by the investigative court.
The review framework establishes the pace for the best possible working of the mainstays of vote based system by deciding the restrictions of each legislative and legal organ and is basic for powerful coordination. The suo moto perception is one of the most powerful apparatuses to upgrade the legal review and the equity procedure. It gives the right to the incomparable court to take insight of the foul play that is going on in any piece of the nation and authorize equity by lawfulness. It consequently gives an answer for the well known lines “injustice anywhere is a threat to justice everywhere”.
Today, the major portion of consumers in India like the other developed and developing countries are purchasing or availing goods or services or attempting to purchase goods or services through the cyber read more
Today, the major portion of consumers in India like the other developed and developing countries are purchasing or availing goods or services or attempting to purchase goods or services through the cyber world. On the above score, e-commerce industry has thrived its best in the last few years. Specially, in the present situation of prolonged lockdown, testing the very existence of civilization, when people are hardly going out of their houses or avoiding direct purchase from the physical market or the physical world, the business of the e-commerce industry is reaching its pinnacle. People at large in the society are purchasing goods or services through various online platforms which may be either direct e-commerce entity or market place of e-commerce entity. Everyday majority of contract are made through virtual world wherein some or every part of a valid contract is executed through virtual world. Though, the previous Consumer Protection Act, 1986 and our existing Contract Act does not provide any opportunity to lawfully adjudicate the consumer disputes or disputes relating to an online contract taking place in the virtual world, the Information Technology Act provides the following provision to somehow manage the situation which is as follows –
Section 10A: Validity of contracts formed through electronic means. -Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.
But still, we need a complete and appropriate legislature or statute to address the herculean tasks of proper adjudication of transactions in cyber world where consumers are more vulnerable than the real physical world as there is every bit of possibility in the virtual world that the entity representing themselves as a product seller or service provider may be fake or having false identity. And in the anonymous world it was more difficult to fix up the liability where the address, place of business etc. are absolutely virtual and not physical. In the above backdrop a well codified or a drafted law or statute was the need of the hour and to address the above issue we recently got the following law which is worth mentioning -
(1) Consumer Protection Act, 2019:
The following provisions are worth mentioning in light of today’s discussion:
SECTION 2: Definitions - In this Act, unless the context otherwise requires,
(1) "advertisement" means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents;
7) "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.
Explanation. —For the purposes of this clause —
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;
(16) "e-commerce" means buying or selling of goods or services including digital products over digital or electronic network;
(17) "electronic service provider" means a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites;
(37) "product seller", in relation to a product, means a person who, in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes—
(i) a manufacturer who is also a product seller; or
(ii) a service provider,
but does not include—
(a) a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats;
(b) a provider of professional services in any transaction in which, the sale or use of a product is only incidental thereto, but furnishing of opinion, skill or services being the essence of such transaction;
(c) a person who—
(I) acts only in a financial capacity with respect to the sale of the product;
(II) is not a manufacturer, wholesaler, distributor, retailer, direct seller or an electronic service provider;
…………………………………………………………
(47) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:—
(i) making any statement, whether orally or in writing or by visible representation including by means of electronic record, which—
SECTION 17 : Complaints to authorities.- A complaint relating to violation of consumer rights or unfair trade practices or false or misleading advertisements which are prejudicial to the interests of consumers as a class, may be forwarded either in writing or in electronic mode, to any one of the authorities, namely, the District Collector or the Commissioner of regional office or the Central Authority.
SECTION 35: Manner in which complaint shall be made. –
………………………………………………………………
(2) Every complaint filed under sub-section (1) shall be accompanied with such fee and payable in such manner, including electronic form, as may be prescribed.
SECTION 38: Procedure on admission of complaint. –
(4) For the purposes of sub-sections (2) and (3), the District Commission may, by order, require an electronic service provider to provide such information, documents or records, as may be specified in that order.
SECTION 65 : Service of notice, etc. - (1) All notices, required by this Act to be served, shall be served by delivering or transmitting a copy thereof by registered post acknowledgment due addressed to opposite party against whom complaint is made or to the complainant by speed post or by such courier service, approved by the District Commission, the State Commission or the National Commission, as the case may be, or by any other mode of transmission of documents including electronic means.
(2) Without prejudice to the provisions contained in sub-section (1), the notice required by this Act may be served on an electronic service provider at the address provided by it on the electronic platform from where it provides its services as such and for this purpose, the electronic service provider shall designate a nodal officer to accept and process such notices.
SECTION 94: Measures to prevent unfair trade practices in e-commerce, direct selling, etc. - For the purposes of preventing unfair trade practices in e-commerce, direct selling and also to protect the interest and rights of consumers, the Central Government may take such measures in the manner as may be prescribed.
SECTION 101: Power of Central Government to make rules. - (1) The Central Government may, by notification, make rules for carrying out any of the provisions contained in this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for, —
………………………………………………………………
(q) the fee, electronic form and the manner of payment of fee for filing complaint under sub-section (2) of section 35;
The above provision in the newly passed Act includes within the ambit of consumer protection law, the transactions by consumer in the virtual world. This statute is also meant to protect the consumers dealing in online world.
(2) Consumer Protection (E-commerce) Rules, 2020:
The following provisions of the Rule provide the ambit of the Rule and amongst that the most important is the proviso clause which is as follows –
“2. Scope and Applicability. – (1) Save as otherwise expressly provided by the Central Government by notification, these rules shall apply to:
(a) all goods and services bought or sold over digital or electronic network including digital products;
(b) all models of e-commerce, including marketplace and inventory models of e-commerce;
(c) all e-commerce retail, including multi-channel single brand retailers and single brand retailers in single or multiple formats; and
(d) all forms of unfair trade practices across all models of e-commerce:
Provided that these rules shall not apply to any activity of a natural person carried out in a personal capacity not being part of any professional or commercial activity undertaken on a regular or systematic basis. .....................................for details please read as follows:
Latest Consumer Protection Law to Safeguard Online Consumers In Indian
Mobile App on the Consumer Protection Act, 2019 & E-Commerce Law, 2020
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Yes, if men can't bolster themselves monetarily, they can guarantee upkeep from their spouses who are monetarily wealthy than them. This should be possible under Section 24 of the Hindu Marriage Act, read more
Yes, if men can't bolster themselves monetarily, they can guarantee upkeep from their spouses who are monetarily wealthy than them. This should be possible under Section 24 of the Hindu Marriage Act, 1955, which makes reference to the two married couples as subject to making such a case.
Section 24 in The Hindu Marriage Act, 1955 states that Where in any procedure under this Act it appears to the court that either the spouse or the husband, by and large, has no autonomous salary adequate for her or his help and the vital costs of the procedure, it might, on the use of the wife or the husband, request the respondent to pay to the applicant the costs of the procedure, and month to month during the procedure such aggregate as, having respect to the candidate's own.
Yes, if men can't bolster themselves monetarily, they can guarantee upkeep from their spouses who are monetarily wealthy than them. This should be possible under Section 24 of the Hindu Marriage Act, 1955, which makes reference to the two married couples as subject to making such a case.
Nivya VM v. Shivaprasad N.K. (Kerala High Court) OP (FC) No. 26 of 2015 (R)
For this situation, the spouse had looked for Maintenance pendente light from the wife under Section 24 of the Hindu Marriage Act, 1955.
That a spouse looking for support from the wife can be dealt with just as remarkable case as ordinarily he has the risk or commitment to keep up the wife and the other way around is just extraordinary.
That a spouse not making any endeavour to gain cash however equipped for landing private position can't guarantee support from the wife who was in Government administration. So it is obvious from the decree referenced over that it's anything but an ordinary act of spouse applying for upkeep from the wife who is utilized however he is equipped for keeping up himself by accomplishing some work.
On the off chance that such a mentality has been taken by the Courts, at that point inertness of spouses will be advanced and they will be enticed not to accomplish any work and rely upon the wife for their occupation, and such thing isn't relied upon to be advanced in the general public and that was not the goal of Section 24 of the Act giving support to either gathering to the procedures.
Yashpal Singh Thakur v. Smt. Anjana Rajput (Madhya Pradesh High Court) AIR 2001 MP 67
For the situation the Madhya Pradesh High Court held that the facts demonstrate that Section 24 of the Hindu Marriage Act, 1955 qualifies either party for move an application for support gave such gathering has no methods for resource and the other party is in a situation to give maintenance. In any case, it doesn't imply that the spouse who is generally fit for gaining his living should quit acquiring the living and begin contingent upon the winning of the wife. All things considered the spouse has crippled himself by halting the running the auto cart on enlist. It is entrenched proverb of Anglo Saxion statute that no individual can be permitted to cripple himself. That saying is relevant to the instance of winning spouse. An individual who wilfully debilitates himself from gaining isn't qualified for guarantee upkeep from the other life partner.
In short it isn't typical for an ordinary practice for a spouse requesting support from an employed wife, however he is fit for looking after himself. The arrangement of law in HMA is proposed to help just such a spouse who is extremely unequipped for looking after himself. Such a meriting spouse is distant from everyone else qualified to get support for his food from his better half. In this way a poor Hindu spouse of no way to live can guarantee upkeep for vocation from his wealthy wife.
No such arrangement which empowers a spouse to guarantee upkeep is there in any personal law implied for the christians or muslims. Keeping the christian and muslim spouse outside the domain of support, which is accessible to Hindu man, because of absence of empowering arrangement is a segregation. It is a grave lacunae in law, it should be redressed so as to guarantee social equity and fairness under the watchful eye of law.
Medical negligence and its Compensation Medical negligence in India has increased tremendously in the past few years. In recent times, the Indian Society is experiencing a growing awareness regarding read more
Medical negligence and its Compensation
Medical negligence in
India has increased tremendously in the past few years. In recent times, the Indian Society is
experiencing a growing awareness regarding the patient’s rights. Since the
Consumer Protection Act, 1986, has come into force, patients are able to file
legal cases against doctors, by establishing that they were negligent in
providing medical service.
Negligence
is an act carelessly done by a person resulting in damages to the others.
Negligence is an offence under the law of tort, Indian Penal Code, Indian
Contracts Act, Consumer Protection Act (CPA), and so on. Medical negligence is
basically the misconduct by the medical practitioner by not providing services
and hence resulting in a breach of their duties towards patients.
Negligence
is the violation of a legal duty to care. Breach of this such duty gives the patient
the right to initiate action for injury caused due to negligence.
The rise in
Medical Negligence Litigation
Recently, a survey was
conducted by the National Law School of India University (NLSIU), Bengaluru
that stated numbers of reasons that contributed to the growth of medical
negligence litigation. According to the guest speaker present in the NLSIU, Sairam Bhat, associate
professor and coordinator, Distance education department, and CEERA, NLSIU,
Bengaluru, there are four major reasons for the growth of medical litigation
which primarily includes greater consumer awareness, the cost involved in
medical facilities, a lot more flexible consumer forums, and the mind-set
regarding litigation among the population.
Bhat further mentioned, consumers
are becoming increasingly aware of their rights as well as their duties and
responsibilities and are ready to combat any deficiency in service delivery
mechanisms. With the introduction of consumer forums, it has become very
flexible for the consumers to lodge complaints and initiate legal proceedings.
This is a much simpler process then registering a complaint in a civil court.
There have been cases where the consumer has been seen fighting his own case, rather
than advocates.
As the cost of healthcare has
witnessed a huge jump, expectations from the medical institutions are grown too.
Medical negligence cases are filed for the smallest negligence in delivering
justice. Research studies suggest that cases of medical negligence have gone up
by 400% in the last decade.
Compensation- A remedy
There are different
kinds of remedies available to the victim of medical negligence which varies
depending on the structure of the case. In some cases, the victim’s family may
be awarded a huge amount of Compensation, and in some cases, the doctor is
given a warning or the license of the doctor is cancelled.
Talking about Compensation, it is one of the most common type of remedy
available to the patients when they complain regarding medical negligence in
the consumer forums. The punitive damages and limitless financial Compensation often
imposed for medical errors in developed countries may have some inherent flaws.
In India, however, healthcare is assumed to be regulated by a quasi-judicial
medical council that has failed to safeguard the patients against the
widespread negligent and irrational treatment by the doctors. Therefore, large
payouts awarded by the courts of law remains the only way to instill
accountability for wayward doctors and save lives. Compensation became a major
and hot topic in the country after the Supreme Court of India awarded more than
Rs.11 crores in damages including interest against several doctors and a
private hospital based in Kolkata for the wrongful death of the patient. This
has been the biggest payout in Indian Medico legal history. Till now, the
courts have generally been awarding Compensation ranging between INR 3,00,000-6,00,000,
and often less, which has failed to have any deterrent on affluent doctors and
hospitals.
Let
us first understand the Kunal Saha Case:
Kunal Saha Vs.
AMRI Case
This
complaint was filed by KunalSaha for his wife, AnuradhaSaha, who died at the
age of 36 due to the sheer negligence of doctors in Kolkata.
Itis
one of the most significant case law pertaining to medical negligence in
India.KunalSaha, a doctor by profession himself, filed a case against the
doctors of AMRI hospital in Kolkata. However, after his petition was dismissed
in Calcutta High Court and West Bengal Medical Council, he went to the Supreme
Court of India. After a proper investigation, the Supreme Court directed the
hospital and the doctors to pay a compensation of INR 5.94 crores along with
interest, i.e. INR 11 crores. This is the maximum amount that has been awarded
as Compensation for medical negligence.
For the grant of Compensation as a legal right,
which is a tort liability to be curbing in medical negligence, it should be
able to serve at least two purposes. Firstly, it must be calculated in such a
way that it provides adequate financial support for the victim’s family (Compensation)
to fill the irreversible vacuum created by the
wrongful death as best as possible. Secondly, perhaps most important, is that
the award must act as a brake against future negligent behaviour by other
doctors and hospitals.
Negligence
and Compensation to the Victim
The Supreme Court of India has recently relaxed the
norms for the medical faculty regarding criminal liability for medical
negligence with the help of adding the requirement of “gross” medical
negligence. However, the court has recognized the culpability of doctors
through the process of civil liability in which the victim or the family of the
victim is awarded higher compensations.
The emergence of high compensation awards for
medical deficiency claims in India has resulted in apprehensive speculation regarding
the result that such remedies may have on the manner in which doctors practise
medicine within India and how this process translates into rising costs for the
patients. While some assume a consequent rise in frivolous litigation, others
put forward the point that healthcare sector should be regulated with more
stringent laws and that huge amount compensations will push doctors to not be
negligent any more towards their patient. The way recent cases are being heard
and awarded huge compensations, there certainly lies the uncertainty of whether
this encourages the beginning of increasing medical negligence litigation and
the practise of defensive medicine, or there is the need to modify the way in
which medical negligence issues are currently being addressed in India.
Moreover, India’s healthcare system is accountable
for and regulate private which includes individual and corporate, public, and
not for profit hospitals within its framework. In addition to these, the Indian
government is also responsible to ensure universal and all time access of
healthcare to the general public through its public sector. It is therefore,
important for the judiciary to balance the interests, rights, and duties of all
the concerned parties.
The decision to take a legal action against a
medical practitioner is determined by not only the original injury, but also by
poor communication and insensitive handling after the original incident.
Therefore, the patient who alleges medical negligence can resort to any of the
following legal remedies.
a. A complaint can be made to the State Medical
Council.
b. The patient can file a case before the Consumer
Court.
c. A complaint can be filed before the Civil Court.
d. The patient who has alleged medical negligence can
file a case citing “gross” negligence of the medical practitioner.
Our article talks about the Compensation that can
be only avoided by the Consumer Court or by the Civil Court and therefore our
discussions shall stick to the same. This article mainly talks about the Compensation
awarded to the victim or kin of the victim when a medical negligent act takes
place. It further puts forward the points in favour of “larger compensations”
and also gives detailed analysis that why Compensation is yet a simpler and
easily given through which a victim can live a normal life. Collectively, the
article talks about how medical negligent issues are addressed in a country
which has the second highest population of the world and one of those
countries, which considers the medical faculty as one of the most prominent
role models.
Calculation
of Compensation in a Medical Negligent Case
In the Indian Common law, the basis of computing
compensation for any case lies on the legal principle of “restitutio in integrum,”
which when translated means, that the person who is seeking damages due to a
wrongful committed him/her is in the position that he/she would have been had
the wrong not been committed. This implies that the victim or the family of the
victim needs to be compensated for financial loss as well as other loss caused
by doctor’s or hospital’s negligence, future medical expenses, and any pain and
suffering that is endured by the victim.
The court of USA have a jury
system that determines culpability or quantum of Compensation, but
unfortunately, the same scenario doesn’t exist in our country. In India, the
judge in the civil court or the consumer court has the complete discretion over
the compensation amount and hence is bound or forced to consider the impact of
the judgment because he/she sets a precedent even in the manner and quantum of
damages awarded. The case laws like Dr. Balram Prasad vs. Kunal Saha and Rajesh
and Ors. Rajvir Singh V and Ors correctly speaks about how Compensation is
inconsistent and is one of the biggest problem that the healthcare sector of
India is facing. It is important to consider every case independently because
it would be incorrect to not give the facts of every case’s situation due
importance. However, this not only increases the unpredictability but also the
scope of discretion provided to the judge in such situations.
The Supreme Court noted
that, “The lack of uniformity and consistency in awarding Compensation has been
a matter of grave concern… If different tribunals calculate Compensation differently
on the same facts, the litigant, the claimant, the common man will be perplexed,
confused, and bewildered. If there is significant divergence and similarities among
tribunals in determining the quantum of Compensation on similar facts, it will
lead to distrust and dissatisfaction in the system.”
In most of the medico-legal
cases, the defendants have asserted that the method to determine the Compensation
ought to be the “multiplier method”. The main and principal argument in favour
of using such a method is it at least gives uniformity and predictability.
Furthermore, doctors and hospitals will not be compelled and order to pay large
sums of money to compensate for negligence.
Talking about the history of
the multiplier method, it was first created to facilitate awarding Compensation
in relation to motor vehicle accidents to calculate “no-fault” liability.
Therefore, it only stands for the loss of income of the victim only. The sum is
calculated according to the “multiplicand” that is, victim’s salary minus the
amount he spends on himself for the treatment, and the “multiplier”, that is,
the total number of years, that the victim would have earned his salary. The
multiplier is calculated by taking into account the average life expectancy, the
number of years that the victim will be unemployed, the victim’s age and any
other factors concerning the victim’s health. The common formula for the
calculation of Compensation is ((70-age) x annual income + 30% of for inflation
– 1/3 expenses). Defendants say that
this is the figure that will adequately calculate the loss incurred, and
therefore this method can be utilized for the calculation of medical negligence
cases. However, the argument here is
that, Compensation solely based on the income of the victim is not ethically
correct. It simply means that medical negligence causing death or injury to a wealthy
person is much more worth when compared to medical negligence that impacted an
unemployed individual or homemaker or a child or senior citizen. Therefore,
being legally unethical, the Supreme Court declined the dependency of
calculation of Compensation on the multiplier method for medical negligence. Addition
to these, the Supreme Court, added other dimensions for the calculation of Compensation
which included medical costs incurred by the victim during the litigation, cost
of any future medical expenses, Compensation towards mental agony and physical
pain, and Compensation toward loss of litigation and consortium.
Still, there are few
problems, that judges face while awarding Compensation in medical negligence
case which includes:
a. The law is required to protect a patient’s right.
b. The law is also responsible to provide due autonomy to a profession
that by all definitions are an inexact science.
However, the process of calculating Compensation for
medical negligence is very uncertain and unpredictable as it varies hugely
across different cases, courts and tribunals resulting in loss of faith on the
courts, protracted litigation and also the frequent appeals.
Argument
in favour of Compensation
A person who has suffered medical negligence has
the liberty to decide how they would like to address the problem. If it is the
accountability they seek, they can approach the state medical council. But if
the victim or the family of the victim is thinking of compensation, they can lodge a complaint
before the Civil or the Consumer Court. However, the Compensation is considered
an ideal remedy for medical negligence because it acts as retribution towards
the negligent medical faculty, insurance to the victim and as an example or
deterrent to other doctors and hospitals.
1.
Coverage of expenses of the Victim
Compensation as a legal remedy to the victim of
medical negligence provides with resources as they help to cover medical costs,
future medical expenses, cost of litigation, loss of income etc. only when they
prove that the doctor or hospital in the case was negligent. This arrangement
attempts to ensure that the victims are financially strong for allowing them to
bear the consequences of medical negligence, be it injury or wrongful death.
2.
Deterrence
Large compensation amounts penalizes the doctors
heavily. Therefore, there are chances that the doctors would be more careful as
one case could result in grave losses. Large Compensation which sometimes also
includes punitive damages will result in incentivizing allocation of resources
towards safety. Moreover, it acts an expression of the community’s indignation
toward an abhorrent crime and therefore also imposes a civil action against it.
Also, large Compensation could act as a civil enforcement mechanism because it
rewards the complainant for initiating litigation and thereby supplements the
criminal justice system.
3.
Retribution
The compensation amount that will be imposed by the
court for the doctors and hospitals will be based on the determination of the
liability and the judge’s discretion or direction regarding the same. This
further ensures that parties which are guilty of negligence are made to pay for
their actions.
The
Purpose of Medical Settlement
The reason for medical Compensation through medical
settlement is done to make the client whole again. It is intended to compensate
them for any medical and personal costs occurred due to the injury caused
during the process of treatment. In serious cases, the remedy includes
compensation to offset the cost of care for the person and lifetime of lost
earnings. In some cases, it might include the cost of modifying the client’s
home to let them continue to live there, medical assistance from already paid
caregivers or someone who quit a job to take care of them, and new vehicles
that the disabled person can drive.
There are also cases, where the compensation to the
victim or to the victim’s family is awarded only after the claimant is able to
gain back the mental function after a negligence case. In a type of case where
mental impairment is involved, there are chances that additional damages are
also claimed, to support the victim’s family. This also holds true when
childbirth injuries occur, or pregnant women suffer from negligence or mistakes
from doctors or medical staff or any other third party associated with the
healthcare facility.
Conclusion
There is a need to assess the way wherein India
decides to address medical negligence. Notwithstanding the dread of protective
medication, expanding protection premiums and ascend in costs for patients, it
is time we know about the inequity that the current framework sustains. Systemic deficiencies such
as heavy litigation costs, delayed and protracted litigation, as well as
dependence on judicial discretion, do not give adequate equity justice to
victims and could harm doctors and hospitals as well.
In a nation where there is (an) a horrifying
interest in wellbeing, (b) the nonappearance of Human Resources, (c) an
enormous hole among urban and rustic human services, and (d) poor political
will to improve the wellbeing segment, it is shrewd to actualize a no-deficiency
risk framework inside the general wellbeing area and furthermore to have tops
on the sorts remuneration after exploration and conversation. The
administration needs to act and put resources into medicinal services before it
is past the point of no return. India needs to upgrade the current arrangement
of tending to medical negligence utilizing the entirety of the previously
mentioned arrangements successfully.
The author of this blog/Article
is Kishan Dutt Kalaskar, a Retired Judge and practising advocate
having an experience of 35+ years in handling different legal matters. He
has prepared and got published Head Notes for more than 10,000 Judgments
of the Supreme Court and High Courts in
different Law Journals. From his
experience he wants to share this beneficial information for the individuals
having any issues with respect to their related matters .
Author :
Kishan Dutt Kalaskar
Advocate (Retired Judge)
No.74, 1st Floor, 6th
Cross,
Malleswaram,
Bengaluru-560003
Mob: 9686971935
www.kishanretiredjudge.com
INTRODUCTIONNew Education Policy 2020, has finally supplanted the old Education System in India in 21st century, after a long period of 34 years. This step has been taken by HRD Minister Ramesh Pokhriyal under read more
INTRODUCTION
New Education Policy
2020, has finally supplanted the old Education System in India in 21st
century, after a long period of 34 years. This step has been taken by HRD
Minister Ramesh Pokhriyal under Ministry of Human Resource Development to
bring a change in overall Education System of India. The adoption of New
Education Policy is based on the advice of Dr Kasturirangan Committee. The new
education standards have various upsides which would end up being productive
over the old ongoing policy. It aims for universalisation of education from
pre- school to secondary level .
REFORMS
MADE IN NEW EDUCATION POLICY 2020:
A- School Education Reforms
· ‘10+2’
Board structure is modified.
· The
new structure of school will be ‘5+3+3+4’
· Foundational stage- Three
years of Pre-school (Ages 3-6) + Two years in Primary school in grade 1-2 (Ages
6-8).
· Preparatory stage- It
covers ages from 8 to 11 years or grades 3-5.
· Middle
stage- It covers ages from 11 to 14
years or grades 6-8.
· Secondary stage-
It covers ages from 14 to 18 years in two phases- grades 9-10 in the first and
grades 11-12 in the second.
· As
a medium of instruction, the Policy give more preference to the mother tongue
of child. However, NEP only recommends the mother tongue but has not made it
compulsory.
· From
6th grade Vocational courses will available including internships.
· The
curricular content will be reduced to develop critical thinking, fundamental
learning and more prominent spotlight will be on practical learning.
· Students
from class 8th can select subjects of their choice across streams.
· All
exams of school will be conducted semester wise twice in a year.
· The
new Basic Learning Program will be started by the government for Parents to
teach children at home up to 3 years.
B- Reforms in Colleges &
Universities
· The
UG degree will be now either of a 3 or 4 year duration, with Multiple Exit
options within this period.
· For
any graduation course, the Colleges will have to give –
A
basic certificate- after completion of one year in study
Diploma
certificate- after completion of two years in study
Bachelors’
degree- after completion of three year programme.
· A
Major & Minor subject options will given to all graduation courses.
· MPhil
would be discontinued, paving the way for students for Masters’ degree to get
PhD.
· The
NTA (National Testing Agency) will take a Common College Entrance Exam twice
every year.
· All
university government, open, private, deemed, vocational, etc will have the
same norms and grading system.
· All
‘Higher Education Commissions’ will be governed by only one authority.
· All
India Council for Technical Education (AICTE) & University Grant Commission
(UGC) will be merged.
· The
new teacher training board will be set up for all kinds of teachers in India.
· NEP
(New Education Policy) 2020, makes a stride towards the Internationalization of Indian Education proposing a Legislative
Framework that permits top rated global universities to operate in India and
encourages top Indian universities to set up campuses in other nations.
FOREIGN EDUCATIONAL INSTITUTIONS (REGULATION OF ENTRY AND OPERATIONS) BILL, 2010
A-
About
The Bill
·
The proposed Foreign Educational
Institutions Bill, 2010 seeks to permit the operation and entry of foreign
educational institutions seeking to impart Higher Education.
· Each
Foreign Educational Institution aiming to work in India must be informed as a
foreign educational supplier by the Central Government on the commendation of
the Registrar (Secretary of the UGC).
· Foreign
Educational Suppliers need to keep up a corpus fund of at least Rs 50 crore .
Up to 75 percent of any income created from the corpus fund will be used for
enhancing its institution in India and rest ought to be returned in the fund.
· The
Central Government may exempt any Institution, on the recommendation of the
Advisory Board, from conforming to the needs of the Bill except the Penalty
Provisions and the Ban on revenue repatriation.
B- Key
Issues and Analysis
·
There are
three perspectives on the Issue of Foreign Educational Institutions working in
India. Rivals contend that it would restrain access and lead to Commercialisation.
Defenders of the Bill contend that it would expand options for student and
increase competition in the Sector. There are a few specialists who support
restricted entry depends on the Reputation of the Institution.
·
Present rule
grant Foreign Universities to work together with Indian associates through
different systems. However, some globally renowned Universities team up with
India. It isn't clear if the Bill would attract Quality Foreign Universities
given the stricter instructions.
· The
Bill needs clearness on what provisions the Foreign Institutions might be given
an exemption from since, they have to follow every other laws in force. This
effectively implies that they have to conform to principles set by Statutory
Authorities on Curriculum, Methodology and Faculty and Mandatory publication of
prospectus.
C-
Historical
Background
The bill was presented first time in the
year 1995, but clearly, it couldn't take off. Another endeavor to permit entry
of Foreign Varsities in India was made in the year 2005-06 however, the draft
legislation couldn't get the endorsement in the Cabinet.
During the governance of United
Progressive Alliance (UPA), the Human Resource Development Ministry brought a Foreign Educational Institutions
(Regulation of Entry and Operations) Bill drove by Ex-HRD Minister Kapil Sibal.
The Bill gets green flag in Lok Sabha yet neglected to get by in Parliament and
in the end got slipped by in 2014 after the expiration of the 5-year term of
UPA-II Government.
Prior in 2017, A Strategy Paper shared
by the Commerce Ministry with the Ministries of HRD and External Affairs and the
NITI Aayog in April 2015 supported for the Internationalization
of Indian Education to gain Foreign exchange. The recovery of the “Foreign
Educational Institutions Bill” was one of the four activity focuses cited by
the commerce ministry in the Strategy Paper.
The NITI Aayog was consequently asked by
Narendra Modi to set up a structure to give a straightforward and crystal clear
clearance for Foreign Education Suppliers.
After a few month of meetings on the
issue, the NITI Aayog freed decks for the inauguration of the Foreign Varsities
Campuses in India.
It recommended the Human Resource Development
Ministry to either introduce new provisions to direct the entry and functioning
of Foreign University Campuses in India under the UGC or amend the University
Grants Commission Act of 1956 and its guidelines to empower their establishment
as Deemed Universities in the country.
At last, the changes have been made
under the NEP (New Education Policy)
2020 and the “Ministry of Human Resource
Development” (MHRD) has likewise been renamed as the “Ministry of Education”.
CONCLUSION
The New Education
Policy (NEP), 2020 targets to encourage a comprehensive, holistic and
participatory approach, which mulls field understanding, stakeholder, empirical
research just as lessons gained from best practices. It’s a developmental move
towards a more logical way to deal with education. The suggested framework help
to cater the capacity of the student- phases of Cognitive development just as
Physical and Social mindfulness. This Education Policy if implemented in its
actual vision, the framework can bring India at standard with the leading nations
of the world.
REFERENCE:
[1]
www-thequint-com.cdn.ampproject.org
[2]
wap.business-standard.com
[3] www.prsindia.org
[4] www.legalserviceindia.com
Are all equal before law? Article 15 of the Constitution states that the State shall not discriminate against any citizen on grounds of religion, race, caste, sex. But the question remains is the statement read more
Are all equal before law? Article 15 of the Constitution states that the State shall not discriminate against any citizen on grounds of religion, race, caste, sex. But the question remains is the statement true? Are women given equal rights in our country?
We live in a nation where goddesses are venerated and females are manhandled, bugged, kidnapped, assaulted and killed, each and every day. Physical, mental, and sexual savagery against ladies has throughout the years left them feeling defenceless, not engaged. There have consistently been discussions about ladies strengthening and sexual orientation balance. Be that as it may, actually, not exclusively are the attitude of the individuals yet additionally the laws oppress ladies.
In some parts of India Hindu man can remarry if his past spouse doesn't bring forth any male children by the age of 30 and this law is only the tip of the authorized sexism across India.
By the year 1912 there were shaving allowances for the prisoners in Punjab Prison Manual but until 2017 there was no Sanitary napkins available to the women in prison. In 2017 the Sanitary napkins had 12% GST and was categorised under luxury item not essential whereas the Condoms were made tax free and were categorised as essential item, after a lot of protests and questions raised by the public now the GST from the Sanitary Pads has been removed but the government has imposed GST on essential items which are required to make the pads. There is 18% GST for Polythene film, Glue used and 12% for the paper and the wood pulp. Hence there is no reduction in the cost for the consumers.
The assault of an isolated spouse conveys lesser discipline than the assault of some other lady. Constrained sex with the previous wife is culpable with two to seven years of detainment. The jail sentence for the assault of some other lady ranges from seven years to life. The base age for marriage for a boy is 21, yet 18 for a young lady. This is a legitimate augmentation of the man centric outlook that accepts that a spouse ought to consistently be younger than the man. In the Family Law we have been through 3 terms which are: Patriarchal -means that the head of the family will always be male, Patrilineal –this states that even though the women gives birth to the child still the name of the child would be given from the patrilineal side, Patrilocal –means that women will move from their native homes to the homes of their husbands and this is seems normal and desirable and usual, we have heard of the matrimonial home and it is always where the husband is which clearly states that we have this reinforced, incorporated legal system in the Family Law itself .
According to the Law of Tort if husband and wife dies together in an accident by negligence then the husband's death will be compensated by reference to what has been his earning, what was the potential of his earning, but there is no life worth of a housewife initially her life was seen as a unskilled labour.
There was a famous case of C. B. Muthamma vs Union of India & Ors on 17 September, 1979 Muthamma is known for her fruitful campaign for sex uniformity in the Indian Civil Service. The Ministry for outer issues had not elevated CB Muthamma to the post of foreign secretary. Muthamma needed to take the Ministry of External Affairs to court when she was denied advancement to Grade I of the administration on grounds of "merit". She appealed to the administration, asserting that she had been neglected for advancement and that the principles overseeing the business were oppressive.
The Supreme Court maintained the case in 1979 out of a milestone judgment by a three-part Bench headed by Justice V.R. Krishna Iyer. The judgment of Muthamma's case portrayed the Foreign Service as 'misogynist.' The Supreme Court Judgment guaranteed that from now on it was not obligatory for female officials in the IFS to look for government consent for getting married.
Similarly, in the case of Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc on 28 August, 1981, the case forced a test on Regulations 46 and 47 of the Air India Employees Service Regulations. With the test being placed in light of the fact that the previously mentioned guideline made a considerable level of uniqueness between male (alluded to as Air Flight Pursers) and female (Air Hostesses) (and inside the Air Hostesses distinctive operational principles subject to whether one is working for Air India International on the International circuit or Indian Airlines on the household circuit) on large number of grounds, for example, special roads, differential retirement ages, conditions relating to end of the Air ladies administrations in instances of pregnancy or marriage (retirement age for them was 35 years instead of 58 for their "male partners" – as indicated by Regulation 46). Besides, a more common inquiry was in regards to the optional forces of the Managing Director who under Regulation 47 could expand the period of retirement according to his own command. An angle which is challenged by the applicants as being self-assertive.
The court held the provisions viewing retirement and pregnancy as unlawful and along these lines requested for them to be struck down. Besides, Regulation 47 encountered a comparable destiny, for it was discovered that the said guideline experienced over the top assignment of forces with no sensible rules to police the equivalent.
Delay in conviction and debasement the two significant reasons females hesitate to come forward. The government makes laws without bringing NGOs and partners into a conversation. Assault is assault. Regardless of whether a 15-year-old does a assault it ought to be considered under the adult law. In any event in assault cases, there must be 100 percent conviction. For example, the Asaram case is in court for over 10 years. When we discuss quick track court does it not mean optimizing the preliminary itself? In single sitting the case ought to be chosen. There ought not be the taking of dates. Also, debasement is one reason ladies don't get equity. Since the police don't enlist a FIR with the correct pace. At that point the charge sheets are not recorded on schedule. In the event that you pass by the Sheena Bora case, a consumed body was found yet the police didn't record a FIR. What's more, what was the explanation? The opposite side was incredible. So we have to overhaul the framework, overhaul the legal executive or more all, we have to change the male centric attitude. Discussing the MeToo development, not a solitary individual has been captured. Numerous FIRs were enrolled. That implies that the rich and incredible escape."
All laws have gender bias and incorporate male standard. They take the males as the standards for laying down norms. They take expression, actions, and reactions of males for laying down standards and principle, hence making us believe that the Law is Male
Hit and run cases have reached an all-time high. According to the National Highway Traffic Safety Administration, there is a considerable rise in the fatalities of #pedestrians that recorded 6,283 deaths read more
Hit and run cases have reached an all-time high. According to the National Highway Traffic Safety Administration, there is a considerable rise in the fatalities of #pedestrians that recorded 6,283 deaths in 2018.
To read more, please visit the link below:
#compensation #caraccident #nationalhighway #fault #pedestrian
Recently, the Hon’ble Supreme Court of India Bench of Justices Arun Mishra, B.R. Gavai, and Krishna Murari, took up suo moto cognizance based on two of Mr Prashant Bhushan’s Tweets, after a Complaint read more
Recently, the Hon’ble Supreme Court of India Bench of Justices Arun Mishra, B.R. Gavai, and Krishna Murari, took up suo moto cognizance based on two of Mr Prashant Bhushan’s Tweets, after a Complaint filed by one Mahek Maheshwari, vide In Re Prashant Bhushan and Another, Suo Motu Contempt Petition (CRL.) No.1 of 2020, decided on 14.08.2020.
To read more, please visit the link below:
#contempt #court #supremecourt #tweet #prashantbhushan
Research Question1. Can the term of President, Secretary and Board Members in Apartment Owners Association be dissolved before the end of their tenure? If so under what conditions can the dissolution read more
Research Question
1. Can the term of President, Secretary and Board Members in Apartment Owners Association be dissolved before the end of their tenure? If so under what conditions can the dissolution be done?
- Yes, the term of the above-mentioned people can be dissolved before the completion of their respective tenures. The West Bengal Co-operative Societies Act, 2006 in its Section-20(d)(vi) & (vii) describes that a society must make by-laws which provide for the circumstances under which the membership of an office bearer ceases to exist and further it lays out that the by-laws must also establish the appropriate procedure in that regard.
- Also as mentioned below Section-44 and 45 of the West Bengal Co-operative Society Rules, 2011 lays out circumstances/conditions under which the membership in a society will cease to exist.
Section-44 and 45 of West Bengal Co-operative Society Rules, 2011
Furthermore, Section-28 West Bengal Societies Registration Act, 1961 lays down disqualifications for being a member of the governing body. It also implies that if the said member becomes an insolvent or is convicted under any offence in accordance with the section during his tenure, he is liable to be dissolved off that position.
Section-28 of West Bengal Societies Registration Act, 1961.
2. What would be the procedure that needs to be followed to dissolute the members?
- As mentioned above in the first question that Section-20(d)(v) & (vii) of The West Bengal Co-operative Societies Act, 2006 the by-laws of the society shall establish the appropriate procedure under which the expulsion proceedings of the said member be carried out. For reference purposes, the below mentioned expulsion procedure is also taken from the by-laws of Jayrambati Ramkrishna Sarada Primay Teachers’ Training Institution which is registered under the West Bengal Societies Registration Act, 1961.
Mumbai, India
Thane, India
Kolkata, India
Ranchi, India
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4. SoOLEGAL will remit the fees (without any interest) to its Registered User/ Consultant every 15 (fifteen) days. If there is any discrepancy in such payment, it should be reported to Accounts Head of SoOLEGAL (accounts@soolegal.com) with all relevant account statement within fifteen days from receipt of that last cycle payment. Any discrepancy will be addressed in the next fifteen days cycle. If any discrepancy is not reported within 15 days of receipt of payment, such payment shall be deemed accepted and SoOLEGAL shall not entertain any such reports thereafter.
5. Any Registered User/ Consultant wishes to discontinue with this, such Registered User/ Consultant shall send email to SoOLEGAL and such account will be closed and all credits will be refunded to such Registered User/ Consultant after deducation of all taxes and applicable fees within 30 days. Other than as described in the Fulfilment by SoOLEGAL Terms & Conditions (if applicable to you), for the SoOLEGAL Site for which you register or use the Transacting on SoOLEGAL Service, you will: (a) source, fulfil and transact with your Documents/ Advices, in each case in accordance with the terms of the applicable Order Information, these Transaction Terms & Conditions, and all terms provided by you and displayed on the SoOLEGAL Site at the time of the order and be solely responsible for and bear all risk for such activities; (a) not cancel any of Your Transactions except as may be permitted pursuant to your Terms & Conditions appearing on the SoOLEGAL Site at the time of the applicable order (which Terms & Conditions will be in accordance with Transaction Terms & Conditions) or as may be required Transaction Terms & Conditions per the terms laid in this Documents/ Advice; in each case as requested by us using the processes designated by us, and we may make any of this information publicly available notwithstanding any other provision of the Terms mentioned herein, ensure that you are the REGISTERED USER of all Documents/ Advices made available for listing for Transaction hereunder; identify yourself as the REGISTERED USER of the Documents/ Advices on all downloads or other information included with Your Documents/ Advices and as the Person to which a customer may return the applicable Documents/ Advices; and
S-2.2 Returns and Refunds. For all of Your Documents/ Advices that are not fulfilled using Fulfilment by SoOLEGAL, you will accept and process returns, refunds and adjustments in accordance with these Transaction Terms & Conditions and the SoOLEGAL Refund Policies published at the time of the applicable order, and we may inform customers that these policies apply to Your Documents/ Advices. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping of any hard copy and handling or other charges) or other amounts to be paid by you to customers in connection with Your Transactions, using a functionality we enable for Your Account. This functionality may be modified or discontinued by us at any time without notice and is subject to the Program Policies and the terms of thisTransaction Terms & Conditions Documents/ Advice. You will route all such payments through SoOLEGAL We will provide any such payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), and you will reimburse us for all amounts so paid. For all of Your Documents/ Advices that are fulfilled using Fulfilment by SoOLEGAL, the SoOLEGAL Refund Policies published at the time of the applicable order will apply and you will comply with them. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable SoOLEGAL Refund Policies and as required by Law, and in no case later than thirty (30) calendar days following after the obligation arises. For the purposes of making payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), you authorize us to make such payments or disbursements from your available balance in the Nodal Account (as defined in Section S-6). In the event your balance in the Nodal Account is insufficient to process the refund request, we will process such amounts due to the customer on your behalf, and you will reimburse us for all such amount so paid.
S-5. Compensation
You will pay us: (a) the applicable Referral Fee; (b) any applicable Closing Fees; and (c) if applicable, the non-refundable Transacting on SoOLEGAL Subscription Fee in advance for each month (or for each transaction, if applicable) during the Term of this Transaction Terms & Conditions. "Transacting on SoOLEGAL Subscription Fee" means the fee specified as such on the Transacting on SoOLEGALSoOLEGAL Fee Schedule for the SoOLEGAL Site at the time such fee is payable. With respect to each of Your Transactions: (x) "Transactions Proceeds" has the meaning set out in the Transaction Terms & Conditions; (y) "Closing Fees" means the applicable fee, if any, as specified in the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site; and (z) "Referral Fee" means the applicable percentage of the Transactions Proceeds from Your Transaction through the SoOLEGAL Site specified on the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site at the time of Your Transaction, based on the categorization by SoOLEGAL of the type of Documents/ Advices that is the subject of Your Transaction; provided, however, that Transactions Proceeds will not include any shipping charge set by us in the case of Your Transactions that consist solely of SoOLEGAL-Fulfilled Documents/ Advices. Except as provided otherwise, all monetary amounts contemplated in these Service Terms will be expressed and provided in the Local Currency, and all payments contemplated by this Transaction Terms & Conditions will be made in the Local Currency.
All taxes or surcharges imposed on fees payable by you to SoOLEGAL will be your responsibility.
S-6 Transactions Proceeds & Refunds.
S-6.1.Nodal Account. Remittances to you for Your Transactions will be made through a nodal account (the "Nodal Account") in accordance with the directions issued by Reserve Bank of India for the opening and operation of accounts and settlement of payments for electronic payment transactions involving intermediaries vide its notification RBI/2009-10/231 DPSS.CO.PD.No.1102 / 02.14.08/ 2009-10 dated November 24, 2009. You hereby agree and authorize us to collect payments on your behalf from customers for any Transactions. You authorize and permit us to collect and disclose any information (which may include personal or sensitive information such as Your Bank Account information) made available to us in connection with the Transaction Terms & Conditions mentioned hereunder to a bank, auditor, processing agency, or third party contracted by us in connection with this Transaction Terms & Conditions.
Subject to and without limiting any of the rights described in Section 2 of the General Terms, we may hold back a portion or your Transaction Proceeds as a separate reserve ("Reserve"). The Reserve will be in an amount as determined by us and the Reserve will be used only for the purpose of settling the future claims of customers in the event of non-fulfillment of delivery to the customers of your Documents/ Advices keeping in mind the period for refunds and chargebacks.
S-6.2. Except as otherwise stated in this Transaction Terms & Conditions Documents/ Advice (including without limitation Section 2 of the General Terms), you authorize us and we will remit the Settlement Amount to Your Bank Account on the Payment Date in respect of an Eligible Transaction. When you either initially provide or later change Your Bank Account information, the Payment Date will be deferred for a period of up to 14 calendar days. You will not have the ability to initiate or cause payments to be made to you. If you refund money to a customer in connection with one of Your Transactions in accordance with Section S-2.2, on the next available Designated Day for SoOLEGAL Site, we will credit you with the amount to us attributable to the amount of the customer refund, less the Refund Administration Fee for each refund, which amount we may retain as an administrative fee.
"Eligible Transaction" means Your Transaction against which the actual shipment date has been confirmed by you.
"Designated Day" means any particular Day of the week designated by SoOLEGAL on a weekly basis, in its sole discretion, for making remittances to you.
"Payment Date" means the Designated Day falling immediately after 14 calendar days (or less in our sole discretion) of the Eligible Transaction.
"Settlement Amount" means Invoices raised through SoOLEGAL Platform (which you will accept as payment in full for the Transaction and shipping and handling of Your Documents/ Advices), less: (a) the Referral Fees due for such sums; (b) any Transacting on SoOLEGAL Subscription Fees due; (c) taxes required to be charged by us on our fees; (d) any refunds due to customers in connection with the SoOLEGAL Site; (e) Reserves, as may be applicable, as per this Transaction Terms & Conditions; (f) Closing Fees, if applicable; and (g) any other applicable fee prescribed under the Program Policies. SoOLEGAL shall not be responsible for
S-6.3. In the event that we elect not to recover from you a customer's chargeback, failed payment, or other payment reversal (a "Payment Failure"), you irrevocably assign to us all your rights, title and interest in and associated with that Payment Failure.
S-7. Control of Site
Notwithstanding any provision of this Transaction Terms & Conditions, we will have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the SoOLEGAL Site and the Transacting on SoOLEGAL Service (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to any of the SoOLEGAL Site and the Transacting on SoOLEGAL Service and any element, aspect, portion or feature thereof (including any listings), from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or require you not to list any or all Documents/ Advices on the SoOLEGAL Site in our sole discretion.
S-8. Effect of Termination
Upon termination of this Contract, the Transaction Terms & Conditions automatiocally stands terminated and in connection with the SoOLEGAL Site, all rights and obligations of the parties under these Service Terms with regard to the SoOLEGAL Site will be extinguished, except that the rights and obligations of the parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term.
"SoOLEGAL Refund Policies" means the return and refund policies published on the SoOLEGAL Site.
"Required Documents/ Advices Information" means, with respect to each of Your Documents/ Advices in connection with the SoOLEGAL Site, the following (except to the extent expressly not required under the applicable Policies) categorization within each SoOLEGAL Documents/ Advices category and browse structure as prescribed by SoOLEGAL from time to time, Purchase Price; Documents/ Advice Usage, any text, disclaimers, warnings, notices, labels or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or Transaction of Your Documents/ Advices, requirements, fees or other terms and conditions applicable to such Documents/ Advices that a customer should be aware of prior to purchasing the Documents/ Advices;
"Transacting on SoOLEGAL Launch Date" means the date on which we first list one of Your Documents/ Advices for Transaction on the SoOLEGAL Site.
"URL Marks" means any Trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, co.in, co.uk, .in, .de, .es, .edu, .fr, .jp) or any variation thereof (e.g., dot com, dotcom, net, or com).
"Your Transaction" is defined in the Transaction Terms & Conditions; however, as used in Terms & Conditions, it shall mean any and all such transactions whereby you conduct Transacting of Documents/ Advices or advice sought from you by clients/ customers in writing or by any other mode which is in coherence with SoOLEGAL policy on SoOLEGAL site only.
Taxes on Fees Payable to SoOLEGAL. In regard to these Service Terms you can provide a PAN registration number or any other Registration/ Enrolment number that reflects your Professional capacity by virtue of various enactments in place. If you are PAN registered, or any professional Firm but not PAN registered, you give the following warranties and representations:
(a) all services provided by SoOLEGAL to you are being received by your establishment under your designated PAN registration number; and
SoOLEGAL reserves the right to request additional information and to confirm the validity of any your account information (including without limitation your PAN registration number) from you or government authorities and agencies as permitted by Law and you hereby irrevocably authorize SoOLEGAL to request and obtain such information from such government authorities and agencies. Further, you agree to provide any such information to SoOLEGAL upon request. SoOLEGAL reserves the right to charge you any applicable unbilled PAN if you provide a PAN registration number, or evidence of being in a Professional Firm, that is determined to be invalid. PAN registered REGISTERED USERs and REGISTERED USERs who provide evidence of being in Law Firm agree to accept electronic PAN invoices in a format and method of delivery as determined by SoOLEGAL.
All payments by SoOLEGAL to you shall be made subject to any applicable withholding taxes under the applicable Law. SoOLEGAL will retain, in addition to its net Fees, an amount equal to the legally applicable withholding taxes at the applicable rate. You are responsible for deducting and depositing the legally applicable taxes and deliver to SoOLEGAL sufficient Documents/ Advice evidencing the deposit of tax. Upon receipt of the evidence of deduction of tax, SoOLEGAL will remit the amount evidenced in the certificate to you. Upon your failure to duly deposit these taxes and providing evidence to that effect within 5 days from the end of the relevant month, SoOLEGAL shall have the right to utilize the retained amount for discharging its tax liability.
Where you have deposited the taxes, you will issue an appropriate tax withholding certificate for such amount to SoOLEGAL and SoOLEGAL shall provide necessary support and Documents/ Adviceation as may be required by you for discharging your obligations.
SoOLEGAL has the option to obtain an order for lower or NIL withholding tax from the Indian Revenue authorities. In case SoOLEGAL successfully procures such an order, it will communicate the same to you. In that case, the amounts retained, shall be in accordance with the directions contained in the order as in force at the point in time when tax is required to be deducted at source.
Any taxes applicable in addition to the fee payable to SoOLEGAL shall be added to the invoiced amount as per applicable Law at the invoicing date which shall be paid by you.F.11. Indemnity
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Category and Documents/ Advice RestrictionsCertain Documents/ Advices cannot be listed or sold on SoOLEGAL site as a matter of compliance with legal or regulatory restrictions (for example, prescription drugs) or in accordance with SoOLEGAL policy (for example, crime scene photos). SoOLEGAL's policies also prohibit specific types of Documents/ Advice content. For guidelines on prohibited content and copyright violations, see our Prohibited Content list. For some Documents/ Advice categories, REGISTERED USERS may not create Documents/ Advice listings without prior approval from SoOLEGAL. |
In addition to your obligations under Section 6 of the Transaction Terms & Conditions, you also agree to indemnify, defend and hold harmless us, our Affiliates and their and our respective officers, directors, employees, representatives and agents against any Claim that arises out of or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section F-4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death or property damage; and b) any of Your Taxes or the collection, payment or failure to collect or pay Your Taxes.
Registered Users must at all times adhere to the following rules for the Documents/ Advices they intend to put on Transaction:
The "Add a Documents/ Advice" feature allows REGISTERED USERS to create Documents/ Advice details pages for Documents/ Advices.
The following rules and restrictions apply to REGISTERED USERS who use the SoOLEGAL.in "Add a Documents/ Advice" feature.
Using this feature for any purpose other than creating Documents/ Advice details pages is prohibited.
Any Documents/ Advice already in the SoOLEGAL.in catalogue which is not novel and/ or unique or has already been provided by any other Registered User which may give rise to Intellectual Property infringement of any other Registered User is prohibited.
Detail pages may not feature or contain Prohibited Content or .
The inclusion of any of the following information in detail page titles, descriptions, bullet points, or images is prohibited:
Information which is grossly harmful, harassing, blasphemous, defamatory, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, pornographic, obscene or offensive content or otherwise unlawful in any manner whatever.
Availability, price, condition, alternative ordering information (such as links to other websites for placing orders).
Reviews, quotes or testimonials.
Solicitations for positive customer reviews.
Advertisements, promotional material, or watermarks on images, photos or videos.
Time-sensitive information
Information which belongs to another person and to which the REGISTERED USER does not have any right to.
Information which infringes any patent, trademark, copyright or other proprietary rights.
Information which deceives or misleads the addressee about the origin of the messages or communicates any information which is grossly offensive or menacing in nature.
Information which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
Information containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
Information violating any law for the time being in force.
All Documents/ Advices should be appropriately and accurately classified to the most specific location available. Incorrectly classifying Documents/ Advices is prohibited.
Documents/ Advice titles, Documents/ Advice descriptions, and bullets must be clearly written and should assist the customer in understanding the Documents/ Advice. .
All Documents/ Advice images must meet SoOLEGAL general standards as well as any applicable category-specific image guidelines.
Using bad data (HTML, special characters */? etc.) in titles, descriptions, bullets and for any other attribute is prohibited.
Do not include HTML, DHTML, Java, scripts or other types of executables in your detail pages.
Prohibited REGISTERED USER Activities and Actions
SoOLEGAL.com REGISTERED USER Rules are established to maintain a transacting platform that is safe for buyers and fair for REGISTERED USERS. Failure to comply with the terms of the REGISTERED USER Rules can result in cancellation of listings, suspension from use of SoOLEGAL.in tools and reports, or the removal of transacting privileges.
Attempts to divert transactions or buyers: Any attempt to circumvent the established SoOLEGAL Transactions process or to divert SoOLEGAL users to another website or Transactions process is prohibited. Specifically, any advertisements, marketing messages (special offers) or "calls to action" that lead, prompt, or encourage SoOLEGALusers to leave the SoOLEGAL website are prohibited. Prohibited activities include the following:
The use of e-mail intended to divert customers away from the SoOLEGAL.com Transactions process.
Unauthorised & improper "Names": A REGISTERED USER's Name (identifying the REGISTERED USER's entity on SoOLEGAL.com) must be a name that: accurately identifies the REGISTERED USER; is not misleading: and the REGISTERED USER has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person). Furthermore, a REGISTERED USER cannot use a name that contains an e-mail suffix such as .com, .net, .biz, and so on.
Unauthorised & improper invoicing: REGISTERED USERS must ensure that the tax invoice is raised in the name of the end customer who has placed an order with them through SoOLEGAL Payment Systems platform . The tax invoice should not mention SoOLEGAL as either a REGISTERED USER or a customer/buyer. Please note that all Documents/ Advices listed on SoOLEGAL.com are sold by the respective REGISTERED USERS to the end customers and SoOLEGAL is neither a buyer nor a REGISTERED USER in the transaction. REGISTERED USERS need to include the PAN/ Service Tax registration number in the invoice.
Inappropriate e-mail communications: All REGISTERED USER e-mail communications with buyers must be courteous, relevant and appropriate. Unsolicited e-mail communications with SoOLEGAL , e-mail communications other than as necessary and related customer service, and e-mails containing marketing communications of any kind (including within otherwise permitted communications) are prohibited.
Operating multiple REGISTERED USER accounts: Operating and maintaining multiple REGISTERED USER accounts is prohibited.
In your request, please provide an explanation of the legitimate business need for a second account.
Misuse of Search and Browse: When customers use SoOLEGAL's search engine and browse structure, they expect to find relevant and accurate results. To protect the customer experience, all Documents/ Advice-related information, including keywords and search terms, must comply with the guidelines provided under . Any attempt to manipulate the search and browse experience is prohibited.
Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
YOU HAVE AGREED TO THIS TRANSACTION TERMS BY CLICKING THE AGREE BUTTON