Non-Disclosure of Material Fact in Insurance Matters

Non-Disclosure of Material Fact in Insurance Matters

by | Feb 21, 2022 | Legal, Quotes from landmark judgements

Non-Disclosure of Material Fact in Insurance Matters

The term Non-disclosure of Material Fact has not been defined in Insurance Act. Insurance companies were rejecting the claims of the consumers on the plea of pre existing –disease every now and then.

Insurance companies were rejecting the claims of the consumers on the plea of pre-existing disease in almost every case  which means claimant had not disclosed the ailment he was having at the time of filling up the prescribed form. Defining pre-existing disease in insurance matter in the matter of Asha Rani Goyal  v Life Insurance Corporation .in the year 2000, three criteria were set up for coming to the conclusion that the claimant had disease pre-existing as here under:

1) One must have concealed the fact

2) The fact so concealed should be of such importance that could affect the policy co. to take decision whether to issue policy or not.

3) The person so insured must be aware of that particular disease

And now unless it is proved that claimant was aware of the particular disease and had taken medicine or consultation for that particular disease his claim cannot be rejected merely due to such symptoms.

Ref. Asha Rani Goyal v Life Insurance Corporation .in the year 2000, SC

Builder to pay additional taxes to Corporation on behalf of Home buyers

Builder to pay additional taxes to Corporation on behalf of Home buyers

by | Feb 13, 2022 | article, Legal

Builder to pay additional taxes to Corporation on behalf of Home buyers

Dr Prem Lata Ex Member Consumer Forum; Head Legal VOICE

Synopsis

It’s a common grievance of home buyers that builder fails to complete the construction work including amenities as per plan and agreed terms. With the result occupancy certificate not issued by the concerned authorities, in some cases home buyers take possession under compelling circumstances with incomplete work and occupancy certificate still remains a problem. Here is a unique case decided by the Hon’ble Supreme Court on 11th January 2022 which gives a new dimension to the issue of fixing liability of the developer when occupancy certificate not provided to the home buyers.

Analysis 

It is two-fold deficiency on the part of builder – One for delay in possession due to incomplete construction and another for not obtaining completion certificate /occupancy certificate. This creates difficulties for the home buyers when it comes to the situation for paying extra taxes to the corporation because residents are not permitted by the corporation to occupy premises unless fit to reside. The case had come up before the Hon’ble Supreme Court with these facts in the matter of  Samruddhi Co-operative Housing Society Ltd V/S  Mumbai Mahalaxmi Construction Pvt.Ltd  against the order from NCDRC and was decided on 11th of Jan 2022

NCDRC had dismissed the complaint on 3rd  December 2018 on two grounds 

  • That it was barred by limitation 
  • That it was not maintainable since it was in the nature of a recovery proceeding and not a consumer dispute.
Therefore this appeal before Hon’ble Supreme Court 

Facts of the case 

Mumbai Mahalaxmi Construction Pvt. Ltd constructed Wings ‘A’ and ‘B of their project   . The members of the Samruddhi Co-operative Housing Society booked the flats in 1993 and got possession in 1997 without taking occupancy certificate from the municipal authorities. Flat owners were not eligible for electricity and water connections. Temporary water and electricity connections were granted by the authorities on request of residents of society consequently now they were to pay property tax at a rate 25% higher than the normal rate and water charges at a rate which was 50% higher than the normal charge.  The society filed a consumer complaint on 8 July 1998 before the State Consumer Disputes Redressal Commission (SCDRC) Mumbai seeking a direction to the respondent to obtain the occupation certificate. The SCDRC directed the respondent vide order dated 20 August 2014, to obtain an occupancy certificate within four months. The SCDRC also directed the respondent to pay, Rs. 1, 00,000/- towards reimbursement of extra water charges paid. The society filed an application for execution of the order of the SCDRC dated 20 August 2014. No Occupancy certificate was obtained in spite of State commission order. Society now filed a complaint before the NCDRC seeking payment of Rs. 2,60,73,475/- as reimbursement of excess charges and tax paid by the members of the appellant due to the deficiency in service of the respondent and Rs. 20,00,000/- towards the mental agony and inconvenience caused to the members of the appellant.  NCDRC dismissed the complaint as above said for the reason time barred and also held matter is recovery suit, society is not a consumer under Consumer Protect Act

Supreme Court made the following observation 

That Complainant Society is entitled to file complaint on behalf of Home buyers under Section 2(1) (d) of the Consumer Protection Act for availing services in case of any deficiency or shortcoming or inadequacy in the quality of service  There has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation  Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat-owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property. .The society is currently pursuing the execution of the order of the SCDRC arising from that complaint.  In the present case, the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate Section 24A of the Consumer Protection Act 1986 provides two year period of limitation from the date of cause of action arises SC considered that since the cause of action is The failure to obtain the occupancy certificate in spite of Order by SCDRC dated 20 August 2014 and even after filing execution petition, it is continuation of wrong which has resulted in the levy of higher taxes on the members of the society.  Complainant Society adopted the correct course of litigation in demanding for indemnification of extra payments made due to the failure on the part of builder to obtain the occupancy certificate. And homebuyers continue to suffer the injury inflicted by the builder merely due to the delay in the execution of the order against them    The fact that society is currently pursuing the execution of the order of the SCDRC arising from that complaint, that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong.  Looking into the peculiar facts and circumstances Supreme Court allowed the appeal filed by the Society on behalf of Home buyers and held that the complaint is maintainable. SC direct the NCDRC to decide the case on and dispose the complaint within a period of three months from the date of this judgment.
The Bombay High Court upheld the Constitutional validity of the Real Estate Law 2016

The Bombay High Court upheld the Constitutional validity of the Real Estate Law 2016

by | Feb 13, 2022 | Legal, Quotes from landmark judgements

The Bombay High Court upheld the Constitutional validity of the Real Estate Law 2016

Estate (Regulation and Development) Act – A bench of Justice Naresh Patil and Justice RG Ketkar passed the judgment after hearing all parties in the matter and upheld the provisions of the new Act that came into effect on May 1, 2017.

In September 2018 after several petitions challenging RERA were filed in high courts across the country, the Supreme Court stayed the proceedings in other courts and suggested that the Bombay High Court hear its RERA cases first.

Builders’ Contention-

Builders had challenged Sections 3 to 19 of the Act. Regarding regulating the transactions of ongoing projects and compelling promoters to get the project registered under RERA from the date of notification.

Petitioners submitted that, the promoter has been given a liberty to declare the tenure during which the project will be completed while getting the project registered .However the extension of registration granted under Section 5 by the authority is restricted to a period of one year which is unreasonable and an arbitrary provision. It has not been taken into consideration the circumstances which are beyond the control of the promoter while carrying out the developmental work. The Petitioner prayed that extension of registration under Section 6 shall not be restricted only to the force majeure circumstances provided under the proviso to Section 6 but all other factors also

A bench of Justices Naresh Patil and Rajesh Ketkar pronounced its judgment on a bunch of petitions filed by real estate developers and individual plot owners, all challenging the constitutional validity of the Act .It was held-

“RERA is not a law relating to only regulatory control the promoters (developers), but its objective is to develop the real estate sector, particularly the incomplete projects across the country. It is also crucial to protect the interest of flat buyers across the country,”

.Justice Patil opined

“The problems are enormous. It’s time to take a step forward to fulfil dreams of the Father of the Nation, Mahatma Gandhi, to wipe every tear from every eye”

The authorities must also closely monitor the implementation of the Act. The bench said while the bench concurred with the state and the Union government’s arguments.

“We are conscious of the fact that the actual implementation of RERA needs to be closely monitored in the years to come,” the bench opined.

Supreme Court strikes down condition in CBSE policy toconsider marks scored in the later test

Supreme Court strikes down condition in CBSE policy to
consider marks scored in the later test

by | Feb 13, 2022 | Legal, News and Views

Supreme Court strikes down condition in CBSE policy to
consider marks scored in the later test

Sukriti Gupta & others case had come up before the Supreme court in the year 2021 in which a number of  Class 12  students had filed petition to permit the class 12 students to opt for retaining marks of their previous exams in case they get less marks in improvement exams. Supreme Court vide their order in this case had directed CBSE to re-think on the issue and consider request of the students 

CBSE adopted the standard formula as per their policy and considered the cases where the student failed in improvement exam but passed in original exam but did not consider to give option to students for retaining  previous marks.

A bench of Justices A M Khanwilkar and C T Ravikumar said the Central Board of Secondary Education (CBSE) shall provide an option to the candidate to accept the better of the two marks obtained in the subject for final declaration of his or her results for the last academic year.

Court specifically asked CBSE to give them justification why it is not possible? The top court noted that the petitioners have the grievance that this condition has been inserted in departure of the earlier schemes where the better of the two marks obtained by a candidate in a subject was to be considered for final declaration of results. However, no justification was provided by the CBSE.

SUKRITI AND OTHERS V/S CBSE WP 1214/2021

Dairy Whitener-Which brand stands the test?

Dairy Whitener-Which brand stands the test?

by | Jan 23, 2022 | milk

Dairy Whitener-Which brand stands the test?

There has been a surge in the consumption of dairy whiteners these days. Those who use them in coffee and tea find it dissolves easily and gives their tea a very great whitening ability. We have a good number of dairy whitener brands available in the market which gets sold on different claims. Be it an easily dissolvable quality promise, taste, colour or something else. Now the question is if a particular brand contains all ingredients right. The below report comes with the best dairy whitener brand information, tested parameters details and relevant test results, so that you choose the best.

A Consumer Voice Report

The comparative testing of dairy whitener has been done following specification laid out by FSSAI, Indian Standard IS: 12299 and Legal Metrology (Packaged Commodities) Rules.

How we test

The test has been carried out at an independent accredited laboratory and standard test methods being used for testing. Thetesting primarilyfollowed FSS regulations and IS: 12299.

Brands tested

Eight popular dairy whitener brands have been selected for comparative testing as per our finalised test program. Among these, three we chose from high fat and five from medium fat dairy whitener categories depending upon the popularity. The following table shows which brand secures what score.

Rank

Score (rounded off score of 100)

Brand

Product claim

MRP,

Rs

Net weight, gms

Price per 100 gm,

Rs.

Best before, Months

Manufactured/ Marketed By

High Fat Dairy Whiteners

1

91

Ananda

High fat

180

500

36

12

Gopalji dairy Food Pvt Ltd

2

88

Amulya

(ISI marked) High fat

212

(Rs. 15

off)

500

42.4

12

Gujarat Co-operative Milk Marketing Federation Ltd.,

3

87

Verka

High fat

175

500

35

12

The Punjab state Co Op. Producers Union Ltd

Medium Fat Dairy Whiteners

1

90

Mother Dairy

Medium fat

200

500

40

9

Mother Dairy Fruit & Vegetable Pvt. Ltd.,

2

88

Nestle

Medium fat

203

400

50.75

12

Nestle India Ltd.,

3

88

Anik

Medium fat

200

500

40

12

Anik Milk Products Pvt Ltd

4

86

Nova

Medium fat

205

500

41

12

Sterling Agro Indus- tries Ltd.,

5

84

Signutra

Medium fat

200

400

50

12

Win Medicare Pvt Ltd

Rating: >90 – Very Good *****, 71-90- Good ****, 51-70- Fair ***, 31-50- Poor **, up to 30 – Very Poor *

Key findings

• Ananda secured top position in the High Fat category and Mother Dairy topped in the Medium Fat Category.
• Ananda and Mother Dairy are value for money brands respectively in high fat and medium fat categories.
• Five out of eight brands did not meet FSSAI’s milk protein standards as they have been found with lower than minimum requirement. Highest Protein has been found in Ananda followed by Amulya and Mother Dairy.
• Milk Fat has been found highest in Amulya
and Nova in respective categories.
• Nestle has been liked most in sensory tests followed by Mother Dairy and Signutra.
• Milk Solid Fat has been found highest in Ananda in high fat category and Nestle in medium fat category.
• Amulya is only ISI marked.
• All the brands contained added sugar (as sucrose) in the range of 15.20- 18.8 per cent. It has been found lowest in Nestle and highest in Nova.
• A ll the br and s ha v e been fo und microbiologically safe for consumption.

Top Performers & Value For Money

High Fat

Ananda

Medium Fat

Mother Dairy

Comparative performance scores of dairy whiteners

 

 

High Fat Dairy Whitener

Medium Fat Dairy Whitener

Test Parameters

%

wt.

Ananda

Amulya

Verka

Mother Dairy

Nestle

Anik

Nova

Signutra

Moisture

5

3.95

3.57

3.80

4.03

4.25

4.10

4.78

4.25

Insolubility index

5

4.5

4.0

5.0

5.0

5.0

5.0

5.0

4.50

Total ash

5

3.63

4.25

4.13

4.00

4.13

3.63

5.00

4.75

Milk Fat

12

10.80

12

11.52

10.98

9.18

10.92

11.10

9.24

Acid insoluble ash

6

6.0

6.0

5.4

6.0

5.7

6.0

6.0

5.10

Added sugar as sucrose

6

5.37

5.04

5.31

5.07

5.94

5.22

4.86

5.10

Milk Protein

12

12.00

9.55

7.54

9.41

5.88

8.11

4.44

4.08

Milk Solid not fat

12

8.59

7.20

8.11

8.98

11.95

9.31

9.02

10.51

Added sugar as dextrose

2

2

2

2

2

2

2

2

2

Microbiological tests*

8

8

8

8

8

8

8

8

8

Sensory Panel Tests#

22

20.72

20.96

21.04

21.17

21.31

21.00

20.72

21.05

* Microbiological tests include Salmonellasp., Listeria monocytogenes, Sulphite Reducing clostridiaand Bacillllus cereus
# Sensory Panel Tests includesAppearance of dry product, Appearance of reconstituted milk, Body & Texture of reconstituted milk, Flavour of reconstituted milk and Appearance of package

TEST PARAMETERS

Sensory panel tests

Consumers are very critical on selection of product that makes brand most acceptable/least acceptable. We conducted sensory tests to judge the sensory quality of dairy whiteners. These tests were conducted as per the Indian Standard IS: 10030 under the supervision of trained experts. Sensory parameters includeappearance of dry product, appearance of reconstituted milk, body andtexture of reconstituted milk, flavour of reconstituted milk and appearance of package.
The product shall be white or light cream in colour and free from lumps except those that break up readily under slight pressure. The product shall be free from extraneous matters and added colours.The flavour of the product before or after reconstitution shall be pleasant and sweet. It shall be free from off flavours. Verka scored highest in high fat category and Nestle scored highest followed by Mother Dairy in Medium fat category.

Milk solid not fat

Milk has mainly two constituents: fat and solids- not-fat (SNF). Solids such as vitamins, minerals, protein and lactose together make up SNF. SNF is the most essential part of the milk. As per the Indian Standard, it should be a minimum 57 per cent in dairy whiteners.As per its rules,milk solid not fat shall not be less than the specified minimum limit of 57 per cent. All the brands passed this test.It was found highest in Ananda in high fat category and in medium fat category it was highest in Nestle followed by Signutra.

Milk fat

Fat is an essential part of any balanced diet, providing essential fatty acids and helping the body absorb fat-soluble vitamins.As per the FSS regulations, high fat dairy whitener shall have minimum fat of 20 per cent by mass and in medium fat dairy whiteners between 10-20 per cent by mass. All the brands have met the minimum requirement specified by the national standard. In high fat category it was highest in Amulya and in medium fat category it was highest in Nova followed by Mother Dairy.

Milk protein (N×6.38), on SNF basis

Protein is an essential nutrient and inherently found in milk and milk products. It plays an important role in cellular maintenance, growth and functioning of the human body. Milk protein shall be minimum 34 per cent as per the FSS regulations.
Milk protein (in solid not fat) was found highest in Ananda and lowest in Verka in the High Fat category. In the medium fat category it was highest in Mother Dairy and lowest in Signutra. The Brands Signutra, Nova, Nestle, Verka and Anik did not match the FSSR requirement of minimum 34 per cent by mass.

MICROBIOLOGICAL TESTS

Microbiological contamination is a very serious issue for food products.Microorganisms is responsible for many foods borne disease. As per the FSS Regulations, we conducted microbiological tests for salmonella sp.listeria monocytogenes, sulphitereducing clostridia and bacillllus cereus. All the brands have been found within the specified limit for the aforementioned microbiological parameters.

Acid insoluble ash

Acid-insoluble ash indicates the presence of sand, dirt and dust. It should not be more than 0.10 per cent. All the brands have been found within the specified limit.
Added sugar (as sucrose)
Added sugars are sugars and syrups put in foods during preparation or processing. This does not include naturally occurring sugar such as those in milk. For optimal health, we should restrict our added-sugar intake. As per the FSS Regulation and Indian standard, added sugar as sucrose shall be maximum 18 per cent.Nova has been found with slightly higher added sugar as sucrose. However, it has been found lowest in Ananda and Nestle in respective category.

Moisture

Moisture is an important factor in food quality, preservation, and resistance to deterioration.
Moisture in inappropriate amounts is damaging to the useful life of food. The presence of moisture is inherent in the processing of food and to some extent is good for maintaining its taste and odour but excess of moisture is undesirable. As per the FSS regulations, moisture shall be 4.0 per cent maximum. All the brands have been found within the specified limit thus have passed the test.

Insolubility index at 24°C

The extent to which milk powders are insoluble in water has traditionally been measured in the milk powder industry using an insolubility test. It shall be maximum 1.5 ml. All the brands have been found well within the specified limit.

Total ash (on dry basis)

The analysis of ash content in foods is simply the burning away of organic content, leaving inorganic minerals. It shall be maximum 9.3 per cent as per the FSSR and 8.2 per cent as per the BIS.
Total ash in all brands has been within the maximum permissible limit. However, it has been found lowest in Novaand highest in Ananda / Anik.

Added sugar as dextrose

Dextrose is a type of sugar that usually comes from corn or wheat. Dextrose is almost identical to glucose, which is the sugar found in the bloodstream. For that reason, it can be quickly used as a source of energy by the human body. Dextrose is often used in foods as an artificial sweetener or a preservative. There is no standard requirement of added sugar as dextrose. The test was conducted for presence of added sugar as dextrose however it was not detected in any brands tested.

MICROBIOLOGICAL TEST RESULTS

Salmonella sp.

Salmonella is a genus of gram-negative bacteria of the family enterobacteriaceae and may cause gastroenteritis and focal infections. Salmonella shall be absent in 25 g. All the brands passed in this test.

Listeria monocytogenes per g

Listeria monocytogenes is pathogenic bacteria that causes the infection listeriosis.
It shall be absent/ g.All the brands passed in this test.

Sulphite Reducing clostridia

Sulfate-reducing bacteria (SRB) facilitate the conversion of sulfate to sulfide with the sulfides reacting with heavy metals to precipitate toxic metals as metal sulfide.It shall not be more than m- 50/g, M- 1×10 2/g.It shall be absent/ g.All the brands passed in this test.

Bacillllus cereus

Bacillus cereus is a toxin-producing bacteria that is one of the most common causes of food poisoning. It shall not be more than m-5×102 /g , M-1×103/g. All the brands have been found within the specified limit and passed this test.

Marking

The products were verified agains t the m arking standard requirements:
1. Name of material and brand name, if any
2. Name and address of the manufacturer
3. Month and year mfg or packing
4. Direction for storage
5. Net weight
6. Best for consumption
7. Batch or code number
8. Green Dot mark
9. MRP
10. FSSAI License number
11. Customer care details

All the brands have provided above listed information

Net weight

Net weight should not be less than their claimed quantity however legal metrology rule has specified some tolerance on declared quantity according to pack size. The net weight of all brands has been found to be above the declared quantity.

Packing

Packing plays an important role in maintaining consistent quality of the product, preventing its deterioration, and increasing the shelf life.Packaging should be proper because it prevents the product from deterioration and increases shelf life.The product shall be packed in food grade packaging. All the brands have been packed in suitable flexible packaging (polypack).

Sensory Tests: Parameter wise scores

 

 

High Fat Dairy Whitener

Medium Fat Dairy Whitener

Characteristics

%

wt.

Ananda

Amulya

Verka

Mother Dairy

Nestle

Anik

Nova

Signutra

Appearance of dry product

3

2.82

2.82

2.8

2.9

2.9

2.9

2.82

2.8

Appearance of reconstituted milk

3

2.8

2.82

2.82

2.9

2.92

2.9

2.8

2.86

Body & Texture of reconstituted milk

6

5.58

5.52

5.58

5.64

5.67

5.64

5.58

5.73

Flavour of reconstituted milk

8

7.56

7.8

7.84

7.73

7.82

7.63

7.56

7.7

Appearance of package

2

1.96

2

2

2

2

1.96

1.96

1.96

Total Score

22

20.72

20.96

21.04

21.17

21.31

21

20.72

21.05

Conclusion and recommendations

This report presents our findings on eight brands of dairy whitener on various quality, safety and acceptability parameters.Ananda performed highest in high fat category and Mother Dairy in medium fat category. Three out of eight brands namely Ananda, Amulya and Mother Dairy passed in all the tests.

Manufacturers’ Comments

As a matter of policy, before publication, the test results of the brands have been shared with their respective manufacturers/marketers inviting their views/comments. Some of them have shared their comments on our test results which you can go through in the below table.

Brands

Manufacturers’ Comment

Consumer Voice’s Reply

VERKA

1.    Milk Protein (N×6.38),on SNF basis, % by mass is 32.8 i.e; below the norms. We have got tested the same sample in our laboratory and as well as from NABL accredited lab. The result is of Protein (% w/w) 20.76 i.e; % Protein – 36.04 (SNF basis). So, you are requested to retest the same sample again.

2.    Our Verka Jalandhar Dairy team have objections in testing results.

3.  You can analyse the sample for % Protein once again from Third Party NABL accredited lab. You are requested to kindly discuss the same before publishing the results.

1) Our designated lab has conducted retest for milk protein and their reply is as follows:

“We would like to submit that we have repeated the test and found the results are in order as reported.”

2.    Our designated lab has agreed to conduct witness testing in presence of your representative.

3.   Our designated lab is third party lab, NABL accredited for dairy products already repeated the test and found the same results. The lab has no reservation and also agreed for witness testing in presence of your representative. We strongly feel that it will not be fruitful as the outcome would be similar.

NESTLE

Given method is basically for analysis of protein. Milk Protein (in solids not fat) is calculation method & the formula is give below – MSNF=  (100-(Fat  + Moisture

+   Maltodextrin(6.4%)   +   Sucrose))

Protein in MSNF = Protein⁄MSNF X

100

The lab has repeated milk protein test following standard test method- IS: 7219 and found same results as reported earlier. The calculation method proposed by you has value from label declaration which can’t be used in independent lab testing. Also, we submit masked and coded samples to lab.

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