A wrong medical certificate by a clinic causing loss of job opportunity in Saudi Arabia; Deficiency in services held  

A wrong medical certificate by a clinic causing loss of job opportunity in Saudi Arabia; Deficiency in services held  

by | Jun 18, 2023 | Legal, resources

A wrong medical certificate by a clinic causing loss of job opportunity in Saudi Arabia; Deficiency in services held  

The Kerala State Consumer Dispute Redressal Commission is currently addressing a significant case that has garnered attention due to the far-reaching implications of the central law known as the Clinical Establishments (Registration and Regulation) Act, 2010. In this case, Manoj Chacko’s employment prospects in Saudi Arabia were negatively impacted when Gulshan Medicare, a clinic operating under the regulations of the aforementioned law, issued an incorrect “X-RAY UNFIT” certificate to him. The Kerala State Consumer Dispute Redressal Commission upheld the judgment of the District Commission, which found Gulshan Medicare to be deficient in services and involved in unfair business practices.

  Dr Prem Lata, Legal Head VOICE

The Clinical Establishments (Registration and Regulation) Act, 2010

“Clinical establishment” means— (i) a hospital, maternity home, nursing home, dispensary, clinic, sanatorium or an institution by whatever name called that offers services, facilities requiring diagnosis, treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicine established and administered or maintained by any person or body of persons, whether incorporated or not; or

(ii) a place established as an independent entity or part of an establishment referred to in sub-clause

(iii), in connection with the diagnosis or treatment of diseases where pathological, bacteriological, genetic, radiological, chemical, biological investigations or other diagnostic or investigative services with the aid of laboratory or other medical equipment, are usually carried on, established and administered or maintained by any person or body of persons, whether incorporated or not.

Gulshan Medicare V/S Manoj Chacko

First Appeal No a/116/2017 decided on 1.12.2022

Facts leading to dispute

On August 21, 2013, the complainant, who worked in Saudi Arabia, returned on a 15-day leave. A minor delay in his return led to the issuance of a second visa, and he was now required to get a medical certificate following a check-up. In accordance with Gulf Cooperation Council regulations, he got in touch with Gulshan Medicare, a medical facility permitted to do the required medical examinations for people applying for jobs in GCC nations.

A check-up was conducted on November 21, 2013, for a fee of Rs. 4200, and an x-ray revealed right upper zone fibrosis, which prevents entry into Gulf countries. A licenced radiologist who was stationed in Bombay and was unavailable to sign the report nevertheless issued the chest x-ray report. The complainant sought a second opinion from Dr. P. Sukumaran, a pulmonologist at Bharat Hospital Kottayam, after determining that the report was inappropriate. He attested that there is no clinical or radiological indication of an active respiratory ailment in the complainant. The complainant asked to examine the report, and his employer also asked to revisit the situation, but both requests were turned down. Complainant filed consumer complaint before District Commission Ernakulum alleging clinic issued unfit certificate with ulterior motive to help getting visa to someone else.

Disputant issues

  1. Certificate does not contain signature and seal of doctor. Remarks on certificate shows “x-ray unfit”.
  2. Job of complainant was written as plumber whereas he was a male nurse.
  3. Certificate was not issued as per guidelines prescribed in act 2010 minimum standard of facilities and services to be provided by medical imaging services (Diagnostic Centre).
  4. Qualified doctor /radiologist was not available at the centre when test was conducted, they were stationed elsewhere and report was issued but not signed.
  5. A crucial document like medical report while giving negative or unfit certificate needs to be carefully checked. In the present case, even other opinion or employers request to review was turned down by the clinic.

On November 13, 2016, the District Consumer Commission issued an order declaring the clinic to be lacking in services and imposed a compensation of Rs one lac on the complainant. Subsequently, the matter was challenged at the State Commission level. The State Commission diligently reviewed all the documents submitted by both parties to reach a logical conclusion.

Dr. P Sukumaran, a pulmonologist, determined that the complainant showed no clinical or radiological evidence of any active respiratory disease. Furthermore, the pertinent provisions of the Act concerning the clinic’s duties and responsibilities were also examined.

Art 16(6) guaranteed that medical fitness certificate given to the expatriates should be authenticated and validated. Article 16(11) said that all issued certificates will be stamped with the seal of the centre after a medical examination has been carried out. Evidently report was neither stamped with seal nor signed by the doctor, hence its authentication or validation was under question.

Additionally, the obligation specified in section 4.3, which necessitates the presence of a qualified radiologist or a related medical practitioner for the interpretation of the report, was not fulfilled. It was discovered that the doctor responsible for examining the report was not present in Ernakulam but instead was stationed in Mumbai. There was no substantiation to establish the presence of a qualified doctor or radiologist at the testing centre. Given that an erroneous report could potentially result in the loss of job opportunities for the candidate, it was imperative to thoroughly review the report, particularly when it indicated unfitness.

State commission confirmed the order made by District Commission holding the clinic deficient in services.

Intervention by HC of Delhi on necessary qualification and procedure for signing reports under the Act

It is noteworthy to mention that a matter concerning the qualifications of radiologists and doctors who sign reports under the Clinical Establishment Act 2010, was brought before the High Court of Delhi. The High Court of Delhi has issued a notice to the Health Ministry in response to a writ petition filed against the amendments made in the Rules 2020 of the Clinical Establishment Act. The bench of the Delhi High Court, comprising Prateek Jalan and Chief Justice DN Patel, issued the notice on December 17, 2020.

Dr. Rohit Jain submitted a writ petition to the High Court of Delhi, requesting a directive to declare the Clinical Establishment (Central Government) Amendment Rules, 2020, of the Clinical Establishment Act, 2010 as ultra vires. These revised rules permit individuals holding a Master’s of Science or Ph.D. degree and working as technicians in diagnostic laboratories to sign and authenticate medical reports without the counter signature of a qualified MBBS or MD in Pathology. Since every test report is considered a medical report that necessitates the application of expertise, interpretation, and diagnosis from the outset, it is imperative that only individuals with qualifications of MBBS or MD should be authorized to sign such reports.

Arguments by the petitioner were-

  • According to Section 15(2) of the Indian Medical Council Act, 1956, only a registered medical practitioner can practice modern medicine, and that a medical laboratory report can only be countersigned by a registered medical practitioner with a post graduate qualification in pathology. The qualifications of MSc or PhD are unregulated and cannot be equated with MBBS or MD in Pathology.
  • It is also pointed out that Supreme Court also in its 2017 judgment expressed the same views that according to Section 15(2) of the Indian Medical Council Act, 1956 only a registered medical practitioner can practice modern medicine, and that a medical laboratory report can only be countersigned by a registered medical practitioner with a post graduate qualification in pathology.

Ref. High Court of Delhi-17th December 2020

Following the notice from the High Court of Delhi, the Ministry of Health and Family Welfare issued a notification in New Delhi on April 9, 2021, marked as S.O. 1992(E). This notification stated that, in accordance with the authority granted by subsection (1) of section 3 of the Clinical Establishments (Registration and Regulation Act, 2010 (23 of 2010), and in replacement of the previous notification dated June 18, 2020, the Central Government has established a National Council for Clinical Establishments, which will be chaired by a designated chairperson.

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Lack of statutory compliance by the builder: Not a justification for a delay in possession

Lack of statutory compliance by the builder: Not a justification for a delay in possession

by | May 20, 2023 | Legal

Lack of statutory compliance by the builder: Not a justification for a delay in possession

On March 23, 2023, the National Commission reached a decision in the case of Naresh Garg and Sons VS CHD Developers Ltd. Consumer Case No. 1753 of 2018. The Developers’ argument that the National Green Tribunal’s rules weren’t followed was rejected by the Commission as the cause of the delay. The bench stated that the opposing party cannot be permitted to profit from his own fault of non-compliance and refused to accept his justification as force majeure. 

  Dr Prem Lata, Legal Head VOICE

  • Case Title: Naresh Garg and Sons vs CHD Developers Ltd.
  • CC No. 1753 of 2018, Decided on 23rd March 2023

Brief Facts

The complainant, Mr. Naresh Garg, applied to the Opposite Party, CHD Developers, for re-allotment of a unit near the Golf Course Avenue in Gurgaon by way of an application. The flat was earlier allotted to one Sh. Sarvesh Kumar Tiwari. The Opposite Party permitted the re-allotment, after all the necessary formalities and payment of charges, to the complainant. An apartment’s buyer agreement was also entered into between the parties and as per that, the possession of the unit was to be delivered by the opposite party within 42 months from the date of agreement. However, the Opposite Party failed to deliver the possession within the stipulated time. Hence, the Complainant filed this consumer complaint praying for a refund of the amount Rs. 79, 37,091/- with an interest and damages to the extent of Rs. 5 Lakhs.

Arguments extended by the Opposite Party

  • As stated in Section 2(1)(d) of the Consumer Protection Act of 1986, the complainant would not fit the definition of a “consumer” because the property was bought for investment and resale and has a commercial purpose.  
  • The complainant’s claim is inflated to bring the complaint within the pecuniary jurisdiction of NCDRC. 
  • That the delay was caused due to a notification by the National Green Tribunal, Delhi resulting in stopping all construction activities by OP for a few months. 

Observations of the National Commission

  • The Opposite Party failed to place on-record the updated status of construction & likely date of its completion. Reliance was placed on the Supreme Court’s decision in Wg. Cdr. Arifur Rahman Kgan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & ors. (2020) 16 SCC 512, wherein it was held that failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amounts to deficiency. As per  order in case of Kolkata West international City Pvt. Ltd. vs Devasis (2020) 18 SCC 613, a buyer can be expected to wait for possession for a reasonable period but not an indefinite period.
  • The contention of the Opposite Party that Mr. Naresh is not a consumer was rejected, as no evidence was produced to corroborate the same. 
  • Perusal of the evidence showed that there was no blanket order of the NGT to stop construction activities. The direction to stop construction activities was only where the construction was being carried out in violation of the MOEF Guidelines 2010. No material was presented by the Opposite Party to know the exact nature of ban on construction activity under the NGT’s order and the period for which such ban was in force. 
  • The bench remarked that the Opposite Party cannot be allowed to reap benefits of his own wrongdoing of non-compliance. 

In light of the aforementioned discussion, the Opposite Party was ordered to refund the amount given by the Complainant along with compensation in the form of simple interest at 9% per annum from the date of each payment till the date of refund.

Similar cases decided by Hon’ble SC in similar matters 

  • DLF Universal Ltd and Another Versus Capital Greens Flat Buyers Association (SC) Civil Appeal No’s 3864-3889 of 2020
  • December 14, 2020

Facts: There was a substantial delay on the part of the developer in handing over possession of the apartments. OP took plea of force majeure conditions.

  1. Delay in the approval of building plans.
  2. Issuance of stop work orders in Covid situation. 
  3. The buyers of the flat received exit offers twice. When the developer learned that the delay had gone over the agreed time frame of 36 months, he offered the buyers refunds of the purchase price plus interest at a rate of 9% per year. 
  4. 45% of the flat buyers in the project have sold away their flats.
  5. The flat buyers have the benefit of an appreciation in the capital value of the apartments purchased.
  6.  The developer has extended the benefit of timely payment and goodwill rebates to the flat purchasers.

Supreme Court held

  • On all counts—non-approval and a directive to halt work—the force majeure clause is unacceptable. The builder should have anticipated the possibility of rejection before starting this project. The state’s order to halt building was made in response to accidents that occurred due to safety carelessness. This resulted from inadequate safety precautions and poor building practises.  
  • Mere offer to exit option with interest at 9% would not disentitle the flat purchasers from claiming compensation.

In view of the above discussions it is clear that Apex Court reiterates its stand that builders are to bear the consequences for the delays caused due to their own mismanagements and if any order by any courts are passed subsequently, that cannot be treated as force majeure conditions.

The concept of “deficiency in service” under the Consumer Protection Act, 1986 must be distinguished from the criminal or tortious acts.

It is often noticed that complainants using words cheating, fraud or likewise words often used in criminal offences while complaining against financial institutes for deficiency in services. In return, banks and financial institutes also escape from their liability and suggest the consumer to file an FIR when the fraud if any is against bank or financial institute and not against consumer when the bank is the custodian for consumer’s money. Consumers can register complaints against banks for poor service, and the banks are responsible for looking into any fraud that occurred. But disputes over serious allegations of fraud or deceit are outside the purview of consumer courts.

The Chairman & Managing Director, City Union Bank Ltd. & Anr. Versus R. Chandramohan Civil Appeal No. 7289 of 2009 SC

Decided on 27.03.2023

Supreme Court reiterated in a case of The Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan that the concept of “deficiency in service” under the Consumer Protection Act, 1986 must be distinguished from the criminal or tortious acts.

“The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1) (g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it,” a Bench of Justices Ajay Rastogi and Bela Trivedi explained.

“As emerging from the record, some disputes were going on amongst the Directors of the Company and one of the Directors, if allegedly had committed fraud or cheating, the employees of the bank could not be held liable, if they had acted bona fide and followed the due procedure,” the Court said.

The Insurer had a duty to inform the appellants that a change regarding the limitation on its liability was being introduced

by | Apr 17, 2023 | Legal

The Insurer had a duty to inform the appellants that a change regarding the limitation on its liability was being introduced

Case Title: Jacob Punnen and another versus United India Insurance Co Ltd

Decided on 9 Dec 2021

“The Insurer had a duty to inform the appellants that a change regarding the limitation on its liability was being introduced”

In this case Jacob Punnen and another versus United India Insurance Co Ltd, a bench comprising Justices S Ravindra Bhat and KM Joseph was considering an appeal against an order of the National Consumer Disputes Redressal Commission, which denied relief to the appellants.

The appellants, two senior citizens, had availed a mediclaim policy from United India Insurance in 1982, which was renewed on yearly basis. In 2008, the second appellant had to undergo angioplasty surgery. A claim of Rupees 3.82 lakhs was submitted by the appellants to the insurer with respect to the angioplasty surgery. The coverage at the relevant time was Rs 8 lakhs. However, the insurer accepted the claim for only Rupees 2 lakhs, saying that the renewed agreement had a clause which limited the liability with respect to surgeries like angioplasty to an amount of Rs.2 lakhs.

  • The policy holder is under the impression that the existing conditions are being renewed.
  • “If the renewed contract is agreed, in all respects, by both parties, undoubtedly the fresh terms (with restrictions) would be binding. However, that would not be the case when a new term is introduced unilaterally about which the policy holder is in the dark. Further, the allusion to continuation of the terms of the Gold policy in respect of senior citizens (who were not to be compelled to migrate to another policy) but were to be subject to the same terms, upon payment of a different rate of premia, reinforces the conclusion that there was in fact, a renewal of the existing terms”.

Duty of insurers

  • The Court noted that a striking feature of the insurance contract is the principle of uberrima fide (duty of utmost good faith). In this backdrop, the insurer cannot plead that it is the duty of the policyholders to satisfy themselves about the terms and conditions. The Court took note of two particular facts – (1) the appellants are in need of health insurance due to advanced age; (2) the insurance policies are in standard form which offers no space for bargain or negotiation.
  • “In the present case, the standard form contract, renewed year after year, left the appellants only with the choice of raising the insurance cover”. That being the situation, the “informational blackout” by the insurer was a crucial omission, held the Court.
  • Justice Joseph held :

“‘The Insurer had a duty to inform the appellants that a change regarding the limitation on its liability was being introduced. there was unjustifiable non-disclosure by the Insurer about the introduction of clause of limitation and, in this case, it constituted a deficiency in service and resultantly the appellants are entitled to relief”.

Shopping Malls cannot ask for parking fee Quotes from Consumer Judgments

by | Apr 16, 2023 | Legal

Shopping Malls cannot ask for parking fee Quotes from Consumer Judgments

Case Title: Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd. (WP(C) NO. 29749 OF 2021),January 28, 2022.

The first petition was moved by a social worker Bosco Louis who appeared as a party in person. Another petition was moved by film director Pauly Vadakkan after he was charged Rs 20 as parking fees when he visited the mall on December 2.

In his plea, Vadakkan had alleged that the mall staff closed the exit gates and threatened him when he initially refused to pay the amount

Kerala High Court on Friday opined that prima facie, the collection of parking fees by Lulu International shopping mall was not appropriate while adjudicating upon a couple of pleas alleging that the mall collecting parking fees from its customers was illegal.

Justice P.V. Kunhikrishnan sought a clear response from the Kalamassery Municipality on this question and posted the matter to be taken up after two weeks.

“As per the Building Rules, parking space is a part of the building, and a building permit is issued on the condition that there will be a parking space. Based on this undertaking a building is constructed. After construction, whether the owner can collect a parking fee is the question. Prima face, I am of the opinion that it is not the case. Now I want to know the stand of the Municipality in this issue.”

The Court after hearing both sides directed the Municipality to file a statement on its definite stand whether a parking fee can be collected for a parking space mandatory under Building Rules

The matter taken up on January 28, 2022.

  • It was observed that collecting parking fees was a blatant violation of the Kerala Municipality Act and Kerala Municipality Building Rules 1994 since as per the rules, the mall is a commercial complex and the place earmarked in the approved building plan for parking cannot be converted into a pay & park facility.
  • If any conversion is made, that is a fraud on the statute and unsustainable in the eye of the law, the petitioner had submitted.
  • In 2019, the Gujarat High Court had ruled that malls and multiplexes should not collect parking fees as they are under a statutory obligation to provide car parking space.

 Prepared By Dr Prem Lata

Law on forfeiture of earnest money 

by | Apr 16, 2023 | Legal

Law on forfeiture of earnest money 

Case Law ;Goutam Roy V/S Avolon Projects 

CC No 1941 of 2018 ,Decided on 24.01.2023 (NC)

Builder and Home buyer signed an agreement having forfeiture clause.  In case of cancelling the booking by Home Buyer, 20% of total basic sale price shall be forfeited.

Question before the National Commission was as to how much deduction is reasonable and justifiable 

National commission while referring to number of SC cases on the issue relied upon section 74 of 1872 Contract Act that in case of breach of contract actual damage is to be proved for penalizing the other party. In such matters cancelling the booking flat or property by the buyer, the property remains with builder only and there is hardly any loss to the builder 

National commission ordered for forfeiture of 10% of the total sale cost of the property 

Cases Referred:

Moula Bux V/S Union of India 1970 SC

Sirdar K B Ram Chandra Raj URS v/s SC 2015theory of actual damage as per section 74 of contract act

Proximate nexus between the accident and the body injury is a must for accident claim in insurance matters

Proximate nexus between the accident and the body injury is a must for accident claim in insurance matters

by | Apr 9, 2023 | Legal

Proximate nexus between the accident and the body injury is a must for accident claim in insurance matters

Death due to sun stroke during election duty will not come under the scope of the clause “death only resulting solely and directly from accident caused by external violent and any other visible means” said SC, confirming its earlier decision in the matter of Alka Shukla V/S LIC (2019)SC. 

  Dr Prem Lata, Legal Head VOICE 

A proximate causal relationship between the accident and the physical injury is required, according to the principle established on the subject. The rule of thumb for interpreting insurance contracts is to give the clauses a straightforward reading.

National Insurance Company Ltd. versus Chief Electoral Officer & Ors. Civil Appeal No.4769 of 2022; February 08, 2023

Facts leading to dispute  

The Chief Electoral Officer, Bihar, Patna, entered into a Memorandum of Understanding on 09.02.2000 to provide insurance cover to the persons deployed for election related work for Bihar Legislative Assembly Elections in the year 2000 vide letter dated 10.02.2000. Subsequently the duration of the insurance scheme was extended from 24.05.2000 to 23.06.2000 by way of a supplementary policy keeping in mind the period of the by-polls.

Clause 3 in MOU, the claim compensation is as hereunder 

 “The insurance is intended to provide for the payment of compensation in the event of death only resulting solely and directly from accident caused by external violent and any other visible means.”

Deval Ravidas, Constable, Shivhar District Force, was a member of the Static Armed Force, posted at Booth no.67, Primary School, Mathura Sultanpur, Police Station Bidupur, District Vaishali, who died due to a sun stroke/heat stroke while performing election duty for the Bihar Legislative Assembly. This happened during the extended period of the insurance policy. 

After a long period of time, the late Constable Deval’s wife finally brought up the subject of compensation in a letter dated November 21, 2008.

After filing of this writ, The Assistant Election Officer wrote a letter dated 20.11.2009 addressed to the Under Secretary to the Lokayukta, Patna, Bihar, stating that the death of the deceased Constable occurred on account of heat stroke on 26.05.2000 during election duty and had not occurred on account of any external violent activity/accident. Thus, compensation to the wife deceased Constable Deval could not be found admissible for payment.

Writ Petition before High court  

Wife of Deval in Writ Petition, before the High Court of Patna prayed for quashing the above letter and sought payment of compensation amount of Rs.10 lakhs as per the insurance policy since her husband had died while performing election duty. On direction from Single judge the District Election Officer placed a notice of claim dated 24.04.2011 to the insurance company regarding the claim for insurance. 

Insurance company rejected the claim 

The learned Single Judge in the Writ Petition, CWJC No.1781/2011 then decided not to go into the issue whether the accidental death was in terms of the policy because the Chief Electoral Officer in an affidavit had already acknowledged the eligibility for payment to the wife of the deceased police official. Relying upon that admission and also in view of the facts that the claim was required to be lodged within the duration of the policy, i.e., 24.05.2000 to 23.06.2000. The Court opined that the primary responsibility to raise the claim under the policy was with the officials of the State Government and that they did not raise the claim within the duration of the policy and permitted the policy to lapse. Therefore, the liability to pay the amount to the deceased wife was assigned to the Chief Electoral Officer and the District Magistrate, Vaishali.

It was stated by the Chief Electoral Officer that the family of deceased had already been paid during the pendency of writ but the Chief Election Officer preferred appeal against the order of single judge to the Division bench with a plea that insurance company cannot escape from the liability of paying compensation merely because they were late in filing claim. It was said that the election officer was an agent for the purpose of forwarding premium payment to insurance and secondly accident occurred during the tenure of existing policy. Division bench agreed to the point that the incident took place during the policy period, hence liability lies with the insurance company.

Insurance company now comes in appeal before SC

There were two issues before the Supreme Court 

  1. Consequences of delay in filing claim after about seven and a half years  
  2. Whether insurance was covered for ‘accidental death’ under the present facts and situation    

After carefully weighing all the relevant information, previously decided cases, and insurance law, the Supreme Court determined that

  • Admittedly claim was beyond the reasonable time and was not admissible

On the question of liability of Insurance company on merits of the case, it is held that “proximate causal relationship between the accident and the body injury is a necessity as per the definition of Accident Death due to sun stroke during election duty will not come under the scope of the clause “death only resulting solely and directly from accident caused by external violent and any other visible means.” Hence Insurance was not found liable on both the counts.

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