October 2021

Builders can’t get away by handing over maintenance & administration of housing society to the residents’ welfare association if the project remains unfinished without all infrastructure & facilities promised to the homebuyers & will need to compensate the RWAs, the Apex Court said. Almost eighteen years after a builder handed over a housing project in Noida to the residents’ association, a bench of Justices Hemant Gupta & V Ramasubramanian directed the company, Padmini Infrastructure, to pay Rs 60 lakh to the Royal Garden RWA for not building a water softening plant, a second health club & a swimming pool in addition to putting in place a firefighting system. The long legal battle reflects issues faced by residents in such societies across the country & will be a boost for homebuyers, even though more recent state RERA laws cover some of the aspects relating to defaults on promised facilities. Such disputes between RWAs & builders, some going back several years, continue to clog courts & consumer forums. The real estate company constructed the housing project with 282 apartments & possession was given from 1998-2001. The purchasers formed an RWA & got it registered in 2003 under the Societies Registration Act. The RWA entered into an agreement on Nov 2003 with the builder for taking over maintenance of the apartment complex. As the builder did not fulfil promises made in the agreement, the RWA approached the National Consumer Disputes Redressal Commission (NCDRC), which appointed a local commissioner to visit the site & file a report. On the basis of the report, NCDRC allowed the plea of the association. A decade after entertaining the plea, the Court directed that the sum be handed over to the association & brought the 18-year-old legal fight to an end. The Court turned down the plea of the company that the association was barred by limitation to raise grievances & passed the order by accepting the report of the local commissioner. Observing that the association was handed over maintenance of the housing society eighteen years ago, the court said it might not be possible to compel the builder to make those facilities or systems fully operational now & the interests of justice will be met if the order of the National Commission is modified in such a manner that the complainant association shall receive in full & final settlement. The Bench stated that “The complainant shall be entitled to all told monetary compensation in a sum of Rs 60 lakh, now lying in deposit with the Registry of this court, together with the interest accrued thereon, in lieu of the reliefs sought in prayer of the complaint. The opposite party (builder) shall, within two weeks, remove all building material stored by them in the club house in the basement of Tower Eden & hand over possession of the club house to the complainant”. Source: LatestLaws.com

BENGALURU: The state consumer court has upheld a district consumer forum direction to an insurer to clear a Bengaluru woman’s Rs 1.4 lakh insurance claim towards her stolen motorcycle. The insurer had turned down her claim, saying the vehicle’s insurance policy was still in the name of the first owner and hadn’t been transferred to her. Liberty Videocon General Insurance Ltd had appealed against a Bengaluru district consumer forum’s June 30, 2020 verdict ordering that the insured value of the vehicle — Rs 1,37,824 — be paid with interest to Sheela Shantharaj, 57, of Kuvempunagar, apart from Rs 10,000 towards damages and Rs 5,000 towards litigation cost. Sheela purchased a Bajaj KTM Duke 200 motorcycle on April 27, 2017 from its original owner Mahesh P by paying Rs 1.5 lakh. On June 2, 2017, the motorcycle was stolen from her residence and she lodged a complaint with Chandra Layout police. With the vehicle carrying an active insurance policy in the name of the original owner till September 26, 2017, Sheela approached the insurer, Liberty Videocon General Insurance Ltd, for a claim for the stolen bike. But despite an active policy in place, the insurance firm turned down her claim, stating that the vehicle was yet to be transferred in her name and she had failed to apply for an insurance transfer till the time of theft. Next, the woman approached a local consumer court, which ruled in her favour. It ordered the firm to pay Rs 15,000 compensation for the delay, apart from granting her the insurance claim of Rs 1,37,824. Claiming that the local court erred in its judgment, Liberty Videocon General Insurance appealed to Karnataka State Consumer Disputes Redressal Commission on October 22, 2020. The judges, however, noted that on the date of theft, the vehicle was under insurance cover and the complainant intimated the firm for settlement of the claim and also lodged a police complaint. Further, she had requested the RTO for transfer of vehicle ownership and the stand taken by the insurer that there is no privity of contract between her and them cannot be accepted and they cannot repudiate the claim of the transferee, as there was still an active insurance coverage. The judges further observed that though the woman hadn’t given any application to the opposite party, she had indeed applied to the RTO for transfer. Hence, there was no negligence on her part as long as a valid insurance cover was present, either in the name of the original owner, or in the name of the transferee. In the circumstances, denial of claim money is illegal and the order passed by the district commission is upheld, the judges stated in their ruling on September 7, 2021. Source: Times Of India

The district consumer and redressal forum, Kapurthala, has directed the National Insurance Company, a private insurance firm, to pay ₹8 lakh compensation to a private bus owner for damages to his vehicle. The complainant, Jaskirat Singh Chahal, had said his bus was totally burnt after it caught fire due to short circuit in 2010. Later, the insurance firm deputed a surveyor who assessed the loss and sent a report the company in 2011. The firm did not give him claim and instead closed the case in 2013, Chahal said. “It clearly proves that the company without caring for the insurance contract and equity and principles of natural justice refused to reopen the case despite having received all information from me,” the complainant had submitted. Source: HindustanTimes

Consumers in India experienced a relatively high scam encounter rate of 69 per cent in the last 12 months according to Microsoft’s 2021 Global Tech Support Scam Research report. The report looks at tech support scams and their impact on consumers. Consumers in India who lost money to such scams in 2021 lost ₹15,334 on average. Findings showed that almost half of consumers surveyed in India (48 per cent) were tricked into continuing with the scam — an eight-point increase from 2018, and three times higher than the global average (16 per cent). One in three (31 per cent) of those surveyed continued engaging and eventually lost money, an increase of 17 points compared with 2018 (14 per cent). In contrast, there was an overall five-point drop in scam encounters globally with a rate of 59 per cent over the same period. In India, Millennials (aged 24-37) were the most susceptible to such scams in 2021, with 58 per cent of those that continued with the scam incurring monetary loss. 73 per cent of males in India who proceeded to interact with a scammer were likely to lose money. Each month, Microsoft receives about 6,500 complaints globally; this is down from 13,000 reports in an average month in prior years. To better understand how the problem with tech support scams is evolving globally and to enhance efforts to educate consumers on how to stay safe online, Microsoft commissioned YouGov for this global survey in 16 countries, including four Asia Pacific markets – India, Australia, Japan and Singapore. This is a follow-up to similar surveys that Microsoft fielded in 2018 and 2016. Mary Jo Schrade, Assistant General Counsel, Regional Lead, Microsoft Digital Crimes Unit Asia, said: “Tech support scams are perpetrated globally and target people of all ages. Findings reveal that compared to the rest of the world, consumers in India are more likely to be targeted, less inclined to ignore scam interactions, and as a result, lose more money. “ Consumers in India were much more likely to continue with scams, regardless of type, as compared with global figures. Incidences of unsolicited call scams increased from 23 per cent to 31 per cent in India between 2018 to 2021, and this continues to be the scam type that consumers in India respond to most often, with almost half (45 per cent) of those surveyed continuing and taking recommended actions from the scammer. In contrast, global scam encounter rates for unsolicited calls fell two points during the same period, from 27 per cent in 2018 to 25 per cent in 2021. While scams involving pop-up ads (51%), redirects to websites (48per cent), or unsolicited emails (42 per cent) fell 5 per cent, 1 per cent, and 2 per cent respectively in 2021 compared with 2018, consumers in India were 11 per cent, 16 per cent, and 7 per cent more likely to continue engaging with such scams over the same period respectively. Source:thehindubusinessline.com

The global health body’s ‘no-fault’ compensation program for Covid vaccine recipients needs a booster shot of visibility. Away from the public gaze on the vaccines deployed across the world, governments and companies are locked in discussions behind closed doors. These powwows are over supplies, timelines and, among other things, the course of action when a vaccine does not have the desired outcome — when a side-effect is reported that could be linked to the vaccine, for example. This is where it gets challenging for governments not inclined to provide indemnity to vaccine makers against vaccine-linked litigation. A situation that appears to be playing out closer home, as vaccines from companies like Pfizer await a passage to India. Precisely to avoid such an impasse, a “global vaccine injury compensation mechanism” had been announced by the World Health Organization (WHO) in February. The scheme, though, is in need of a massive shot of visibility. First of its kind Explaining how it works, WHO’s Chief Scientist Dr Soumya Swaminathan says, “For vaccines that come through COVAX, there is a common indemnification language which is used in the contract and there is a no-fault compensation scheme… a global scheme to provide compensation to anybody who suffers a serious adverse event like injury or death due to the vaccine supplied through COVAX.” It is for the first time such a system is in place globally, she says. And the reason: “All of these vaccines are used under emergency-use listing, which means when they were initially used there still wasn’t a lot of real-world data. So you cannot predict all the rare side-effects that could happen. As we have seen with each of these vaccines, there have been rare events which came to light only after millions of doses were administered. So, yes, the no-fault compensation covers those vaccines which are supplied through COVAX.” But no one seems to have tapped into this program. “It’s been operational for a couple of months. There is obviously time that is given to people to come forward. Because, if you suffer an adverse event, there is a procedure where it has to be investigated by the local safety committee, the cause of the event has to be found out, it has to be certified that it’s been due to a vaccine etc, and then people can apply for compensation,” explains Dr Swaminathan. Besides, “there is also, I think, a bit of awareness creation needed so that both individuals and governments are aware that they have this facility to fall back on,” she adds. WHO worked with Chubb Limited to secure insurance coverage for the program (valid till June 30, 2022). ESIS Inc (a Chubb company), the independent administrator of the program, charges no fees to applicants, WHO said while announcing it. Why indemnity? Vaccine manufacturers seek indemnity from governments to limit financial exposure on account of adverse side-effects from the vaccine, says Kritika Agarwal, Associate Partner, Majmudar& Partners. While one of the reasons is that emergency approvals were given to Covid-19 vaccines in the face of a raging pandemic, another could be that “vaccine manufacturers may not want to spend time and money on defending any claims in all the countries where they supply and be subject to extensive litigation,” she points out, The European Union, the UK, Latin America, Australia and the US “all offer indemnity in some form to vaccine makers, whether under legislation or supply contracts,” says Agarwal. WHO’s ‘no-fault compensation’ allows recipients to claim relatively quickly without litigation, she adds. Many developed economies have a ‘no-fault’ compensation scheme where anyone who has been injured from receiving a vaccine can file a claim against the government within an agreed time period, explains Sidharrth Shankar, Partner, J Sagar Associates. In fact, WHO says, “By providing a no-fault lump-sum compensation in full-and-final settlement of any claims, the COVAX program aims to significantly reduce the need for recourse to the law courts, a potentially lengthy and costly process.” A compelling enough point that begs attention from countries, in the interest of speedy redressal for vaccine recipients and manufacturers. Source: The Hindu Business Line

3rd Oct 2021: Union Minister Piyush Goyal on Sunday assured that every stakeholder’s interest will be taken into consideration while framing the e-commerce policy which would be robust and in the interest of every Indian. Goyal, who heads commerce and industry as well as consumer affairs ministries, also said that he welcomes all the feedback on the draft e-commerce rules but comments about inter-departmental issues on the draft rules are totally unwarranted. The minister’s comments has come following reports that the Department for Promotion of Internal Industry and Trade (DPIIT), the Corporate Affairs Ministry and the Niti Aayog have objected to some provisions of the draft e-commerce rules. The report citing an RTI reply has claimed that Niti Aayog has expressed apprehensions that the draft rules may harm ease of doing business. Goyal said that the whole purpose of an inter-ministerial consultation was to get views and comments from different quarters. “I do believe that I welcome all the feedback and look forward to a very robust and healthy consultations with all the stakeholders…We are trying to balance everybody’s interest and come up with a robust framework in which this (policy) can be implemented in the interest of all Indians,” Goyal told PTI. The very purpose of releasing draft rules is to elicit public opinion, ideas from other departments, from stakeholders, encourage feedback, he said, adding the government has always believed in engaging with all the stakeholders before taking a final decision on any policy. Citing example of data privacy law, national education policy and jewellery hallmarking norms, he said the government conducts stakeholders consultation to arrive at a good decision. Domestic jewellers are now appreciating the hallmarking norms, which they were opposing earlier tooth and nail, he said. “The consumer rules around the e-commerce are under public consultation. I warmly welcome feedback from various stakeholders but I have to protect everybody’s interest and balance consumers interest, ecommerce interests, retailers interests,” he said, adding that “everybody’s interest will be taken into consideration and a balanced and a very robust policy will be finalized.” When asked if there is any move to link all the policies together, he said every department has to protect its own stakeholders. The DPIIT under the commerce and industry ministry is also framing a national e-commerce policy. “Consumer department has to protect the interest of consumers. Ecommerce policy is a matter for industry department to focus on, because they have to protect the interest of industry and internal trade …so we have an orderly behaviour in the industry and at the same time ensure that internal trade is also protected,” he said. He said that they are trying to balance everybody’s interest and come up with a robust framework in which this policy can be implemented in the interest of all Indians. On June 21, the consumer affairs ministry released draft e-commerce rules under which it banned fraudulent flash sale and mis-selling of goods and services on e-commerce platforms. Appointment of chief compliance officer/grievance redressal officer are among other key amendments proposed to the Consumer Protection (E-Commerce) Rules, 2020. The government also proposed registration of every e-commerce entity which intends to operate in India with the DPIIT. The proposed amendments also included e-commerce entities requiring to provide information not later than 72 hours of the receipt of an order from a government agency for prevention, detection, investigation and prosecution of offences under any law. According to research firm CUTS International, many consumer organisations have felt that draft e-commerce rules should stick to only consumer-facing issues. The Consumer Protection (E-Commerce) Rules, 2020 were first notified in July last year. Their violation attracts penal action under the Consumer Protection Act, 2019. Source: Businessworld