Insurance Law and Job description of Insurance Lawyers

Insurance ClaimsInsurance law is the practice of law surrounding insurance, including insurance policies and claims. Insurance Law covers the business of insurance and how insurance claims of the individuals are handled. Insurance lawyers work to represent clients paying premiums to insurance companies to get financial protection against certain types of losses as well as the insurance companies. An insurance lawyer helps a person whose insurance claim has been denied or whose insurance company has practiced bad faith insurance or health insurance fraud. He also helps a person to make an insurance claim for actual and consequential damages as well as punitive damages.

Insurance in India

Insurance in India refers to the market for insurance in India which covers both the public and private sector organisations. Insurance is listed in the Seventh Schedule of the Constitution of India as a Union List subject, which means it can only be legislated by the Central government. In India, the insurance industry is regulated and developed by an autonomous apex statutory body, i.e., Insurance Regulatory and Development Authority of India. It was constituted under the Insurance Regulatory and Development Authority Act, 1999. The Insurance Act of 1938 was the first legislation governing all forms of insurance to provide strict state control over insurance business. Life insurance in India was completely nationalized on 19 January 1956, through the Life Insurance Corporation Act. As a result, all 245 insurance companies operating then in India were merged into one entity, the Life Insurance Corporation of India.

Job description of Insurance Lawyers

Insurance litigation lawyers handle many different types of insurance-based claims. They can be either prosecutors or defense lawyers and cover both defense and prosecution cases having to do with commercial risk policies, insurance contracts, and environmental coverage. The cases which an Insurance lawyer handles might include workers’ compensation claims, car accidents or wrongful death claims. Many different types of insurance litigation lawyers perform various tasks on specific cases. For example, insurance subrogation lawyers deal with things such as workers’ compensation, group health, and uninsured motorist lawsuits. Also, insurance lawyers may be hired to oversee the writing of new contracts to ensure that they are legally sound.

Other duties of insurance lawyers include:

  1. Advising management of insurance company on legality of insurance transactions
  2. Advising claims department personnel of legality of claims filed on company to ensure against undue payments
  3. Case investigation including assembling facts and evidence to support their claims
  4. Studying court decisions, and recommending changes in wording of insurance policies to conform to law or to protect company from unwarranted claims.
  5. Advising personnel engaged in drawing up of legal documents, such as insurance contracts and release papers.
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Hindu marriage: A sacrament or contract or both

marriage6Marriage is the highest social relationship of human being. According to R.N. Sharma a Hindu marriage is “a religious sacrament in which a man and a woman are bound in permanent relationship for the physical, social and spiritual purposes of dharma, procreation and sexual pleasure.” The Vedas hold marriage to be one of the important sacraments sanctifying the body. That is why marriage is given great importance by the Hindus. It is said, “That man who does not win a wife is really half, and he is not the full man as long as he does not beget an offspring.”

A Hindu marriage is considered to be a religious sacrament for yet another reason too. A Hindu marriage is deemed valid and complete only when certain religious rites like ‘home’, ‘Panigrahana’, ‘Saptapadi’ etc. are duly performed by a Brahmin with Agni Devata taking cognizance of the rites. If not so performed, the legal validity of the marriage itself may be called into question.

Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether Hindu marriage is sacrament or contract. Clause 2 of section 5 of the Hindu Marriage Act deals with the mental capacity of the parties. It says that neither party to the marriage must be incapable of giving a valid consent in consequence of unsoundness of mind. Further clause 3 of section 5 enumerates that the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage.

On the other hand, as per section 10 and 11 of the Indian Contract Act, 1872 a contract by a minor or an incompetent person is void. However, according to section 12 of the Hindu Marriage Act a marriage of a minor or unsound person is voidable and not void. So, although consent is necessary but in absence of consent, marriage becomes merely voidable and party to the marriage can treat their marriage as a valid marriage. Hindu marriage is not purely a contract.

Further a reference to Manu shows that there is actually a gift of the bride. Thus, an essential part of the marriage ceremony is what is called kanyadan. Such kanyadan fulfils all the requirements of a gift under the Hindu Law. It is, therefore, clear that to the extent that a marriage is a gift, it is also a contract.

So, it can be concluded that though Hindu marriage has some of the elements of a contract but it is not purely a contract. It is more of a sacrament as Hindu marriage is a holy and eternal union of two bodies.

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Volenti non fit injuria – To a willing person, no harm is done

personal-injury-consent‘Volenti non fit injuria’ is a legal principle that one who knowingly and voluntarily consents to and takes on a risk cannot ask for compensation for the damage or injury resulting from it. So Volenti non fit injuria is a defence in tort that means where a person engages in an event accepting and aware of the risks inherent in that event, then they cannot later complain of, or seek compensation for an injury suffered during the event. This is used often to defend against tort actions as a result of a sports injury.

In English tort law, volenti is a full defence, i.e. it fully exonerates the defendant who succeeds in proving it. The defence has two main elements:

  1. The claimant was fully aware of all the risks involved, including both the nature and the extent of the risk; and
  2. The claimant expressly (by statement) or implicitly (by actions) consented to waive all claims for damages.

So, the essential conditions are:

  1. Consent must be free and voluntary, i.e. it must not be brought about by duress.
  2. Consent must not have been given to an illegal act
  3. Knowledge of risk is not the same thing as consent to run the risk

In Woolridge vs Sumner (1963) 2 QB 43, the plaintiff a photographer was taking photographs at a horse show, during which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell in the course. He was seriously injured. It was held that the defendants had taken proper care in closing the course and the plaintiff, by being in the show, agreed to take the risk of such an accident. The defendants were not held liable.

In Wilson vs Glossop (20 QBD 354), a husband sued his wife for damages as a result of her alleged adultery. The claim was barred as the evidence revealed that he had connived in the adultery.

In Smith vs Baker [1891] AC 325, the plaintiff was employed by the defendants on the construction of a railway. While he was working, a crane moved rocks over his head. Both he and his employers knew there was a risk of a stone falling on him and he had complained to them about this. A stone fell and injured the plaintiff and he sued his employers for negligence. The employers pleaded volenti non fit injuria but this was rejected by the court. Although the plaintiff knew of the risk and continued to work, there was no evidence that he had voluntarily undertaken to run the risk of injury

Limitations to the defence of ‘Volenti non fit injuria’

(1) No consent, leave or license can legalise an unlawful act.

(2) The maxim has no validity against an action based on a breach of statutory duty.

(3) The maxim does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection or is a mere stranger.

(4) Generally the maxim does not apply to the cases of negligence.

(5) The maxim does not apply where the act of the plaintiff relied upon to establish the defence under the maxim is the very act which the defendant was under a duty to prevent.

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Guidelines to Protect Good Samaritans

biker-girls-accident-2Supreme Court of India in the case of Savelife Foundation & Anr. Vs. Union of India & Anr. [30-03-2016] has approved the Centre’s guidelines to protect Good Samaritans. The Ministry of Road Transport and Highways has issued a notification containing guidelines on 12.5.2015 published in the Gazette of India para 1 of Section 1 of the Notification dated 12.5.2015 for protection of good Samaritans who help road accident victims, from being hassled or harassed at hospitals, police stations or courts.

The guidelines to be followed by hospitals, police and all other authorities for the protection of Good Samaritans, are namely:-

(1) A bystander or good Samaritan including an eyewitness of a road accident may take an injured person to the nearest hospital, and the bystander or good Samaritan should be allowed to leave immediately except after furnishing address by the eyewitness only and no question shall be asked to such bystander or good Samaritan.

(2) The bystander or good Samaritan shall be suitably rewarded or compensated to encourage other citizens to come forward to help the road accident victims by the authorities in the manner as may be specified by the State Governments.

(3) The bystander or good Samaritan shall not be liable for any civil and criminal liability.

(4) A bystander or good Samaritan, who makes a phone call to inform the police or emergency services for the person lying injured on the road, shall not be compelled to reveal his name and personal details on the phone or in person.

(5) The disclosure of personal information, such as name and contact details of the good Samaritan shall be made voluntary and optional including in the Medico Legal Case (MLC) Form provided by hospitals.

(6) The disciplinary or departmental action shall be initiated by the Government concerned against public officials who coerce or intimidate a bystander or good Samaritan for revealing his name or personal details.

(7) In case a bystander or good Samaritan, who has voluntarily stated that he is also an eye-witness to the accident and is required to be examined for the purposes of investigation by the police or during the trial, such bystander or good Samaritan shall be examined on a single occasion and the State Government shall develop standard operating procedures to ensure that bystander or good Samaritan is not harassed or intimidated.

(8) The methods of examination may either be by way of a commission under section 284, of the CrPC 1973 or formally on affidavit as per section 296, of the said Code and Standard Operating Procedures shall be developed within a period of thirty days from the date when this notification is issued.

(9) Video conferencing may be used extensively during examination of bystander or good Samaritan including the persons referred to in guideline (1) above, who are eye witnesses in order to prevent harassment and inconvenience to good Samaritans.

(10) The Ministry of Health and Family Welfare shall issue guidelines stating that all registered public and private hospitals are not to detain bystander or good Samaritan or demand payment for registration and admission costs, unless the good Samaritan is a family member or relative of the injured and the injured is to be treated immediately in pursuance of the order of the Hon’ble Supreme Court in Pt. Parmanand Katara vs Union of India & Ors [1989] 4 SCC 286.

(11) Lack of response by a doctor in an emergency situation pertaining to road accidents, where he is expected to provide care, shall constitute “Professional Misconduct”, under Chapter 7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002 and disciplinary action shall be taken against such doctor under Chapter 8 of the said Regulations.

(12) All hospitals shall publish a charter in Hindi, English and the vernacular language of the State or Union territory at their entrance to the effect that they shall not detain bystander or good Samaritan or ask depositing money from them for the treatment of a victim.

(13) In case a bystander or good Samaritan so desires, the hospital shall provide an acknowledgement to such good Samaritan, confirming that an injured person was brought to the hospital and the time and place of such occurrence and the acknowledgement may be prepared in a standard format by the State Government and disseminated to all hospitals in the State for incentivising the bystander or good Samaritan as deemed fit by the State Government.

(14) All public and private hospitals shall implement these guidelines immediately and in case of noncompliance or violation of these guidelines appropriate action shall be taken by the concerned authorities.

(15) A letter containing these guidelines shall be issued by the Central Government and the State Government to all Hospitals and Institutes under their respective jurisdiction, enclosing a Gazette copy of this notification and ensure compliance and the Ministry of Health and Family Welfare and Ministry of Road Transport and Highways shall publish advertisements in all national and one regional newspaper including electronic media informing the general public of these guidelines.

The above guidelines in relation to protection of bystander or good Samaritan are without prejudice to the liability of the driver of a motor vehicle in the road accident, as specified under section 134 of the Motor Vehicles Act, 1988.

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Agreement in restraint of trade under Indian Contract Act

restraintThe Constitution of India guarantees the freedom of trade and commerce to every citizen and therefore No person is at liberty to deprive himself of the fruit of his labour, skill or talent, by any contract that he enters into. Certain types of agreements are declared as void by statues as they are harmful to society and they are called ‘Agreements Opposed to Public Policy’. Out of them agreement in restraint of trade is one.

In the leading case of Mitchel v Reynolds (1711) Lord Smith LC said,

“it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice. If the law has regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion.”

Section 27 of the Indian Contract Act, 1872 declares agreements in restraint of trade as void. Section 27 declares, “Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void.”

It stipulates that an agreement, which restrains anyone from carrying on a lawful profession, trade or business, is void to that extent.

Madhub Chander vs. Raj Kumar (1874) – An agreement whereby one of the parties agrees to close his business in consideration of the promise by the other party to pay a certain sum of money is void, being an agreement is restraint of trade, and the amount is not recoverable, if the other party fails to pay the promised sum of money.

Exceptions for Restraint of Trade

The following are some occasions on which agreement in restraint of trade attains Validity.

  1. Sale of Goodwill: In case where sale of Goodwill takes place, the person who has paid for Goodwill can restrict the other on reasonable base from doing the business concern.
  2. With retiring Partner: At the time of retirement of the partner, the existent partners can restrict the retiring partners from carrying on the same business.
  3. Among Partners: Partners of a firm may enter into an agreement in restraint of trade according to which no one of them should carry-on the same business individually. It is Valid.
  4. At the time of dissolution: Partners of a firm can make an agreement in restraint of trade at time of dissolution of firm according to which no one of them should do the same business without prior permission from others.
  5. Elimination of Competition: An agreement in restraint of trade can be made to eliminate competition on reasonable basis. In Madhub v. Rajkumar, the objective of their agreement is elimination of competition but it is not on reasonable basis. Hence it is held to be Void.
  6. Trade Unions: A trade Union may restrict an entrepreneur or an enterprise from doing certain business for the purpose of labor welfare. It is Valid but it should be a registered trade union.
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Contract and its essential elements under the Indian Contract Act

publishing-contractA contract is a voluntary arrangement between two or more parties that is enforceable at law as a binding legal agreement.

As per Halsbury’s Laws of England, “A Contract is an agreement made between two or more persons which is intended to be enforceable at law, and is constituted by the acceptance by one party of an offer made to him by the other party to do or to abstain from doing some act”.

The word ‘contract’ has been defined under section 2(h) of the Indian Contract Act, 1872 as an agreement enforceable by law.

So, a contract is a written or expressed agreement between two parties to provide a product or service. There are essentially six elements of a contract that make it a legal and binding document. In order for a contract to be enforceable, it must contain:

  1. An offer that specifically details exactly what will be provided
  2. Acceptance, which is the agreement by the other party to the offer presented
  3. Consideration, money or something of interest being exchanged between the parties
  4. Capacity of the parties in terms of age and mental ability
  5. The intent of both parties to carry out their promise
  6. Legally enforceable terms and conditions, also called object of the contract

Essential elements of a valid contract

The essential elements of a valid contract are provided under section 10 of the Indian Contract Act. They are as:

Agreement (Offer and Acceptance) – There must be a “lawful offer” and “lawful acceptance” thus resulting in an agreement. The parties must have agreed to the subject-matter in the same sense.

Legal purpose – There must be an intention among the parties that the agreement should be attended to by legal consequences and create legal obligation. Agreements of social or domestic nature do not contemplate legal relations.

Lawful Consideration – Consideration means ‘something in return’. An agreement is legally capable to be enforced only when each of the parties to it gives something and gets something. The consideration should not be unlawful, illegal, immoral or opposed to public policy.

Capacity to contract – Every person who enters into a contract must be competent. In other words, the person should be of the age of majority, should have a sound mind, and must not be disqualified from any law to which they subject.

Consent to contract (Consensus ad idem) – All the parties must have agreed upon the subject matter of the agreement in the same sense. The agreement must not be induced by coercion, fraud misinterpretation or mistake.

Lawful object – The object of the contract must always be lawful otherwise it will be void.

Not expressly declared void – The agreement must not have been expressly declared to be void under the Act. Examples of such agreements are restraint of trade, marriage, legal proceedings and wagering agreements. Such kinds of agreements are not enforceable by law.

Legal formalities – A contract may be oral or in writing according to the Indian Contract Act. In certain special cases the agreement must be in written. In some cases like contracts by companies, selling or buying of shares etc., the contract must be registered.

 

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Difference between Culpable Homicide and Murder

416998-murderThe word homicide is derived from two Latin words – ‘homo’ and ‘cido’. Homo means human and cido means killing by a human. Homicide means killing of a human being by another human being. All Murders are culpable Homicides but not all culpable homicides are murder. So, Culpable Homicide is the genus and Murder is the specie. Section 299 of the Indian Penal Code, 1860 defines Culpable Homicide while section 300 of the Indian Penal Code, 1860 defines murder.

Ingredients of Culpable Homicide u/s. 299

  1. Intention of causing death
  2. Intention of causing such bodily injury as is likely to cause death
  3. Knowledge that the act done is likely to cause death.

Ingredients of Murder u/s. 300

  1. Intention of causing death
  2. Intention of causing such bodily injury which is likely to cause death of the person, and this is known to the offender
  3. Intention to cause such bodily injury as is sufficient in ordinary course of nature to cause death of a person

4 Knowledge that the act done is sufficiently dangerous that in all probabilities it must cause death, or cause such bodily injury which is likely to cause death, and the act is done without any excuse to cause death or such bodily injury.

Justice Melvill in the case of R v. Govinda (1876 Bom.) analyzed the difference between culpable homicide and murder as:

Culpable Homicide Murder
A person commits Culpable Homicide if the act by which death is caused is done – A person commits Murder if the act by which death is caused is done –
1. with the intention of causing death. 1. with the intention of causing death.
2. with an intention to cause such bodily injury as is likely to cause death. 2. with an intention to cause such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused.

3. with an intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death.

3. with the knowledge that such an act is likely to cause death. 4. With the knowledge that the act is so imminently dangerous that it must in all probability cause death.

In Augustine Saldanha v. State of Karnataka LJ 2003, Supreme Court deliberated on the difference of Culpable Homicide and Murder. Supreme Court observed that in the scheme of the Indian Penal Code, Culpable Homicide is genus and Murder its specie. All ‘Murder’ is ‘Culpable Homicide’ but not vice-versa. Speaking generally, ‘Culpable Homicide’ sans ‘special characteristics of Murder is Culpable Homicide not amounting to Murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of Culpable Homicide. The first is, what may be called, ‘Culpable Homicide of the first degree’. This is the greatest form of Culpable Homicide, which is defined in Section 300 as ‘Murder’. The second may be termed as ‘Culpable Homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘Culpable Homicide of the third degree’. This is the lowest type of Culpable Homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable Homicide of this degree is punishable under the second part of Section 304.

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