Consumer Grievance

Do you have grievance or dispute as consumer or a customer?

• How to approach district consumer Forum

The complaint can be made on plain paper and you can file it in person or through an authorised agent, after it has been notarised, through registered post or regular post. It is important that you serve a personal or legal notice to the opposite party before filing the complaint. You will need to file four copies, plus additional copies for each opposite party. And the complaint must be filed within two years from the date of the cause of action having arisen. The court fee for cases involving up to Rs 1 lakh is nil for those holding Antyodaya Anna Yojana cards and Rs 100 for the rest. For cases involving up to Rs 5 lakh the case fee is Rs 200, for case up to Rs 10 lakh the court fee is Rs 400 and for those up to Rs 20 lakh the case fee is Rs 500. The demand draft should be made out to the President, Consumer Disputes Redressal Forum, (name of) district.

• How to approach state consumer Forum

Cases where the value of goods or services exceeds Rs 20 lakh can be filed and orders of the district forum challenged here within 30 days of the order being passed.The court fee for cases above Rs 20 lakh and up to Rs 50 lakh is Rs 2,000 while the court fee for cases up to Rs 1 crore is Rs 4,000. The demand draft should be made in favour of the registrar, (name of) state commission and be payable in that state only. To file an appeal you need the following:

(a) Documents of record with correct name of all parties and their addresses;

(b) Certified copy of the district forum order;

(c) More than four additional copies for each respondent for filing an appeal;

(d) Any conditional delay, interim orders and other petitions to be submitted along with an affidavit; 

(e) A statutory deposit of Rs 25,000 or 50 per cent of the award / compensation amount, whichever is less, is to be made by the appellant / opposite parties.

• How to approach National Consumer Disputes Redressal Commission

A dissatisfied consumer can file a complaint directly with the national commission or appeal against decisions of the state commission within a month from the date of the order. The court fee is Rs 5,000 and the demand draft should be in the name of The Registrar, National Consumer Disputes Redressal Commission. There is no fee for filing an appeal before the state or national commission. You can appeal against the orders of the national commission in the Supreme Court within a period of 30 days.

Source: https://gama.gov.in/ConsumerGrivences

Relevancy of Judgements

Relevancy of previous judgments to bar a second suit or trial

–– The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

Relevancy of certain judgments in probate, etc., jurisdiction. 

–– A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof ––

that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment 1[order or decree] declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or decree] declares that it had been or should be his property.

Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. 

–– Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

Illustration

A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

Judgments, etc., other than those mentioned in sections 40, 41 and 42, when relevant. 

–– Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act.

Illustrations

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification.

The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A’s wife.

B denies that C is A’s wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife.

The judgment against B is irrelevant as against C.

(c) A prosecutes B for stealing a cow from him. B is convicted.

        A afterwards sues C for the cow, which B had sold to him before his conviction. As between

        A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against B. C, B’s son, murders A in consequence.

The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.]

Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. 

–– Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Reproduced from the Indian Evidence Act

- Adv. (Dr.) Darshan Nagpure

CPA: Public Servant

Section 13 in The Prevention of Corruption Act, 1988 speaks about the Criminal misconduct by a public servant:

(1) A public servant is said to commit the offence of criminal misconduct,—

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,—

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

ADR in India

Alternate Dispute Resolution (ADR) refers to the settlement of legal disputes outside the court.

This ADR referral under section 89 is to ensure amicable and quick resolution of disputes between the parties and reduce the pendency of suits before the courts. 

Prior to CPC section 89, there was no provision which insisted the mandatory referral of the pending dispute to any form of ADR in India. Legal Services Authorities Act has given the powers to the parties to approach Lok Adalat for the disposal of the dispute. However, it does not give the mandatory referral option to the trial court which is hearing that case. Based on the parties’ request, the trial court can refer to the pending dispute to Lok Adalat.

With more ADR mechanisms like arbitration, mediation & conciliation in Sec 89 of CPC was notified in CPC amendment act 2002, which came into force from 1st July 2002.

Section 89 of CPC states that “where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for –

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat: or

(d) mediation.

Where a dispute has been referred--

a.for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

b.to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

c.for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

d.for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

Cases which can’t be referred to ADRs: 

1.Demonstrative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court. (In fact, even a compromise in such a suit is a difficult process requiring notice to the persons interested in the suit, before its acceptance). 

2.Disputes relating to election to public offices (as contrasted from disputes between two groups trying to get control over the management of societies, clubs, association, etc.).

3.Cases involving the grant of authority by the court after inquiry, as for example, suits for grant of probate or letters of administration. 

4.Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc. 

5.Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against the government. 

6.Cases involving prosecution for criminal offences.

Cases which can be referred to ADRs: 

1. All cases relating to trade, commerce, and contracts, including - disputes arising out of contracts (including all money claims); 

a. Disputes relating to specific performance; 

b. Disputes between suppliers and customers; 

c. Disputes between bankers and customers; 

d. Disputes between developers/builders and customers; - disputes between landlords and tenants/licensor and licensees; 

e. Disputes between the insurer and insured; 

2. All cases arising from strained or soured relationships, including a. Disputes relating to matrimonial causes, maintenance, custody of children; b. Disputes relating to partition/division among family members/coparceners/co-owners; and c. Disputes relating to a partnership among partners. 

3. All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes, including 

a.Disputes between neighbours (relating to elementary rights, encroachments, nuisance, etc.); 

b. disputes between employers and employees; 

c.disputes among members of societies / associations / Apartment owners Associations; 

4. All cases relating to tortious liability including - claims for compensation in motor accidents/other accidents; and 

5. All consumer disputes including disputes where  a trader/ supplier/ manufacturer/ service provider is very keen on maintaining his business/professional reputation and credibility or 'product popularity.

The Federal Courts

Introduction To The Federal Court System 

The federal court system has three main levels: 

• District courts (the trial court)

• Circuit courts which are the first level of appeal and 

• Supreme Court of the United States, the final level of appeal in the federal system. 

There are 94 district courts, 13 circuit courts, and one Supreme Court throughout the country.

Courts in the federal system work differently in many ways than state courts. The primary difference for civil cases (as opposed to criminal cases) is the types of cases that can be heard in the federal system. 

Federal courts are courts of limited jurisdiction, meaning they can only hear cases authorized by the United States Constitution or federal statutes. The federal district court is the starting point for any case arising under federal statutes, the Constitution, or treaties. This type of jurisdiction is called “original jurisdiction.” Sometimes, the jurisdiction of state courts will overlap with that of federal courts, meaning that some cases can be brought in both courts. The plaintiff has the initial choice of bringing the case in state or federal court. However, if the plaintiff chooses state court, the defendant may sometimes choose to “remove” to federal court.

Cases that are entirely based on state law may be brought in federal court under the court’s “diversity jurisdiction.” Diversity jurisdiction allows a plaintiff of one state to file a lawsuit in federal court when the defendant is located in a different state. The defendant can also seek to “remove” from state court for the same reason. To bring a state law claim in federal court, all of the plaintiffs must be located in different states than all of the defendants, and the “amount in controversy” must be more than $75,000. (Note: the rules for diversity jurisdiction are much more complicated than explained here.)

Criminal cases may not be brought under diversity jurisdiction. States may only bring criminal prosecutions in state courts, and the federal government may only bring criminal prosecutions in federal court. Also important to note, the principle of double jeopardy – which does not allow a defendant to be tried twice for the same charge – does not apply between the federal and state government. If, for example, the state brings a murder charge and does not get a conviction, it is possible for the federal government in some cases to file charges against the defendant if the act is also illegal under federal law.

Federal judges (and Supreme Court “justices”) are selected by the President and confirmed “with the advice and consent” of the Senate and “shall hold their Offices during good Behavior.” Judges may hold their position for the rest of their lives, but many resign or retire earlier. They may also be removed by impeachment by the House of Representatives and conviction by the Senate. Throughout history, fifteen federal judges have been impeached due to alleged wrongdoing. One exception to the lifetime appointment is for magistrate judges, which are selected by district judges and serve a specified term.

District Courts

The district courts are the general trial courts of the federal court system. Each district court has at least one United States District Judge, appointed by the President and confirmed by the Senate for a life term. District courts handle trials within the federal court system – both civil and criminal. The districts are the same as those for the U.S. Attorneys, and the U.S. Attorney is the primary prosecutor for the federal government in his or her respective area.

District court judges are responsible for managing the court and supervising the court’s employees. They are able to continue to serve so long as they maintain “good behavior,” and they can be impeached and removed by Congress. There are over 670 district court judges nationwide.

Some tasks of the district court are given to federal magistrate judges. Magistrates are appointed by the district court by a majority vote of the judges and serve for a term of eight years if full-time and four years if part-time, but they can be reappointed after completion of their term. In criminal matters, magistrate judges may oversee certain cases, issue search warrants and arrest warrants, conduct initial hearings, set bail, decide certain motions (such as a motion to suppress evidence), and other similar actions. In civil cases, magistrates often handle a variety of issues such as pre-trial motions and discovery.

Federal trial courts have also been established for a few subject-specific areas. Each federal district also has a bankruptcy court for those proceedings. Additionally, some courts have nationwide jurisdiction for issues such as tax (United States Tax Court), claims against the federal government (United States Court of Federal Claims), and international trade (United States Court of International Trade).

Circuit Courts

Once the federal district court has decided a case, the case can be appealed to a United States court of appeal. There are twelve federal circuits that divide the country into different regions. The Fifth Circuit, for example, includes the states of Texas, Louisiana, and Mississippi. Cases from the district courts of those states are appealed to the United States Court of Appeals for the Fifth Circuit, which is headquartered in New Orleans, Louisiana. Additionally, the Federal Circuit Court of Appeals has a nationwide jurisdiction over very specific issues such as patents.

Each circuit court has multiple judges, ranging from six on the First Circuit to twenty-nine on the Ninth Circuit. Circuit court judges are appointed for life by the president and confirmed by the Senate.

Any case may be appealed to the circuit court once the district court has finalized a decision (some issues can be appealed before a final decision by making an “interlocutory appeal”). Appeals to circuit courts are first heard by a panel, consisting of three circuit court judges. Parties file “briefs” to the court, arguing why the trial court’s decision should be “affirmed” or “reversed.” After the briefs are filed, the court will schedule “oral argument” in which the lawyers come before the court to make their arguments and answer the judges’ questions.

Though it is rare, the entire circuit court may consider certain appeals in a process called an “en banc hearing.” (The Ninth Circuit has a different process for en banc than the rest of the circuits.) En banc opinions tend to carry more weight and are usually decided only after a panel has first heard the case. Once a panel has ruled on an issue and “published” the opinion, no future panel can overrule the previous decision. The panel can, however, suggest that the circuit take up the case en banc to reconsider the first panel’s decision.

Beyond the Federal Circuit, a few courts have been established to deal with appeals on specific subjects such as veterans claims (United States Court of Appeals for Veterans Claims) and military matters (United States Court of Appeals for the Armed Forces).

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the American judicial system, and has the power to decide appeals on all cases brought in federal court or those brought in state court but dealing with federal law. For example, if a First Amendment freedom of speech case was decided by the highest court of a state (usually the state supreme court), the case could be appealed to the federal Supreme Court. However, if that same case were decided entirely on a state law similar to the First Amendment, the Supreme Court of the United States would not be able to consider the case.

After the circuit court or state supreme court has ruled on a case, either party may choose to appeal to the Supreme Court. Unlike circuit court appeals, however, the Supreme Court is usually not required to hear the appeal. Parties may file a “writ of certiorari” to the court, asking it to hear the case. If the writ is granted, the Supreme Court will take briefs and conduct oral argument. If the writ is not granted, the lower court’s opinion stands. Certiorari is not often granted; less than 1% of appeals to the high court are actually heard by it. The Court typically hears cases when there are conflicting decisions across the country on a particular issue or when there is an egregious error in a case.

The members of the Court are referred to as “justices” and, like other federal judges, they are appointed by the President and confirmed by the Senate for a life term. There are nine justices on the court – eight associate justices and one chief justice. The Constitution sets no requirements for Supreme Court justices, though all current members of the court are lawyers and most have served as circuit court judges. Justices are also often former law professors. The chief justice acts as the administrator of the court and is chosen by the President and approved by the Congress when the position is vacant.

The Supreme Court meets in Washington, D.C. The court conducts its annual term from the first Monday of October until each summer, usually ending in late June.

Source: https://www.justice.gov/usao/justice-101/federal-courts

Writing a Will?

5 Things to know before writing a Will

1. Who will be the Executor of your estate?

You should decide who will be the Executor of your estate, and ask them if they will take on the role. Honesty and integrity are both important when choosing your Executor, as they will ensure that the terms of your Will are carried out.

It’s best to nominate someone you know and trust. This could be someone outside your family or friend circle, such as an accountant or lawyer. You can also appoint more than one executor in case the first person you choose is unable to fulfil the role at the time it’s needed.

2. Who will be the Beneficiaries of your Will?

A beneficiary is a person or people who inherit gifts or your estate, when you pass away. You get to choose your beneficiaries, with people most often choosing loved ones who mean a lot to them.

If you have a child or children, you will most likely nominate them as beneficiaries, so you can have peace of mind that they will be cared for and protected. Other beneficiaries can be parents, siblings, significant others, other relatives, and good friends. Many people also include charities and worthy causes in their Will as a beneficiary.

3. What will happen to your pets after you pass away?

Our pets are important members of our families. If you have a much-loved pet, you may want to ensure that they are cared for in the future.

You can’t leave a gift directly to your pet, but you can nominate a family member or friend to care for them. You can then allocate funds for the care of your pet, which your friend or family member will manage.

4. Can you leave a gift to a charity in your Will? 

You decide who will benefit from specific gifts in your Will or a share in your estate, after any outstanding expenses are paid. 

This means that as well as choosing family and friends as beneficiaries, you can also include a favourite charity, such as The Fred Hollows Foundation, in your Will. 

By choosing to leave a bequest to The Foundation, you will be helping restore sight to some of the most vulnerable people in Australia, and in 25 countries where we work. And just like Fred, your legacy will live on, helping to end avoidable blindness and strengthening eye health systems and the global health workforce for generations to come. A gift of as little as 1% of your Estate can make a significant difference to causes that you care about.

Alison, a passionate supporter of The Fred Hollows Foundation, who has left  a gift in her Will, says: "I strongly encourage anyone who supports The Foundation to seriously consider leaving a gift in their Will. It leaves a warm and fuzzy feeling to know that folks’ lives will be improved due to my contribution."

5. What happens if your don't have a Will? 

If you pass away unexpectedly without having written a Will, the court in your State or Territory will be appointed Executor and will use its own rules to decide what happens to your children (if you have any), as well as your assets and estate. This can be lengthy, stressful and expensive for your loved ones, who will have to bear the burden, while grieving. 

Having a Will in place will give you peace of mind that all your affairs are in order, and your nearest and dearest will be cared for, with one thing less to stress about.

-Adv. Anita Adsul