date:20130519

[AI] Views Invited: Legal issues in an insurance contract for people with disabilities.

2013-05-19 Thread Amar Jain

Dear Scholars,

I would like this discussion to be restricted to legal points, except
when other points are equally important to substantiate the answers.
If the moderator permits and other members have no objections, then I
would love to see this matter being discussed on one other group which
I think has quality experts to deal with the matter, and the group is
We The PWD. So, cross-posting permission is sought in the matter.

I have been through the judgment passed in the matter of Vikas Gupta
vs. Union of India and Anr. when it was passed, and from what I
remember that the judgment was passed in terms of postal life
insurance in which the maximum amount with which the person with
disability can be insured and additional premium being charged by the
insurer on the ground of increased risk which can be incidental cause
for insurer to undertake his liability in the event of any loss being
caused were in issue. And from what I vaguely remember, the judgment
was based on English authorities, as there was no case-law available
as far as Indian judiciary is concerned. Though I don't remember the
grounds on which the judgment was ultimately passed.

Subsequently, the postal department issued the circular / notification
(not sure what was issued), removing both the conditions.

I will also be approaching LIC for a policy in coming months, and even
my agent has told me that additional premium will be charged, and the
seniors have also told the same verbally. I have not taken up this
issue in my individual capacity yet with the corporation directly. My
questions are as below:

1. The judgment did not settle the issue at once for all. As it was a
writ petition (remedy for an individual), and it confined to the
issuance of postal life insurance. So, though the judgment can be
treated as a good precedent, and the ratio can be relied upon for
arguing cases subsequently. But, can it be said to have binding effect
on all?

2. Even if the answer is in affirmative, then on whom the judgment
will have the binding effect? (Will it be restricted to those
considered as state under Art. 12) or, even the private insurers can
be brought under the realm of this judgment?

3. Apart from the grounds of discrimination and other similar grounds
which are constitutionally available, and considering the fact that
disability (except lunacy) is no bar when it comes to contracting
capacity and insurance contract is no exception for us, how do we
practically justify that disability will not affect the risk which is
being underwritten materially in case of the happening of an event due
to disability?

Important: Can we say that in such cases the principle of causa
proxima (the immediate cause of happening of the event) will apply
while deciding whether the insured's claim is allowed or not?

4. Keeping the fact in mind that life insurance is based on human
value concept, would other insurances be governed differently?

5. Lastly, in case of a mediclaim policy, can we say that the existing
disability and its effects which may happen in general subsequently,
be excluded and all other benefits be allowed? (In such cases, the
effects should also be clearly defined when policy is being issued).
This I think should be quite a good possibility.

-- 
Amar Jain.
Website: www.amarjain.com

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[AI] Deaf-mute girls allegedly raped in Jaipur

2013-05-19 Thread avinash shahi

In a shocking revelation of sexual assault, the staffers of a
residential therapy centre run by an NGO here have been allegedly
raping and thrashing deaf-and-mute orphan girls for the past one year
during their visits for speech therapy sessions. The girls, aged
between 12 and 17 years, reside at the Government Girls’ Home in
Gandhi Nagar here.
http://www.thehindu.com/todays-paper/deafmute-girls-allegedly-raped-in-jaipur/article4728968.ece
Five girls had recently complained to the Child Welfare Committee
through sign language during counselling sessions that they had been
sexually exploited and beaten by the staff members of Awaz Foundation
at Kanota near here, where they were regularly sent to stay for
education and speech therapy sessions.

Acting on a complaint by CWC chairman Ram Prakash Bairwa, the police
on Friday night arrested five persons, including the administrator of
the residential school, and found in their preliminary investigation
that two of the girls had been raped and others were thrashed and
mistreated.

The shelter home, where the girls are staying, had registered the
complaint on April 30 and reported the matter to CWC.

Jaipur Police Commissioner Biju George Joseph said the accused
arrested from various locations included school administrator Alpana
Daswani, assistant Geeta Vaibhav, warden Ashok Prajapat, clerk Suresh
Bairwa and security guard Mahesh Mali. Among them, Ashok and Suresh
have been booked on charges of rape and others for conspiring with the
main accused and beating the girls.

The Awaz Foundation is run with the support of the State Government’s
Social Justice Department. The victims had earlier tried to bring the
matter to the notice of the Foundation’s authorities to no avail.

After their latest visit to the therapy centre, the shelter home’s
warden reportedly noticed injury marks on their bodies and informed
the CWC with the complaint of physical abuse.

According to the police sources, preliminary investigation has pointed
to the possibility of one of the girls being pregnant. The medical
report of the victim was awaited for a final conclusion.

The incident sent shock waves in the State capital and activists
representing women’s groups and People’s Union for Civil Liberties
staged a massive demonstration outside the Girls’ Home on Saturday
demanding justice for the deaf-mute girls and foolproof security
measures for all inmates.

--
Avinash Shahi
MPhil Research Scholar
Centre for the Study of Law and Governance
Jawaharlal Nehru University
New Delhi India

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