HOW THE COURTS MAKE LAW-PART-1 

It is well settled law as per Article 141 that Judgements made by the Supreme Court are binding on all lower courts of the country. Hence the laws laid down by the Supreme Court are binding on all high courts of the country and accordingly law laid down by the high court of a particular state are binding on all lower courts/tribunals of that particular state.

Then, does it mean, courts can make  law and  if so, how. In our country  functions of executive body, legislature  and judiciary are well defined and no one is to interfere in any one’s functioning .Law is made by the parliament, Judiciary is to give interpretation to the law made by the legislature as and when dispute arises in respect of interpretation  made in a particular  case. It is how courts come in the picture. While giving interpretation to the acts /laws /rules, courts do care for the intention and purpose of the legislature so made .In number of judgements, Apex court has made this observation while interpreting the law .In a case of Vijaya Bank V Gurunam Singh 2010 CTJ 1 (Supreme Court) (CP) Supreme court made it clear that interpretation should be made keeping in view the purpose of the act.

‘A statute being edict of the legislature, in construing it, it is necessary to seek the intention of its maker ’

Thus we may arrive to the conclusion that Purpose and Intention of the Law is the most important factor when judiciary gives its interpretation .In other words, Judiciary is to give explanation and help the law to be implemented in its proper spirit.

There are situations where law is silent and facts of the case demand elaborated meaning to the particular clause .In such situation many factors are taken into account, Circumstances of the case and purpose of the legislature are read together keeping in view the fundamental principal of natural justice. Such interpretations when made by the judiciary become precedence for future cases of similar nature under the similar circumstances and you may say, it becomes law but for all technical purposes, it can be said precedence set up, in simple and layman’s language, it is a law laid down by the court or judiciary.

Precedents that made law:

Here are some quotes from the Consumer related landmark judgments which can be cited before the courts under similar facts and circumstances in order to support the case in hands and convince the court that same judgment made earlier in similar case can apply

 

Matters related to insurance

·         Insurance companies are rejecting the claims of the consumers on the plea of Pre Existing –disease or Non-disclosure of material fact in almost every case which means claimant had not disclosed all facts related to his health at the time of filling up the prescribed form. It was observed by the consumer courts that such rules were not disclosed to the insured at the time of filling proposal form as the terms &conditions are sent to the insurer only with the policy which reaches insurer after a month or so .Consumer courts /Commissions as well Apex court went on rejecting the plea of insurance companies on the ground that the terms not known to the insurer are not binding on them  and ultimately insurance companies amended their form which included terms and conditions now with the proposal form itself  And now unless it is proved that claimant was aware of the particular disease and had taken medicine or consultation for that particular disease ,his claim cannot be rejected Marely due to such symptoms. In the case of  Asha Rani Goel  v Life Insurance Corporation .in the year 2012 , three criteria were set up for coming to the conclusion that the claimant had disease pre-existing as hereunder:

1) One must have concealed the fact

2) The fact so concealed should be of such importance that could affect the Insurance company .to take decision whether to issue policy or not.

3) The person so insured must be aware of that particular disease.

On the same footing courts also directed insurance companies not to reject renewal of the policy to elderly people due to their aging health etc.in a case of New India assurance Ltd v Consumer Education and Research Society and others in civil appeal no 4116of 2008, United India Insurance Co.Ltd V Manu Bhai Dharamsinhbhai Gajrela and others civil appeal no 4115of 2008, United India Inasurance Company Ltd V Mukat Lal Duggal and others civil appeal no 3633of 2008, it was held:

“A State cannot refuse to renew the policy at its whims and caprice –a medical policy involving a senior citizen cannot stand on different footing-claimant though not entitled for automatic renewal, they deserve to be treated fairly”

 

 

·         Hon’ble  Supreme Court in the matter of National Insurance Co Ltd V Laxmi Narain Dhut 2007 CTJ 445 [SC].The issue before the court was as to whether insurance co. can repudiate the third party claim, if the driving licence of the driver is found fake .The matter  was discussed in the light of the  land mark judgement  by the same apex court in case of National Insurance co Ltd  V Swaran Singh 2004[3]SCC, 297 where in court held that third party claim under Motor Vehicle Act cannot be repudiated on the ground of fake licence of the driver giving benefit to the insurance company and depriving the person who has been injured/disabled or died  .The motor Vehicle Act is a social welfare legislature which  extend relief by compensation to victims of accidents caused by vehicle and it is why insurance of vehicle against third party is made compulsory

But by the order pronounced in the present case of Laxmi Narain Dhut, the same Supreme Court confirms that this benefit cannot be extended to the owner of offending vehicle who does not adhere with the terms and conditions and breaches the policy conditions .While dealing with the case under Consumer Protection Act, this Judgement says:

 “Once the licence is fake, its renewal cannot take away the effect of fake licence and make it a valid licence and hence insured cannot take advantage of it.”

 

Matters related to Medical Negligence

 

Hon’ble Supreme Court  while deciding the medical negligence case of Martin D’Souza V Mohd Ishfaq 2009 SC delivered on 27^th Feb 2009:must have the intention to keep in mind ,the purpose of law when they said expert opinion be sought before issuing the notice to the medical practitioner

Law laid down in the case was:

                        “Whenever a complaint is received against a doctor or a hospital by a consumer forum or by criminal court then before issuing a notice to the complainer doctor or hospital, it should be referred to a competent doctor or committee of doctors, specialized in the field to which the medical negligence relates, and only thereafter if there is a prima facie case that a notice be issued to the concerned doctor/hospital.”

With the result of this judgement, interpretations were made that medical board holds the responsibility of making prima facie case against their fellow doctors .But the real question here is, in case no prima facie case is made against the doctor by the expert committee, what shall be the role of consumer forum /commission in such medical negligence case before it .Are they supposed to dismiss the case without giving notice to the doctor.  Apex court never meant that   expert committee is supposed to   make or not make the case. Had it been so, then there is no need to file the case before consumer forum, consumer can simply go to expert committee first and matter ends with an observation of the committee that there is no prima facie case. More so, this exercise is already being done by the medical councils/associations and it will be repeat and nothing else. Apex court if  means so, jurisdiction of consumer fora’s is virtually taken away in medical matters but the fact is no clear words are pronounced for this intention  If a legal man is not fit to give medical  opinion  and cannot prevail over doctors opinion, by saying so, court definitely means that medical man cannot give legal opinion and doctor cannot prevail over legal man in legal matters It has been now clarified by the same Apex court   on the subject in the matter of Malay Kumar Ganguli&Dr Kunal Saha V Dr Sukumar Mukherjee and others delivered on 7^th August 2009 that  fora is duty  bound to decide the matter finally on legal footings with the help of medical opinion read with many other facts and circumstances

Law laid down in this case is

“A court is not bound by the evidence of the expert which may be advisory in nature .The court must derive its own conclusion upon considering the opinion of experts which may be adduced by both the sides ,cautiously and upon taking into consideration the authorities on the point which he deposes ”

Meaning thereby there can be more than one expert opinions, both parties are at liberty to adduce their own expert reports

 

 

Matters related to statutory bodies and their services

There was a lot of hue and cry over the orders of the commissions when MCD and NDMC were held responsible for poor maintenance of sever, roads ,parks and other utility services provided by statutory bodies. They came in defence with the plea that they are doing their statutory duties which do not come under the purview of consumer protection act and they are not rendering services with payment to the public by maintaining sever or parks etc. Particular issue had taken many twists and turns but consumer commissions went on explaining through various judgements that these statutory bodies while planning their activities and making their annual policy they are free to adopt any strategy but once they have planned to do something and then do not follow their own decisions, they are deficient in administrative implementation of the Govt. plans. This approach of the consumer commission has led to a situation that in many cases Supreme Court held these autonomous bodies under the purview of this act.

 

In the case of Lucknow Development Authority Vs.M.K. Gupta Judgment 05/11/1993

“The question of law that arises for consideration in these appeals, directed against orders passed by the National Consumer Disputes Redressal Commission , New Delhi is if the statutory authorities such as Lucknow Development Authority or Delhi Development Authority or Bangalore Development Authority constituted under State Acts to carry on planned development of the cities in the State are amenable to Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') for any act or omission relating to housing activity such as delay in delivery of possession of the houses to the allottees, non-completion of the flat within the stipulated time, or defective and faulty construction etc. Another aspect of this issue is if the housing activity carried on by the statutory authority or private builder or contractor came within the purview of the Act only after its amendment by the Ordinance No. 24 in 1993 or the Commission could entertain a complaint for such violations even before”

“When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.”

“In a modem society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result.”

“The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility.”

  “Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and the spirit behind it. “

“Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory”

“A scrutiny of various definitions such as 'consumer', 'service', and ‘trader ‘,’ unfair trade practice indicates that legislature has attempted to widen the reach of the Act. Each of these definitions are in two parts, one, explanatory and the other explanatory. The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweep, then its ambit is widened to such things which otherwise would have been beyond its natural import”

“ 'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute, and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural, import, but also those things which the definition clause declares that they shall include" 'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute, and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural, import, but also those things which the definition clause declares that they shall include”

 

 

 

 

 

Dr Prem Lata

Legal Head VOICE

 

 

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