Compensation Claims--Judicial Prescription to Clean the System

Andhra Pradesh High Court has expressed serious concern over the state of  affairs in the   road accidents and cases relating to payment of compensation.  In its judgment relating to a compensation case,(M.JayannaVsRadha Krishna Reddy,2003)  the Court expressed horror over the state of  affairs.  The Court   observed that  insurance  companies are  “custodians of public money” and  cases relating to compensation has become sort of “chance game” due to the shoddy  methods  of the counsel appearing  for the parties,  unethical practices of the private medical practitioners and  unprofessional approach of the police officers  handling accident cases “having scant regard “ for provisions of the  Motor Vehicle Act.     

Writing the judgment, Justice B Swamy said that  counsel appearing  for the parties had “poor legal expertise” and  never examined the proper person to prove their case..  Some Judges  were  giving compensation at their whims and fancies, without reference to the law laid down by the superior courts and applying their mind as to the evidence produced by the claimants reflected the true facts of the case of case suffers from lack of material particulars.

As per the judgment the police were not taking minimum  care in investigating the crimes to bring home the guilt of the accused and the prosecution was  conducted for “statistical purpose” than to  control the increasing crime rate.   

Normally the injured person is treated  at the nearest government hospital and the details of the injury sustained by the claimant is kept in the case-sheet maintained by  that hospital.  “The counsel appearing for the claimant nor the counsel representing the insurance companies, do take any care or bother to summon the doctors concerned, who had in fact treated the injured or the dead person,” the judgment said.

According to the judgment, private doctors were taking advantage of the situation and “obliging the persons approaching   them with false medical certificate, knowing fully well that  they have not treated them at any point of time.”  It further said that “in the absence of any proper check on such unscrupulous elements and proper assistance from the counsel, this count is unable to know whether in fact, the accident took place at all and whether records placed before the court are genuine or have been brought into existence with the connivance of the policy, with a view to embezzle the public monies  in the garb of compensation.”                    

The Court further observed that it was not in a position  “to know whether the person approaching the courts and claiming compensation are the persons who really suffered  injuries or they are the real legal heirs of the deceased persons.”  Explaining the lacunae  the Judge said  the police who were expected to send the F.I.R to the concerned Motor Accidents Claims Tribunal within 30 days from the date of receipt of  first information as well as the charge-sheet along with all relevant documents, after completion of investigation, as required under Section 158(6) of the Motor Vehicle Act, 1988,  “have failed miserably in their duty” to comply with the statutory provisions. 

In the instant case, the claimant on 10.05.1998, while travelling in a lorry along with his goods, the lorry turned turtle and he sustained fracture injuries.   He claimed to have taken treatment in a government hospital for eight days.  Instead of brining proof from an orthopedic surgeon, he submitted a wound certificate  issued by the Casualty Medical Officer.  The bills submitted to support his cost of treatment amounting to Rs.25,000/-  some medical bills were submitted and the date of the bills varied from the period of treatment.  Even the name mentioned in the medical bill did not reflect the name of the claimant. 

A doctor practicing  at the Government General hospital, Kurnool, certified that  there was ” nonunion of  medial malleolus and estimated the disability at 15 to 20 per cent. “   But the doctor had not prescribed  any medicines  nor treated the claimant for the condition, which again raised questions  about the authenticity of the medical certificate, said the judgment.    As the medical certificate was not categorical  or conclusive above the nature of disability i.e., temporary or permanent, the  Judge deemed it appropriate to  “consider the matter afresh” to ascertain the genuineness of the claim.

The case was sent to the Claim Tribunal for examination of the doctor, who treated the claimant  at the Government hospital at Kurnool.  Further, the Judge has directed  the Inspector General of Police to make it mandatory  requirement to send the F.I.R. within thirty days, as well as the charge-sheet after completion of investigation, reflecting facts of the accident as required under the Motor Vehicle Act, to the Claims Tribunal having competent jurisdiction over the area, where the accident had taken place.

The Court made in mandatory for the investigating officer  dealing with the accident to  inform the  local field officer of the insurance company with which the vehicle  involved in the accident is insured so that he can make his-own  enquiries about the accident. For that purpose, all the insurance companies have to furnish the details of their local Field Inspector to the concerned police station. 

The judge said the Motor Accidents Claims Tribunal hereinafter shall immediately call for the F.I.R. and see that the investigating officers file the charge-sheets and in cases  where they have not received the F.I.Rs they shall insist on sending them, as required under Section 158(6) of the Motor Vehicle Act, 1988 forthwith.

The Court has directed the Tribunal to keep a watch on the doctors giving evidence in accident cases and if the  doctor “is a stock witness” matter should be intimated to the Indian Medical Council for taking suitable action. After a lapse of time if a private doctor treats any  person involved  in the accident, he shall maintain the record relating to the treatment given by him and must justify his action in treating the patient in the court when summoned to give evidence.

 If the claimant has filed the  claim petition at his native place, the concerned Tribunal shall call for the records relating to the investigation from the Tribunal having jurisdiction over the place where the accident had taken place.  

Disposing the case, Justice  B. Swamy said, “most of  the empanelled advocates in the lower courts are not representing their cases properly and not taking even minimum  professional care required to protect  their interest with the result most of the compensation cases are going in favor of  claimants and against the respondents.”  The judge wondered  whether “there is a racket working in the direction of creating fictitious and non-existent accidents for claiming large amounts as compensation and defrauding  the insurance companies.”

Third  party motor claims refer to the claims of compensation for injury or death of the driver or passengers in a vehicle, in case it meets with an accident.  It is a bleeding portfolio for general insurance companies.  In 2010, the industry took a hit of Rs.10,250 crores on account of commercial third party motor pool loss, according to figures published in the IRDA web site.

BUDGET 2012-13 AND THE INDIAN HEALTH SECTOR

The challenge posed by the rising cost of health care in India, is accepted at all levels.  Non other than the Prime Minister Dr.Manmohan Sigh said the impact of high medical costs placed an unconscionable burden on the poor.  Speaking at a health summit, he said : “We are therefore, focusing our attention on social security of the poor with regard to their health care.”

It does not require mention that the health status of India’s people is poor.  There  are economic social and regional differences but the larger picture is one of high mortality(of infants, children and mothers), low life expectancy and  high morbidity.  The limited volume and quality of public services has been driving people to private health services.  These are booming, but the large out of pocket expenses on health care and drugs are imposing a heavy burden on patients.  Such expenditure is estimated to push 30 million people a year into poverty.

Dr. B Ekbal public health activist, author and former Vice Chancellor of  Kerala University says : “Cost of treatment has been increasing alarmingly as a result of the entry of super  and multi-specialty hospitals. Lack of government intervention has led  many private hospitals to do anything to make profits in the name of check ups or supply of medicines.”

In the context of neoliberal policies, the growth of the private medical sector in India has not been based on any planned attempt to address health needs.  Being ‘private’ by definition the sector has to function in accordance with the logic of the market.  The market(for all goods and services)does not, in the long term, allow the survival of the ‘inefficient’ entrepreneur.  In the medical sector the efficient entrepreneur is not necessarily one who provides the best service, but often the one whose profit margins are the healthiest. 

 

The logic of the market, in the medical care sector has produced a situation where now huge corporate chains are replacing smaller players. It has brought in its wake more centralization of services and  a higher degree of pooling  of skills and expertise in a few centers.   This goes against the established tenets of public health and primary health care, where it is understood that better health outcome is a function of a wide spread  of facilities and care providers, across the entire population. 

While the services of specialists and even super-specialists are underutilized in urban areas, the deficit of specialists is as high as 80 per cent or more in the public health system, especially in rural areas. On the other hand, we subsidise the medical care needs of countries in Europe and North America by exporting trained physicians, most of whom are trained at public cost.

The rapidly growing industry of medical tourism in India, now harness highly trained Indian medical professionals to treat rich medical tourist from developed nations.  While our public health system remains grossly understaffed, we do not train an adequate number of other health workers.

In this context, experts who analysed the social sector components of the Union Budget 2012-13 concluded that “the budget has failed to provide a vision or a clear direction on the policy front as far as the social sector is concerned.”( Business Standard 19.03.2012). On the healthcare, Finance Minister Pranab Mukheerji announced only an incremental  increase of about Rs.2700 crores in the allocation for the National Rural Health Mission.

The 12^th Five Year Plan envisages that the government’s health care spend will from 1.90 per cent to 2.50 per cent of GDP.  A large part of this would be under public-private partnerships(PPP). The High Level Expert Group of the Planning Commission on Universal Health Coverage for India has laid out a clear road map. The expert group chaired by Dr.K.Srinath Reddy proposed a far-going reform in several areas.  On funding, it put the onus on the government to mobilize the resources necessary  from taxation. The recommendations of the expert group, including the emphasis on making essential medicines available free to patients through state funding,  is timely. 

A book titled “Morbid System—Health Under Capitalism” edited by Leo Panitch and Collin Leys, convey the message that mindless privatization of the health care delivery system in various countries, which is the  result of neoliberal globalization is counter-productive to achieving a reasonable level of health.

Consistently low levels of public health expenditure explain the slow progress in addressing the challenges of Infant Mortality Rate(IMR), Maternal Mortality Rate(MMR) and other key health indicators.   The Out of Pocket(OOP) expense on health care at 75 per cent is one of the highest in the world and it is imperative for the State sending in health care to rise in order to alleviate the burden on the economically weaker sections of the society.

The Rashtriya Swasthya Bima Yojana(RSBY) the health care scheme meant for the Below Poverty Line(BPL), now being extended to the above poverty line section, provides Rs.30000 per family to cover treatment charges.  Several States have evolved their own distinctive health insurance schemes. Though RSBY received no mention in this year’s budget, it has seen a 45 per cent increase in allocation. On the whole, the Budget provides a marginal boost to the health sector.

KOZHIKODE RESOLUTIONS TO REVITALISE CPI(M)

                                      

The 20^th Party Congress of the Communist Party of India(Marxist) virtually transformed the historic city of Kozhikode with red flags, hoardings and tastefully decorated venue at Harkishan Singh Surjit -Jyothi Basu Nagar. The Communist Party History and Book exhibitions and cultural events and seminars gave a festival ambiance  to this Left  bastion.  The Party organ Malayalam daily Deshabhimani , had been informing readers in great details about Party Congress  with special reports and supplements.

While the  Party Congress was going on, veteran Polit-bureau member Sitaram Yechury was asked in the NDTV panel discussion, whether the occasion demanded a soul-searching for his party. He responded by highlighting how his party espoused the cause of  ‘aam admi’ by pressurizing  the central government to enlarge the scope of  MNRGA, significant improvement to Food Security Bill and many other programmes that benefited the common man. He also added that his party did not get the electrical dividend due to the media manipulation.

A close reading of the organizational  and political reports along with resolutions passed at the congress reveal  the party’s concern for the working class—both  in the organized and unorganized sectors and the weaker and oppressed  sections of the society.  The party congress has called upon the peasants of the country to be part of a united struggle of the working people against liberalization and imperialist-led globalization instead of resorting to suicide.  The resolution said that this struggle was for decent standard of living and better society.  Suicide is not the solution; struggle is the way, it said.

In the wake of the continuing phenomenon of distress-induced suicide of the farmers, the resolution  demanded the government should restore the subsidies and intervene in the supply of seed and other agricultural inputs by establishing fair price retail outlets in rural areas. The resolution quoting NCRB said, between 1995 and 2010, there were a total  of 2,56,913 suicides of Indian farmers.  The disturbing phenomenon of farmers suicides also returned to  Kerala and West Bengal according to the resolution.

It demanded that  the recommendations  of the National Commission for Farmers be implemented; subsidies restored; the public distribution system expanded; a special sub-quota for agricultural credit by banks to small and marginal farmers created; a comprehensive crop insurance scheme introduced; and a found opened to assist farmers affected by crop losses.

Another resolution adopted at the Party Congress criticized the central and some state governments for imposing contractorisation of workforce and imposing ban on new recruitment. The vacancies  due to retirement of employees  were  never filled.  This has resulted in thorough  exploitation of workers, by keeping wage costs down and denying workers their minimum rights. It said the National Sample Survey data for 2009-10 showed a sharp decline in employment growth from an annual  rate of 2.7 per cent during 2000-05 to a mere 0.8 per cent during  2005-10. Growth of non-agricultural employment fell from  4.65 per cent a year to 2.53 per cent, even when the GDP clocked 8 per cent, the resolution said.

“In the name of making industries competitive and attracting investments, the Central government has permitted  gross violation of the Contract Labour(Regulation and Abolition) Act 1970, by the private and public sector,” the resolution said.  The law prohibited contract employment in jobs of perennial nature.  The practice was widespread in the manufacturing, service and government sectors and rampant in the unorganized sector.   Through another resolution, the  Party Congress supported the struggles of contract workers and trade unions demanding an end to the “exploitative” contract system in regular jobs, and amendments to the Act to regularize the services of workers in jobs of perennial nature.  Till then, such workers should be paid wages equal to those of a regular worker, along with social security benefits.

The Political Review Report, adopted unanimously  at the Congress highlighted party’s tactical agenda for the coming three years, to fight resolutely against neoliberal policies at all levels. The fight would be against the Congress Party, which had been pursuing neo-liberal policies aggressively at the behest of imperialist forces, as well as BJP.

The CPI(M) would rally all the patriotic, democratic sections against the UPA government’s strategic alliance with the US and would mobilize the people  pursue and independent foreign policy. The party would strive hard to expand its mass base and influence  in order to strengthen its independent role.  The mass organizations should become independent forums for mobilizing the people and organizing them .  The participation in elections and activities in the parliamentary forums should be dovetailed to the development of mass movements and the political mobilization of the people, the resolution said.

It said the party would give priority to its work among the basic classes.  The lag in the work amongst  the peasantry and the rural poor in building class and mass struggles had to be overcome. The specific issues of the Dalits, minorities, tribals and women would be taken up as part of the general democratic platform. In a resolution adopted  at the Congress, party expressed serious concern at the reckless loot of the mineral resources  by the corporate.  A release issued by the organizing committee quoted Polit Bureau member Brinda Karat as saying: “We want  a legal mechanism to ensure that tribal rights over the mineral wealth are upheld.”

The resolution on  partisan poverty estimates described the cut-offs set by the Planning Commission to define poverty in the country as a cruel joke and accused the central government of imposing a regime of urban reforms reflecting the policies of the World Bank.  It said the commission had set Rs.22.40 a day for an adult in rural areas and Rs.28.65 in urban areas in 2009-10 as the poverty cut-offs.  Any one spending more than that was considered not poor.

The resolution on “Violence Against Women” expressed concern over the steep escalation in crimes against women and said it was alarmed by the “barbarity and savagery” of atrocities being committed at a time when women were entering public life, institutions of leaning, and diverse work spheres in increasing numbers. “The crude commodification of women and the portrayal of women as sex objects in the mass media is highly objectionable and is not only demeaning to women but creates an environment which trivializes the crime of sexual harassment and violence against women,” it said. The failure to punish the criminals and the long delay in the judicial process is undoubtedly one of the reasons for the increase in rapes and gang rapes being witnessed in several parts of the country,” the resolution said.

The resolution of Ideological Issues sought to map an Indian road to Socialism even as it attempted to learn from the experience of all socialist struggles. A special bulletin issued by the organizing committee quoted General Secretary Prakash Karat as having clarified that CPI(M)  would not emulate any foreign model, neither Chinese nor Latin American, as the corporate media had been trying to project. The resolution  looked at the Chinese experience, both positive and negative, with an open mind. It appreciated the anti-imperialist direction of popular governments in some Latin American countries.

 An analysis of the media reports quoting the senior CPI(M) leaders reveal that there was  convergence of views in the matter of “strengthening the party and working for Left unity to recapture its strongest bases in West Bengal and Kerala and to expand its base and political influence in Andhra Pradesh and Tamil Nadu.”  The 734 delegates, 70 observers and 11 veterans who attended the party congress, through the week-long deliberations gave shape to a detailed plan on revitalization of the party at the grassroots.  Validictary meet of the Party Congress was a grand spectacle with thousands of red volunteers and a sea of humanity  converging at Kozhikode beach.

In an editorial comment Deshabhamami daiy said : “The message of the Party Congress is that  struggle against social injustices created by the neoliberal policies of the central government will be the main agenda of the CPI(M) in the coming days.”

Kerala State General Insurance  Employees Union(KSGIEU) comrades led by state president Com.Ajayan were part of the Congress, at the Book/Party History/Peasant Revolts  exhibitions, distributing  copies of PAG bulletin and   helping visitors at the venue. PAG bulletin in Malayalam, is a much sought after publication  by cadres and comrades   among  Left parties in Kerala, for its exhaustive and  lucid coverage of    ideological issues and policy matters.

2011 YEAR OF UNPRECEDENTED NATURAL DISASTERS

Unprecedented natural disasters and accompanying catastrophes marked the year 2011. The unfortunate events inflected huge financial losses and took heavy human toll. Various reports and analysis put out by the global reinsurers and international organisations highlighted the macabre events. Earthquake caused maximum damage. The first decade of this century witness some of the worst natural disasters.
According to a press release(15.12.11) issued by Swiss Re, Zurich based global reinsurer, 2011 was the year with “the highest catastrophe-related economic losses” in history, at USD 350 billion. The insurers took a hit of USD 108 billion. This is more than double the figure of USD 48 billion in 2010.(www.swissre.com)
The earthquake in Japan accounted for most of this year’s economic losses. More than 30000 people lost their lives due to catastrophes in the first eleven months of the year, said the report from the sigma team of Swiss Re. “2011 is going down as another year of very tragic and costly earthquakes. Unfortunately earthquake insurance coverage is still quite low, even in some industrialized countries with high seismic risk, like Japan,” Kurt Karl, Chief Economist of Swiss Re, was quoted as saying.
If Japan had been as well insured as other countries with high seismic risk, such as New Zeland, the overall industry tally would have been much higher. In addition to the earthquake in Japan and New Zeland, severe flooding in Thailand, Philippines and Australia triggered above USD 10 billion in insurance claims.
A press release(4.1.2012) from the Munich based German Re-insurer, Munich Re, quoted Torsten Jeworrek head of Geo Risk Research, as saying:”It is the insurance industry’s task to cover extreme losses as well, to help society cope with such events and to learn from catastrophes in order to protect mankind better from these natural perils.” There were 820 loss-relevant events in 2011. Nearly two-thirds of economic losses and about half the insured losses stemmed from geophysical events, principally from the large earthquakes.(www.munich-re.com)
Normally , it is the weather-related natural catastrophes that are the dominant loss drivers, Munich Re said. On average over the last three decades, geophysical events accounted for just fewer than 10% of insured losses. Around 70% of economic losses in 2011 occurred in Asia. In the context of severe earthquakes, Prof.Peter Hoppe, Head of Munich Re’s Geo Risks Research unit warns town planners to be very cautious about seismic risks and to give serious consideration to modern building codes and high standards.
Reinsurers also expect further claims from the US hurricane season and the winter storms in Europe. Floods in Brazil in January took more than 900 lives. 1600 tornadoes battered US states in the South and Midwest and hurricane Irene wreaked havoc on business and communities according to Lloyd’s Report 2011. (www.lloyds.com)

September 18, 6.9 earthquake in Sikkim, claimed more than 100 lives, was felt over a large area, according to a report of the National Geophysical Research Institute. On the morning of 30 December, Cyclone Thane battered India’s south-east coast causing thousands to flee from their homes. In its wake, the cyclone left an immense trail of destruction and devastated the beginning of 2012 for many. Gale force winds and torrential rain brought down telephone and electricity lines, uprooted trees, and damaged more than 200000 homes in four districts of Tamil Nadu. Forty seven people lost their lives in house collapse.(Red Cross Report,2011)
Floods in the Indus, triggered by the heavy monsoon rain , devastated vast swathes of land and rendered millions homeless, in Pakistan, in August, 2010, killing nearly 1500, and laid waste, 160000 square kilometers of land.(Frontline Sept.10, 2010)
The 2004 Indian Ocean earthquake, occurred on December 26, resulted in a series of devastating tsunamis along the coasts of most landmass bordering the Indian Ocean, killing over 230000 people in fourteen countries, and inundating coastal communities with waves up to 30 meters high. It was one of the deadliest natural disasters in recorded history.(wikipedia.org/wiki/2004_IndianOcean_tsunami.)
The 2010 January 12 Haiti earthquake was a catastrophic magnitude 7.00, with epicenter near the town of Legane about 25 km West of Port-aue-Prince. On February 10, the Haitian government reported the death toll at 230000. The number of injured was estimated at 300000 and an estimated 1 million were left homeless. Sigma report said Hurricane losses from Katrina, Wilma and Rita contributed to the 2005 claims.
Among all the continents, Asia is considered to be most vulnerable to disasters. During 1991 to 2000, Asia accounted for as much as 83 per cent of the population affected by disasters globally. India is highly prone to natural disasters, and the country has experienced very severe natural disasters, at regular intervals. Among the various types of natural disasters affecting different parts of the country floods, cyclones, earthquakes and droughts cause maximum damage to life and property; and heat wave, cold wave, avalanches, landslides, fire and pest attacks are also taking heavy toll on life and property at regular intervals. The Latur earthquake of 1993-94, the Orissa super cyclone of 1999, the Bhuj earthquake of 2001 and the Tsunami of December 2004 are some of the most severe natural disasters that have struck the country in the recent past.
Lloyd’s Chief Executive Officer Richard Ward was quoted as saying:”Looking back over a year when earthquakes, windstorms and floods have devastated much of our planet, business and governments alike need to ask themselves if they really are as well prepared for these risks as they assume and, if not, decide the steps they need to take to ensure their perception and their reality prove a better match in 2012.”
The Asia-Pacific Disaster Report 2010, prepared by the UN Economic and Social Commission for Asia and Pacific and the UN International Strategy for Disaster Reduction, notes that natural disasters have disproportionate impacts on human development in the region. Future disaster risk reduction strategies in the region should be considered within broader development frameworks and multi sect oral budgetary process that address economic inequalities and social and environmental imbalances.