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The Legal Implications of Misleading Advertisements: An In-Depth Analysis

Abstract

Given the evident impact of marketing on customer decision, it is imperative that advertisements are impartial and genuine. Consumer choice and competitiveness are distorted by deceptive advertising. A change from “Caveat Emptor” (buyer beware) to “Caveat Venditor” (seller beware) and the passage of the Consumer Protection Act in 1986 did not stop manufacturers and service providers from taking advantage of Indian consumers. Advertising should not mislead or turn into a nuisance, even though it is necessary for economic growth. Deceptive advertising is not expressly covered by the Consumer Protection Act of 1986. It does, however, forbid “unfair trade practices” and offer recourse in some situations. Even while these requirements apply to commercials, they might not cover all parts of advertising that need control. On the other hand, there are particular rules pertaining to advertisements in a number of international countries.

Introduction

 Public information regarding goods, services, and concepts is mostly disseminated through advertisements. Their goals are to increase consumer involvement, market products and services, and boost revenue. But not every commercial is made equally. Some people behave unethically by deceiving customers, which has moral and legal ramifications.

 A Misleading Advertisement: What Is It?

An advertisement that presents inaccurate or dishonest information about a good, service, or concept is considered misleading. It purposefully distorts important elements, such benefits, features, or quality, in order to affect how customers behave.

The following are some salient points: The goal of advertisements is to educate the public about goods, services, and concepts that are offered for sale. They push customers to make decisions based on factual facts.

Deceptive Features: An advertising is considered deceptive if it: Describes a good or service inaccurately. Provides a fictitious assurance about the commodity or service. Conceals crucial facts that buyers need to be aware of.

Illustrations of Deceptive Advertising: Shampoo for Hair Care: Consider a shampoo manufacturer stating that with only one wash, their product will stop hair loss or dandruff. This qualifies as a misleading advertisement if the claim is untrue.

Energy-Boosting Soft Drink: Let’s say an advertisement for a soft drink makes the claim that drinking it gives you energy and can even help you survive risky situations (like jumping from a height). These statements are deceptive.

Fairness Lotion: If a facial cream marketing doesn’t live up to its claim of fair skin tone after 365 days, it may deceive customers.

Why Do False Advertisements Cause Issues?

Consumer Deception: Consumers incorrect expectations are raised by deceptive advertisements. Customers can make purchases based on false information, which could leave them disappointed and financially strapped.

 Unfair Competition: Companies that use deceptive advertising have an unfair edge over rivals. Sincere companies suffer when customers select their goods on the basis of false advertising.

 Legal Implications: Deceptive advertising is prohibited under laws and regulations. In India, deceptive advertising is addressed by the Consumer Protection Act, 2019 and offers customers remedies. Comparable legislation shields customers from deceptive statements in other nations.

In conclusion, even while advertising is necessary for economic expansion, it shouldn’t be misleading or bothersome. A functioning marketplace necessitates striking a balance between marketing items and guaranteeing customer welfare.

The Consumer Protection Act of 2019 (CPA) declares it illegal to create deceptive or false advertisements. For a first infraction, the penalties are as follows: a fine of up to 10 lakh rupees and up to two years in prison. For repeat violations, a fine of up to fifty lakh rupees and a maximum five-year prison sentence.

Guidelines for the Avoidance of False Endorsements and Advertisements (2022): Guidelines have been released by the Indian government to stop deceptive advertising. These rules emphasize accuracy and transparency and apply to both endorsements and advertisements.

Judicial Measures: Courts have the authority to prohibit deceptive adverts by ordering their distributors to stop. Banning the reiteration of false statements

Industry Self-Regulation: The National Advertising Division (NAD) and other groups are essential to examining advertising promises and making sure moral guidelines are being followed. Businesses can respond to deceptive advertising allegations by voluntarily taking part in NAD challenges.

Particular Acts: The Drugs & Other Magical Remedies Act of 1954 (DOMA) forbids deceptive advertising pertaining to pharmaceutical products. The CPA also establishes guidelines for limiting deceptive advertising and punishing violators.

Advertisements That Are False or Misleading Under the 2019 Consumer Protection Act

 In today’s business environment, advertisements are essential for educating the public about the goods, services, and concepts that are on the market. Nevertheless, incorrect promises or product misrepresentations in marketing can occasionally lead to consumer confusion.

When does an advertisement start to be deceptive or false?

When a product or service is misrepresented in an advertisement, it is deemed misleading. Makes exaggerated claims regarding a product makes fanciful statements that aren’t consistent with reality.

As an illustration: a shampoo that says it can stop hair loss with just one shower. A soft drink that makes claims about its ability to give you energy and keep you safe. A face cream that, in just 365 days, promises fair skin tone.

Consequences for law: Deceptive advertising is against numerous rights as consumers, such as the freedom to choice, the right to information, and the right to be shielded from dangerous products and unethical business activities. This problem is addressed by the Consumer Protection Act of 2019, which gives customers the ability to file a complaint over deceptive or fraudulent advertising.

 Policies and implementation: The Consumer Protection Act of 2019 established the Central Consumer Protection Authority (CCPA) to oversee issues pertaining to consumer rights, unfair trade practices, and deceptive advertising. The CCPA seeks to safeguard the rights of consumers and uphold their collective interests.

Definition of Deceptive Advertising: When an advertisement presents goods, services, or concepts incorrectly, it is deemed deceptive. This includes misleading comments, inflated claims, and outrageous pledges.

 Violation of Consumer Rights: Consumer rights are violated by deceptive advertisements, including: The right to information Customers are entitled to clear and accurate information. The freedom of choice: Based on truthful advertising, consumers should make well-informed selections.

Protection against unethical business practices: Deceptive advertisements hurt customers and impede honest competition.

The 2019 Consumer Protection Act: Deceptive marketing techniques are addressed by the 2019 Consumer Protection Act. It gives customers the ability to file complaints against deceptive or fraudulent advertising. These rules are enforced by the Central Consumer Protection Authority (CCPA). Legal Repercussions: Businesses convicted of deceptive advertising may be subject to fines, penalties, or other legal acts. Customers seeking a resolution may choose to address consumer forums or register complaints with the CCPA. In conclusion, when assessing commercials, alertness and vigilance are crucial. Customers are essential in ensuring that advertising fulfill their promises.

Conclusion

The issue of false advertising is grave and can have detrimental effects on businesses and consumers alike. Businesses that engage in fraudulent advertising are effectively deceiving consumers into purchasing their goods or services by providing incorrect information. This may result in dissatisfaction, monetary loss, and a decline in confidence in the business. In summary, deceptive advertising is immoral and may have negative consequences. It is critical that businesses use truthful and open advertising strategies, and that customers exercise caution and due diligence before making purchases. We can assist in discouraging deceptive advertising and advancing a fair marketplace by holding businesses accountable for their advertising promises and helping them make educated decisions.

References

1. https://lawcorner.in/false-or-misleading-advertisements-under-consumer-protection-act-2019/

2.https://www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1832906

3.https://www.indialawoffices.com/legal-articles/misleading-advertising-violation-of-consumer-rights-and-legal-remedies-available

4. https://legal60.com/false-or-misleading-advertisements-under-consumer-protection-act-2019/

5. https://www.verdictum.in/court-updates/high-courts/calcutta-high-court-bmg-gulf-fzc-v-quippo-oil-and-gas-infrastructure-limited-section-2f-section-11-arbitration-conciliation-act-1996-dishonest-litigants-international-commercial-arbitration-1534817

6.https://www.careratings.com/upload/CompanyFiles/PR/07102022064003_Quippo_Oil_&_Gas_Infrastructure_Limited.pdf

7.https://indiankanoon.org/docfragment/122991576/?formInput=motor%20accident%20%20%20sortby%3A%20mostrecent

8.https://www.calcuttahighcourt.gov.in/Notice-Files/general-notice/10716

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Judgement Analysis Written by – K.Immey Grace

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Unscrupulous & Dishonest Litigants Hijack Court System; Get Cases Prioritised Over Civil Libertarians, Pension Seekers: Calcutta HC While Dismissing An Application U/S 11 Of A&C Act

Case Title: BMG GULF FZC Versus QUIPPO OIL AND GAS INFRASTRUCTURE LIMITED

Case No: AP-COM/327/2024 [Old case no. AP/359/2023]

Decided on: 3rd May , 2024

Quorum: The Hon’ble JUSTICE RAVI KRISHAN KAPUR

Facts of the case

An oil drilling rig was leased to Quippo Oil and Gas Infrastructure Ltd., an Indian firm with its headquarters in Kolkata, by BMG Gulf FZC, a UAE corporation. A legal disagreement resulted from BMG Gulf’s accusation that Quippo had not returned or paid for the rig after the lease was terminated. One oil and gas drilling rig and related equipment were included in the lease agreement. Following the lease termination, BMG Gulf asserted that Quippo had failed to return or pay for the rig. The parties’ disagreement resulted in a court dispute.Section 2(f) of the Arbitration & Conciliation Act, 1996 defined an international commercial arbitration, and as BMG Gulf is a firm incorporated under UAE law, the conflicts fit that description. According to the Act, the exclusive authority to designate an arbitrator is the Chief Justice of India or a delegate acting on their behalf. Utilization Section 11: A request was made in accordance with Act’s Section 11 in front of the High Court. The Calcutta High Court ruled, however, that the application was misguided and unmaintainable. The Court underlined the value of using straightforward language to improve the institution’s reputation, citing the ruling in Madura Coats Ltd. vs. Dunlop India Ltd.

Issues

1 .Was it maintainable to file an application under Section 11 of the 1996 Arbitration and Conciliation Act?

2.Which legal provisions came into play in this particular case? What claims did the appellant make?

3.What claims did the respondent make?

4.What was the Calcutta High Court’s ruling in this case?

Legal Provisions

According to section 2(f) of the Act, the court determined that the disagreements between the parties qualified as international commercial arbitrations. Under the Act, the only person who can name an arbitrator is the Chief Justice of India or a delegate acting on their behalf.The Arbitration & Conciliation Act, 1996 was reviewed by the court, with special attention to section 11. It made clear that the Act’s exclusive authority to name an arbitrator rests with the Chief Justice of India or his designee.

Appellants Contentions

BMG Gulf maintained the validity of the application in front of the High Court.As the appellant, BMG Gulf contended that the application was legitimate and maintainable, having been submitted under Section 11 of the Arbitration & Conciliation Act, 1996. They argued that the parties’ disagreements qualified as international commercial arbitrations under section 2(f) of the Act. BMG Gulf stressed that they have the right to use the appropriate legal channels to request the appointment of an arbitrator.

Respondents contention

Quippo argued that the application was not maintainable and had been designed incorrectly.India’s Kolkata is home to the respondent, Quippo Oil and Gas Infrastructure Ltd. They were parties to a lease for an oil drilling rig with BMG Gulf FZC. The respondent reportedly failed to return the equipment or make any payment after the lease was terminated. It was decided that the respondent had broken the agreement by acting in this way.

Court Analysis and Judgement

The Calcutta High Court ruled that it lacked jurisdiction to consider the Section 11 application. The Court stressed that dishonest and unscrupulous litigants shouldn’t take advantage of the system. It cited the ruling in Madura Coats Ltd. Vs. Dunlop India Ltd. And emphasized the need for straightforward communication to improve the institution’s reputation.

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Judgement Analysis Written by – K.Immey Grace

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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International Frameworks for Handling Privacy Issues In Cyber Laws:

INTRODUCTION:

Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenants on civil and Political Rights provide that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honor and reputation.

They further state that “everyone has the right to the protection of the law against such interference or attacks.” While the right to privacy under international human rights law is not absolute, any instance of interference must be provided by law and subject to a careful and critical assessment of its necessity and proportionality. In this article we will discuss about the privacy issues in cyber law and international framework in handling privacy issues.

CONCEPT OF RIGHT TO PRIVACY:

The right to privacy is central to the enjoyment and exercise of human rights online and offline. It serves as one of the foundations of a democratic society and plays a key role for the realization of a broad spectrum of human rights, including in the digital sphere, ranging from freedom of expression, freedom of association and assembly, access and enjoyment of economic and social rights. Interference with the right to privacy can also have a disproportionate impact on certain individuals and/or groups, thus exacerbating inequality and discrimination. ‘Privacy’ has been internationally regarded as a fundamental civil liberty since the 1940s. The Universal Declaration of Human Rights also talks about privacy. The 1950 European Convention on the Protection of Human Rights and Fundamental Freedoms includes a similar clause. A more modern definition of the term ‘privacy’ is “the claim of individuals, groups, or institutions to determine when, how, and to what extent information about them is communicated to others. Personal Information is generally defined as any information relating to an identified or identifiable natural person. It may be referred to as personal data, personal information, non-public personal information, etc. Examples include, Email Address, Government Identifier (e.g. PAN Number, PF account number, etc.), Account Number (Bank Account, Credit Card, etc.), Driving License Number, IP Address, Biometric Identifier, Photograph or Video Identifiable to an Individual and any other unique identifying number, characteristic or code, but these examples are not limited. With the growth of digital age, more and more personal information of consumers, citizens finds its way into massive databases held by the private sector, and the governments. Access to such data in such databases raise three social concerns that drive the issue of privacy. These include,

  • individuals’ fears about: how personal information is used or shared,
  • how it is protected.
  • who is accountable.

PRIVACY ISSUES IN CYBER LAW:

Privacy issues in cyber law refer to the challenges and concerns related to the protection of personal data and the privacy of individuals in the digital realm. These issues arise due to the widespread use of the internet, digital communication, and data processing technologies. However some of the  key privacy issues in cyber law include:

  • Data Breaches and Cybersecurity

A data breach involves the release of sensitive information. Many types of online attacks have a primary goal of causing a data breach to release information such as login credentials and personal financial data.Also includes Unauthorized access, disclosure, alteration, or destruction of personal data. Data breaches are a major security concern because sensitive data is constantly being transmitted over the Internet. This continuous transfer of information makes it possible for attackers in any location to attempt data breaches on almost any person or business they choose.

Major Challenges Includes Protecting data from cyberattacks, ensuring timely breach notifications, and mitigating the impacts of data breaches.

  • Data Collection and Consent

 The extensive collection of personal data by businesses, governments, and other entities, often without explicit user consent.

Challenges: Ensuring that consent is informed, specific, and freely given. Addressing issues related to the collection of data from minors and vulnerable populations.

  • Data Usage and Purpose Limitation:

Using personal data beyond the scope for which it was originally collected. Example. If you go to a doctor, you trust that your information will only be used to treat you and to bill you or your insurance company. The doctor may not sell your diagnosis and contact information to a pharmaceutical company, so they can market a new medicine to you. That would be an incompatible use of your data.

Challenges: Ensuring that data is used only for specified, legitimate purposes and not repurposed without additional consent.

  • Cookies and Tracking Technologies

Use of cookies and other tracking technologies to monitor online behavior, In other words, Each time a person visits a website, various information regarding the user’s activities are collected and sent to the website that created these cookies. The data collected is hence sold to the advertisers. Tracking of one’s interests, preferences, and search trends is done through this.

 Challenges: Ensuring user awareness and consent for tracking activities. Managing compliance with cookie laws and regulations.

Addressing these privacy issues requires a comprehensive legal framework, robust enforcement mechanisms, and ongoing collaboration between governments, businesses, and civil society to adapt to evolving technological landscapes and emerging threats.

INTERNATIONAL FRAMEWORK FOR HANDLING PRIVACY ISSUES:

Since 2013, the United Nations General Assembly and the Human Rights Council have adopted numerous resolutions on the right to privacy in the digital age, therefore, International frameworks for handling privacy issues in cyber law encompass various treaties, guidelines, and organizations that aim to standardize and enforce data protection and privacy standards across different jurisdictions. Here are some key components:

  • General Data Protection Regulation (GDPR)

The GDPR is the toughest security law in the world. It came into effect on May 25, 2018, and Provides comprehensive data protection and privacy for individuals within the EU and regulates the export of personal data outside the EU. GDPR has strict compliance for inter country data transfers. For example, if you are an Indian organization that collects and then transfers the personal data from EU to India, then you will have to comply with the General Data Protection Regulations. On a circumstantial basis, you might even need to enter into a Data Transfer Agreement.Its Key Features includes Consent requirements, data subject rights (e.g., right to access, right to be forgotten), data breach notifications, and hefty fines for non-compliance.

  • OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data

 Organisation for Economic Co-operation and Development (OECD),It  Provides a set of guidelines for member countries to harmonize their privacy regulations and facilitate international data flows.Key Features includes, Collection limitation, data quality, purpose specification, use limitation, security safeguards, openness, individual participation, and accountability.

Recommendations made:

  1. That Member countries take into account in their domestic legislation the principles concerning the protection of privacy and individual liberties set forth in the Guidelines contained in the Annex to this Recommendation which is an integral part thereof
  2. That Member countries endeavour to remove or avoid creating, in the name of privacy protection, unjustified obstacles to transborder flows of personal data.
  3. That Member countries co-operate in the implementation of the Guidelines set forth in the Annex
  4. That Member countries agree as soon as possible on specific procedures of consultation and co-operation for the application of these Guidelines.
  • Asia-Pacific Economic Cooperation (APEC) Privacy Framework

Region: Asia-Pacific

 A framework designed to encourage the development of consistent privacy protections across the APEC member economies.Its Key Features include Preventing harm, notice, collection limitation, uses of personal information, choice, integrity of personal information, security safeguards, access and correction, and accountability.

  • United Nations Guidelines for the Regulation of Computerized Personal Data Files

Organization: United Nations

 Provides guidelines for member states to develop policies for the protection of personal data in computerized databases.Its Key Features includes, Data quality, purpose specification, non-discrimination, security, and supervision.

  • Cross-Border Privacy Rules (CBPR) System

 Facilitates the safe transfer of personal data across borders among APEC economies.

Its Key Features includes Certification by an APEC-recognized Accountability Agent, ensuring compliance with APEC Privacy Framework standards.

  • International Conference of Data Protection and Privacy Commissioners (ICDPPC)

 ICDPPC vision is to maintain an environment in which privacy and data protection authorities around the world are able effectively to act to fulfil their mandates, both individually and in concert, through diffusion of knowledge and supportive connections. Its Key Features include Resolutions and declarations on privacy issues, collaborative efforts for regulatory convergence.

IMPACT OF INTERNATIONAL FRAMEWORK FOR PRIVACY ISSUES:

The international framework for handling privacy issues in cyber law has had significant impacts on various aspects of data protection, privacy rights, and international cooperation. These impacts are evident in regulatory harmonization, enhanced data protection practices, and increased accountability. Here are the key impacts:

  • Regulatory Harmonization

 International frameworks like the GDPR have set a high standard for data protection, influencing other regions to adopt similar regulations. Countries worldwide are updating their laws to align with these standards, leading to more consistent data protection practices globally. The GDPR, has also inspired data protection laws in countries like Brazil (LGPD), Japan (APPI), and South Korea (PIPA), promoting a global standard for privacy.

  • Enhanced Data Protection Practices

 Organizations worldwide is  required to implement stringent data protection measures, such as data minimization, privacy by design, and regular data protection impact assessments. This has improved the overall handling of personal data.

  • Strengthening Individual Rights

 Individuals now have stronger rights regarding their personal data, including the right to access, rectify, erase, and port their data. These rights empower individuals to have more control over their personal information. Also, The right to erasure, or the right to be forgotten, allows individuals to request the deletion of their data under certain conditions, enhancing personal privacy.

  • International Data Transfers:

Cross-Border Privacy Rules (CBPR): Initiatives like the APEC CBPR system promote compatible privacy protection standards among member economies, facilitating smoother cross-border data flows.

  • Increased Accountability and Enforcement:

 The establishment of data protection authorities (DPAs) and their cooperation at the international level (e.g., through the International Conference of Data Protection and Privacy Commissioners) has strengthened enforcement of privacy laws.

Penalties and Fines: Significant penalties for non-compliance, such as those under the GDPR, have incentivized organizations to prioritize data protection. These fines can be substantial, reaching up to 4% of global annual turnover.

In conclusion we can say that, the international framework for handling privacy issues in cyber law has significantly improved global data protection standards, empowered individuals with greater control over their personal data, and promoted international cooperation. However, it also presents challenges such as jurisdictional conflicts and the need to keep pace with technological advancements.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Article by:Sowmya.R

 

 

 

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Exploring Remedies for Insurance Disputes: Understanding the Legal Remedies  

 

 

Exploring Remedies for Insurance Disputes: Understanding the  Legal Remedies

ABSTRACT

Insurance disputes arise when there is a disagreement between the insured and the insurer regarding policy terms, claims, or coverage. To address these disputes, several legal remedies are available, designed to protect the interests of policyholders and ensure fair treatment by insurance companies. One primary legal remedy is filing a lawsuit. Policyholders can sue their insurer for breach of contract if the insurer denies a legitimate claim or fails to fulfill its policy obligations. Courts can award damages to compensate for the loss incurred due to the breach. In some jurisdictions, policyholders may also claim punitive damages if the insurer’s conduct is found to be particularly egregious. Another common remedy is arbitration. Many insurance policies include arbitration clauses that require disputes to be resolved through arbitration rather than litigation. Arbitration is typically faster and less formal than court proceedings, and the arbitrator’s decision is binding and enforceable. Mediation is a less adversarial alternative where a neutral third party helps both sides negotiate a mutually acceptable resolution. While mediation is not binding, it often leads to a quicker and less costly settlement. Administrative remedies are also available through state insurance departments or regulatory agencies. Policyholders can file complaints against insurers with these agencies, which can investigate and, if necessary, impose penalties or require corrective actions against the insurer. In addition, some jurisdictions provide for statutory remedies, such as the right to attorney’s fees, interest on delayed payments, or additional damages under consumer protection laws. These remedies incentivize insurers to handle claims promptly and fairly. Policyholders should also consider the possibility of class action lawsuits when numerous individuals face similar disputes with an insurer. This can be an effective way to address widespread issues and achieve collective redress. the legal remedies for insurance disputes include litigation, arbitration, mediation, administrative complaints, and statutory protections. These mechanisms aim to ensure that policyholders receive the benefits they are entitled to and that insurance companies adhere to fair practices.

KEYWORDS –

Insurance Disputes, Legal Remedies, Claim Denial, Breach of Contract, Bad Faith, Arbitration, Mediation, Litigation, Insurance Claim Appeal, Policyholder Rights, Declaratory Judgment, Consumer Protection Laws, Regulatory Complaint Punitive Damages, Compensatory Damages, Reformation, Rescission, Insurance Fraud, Coverage Dispute, Settlement Negotiation, Class Action Lawsuit, Policy Interpretation, Subrogation, Equitable Relief, Dispute Resolution, Clause Notice of Loss, Proof of Loss, Legal Counsel, Insurance Commissioner, State Insurance Department.

 

INTRODUCTION

In India, insurance is provided in the form of an indemnity agreement between the insurance company and the client. The majority of insurance disputes are often civil, but they can sometimes be criminal in nature because they Centre on a contractual term and how it should be interpreted, as well as the coverage’s extent. Insurance may be effectively viewed as a social tool that functions with other social structures to diminish the financial risk that might result from the loss of life or property. It is a tool that aggregates enough exposure units so that the sum of their individual losses may be predicted. In order to guarantee the recovery of a significant unpredictable financial loss which may happen to him owing to the occurrence of some specified uncertain event, the insured person willingly agrees to incur a little financial loss i.e. the regular payment of the premium amount. Today, this action is seen as a crucial component of a person’s effort toward prudent fiscal planning and risk mitigation. In India, the rate of insurance penetration is among the world’s lowest, and almost 80% of the population lacks life insurance. There are 57 insurance companies in the Indian insurance market; 24 are engaged in the life insurance sector, and 34 are non-life insurance companies. LIC is the only company in the public sector that provides life insurance. In the non-life insurance business, there have been 6 public sector insurers. In addition to these, General Insurance Corporation of India is the only national reinsurer (GIC Re). Agents (corporate and individual), brokers, surveyors, and third-party administrators handling health insurance claims are other market participants in India. The size of the insurance market in India is enormous, and it is expanding at a speed of 15-20 per cent every year. The Insurance Act of 1938, as revised from time to time, and the Insurance Regulatory and Development Authority Act of 1999, which created IRDA, the statutory supervisor of the market, are the main laws that govern the insurance industry. An important turning point in India’s history of insurance regulations was the creation of the IRDA. The purpose of this Act is to both guarantee the interests of the insured as stated in its preamble and to encourage the industry’s orderly growth. In fact, these two pieces of legislation have established the legal framework under which the insurance sector must operate going forward. Other organizations and self-regulatory bodies play important roles in the implementation of this fundamental legislative framework, in addition to IRDA.

Insurance Litigation Process in India

India does not use the jury system. The judge decides on all claims, and the norms of pleading and evidence are fairly similar to those used in other countries. Most insurance plans have provisions addressing venue and the contract governing law. The clause which specifies the courts that will have the authority to resolve any disagreements that might develop with the policy. However, since parties cannot exclude the jurisdiction of a court with territorial jurisdiction and grant the same to a court without it, any court with territorial jurisdiction generally can hear a case. The details regarding the policy’s or contract’s relevant and governing law are provided in the governing law clause***. Foreign law cannot be chosen as the policies governing legislation by two Indian parties. Indian courts can resolve any argument relating to how to interpret the jurisdiction and controlling law provision. Section 44-A of CPC 1908, when read in conjunction with Section 13, governs the acceptance and enforcement of foreign judgements and decrees in India. In the case of “reciprocating territories” or other territories, a foreign judgment that is conclusive under Section 13 of the Code may be implemented by instating execution proceedings under Section 44-A read with Order XXI of the CPC, 1908, or by instituting a civil suit on the judgment. If the insurance does not contain a jurisdiction clause, the issue may be decided by any court to whom jurisdiction has been granted in accordance with the Code of Civil Procedure, 1908. The civil court or consumer court in which the problem is determined relies upon the cost of the dispute and the geographical regulations of the defendant’s coverage company’s office, in which the reason of motion for the dispute arose. Both civil courts and consumer forums have territorial and pecuniary jurisdiction.

Legal Remedies Available in Case of Insurance Disputes

Insurance disputes can arise for a variety of reasons, including claim denials, delayed payments, underpayments, and policy cancellations. When such disputes occur, policyholders have several legal remedies at their disposal. This article outlines the primary legal avenues available to individuals and businesses facing insurance disputes:

  1. Reviewing the Insurance Policy

Before taking any legal action, policyholders should thoroughly review their insurance policy. Understanding the terms, conditions, and exclusions is crucial, as these documents serve as the foundation for resolving disputes. In many cases, disputes arise from misunderstandings or misinterpretations of policy language.

  1. Internal Appeals Process

Most insurance companies have an internal appeals process designed to resolve disputes without litigation. Policyholders should take advantage of this process by submitting a formal appeal to the insurer, including all relevant documentation and evidence supporting their claim. This step is often a prerequisite before pursuing external legal remedies.

  1. State Insurance Department Complaints

If the internal appeals process does not yield a satisfactory result, policyholders can file a complaint with their state’s insurance department. State insurance regulators oversee insurance companies and enforce compliance with state laws and regulations. They can investigate complaints, mediate disputes, and sometimes even impose penalties on insurers for unfair practices.

  1. Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution methods, such as mediation and arbitration, offer a less formal and often quicker way to resolve insurance disputes compared to court litigation.

  1. Mediation: This involves a neutral third-party mediator who facilitates negotiations between the policyholder and the insurer to reach a mutually acceptable resolution. Mediation is non-binding, meaning either party can still pursue litigation if the mediation fails.
  1. Arbitration: In arbitration, a neutral arbitrator hears evidence and arguments from both sides and then makes a binding decision. Arbitration can be quicker and less expensive than court proceedings, but the parties typically must abide by the arbitrator’s decision.
  2. Litigation

When all other avenues fail, policyholders may file a lawsuit against their insurance company. Litigation is often the last resort due to its time-consuming and costly nature. However, it can be necessary for resolving complex disputes or when significant amounts of money are involved.

  1. Breach of Contract: The most common legal basis for an insurance dispute lawsuit is breach of contract. The policyholder must prove that the insurer failed to fulfill its obligations under the policy terms.
  2. Bad Faith Claims: If an insurer’s actions are particularly egregious, policyholders can sue for bad faith. Bad faith claims arise when insurers deny benefits without a reasonable basis, fail to investigate claims properly, or unreasonably delay payments. Successful bad faith claims can result in the policyholder receiving compensation beyond the original claim amount, including punitive damages.
  3. Declaratory Judgment: In some cases, policyholders seek a declaratory judgment from the court to interpret the insurance policy’s terms. This can clarify the rights and obligations of both parties without waiting for an actual breach to occur.
  4. Class Action Lawsuits

In situations where multiple policyholders are affected by similar issues with an insurer, a class action lawsuit may be appropriate. Class actions can be an efficient way for individuals with smaller claims to pool resources and challenge large insurance companies. Successful class actions can lead to significant settlements or changes in the insurer’s practices.

  1. Seeking Assistance from Insurance Attorneys

Navigating insurance disputes can be complex, and legal representation can be invaluable. Insurance attorneys specialize in these types of disputes and can offer expert advice, negotiate with insurers, and represent policyholders in court if necessary.

Limitation Period for Filing an Insurance Claim:

The way of evaluating the limitation period for insurance claims is given under Article 44(b) of the Limitation Act 1963, which expresses that time is to be determined from ‘the date of the event causing the misfortune, or where the case on the arrangement is denied either part of the way or completely, the date of such rebuttal’. The recommended limitation period for filing a case in the civil court or mediation is three years, while the limited time frame for documenting a case in the consumer court is two years.

Judicial Interpretation

  1. Janina Construction Company v. The Oriental Insurance Company Limited and Ors. I (2022) CPJ119(SC)

Policy type- Motor Insurance Policy

The insurer repudiated the insured’s claim in toto on the ground that there was a delay in informing the insurance company regarding the theft of the vehicle. The condition in question mandated the insured to give immediate notice to the insurer of the accidental loss/damage but was given by the insured after a lapse of 5 months from the loss. Relying on Gur Shinder Singh v. Shriram General Insurance Co. Ltd. and Anr. 2020 (11) SCC 612, the Supreme Court observed since the FIR was lodged immediately on the next day of the occurrence of theft of the vehicle by the insured and the vehicle could not be traced out, a delay of about five months in informing and lodging the claim with the insurer would not be fatal. The Court held that when the insurer has repudiated the claim only on the ground of delay, and the claim of the insured was not found to be not genuine, the insurer’s repudiation could not be sustained.

  1. Jacob Punnen and Ors. v. United India Insurance Co. Ltd. I (2022) CPJ87(SC)

Policy type- Medical Insurance Policy

The Supreme Court rejected the insurer’s argument that the consumer was under an obligation to inquire about the terms of the policy, and any changes that might have been introduced, in the standard terms. The state of the law as observed was that an insurer was under a duty to disclose any alteration in the terms of the contract of insurance, at the formation stage or as in this case, at the stage of renewal. The insurer cannot be heard to say that the insured was under an obligation to satisfy itself, if a new term had been introduced. In the facts of the case, the Court observed that medical or health insurance cover becomes crucial with advancing age; the policy holder is more likely to need cover; therefore, if there are freshly introduced limitations of liability, the insured may, if advised properly, and in a position to afford it, seek greater coverage, or seek a different kind of policy. Further, most policies – health and medical insurance policies being no exception, are in standard form. One who seeks coverage of a life policy/a personal risk, such as accident or health policy has little choice but to accept the offer of certain standard term contracts. Therefore, relying on the IRDA (Health Insurance) Regulations, 2016, the Court observed that it is the insurer’s obligation to inform every policy holder, about any important changes that would affect her or his choice of product.

3.Khatema Fibers Ltd. v. New India Assurance Company Ltd. and Ors. IV (2021) CPJ1(SC)

Policy type- Standard Fire and Special Perils

In the instant case, the Supreme Court observed that in cases where the insurance company admitted the insured’s claim, to the extent of the loss as assessed by the surveyor, the jurisdiction of the special forum constituted under the Consumer Protection Act, 1986 is limited. To establish deficiency, the insured should be able to establish, that the surveyor did not comply with the code of conduct in respect of his duties, responsibilities and other professional requirements as specified by the Regulations made under the Insurance Act, 1938. The Court finally held that a Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on ad hocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.

4.Reliance Life Insurance v. Rekhaben Nareshbhai Rathod – Supreme Court litigation.

This case was about a basic principle of insurance law: if the insured does not reveal important information when signing an insurance contract, the insurer can reject policy claims.

CONCLUSION

In the complex landscape of insurance, disputes are an unfortunate but inevitable reality. These disagreements can arise from various sources, including coverage denials, claim delays, disputes over policy interpretation, and disagreements regarding the extent of damages. When these conflicts emerge, policyholders often find themselves in a vulnerable position, grappling with financial strain, emotional stress, and uncertainty about their rights and recourse. Fortunately, the legal system provides avenues for resolution in the event of insurance disputes, offering a range of remedies designed to protect policyholders and ensure fair treatment. These remedies serve as crucial safeguards, balancing the interests of insurers and insured parties while upholding the principles of justice and accountability. One of the primary legal remedies available to policyholders facing insurance disputes is litigation. Through civil lawsuits, aggrieved parties can seek judicial intervention to enforce the terms of their insurance policies, challenge wrongful denials or delays, and pursue compensation for damages incurred. Litigation offers a formalized process for presenting evidence, arguing legal interpretations, and obtaining a binding resolution from a court of law. While litigation can be time-consuming, costly, and emotionally draining, it remains a potent tool for holding insurers accountable and securing just outcomes. Alternative dispute resolution mechanisms also play a Crucial role in resolving insurance disputes outside of traditional courtroom proceedings. Mediation, arbitration, and negotiation offer policyholders and insurers the opportunity to engage in constructive dialogue, facilitated by neutral third parties, with the goal of reaching mutually acceptable settlements. These approaches can offer advantages such as faster resolution times, reduced expenses, and greater flexibility in crafting creative solutions tailored to the specific circumstances of each case. The legal landscape offers a diverse array of remedies for policyholders grappling with insurance disputes. From litigation and alternative dispute resolution to regulatory oversight and contractual mechanisms, these remedies serve as essential safeguards, ensuring that insured parties have access to fair treatment, timely resolution, and meaningful recourse when conflicts arise. By understanding their rights and options under the law, policyholders can navigate insurance disputes with confidence, secure in the knowledge that the legal system stands ready to uphold their interests and enforce accountability within the insurance industry.

Written By: Hari Raghava JP

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From “Relevant” to “Global” Turnover: Analyzing Penalty Under the Competition (Amendment) Act, 2023

 ABSTRACT

The Competition (Amendment) Act of 2023 marks a important shift in penalty calculations, transitioning from a focus on “relevant” turnover to a broader consideration of “global” turnover. This article delves into the implications of this transition, analyzing its impact on businesses, the grounds behind the change, and its legal and regulatory implications. By examining international perspectives, case studies, and the Act’s effectiveness, this article provides valuable insights into the evolving landscape of competition law and enforcement. From strategic adaptations for businesses to broader implications for global competition policy, this analysis offers a comprehensive understanding of the shift from “relevant” to “global” turnover in penalty consideration under the Competition Act.

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INTRODUCTION

The Competition (Amendment) Act of 2023 represents a significant milestone in the evolution of competition law and enforcement. Among its many amendments, perhaps none are more consequential than the shift in the calculation of penalties—from a traditional dependence on “relevant” turnover to a broader consideration of “global” turnover. This transition has profound implications for businesses, regulators, and the broader landscape of competition policy. The Competition Commission of Indian, CCI, now has the power to penalise an enterprise based on a global turnover derived from all products and services, following to the Amendment Act.

The shift from “relevant” to “global” turnover in penalty calculations represents a significant departure in competition law and enforcement. Previously, penalties were based solely on turnover directly related to the infringing conduct, potentially resulting in underestimation of the economic impact of anti-competitive behavior.  The settled position in law, as determined in the landmark judgement of  Excel Crop Care Ltd. v. CCI[1], in 2017, considered the scope of penalty from the lens of principles of equity, rationality, and proportionality. The introduction of “global” turnover considers the entity’s overall economic power and reach, ensuring penalties are more proportionate and reflective of market influence. This shift acknowledges the interconnected nature of modern markets, where anti-competitive practices often transcend national boundaries. While presenting challenges for businesses with global operations, such as increased scrutiny and potentially higher penalties, it also offers greater clarity and predictability in compliance efforts. Ultimately, the transition to “global” turnover aims to promote a more harmonized and effective approach to competition enforcement, promoting fairness and integrity in competitive markets.

 Understanding the Competition (Amendment) Act, 2023 :

Prior to the 2023 amendment, the Competition Commission of India CCI imposed a fine based penalty on the ”relevant turnover” of the revenue generated infringing products and services. By avoiding absurdity and irrationality, this has been done in order to interpret the legislation. The Competition Commission of India (CCI) had the authority to charge penalties up to 10% of the average turnover from the previous three financial years.

The Act included provisions aimed at strengthening consumer protection measures, such as measures to address unfair trade practices, misleading advertising, or deceptive pricing strategies. The shift offers greater clarity and predictability in compliance efforts, as businesses can anticipate penalties based on their global turnover rather than specific transactions or activities.

LEGAL FRAMEWORK

The Competition (Amendment) Act, 2023, introduced several key provisions to facilitate the transition from “relevant” to “global” turnover in penalty calculation. One notable amendment is the modification of Section 27 of the Competition Act, 2002, which deals with the determination of penalties for anti-competitive conduct. The amended Section 27 now explicitly mandates the consideration of an entity’s global turnover in determining the quantum of penalties imposed by the Competition Commission of India (CCI).

Additionally, the amended legislation provides clarity on the definition of “global turnover” and outlines the methodology for its calculation. Section 2(o) of the Competition Act, 2002, now defines “global turnover” as the total revenue generated by an entity from all its business activities worldwide, including revenue from subsidiaries, affiliates, and other related entities. This definition encompasses revenue from product sales, service contracts, licensing agreements, royalties, and other income streams derived from business operations.

CASE LAWS:

In the case of Competition Commission of India v. Google India Pvt. Ltd[2], Google India being found guilty of anti-competitive conduct by the CCI. The Commission found that Google had infringed a number of provisions in Article 4(2) of the Act. Therefore, for failing to comply with Section 4 of the Act, a fine amounting to 1337.76 billion rupees has been imposed on Google. The Commission imposed substantial penalties on Google India based on its global turnover, reflecting the severity of the company’s violations and its economic power in the digital advertising market in India.

The primary issue in this case revolved around Google India’s alleged abuse of its dominant position in the digital advertising market in India and its restrictive practices regarding third-party advertising platforms constituted anti-competitive conduct in violation of India’s competition laws.

The Google India case serves as a landmark example of the application of the transition from “relevant” to “global” turnover penalties under the Competition (Amendment) Act, 2023 in India. It highlights the challenges faced by multinational corporations operating in India in adapting to the new penalty calculation methodology and underscores the importance of effective competition law enforcement in safeguarding fair competition and consumer welfare in the digital economy.

CRITICAL ANALYSIS

The transition to “global” turnover has significant implications for businesses. Entities with substantial global operations may face keen analysis and potentially higher penalties under the new calculation methodology. However, the shift also offers greater clarity and predictability in compliance efforts, enabling businesses to adopt more robust risk management strategies. Calculating penalties based on “global” turnover introduces complexity and compliance burdens for businesses, particularly those with multinational operations. Determining which components of global turnover are relevant and accurately assessing their contribution to the infringing conduct can be challenging and resource-intensive. This complexity may disproportionately affect smaller businesses with limited resources, potentially creating barriers to market entry and competition. Transparency and predictability are essential elements of an effective competition law regime. Businesses and stakeholders need clarity on how penalties are calculated and applied to ensure compliance

The evolution to “global” turnover aligns with international trends in competition law enforcement. Many jurisdictions are adopting similar approaches to address the challenges of regulating global markets and combating anti-competitive behavior across borders.

CONCLUSION

The transition from “relevant” to “global” turnover in penalty calculation under the Competition (Amendment) Act, 2023 represents a significant evolution in competition law and enforcement. By incorporating an entity’s global turnover into the penalty assessment process, the Act aims to promote fairness, transparency, and effectiveness in competition enforcement. However, the success of this transition depends on robust enforcement mechanisms, clear regulatory guidance, and effective international cooperation. As businesses and regulators navigate the complexities of the new penalty calculation methodology, a nuanced understanding of its implications is essential for promoting competition and consumer welfare in the global marketplace.

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Written by- Antara Ghosh

[1] https://cci.gov.in/images/antitrustorder/en/0220201652426478.

[2] https://indiankanoon.org/doc/54000789

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