LIC fined for denying insurance claim on acquiring permanent disability on the grounds that Claimant was capable of earning his wages, despite disability

31 Jan 2009 |  SCDRC, Delhi

Consumer Case; Acquired Permanent Disability of 69%  as a result of accident; Claim rejected on grounds that claimant hasn't lost his wage earning capacity; claimant's continue to work in Delhi Police despite disability under proection of Persons with Disabilities Act 1995.

Question of Law: Can LIC deny insurance claim of having acquired disability as a result of accident  on the ground that claimant was capable of earning wages, since he was allowed to continue working with Delhi Police for compassionate reasons.  

The state consumer commission has hit out at Life Insurance Corporation of India (LIC) for rejecting the rightful claim of a poor consumer on a flimsy ground. LIC denied the claim of a disabled police constable on the grounds that he had not suffered permanent disability. Disagreeing with this, the commission has asked LIC to pay Neeraj Kumar his entitled claim that covers permanent disability benefits to the tune of Rs 1.5 lakh and a compensation of Rs 25,000.

Background of the case

Neeraj Kumar, a resident of Burari, suffered an electric shock following which his right arm below the elbow had to be amputated. After obtaining a permanent disability certificate from doctors of Safdarjung Hospital, he filed a claim with the company. Despite the doctors assessing permanent disability to the extent of 69%, LIC rejected his claim on the ground that he was capable of earning wages, since he was allowed to continue working with Delhi Police for compassionate reasons.

Order of the Commission

The commission, headed by Justice J D Kapoor, observed that had the consumer applied for the post of constable now, he would not have got the job. Therefore, to reject such a claim on such a premise was nothing but logic chopping, oppressive and malafide interpretation of beneficial contract, the commission observed.

"Merely because a person with permanent and total disability continues to be employed on compassionate basis does not mean that he has forfeited the benefit of permanent disability arising from the insurance policy,'' Kapoor added.

Justice Kapoor also asked the insurance sector not to adopt such an approach and be consumer friendly. The consumer should not be made to run from pillar to post or else they should be ready for the consequence of recovery of compensation amount from the salary of the officials, he said.

Source: Times of India

Explanation of the Education Department on creating Special Schools for Disabled Children

With that all the confusion over the newspaper report on the decision of the Government to open special schools for the disabled children in Delhi that I referred to in my post dated 22 Dec 08, Here is the clarification by the Education Secretary Ms. Reena Ray herself on the plans of Education Department to tackle the education needs of Children with diverse disabilities.

In nutshell, for me, the model schools will be a new name to the special school only. However, with one such school in each district which Govt. may call a model school and I would say it a Special School still, the educational needs of the children will be better looked after. Many children specially with visual and hearing disability do learn better in exclusive set ups for the infrastructure is designed for them and more individualised attention is feasible. However, they face socialisation problems while their social & economic rehabilitation takes place and society is not better prepared for accepting them as a part of them.

Here is the clarification from Education Department on that goof up:

regards
Subhash Chandra Vashishth

Govt schools to make room for special children

Aneesha MathurPosted: Jan 02, 2009 at 0131 hrs IST

New Delhi As an extension of the Right to Education and Integrated Education schemes of the Sarva Shiksha Abhiyan, 24 government schools in Delhi will be turned into “model schools” implementing policies regarding the mainstreaming of children with physical and learning disabilities. These schools will serve as “laboratories” and help solve problems of inclusive education through the identification of problem areas, and through innovative solutions that will allow differently abled children to study in mainstream schools using to the CBSE syllabus.

Twelve schools belonging to the Directorate of Education (DoE), and a similar number of schools run by the MCD, will be part of this project, Education Secretary Rina Ray said. “It’s not possible to blindly follow the model of education followed in the US or Europe. This will allow us to see what is required in the specific environment of Delhi government schools,” she
said. One DoE and MCD school in each education district will be developed as a model school.
The Sarva Shiksha Abhiyan’s Delhi office has taken out an advertisement inviting 50 teachers for children with special needs, including visual and hearing-impaired children. The teachers will be posted in these model schools to enable the DoE to work out guidelines for expanding the integrated education model.

In 2008, there were 10,065 differently abled children enrolled in 750 Delhi government schools. Most have some physical disability or visual or auditory impairment. Some also have learning disabilities like dyslexia. “Most schools today have some number of children with disabilities but there are no fixed methods to teach them. There is too much diversity in Delhi and too little awareness or expertise as far as dealing with these children is concerned,” Kanta Kapoor, coordinator, District Southwest, Integrated Education for Disabled Children, said.

The model schools will have both the infrastructure and the trained teachers required to integrate the children with disabilities. “We are in talks with the Vinyas Foundation to create Building as Learning Aid (Bala) concepts for children with visual impairment or learning disability. We are also working out retrofitting and renovation plans to introduce ramps,
wider doors, specially designed toilets etc, for these children,” Ray said.

NGOs such as the Spastic Society of North India, Muskaan, Aastha etc, have also been involved in the project for spreading awareness and contribution of expertise to the scheme. The Vinyas Foundation, which introduced the Bala idea, has been roped in to create more such aids for these children. “We are thinking about getting tiles that indicate directions to blind students, painting scenes out of stories on walls so that children with hearing impairment can see the story that they are not able to hear,” the Education Secretary said.Under the proposed plan, all teachers and students in these schools will be sensitised to the needs of the differently abled students, through workshops and life skills education programmes. Two teachers from every school under the DoE have already been identified as in-charge of the special education programme.
Workshops were held last year to train them in methods to integrate children with disabilities. Sensitisation drives were also organised across schools in December to create awareness about the problems faced by differently abled children.

The “buddy support system”, where students act as the support group of a differently abled child, was introduced in Delhi schools in 2006.

Source: http://www.expressindia.com/latest-news/govt-schools-to-make-room-for-special-children/405651/

DLU East - a unit of Shishu Sarothi explores success in rights through courts

Dear Friends,

Shishu Sarothi through its unit Disability Legislation Unit South has been a front runner in taking up disability rights issues in the north east region of India. In a recent PIL filed before the Gauhati High Court bearing No. Writ Petition(Civil) 34/2008, they have obtained favourable orders from the Division Bench of the Hon'ble Chief Justice J Chelameswar and Hon'ble Mr.Justice A Potsangham on December 17, 2008.

In the instant case, the Director of Medical Education, Assam issued a notice for admission to paramedical courses in the three medical courses to fill up 400 seats among 12 different paramedical courses.

In the impugned admission notice the Director changed the definition of disability to suit their own whims and fancies. To fill up 3% quota of disabled they choose "only the persons with locomotor disability of the lower limbs and having 50 to 70 per cent of disability". This by any imagination was a fun of the law of the land and an attempt to throttle the spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act-1995 and the Constitution of India.

Here is the coverage that might interest you:

Assam Times: Where executive fails, Judiciary prevails

Where executive fails, Judiciary prevails

Daynath Singh on 31 December, 2008 

The greatest challenges facing persons with disabilities lie in the areas of access, education and employment, said Ms Anju Talukdar, coordinator, Disability Law Unit, NE. Addressing the media persons at Guwahati Press Club on December 31, 2008, she expressed concern over the physical barriers in the environment coupled with societal prejudice severely restrict and often completely block available opportunities. One of the laws enacted to ensure the protection of persons with disabilities in India is the 'Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act 1995. Unfortunately, even with its many beneficial provisions, the said Act has failed to achieve its objectives due to poor implementation and in many cases non-implementation of its provisions. This was simply demonstrated in a recent case involving admissions to seats in paramedical courses in the three medical colleges of Assam.

On May 12, last an Educational Notice was issued by the Director of Medical Education, Assam, for admission to paramedical courses in the three medical courses. A total of 400 seats were to be filled up among 12 different paramedical courses. The Act guarantees certain rights to persons with disabilities including the right spelt out in Section 39 which says "all educational institutions to reserve seats for persons with disabilities. All government educational institutions and other educational institutions receiving aid from the Government shall reserve not less than three percent seats for persons with disabilities."

The advertisement issued by the Director of Medical Education provided for three per cent reservation for persons with disabilities, but the definition of who is a person with disability was as unique as it was inaccurate. It was also clearly contrary to the law, she said. Under the Persons with Disabilities Act 'person with disability' means a person with 40 per cent or more of blindness, low vision, leprosy-cured, hearing impairment, locomotors disability, including cerebral palsy, mental retardation and mental illness.

This very clearly definition of disability as spelt out by the law was not enough for the authorities. They came up with their own definition and as per the admission notice, three percent reservation quota would be made available for persons with disabilities, but 'only the persons with locomotors disability of the lower limbs and having 50 to 70 per cent of disability shall be eligible for this quota.'

This was clearly against the provisions of the Act. Anju Talukdar and Rakhi Sirauthia Choudhury of the Disability Law Unit, Northeast challenged this educational notice in the Gauhati High Court in a Public Interest Litigation, which was numbered as PIL 34/2008. This Unit is a project of Shishu Sarothi and fights for the rights of persons with disabilities by creating awareness on the various disability laws, advocating disabled friendly policies and facilitating litigation in case of violation of rights.

The case was argued on behalf of the petitions by their counsel, Siddharth Shankar Dey, renowned advocate of the Gauhati High Court and strong defender of disability rights. On June 16, 2008 the petition was admitted by the court and as an interim measure, the authorities were directed to receive applications from all categories of persons with disabilities. On June 27, the Director of Medical Education issued a corrigendum inviting applications from all categories of persons with disabilities.

The Division Bench of the Hon'ble Chief Justice J Chelameswar and Hon'ble Mr. Justice A Potsangham on December 17 last allowed the petition directing that three percent reservation for persons with disabilities would be available for all categories of disabilities. The High Court rejected the argument of the State of Assam that restricting the reservation to only the persons with locomotors disability of the lower limbs and having 50 to 70 percent of disability was justified under the guidelines of the Medical council of India. Interestingly, the documents relied on by the State of Assam itself showed that the Medical Council of India had prescribed guidelines only with reference to admissions to MBBS and PG medicine courses. No mention was made of paramedical courses. Further, there was nothing in the law to exclude persons with other disabilities from qualifying on merit to the paramedical courses. So no such exclusion can be made for seats reserved for persons with disabilities.

The decision of the Gauhati High Court is a huge encouragement to the disability sector –not just in Assam, but the entire Northeast and in fact the whole country. It is often seen that government authorities neglect and ignore their obligations under the law. There has often been no other recourse available but to approach the courts to secure the rights and interests of the persons with disabilities. While the executive continues to pose obstacles in the path, it is a huge relief that the judiciary has consistently proved a bastion and bulwark in defense of persons with disabilities, said Ms Talukdar.

- See more at: http://www.assamtimes.org/node/2394#sthash.MPaysaBk.dpuf

Should we go back to Creating New Special Schools or Inclusive Schools?

Dear Friends,

Many of us have been reading UNCRPD day in an day out to understand its ramifications, impact on the conditions of the disabled people in India. We do believe it to be the only mantra to bring an equalitarian society so far as the disabled people of this country are concerned. The major thrust of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act-1995 and now UNCRPD (UN Convention on the Rights of Persons with Disabilities)- 2006 has been INCLUSION.

So many of us have started practicing it too! AADI (Action for Ability Development & Inclusion) presents a remarkable model of inclusion though it is other way round. i.e. while they moved from Special School to an Inclusive School, we are expecting the Government Schools and other Schools to move from General Schools to Inclusive Schools. There has been lot of brainstorming on the subject and on issues that one needs to deal with while implementing the true inclusion.

However, during this transition period from Segregation to Inclusion, we need to tread cautiously! Yes, it is true that while such a system is being put in place, we should not close down the special schools. However, our larger aim should be to mainstream the education. The special schools might co-exist to meet the needs of those who might not benefit or prefer the mainstream or inclusive education for various reasons.

However, when such questions go before the Court of Law, A judge with a good conscience and intentions might not be able to do justice for they may not be sufficiently exposed to the philosophy of inclusion and UNCRPD. Also, in this transition stage, many of us may not have clear answers to all issues which might work across the dimension and diversity of learners around.

In such a situation, the most likely fall out may be that we might see Orders /judgements from the Court of law that may put the trend in the reverse order. I think that this is what has occurred in the instant case in the Delhi High Court "Social Jurist Vs. Govt. of NCT of Delhi" where the Court seems to be ordering for creating Special Schools for the Disabled Children!! I feel there is an urgent need to assist the Court at this juncture to arrive at a more cogent decision in the matter which is in consonance with the UNCRPD, The PWD Act-1995 and the philosophy of Inclusion!

Here is the news items that appears today in Mail Today :


Govt to open special schools for disabled kids By
Praveen Kumar

In New Delhi ABOUT two lakh disabled children in the Capital can look forward to special schools with state- of- the- art facilities from the 2009 academic session.

The decision comes after the Delhi High Court criticised the Delhi government, the New Delhi Municipal Corporation ( NDMC), and the Municipal Corporation of Delhi ( MCD) for not doing enough for children with special needs.

The authorities have assured the court that they will open dedicated schools for physically challenged students.

The Delhi High Court had constituted a committee in October to look into issues related to disabled children and nonavailability of specially trained teachers for disabled students in schools run by the MCD and Delhi government. In its reply, the committee said the government would build 11 schools, the MCD 22 and the NDMC one. They would be named Rajkiya Samakit Vidyalaya , it said. The committee also informed the court that the proposal to build these schools was under way and the staff hired would be trained to cope with the needs of disabled students.

According to the latest figures, only 8,000 disabled students study in Delhi government schools, while 2,000 study in MCD schools. Besides, the schools have no special facilities for disabled children.

The response of the authorities came after a PIL filed by Social Jurists, an NGO, through counsel Ashok Aggrawal. The PIL said children suffering from blindness, hearing impairment and mental disability were deprived of the right to education.

Aggrawal said a three- member team had visited various primary schools run by the MCD and Delhi government. The teachers had admitted their ignorance about teaching disabled children.
“ The failure on the part of authorities to provide quality education, attention and care to children with disabilities amounts to violation of fundamental rights,” the petition said. Seeking a barrier- free environment in schools, the lawyer said the government should provide special toilets and ramps for students with disabilities.

The next hearing is on February 11, 2009.

http://mailtoday.in/23122008/epaperhome.aspx

Why step-motherly treatment to Visually Impaired in Jobs?

Dear Friends,

From a long time, the Visually Disabled sector has been a victim of silent discrimination in the process of reservations in the jobs identified for them. The posts have been either not reserved for them to the mandatory number and where reserved, they were kept vacant on some or the other pretext. Many RTI replies to this effect revealed this truth but Departments failed to react on representations and petitions from the user groups and their organisation.

Over and above the Memorandum from the DOPT reducing the definition of the backlog and allowing the old vacancies to lapse further created a grim situation.

In such a scenario, the judgement in the present PIL has come as a relief to the disability sector. We hope that the Government Departments shall conform to the time period set by the court and fill in the vacancies.

I shall post the original judgement for your information in due course of time.

Here is the news on the Judgement by the Delhi High Court

Reserve jobs for visually-impaired as per law, Delhi High Court tells Centre New Delhi, Dec 22:

Accepting a plea filed by a group of visually-impaired persons, the Delhi High Court has asked the Union government to comply with the provisions of the Disabilities Act and reserve jobs for such candidates in the government and PSUs.

In a recent judgement, a Division Bench of Justice A P Shah and Justice S Muralidhar directed the Centre to fully comply with the Disabilities Act, according to which 3 percent jobs should be reserved for disabled persons, including 1 percent for the visually-impaired candidates. Giving a

deadline to the Central government till 2010 to fill up the job backlog; the Bench set up a committee to monitor that the court order was complied with by the government.

However, the court authorised the committee to appoint the non-disabled persons in exceptional cases.

The court order followed a PIL filed by National Blind Federation through advocate S K Rungta accusing the government of adopting step-motherly attitude towards the disabled. He submitted before the court that job reservation was given to physically challenged and hearing impaired persons in government establishments but visually weak or blind persons were deprived from their entitlement of 1 out of 3 percent under the Disabilities Act.

Bureau Report

http://www.zeenews.com/nation/2008-12-23/493155news.html