Delhi High Court- Extra Premium or Reduced Insurance Cover, both discriminatory against Disabled [Judgement Included]

Dear Colleagues,

Refer to my earlier posts on 02 Sep 2009, 09 October 2009 and 21 January 2010 on the issue since the matter has been pending before the Delhi High Court. There were several occasions that the Court was about to pronounce judgement however, Union of India bought time on each hearing with a promise that they are amending the rules to remove the discriminatory practices against the persons with disabilities (read employees) in insurance sector and dragged the case to 2012. However, at the end, the court got infuriated the way the Government turned turtle on their own statement before the court and tried to justify the discrimination of extra premium.

The brief background of the case

In the instant case, the petitioner Mr. Vikas Gupta, through a public interest litigation, filed by Mr. Pankaj Sinha, a lawyer with visual impairment from Human Rights Law Network, brought to the notice of the court that the Postal Life Insurance Policy issued for the benefit of government employees was inherently discriminatory against employees with disabilities. It allowed the maximum sum insured for employees with disabilities to only Rs. 1 lac while their non-disabled counterparts enjoyed a maximum insurance cover of 5 lacs. Not only this, the employees with disabilities were paying a higher premium than those without disabilities.

Thus through this litigation, the petitioner sought parity in the maximum sum assured and premium charged from the employees with disabilities in comparison to the employees without disabilities. When the matter came up for hearing and notice was issued, Postal Life insurance realizing their follies, issued a notification during pendency of the petition raising the maximum insurance coverage for employees with disabilities to that of non-disabled employees i.e. up to Rs. 5 lakhs. However, they continued to charge extra premium from the employees with disabilities.

The petitioner argued that the extra premium charged was without any scientific justification. When the court sought explanation from PLIC, the Additional Solicitor General stated before the court that they do not discriminate on the basis of disability and there is no extra premium charged.

However, later Union of India turned turtle on their statement and justified the extra premium from the employees on the blanket ground of disabilities and argued that the Insurance Policy was a contract between the insurer and the insured. That in the insurance business a pool was created through contributions made by persons seeking to protect themselves from common risk. Premium was collected by insurance companies which also act as trustee to the pool. Any loss to the insured in case of happening of an uncertain event was paid out of this pool. It worked on the principle of risk sharing. Therefore, prejudice would be caused to the normal insured persons in case of any casualty of the disabled persons. As disabled persons are more prone to accidental risks as compared to normal persons and the amount which is to be paid to the family of the deceased would be paid out of the same pool.  Hence, it is justified to charge extra premium from the employees with disabilities. They also argued that extra premium payable by the disabled person is marginally different from the premium payable by normal persons. Further they justified the extra premium on the ground that the extent of handicap differs from one person to another and that they would continue to charge differential premium decided upon the health profile of the individual proponent.

The petitioner argued that the extra premium clause has no scientific base nor can be justified by any legal enactment or any empirical study. On the contrary, such a standalone stipulation for Persons with Disabilities in form of a special scheme in the Postal Life Insurance for Government employees was discriminatory, non-inclusive, unjust and violates principles of natural justice of equity and fairness and above all it ran against the mandate of the Persons with Disabilities Act 1995 and the UN Convention on the Right of Persons with Disabilities that India is a proud signatory to. Further, it specifically violated Articles 3 and 25(e) of the UN Convention.

The petitioner accepted the rationale of PLI to the extent that any loss to the insured in case of happening of an uncertain event is paid out of this pool and that it worked on the Principle of risk sharing. However the petitioner strongly refuted that disabled persons are more prone to accidental risks as compared to normal persons. On the contrary, the petitioner argued, there was no empirical study or data to support or substantiate such a baseless, false and biased view which only reinforced the stereotypes about persons with disability and their proneness to accident.

Petitioner argued that the right to equality and non-discrimination were inalienable rights which couldn't be taken away by any contract and charging extra premium from employees with disabilities was a direct discrimination with them on the basis of disability which was in direct conflict with Article 2 of UNCRPD.

The petitioner also argued that the justification of health profile put forward by the respondents was faulty for they seem to treat disability as a negative health profile. It was stressed that living with disability was distinct from suffering from a life threatening disease, while the respondent seemed to consider both as synonymous. An employee with visual impairment or with hearing impairment or with neurological impairment also enjoyed good health like anybody else. Therefore, an employee living with a disability would not mean that he / she was suffering from a disease and prone to life risks or susceptible to die prematurely. Such a conclusion on the part of respondent was illogical, arbitrary, had no empirical base and without any understanding of disability, hence, such a conclusion was required to be struck down.

The judgement 

Hon’ble High court in the instant case agreed that charging extra premium from employees with disabilities was indeed a discrimination on the basis of disability and therefore through this remarkable judgement directed the postal life insurance to provide equal insurance coverage and not charge extra premium from the employees with disabilities.

• Download the Vikas Gupta Vs. UOI judgement [PDF 381 KB]  
• For copy of the interim notification raising the maximum insurance amount to Rs. 5 lakh, [word file] 

The Road Ahead

I see this judgment  as a milestone in the disability rights movement with far-reaching implications not only in India but also beyond India and especially in European countries where the Actuaries continue to discriminate against persons with disabilities by under-valuing their lives. However, India, its Courts and the persons with disabilities are very progressive on this front and the western countries can follow suit at least on this count.

This is just a beginning. We need a well devised future strategy  to dismantle the entire regime of discrimination that is prevailing in the insurance sector and the immediate challenges are:

(a) The insurance sector still discriminates on the basis of etiology of the disability i.e. causes of disability, whether it is from birth and after birth; neurological or physical and  then rates their lives accordingly,  which in my considered view has again no scientific base.

(b) The persons with neurological disabilities are still not allowed any insurance policy and needs to be challenged.

(c) PLI is an insurance scheme for the benefit of government employees hence, it will cover a very small section of persons with disabilities. Those who are outside the government jobs especially those in rural areas are far away from reaping the benefits of insurance. Though the judgement challenges the principles that have so far formed the basis for denying the  insurance to the disabled.

(d) The Actuaries who are in the business of assessing the life risks are not aware of the real challenges and the lives of the persons with disabilities and they continue to live in their own world and decide on their own whims, the risk calculation of the life of a person with disabilities. They need to be sensitized and made aware not only about the lives of persons with disabilities but also the rights regime that UNCRPD brings.

(e) The entire literature on insurance that I had to read while pursuing this case from outside, I found it reinforced the stereotypes about persons with disabilities and their proneness to accident! Hence, we need new literature for future actuaries to understand that Disability can not be treated always as a negative health profile and that living with disability was distinct from suffering from a life threatening disease.

(f) There is a need to raise awareness that a person with visual impairment or with hearing impairment or with neurological impairment also enjoys good health like anybody else.

(g) The rules of Insurance sector needs to be changed in light of this judgement and applied across the sector. All insurance  issuing companies - be it private or government have to factor in the principles of this judgement and make amends.

(h) The discrimination continues unabated in not just in `life insurance, sector but in health insurance and other insurance products on the offer. This needs to be addressed on priority.

(j) We need to take this awareness to the most marginalized persons with disabilities in rural areas through several means.  

I am sure we all are up for it and would take this to its logical end.

regards

Subhash Chandra Vashishth

Advocate-Disability Rights

New York's Taxi of Tomorrow faces Accessibility Lawsuit

    Dear Colleagues,

The Nissan NV200 taxi van showcased
during the 2012 New York International Auto Show
at the Javits Center in New York, April 4, 2012

The Green Highway

Taxi of Tomorrow faces lawsuits of the day after

a report by  MICHAEL VAUGHAN in  Globe and Mail Update;  Published Tuesday, Apr. 10, 2012 2:07PM.

The New York Auto Show, which winds up this weekend, featured the debut of New York’s Taxi of Tomorrow; and, of course, being New York, it was not without controversy.

After a multi-year selection process, the New York City Taxi and Limousine Commission (TLC) decided to go with a version of Nissan’s smallest commercial van, the NV200 Taxi, as the next generation taxi for the Big Apple. Manhattan has the lowest per capita car ownership rate in the United States and has 600,000 daily taxi users. There are about 13,000 cabs in the city.

The Nissan has lots of advantages over the old Ford Crown Victoria, which is being phased out. Fuel economy and passenger comfort are high on the list. The Nissan has an efficient four-cylinder engine, dual sliding doors, a large glass sun roof and is roomy and comfortable. As an afterthought, Nissan has come up with a version that adds a ramp at the rear of the vehicle which, along with the removal of the rear seat, would allow wheelchair access.

That’s where the problem arises. Accessibility advocates argue that the entire taxi fleet should be useable by riders with wheelchairs and lawsuits are being prepared claiming that the Taxi of Tomorrow won’t meet the legal requirements for a fully accessible taxi system previously announced by New York’s governor and the state legislature. A federal judge also has ordered the TLC to come up with a plan for better access for wheelchair users.

The issue at hand applies here, too. The Accessibility for Ontarians with Disabilities Act is going to require massive changes in making transportation services accessible. This includes public transit and taxis. One in seven people in Ontario has a disability, according to the provincial government, and that number will rise as the population ages.

Ontario municipalities are now required to determine the proportion of accessible taxis needed in their communities. In Toronto, it is expected that up to 20 per cent of all taxis will be required to be wheelchair-accessible with a built-in ramp; that could be up to 1,200 vehicles. Presently, there are a handful of converted minivans trying to do the job.

The Nissan NV200 Taxi (about $30,000 U.S. each) was given a gala launch by Nissan CEO Carlos Ghosn and New York Mayor Michael Bloomberg. The taxi also occupies centre stage at the Nissan stand on the main floor of the auto show. However, in the basement of the convention centre is a small display that is attracting lots of attention.

It’s the MV1. MV means Mobility Vehicle (about $40,000 U.S. each) and this is the first vehicle that was designed from the ground up for wheelchair accessibility. It’s a massive 5.2 metres long, weighs more than 2,200 kg, is V-8-powered and has a built-in ramp sloping gently up to a wide, tall door on the sidewalk-side of the vehicle. The MV1 can easily accommodate a wheelchair and even a mobility scooter..........................................................

For detailed news please visit the source of the news : The Globe and Mail 

Supreme Court of India issues notice to SpiceJet for deplaning disabled woman

Dear Colleagues,

Please refer to my earlier post on an incident wherein disability rights activist Jeeja Ghosh who was forcibly deplaned from a Goa-bound SpiceJet flight from Kolkatta in February because the pilot felt she was unfit to fly. On Jeeja's petition, honorable Supreme Court of India has issued notices to the Union Government, Airliner and the DGCA.

A bench of Justices Aftab Alam and Ranjana P Desai issued notices to the Union government, the Directorate General of Civil Aviation (DGCA) and SpiceJet on her petition accusing the private airline of subjecting her to traumatic treatment on February 19 and depriving the organizers of her expertise during the international seminar.

"Jeeja Ghosh has experienced similar experience before. In 2008, she was forced to undergo a medical examination before being allowed to board an Indigo flight from New Delhi to Kolkata," the petitioner said and sought an investigation into the incident.

"These acts of discrimination which have left disabled people very upset have continued unabated despite the enactment by the Central Government of clear and binding directives prohibiting discrimination against disabled persons in air transport," said Jeeja.

She requested the apex court to direct "SpiceJet to adequately compensate the petitioner for loss of money, wasted time and the humiliation and trauma suffered during the unsavoury incident".

This case coupled with the uproar in the disability sector has pushed the Government of India/ DGCA too hard to take a swift action against the Airliner and if required amend the Regulations to include penalty clauses, if need be.

The result has been several meetings with the stakeholders and now constitution of another committee to suggest changes in the existing CAR to make it more inclusive and give it more teeth.We hope this would not be another lip service and another rule book to meet defiance rather than implementation that we see with the existing CAR.

The story has been covered by

(a) The Times of India: Cerebral palsy afflicted woman moves Supreme Court, demands compensation from SpiceJet

(c) The Indian Express: SC notice to SpiceJet for deplaning woman

Motor Vehicle Act 1988 doesn't prohibit PH to convert motor vehicles as invalid carriages

Dear Colleagues,

I had written in detailed earlier in my post titled  "Disabled and Driving - Can both exist together or at the cost of each other? about this issue and host of other issues troubling the disabled persons in India.

An adapted /altered Scooters or an adapted Car with suitable modification like hand brakes and gears provides an easy mobility to a user with orthopedic disabilities.

People with orthopedic disabilities (especially those with Post Polio Residual Paralysis and those with spinal injuries) often prefer a scooter with side-wheels which is an economic mode of transport. Since almost no major company produces such scooters (called an invalid carriage!!!) in India, people with disabilities have to get the fabrication done through local mechanics and fabricators etc.

Registration of modified car/scooter as "invalid carriage" is most difficult
Registering such vehicles and driving license to drive such (invalid carriage) is an uphill task as the rules and law do not specifically provide for this and leaves room for subjectivity and corrupt practices and it leads to exploitation of a user with disabilities at the hands of middlemen and RTOs.

Such an adapted vehicle is registered as ‘Invalid Carriage’ at the whims and fancies of the RTO. To harass the disabled applicants, the RTO often ask the user to produce a sale letter (form 21) of the Invalid Carriage. Now, since no automobile manufacturer in India supply company-fitted scooter with side wheels or produces an invalid carriage, such a sale letter can not be produced. Here starts the harassment to the user and malpractices in absence of laws due to subjectivity available with the RTOs.

Even when the carriage is registered, the user is given a driving license denoting the vehicle number on the license meaning that the user can not drive any other similar vehicle in case the vehicle goes out of order. This necessitates seeking a new driving license each time with a new vehicle (even if the vehicle is similar),

As per the Rule 126 made under Section 52 of the Motor Vehicles Act, 1988 (as amended in 2002) the prototypes of all vehicles including the one for the disabled should be approved by the Pune-based Automobile Research Association of India, otherwise no modifications on any vehicle can be permitted and one has to use a vehicle in the same shape and design as supplied by the manufacturing company. This puts an undue restriction on the persons with disabilities and takes away from them their right to free mobility.

Similar is the case for adapted Cars. Previously, Maruti Udyog Ltd. used to manufacture special type vehicles for handicapped persons with suitable modifications/ attachments. As the requirement of different persons with different disability varies, the modifications/attachments also have to be different. Since the prototype of each model has to undergo the test, under Rule 126 of CMV Rules, the manufacturer has stopped production of such vehicles. Hence it is desirable to allow modifications/alterations of vehicles enabling the handicapped to drive their own vehicles.

In such situations, several of our physically disabled friends who have been using their adapted / modified vehicles for their mobility and living a very active life despite their disability have faced harrassment from the RTOs.

Madras High Court provides a Ray of Hope
However, in the instant case, one C. Paulraj, a disabled farmer who modified a Maruti 800 to suit his needs was refused the registration of the vehicle as "invalid carriage" by the Local RTO. Paulraj had converted leg operated brake, clutch etc to hand operated ones since he can't use his legs for the purpose due to polio.

Justice D Hariparanthaman of Madras High Court has ordered that Motor Vehicles Act 1988 did not prohibit any person, including physically challenged persons, to convert motor vehicles as invalid carriages, so long as the alterations do not change the basic feature of the vehicle.

The Honb'ble Justice clarified that changing the leg operated brake, clutch and accelerator into one of hand operation, would not cause a change in the basic feature of the vehicle and asked the RTO to issue permanent registration to Paulraj's vehicle within four weeks.

This is a welcome judgement from the High Court and I am sure this would give much needed relief who suffer in silence due to car makers not providing these options in their designs and they are forced to go to local fabricators to get the modifications done.

Here is the news report:

HC raps transport dept for not certifying disabled man’s car

CHENNAI: It is the state's responsibility to make available 'invalid carriages' for the benefit of the disabled, the Madras high court has said, adding that curtailing the mobility of a disabled would amount to perpetuating inequality.

While directing the authorities to issue registration certificate to C Paulraj, a disabled farmer who modified his Maruti 800 to suit his needs, Justice D Hariparanthaman said, "If the mobility of physically-challenged persons is curtailed, it would result in perpetuating inequality and the object of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 would be defeated."

The matter relates to the rejection of Paulraj's request to the regional transport officer of Tirunelveli seeking registration certificate for his new car. Paulrak is paralysed below his hip. He had earlier an autorickshaw modified and duly certified. He then purchased a car, which was also modified and duly certified. The problem arose when the RTO refused to certify his new car, on the grounds that only company-manufactured vehicles, and not modified versions, could be certified.

Justice Hariparanthaman, rejecting the submission, said that the Motor Vehicles Act 1988 did not prohibit any person, including physically challenged persons, to convert motor vehicles as invalid carriages, so long as the alterations do not change the basic feature of the vehicle.

Pointing out that Paulraj had changed the leg operated brake, clutch and accelerator into one of hand operation, the judge said such changes would not cause a change in the basic feature of the vehicle. He then asked the RTO to issue permanent registration to Paulraj's vehicle within four weeks.

Need of standardizing the norms of child care institutions across sector

Dear Colleagues,

There are several institutions in the country that provide institutional care to children in crisis and those who need support. A large number of such institution provide services to children with disabilities. Many of these institutional may not be registered at all and many of these are registered under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. There are several that are run by religious and charitable organisations and are not registered under any law.

We have several laws that regulate or register institutions/societies providing such service. An institution can be registered as a  society, trust, non-profit company under Societies Registration Act, Indian Trust Act or under some of the State Acts dealing with Registration of Charitable institutions/trust or under the Indian Companies Act. It may also be just an unregistered organisation providing such a service. There is no binding single law that provides clarity on proper regulations of such institutions. Children in need are children, but we have actually divided them in to so many categories to be dealt by so many agencies- a disabled child by ministry of social justice, a tribal child under the Ministry of Tribal Welfare - just to name a few. Similarly there are multiple laws like Women and Children Institutions (Licensing) Act, 1956 and the new JJ Act 2000 that also deal with registration and regulation of Institutions, The persons with disabilities Act 1995 also provides for registration of institutions providing such services to children with disabilities. Then there are ones run by the Social welfare departments of the State Governments and many governed under the Ministry of Women and Child Welfare.

This has lead to a huge confusion not only among the government functionaries but also among the NGOs/Institutions about multiple registrations / recognition etc. There is no synergy or standard of rules that regulate all institutions. Thus many institutions get left out of any registrations resulting in constant new incidents of child abuse and human rights violation. Before regulating the institutions, the Government has to set its own house in order and streamline their own registration procedures by unifying the process and applying same standards to the child care institutions whether run by a particular ministry or department or registered under JJ Act or Persons with Disabilities Act. Without this, it is just not possible to account for and regulate the number of institutions that have sprung up in various parts of the country and ensure a reasonable standard of human rights.

The children are children first and thus all institutions registered under any Act/Law should follow standard common procedure and process. Registration under one law should be sufficient since it is wrong to burden the NGOs/Institutions to seek recognition and registration under multiple laws. If provisions of Juvenile Justice Act are more enabling and child rights centric lets make them the standards to be followed by all other institutions irrespective of their registration status. And let there be a single regulating agency in each state to  inspect and ensure compliance of the minimum standards in these institutions instead of "this is not under my ministry or my mandate"  psychology. We have seen this confusion in Delhi recently when incidents of child abuse were reported in Arya Orphanage.

Its never too late, I am happy that first baby steps have been taken to at least identify such institutions working across the length and breadth of the nation. Regulation can be the next step. Hope the Government has a larger perspective to ensure standardization in these institutions and if need be support those who lack resources. We can't undermine the important role being played by charitable and religious institutions and voluntary agencies in care and  development of children without any family support, though there are few black sheep as well. Need is to regulate and standardize the norms to check the abuse and neglect of children not only in institutions but also reach out through community resources to those who still haven't found a home/institution and are living in vulnerable situations on roads, pavements, etc.

The initiative by Ministry of Women and Child Development is a welcome step. Here is the news:


The Hindu : Life & Style / Society : Enhancing institutional care

Centre asks States to survey children's homes, proposes amendments to Juvenile Justice Act

Concerned over the abuse and neglect of children living in child care institutes across the country, the Ministry of Women and Child Development has asked the States to conduct a survey of all such institutions, including orphanages at the district level to ensure that these are registered as mandated under the Juvenile Justice (Care and Protection of Children) Act, 2000. The States have been asked to submit their report to the Ministry within a month.

The Centre has also proposed to amend the JJ Act to include strict penal provision for non-registration and repealing the older existing laws like the Women and Children Institutions (Licensing) Act, 1956 and Charitable Homes (Supervision and Control) Act, 1960 under which child care institutions were licensed and have so far evaded registration under the JJ Act, 2000. The State has also been asked for their views on these issues.

In a letter sent to all State governments, the Union Women and Child Development Ministry has pointed out that differently-abled children were also living in such child care institutions, many of which are also run by religious and charitable institutions, and that this should also be reviewed.

Section 34(3) of the JJ Act provides for mandatory registration of child care institutions housing children in need of care and protection with the intent of enforcing minimum standards of care for services provided to the children in these homes. The JJ Act also provides for stringent monitoring of the quality of services. “It is for this reason that this Ministry has been persistently urging the State governments and Union Territories to identify and register all child care institutions under the JJ Act. However, progress in this regard has been very slow,” Women and Child Development Ministry said in its letter to the States.

To ensure that children in child care institutions receive the best of care, and are not subject to abuse and neglect, it is imperative that all the homes running in your States housing children in need of care and protection are identified and registered under the JJ Act, the letter said.

The Ministry has also asked the States to issue public advertisements to draw the attention of all organisations running facilities for children in need of care and protection towards their obligation to register under the JJ Act. “Simultaneously, surveys may be conducted at the district level to identify such homes that are not registered and the organisation may be urged to register under the JJ Act failing which their registration, recognition or license issued under any other legislation may be withdrawn and the children shifted to any other residential homes under the JJ Act,'' the letter said.
Source: The Hindu