Indian textile and apparel industry contributed 2.3% to the GDP of India, 13% to industrial production and 12% to export earnings in the year 2020-2021. Textile Being a billion dollar industry attracts various legislations such as IPR laws for the protection of artistic works of the creators, Consumer Protection act 1986 to safeguard the rights of customers, Labour laws, Code of Social security to provide various benefits to the workers, Taxation laws, international trade laws, advertising laws etc. Legal compliance is mandated for the smooth functioning of any business.

If you are looking to make a career in fashion law, then have a look at perfect Fashion Law courses  offered as short-term certificate and diploma programme taught by experts in the industry, take Fashion Law Journal and Legal Desire courses on Fashion Law, To know more about course modules, detailed information and registration, Click Here or visit: www.legaldesire.com/fashionlaw

Identifying the business structure

Before starting fashion business, an entity would need to be set up and a bank account must be open in name of the business. It is important to know the nature and type of business one would like to start. Founders will have to incorporate the business into a specific business type i.e. partnership, sole proprietorship (one person company), Private limited, public limited, limited liability partnership. Each business type has its own legal requirements and regulations so it is important to know before incorporating any business.

Registration and Licensing of a fashion industry

Each type of business registration would require the Shop and Establishment license which is given by the inspector of that area. The Shop and Establishment license should be acquired within a month from starting the business by submitting subsequent statements to the respective inspector. The statements will contain Date of the commencement of business, the name and address including the postal address of the business, name of the employer, the number of employees employed, and the category of business. Certain documents such as Identity proof, commercial address proof, Pan Card, payment of Challan proof is required for acquiring the licence under the Shop and Establishment Act. Challan fees may vary between Rs. 125-12500 depending upon the man power of the company. License is issued if the application is accepted.

For a Private limited company, the promoter has to get the company registered with the Registrar of the company (ROC) at the Location of the registered office. Documents to be enclosed are Memorandum of Association (MoA), Article of Association (AoA), Declaration by practicing professionals (CA, CS, Advocate etc) engaged in the formation of company, Declaration by Director/ manager/secretary and subscribers. Address for correspondence, details and identity proof of subscribers, detail and identity proof of first directors, Director Identification Number (DIN).

After the registration of all documents Registrar issues certificate of Incorporation which includes Corporate Identification Number (CIN). It is the conclusive proof of existence of a company.

Earlier all the documents filling was in physical form but after 2006 amendment Ministry of Corporate Affairs launched project for electronic filing – MCA 21 Called SPICe (Simplified Proforma for Incorporating Company Electronically) which helped in incorporating of company by uploading PDF file.

Recent 2020 Amendment, Ministry of Corporate Affairs launched new web form called SPICe+ replacing the old SPICe form as a initiative for ease of doing business.

SPICe+ can help incorporate a company with a single application for:

Name reservation, Incorporation, DIN allotment, Mandatory issue of PAN, TAN, EPFO, ESIC, Opening of Bank Account.

Registration under TRADEMARK

A trademark is a visual representation of a word, name, symbols, design, sounds or any combination thereof used by a business to differentiate its goods and services from that of another. It’s an exclusive identity of goods and services that a person is offering from other such goods and services. Trademark is an asset of a company which can be further sold, bought or licensed. Trademark plays a vital role when it comes to registration of fashion brand and logo. The primary object of a trademark is to avoid the dubiety in market place amongst the consumers. Therefore it’s important for a brand to get registered under the Trademark Act, 1999. Trademark, in India get registered by Controller General of Patents, Designs and Trademark under the Trademarks Act, 1999 and authorises the owner of the trademark with the right to sue for damages in case contravention of trademark takes place.

A trademark after registration is protected for 10 years and it can further be renewed easily after every 10 years before the expiry of the registration.

Registration process

The registration process includes filling of an application for trademark registration, examination of trademark, publication of trademark, objections if raised, registration thereof and renewal after every 10 years.

The 1st step would be to search for trademark; the applicant must choose a trademark which is different from the one existing in the market. And the chosen trademark must not be offensive, deceptive, and generic and must not contain exclusively protected emblems. Once it is chosen it is requisite to carry out public search on a trademark database, available with trademark registry to ensure that the trademark is unique.

After ensuring the chosen trademark is not registered with the Trademark registry India one can apply for registering the same. Filing is mostly done online and a receipt is issued immediately after filing application.

Post the filing of application, trademark is examined for any discrepancies and a report is issued by the examiner if application is in harmony with trademark act 1999. Within 30 days from filing of registration application an examination report is issued by the authority. The authority might accept the trademark absolutely, conditionally or might raise any objection.

If the trademark is accepted unconditionally it is published in the Trademark journal. If not, conditions to be satisfied. The objection of the authority will be mentioned in the report and a reply against the report asserting all the contentions and evidence against it must be filed within 30 days.

If such response gets accepted by the authority the trademark gets published in Trademark Journal. If the response fails to satisfy the examiner he can call for hearing. If in the hearing, objections raised are satisfied, examiner subsequently allows the registration of the said trademark and it further gets published in the Trademark Journal.

Trademark is advertised and published in a Trademark journal for a period of 4 months. The object behind it is to allow opposition (if any) from the general public. In case the published trademark is objected, a due process of law which includes hearing, filing of counter statements, presenting evidence etc is followed in order to get the Trademark registered.

Once the application proceeds for the registration, following the publication in journal, a registration certificate under the seal of the trademark office is issued.

Once the Trademark gets registered it is protected for 10 years and can further be renewed before the expiry.

Pan registration of a company 

A PAN is a permanent account number which is a vital document for any tax payer. It is a mandatory requirement for all tax-paying individuals, partnerships, companies, etc. Every corporate body carrying out business in India whether registered in India or Abroad requires a PAN card. It serves as a reference number for the Income Tax Department to track financial transactions. It also serves as an identity proof for various purposes. PAN helps in paying invoices, remittances during the income tax returns. Indian companies applying for a PAN card have to submit the following documents along with the application form- Proof of identity/proof of address, Copy of Certificate of Incorporation/registration, Copy of No Objection Certificate issued by MCA.

GST Registration

Goods and Service Tax Identification number or GSTIN is an unique 15 digit number which has replaced Tax Identification Number (TIN), before the introduction of GST, dealers were registered under state VAT laws and were given TIN by respective taxing authorities. Business which provides online services or provides services like hotel, restaurant, shopping, factories etc has to pay GST to government. Such business must register under GST and have GSTIN. The Tax identification number helps income tax authorities to maintain records of GST dues and payments. Business whose turnover in more than 40 lakhs needs to be registered under GST and for the North-eastern and Hill states the turnover limit is 10 lakhs.

One needs to apply for GST registration while applying for incorporation of company on MCA (Ministry of Corporate Affairs) portal by furnishing information including PAN card no., Aadhar No., Business address proof, directors identity proof, incorporation certificate or business registration proof etc is required. Registration process under GST is now integrated with SPICe-AGILE Form (Simplified proforma software of MCA). After the acceptance of furnished details by the GST Portal, Acknowledgement Reference Number (ARN) is generated and the status of SRN (Service Request Number) gets updated to “pending”. The person gets information on the status of application from the tax authorities within 3 days via email. If the ARN gets approved the status of SRN will get updated to “approved” and the intimation/GSTIN will be sent via SMS or mail.

The post Read to Know: Registering a Fashion Brand in India appeared first on Legal Desire Media and Insights.

Medical profession is among one of the pious and noblest professions. Doctors are considered parallel to all mighty as they deal with human life which is of the highest importance. Gone are the days were the relation between a doctor and his patient was governed by mutual trust, now it is covered within the ambit of contract for service where a doctor has to obtain prior informed consent before undergoing any therapeutic treatment or carrying out any diagnostic test.  A doctor owes certain duties towards his patients and breach of any of those duties constitutes a cause of action against doctor for negligence and the patient who suffered loss can seek redressal of grievances from the consumer courts. The law hasn’t prescribed the maximum limits of standards that can be embraced but only minimal standard below which the patients cannot be treated. In cases of medical negligence matters are brought before the court of law and judges are expected to decide. However, it is difficult to determine the negligence of doctors by judges as they are not trained in the field of medical science. Their decisions are mostly found on expert’s opinion and on the basic principles of law. Reasonableness and prudence play a vital role while deciding the case.

Medical Negligence

Firstly, Negligence may be defined as a breach of duty which results in undesired damage to the plaintiff, due to lack of reasonable care which a prudent or a reasonable man would have taken in a given circumstances. Negligence is an offence under law of Torts, Indian Contract Act, Consumer Protection Act, Indian Penal code.

Medical negligence also referred to as medical malpractice may be defined as an act or omission (failure to act) by a medical professional that strays from the required medical standard of care. Doctor can be held liable for negligence on one of the two findings that either the Doctor was not possessed of the requisite skill which he professed to have or he did not exercise the skill which he did possess, with reasonable competence in a given case.

Negligence becomes malpractice when due to lack of carelessness in the part of doctor; injury is caused to a concerned patient resulting in unexpected complications.  For example negligence might be the result of errors in diagnosis, treatment, health management or after care of the patient.

BOLAM’s rule has been adopted by the Supreme Court in the case of Jacob Mathew vs. State of Punjab 2005, as the benchmark to assess the Medical Negligence. In case of Bolam Vs. Friern Hospital Management Committee (1957), the house of lords formulated the Bolam’s rule as: “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”[i]

Bolam test is one of the fourfold stage in determining the medical negligence. There are other 3 essentials which needs to proved by the plaintiff to constitute an offence of medical negligence.

1.      The doctor owed a duty of care to the patient

2.      Breach in performance duty of care

3.      Injury or harm caused due to breach of duty and resulted in significant damages 

Duty of Care towards plaintiff

To understand the scope of negligence, it is important to understand the scope of the duty inflicted on a doctor or a medical practitioner. A doctor or a medical practitioner, has a duty of care in deciding whether to undertake the case or not, duty of deciding what treatment to give, duty of care in administration of that treatment, duty not to undertake any procedure which is beyond his or her mastery, and it is expected by the practitioner to profess the skills and knowledge he possess accompanied with reasonable degree of care.

In the case of Laxman Balkrishna Joshi  vs. Dr. Trimbak Bapu Godbole AIR 1969

 In this case, the patient died due to fat embolism, which resulted due to negligence of doctor without taking the basic precaution by giving anaesthetic to the patient. The doctor was held guilty of negligence and was liable for damages. The Court held that a person who holds himself competent to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when approached by a patient owes him certain aforesaid duties. And such duty must be performed with due care and negligence.[ii]

Breach in performance of duty

 To hold the defendant liable for negligence, plaintiff must not only prove that the defendant (doctor) owed the duty of care to the plaintiff (patient) but he must be in breach of such duty. A Test to determine whether there has been a breach of duty was laid down in Blyth vs. Birmingham Waterworks co case, wherein it was held that “negligence can be defined as a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.”[iii]

Breach of duty resulted in consequential damage

There must be a close connection between breach of duty and injury caused for fastening the liability of negligence and the cause must either be direct or proximate. The plaintiff must proof that the injury or harm was the result of negligence in part of the doctor.

Postgraduate Institute of Medical Education and Research vs. Jaspal Singh (2009)

In this case patient with about 50% burns died 40 days after the date of incorrect blood type transfusion in spite of receiving substantial care, post detection of error, the finding of medical negligence could not be avoided as the connection between the transfusion of incorrect blood type and death was proximate.[iv]

In the case of Jacob Mathew vs. State of Punjab, an aged patient with an advanced stage of cancer was having difficulty in breathing and the oxygen cylinder connected to his mouth was found to be empty. By the time replacement could be made, the patient had already died. The hospital treating the patient held guilty of negligence under civil liability.

Types of medical negligence

Medical negligence can occur in many ways. Any kind of deviation from required standard of treatment or care which would result in harm or injury to a concerned patient would constitute negligent behaviour and the operating doctor or the staff or the hospital and be held liable for the same. Some cases which are often reported are as follows-

1.      Improper diagnosis or delay in diagnosis

2.      Improper/ Wrong medications

3.      Childbirth malpractice

4.      Error in administration of Anaesthesia or any muscle relaxant

5.      Errors in surgery or unnecessary surgery

6.      Falling to recognise or treat complications post surgery

Burden of Proof lies on whom in cases pertaining to medical negligence

Burden of proof is correspondingly high on aggrieved party who alleges negligence against the doctor. Accusation of professional negligence against a doctor is different from a accusation of negligence of driver of a vehicle. A doctor simply cannot be held liable for minute mistakes. A Judge can find a doctor guilty only when it is proved that he has fallen short of a standard of reasonable medical care but it must be proved by way of evidence or material on record.  It is incumbent for the Complainant to prove the negligence or deficiency in service by producing expert evidence or opinion and this fact is to be proved beyond all reasonable doubt. Mere allegation of negligence will be of no help to the Complainant.[v]

What doesn’t constitute medical negligence?

It has been held by the National Commission as well as Supreme Court in various judgements that a charge of Professional negligence is in contrast from the charge of negligence of a driver. A doctor cannot be held liable in all the cases where a patient suffers an injury or if the end result doesn’t turn out the way it was expected to. This doesn’t prove the breach of duty of care. A doctor cannot be held liable for a mere judgement simply because a patient has not responded positively to the medications or therapy as recommend by the doctor. Error of judgement can either be a mere error of judgement or error of judgement due to negligence. Only in former case, it has been recognised by the courts as not being a breach of duty. For example, a failure in surgery or adoption of riskier form of treatment which didn’t produce a preferred result will not amount to medical negligence. However, if due consideration of all factors was not taken, then it would amount to error of judgement due to negligence.

In the case of Akhil Prasad Jain vs lalan Prasad Jain

 The Supreme Court and the National Commission held that the skill of a medical practitioner might differ from doctor to doctor and it is requisite for the Complainant to prove that the Appellant (doctor) was negligent in the line of treatment that followed the loss of eyesight. A Judge can find a doctor at fault only when it is evident that he has fallen short of expected reasonable medical care. The fact and circumstances of the case show that the doctor has attended the patient with due care, skill, and diligence. Simply because the patient’s eyesight was not restored satisfactorily, this alone cannot be a ground for holding the doctor guilty of negligence and inefficient in his duty.

In the case of Dr. Ganesh Prasad V. Lal Janamajay Nath Shahdeo, the National Commission quoted the principle that where proper treatment is given, death occurring due to disease and its complication, it cannot be held that doctors and hospitals are negligent and orders of lower forum do not uphold the claim and award compensation. In this case, a 4 and a half year old child was given a life-saving injection who was suffering from cerebral malaria. As opined by the child specialist, doses were safe and the treatment given was adequate. Though the death of the child is unfortunate, it cannot be said that there was negligence on the part of the doctor.

Liabilities resulting from Medical Negligence

Consumer protection Act 1986

Consumer protection act intends to better protect the interest by providing easy dispute resolution tribunals at district and nationals levels. It promotes and protects the rights of the consumers by providing provisions for establishment Consumer Councils for settlement of consumer disputes.

Sec 14 (1) (d) of the Act provides for the compensation to the consumer who has suffered any loss or injury due to negligent behaviour of the opposite party. This section includes medical practitioner, doctors and hospitals in its ambit.

Indian Medical Association Vs. P.V. Shantha & ors.  Is one of the landmark cases where Supreme Court brought the medical profession within the ambit of Consumer Protection Act.

Court declared that the services rendered by medical professional shall now be treated as “service” under Sec 2(1)(o) of the Consumer Protection Act and it will be a “contract for service” unlike “contract of service” which constitutes Master-servant relationship. This defined the relationship between a doctor and patient as a contractual one. Patient if suffered any injury in due course of treatment can now sue doctors for compensation in consumer protection courts.

Civil Liability

Negligence is tort and tort is a civil wrong. Civil liability for medical negligence may be assigned either to a doctor or a hospital when any act or omission by them cause injury to a patient, a hospital may also be held liable for the damage caused by negligence of its staff i.e doctors, nurses and other employee. A doctor who runs a private medical institution bears the liability individually and is obliged to pay damages if any to his patient if he suffers injury in connection with the treatment.

In the case of Jacob Mathew vs. state of Punjab, where the patient who was in last stage cancer died due to non-availability of oxygen cylinder, the complainant, son of the patient alleged that the doctor lacked skills and knowledge to treat the patient whom he agreed to treat which resulted in death of his father. The Supreme Court using the Bolam’s Parameter held the appellant liable under civil law and said he cannot be proceeded under criminal liability as the death occurred due to non availability of oxygen cylinder.

The Indian Medical Council Act 1956

Medical negligence cases in India are often dealt by the Indian Medical Council where the doctors are registered. The professional incompetence of doctors is judged by a group of expert doctors. The punishment provided by the Indian Medical Council ranges from warning to doctor who is found guilty to removing the name of the doctor from State Medical register/ Indian Medical register for a specific period of time.

Criminal Liability

In order to attract criminal liability, the degree of negligence has to be higher in comparison to degree of negligence enough to fasten liability under civil laws. Mens rea is one of the requisite ingredients in criminal law. It is important to prove the guilty mind or an evil intention to hold a person liable. In case of medical negligence of a doctor, whether slight or gross, it is difficult to prove the guilty mind and intentionally negligent behaviour of a doctor.

Sec 304-A of Indian Penal Code, 1860   states that  “whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term which may extend to two years, or with a fine or with both.”

Sec 80 of IPC (accident in doing a lawful act) – nothing is an offense which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

Sec 88 of IPC (act not unintended to cause death, done by consent in good faith for person’s benefit)-  a person cannot be held accused of an offense if she/ he discharges an act in good faith for the other’s benefit, does not intend to cause harm even if there is a danger, and the patient has explicitly or implicitly given consent to suffer or take the risk of that harm.

In Dr. Suresh gupta case Supreme Court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was held liable under civil law for paying the compensation. Negligence has to be a ‘gross negligence’ or ‘recklessness’ for fixing a criminal liability on a doctor. Where a patient’s death occurs merely from error of judgement or an accident no criminal liability should be attached to it. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm.[vi] In Bolams cases doctors or the hospital did not want to do something wrong intentionally. At no point of time they had guilty mind. In Jacob Mathew case neither the doctor nor the hospital staff intentionally connected empty cylinder. For civil liability, only damages can be imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from damages). However, what is simple negligence and what is gross negligence may be a matter of controversy even among experts.

Conclusion

Both the doctor and the patient owe certain duties to each other. The responsibility of doctor is to discharge his duty with due care and diligence. A patient’s responsibility on the other hand is to cooperate with the professional in discharging his duties. Minute negligence can be described as the recognition in law of a human fallibility in all spheres of life. From the above judgements it can be inferred that a doctor can be held liable only in a case where the failure of treatment is attributable to his negligence and not otherwise. The courts have dealt with the issues related to medical negligence cases in a holistic manner and with paramount consideration. There is also a need of statutory regulations framed by the government of Indian in consultation with Indian Medical Council containing guidelines in order to make rash negligence an ingredient under criminal liability in order to safeguard interests and rights of patients.   

The post Medical Negligence: Concept and Liability appeared first on Legal Desire Media and Insights.