Insurer should ideally bear the cost of arbitration, says Sudhir Gudal

The cost of opting for arbitration proceedings could be as high as Rs10 lakh to Rs15 lakh, excluding lawyers’ fees. Therefore it is advisable to go in for arbitration only in cases where the claim amount is significantly higher than the cost. Since an insurance policy is a contract, the insurance company should bear the cost of arbitration, says Sudhir Gudal, director at Magus Corporate Advisors Pvt Ltd

Moneylife (ML): What is the remedial frame-work for insurance in India?

Sudhir Gudal (SG):
The insurance industry is regulated by the Insurance Regulator and Development Agency (IRDA). It is set up by the Government of India (GOI). IRDA has laid down rights of policyholders (PH) like the claims should be settled within six months from the date when it was made for both life and non-life policies.

For claims above Rs2 lakh, a surveyor is appointed who submits a report in 30 days. On receiving the surveyor’s report and assessment, the insurance company makes a settlement offer to the policyholder in 30-70 days from the day of receipt of the surveyor’s report.

ML: What are the options available for an individual to redress his dispute?

The government has appointed an Ombudsman to address any dispute arising out of ‘individual risk policies’ for claims of up to Rs20 lakh. Alternatively the individual can also approach the Consumer Grievance Redressal Forum.

ML: This means that the policyholder has three options—the IRDA, the Ombudsman and consumer forums. Is there any hierarchy between these three that needs to be followed? Where is the policyholder supposed to go first?

SG: Ideally, the policyholder should first approach the in-house grievance redressal cell of the insurer. This is also the pre-requisite for all—IRDA, Ombudsman and the consumer forum. If the policyholder feels that his grievances were not addressed by the insurer, he should then approach either of the three. There is no particular hierarchy that needs to be followed. However, the policyholder cannot approach all three simultaneously.

ML: The Insurance Ombudsman has a pecuniary jurisdiction of Rs20 lakh. Does the consumer forum or IRDA have any such pecuniary jurisdiction?

SG: The consumer forum is a three-tier mechanism, district-level forum, state commission and the national commission. The district-level forum takes up matters up to Rs20 lakh, state commission from Rs20 lakh to Rs1 crore and the national commission takes up cases of Rs1 crore and above.

IRDA too has an in-house redressal grievance cell. But IRDA, on its own, does not act as a mediator nor does it actively take a reconciliatory role. All it does is refer the grievance back to the insurance company and ask their opinion on what has been done to resolve the dispute. So unfortunately IRDA has become a redundant body for grievance redressal.

ML: When arbitration is used for redressing grievance?

SG: Arbitration is available only if the insurance company has accepted its liability under the policy and the dispute is only on the quantum aspect. Thus, if the company out rightly refuses or rejects the claim, then the option for arbitration is not available. In such outright denial of claims the policyholder can either go to the civil courts or the consumer forum.

ML: Is Arbitration being actively used as a recourse measure by policyholders?

SG: Although there is a clause under the policy, insurers are reluctant to accept arbitration. Because once the quantum is in dispute but the liability has been admitted by the company it sends a discharge voucher, which clearly says that the amount specified is the full and final settlement. In case if the policyholder discharges the voucher conditionally saying, ‘I accept the voucher but in part settlement’, the insurer does not settle the claim. They insist settling the claim as ‘full and final’. If the policyholder discharges the voucher in full and final, then under the law, the claim has been settled and there is no future liability on the insurer, which brings an end to the contract.

After accepting the voucher, in case, the policyholder invokes the arbitration clause the company denies it. This is becoming common today. Resisting the arbitration clause makes it difficult for the policyholder to go for arbitration. It has been observed in various cases that the insurer plays on emotions and the financial capacity of the policyholder.

ML: What if the policyholder had to accept the discharge voucher due to financial duress? In such case, can he invoke the arbitration clause? If no, what recourse does he have?

SG: In such a case, the policyholder can send a legal notice to the insurance company giving them 15 to 30 days time to resolve the dispute. After the time limit, the policyholder has to go to the high court for appointment of an arbitrator.

ML: What is the point of dispute in the high court?

SG: The reason for going to the high court is to decide whether an arbitrator is required or not. If yes, the court decides on who would be the arbitrator. In this case the court considers two points—if there is a valid contract between the parties or not and whether the policy contains an arbitration clause or not? After being convinced on these two points, the high court will approve the appointment of an arbitrator.

ML: In case the high court approves arbitration, does the insurer have an opportunity to appeal in the Supreme Court?

SG: Yes, many insurance companies do appeal in the Supreme Court through Special Leave Petitions for blocking arbitration.

ML: What is the time taken by the high court to decide whether an arbitrator is required or not?

SG: The Bombay High Court has kept one day in the week for insurance matters. The HC takes up cases of arbitration during the second session of that day. So there is little time for such cases and it may take six months to 2-3 years to decide on whether arbitration is required or not in a particular case.

ML: What about the costs of such litigations? Does the court award costs or are the borne by the parties themselves?

SG: By the time the high court judgement comes, one would have spent at least a lakh of rupees. However, what is striking is that none of these courts awards costs even if it founds that an arbitrator was required.

In my view this is complete violation of the Contract Act. The insurer should ideally pay the costs if the HC says that arbitration is required in the case, because for the company the cost may be minor but for an individual, Rs1 lakh is quite a huge amount.

ML: what is the arbitration process? How is the arbitrator chosen?

SG: The arbitration clause of the policy clearly reads that either party who wishes to invoke arbitration should send a legal notice to the other party suggesting the name of the arbitrator he wishes to have. If the other party does not accept to this choice of an arbitrator then each party proposes the name of one arbitrator each and then these two arbitrators would nominate the name of a third arbitrator. In such cases there is a panel of three arbitrators.

ML: What are the running costs during the hearing during the arbitration process?

SG: The arbitrators appointed are either former judges from the high court or other lower courts or chartered accountants. The act makes it compulsory that all arbitrators appointed have to take the same amount of fees.

In case if it is a single arbitrator, he may charge between Rs50,000 to Rs1 lakh per hearing and in case of a three-bench arbitrators, each arbitrator charges between Rs30,000 to Rs1 lakh per hearing.

The fees include both reading fees and hearing fees. The time taken for completing an arbitration is between one to two years and the cost involved for the whole arbitration may go to as high as Rs10 lakh to Rs15 lakh. Apart from these costs, the lawyers’ fees are to be incurred. As consultants we discourage policyholders to go for arbitration for claims between for Rs5 lakh to Rs10 lakh.

ML: What is the advantage of going for arbitration as against going to a consumer forum?

SG: The technical aspect, exchange of information and understanding of subject matter is lot more in-depth and thorough. The tribunal analyses the matter very clearly and arrives at a more precise order. The Arbitration and Conciliation Act, 1996, provides that the arbitrators can award: -

a) The principal amount with interest, and

b) the costs of arbitration.

The arbitration award needs to be executed with 30 days of the verdict of the arbitration.

ML: What is the scope for appeal in case of arbitration award?

SG: Section 34 of the Arbitration Act provides the opportunity to either party to appeal the arbitration award in the high court. However the grounds for appeal are very limited. It has been experienced that the arbitration award are reasonably respected by the insurance companies.

ML: What are the drawbacks of alternate dispute redressal system (ADR) of the insurance sector?

SG: Delays and costs. ADR were incorporated to tackle these two issues, but unfortunately these two issues are still present. Arbitrators are generally former judges of the high court who have many commitments. They handle much arbitration together. The arbitration gaps therefore are between three to four months. On the contrary, the Act says that the arbitration should be completed within four months.

ML: What are your suggestions to make ADR mechanism for the insurance sector more efficient?

SG: I would say…
1) Increase the pecuniary jurisdiction of the Ombudsman and also allow him to take up commercial matters up to some limit. Also, decrease his territorial jurisdiction and increase the number of Ombudsmen across the country.

2) There should be an appellate body which should have a final say on the matter.

3) Incorporate the suggestions made in the 190th Law Commission Report to enhance the ADR mechanism of the industry.


Grammy award to tribute Steve Jobs

A creative visionary, Mr Jobs’ innovations such as the iPod and its counterpart, the online iTunes store, revolutionized the industry and how music was distributed and purchased,” the organizer of the prestigious award, The Recording Academy, said in a statement

Steve Jobs, co-founder of Apple Inc, will be posthumously honoured by the Grammys with the Trustees Award for 2012, to be held in February, for his contribution in the area of music technology.

The Trustees Award is given to individuals to acknowledge their contributions in non-performance fields.

The organizer of the prestigious award, The Recording Academy, in a statement said, “As former CEO and co-founder of Apple, Steve Jobs helped create products and technology that transformed the way we consume music, TV, movies and books. A creative visionary, Mr Jobs’ innovations such as the iPod and its counterpart, the online iTunes store, revolutionized the industry and how music was distributed and purchased.”

Mr Jobs, who died on 5th October this year after battling with pancreatic cancer, is respected for his innovative products like iPod, iPad and iPhone.

Apple Computer Inc was a recipient of a Technical Grammy Award in 2002 for contributions of outstanding technical significance to the recording field.

“The company continues to lead the way with new technology and in-demand products such as the iPhone and iPad,” the statement added.

Mr Jobs is one of several individuals among the recipients of 2012 Trustee Award. Others include Antonio Carlos Jobim, a Brazilian composer and arranger, Gil Scott-Heron a soul performer, and audio engineer Roger Nichols, will also be honoured posthumously.

The Grammy Awards ceremony will be held on 11th February 2012.


CIC drafts its own Citizen’s Charter

The charter aims at timely disposal of appeals and complaints; RTI activists have welcome the move 

In order to ensure timely and speedy disposal of appeals and complaints, the Central Information Commission (CIC) is considering implementing its own Citizen’s Charter. A draft proposal has been moved by information commissioner Sailesh Gandhi. Chief information commissioner Satyananda Mishra has directed that the proposal would be put for up for discussion in a meeting of the commission on 27th December.

Right to Information (RTI) activists have welcomed this move by the CIC.
Subhash Chandra Agrawal, a Delhi-based RTI activist, while welcoming the move said, “Provision for priority hearing of petitions filed by senior and differently abled persons, and of petitions involving public interest are should also be included. Also there should be a special compliance officer in each registry of every central information commissioner to monitor compliance of CIC verdicts.”
He adds, “There are numerous such cases where public authorities do not care to respond to CIC verdicts. Registry of every information commissioner costs much to the public exchequer. But it can and should be best utilised by adequately increasing staff attached to each of the commissioner.”

The draft Citizen’s Charter emphasises on the following –

  •  All appeals and complaints filed under Section 18 and 19 of the RTI Act will be decided as expeditiously as possible.
  • Appellants and complainants will be given acknowledgement of their appeals or complaints within 30 days.  
  •  Steps will be taken to ensure that every public authority including the CIC is disclosing the prescribed categories of information suo moto. The CIC will monitor whether such information is being updated periodically
  •  Recommendations will be made to public authorities to take steps for confirming with, or promoting the spirit of the RTI Act. This may be done by CIC by way of its decisions, by holding meetings, seminars, etc.  
  •  Efficient work practices will be adopted within every office of the CIC. This includes, among others, regular entry and updation of relevant records, speedier movement of files/correspondence, proper maintenance of files/documents, response to communications received by CIC in a reasonable time.
  •   Efforts will be made to impart the requisite skills and training among officers, staff and other persons working in the CIC so that the work delivered is of high quality and standard.
  •   Helpline facilities will be available on all workings days during working hours to assist in relation to matters arising out of the RTI Act.
  •  The working and functions of the CIC must be subject to systematic and timely review by citizens. A system of inviting suggestions, comments or inputs from citizens by way of a suggestion box or any other means will be put in place. CIC will take cognizance of the feedback received and implement those measures that may improve its working and functioning. CIC will appoint an advisory council consisting of citizen’s representatives and government officers to suggest ways to provide better services and to evaluate its working with respect to its Citizen’s Charter.  
  •  CIC will strive to increase awareness among citizens, including government officers, about the RTI Act. This may be done by putting information on CIC’s website, notice boards, distributing pamphlets.   
  •   A complaint cell will be set up in the CIC to take cognizance of all complaints against the commission or its staff. The cell which will send a report to the complainant within 60 days of action taken on the complaint.

According to report by the Press Trust of India (PTI), the commission said the move has seen strong opposition from its legal department. The department is of the view that there is no precedence of such a charter in any judicial or quasi-judicial body in the country. During a recent meeting of the commission, the minutes of which have been made public, joint secretary (law) at the CIC informed the commission that since the Citizen Charter is now part of the Lokpal Bill, currently under consideration in Parliament, it would be advisable to wait for the final outcome in Parliament in this regard.

The draft proposal aims to ensure that over 95% of appeals and complaints are adjudicated within 120 days of reaching the CIC and digitization of records and use of E- processes in the working of CIC by 2015.




5 years ago


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