Case BriefsHigh Courts

Madras High Court: A Division Bench of Amreshwar Pratap Sahi, CJ and Senthilkumar Ramamoorthy, J., to consider the issue with regard to the participation of advocates before Ombudsman under the Banking Ombudsman Scheme, 2006.

Issue Raised:

OMBUDSMAN

In the instant petition, the issue was regard to the permissibility of participation of advocates in proceedings before Ombudsman under the Banking Ombudsman Scheme 2006 promulgated by Reserve Bank of India.

Contentions:

Petitioner submitted that on the basis certain information received, there is no legal bar in the appearance of the advocates otherwise and secondly, the respondents are discriminating so far as the individual complainants are concerned about allowing Law Officers of the Bank to appear in such proceedings, whereas, at the same time, denying the individuals of the assistance of advocates.

Analysis 

Bench called upon the respondent’s counsel to come forward explaining the nature of functions of Ombudsman and the powers exercised by him in order to ascertain the following:

Whether the nature of the proceedings do require any such legal assistance and can be barred or not?

RBI annexed its 2006 Scheme, where Clause 7 entails the power and jurisdiction of the Ombudsman, Clause 10 prescribes the procedure for calling for information and Clause 11 or thereof indicates the exercise of jurisdiction by the Ombudsman to be not bound by any rules of evidence and allow him to follow such procedure as may be considered just and proper, where providing an opportunity to the complainant along with documentary evidence has been made permissible within a time frame.

Petitioner’s counsel contended that in the decision of Fidelity Finance Ltd. v. Banking Ombudsman, 2002 SCC OnLine Mad 864, it was held that the Ombudsman under the Scheme performs a quasi-judicial function and therefore, in view of the said pronouncement, it is evident that the Ombudsman proceeds like an adjudicatory forum and consequently, the legal assistance of an advocate should not be denied more so keeping in view the fact that law officers of the bank are allowed to attend such proceedings.

In view of the above background, Court stated that it required more clarification on the said aspect and respondents may file an appropriate response in order to explain the status, jurisdiction and the powers exercisable by the Ombudsman in order to further proceed in the matter.

Court has also asked both the parties to throw light on Clause 12(8) of the Scheme which provides that if any Award is rendered by Ombudsman it shall lapse and shall be of no use unless a letter of acceptance of full and final settlement of the claim is tendered by the complainant.

Matter to be listed on 03-12-2020.[M. Sivalingam v. State of Tamil Nadu, WP No. 3450 of 2014, decided on 12-10-2020]

Case BriefsHigh Courts

Delhi High Court: Najmi Waziri, J., while addressing the present matter considered the following issues:

Whether elections to the Board of Directors of a company; allegations of oppression and mismanagement; wrongful appointment of an Ombudsman in violation of Articles of Association could be adjudicated by a civil court

OR

Whether jurisdiction vests exclusively with the National Company Law Tribunal?

Background

Appeal under Sections 104 and 151 read with Order XLIII Rule 1 CPC, impugns an order of the ADJ, Tis Hazari Courts, New Delhi whereby the appellant’s two applications were dismissed and the interim injunction sought by the plaintiff was granted.

Contention of the appellant

Appellant submits that the suit is not maintainable before a Civil Court because of the bar placed on Civil Courts by Section 430 of the Companies Act, 2013.

Section 430 of the Companies Act, 2013

Civil court not to have jurisdiction:

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate.” The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred.

Appellant also relied on the decision of this Court in SAS Hospitality Pvt. Ltd. v. Surya Constructions Pvt. Ltd., 2018 SCC Online Del 11909, wherein it was observed that,

“The bar contained in Section 430 of the 2013 Act is in respect of entertaining “any suit”, or “any proceedings” which the NCLT is “empowered to determine”.”

Appellant also relied on the decision of Madras High Court in Viji Joseph v. P. Chander, 2019 SCC OnLine Mad 10424 wherein the Court examined an election dispute under Section 20 of the Companies (Management and Administration) Rules, 2014, involving the maintainability of the election of the Board of Directors through electronic means.

After analyzing Section 242 and other circumstances pertaining to the case, Madras High Court concluded that only the Tribunal had powers to deal with the issue raised in the suit and the civil court had no jurisdiction to entertain the suit.

Issues raised in the present matter

Challenging matters relating to the AGM, the Board of Directors of the appellant company, the appointment of an ombudsman and other related issues.

The Madras High Court Decision as referred above has also discussed the expanse of Section 430 of the Companies Act, 2013.

Senior Advocate for the appellant submits that the Companies Act and the National Company Law Tribunal Rules, 2016, are together a complete code. Ample power has been provided to the NCLT – akin to a civil court – to deal with all issues for which powers have been conferred upon the Tribunal.

Further, the appellant submitted that, in the present case, the process of election to the Board of Directors/Members of the Apex Council, has been challenged because of it being allegedly contrary to the procedure laid down in the AoA and the notice calling for the AGM, and that the elections were held on the basis of a voice vote instead of paper ballot, contrary to what was mentioned in the AGM notice.

Hence, the High Court on perusal of the above stated that Sections 241, 242 and 244 of the Companies Act deal with the issues raised in the present suit.

NCLT has been specifically conferred powers to address grievances relating to the affairs of the company, which may be prejudicial or oppressive to any member of the company, or for issues of appointment of directors.

The appointment of an Ombudsman, would also form a part of the conduct and management of the affairs of the company.

Supreme Court in its’ decision in Shashi Prakash Khemka v. NEPC Micon, 2019 SCC Online SC 223 discussed the scope of Section 430 and stated the same to be vast and the jurisdiction of the civil court to be completely barred when the power to adjudicate vests in the Tribunal.

Therefore, the lis and grievances raised in the present suit can be agitated only before the NCLT as the civil court would have no jurisdiction.

The appeal was allowed. [Delhi & District Cricket Association v. Sudhir Kumar Aggarwal,  2020 SCC OnLine Del 1223, decided on 21-09-2020]

New releasesNews

Consumer Claims by Akanksha Rana

Overview:

Akanksha Rana’s Consumer Claims is part of EBC’s LAYMAN SERIES and is written for the consumer and to empower them in a way that they can gain awareness of their rights and how to get these rights enforced through appropriate forums. This book explains the purpose and provisions of the latest Consumer Act, 2019 in a simple and lucid manner.

The book starts with explaining the definition and concept of the consumer as per the Indian laws and goes on to explain the rights of a consumer. A chapter has been dedicated to Ombudsman services available for consumers, offered by some service/product sectors like banking, telecommunications, etc. The complete legal process has been explained in detail, starting from the definition of the complainant and understanding the claim, to structure and jurisdiction of consumer forums, and culminating in appeals and enforcement of the final order and beyond.

Chapters dealing with established consumer rights are included with “legal consumer cases” to illustrate the legal points. This is also aimed at “empowering” consumers by connecting them to local and governmental forums and to other consumers with similar problems. The book includes step-by-step guides to file complaints which the reader can use to file his/her complaint correctly. Web links to model formats for filing complaints have been added for reference.

This book includes a companion web resource EBC ExplorerTM (www.ebcexplorer.com), powered by SCC Online providing access to important cases, indicated by the Case PilotTM. Find articles and important links on consumer laws, updates, a discussion forum and a host of free learning resources on EBC ExplorerTM.

Table Of Contents:

Table of Cases

Introduction

Consumer and Its Protection

Ombudsman

Rights of a Consumer

Initiating Legal Action

Outcome of the Legal Action

Online Shopping

Education Services

Insurance Services

Housing Services

Medical Services

Food Products

Transportation Services

Responsibilities of a Consumer

Annexure

Subject Index


Here’s the link to get your copy — CONSUMER CLAIMS

Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. entertained a writ petition related to the enhancement of fee, where the petitioner who was a private institute initially took lesser fee from the student which was half of the enhanced fee, because the fee towards sports, internet, technology and personal effective and employability enhancement fee was waived. 

It was contended by the petitioner that the students took admission in the first year, completed studies and were promoted to the second year, but the same fee structure was continued for the second year as well. But the petitioner maintained that though a certain amount of fee was waived the fee structure was always same i.e. the enhanced fee. Learned counsel for the petitioners had fairly stated that they were not pressing the fee structure as that was futile and the only academic question was left before this Court.

On the contrary, the students-respondents contended that when the same reduced fee structure was charged in the second year as well they had a genuine expectation, in fact, a legitimate expectation that for the next year onwards the same fee would be charged. But the institute-petitioner insisted on payment of the fee, which was just double of what they were paying in the third year. 

Hence they moved an objection before the Ombudsman, who gave its decision in their favor and held that the demand for raised fee made by the institute was not justified. Aggrieved, the institute has filed the present petitions before this Court. By the time the petitioner forwarded his claim all the alleged respondents had completed their studies. 

The Court observed that the Ombudsman had been appointed by the Government notification to look into the disputes between the students and the management, which included the fee structure. There was no question on the jurisdiction of the Ombudsman in the instant petition.Hence the “writ petitions were disposed of with the direction that in future the Ombudsman though would always be at liberty to look into the matter including the matter regarding the fee structure, but while doing so he shall take into consideration whether the fee demanded by the institute was as per the approved fee structure i.e. what had been approved by the Fee Regulatory Committee of the students, whether the students were well apprised of the fee structure at the time when they took admission, any catalogue of such fee had been given and there was no change of fee during midstream. Suffice it to say that principles of natural justice would be followed in its letter and spirit”.[SelaQui Academy of Higher Education v. Lokpal, Uttarakhand Technical University, 2019 SCC OnLine Utt 586, decided on 05-07-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Division Bench of Mushir Alam and Mazhar Alam Khan Miankhel, JJ. dismissed a petition filed by Securities and Exchange Commission of Pakistan (SECP) on the ground that being an appellate adjudicatory authority, it could not challenge the order passed High Court in purely adversarial proceeding by and between the policyholders and the insurance companies.

In this case, the respondent raised a claim under marine cargo policy for consignment that was damaged by water; but the said claim as repudiated. Complaint filed before the Insurance Ombudsman was dismissed. On an appeal under Section 130(2) of the Insurance Ordinance, 2000, petitioner being appellate authority held that mal-administration on part of respondent was evident, and ordered it to pay the amount of loss assessed by surveyors. The respondent insurance company challenged this order before the Lahore High Court, which set aside petitioner’s judgment. Thus, the instant petition.

The Court noted that the office of Insurance Ombudsman is created under Section 125 of the Ordinance. Person aggrieved by order of the Insurance Ombudsman may file an appeal with SECP. Under the Insurance Ordinance, SECP is the final adjudicatory and appellate authority against the recommendatory order of the Insurance Ombudsman.

It was opined that Insurance Ombudsman, is an investigatory and recommendatory authority; and SECP, being the final appellate authority against the order of Insurance Ombudsman performs the judicial function within the parameters laid down under the Ordinance.

Insurance Ombudsman and SECP, after passing an order become functus officio, i.e., any order passed by the Insurance Ombudsman, which has not been appealed against, or any order passed by the SECP in appeal, becomes final and enforceable against the insurer, unless the complaint is dismissed or judicial review is invoked. Neither the Insurance Ombudsman nor the SECP is required to come forward to justify and/or defend its order before the High Court or Supreme Court. Reliance in this regard was placed on Syed Yakoob v. K.S.Radhakrishnan, AIR 1964 SC 477 where it was held that Tribunals are not supposed to defend its own orders unless allegations are made against them.

In view thereof, the petition was dismissed for being without merit.[Securities & Exchange Commission of Pakistan v. East West Insurance Company, Civil Petition No. 1191 of 2017, Order dated 12-02-2018]

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi and R. Banumathi, JJ sought explanation from the chief secretaries of 12 States and Union Territories as to why they have not appointed a Lokayukta yet. Section 63 of the Lokpal and Lokayuktas Act, 2013, states that every state shall establish a body to be known as the Lokayukta.

The Bench was hearing the petition filed by filed by advocate and Delhi BJP leader Ashwini Kumar Upadhyay in which it was said that the Lokpal and Lokayuktas Act, 2013, received presidential assent on January 1, 2014 and came into force from January 16, 2014 but the executive has not established a Lokpal yet. The PIL has also sought a direction to the states to provide adequate budgetary allocation and essential infrastructure for effective functioning of Lokayuktas. The petitioner, in his petition, had said:

“many State Governments are deliberately weakening the Lokayukta by not providing adequate infrastructure, sufficient budget and workforce.”

The Bench, hence, asked the chief secretaries of Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Puducherry, Tamil Nadu, Telangana, Tripura, Arunachal Pradesh, Delhi and West Bengal to give reasons for not appointing a Lokayukta and to specify by when they would appoint a Lokayukta

The Court has also asked the Chief Secretary of Odisha to apprise the Court about the status of the Lokayukta in State and said the Court has no information whether it has an anti-corruption ombudsman or not.

Source: ANI

Legislation UpdatesRules & Regulations

G.S.R. 413(E).— Whereas, the draft of certain rules namely, the Insurance Ombudsman Rules, 2016, were published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) dated the 15th September, 2016 under the notification of the Government of India in the Ministry of Finance (Department of Financial Services) number G.S.R. 886(E), dated the 15th September, 2016 inviting objections or suggestions from all persons likely to be affected thereby before the expiry of a period of forty-five days from the date on which the copies of the Official Gazette containing the said notification were made available to the public;

And whereas, the copies of said Official Gazette were made available to the public on the 15th September, 2016;

And whereas, the objections and suggestions received from the public on the said draft have been considered by the Central Government.

Now, therefore, in exercise of the powers conferred by Section 24 of the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999) and in supersession of the Redressal of Public Grievances Rules, 1998, except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely:—

1. Short title and commencement.— (1) These rules shall be called the Insurance Ombudsman Rules, 2017.

(2) They shall come into force from the date of their publication in the Official Gazette.

2. The objects of these Rules is to resolve all complaints of all personal lines of insurance, group insurance policies, policies issued to sole proprietorship and micro enterprises on the part of insurance companies and their agents and intermediaries in a cost effective and impartial manner.

3. Application.— These rules shall apply to all insurers and their agents and intermediaries in respect of complaints of all personal lines of insurance, group insurance policies, policies issued to sole proprietorship and micro enterprises.

4. Definitions.— (1) In these rules, unless the context otherwise requires,—

(a) “award” means an award passed by the Insurance Ombudsman under rule 17;

(b) “financial year” means a period of twelve months commencing on the 1st day of April and ending on the 31st day of March;

(c) “Insurance Council” means the Life Insurance Council and the General Insurance Council constituted under Section 64C of the Insurance Act, 1938 (4 of 1938);

(d) “Executive Council of Insurers” means the Executive Council of Insurers constituted under Rule 5;

(e) “Insurance Ombudsman” means the Insurance Ombudsman established under Rule 7;

(f) “IRDAI” means the Insurance Regulatory and Development Authority of India established under Section 3 of the Insurance Regulatory and Development Authority Act, 1999;

(g) “Ombudsman” means a person appointed as an Insurance Ombudsman under these rules;

(h) “personal lines” means an insurance policy taken or given in an individual capacity;

(i) “Group insurance” means insurance cover obtained by a group of individuals, either through an employer or otherwise, under a single contract;

(j) “sole proprietorship” means a business that legally has no separate existence from its owner and the income and losses are taxed on the individual’s personal income tax return;

(k) “micro enterprise” means the micro enterprises as defined in clause (h) of Section 2 of the Micro, Small and Medium Enterprises Development Act, 2006 (27 of 2006).

(2) All other words and expressions used in these rules but not defined shall have the meanings respectively assigned to them in the Insurance Act, 1938 and the Insurance Regulatory and Development Authority Act, 1999.

5. Executive Council of Insurers.— (1) There shall be an Executive Council of Insurers consisting of nine members including the Chairperson.

(2) The members of the Executive Council of Insurers shall comprise of—

(i) two persons representing life insurers to be nominated by the Life Insurance Council;

(ii) two persons representing General insurers, other than stand-alone health insurers, to be nominated by the General Insurance Council;

(iii) one person representing stand-alone health insurers to be nominated by the General Insurance Council;

(iv) one representative of the IRDAI; and

(v) one representative of the Central Government in the Ministry of Finance from the Department of Financial Services not below the rank of Director;

(vi) the Chairman, Life Insurance Corporation of India (LIC of India) established under the Life Insurance Corporation Act, 1956 (31 of 1956) or the Chairman, General Insurers’ (Public Sector) Association of India (GIPSA) established under the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) provided they are not acting as Chairperson of the Executive Council of Insurers.

(3) The Chairperson of the Executive Council of Insurers shall be either the Chairman of the LIC of India or the Chairman of the GIPSA by rotation.

(4) The term of the Chairperson and members of the Executive Council of Insurers shall be three years from the date of assumption of charge.

(5) The nominations to the Executive Council of Insurers shall be revised every three years or as and when the vacancy arises, whichever is earlier.

(6) A member of the Executive Council of Insurers shall not be eligible for re-nomination for a period of three years from the date he ceases to be a member:

Provided that this sub-rule shall not apply to the Chairperson or to the members nominated under clauses (iv), (v) and (vi) of sub-rule (2).

6. Functions of the Executive Council of Insurers.— (1) The Executive Council of Insurers shall issue such guidelines, including, inter-alia, relating to the procedure for the day to day administration, secretariat staffing, secretariat administrative infrastructure, and such other related aspects of functioning of insurance Ombudsman system.

(2) In case any vacancy arises in any Insurance Ombudsman due to resignation or retirement or death of the Ombudsman, the Executive Council of Insurers shall direct an Ombudsman of such other territorial jurisdiction to hold additional charge of the Insurance Ombudsman where such vacancy may arise.

(3) The Executive Council of Insurers may constitute such committees and as and when deemed necessary obtain the assistance of outside expertise for preparing the guidelines referred to in sub-rule (1).

7. Insurance Ombudsman.— (1) There shall be established such number of Insurance Ombudsman for such territorial jurisdiction as the Executive Council of Insurers may specify, for discharging the duties and functions prescribed under these rules.

(2) An Ombudsman shall be selected from amongst persons having experience of the insurance industry, civil service, administrative service or judicial service.

(3) An Ombudsman shall be selected by a Selection Committee comprising of—

(a) Chairperson of the IRDAI, who shall be the Chairman of the Selection Committee;

(b) one representative each of the Life Insurance Council and the General Insurance Council from the Executive Council of Insurers—members;

(c) A representative of the Government of India not below the rank of a Joint Secretary or equivalent, in the Ministry of Finance, from the Department of Financial Services—member.

(4) The Executive Council of Insurers shall prepare a panel through an open process by inviting applications from amongst the eligible candidates and the selection process shall be in accordance with the selection criteria finalised by the Executive Council of Insurers with the approval of the Central Government in the Ministry of Finance.

(5) An Ombudsman shall be appointed after satisfactory vigilance clearance from the immediate previous employer and medical fitness report from an authorised doctor.

8. Term of office of Insurance Ombudsman.—

An Ombudsman shall be appointed for a term of three years and shall be eligible for reappointment:

Provided that no person shall hold office as an Ombudsman after he has attained the age of seventy years.

9. Removal from office of Insurance Ombudsman.—

An Ombudsman may be removed from office on the ground of gross misconduct during his term of office, after following due procedure specified as under, namely:—

(a) The Executive Council of Insurers shall draw up articles of charge or charges, if any, on the Ombudsman after giving him a reasonable opportunity of being heard;

(b) The Executive Council of Insurers shall, as and when deemed necessary, appoint such person or persons to inquire into the allegations levelled against the Insurance Ombudsman;

(c) Upon conclusion of the inquiry, the Executive Council of Insurers or the person nominated by it shall forward the inquiry report to the concerned Ombudsman who shall submit his comments or submissions within a specified time;

(d) Upon receipt of the comments or submissions or after the expiry of the stipulated period, the Chairperson of the Executive Council of Insurers shall forward the inquiry report, the submissions of the concerned Insurance Ombudsman along with the recommendations of the Executive Council of Insurers to the IRDAI;

(e) The IRDAI shall decide upon the action to be taken, if any, against the concerned Insurance Ombudsman and shall communicate such decision to the Executive Council of Insurers who shall implement the decision of the IRDAI.

(f) The IRDAI may, wherever it considers necessary, initiate an inquiry suo moto against any Insurance Ombudsman and in such case, it shall request the Executive Council of Insurers to initiate the proceedings and the Executive Council of Insurers shall proceed with the inquiry in accordance with the procedure laid down in this rule.

10. Remuneration, etc., of Insurance Ombudsman.— (1) The Ombudsman shall be allowed a fixed pay of two lakh twenty-five thousand rupees per month and any pension to which he is entitled from the Central Government or a State Government shall be deducted from his salary.

(2) The revised pay shall be such as may be determined by the Central Government:

Provided that the other allowances and perquisites payable to the Ombudsman shall be such as may be determined by the Executive Council of Insurers with the prior approval of the Central Government.

11. Territorial jurisdiction of Insurance Ombudsman.— (1) The office of the Insurance Ombudsman shall be located at such places and shall have such territorial jurisdiction as may be specified by the Executive Council of Insurers from time to time.

(2) The Executive Council of Insurers shall specify the territorial jurisdiction of each Ombudsman.

(3) The Ombudsman may hold sitting at various places within his area of jurisdiction in order to expedite disposal of complaints.

12. Offices of Executive Council of Insurers and Insurance Ombudsman.— (1) The IRDAI shall make available to the Insurance Ombudsman such secretarial staff as may be determined by the Executive Council of Insurers.

(2) The salary, allowances and perquisites payable to the staff of the Insurance Ombudsman secretariat and all expenses incurred in connection with administration, including expenses to be incurred by the Executive Council of Insurers, fees of professional experts engaged under sub-rule (3) of rule 15 and expenses towards Advisory committee constituted under rule 19 shall be borne by the Life Insurance Council and the General insurance Council in such proportion as the Executive Council of Insurers may, by a general or special order specify, from time to time, in this behalf.

(3) The Insurance Ombudsman shall submit its annual budget requirements for the ensuing financial year by the 31st January every year to the Executive Council of Insurers and the Executive Council of Insurers shall, after finalising the budget in consultation with the Ombudsman, advise the Life Insurance Council and the General Insurance Council to allocate to it the funds including funds for the budgeted expenses of the Executive Council of Insurers, and the Executive Council of Insurers shall in turn allocate funds to the respective offices of the Insurance Ombudsman.

(4) The decision of the Executive Council of Insurers on allocation of fund to an office of Insurance Ombudsman shall be final.

13. Duties and functions of Insurance Ombudsman.— (1) The Ombudsman shall receive and consider complaints or disputes relating to—

(a) delay in settlement of claims, beyond the time specified in the regulations, framed under the Insurance Regulatory and Development Authority of India Act, 1999;

(b) any partial or total repudiation of claims by the life insurer, General insurer or the health insurer;

(c) disputes over premium paid or payable in terms of insurance policy;

(d) misrepresentation of policy terms and conditions at any time in the policy document or policy contract;

(e) legal construction of insurance policies in so far as the dispute relates to claim;

(f) policy servicing related grievances against insurers and their agents and intermediaries;

(g) issuance of life insurance policy, general insurance policy including health insurance policy which is not in conformity with the proposal form submitted by the proposer;

(h) non-issuance of insurance policy after receipt of premium in life insurance and general insurance including health insurance; and

(i) any other matter resulting from the violation of provisions of the Insurance Act, 1938 or the regulations, circulars, guidelines or instructions issued by the IRDAI from time to time or the terms and conditions of the policy contract, in so far as they relate to issues mentioned at clauses (a) to (f).

(2) The Ombudsman shall act as counsellor and mediator relating to matters specified in sub-rule (1) provided there is written consent of the parties to the dispute.

(3) The Ombudsman shall be precluded from handling any matter if he is an interested party or having conflict of interest.

(4) The Central Government or as the case may be, the IRDAI may, at any time refer any complaint or dispute relating to insurance matters specified in sub-rule (1), to the Insurance Ombudsman and such complaint or dispute shall be entertained by the Insurance Ombudsman and be dealt with as if it is a complaint made under rule 14.

14. Manner in which complaint to be made.— (1) Any person who has a grievance against an insurer, may himself or through his legal heirs, nominee or assignee, make a complaint in writing to the Insurance Ombudsman within whose territorial jurisdiction the branch or office of the insurer complained against or the residential address or place of residence of the complainant is located.

(2) The complaint shall be in writing, duly signed by the complainant or through his legal heirs, nominee or assignee and shall state clearly the name and address of the complainant, the name of the branch or office of the insurer against whom the complaint is made, the facts giving rise to the complaint, supported by documents, the nature and extent of the loss caused to the complainant and the relief sought from the Insurance Ombudsman.

(3) No complaint to the Insurance Ombudsman shall lie unless—

(a) the complainant makes a written representation to the insurer named in the complaint and—

(i) either the insurer had rejected the complaint; or

(ii) the complainant had not received any reply within a period of one month after the insurer received his representation; or

(iii) the complainant is not satisfied with the reply given to him by the insurer;

(b) The complaint is made within one year—

(i) after the order of the insurer rejecting the representation is received; or

(ii) after receipt of decision of the insurer which is not to the satisfaction of the complainant;

(iii) after expiry of a period of one month from the date of sending the written representation to the insurer if the insurer named fails to furnish reply to the complainant.

(4) The Ombudsman shall be empowered to condone the delay in such cases as he may consider necessary, after calling for objections of the insurer against the proposed condonation and after recording reasons for condoning the delay and in case the delay is condoned, the date of condonation of delay shall be deemed to be the date of filing of the complaint, for further proceedings under these rules.

(5) No complaint before the Insurance Ombudsman shall be maintainable on the same subject matter on which proceedings are pending before or disposed of by any court or consumer forum or arbitrator.

15. Insurance Ombudsman to act fairly and equitably.— (1) The Ombudsman may, if he deems fit, allow the complainant to adopt a procedure other than under sub-rule (1) or sub-rule (2) of rule 14 for making a complaint, after notifying the parties to the dispute.

(2) The Ombudsman shall have the power to ask the parties concerned for additional documents in support of their respective contentions and wherever considered necessary, collect factual information relating to the dispute available with the insurer and may make available such information to the parties concerned.

(3) The Ombudsman may obtain the opinion of professional experts, if the disposal of a case warrants it.

(4) The Ombudsman shall dispose of a complaint after giving the parties to the dispute a reasonable opportunity of being heard.

16. Recommendations made by the Insurance Ombudsman.— (1) Where a complaint is settled through mediation, the Ombudsman shall make a recommendation which it thinks fair in the circumstances of the case, within one month of the date of receipt of mutual written consent for such mediation and the copies of the recommendation shall be sent to the complainant and the insurer concerned.

(2) If the recommendation of the Ombudsman is acceptable to the complainant, he shall send a communication in writing within fifteen days of receipt of the recommendation, stating clearly that he accepts the settlement as full and final.

(3) The Ombudsman shall send to the insurer, a copy of its recommendation, along with the acceptance letter received from the complainant and the insurer shall, thereupon, comply with the terms of the recommendation immediately but not later than fifteen days of the receipt of such recommendation, and inform the Ombudsman of its compliance.

17. Award.— (1) Where the complaint is not settled by way of mediation under rule 16, the Ombudsman shall pass an award, based on the pleadings and evidence brought on record.

(2) The award shall be in writing and shall state the reasons upon which the award is based.

(3) Where the award is in favour of the complainant, it shall state the amount of compensation granted to the complainant after deducting the amount already paid, if any, from the award:

Provided that the Ombudsman shall,— (i) not award any compensation in excess of the loss suffered by the complainant as a direct consequence of the cause of action; or (ii) not award compensation exceeding rupees thirty lakhs (including relevant expenses, if any).

(4) The Ombudsman shall finalise its findings and pass an award within a period of three months of the receipt of all requirements from the complainant.

(5) A copy of the award shall be sent to the complainant and the insurer named in the complaint.

(6) The insurer shall comply with the award within thirty days of the receipt of the award and intimate compliance of the same to the Ombudsman.

(7) The complainant shall be entitled to such interest at a rate per annum as specified in the regulations, framed under the Insurance Regulatory and Development Authority of India Act, 1999, from the date the claim ought to have been settled under the regulations, till the date of payment of the amount awarded by the Ombudsman.

(8) The award of Insurance Ombudsman shall be binding on the insurers.

18. Review of activities of Insurance Ombudsman.— (1) The Ombudsman shall prepare an annual report detailing the activities undertaken during the previous financial year under their jurisdiction, statement of accounts and any other relevant information and submit to the Executive Council of Insurers with a copy to the IRDAI by the 30th June every year.

(2) The Executive Council of Insurers shall on receipt of annual reports of all Insurance Ombudsman, furnish a report containing a general review of the activities of Insurance Ombudsman during the preceding financial year and such other information as it may consider necessary, to the Central Government and to the IRDAI any time after the 30th June but not later than the 30th September, every year.

(3) The IRDAI shall consider the annual reports so furnished under sub-rule (1) and the report of the Executive Council of Insurers under sub-rule (2) and take suitable steps as it deems fit and necessary.

19. Advisory Committee.— (1) An Advisory Committee consisting of eminent persons not exceeding five and including one Central Government nominee shall be constituted by the IRDAI to review the performance of the Insurance Ombudsman from time to time.

(2) The IRDAI shall decide the time, venue and quorum of the meeting of the Advisory Committee.

(3) The Advisory Committee shall submit its report to the IRDAI for review and further action as deemed necessary.

20. Recommendations to Central Government.— The IRDAI, in consultation with the Executive Council of Insurers, may recommend to the Central Government, proposals for effecting improvements in the functioning of the Insurance Ombudsman.

MINISTRY OF FINANCE