Gauhati High Court
Page No.# 1/8 vs Office Of The Executive Council Of ... on 1 April, 2025
Page No.# 1/8
GAHC010065422021
2025:GAU-AS:3955
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2476/2021
THE ORIENTAL INSURANCE CO LTD
HAVING ITS REGD. OFFICE AT ORIENTAL HOUSE, P.B. NO. 7037, A-25/27,
ASAF ALI ROAD, NEW DELHI- 110002 THROUGH ITS AUTHORIZED
SIGNATORY PRASANNA KUMAR PATNAIK, DIVISIONAL MANAGER
VERSUS
OFFICE OF THE EXECUTIVE COUNCIL OF INSURERS AND 3 ORS
3RD FLOOR, JEEVAN SEVA ANNEXE, S.V.ROAD, SANTACRUZ (W),
MUMBAI- 400054 (FORMERLY GOVERNING BODY OF INSURANCE
COUNCIL)
2:THE INSURANCE OMBUDSMAN
JEEVAN NIVESH
5TH FLOOR
NEAR PANBAZAR OVERBRIDGE
S.S.ROAD
GHY-01
3:AJIT KUMAR JAIN
RICH WEAR
2A
SURAJ MARKET
H.B.ROAD
FANCY BAZAR
GHY-01
4:HIMANGSHU JAIN
S/O- AJIT KUMAR JAIN
RICH WEAR
2A
SURAJ MARKET
Page No.# 2/8
H.B.ROAD
FANCY BAZAR
GHY-0
Advocate for the Petitioner : MR. M A LASKAR, MS A HUSSAIN,S AHMED
Advocate for the Respondent : MR K JAIN (R-3,4), MR. D K JAIN (R-3,4)
BEFORE
THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
ORDER
01.04.2025
1. Heard Mr. S Ahmed, learned counsel for the petitioner. Also heard Mr. K Jain, learned counsel for the respondent Nos. 3 and 4.
2. This application under Article 226 of the Constitution of India is filed for issuance of a writ in the nature of certiorari for quashing award No. IO/GUW/A/HI/0055/2019-2020 passed by the respondent No. 2 i.e. the Insurance Ombudsman, Guwahati in Complaint Reference No. GUW-H-050-1920-0126, whereby the complaint lodged by the respondent No.3 was allowed for an amount of Rs. 1,61,819/- with penal interest @ 2% above the rate from the date of submission of claim.
3. The facts leading to filing of the present application can be summarised as follows:
I. The respondent Nos. 3 and 4 were having a family health policy since the year 2013 and it was renewed from time to time.
II. The respondent No. 3 was admitted for heart ailment in Sanjivini Hospital, Nashik on 30.04.2019 and was discharged on 31.05.2019 and according to the claimant he had incurred medical expenses for Rs. 1,61,819/-.
Page No.# 3/8 III. Accordingly, insured had lodged a claim with the petitioner insurance company for an amount of Rs. 1,61,819/-. IV. The insurance repudiated the claim on the ground that the treatment taken for EECP was not covered under the policy.
V. Such repudiation was done by an order dated 11.09.2019 for the ground of exclusion clause of 4.1.9. VI. Accordingly, the petitioners lodged the claim before the Ombudsman on 03.02.2020.
VII. Accordingly, a complaint, as recorded hereinabove, was recorded under Rule 13(1)(b) of Rules of Insurance Ombudsman, 2017. After hearing the parties and taking notes of the evidences the learned Ombudsman allowed the complaint.
VIII. The relevant portion of the decision is quoted hereinbelow:
"Result of hearing with both parties (Observation & Conclusion):-Both the parties were called for hearing on 28.02.2020. The complainant Ajit Kumar Jain was present and the insurer was represented by Mr. AK. Chakraborty.
Decision We have taken in to consideration the facts and circumstances of the case from the documentary evidence submitted by the claimant as well as representative of the Insurance Company. The decision of the insurer to repudiate the claim as per clause No. 4.19 is not sustainable because the clause 4.19 incorporated in the policy document issued to the complainant refers to only hazardous activities like scuba diving etc. There is no mention of EECP. Hence, the decision of the insurer is set aside and the Company is directed to pay the claim."
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4. Accordingly, an amount of Rs. 1,61,819/- was awarded with interest @ 2% above the Bank rate from the date of submission claim to the insurer. Being aggrieved, the present application is filed.
5. Though different grounds were taken in the writ petition, however, the learned counsel for the petitioners has confined his argument to the point that the clause, on the basis of which the claim was allowed, was modified in the renewed policy, which was effective on the date of the taking policy by the insured inasmuch as in terms of the said exclusion clause 4.1.9, treatment of Age Related Macular Degeneration (ARMD), treatments of such as Rotational Field Quantum Magnetic Resonance (RFQMR), External Counter Pulsation (ECP), Enhanced External Counter Pulsation (EECP), Hyperbaric Oxygen Therapy are excluded. However, the learned Ombudsman came to a conclusion that on the date of taking medical treatment the exclusion clause 4.1.9 is relatable to any treatment arising out from insures' participation in any hazardous activity, including but not limited to scuba diving, motor racing, parachuting, hang gliding, rock or mountain climbing etc. unless specifically agreed by the insurance company and accordingly, the learned Ombudsman held that clause 4.1.9, relied on by the insurance company is not sustainable.
6. The learned counsel for the petitioners though vehemently contends that the policy was amended and it was duly notified to the petitioners, however, nothing is discernible from the record as regards of raising of such fact/ dispute before the court. In fact the insurance company, for reason best known to them, has not even annexed such policy in the writ petition.
7. Per contra, learned counsel for the claimant submits that this court in exercise of its certiorari jurisdiction, may not like to enter into the question of fact inasmuch as the Insurance Ombudsman dealt with contentions of both the parties and after giving reasonable opportunity of hearing, arrived at its conclusion. In this regards, the learned counsel relies on decision of the Hon'ble Apex Court in the case of Syed Yakub vs KS Radhakrishnan and Ors. reported in 1964 AIR SC 477.
Page No.# 5/8 According to the learned counsel, there is no excess or error of jurisdiction, there is no violation of any principle of natural justice or there is any perversity in the aforesaid decision of the Ombudsman and therefore, this court may not entertain the writ petition in exercise of its power of judicial review. Referring to Rules 17(6) of the Insurance Ombudsman Rules, 2017, learned counsel contends that the award of Insurance Ombudsman is binding on the insurance.
8. I have given anxious consideration to the submission of the learned counsel for the parties.
9. It is by now well settled that the Insurance Ombudsman is a quashi judicial authority and therefore, the Ombudsman being an authority having limited jurisdiction can also be treated as tribunal, more particularly, when it is an adjudicating authority statutorily created.
10. It is true that Rule 17 (8) provides that an award shall be binding on the insurance. However, the determination made being an adjudication of a complaint having all essential of a judicial/ quashi judicial adjudication the same is akin to an adjudication by a tribunal and therefore, it cannot be said that, in all circumstances, the insurance shall not have a right to seek a remedy before High Court having jurisdiction inasmuch as there is no specific provision under the Rules for an appeal.
11. In the present petition a writ of certiorari is sought for. In Central Council for Research in Ayurvedic Sciences vs. Bikartan Das reported in 2023 SCC Online SC, the Hon'ble Apex court while dealing with the principle of law governing issuance of writ of certiorari, pointed out the following essential conditions:
I. While issuing the writ of certiorari, the High court does not exercise the powers of the Appellate Tribunal. The High Court will not review or reweigh the evidence upon which the inferior tribunal's decision was based. The writ of certiorari can be issued if an error of law is apparent on face of the record and being a high prerogative writ, it should not be issued on mere asking.
Page No.# 6/8 II. The extraordinary remedy granted under Article 226 of the Constitution is essentially discretionary. It is completely open for the writ court, exercising this flexible power to pass orders in public interest and equity. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach than this would render the High Court a normal court of appeal, which it is not. III. The party concerned must make out a definite case for issue of writ of certiorari and is not a matter of course. IV. It shall be issued to correct errors of jurisdiction i.e excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality V. It shall also be issued to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only patent error can be corrected but not a wrong decision.
VI. While adjudicating a writ application for a writ of certiorari, the court is not sitting as a court of appeal against the order of the Tribunals to test the legality thereof, with a view to reach a different conclusion. If there is any evidence, the court will not examine whether the right conclusion is drawn from it or not. VII. It is a well-established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits.
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12. Thus, though a writ petition under Article 226 of the Constitution of India may be maintainable, in the given facts or an application under Article 227 of the Constitution of India, however, the scope of exercise of jurisdiction by High Court either under Article 226 or 227 of the Constitution of India against an order of Ombudsman, more particularly, when preferred by an Insurance Company, scope will be further very limited as under the Scheme of the Rules, 2017 for the proposition of Rule 17 (8).
13. In the considered opinion of this court, such scope of judicial review shall be confined to correcting errors of jurisdiction such as when the Ombudsman act without jurisdiction or in excess of it. Such power of judicial review can also be exercised when principle of natural justice is violated.
14. Having said that, if we take note of the impugned order, this court is of the unhesitant view that there is no violation of principle of natural justice inasmuch as both the parties were heard within the scope and ambit of the scheme of the Ombudsman Rules, 2017. The learned Ombudsman has applied its mind to the given fact of the case and passed the order inasmuch as took note of the exclusion clause relied by both the parties. The learned counsel for the petitioners has not also been able to show any perversity in such order inasmuch as the contention raised before this court that there was modification in insurance policy and that same was duly delivered to the petitioners etc. was not raised before Ombudsman and therefore, cannot be determined by this court in exercise of writ jurisdiction, more particularly, when those were not the issues before the learned Ombudsman.
15. Learned counsel for the petitioner has not been able to show any error, not to say patent error in the impugned order. The insurance company has also not disputed the exclusion clause relied on by the insured, but it was their case that such clause was amended but failed to show anything before the tribunal that such amendment was notified to the insured. Rather the learned counsel tried to impress upon this court, at this stage, by showing certain e-mail that it was intimated to the Page No.# 8/8 petitioner. Such contention cannot be entertained in a certiorari proceeding against an order of Ombudsman, more particularly, in absence of any material that those points were raised before the Ombudsman and the Ombudsman ignored it, while taking the decision.
16. Accordingly, this court finds no merit in this petition. Accordingly, same stands dismissed.
17. It is also to be noted that the order was passed on 28.02.2020 and the writ petition was filed on 26.05.2021. In the meantime and terms of the statutory scheme under Rule 17(8), the insurance was to deposit the awarded amount within a period of 30 days, however, it is on record that such amount has not been paid till date. Therefore, such conduct of the finance company is also not appreciated. Accordingly, the Insurance Authority shall deposit the aforesaid amount within a period of 30 days from today with the interest as directed.
JUDGE Comparing Assistant