Abdul Samad N.M and G. Jayapal v. Oriental Insurance Company Ltd., UIB Insurance Brokers (India) Pvt. Ltd., Paramount Health Services & Insurance TPA Pvt. Ltd., and Insurance Ombudsman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944** ## **WP(C) NO. 2497 OF 2022** ## **PETITIONERS:** 1 ABDUL SAMAD N.M, AGED 59 YEARS S/O. MUHAMMED, OWNER OF HOTEL SWAGATH, CLASSIC BAZAR, K.M.K.JUNCTION, NORTH PARAVUR, ERNAKULAM DISTRICT, RESIDING AT NADUVILAPARAMBIL, MATTUPURAM, MANJALI, MANNAM P.O., PARAVUR, ERNAKULAM DISTRICT-683520. 2 G.JAYAPAL, AGED 56 YEARS S/O. GOPALAN NAIR, OWNER, INDRAPRASTHA HOTEL, OPPOSITE TO GOVERNMENT GIRLS HIGH SCHOOL PERUMBAVOOR, PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV ANOOP.V.NAIR ## **RESPONDENTS:** |1|ORIENTAL INSURANCE COMPANY LTD.,| |---|---| ||ORIENTAL INSURANCE REGIONAL OFFICE, H-1A/18, NOIDA| ||SECTOR 63, NEAR DOMINO'S PIZZA, NOIDA-201301,| ||REPRESENTED BY ITS BRANCH MANAGER.| |2|UIB INSURANCE BROKERS (INDIA) PRIVATE LIMITED,| ||SEETHAKATHI BUSINESS CENTRE NO.684690, 6TH FLOOR, ANNA| ||SALAI, THOUSAND LIGHTS, CHENNAI-600006, INDIA,| ||REPRESENTED BY ITS MANAGER.| |3|PARAMOUNT HEALTH SERVICES & INSURANCE TPA PVT. LTD.,| ||A-442, ROAD NO.28, WAGLE INDUSTRIAL ESTATE, THANE WEST,| ||400604, REPRESENTED BY ITS MANAGER.| |4|INSURANCE OMBUDSMAN,| ||OFFICE OF THE INSURANCE OMBUDSMAN, 2ND FLOOR, CC| ||27/2603, PULINAT BUILDING, OPPOSITE COCHIN SHIPYARD,| ||M.G.ROAD, ERNAKULAM-682015.| W.P.(C)No.2497/2022 2 BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE GEORGE A.CHERIAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.2497/2022 3 ## **V.G.ARUN J.** ------------------------------------- ## **W.P.(C) No.2497 of 2022** ## **---------------------------------** Dated this the 21st day of July 2022 ## **JUDGMENT** The petitioners are members of the Kerala Hotel and Restaurants Association (KHRA for short). The KHRA had joined the group insurance policy named 'Group Mediclaim-Tailormade Policy' of the first respondent insurance company. The policy premium is paid by the KHRA. According to the petitioners, the premium was being paid regularly. The petitioners are aggrieved by the rejection of their claim seeking reimbursement of medical expenses and hospital charges. The issue was taken up with the first respondent company, by the KHRA, but there was no proper response. The first respondent also froze the KHRA's account without intimation, resulting in the hospital bills presented by the members being rejected. Later, the account was made active and premium accepted. Even thereafter, the claims are not being honoured. Hence, the writ petition. 2. In its counter affidavit, the first respondent Company has stated that initially, a group insurance policy covering 6982 persons 4 W.P.(C)No.2497/2022 for the period 25.03.2021 to 24.03.2022 was taken by the KHRA, agreeing to pay premium in installments at the rate 18%, 41% and 41%. KHRA paid the first installment and defaulted from the second installment onwards. Therefore, the policy had to be cancelled on 30.05.2021. Later, at the request of the KHRA, Ext.P1 policy was issued covering 3523 members for the period 07.07.2021 to 06.07.2022. Since a fresh policy was issued on 07.07.2021, the same has to be treated as a new policy for all purposes and the claim pertaining to the cancelled policy cannot be entertained. 3. Learned Counsel for the petitioner contended that even after so called cancellation of the first policy, the insurance company had accepted the premium. Therefore, it has to be presumed that the policy was live for the entire period. If so, the claims under the first policy are also liable to be honoured. It is submitted that, even claim under the second policy, which is admittedly live, are not being honoured. 4. Learned Senior Counsel appearing for the first respondent questioned the maintainability of the writ petition, contending that the dispute with respect to terms of the agreement between the KHRA and the insurance company cannot be resolved in a writ 5 W.P.(C)No.2497/2022 petition under Article 226. In support of the contention, Apex Court decisions in _**Kerala State Electricity Board And Another v. Kurien E.Kalathil And Others**_ **[(2000) 6 SCC 293]** and the judgment in _**W.P.(C) No.2983 of 2014**_ are relied on. It is contended that, in any case, the petitioners cannot espouse the cause of the KHRA. If the petitioners have any personal grievance regarding settlement of their claims, that will be addressed by the company. It is contended that, as per Section 64 VB of the Insurance Act, no risk can be assumed before receipt of premium. In the instant case, the KHRA had failed to pay the instalments towards the premium for the first policy, which resulted in the policy being cancelled on 30.05.2021. Hence, no claim under that policy can be accepted by the company. As far as the second policy is concerned, the company will process and sanction the claim following the prescribed procedure, but for that, each policy holder should raise his/her claim individually. I find substantial merit in the contentions urged on behalf of the insurer. Hence, the writ petition closed leaving open the petitioners' liberty to pursue their claims before the Insurance Company and to seek remedies before the appropriate legal Forum. The submission made on behalf of the 1st respondent, that if the petitioners submit individual claims, that will be considered in accordance with W.P.(C)No.2497/2022 6 procedure prescribed, is recorded. Sd/V.G.ARUN Judge dpk W.P.(C)No.2497/2022 7 ## **APPENDIX OF WP(C) 2497/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE "GROUP MEDICLAIM-| ||TAILORMADE POLICY SCHEDULE WITH POLICY| ||NO.272500/48/2022/1999.| |Exhibit P1(A)|TRUE COPY OF THE INSURANCE CARDS ISSUED BY| ||THE 1ST RESPONDENT TO THE 1ST PETITIONER| ||AND HIS DEPENDANT FAMILY MEMBERS.| |Exhibit P1(B)|TRUE COPY OF THE CLAIM FROM DULY FILED AND| ||SIGNED BY THE 1ST PETITIONER AND SUBMITTED| ||BEFORE THE RESPONDENTS.| |Exhibit P2|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| ||DATED 1.7.2021 MADE BETWEEN KHRA AND THE| ||RESPONDENTS.| |Exhibit P2(A)|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| ||DATED 6.7.2021 MADE BETWEEN KHRA AND THE| ||RESPONDENTS.| |Exhibit P2(B)|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| ||DATED 7.7.2021 MADE BETWEEN KHRA AND THE| ||RESPONDENTS.| |Exhibit P2(C)|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| ||DATED 12.7.2021 MADE BETWEEN KHRA AND THE| ||RESPONDENTS.| |Exhibit P2(D)|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| ||DATED 30.9.2021 MADE BETWEEN KHRA AND THE| ||RESPONDENTS.| |Exhibit P2(E)|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| ||DATED 2.11.2021 MADE BETWEEN KHRA AND THE| ||RESPONDENTS.| |Exhibit P2(F)|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| ||DATED 18.10.2021, MADE BETWEEN KHRA AND THE| ||RESPONDENTS.| |Exhibit P2(G)|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| ||DATED 12.11.2021 MADE BETWEEN KHRA AND THE| ||RESPONDENTS.| |Exhibit P2(H)|TRUE COPY OF RELEVANT E-MAIL COMMUNICATION,| W.P.(C)No.2497/2022 8 - DATED 18.11.2021, MADE BETWEEN KHRA AND THE RESPONDENTS. - Exhibit P2(I) TRUE COPY OF RELEVANT E-MAIL COMMUNICATION, DATED 22.11.2021 MADE BETWEEN KHRA AND THE RESPONDENTS. - Exhibit P2(J) TRUE COPY OF RELEVANT E-MAIL COMMUNICATION MADE BETWEEN KHRA AND 2ND RESPONDENT ON BEHALF OF THE 1ST RESPONDENT DATED 22.11.2021. - Exhibit P3 TRUE COPY OF THE COMPLAINT FILED BY KHRA TO THE 4TH RESPONDENT, DATED 26.11.2021. - Exhibit P5 TRUE COPY OF THE DOCUMENTS SHOWING THAT THE 1ST RESPONDENT HAS RETURNED 47 CLAIMS STARTING FROM 30/5/2021 TILL 7/7/2021 - Exhibit P6 TRUE COPY OF THE DOCUMENTS SHOWING THAT THE POLICY HOLDERS INCLUDING THE PETITIONER WITH SERIAL NUMBER 34 AND 189 WERE NOT GRANTED WITH THEIR CLAIMS FOR THE PERIOD STARTING FROM 8/7/2021 TO 4/4/2022 - Exhibit P7 TRUE COPY OF THE DOCUMENTS SHOWING THAT THE CLAIMS HAD BEEN REJECTED FOR AROUND 10 PEOPLE EVEN PRIOR TO THE ALLEGED CANCELLATION - Exhibit P7 A TRUE COPY OF THE STATEMENTS SHOWING THAT THE HUGE AMOUNTS INCLUDING 34 LAKHS, 12 LAKHS, 23 LAKHS, 30 LAKHS, ETC., HAS BEEN WITHDRAWN FROM THE 1ST RESPONDENT COMPANY ON 20/3/2021, 30/3/2021, 22/03/2021 ETC. - Exhibit P8 TRUE COPY OF THE INSURANCE CARD OF ANOTHER POLICY HOLDER NAMED A.P.NAFEESA SHOWING THE VALIDITY PERIOD AS 06/7/2022