The Indian insurance market was nationalised shortly after India's independence in 1947, and remained so until the government's industrial policy of 1991 announced the advent of a liberalised Indian economy, which included private participation in the insurance sector. In 1993, the government set up the Malhotra Committee to review the then-existing structure of the regulation and supervision of the insurance industry and to suggest reforms. The Committee recommended, inter alia, that the private sector be permitted to enter the insurance industry and that foreign insurers be allowed to enter the Indian market by forming joint ventures with Indian partners.
There was considerable delay in implementing these recommendations, and in particular a rather lengthy debate over the right level of the cap on foreign ownership, but in 1999 the Insurance Regulatory and Development Authority of India (IRDAI) (formerly, the Insurance Regulatory and Development Authority (IRDA)) was set up as an autonomous body to regulate the insurance industry and develop the insurance market, and in August 2000 private competition was permitted with a foreign ownership cap of 26 per cent.
There were growing complaints about the relatively low 26 per cent cap on foreign investment. The cap on foreign investment was intended to be raised to 49 per cent, and ultimately, after a long legislative history, on 20 March 2015, the Insurance Laws (Amendment) Act 2015 (the Amendment Act) was notified, which, inter alia, increased the foreign investment cap on insurers and insurance intermediaries to 49 per cent. The Amendment Act also permitted the establishment of branch offices in India by foreign reinsurers. Recently, the Indian Insurance Companies (Foreign Investment) Amendment Rules 2019 (the Foreign Investment Amendment Rules) were notified, which increased the limit on foreign investment in insurance intermediaries from 49 per cent to 100 per cent.
At present India has 24 life insurers, 27 general insurers and six stand-alone health insurers, 25 third-party administrators, 457 insurance brokers, 25 web aggregators, four insurance repositories, 597 corporate agents and numerous insurance agents. There are 10 foreign reinsurer branches in India, including the branch office of Lloyd's of London set up under the IRDAI (Lloyd's India) Regulations 2016 (the Lloyd's India Regulations). In addition, at present, there is one reinsurance company in India: the government-owned General Insurance Corporation, which has been granted registration by the IRDAI.
i The insurance regulator
Insurance and reinsurance companies, foreign reinsurer branches and intermediaries in India are governed by the IRDAI.
ii Position of non-admitted insurers
Overseas non-admitted insurers cannot write direct insurance business in India. Non-admitted insurers who have registered with IRDAI as cross-border reinsurers can reinsure risks written by Indian insurers in accordance with the IRDAI (Re-insurance) Regulations 2018 (the Reinsurance Regulations) (see Section V). Pursuant to the Amendment Act, overseas non-admitted reinsurers are now also permitted to access the Indian market by way of branch offices set up in India and service companies set up under the Lloyd's India Regulations.
Indian residents may purchase life insurance policies issued by an insurer outside India provided the policy is held under specific or general permission of the Reserve Bank of India. Indian residents are prohibited from purchasing insurance in respect of any property in India or any ship, vessel or aircraft registered in India with an insurer outside India without the permission of the IRDAI. Indian residents can, however, purchase health insurance policies from an insurer outside India provided aggregate remittance including amount of premium does not exceed the limits prescribed by the Reserve Bank of India under the Liberalised Remittance Scheme from time to time.
iii Position of brokers
The framework governing the operation and functioning of insurance is provided under the IRDAI (Insurance Brokers) Regulations 2018 (the Brokers Regulations). Only insurance brokers that are registered with the IRDAI as direct brokers, reinsurance brokers or composite brokers in accordance with the Brokers Regulations can operate as insurance brokers in India. The Brokers Regulations have set out provisions for sale of insurance online and sale of insurance using distance marketing modes. Further, the Brokers Regulations also set out norms with regard to the minimum capital requirements for insurance brokers, agreements with third-party service providers, remuneration or fee receivable by the insurance brokers and the services that a registered insurance broker is permitted to perform.
iv Requirements for authorisation
The general rule is that only licensed insurance agents and insurance intermediaries can distribute insurance products for Indian insurers. Unlicensed persons are prohibited from soliciting and procuring insurance business or providing introductions or leads.
v Regulation of individuals employed by insurers
Individuals employed by Indian insurers must be internally trained by the insurer to carry out the distribution of insurance products. Indian insurers are also permitted to use individual insurance agents that are licensed in accordance with the IRDAI (Appointment of Insurance Agents) Regulations 2016 for the distribution of insurance products.
vi The distribution of products
Only licensed or registered insurance agents and insurance intermediaries can solicit and procure insurance business for insurers. Insurers are also permitted to engage licensed telemarketers and registered web aggregators for the solicitation and procurement of insurance business, and to purchase access to the database of licensed referral companies.
The IRDAI notified the Guidelines on Motor Insurance Service Provider (the MISP Guidelines) to identify and regulate the role of automobile dealers in distributing and servicing motor insurance products. Pursuant to the notification of the MISP Guidelines, a duly registered motor insurance service provider (MISP) is permitted to solicit, procure and service motor insurance policies for insurers and insurance intermediaries. In addition, the IRDAI has also issued guidance for the appointment of a point of sales person (POSP) for solicitation and servicing of point of sale products on behalf of life, general and health insurers.
vii Compulsory insurance (e.g., employers' liability)
The following are examples of insurance cover that are compulsory by central law:
- under the Public Liability Insurance Act 1991: accidental cover for persons handling hazardous substances and environmental issues;
- under the Motor Vehicles Act 1988: compulsory third-party liability insurance and compulsory personal accident cover;
- under the Deposit Insurance and Credit Guarantee Corporation Act 1961: insurance to be taken by the banks functioning in India;
- under the Brokers Regulations, IRDAI (Insurance Web Aggregators) Regulations 2017, IRDAI (Registration of Corporate Agents) Regulations 2015, Guidelines on Repositories and Electronic Issue of Insurance Policies of 29 May 2015, and IRDAI (Registration of Insurance Marketing Firm) Regulations 2015: professional indemnity insurance covering errors and omission, dishonesty and fraudulent acts by employees, and liability arising from loss of documents or property;
- under the Carriage by Air Act 1972: parties are required to maintain adequate insurance covering any liabilities that may arise;
- under the Rights of Persons with Disabilities Act 2016: an insurance scheme for employees with disabilities;
- under the Personal Injuries (Compensation Insurance) Act 1963: employers' liability for workers sustaining injuries;
- under the Employees State Insurance Act 1948: insurance for employees in case of sickness, maternity and employment injury;
- under the Payment of Gratuity Act 1972: insurance for gratuity payments to employees;
- under the War Injuries (Compensation Insurance) Act 1943: for workers sustaining injury in war;
- under the Marine Insurance Act 1963: insurance for marine adventures;
- under the Merchant Shipping Act 1958: insurance on the lives of crew members;
- under the Inland Vessels Act 1917: insurance of mechanically propelled vessels; and
- under the Companies Act 2013: insurance of deposits accepted by companies.
viii Compensation and dispute resolution regimes (within the financial services context)
Dispute resolution in India is broadly divided into three mechanisms: civil courts; consumer forums; and arbitration and alternate dispute resolution.
The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 (the Commercial Courts Act) provides for the establishment of specialised courts to adjudicate on disputes pertaining to transactions of merchants, bankers, financiers and traders.
Amendments were also made to the Arbitration and Conciliation Act 1996 (ACA) to ensure that commercial arbitrations are completed within a specified timeline and an attempt has been made to do away with the archaic system of awarding costs followed in India, and to make the costs more realistic.
Further detail on these regimes is provided in Section IV.
ix Taxation of premiums
Premiums received on account of insurance and reinsurance business attract applicable taxes, including goods and services tax. Income tax laws provide deductions to the policyholder on life and health insurance premiums paid.
x Proposed changes to the regulatory system
The IRDAI has issued an 'Exposure Draft on Insurance Regulatory and Development Authority of India (Conflict of Interest) Guidelines' of 8 March 2019 to provide guidance on the procedure and conditions for obtaining approval of the IRDAI for the appointment of common directors between insurers and insurance intermediaries.
The IRDAI has issued the 'Draft Insurance Regulatory and Development Authority of India (Public Disclosures for insurers transacting other than Life Insurance Business) Guidelines' of 25 March 2019 proposing revised guidelines applicable to public disclosures required for non-life insurers and reinsurers.
The IRDAI has released 'Exposure Draft on IRDAI (Minimum Information for Inspection or Investigation) Regulations' of 17 May 2019, pursuant to which insurers and insurance intermediaries are required to maintain minimum information at their principal place of business.
The IRDAI has issued 'Exposure Draft on Revisiting the product structure for Dwellings, Offices, Hotels, Shops etc and Micro, Small and Medium Enterprises against Fire and allied perils' of 20 May 2019 proposing the introduction of new insurance product structures for fire and allied perils focused on dwellings, offices, hotels, shops and micro, small and medium-sized enterprises.
The IRDAI has also issued 'Draft Guidelines on Wellness and Preventive Features/ Benefits' of 7 November 2019, which propose to supersede the earlier norms on wellness features and benefits prescribed under the 'Guidelines on Product Filing in Health Insurance' of 29 July 2016.
In 2019, the IRDAI has issued the 'Exposure Draft – Revisiting the product structure for Motor Own Damage' of 25 November 2019, which recommends the revised tariff wordings for motor insurance.
In order to bring into uniformity the wordings of health insurance policies, the IRDAI has issued an Exposure Draft re the 'Guidelines on Standardisation of General Clauses in Health Insurance Policy Contracts' of 10 January 2020, which proposes to standardise certain general clauses that are commonly incorporated in indemnity-based health insurance policies.
xi Other notable regulated aspects of the industry (e.g., ownership, mergers, capital requirements)
The minimum paid-up equity capital for an insurer is 1 billion rupees. Any direct or indirect foreign investment in an insurer is restricted to 49 per cent; the previous requirement to obtain an approval from the government of India to increase the foreign investment in an insurer from 26 per cent to 49 per cent has been removed.
The IRDAI has also mandated that insurance companies must be 'Indian owned and controlled'. The Foreign Investment Rules read with the Guidelines on 'Indian owned and controlled' of 19 October 2015 provide that Indian ownership means that more than 50 per cent of the equity capital is beneficially owned by resident Indian citizens or Indian companies, which are owned and controlled by resident Indian citizens.
The IRDAI has released the IRDAI (Investment by Private Equity Funds in Indian Insurance Companies) Guidelines 2017 of 5 December 2017, to facilitate and regulate investment by private equity funds in insurance companies, as investors and promoters. These guidelines have been made applicable to unlisted Indian insurance companies and to the private equity funds who have invested in such unlisted insurance companies. These guidelines further allow private equity funds to invest either directly in Indian insurance companies in the capacity of an investor or to invest through a special purpose vehicle in the capacity of a promoter in the insurance company.
The IRDAI has notified the Foreign Investment Amendment Rules, which increase the limit on foreign direct investment (FDI) in insurance intermediaries from 49 per cent to 100 per cent. The IRDAI also notified the circular on 'Withdrawal of Indian owned and controlled condition for insurance intermediaries' of 19 November 2019, pursuant to which the requirement of complying with 'Indian owned and controlled' was removed for insurance intermediaries.
There has been a significant increase in the volume of mergers and acquisition activity in the insurance sector in India. Additionally, various insurance companies have issued their initial public offerings in the past few years, and other insurance companies are looking to follow suit in the coming year. Press reports indicate that the Indian government is finalising the merger of three of the four state-owned general insurance firms (i.e., National Insurance, United Insurance and Oriental Insurance).
III INSURANCE AND REINSURANCE LAW
i Sources of law
The Insurance Act 1938, the Insurance Regulatory and Development Authority Act 1999, the Marine Insurance Act 1963 and the regulations, guidelines, circulars and notifications issued by the IRDAI, govern insurance and reinsurance business.
The courts may refer to common law if there are no judicial precedents available under Indian law. Common law is, however, not binding on Indian courts.
ii Making the contract
The terms and conditions of property and engineering insurance covers are currently governed by the policy wording specified by the former Tariff Advisory Committee. Very few modifications to this policy wording have been permitted. In all other lines of insurance business, insurers are permitted to issue only those policy terms and conditions, endorsements and other ancillary documentation that have either been approved by the IRDAI in advance or filed with the IRDAI, in accordance with the prescribed product filing procedures. The IRDAI has issued standardised wordings for exclusions under health insurance contracts. In addition, for health insurance policies, the IRDAI has specified a standard set of definitions, standard nomenclature for critical illness, a standard list of excluded expenses, exclusions not allowed in health insurance policies, existing diseases that may be permanently excluded, modern treatment methods that should be covered and standards and benchmarks for hospitals in the insurance network. It has also specified a number of other conditions for health insurance policies, making these policies highly regulated.
The IRDAI (Protection of Policyholders' Interests) Regulations 2017 require general insurance contracts to state several matters, including:
- the names and addresses of the insured and of any banks or any other person having financial interest in the subject matter of insurance, unique identification number of the product, name, code number, contact details of the person involved in the sales process;
- a full description of the property or interest insured;
- the location or locations of the property or interest insured under the policy and, where appropriate, with respective insured values;
- the period of insurance;
- the sums insured;
- perils covered and not covered;
- any franchise or deductible applicable;
- premium payable and where the premium is provisional, subject to adjustment, the basis of adjustment of premium be stated;
- policy terms, conditions, warranties and exclusions, if any;
- action to be taken by the insured upon occurrence of a contingency likely to give rise to a claim under the policy;
- the obligations of the insured in relation to the subject matter of insurance upon occurrence of an event giving rise to a claim and the rights of the insurer in the circumstances;
- any special conditions attached to the policy;
- the grounds for cancellation of the policy, in the case of a retail policy;
- the address of the insurer to which all communications in respect of the insurance contract should be sent;
- the details of the endorsements and add-on covers attaching to the main policy;
- that, on renewal, the benefits provided under the policy or terms and conditions of the policy, including the premium rate, may be subject to change; and
- details of the grievance redressal mechanism along with the address and other contact details of insurance ombudsman within whose territorial jurisdiction the branch or office of the insurer or the residential address or place of residence of the policyholder is located.
Similarly, the IRDAI (Protection of Policyholders' Interests) Regulations 2017 specifies the matters to be stated in a health and life insurance policy as well. Further, all condition precedents and warranties are required to be stated in express terms in the policy documentation.
In addition, all product literature is required to be in 'simple language' and 'easily understandable to the public at large', and all technical terms used in the policy wording are to be clarified to the insured. To the extent possible, insurers are also required to use similar wording for describing the same insurance cover or the same requirements across all their products, particularly in relation to clauses on renewal, basis of insurance, due diligence, cancellation and arbitration.
An insurance contract is one of utmost good faith, and insurers are entitled to a fair presentation of the risk prior to inception. The Indian Marine Insurance Act 1963 obliges an insured to make a full and frank disclosure prior to inception, and the Supreme Court has stated that this includes by way of the proposal. There is an argument that an insurer may limit the insured's duty by limiting the questions asked in the proposal form unless the proposal form contains a statement that has the effect of negating any restriction of the disclosure obligation by reference to the questions asked. The IRDAI (Protection of Policyholders' Interests) Regulations 2017 also impose an obligation on the insured to disclose all material information.
If there has been a misrepresentation or non-disclosure of a material fact, then an insurer may avoid the policy ab initio. Unless the misrepresentation or non-disclosure was fraudulent, the premium must be returned to the policyholder.
iii Interpreting the contract
In general terms, the statutory framework may be said to favour insurers more than insureds, but the regulatory framework and the interpretation of applicable law is perhaps more favourable to insureds. For example:
- the courts and consumer forums have held that if there is any ambiguity in the terms and conditions, then these shall be construed in favour of the insured;
- the Insurance Act 1938 restricts the ability of insurers to call a life insurance policy into question after three years from inception on any grounds, including fraud;
- the IRDAI (Protection of Policyholders' Interests) Regulations 2017 provide, among other obligations, that insurers must follow certain practices at the point of sale of the policy as well as at the processing or claims stage so that:
- the insured can understand its terms properly;
- insurers have proper procedures and mechanisms to hear any grievances of the insured;
- the policy terms are clearly stated (e.g., warranties, conditions, insured's obligations, cancellation provisions, conditions precedent);
- certain claims procedures are followed to expeditiously process claims; and
- insurers pay interest at a rate of 2 per cent above the prevalent bank rate in cases of delayed payment, etc.;
- following the IRDAI (Health Insurance) Regulations 2016 (the Health Regulations), general insurers and health insurers are ordinarily required to renew a health insurance policy except on grounds of fraud, moral hazard, misrepresentation or non-cooperation by the insured. Renewal cannot be denied on grounds such as an adverse claims history. Moreover, according to the Guidelines on Product Filing Procedures for General Insurance Products issued by the IRDAI in February 2016, in a general insurance policy, the insurer can cancel the policy mid-term only on grounds of fraud, misrepresentation and moral hazard;
- the IRDAI has also directed that all health insurance policies offer portability benefits whereby policyholders are given credit for the waiting periods already served under previous health insurance policies with that insurer or any other Indian insurer; and
- pursuant to the Health Regulations, the IRDAI is also monitoring wellness benefits provided to policyholders under health insurance policies by mandating that such policies clearly stipulate the manner of calculation, accrual, redemption and carrying forward of such benefits.
Another feature of the insurance sector concerns government-owned insurers, which are considered instruments of the state and are thus expected to act justly and reasonably.
iv Intermediaries and the role of the broker
Insurance brokers, corporate agents, web aggregators, referral companies, insurance marketing firms and insurance agents are granted a licence for a fixed period of three years, following which the licence may be renewed for a further three years at the discretion of the IRDAI.
Insurance brokers and web aggregators are required to exclusively carry on the distribution of insurance products, while corporate agents may have a main business other than the distribution of insurance products, and newly introduced insurance marketing firms are allowed to sell or service other financial products.
If a corporate agent has a main business other than insurance distribution, then it is not permitted to make the sale of its products contingent on the sale of an insurance product or vice versa. Corporate agents were previously restricted to acting for a maximum of one life insurer and one general insurer, however, following the notification of the IRDAI (Registration of Corporate Agents) Regulations 2015, they are permitted to adopt an open architecture under which they can act for up to three life insurers, three general insurers and three health insurers.
The IRDAI's regulations specify separate codes of conduct for each insurance intermediary that governs the conduct expected of each intermediary while performing their functions. Breach of the respective code of conduct could lead to suspension or cancellation of their licence or certificate of registration.
The regulatory limits on the commission or remuneration payable to insurance agents and insurance intermediaries for the solicitation and procurement of insurance business continue to remain under the IRDAI (Payment of Commission or Remuneration or Reward to Insurance Agents and Insurance Intermediaries) Regulations 2016 (Commission Regulations), as amended from time to time. However, insurers are now permitted to make other payments in the form of rewards to insurance agents or insurance intermediaries.
Insurance agents and insurance intermediaries are also prohibited from offering rebates to customers on the premium or commission receivable.
All insurance brokers are required to be part of the Insurance Brokers Association of India.
Insurance policy terms and conditions are meant to specify the requirements for notification of claims or circumstances that may give rise to a claim. In our experience, usually the notification of a claim is required 'immediately', 'as soon as practicable', 'as soon as reasonably practicable', etc. Although it is common for these clauses to be expressed as conditions precedent to the insurer's liability to make payment of the claim, the IRDAI through its Circulars dated 20 September 2011, 28 October 2016 and 28 June 2017, has mandated that insurers should not deny claims, which have been otherwise verified as genuine, in a mechanical manner on the ground of delay in notification where such delay was due to unavoidable circumstances.
However, judicial decisions have taken a different approach in that the rejections of claims on the ground of delayed notification have been upheld. The position is not settled. Following the IRDAI Circulars, the Supreme Court two-judge bench in Om Prakash v. Reliance General Insurance and Anr2 held that delayed notification cannot be a basis for rejecting claims where such delay has been satisfactorily explained and otherwise proved to be genuine. However, this view appeared to deviate from the previous judgment of 2010 delivered by another two-judge bench of the Supreme Court in Oriental Insurance Co Ltd v. Parvesh Chander Chadha,3 where the court took the view that the claim deserved to be repudiated because of the delay in informing the insurance company.
In an August 2018 judgment, A three-judge bench of the Supreme Court in Sonell Clocks v. NIA,4 observed that the rejection of the claim on the ground of delayed notification is 'not a technical matter but sine qua non [an indispensable condition] for a valid claim to be pursued by the insured, as agreed upon between the parties'.
In recent cases, the National Commission has considered the delay in notification but not for repudiation, and only to reduce the quantum. In Shriram General Insurance v. Kamlesh, decided on 21 June 2019, the National Commission held that timely intimation to the police and the insurer is necessary because it affords them the opportunity to conduct proper investigations. In this case, there was a delay of four days in intimating the police and two days in notifying the insurer. The Commission held that while the insured had 'violated the condition of the policy by not immediately giving information to the Insurance Company', it was still entitled to receive 60 per cent of the claim amount on a 'non-standard basis'. In Royal Sundaram Alliance Insurance Co Ltd v. Manish Shivlabhai Kalavadiya,5 the National Commission held that 'the claim can be accepted on the non-standard basis' as there was a delay of five days in informing the insurer.
Recently on 24 January 2020, a three-judge bench of the Supreme Court, in Gurshinder Singh v. Sriram General Insurance Co Ltd,6 took a view favourable to the insured in case of vehicle theft. The Court held that 'when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors / investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured'.
Insurance policy terms and conditions are also meant to expressly state the insurer's grievance redressal procedure and the applicable dispute resolution provisions for differences or disputes arising under the policy. While there are no specific regulatory requirements in this regard, it is common for retail policies to give exclusive jurisdiction to the Indian courts and commercial lines policies to contain express arbitration provisions.
General insurance policies are usually annually renewable policies with the entire premium being paid in advance, and it is not common to offer these policies on a long-term basis or to provide for premium payments in instalments. Life insurance policies usually have policy terms of at least 10 years and, unless a single premium is payable in advance, it would usually be payable at regular intervals during the policy terms. All life insurance policies are required to contain express provisions and conditions for reinstatement of the policy in the event of discontinuance of premium payments.
IV DISPUTE RESOLUTION
i Jurisdiction, choice of law and arbitration clauses
Policyholders have a statutory right to sue for relief under an insurance policy in Indian courts, and Indian law shall be applicable. This right cannot be abridged by the terms of the insurance policy or otherwise.
It is common for retail policies to be subject to the exclusive jurisdiction of Indian courts and for commercial lines policies to contain arbitration clauses.
An insured can approach a civil court or (if the dispute qualifies) a consumer court. An insurer can only approach a civil court. Both civil and consumer courts have territorial and pecuniary jurisdiction, so actions before them need to be brought keeping in mind the geographical location pertaining to the cause of action or the place where the defendant resides and the value of the claim.
The consumer courts follow a three-tier hierarchy that comprises, in ascending order, the district forums, followed by the state consumer dispute redressal commissions (the state commissions), followed by the National Consumer Dispute Redressal Commission (NCDRC). There are 626 district forums, which can accept claims up to a value of approximately US$28,570; and there are 36 state commissions, which can accept claims of between approximately US$28,570 and US$143,000, and appeals against the decisions of the district forums. At the apex lies the NCDRC, which accepts matters with a value of over US$143,000 and appeals against the decisions of the state commissions. A decision of the NCDRC on matters with a minimum value of US$143,000 can be challenged before the Supreme Court (the country's highest court). The Consumer Protection Act 2019 was passed by Parliament on 9 August 2019, which enhances the pecuniary limits to US$139,898 for the district forums, US$1,399,110 for the state commissions and above US$1,399,110 for the NCDRC. However, the Consumer Protection Act 2019 will come into force only once it is notified by the government.
Similarly, the broad ascending hierarchy of the civil courts comprises around 600 district courts, 25 high courts and the Supreme Court, which only hears appeals and cases from the lower courts that involve breaches of fundamental rights. Four of the 25 high courts (Delhi, Bombay, Madras and Calcutta) have original jurisdiction to hear matters of a civil nature over a certain pecuniary value. One of the high courts (Delhi) has jurisdiction to hear matters involving pecuniary values of US$279,851 and above. The district courts under them do not hear matters involving values higher than that limit. The remaining district courts have an unlimited pecuniary jurisdiction, and are the competent courts of first instance to hear any insurance dispute falling within their territorial jurisdiction. The Commercial Courts Act has led to the establishment of commercial courts at the district level and commercial division, and commercial appellate division benches within the high courts. These commercial courts are specially assigned to hear insurance and reinsurance matters, among other disputes. The pecuniary jurisdiction of these courts is disputes that have a value of US$4,211.35 and above. There is no right to a hearing before a jury, and cases are decided by judges.
Unless otherwise expressly provided in law, an appeal lies from every decree passed by a court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court, unless such decree has been passed with the consent of the parties.
As a general rule, an appeal will lie if there is a substantial question of law involved. Facts established at the lower court are not normally disturbed.
In civil disputes, the usual sequence is that the decision of a district court is appealable before a single judge of a high court. The single judge's decision can be appealed before a division bench of the high court. The final stage of appeal is before the Supreme Court.
The limitation period for filing an appeal ranges from 30 to 90 days depending on the stage of appeal, and delays can be condoned at the court's discretion for sufficient cause shown and reasonable reasons resulting in such delay.
The Code of Civil Procedure 1908 (CPC) governs the method of instituting and trying civil suits. The Commercial Courts Act provides, for the first time, for summary judgment in a suit. Under this Act, plaintiffs can apply for summary judgment in a suit after summons have been served upon a defendant. If the court is convinced that the defendant has no real prospect of succeeding in a claim, it may grant a summary judgment. In other circumstances, the court may pass conditional orders allowing a defendant to defend the suit after payment of a deposit or on such other terms as the court may deem fit.
The CPC allows either party to the action to apply to the court for an order directing the other to make discovery. The court will consider the relevance of the documents requested for the dispute to be determined, and direct the discovery of a particular document or type of document accordingly. The CPC also allows a party to give notice to the other party in whose pleadings or affidavits a reference is made to any document to produce the document for inspection. Non-compliance with a discovery order can lead to the dismissal of the action or defence, as the case may be. The CPC also allows a court to summon any person, even if that person is not a party to the proceedings, and direct him or her to produce any document, material or testimony regarding the dispute, and to do so in person at the court.
Indian courts have held that the position under Indian law relating to privilege is similar to that under English law. In this regard, the Bombay High Court has effectively recognised privilege over documents created in contemplation of litigation. As regards documents prepared in the course of settlement negotiations or attempts, it is common for parties to mark them 'without prejudice', but they are not expressly protected as privileged documents under the Evidence Act, and as a matter of practice are commonly produced before courts.
Courts have the power to require witnesses who are within their jurisdiction to give evidence and to issue an arrest warrant if a witness refuses to comply. A court cannot compel the attendance of a witness outside its jurisdiction, and thus cannot impose any penal consequences for non-attendance. The CPC allows a court to issue a commission for the examination of a witness outside its jurisdiction and allows it to issue a commission for the examination of a person resident outside India. If the person whose attendance as a witness is deemed necessary by the court is a party to the action and this person fails to attend or give evidence, the court may, in considering the absence of this person, dismiss the plaint or the defence, as the case may be.
Courts may award the successful party its costs, but the award is at the court's discretion. It is common for costs awards to be made in favour of a successful party, but the level of costs awarded is rarely sufficient to cover the actual costs incurred. The Supreme Court has commented that costs awards are too low, and therefore do not serve as a deterrent to discourage vexatious litigation. Referring to a statutory upper limit of US$41.91 for costs awards in the case of vexatious litigation, the Supreme Court suggested that Parliament should consider raising the limit to US$1,398. The Commercial Courts Act attempts to rectify the situation, as it amends the CPC to permit courts to grant actual costs to a successful party. In view of the low level of costs awarded, there are, as yet, no material advantages in making a pretrial offer in civil litigation.
In addition, Section 89 of the CPC embraces a provision for the settlement of disputes outside court. All cases that are filed in court need not necessarily be decided by the court itself. Considering the time taken for legal proceedings and the limited number of judges available, it has become imperative to resort to an alternative dispute resolution (ADR) mechanism with a view to end litigation between parties at an early date. The ADR mechanism as contemplated by Section 89 is arbitration, conciliation or judicial settlement, including settlement through a Lok Adalat (a mode of ADR) or mediation. There is usually a mediation cell associated with each court.
The ACA is based on the UNCITRAL Model Law. The ACA preserves party autonomy in relation to most aspects of arbitration, such as the freedom to agree upon the qualification, nationality and number of arbitrators (provided this is not an even number), the place of arbitration and the procedure to be followed by the tribunal. The principle of party autonomy has recently been confirmed by the Supreme Court in a number of cases. The decisions restrict the scope of the Indian courts to intervene in respect of those arbitrations where the seat is non-Indian.
The Arbitration and Conciliation (Amendment) Act 2015 (the 2015 Amendment Act) amended the ACA. This 2015 Amendment Act made the ACA a preferred reference for settlement of commercial disputes, as it not only sets out strict timelines for completion of the arbitral proceedings but also permits parties to choose to conduct arbitration proceedings in a fast-track manner, with the award being granted within six months. In addition to the foregoing, a cost regime with regard to providing the costs of arbitration proceedings to a successful party has also been set out.
On 9 August 2019, the Arbitration and Conciliation (Amendment) Act 2019 (the Amendment Act) came into force, which introduced further changes to the ACA. The Tribunal now has a time frame of six months for the completion of pleadings and 12 months thereafter to conclude the arbitration. This period can be extended by another six months upon the consent of the parties, but any further extensions can only be granted by a court.
The ACA expressly bars the courts from intervening in an arbitral proceeding except to the extent this is provided for in the Act itself. For example:
- where a party files an action before a court in spite of an arbitration agreement, the other party can apply to that court to refer the dispute to arbitration instead;
- a party can apply to a court for interim remedies;
- a party can seek the court's assistance for the appointment of an arbitrator if the other party refuses to cooperate in the process;
- a party can seek the court's assistance for recording evidence; and
- the court can set aside an award in an arbitral proceeding where it has been passed following material errors of jurisdiction or in prejudice of the public interest. The court's power is limited in this regard, and it cannot interfere in the reasoning given for arriving at the award.
iv Alternative dispute resolution
The ACA recognises arbitration and conciliation as valid forms of ADR.
The courts may direct the parties to refer their disputes to ADR with the parties' consent. There are a number of mediation cells associated with the courts. The mediator is either selected by the parties or by the court. The mediator acts as a facilitator to encourage parties to settle their disputes. However, unlike arbitration, the mediation process is not binding on either party. The Commercial Courts Act contemplates compulsory mediation between the parties prior to filing of a suit unless urgent interim relief is sought.
V YEAR IN REVIEW
The Indian insurance sector has witnessed significant changes over the past year. The following regulations have been introduced:
- The Foreign Investment Amendment Rules were notified, which increased the limit on FDI in insurance intermediaries from 49 per cent to 100 per cent. The IRDAI also notified the circular on 'Withdrawal of Indian owned and controlled condition for insurance intermediaries' of 19 November 2019, pursuant to which the requirement of complying with 'Indian owned and controlled' was removed for insurance intermediaries.
- Pursuant to the Foreign Investment Amendment Rules, the IRDAI (Insurance Intermediaries) (Amendment) Regulations 2019 (the Intermediaries Amendment Regulations) were notified, which amended the existing regulations governing insurance intermediaries in line with the Foreign Investment Amendment Rules. Insurance intermediaries having a majority shareholding of foreign investors are required to submit an undertaking to the IRDAI, stipulating compliance with certain additional conditions, in the prescribed format.
- The IRDAI (Non-Linked Insurance Products) Regulations 2019 and the IRDAI (Unit Linked Insurance Products) Regulations 2019 were issued, which superseded the erstwhile regulations governing issuance of linked and non-linked life insurance products in India.
- The IRDAI (Regulatory Sandbox) Regulations 2019 and the 'Guidelines on operational issues pertaining to the Regulatory Sandbox' of 22 August 2019 were issued to facilitate the creation of a regulatory sandbox environment for testing new business models, processes and proposals and applications, to strike a balance between orderly development of the insurance sector by facilitating innovation on the one hand and the protection of policyholders' interests on the other. The IRDAI has recently notified the proposals, which have been accepted under the sandbox.
- The first amendment to the IRDAI (Insurance Brokers) Regulations 2018 was notified, pursuant to which the restriction on a subsidiary company being a promoter in an insurance broker was relaxed.
- The IRDAI (Health Insurance) (Amendment) Regulations 2019 and the IRDAI (Third Party Administrator – Health Services) Regulations 2019 were notified.
- In addition to the above, numerous circulars were issued stipulating the following:
- revised guidelines with respect to group life insurance products;7
- norms governing communications made by insurers to policyholders and claimants with respect to servicing of policies and claims;8
- norms required to be complied with by all general and stand-alone health insurers, with respect to insurance policies issued towards domestic and overseas travel coverage;9
- filing of minor modifications to the approved general and health insurance products10 and life insurance products;11 and
- standardisation of exclusions in health insurance policies, pursuant to which, inter alia, certain exclusions are prohibited from being incorporated in health insurance policies and insurers are required to use the standardised wordings for the exclusions as stipulated therein.12
VI OUTLOOK AND CONCLUSIONS
The Indian insurance industry has seen significant growth and development in recent years. The removal of the requirement to seek approval from the Indian government to increase the foreign investment cap from 26 per cent to 49 per cent in insurers and insurance intermediaries is one of the factors that has led to an increase in the quantum of economic investments in existing Indian players, along with various foreign players exploring options of setting up insurance joint ventures in India. The recent removal of the foreign investment cap for insurance intermediaries is expected to attract more international players into the Indian market. Moreover, there has been a noteworthy increase in the number of players in the reinsurance space, whereby several foreign reinsurers have recently been permitted to set up branches in India. Lloyd's of London has set up a branch office in India under the Lloyd's India Regulations. Further, with insurers being permitted to issue products under the 'use-and-file' process, there has been an increase in product development and innovation in India.
However, these significant, and frequent, changes to the regulatory environment have led to a state of flux in the insurance industry. For instance, with the notification of the Foreign Investment Amendment Rules and the Intermediaries Amendment Regulations, 100 per cent FDI has been permitted in the insurance intermediary space. However, the reaction and feedback of the insurance industry remains to be seen with respect to the additional conditions stipulated under the Foreign Investment Amendment Rules and Intermediaries Amendment Regulations, particularly with respect to the conditions stipulating that the majority of key managerial persons and directors of an insurance intermediary having a majority shareholding of foreign investors be Indian residents.
Various regulatory amendments have been made in the past year and further amendments are expected. For instance, a committee set up by the IRDAI, in its final recommendations, suggested revising the existing motor tariff structure in India. In addition, in order to make available a standard health product across the industry, the IRDAI has issued guidelines for standard individual health insurance products. In order to bring into uniformity the wordings of health insurance policies, the IRDAI has issued an Exposure Draft of the 'Guidelines on Standardisation of General Clauses in Health Insurance Policy Contracts' of 10 January 2020, to propose standard general clauses that are commonly incorporated in indemnity-based health insurance policies.
Over the past few years, the Indian jurisdiction has seen a consistent growth in the volume and quantum of financial line claims, particularly in the professional indemnity and directors and officers sector given the dynamic economic and regulatory environment. We are also seeing increasing interest and development in the cyber sector in terms of the wording and the post-claim support being offered by the insurers, given the increasing claim notifications and the attached quantum. We believe the upwards trend is likely to continue in the coming year.
1 Neeraj Tuli is the senior partner and Celia Jenkins is a partner at Tuli & Co.
2 Civil Appeal No. 15611 of 2017, decided on 4 October 2017.
3 Civil Appeal No 6739 of 2010, decided on 17 August 2010.
4 (2018) 9 SCC 784.
5 RP No. 2659/13, decided on 27 August 2019.
6 SLP No. 24370/2015.
7 Circular on 'Group Life Insurance Products and other operational matters' of 26 September 2019.
8 Circular on 'Information to the insurance policyholders/claimants about various insurance policy services' of 10 April 2019.
9 Circular on 'Travel Insurance Products and operational matters' of 27 September 2019.
10 Guidelines on Filing of Minor Modifications in the approved Individual Insurance Products offered by General and Stand Alone Health Insurers on Certification Basis of 20 September 2019.
11 IRDAI's Circular re 'Use and File Procedure for certain modifications under existing products and riders offered by Life Insurers' of 26 July 2019.
12 Guidelines on Standardisation of Exclusions in Health Insurance Contracts of 27 September 2019.