Showing posts with label Insurance for disabled. Show all posts
Showing posts with label Insurance for disabled. Show all posts

Tuesday, December 13, 2022

Delhi HC: Right to Life includes Right to Health, Referring to persons with disabilities as 'sub-standard lives' is 'unacceptable terminology', directs IRDAI to act.

Court: High Court of Delhi at New Delhi

Bench: Justice Pratibha M Singh

Case No:  W.P.(C) 6074/2019

Case Title: Saurabh Shukla Vs. Max Bupa Health Insurance Co. Ltd. & Ors.

Date of  Order: 13 December 2022

Next Date of Hearing: 17 March 2023

Brief of the Case:

Observing that the right to life includes the right to health, the Delhi High Court has directed the insurance regulator to call a meeting of all insurance companies to design health insurance schemes for people with disabilities and introduce them preferably within two months.

The court also asked the Insurance Regulatory and Development Authority of India (IRDAI) to take immediate steps to modify the terminology "sub-standard lives" in their regulations to ensure that such "unacceptable terminology" is not used while referring to persons with disabilities.

The court said people with disabilities are entitled to health insurance cover and cannot be discriminated against. The court observed, "It is the settled position in law that the Right to Life includes the right to health and healthcare is an integral part of the same... The Rights of Persons with Disabilities Act 2016 leaves no ambiguity insofar as the entitlement of persons with disabilities for insurance. A perusal of Sections 3, 25 and 26 makes it clear that person with disabilities cannot be discriminated against insofar as healthcare and other connected aspects are concerned" .

"The IRDAI, shall call a meeting of all insurance companies to ensure that the products are designed for persons with disabilities and other persons in terms of the circular dated 2nd June, 2020. The process of designing such products shall be supervised by the IRDAI and it shall be ensured that the said products are introduced on an early date, preferably within two months," she said.

The court's order was passed on a petition by an investment professional Mr Saurabh Shukla, who is a wheelchair due to Tetraplegia that left him paralysed below the chest. Shukla was never hospitalised and two insurance companies refused to give him health insurance that lead to filing of the present case.

The court said the United Nations Convention of the Rights of Persons with Disabilities, 2006 prohibits discrimination against persons with disabilities in the provision of health insurance and that in the present case the rejection of the petitioner's proposal by the insurance companies with cryptic rejection letters was disconcerting.

The court said irrespective of the economic standing of a person with disability, insurance coverage cannot be rejected or refused and asked the insurance providers to consider the case of the petitioner for issuance of a health insurance policy.

"This Court is of the opinion that there is no doubt that persons with disabilities would be entitled to health insurance coverage and products would have to be designed to enable them to obtain health insurance coverage," the court said.

It overserved that even under the regulatory framework insurance companies have to give insurance cover to persons with disabilities, persons with HIV as well as persons affected with mental illness and IRDAI ought to ensure that its circulars and other policies are duly given effect to by the insurance companies.

"The stand of IRDAI before this Court both in the Counter affidavit, Circular and in the oral submissions does not match with the inaction when the issue was brought to its notice. The IRDAI ought to have stepped up and ensured that the insurance companies offer adequate products for persons with disabilities," the court said.

"Refusal to issue a health insurance policy to the Petitioner ought to have been a warning bell to the IRDAI. Unfortunately, despite the above settled legal position and the IRDAI's position on record, there is a disconnect in implementation," it added.

The court has now sought a status report from IRDAI and insurance companies and listed the case for further hearing on March 17, 2023. 

Read the Judgement in PDF below or Download (PDF 844KB).

   


IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

Date of Decision: 13th December, 2022

W.P.(C) 6074/2019

SAURABH SHUKLA                                        ..... Petitioner

versus

MAX BUPA HEALTH INSURANCE CO. LTD. AND ORS. ..... Respondent


CORAM:

JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

          

1. This hearing has been done through hybrid mode.

Brief Facts

2. The inherent challenges for persons with disabilities are further exacerbated by institutions which fail to recognise rights of such persons as provided for in law. The present petition raises issues concerning denial of health insurance for persons with disabilities.

3. The present petition has been preferred by Mr. Saurabh Shukla who is suffering from Tetraplegia and paralysis below his chest due to a spinal cord injury which he suffered in 2011.  He is confined to a wheelchair and has limited use of his arms. Despite the injury, he is currently working as an investment professional with a hedge fund and is working from home.  

4. It is the case of the Petitioner that he approached two insurance companies i.e, Max Bupa Health Insurance Co. Ltd. & Oriental Insurance Co. Ltd., for seeking a Mediclaim/Health Insurance. However, both the companies refused to issue any health insurance policy to the Petitioner.  Thereafter, the Petitioner submitted a representation vide an email dated 7th January, 2018 to the Court of the Chief Commissioner for Disabilities. The Dy. Chief Commissioner of the Court of the Chief Commissioner for Disabilities vide letter dated 14th March, 2018 took up the matter with The Chairperson, Insurance Regulatory and Development Authority of India (IRDAI). The relevant extract of the communication addressed to the Chairperson, IRDAI is as follows: 

“2. Section 75 of the Rights of Persons with Disabilities Act, 2016 mandates the Chief Commissioner for Persons with Disabilities on his own motion or on application of any aggrieved person or otherwise to look into the complaints inter-alia, with respect to matters relating to deprivation of rights of persons with disabilities and to take steps to safeguard the rights and facilities made available to them.

3. You are advised to look into the matter and advice the insurance companies to initiate the policies for persons with disabilities. It is ensured that persons with disabilities are not deprived of their legitimate rights. Action taken in the matter may please be sent to this Court within 30 days from the date of receipt of this communication.”  

5. In their reply dated 4th May, 2018, the General Manager (Health), IRDAI simply stated that the regulatory mechanism to enable insurance companies to provide health insurance covering existing disability already exists. However, no positive reply or consideration in regard to the case of the Petitioner for issuance of a health insurance policy was given. The reply concluded with the following extract:

“Therefore, taking into consideration the needs of the targeted market segment, Insurers design the products, which is in their domain. It is essential that the products that the insurance companies design shall be financially viable and seif-sustainable for them to meet the liabilities as and when the claim arises”

Thus, the IRDAI turned a blind eye to the problem and defended the insurance companies.

6. In this factual background, the Petitioner has approached this court with the present petition seeking quashing of the rejection of his Health Insurance application by the insurance companies. Further, he also seeks a writ of mandamus directing the Respondent Insurance companies i.e, Max Bupa Health Insurance Co. Ltd. & Oriental Insurance Co. Ltd. to issue a Health Insurance policy to him.

Application for Health Insurance

7. Today, none appears for Max Bupa Health Insurance Co. Ltd.  Mr. Rajiv Jaiswal, ld. Counsel appears for the Oriental Insurance Co. Ltd. He submits that as per the application form submitted by the Petitioner, he suffers from various medical conditions which are serious in nature. The Petitioner has also truly and diligently filled in his application for issuance of health insurance and self-declared his existing disabilities.  As per the self-declaration form filled by the Petitioner, these conditions include:

(i) Quadriplegia i.e., paralysis of arms and legs 

(ii) Respiratory Distress due to undergoing Tracheostomy following the spinal cord injury

(iii) Stones in Bladder 

(iv) Threat of urinary diseases/infection due to the requirement to use a Foley Catheter                urine drainage

The relevant portion of the Mediclaim Insurance Proposal Form filled by the Petitioner while applying for issuance of Health Insurance Policy from The Oriental Insurance Company Limited, is relied upon. 

8. As per the said form, the Petitioner is confined to a wheelchair and suffers from respiratory diseases.  

9. Upon the application for issuance of a Health Insurance policy being received from the Petitioner, the question of issuing a policy to him was considered at the level of the regional office. However, the request for issuance of a health insurance policy was denied due to adverse medical history as also on the ground that Max Bupa has also refused to issue Health Insurance to the Petitioner. The same was communicated to the Petitioner vide email dated 8th February, 2019.  Ld. Counsel for Oriental Insurance submits that as per the policies of the insurance company whenever a Mediclaim policy is sought, the same is only issued after evaluating the risks involved. He further submits that in the present case, the Petitioner was considered to be not entitled to a Health insurance policy, considering his medical history.

10. As per the record, the Petitioner had also approached Max Bupa Health Insurance Company (hereinafter ‘Max Bupa’) with a request for issuance of Health Insurance Policy. However, in the correspondence with Max Bupa, it has been claimed by the Petitioner that his request was rejected without even looking at his medical records. In response to the contentions raised by the Petitioner, the following response was given by the General Manager, Customer Services, Max Bupa vide emails dated 30th January, 2018 and 5th February, 2018 to the following effect:

“We hope you will appreciate that an underwriter while underwriting is bound by certain conditions as mentioned in Underwriting Policy (filed with the regulator), Underwriting Manuals and SOPs. During the Underwriting process, the underwriter, evaluates each individual's medical history and takes appropriate action based on the severity and prognosis of the condition(s), upon full assessment of facts. The underwriter has to decide whether the proposed insured's declared condition presents a future medical risk and thereby takes a decision on whether to accept the risk, apply exclusions or decline the risk. In case of an unacceptable risk, the insurer cannot issue the policy as requested by the customer.”

Discussion

11. At this stage, the court queried the ld. Counsel for Oriental Insurance Company if any disabled person has been issued a health insurance policy by the said company. Upon this query being raised by the Court Mr. Jaiswal, ld. Counsel submits that he does not have instructions in this regard.

12. On behalf of the IRDAI, Mr. Nag, ld. Counsel relies upon Regulation 8(b) and 8(c) of the Insurance Regulatory and Development Authority of India (Health Insurance) Regulations, 2016 which mandates that health insurance coverage shall be provided to disabled persons. Regulation 8 of the said regulations are extracted below:

“8. Underwriting 

a. All Life Insurers, General Insurers and Health Insurers shall evolve a Health Insurance Underwriting Policy which shall be approved by the Board of the Company. Every Insurer shall also put in place measures for periodical review of the underwriting policy in tune with the changes affecting the medical field and health insurance business.

b. The underwriting policy shall also cover the approach and aspects relating to offering health insurance coverage not only to standard lives but also to sub-standard lives. It shall have in place various objective underwriting parameters to differentiate the various classes of risks being accepted in accordance with the respective risk categorisation. 

c. Any proposal for health insurance may be accepted as proposed or on modified terms or denied wholly based on the Board approved underwriting policy. A denial of a proposal shall be communicated to the prospect in writing, by recording the reasons for denial. Provided, the denial of the coverage shall be the last resort that an insurer may consider.

d. General Insurers and Health Insurers may devise mechanisms or incentives to reward policyholders for early entry, continued renewals (wherever applicable), favourable claims experience, preventive and wellness habits and disclose upfront such mechanism or incentives in the prospectus and the policy document, by complying with the norms specified under Product Filing Procedure Guidelines. Provided that what is proposed to be covered as part of wellness habits and preventive habits be clearly defined in each and every product.

e. The insured shall be informed in writing of any underwriting loading charged over and above the premium as filed and approved under the Product Filing Guidelines and specific consent of the policyholder for such loadings shall be obtained before issuance of a policy.”

13. Ld. Counsel further submits that a recent circular issued by the IRDAI dated 2nd June, 2020 also requires companies to evolve health insurance policies for persons with disabilities, HIV/AIDS and persons affected with mental illness diseases. The said circular reads as: 

“Ref: IRDAI / HLT/ MISC / CIR / 129 / 06 / 2020  

  2nd June, 2020

To, All Insurers (Except ECGC and AIC)

Sub: Disclosure of underwriting philosophy of offering Insurance coverage to Persons with Disability (PWD) and people affected with HIV/AIDS and Mental Illness diseases.

1.    Reference is drawn to the provisions of IRDAI (Health Insurance) Regulations, 2016 in accordance to which every insurer shall evolve a health insurance underwriting policy covering approach and aspects relating to offering health insurance coverage not only to standard lives but also to substandard lives. Further insurance companies shall also comply with various provisions of HIV and AIDS Prevention and Control Act, 2017 and Mental healthcare Act, 2017.

2.  Notwithstanding the above provisions, it is considered essential that the targeted population of every insurer shall have complete information on the philosophy that insurers adopt while complying with the above referred provisions.

 3.     In furtherance to above, all Insurers are instructed to publish on their respective websites the underwriting philosophy and approach with regard to offering insurance coverage to the following category of population:

     a.    Persons with Disabilities ( PWD)

     b.    Persons affected with HIV /AIDS

     c.    Persons affected with Mental Illness diseases.

 4.    All Insurers (Life, General and Health Insurers) are here by directed to comply with the aforesaid instruction by 01st October, 2020.

 5.    This has the approval of the competent authority.”

14. Upon being questioned by the court as to whether IRDAI has received or approved any products for offering health insurance for persons with disabilities, Mr. Nag, ld. Counsel submits that he would require to seek instructions in this regard.  

Observations

15. It is observed that in the counter affidavit, IRDAI has taken a stand that the regulations do not specify that policies could be modified on a case-by-case basis, based on the individual requirements of the person seeking insurance. Upon the denial of an insurance policy the reasons have to be communicated to the person. Paragraph 6 of the Counter Affidavit which refers to Regulation 8(c) of the IRDAI Health Regulations, 2016 clearly states that the denial of health insurance coverage shall be the last resort of the insurer. The relevant extracts of the counter affidavit of IRDAI are set out below:

“2. At the outset, it is important to highlight the standard insurance companies have to meet in order to deny health insurance. Decisions such as the impugned decisions are underpinned on the underwriting policy of each insurance company. It is the practice of all companies to have such a policy, and it is this policy that dictates the instances in which insurance is either issued or denied to an applicant. This policy being a private document, is naturally subject to law. In order to appreciate the legal framework within which these policies operate, it is important to take note of Regulation 8 of the IRDAI (Health Insurance) Regulations, 2016 (hereinafter referred to as the "2016 Regulations") which deals with underwriting policies, and specifically Regulation 8 (c) which is reproduced below for convenience;

"Any proposal for health insurance may be accepted as proposed or on modified terms or denied wholly based on the Board approved underwriting policy. A denial of a proposal shall be communicated to the prospect in writing by recording the reasons for denial. Provided, the denial of the coverage shall be the last resort that the insurer may consider."

  (emphasis supplied)

 3. Evidently therefore, it has been left to the commercial wisdom of insurance companies to determine which risks they are able to undertake in the underwriting policy, and accordingly issue or deny health insurance policies/Crucially however, this freedom has been circumscribed by the proviso which states that denial of a policy can only be the last resort i.e. insurance companies must insure an applicant, if they can. Regulation 8 (c) also mandates the insurance companies to modify their terms if required to meet the needs of a particular applicant. Undoubtedly therefore, the company must evaluate each and every applicant and if it is theoretically possible to issue an insurance policy, the law requires them to do so. The rationale behind such law is evident in that insurance companies are serving an important public function, and they cannot be permitted to take decisions based solely on their own whims or on the principles of profit maximisation. This reasoning becomes even more relevant when their grossly illegal actions are seen in the context of the Petitioner, a disabled person and one who may not meet their expectation of a highly profitable policy holder but one who in fact needs their services the most. Various international conventions, domestic statutes and directive principles of state policy clearly state that India must move towards a society where disabled people are not discriminated against and the summary refusal by the Respondent companies flagrantly violate these principles.

 XXXX XXXX         XXXX

5. In any case, it is submitted that as described above, the only question to be answered while issuing or denying a health insurance policy is to determine whether it is possible to insure the particular applicant. If it is possible, there is a positive obligation on the companies to extend insurance to the applicant. In order to answer this question, it is important to understand the broad contours of the insurance business.

    XXXX XXXX         XXXX

6. Therefore, if at all the Respondent companies' actions can be justified, they can only be done so on the ground that the Petitioner's probability of filing a claim each year is too close to 1. In such a scenario, the Petitioner would be placed in a pool of people all of whom have a probability close to 1, resulting in a situation where each person in the pool is filing a claim each year. This would lead to a situation where there is no cross subsidization possible, since each person in the pool is filing a claim and there is nobody to cross subsidize. Therefore, each person's premium would have to be roughly similar to their payout. Insurance as a concept”

Legal Position

16. It is the settled position in law that the Right to Life includes the right to health and healthcare is an integral part of the same. The Supreme Court in C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors. (1992) 1 SCC 44 has also held that the term health includes medical care and health care facilities. The Court held:

“32. The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers' best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful, economic, social and cultural life. The medical facilities are, therefore, part of social security and like gilt-edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc. health is thus a state of complete physical, mental and social well being and not merely the absence of disease or infirmity. In the light of Articles 22 to 25 of the Universal Declaration of Human Rights, International Convention on Economic, Social and Cultural Rights, and in the light of socio-economic justice assured in our Constitution, right to health is a fundamental human right to workmen the maintenance of health is a most imperative constitutional goal whose realisation requires interaction of many social and economic factors. Just and favourable condition of work implies to ensure safe and healthy working conditions to the workmen. The periodical medical treatment invigorates the health of the workmen and harnesses their human resources...”

17. In W.P.(C) No.10323/2009 titled ‘Vikas Gupta vs. Union of India’ a Division Bench of this Court in a judgment authored by Justice R. S. Endlaw has held that in fact there should be no difference between the insurance premium paid by disabled and non-disabled persons inasmuch as discrimination is itself is prohibited. The relevant portion of the said judgment reads as under:

“4. An affidavit dated 09.02.2010 was thereafter filed by the GM (PLI), Postal Life Insurance Directorate stating that some extra premium was charged from the persons with disability since disabled persons are more prone to accidental risks as compared to non-disabled persons. It was inter alia stated in the said affidavit:-

“5. That as regards the issue of extra premium it is submitted that the Insurance Policy is a contract between the insurer and the insured. It identifies the insured, the insuring company, risks covered, policy period and premium amount. The Insurance Policy is binding on both the insurer and insured. In the insurance business a pool is created through contributions made by persons seeking to protect themselves from common risk. Premium is collected by insurance companies which also act as trustee to the pool. Any loss to the insured in case of happening of an uncertain event is paid out of this pool. It works on the principle of risk sharing. Therefore prejudice would be caused to the normal insured persons in case of any casualty of the disabled persons. As disabled persons are more prone to accidental risks as compared to normal persons and the amount which is to be paid to the family of the deceased would be paid out of the same pool.

6. That the extra premium payable by the disabled person is marginally different from extra premium payable by normal persons as specified in Rule 14 of Post Office Life Insurance Fund. Also in case of LIC insurance, numerical loading of under-writing system is followed.”

xxx

22. It would thus be seen that disability per se cannot be the basis of discrimination in the matter of insurance. This Court is therefore unable to uphold the action of the respondents and/or the provisions of the Rules (supra) which create persons with disabilities class unto themselves. The same undoubtedly is a violation of the Disabilities Act even though not expressly dealing with the matter of insurance. The persons with disability cannot be grouped together for the purpose of insurance. They are to be treated similarly as others/non-disabled persons and just like in the case of non-disabled persons, the insurance risk is assessed on an individual basis, are liable to be similarly assessed; while so assessing, depending upon the risk assured and the risk assessed, premium is to be computed.”

18. Further, in Shikha Nischal v. National Insurance Company Ltd & Anr., 2021 SCC OnLine Del 2577, this Court had the occasion to consider a case involving a person suffering from mental illness and the insurance policies in this respect.  The Court in the said case has observed as under:

“25. The crux of the above provisions, circulars and affidavits clearly is that mental illnesses cannot be treated differently from physical illnesses. Insurance policies also cannot discriminate between these two types of illnesses. The reasons for the non-discriminatory provisions between mental and physical illnesses are not far to seek. While physical illnesses are manifested in the human body in some form, mental illnesses do not always have visible physical manifestations. However, mental illnesses can also be debilitating and destructive. The recent pandemic also highlights this beyond any doubt. Circumstances leading to patients requiring isolation, healthy persons being subjected to lock-downs, work from home conditions, loss of employment leading to lack of confidence for long durations have led to several mental problems. Such mental conditions need to be dealt with immediately. Availability of insurance for mental disabilities or conditions is, therefore, not only important but is an essential need. It is in recognition of the importance of a healthy mental state for a human being that both the Convention and the provisions of the MHA, 2017 discussed above, have been introduced. 

26. No doubt, the basic obligation is that of the insurance company which is also to blame for having not issued the Healthcare Policy in compliance with the applicable provisions of the MHA, 2017. However, the IRDAI’s functions are quite comprehensive and vital under the IRDAI Act, 1999 and if any insurance company is not in compliance with any provisions of the law, the IRDAI cannot turn a blind eye to the same. The IRDAI has a duty to fully supervise and ensure that the provision of the MHA, 2017 are implemented by all the insurance companies for the benefit of the persons who obtain mediclaim policies. This has clearly not happened, as is evident from the facts of the present case.

27. It is clear from a perusal of the provisions of MHA, 2017, as also the provisions of the IRDAI Act, 1999 that immediately upon the MHA, 2017 coming into force, all insurance products ought to have extended the same treatment for mental and physical illnesses and remove any clause that discriminate between the same. The Insurance Ombudsman’s order which holds that the provisions of the MHA are not relevant to the present Petitioner is untenable. The MHA, 2017 has come into effect from May/July, 2018, and thus the exclusion in the Healthcare Policy of NICL with respect to “all psychiatric and psychosomatic disorders/diseases”, under Clause 4.10 as noted above, is contrary to law.”

19. The Rights of Persons with Disabilities Act, 2016 (hereinafter ‘RPwD Act’) leaves no ambiguity insofar as the entitlement of persons with disabilities for insurance.  A perusal of Sections 3, 25 and 26 makes it clear that person with disabilities cannot be discriminated against insofar as healthcare and other connected aspects are concerned.

20. Further, the United Nations Convention of the Rights of Persons with Disabilities, 2006 under Article 25 also prohibits discrimination against persons with disabilities in the provision of health insurance and also requires countries to provide the same in a fair and reasonable manner. Article 25 of the said convention which was ratified by India in 2007 reads as:

“States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall:

a. Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes;

b. Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons;

c. Provide these health services as close as possible to people's own communities, including in rural areas;

d. Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care; 

e. Prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law, which shall be provided in a fair and reasonable manner; 

f. Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability.”

Analysis

21. The IRDAI is the sector regulator in the insurance industry in India.  Regulation 8 which deals with underwriting reads as under:

“8. Underwriting 

b. The underwriting policy shall also cover the approach and aspects relating to offering health insurance coverage not only to standard lives but also to sub-standard lives. It shall have in place various objective underwriting parameters to differentiate the various classes of risks being accepted in accordance with the respective risk categorisation. 

c. Any proposal for health insurance may be accepted as proposed or on modified terms or denied wholly based on the Board approved underwriting policy. A denial of a proposal shall be communicated to the prospect in writing, by recording the reasons for denial. Provided, the denial of the coverage shall be the last resort that an insurer may consider.”

22. A perusal of the IRDAI regulations above regulation would show that, unfortunately, the terminology sub-standard lives is used in respect of persons with disabilities which is not an acceptable terminology. Even otherwise, Regulation 8(b) and Regulation 8(c) read with the circular dated 2nd June, 2022 clearly provides that insurance companies have to give insurance coverage to the following three categories three categories of persons:

i. Persons with disabilities 

ii. Persons with HIV

iii. Persons affected with mental illness.

23. The IRDAI being the regulator of the sector has important functions to perform under the IRDAI Act of 1999. The IRDAI ought to ensure that its circulars and other policies are duly given effect to by the insurance companies. In the present case, it has been observed the Court of the Chief Commissioner of Disabilities brought the facts of this case to the knowledge of the IRDAI. However, this action also did not yield any positive response from the IRDAI with respect to the case of the Petitioner. The stand of IRDAI before this Court both in the Counter affidavit, Circular and in the oral submissions does not match with the inaction when the issue was brought to its notice. The IRDAI ought to have stepped up and ensured that the insurance companies offer adequate products for persons with disabilities. Refusal to issue a health insurance policy to the Petitioner ought to have been a warning bell to the IRDAI. Unfortunately, despite the above settled legal position and the IRDAI’s position on record, there is a disconnect in implementation.

Conclusion and Directions

24. In the background of this case, the manner in which both the insurance companies have simply rejected the proposal of the Petitioner that too with cryptic rejection letters is disconcerting.  The Petitioner is a person who is working as an investment professional who can afford an insurance policy by paying a reasonable premium. Irrespective of the economic standing of a person with disability, insurance coverage cannot be rejected or refused. 

25. Under these circumstances, this Court is of the opinion that there is no doubt that persons with disabilities would be entitled to health insurance coverage and products would have to be designed to enable them to obtain health insurance coverage.  

26. In view of the above discussion the following directions are issued:

i. The IRDAI, shall call a meeting of all insurance companies to ensure that the products are designed for persons with disabilities and other persons in terms of the circular dated 2nd June, 2020.  The process of designing such products shall be supervised by the IRDAI and it shall be ensured that the said products are introduced on an early date, preferably within two months.  

ii. The Petitioner is permitted to approach Max Bupa Health Insurance Co. Ltd. & Oriental Insurance Co. Ltd., once again. The two insurance providers shall consider the case of the Petitioner for issuance of a health insurance policy and the question of extending insurance to the Petitioner shall be reviewed. A proposal shall be placed on record by the next date of hearing.

iii. Immediate steps shall be taken by the IRDAI to modify the terminology `sub-standard lives’ in their Regulations so as to ensure that such unacceptable terminology is not used in its Regulations or other documents while referring to persons with disabilities.

27. Let a status report be filed on behalf of the IRDAI and the insurance companies at least two weeks before the next date of hearing.

28. List on 17th March, 2023.


PRATHIBA M. SINGH

     JUDGE

DECEMBER 13, 2022/dj/am

2022/DHC/005555

W.P.(C) 6074/2019





Saturday, July 11, 2020

National Consumer Court directs LIC Chief to inculcate systemic improvements in future for “apt logical decision-making" for claims of persons with disabilities

New Delhi 11 July 2020

Court: NCDRC Delhi, Case No. RP/1849/2019   

Parties: Life Insurance Corporation of INdia Versus Anil Laxman Matade

The National Consumer Dispute Redressal Commission (NCDRC), has imposed a cost of  Rs 2.5 lakh on Life Insurance Corporation of India (LIC), and has directed it to pay the amount over and above the insured sum of Rs 1 lakh with 9% annual interest to a father and his daughter with intellectual disabilities. The Commission has come down heavily on the LIC for its adamant “mechanical decision-making without application of mind” while refusing to pay the assured amount.

Showing a mirror to LIC, the order said, "the name of the policy is very attractive “Jeevan Adhaar” i.e. “Life Support”, but, at times, this policy makes the consumer, in certain cases, as in the instant case, helpless, i.e. “Niradhar”, “life without support”- “crippled”. Thus, the insured is thrown in vacua..! after 20 years payment of all premiums." 

Background of the case

Mr. Anil Laxman Matade of Sangli in Maharashtra had taken Jeevan Aadhaar policy of LIC for his daughter with Down syndrome. The LIC had refused to pay the assured amount to Matade even years after he made full payment of premiums while citing conditions, which specified that only 20% of the amount would be released after his death and the rest in installments in 15 years.

Both the district consumer forum and Maharashtra State Consumer Commission had ordered in favour of Mr. Matade, but the LIC challenged the order in the NCDRC. The age of Mr. Matade's daughter is 34 and she has 75% mental disability.

Court's Order

The order passed by NCDRC on 10 July 2020  while holding the public sector insurance company responsible for “intransigent mechanical decision-making” and for going for litigation as a matter of routine, a two-member bench comprising Dr S M Kantikar and Dinesh Singh advised its chief executive to inculcate systemic improvements in future for “apt logical decision-making” in such cases of congenital mental disabilities in which the dependent cannot think and act for herself or himself.

The bench observed it was not amending the general terms and conditions of the policy, which specified that the sum assured is to be paid to the handicapped dependents/ nominees on the death of the insured. “However, the policy and its terms and conditions cannot be implemented in an arbitrary and mechanical manner without application of mind and without having regard to the facts and specificities of a particular case,” the order said.

It said the plight of a child and of her father and mother, and especially in the case of a girl-child having Down’s Syndrome, had to be understood and kept in view by the LIC with the due application of mind at the competent level while deciding Matade’s request to release sum assured immediately so that he may make adequate arrangements for his daughter while he is still alive.

“The LIC failed to appreciate that the daughter, a person with Down’s Syndrome would be in no position to apply her brain and to act for herself so as to make appropriate arrangements for her well-being on her own, when her father is no more, and that she would be in no position to pursue her claim with the LIC, far less agitate it in the consumer protection fora/ civil courts,” the order said.

The Court further warned the LIC saying, “Needless to add, in case of failure or omission in timely compliance, the District Forum shall undertake execution, for ‘enforcement’ under section 25(3) and for ‘penalties’ under section 27 of the Consumer Protection Act 1986.”

It is pertinent to mention that in January 2009, Delhi State Consumer Dispute Redressal Commission had fined LIC for rejecting the claim of a Police Constable who suffered 69% disability due to amputation in hand on the ground that he was capable of earning wages, since he was allowed to continue working with Delhi Police for compassionate reasons under the Rights of Persons with Disabilities Act 2016.

Judgement dated 10 July 2020 

Download PDF Here or read below


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 1849 OF 2019

(Against the Order dated 03/04/2019 in Appeal No. 605/2018 of the State Commission Maharashtra)


LIFE INSURANCE CORPORATION OF INDIA
THROUGH ITS ADDITIONAL SECRETARY(LEGAL) 
CENTRAL OFFICE H-39, FIRST FLOOR, 
NEW ASIATIC BUILDING CONNAUGHT CIRCUS,
NEW DELHI-110001                                                                     ...........Petitioner(s)

Versus  

ANIL LAXMAN MATADE
R/O. RAHUL COMPLEX, FLAT NO. 2, GUEST HOUSE,
SANGLI-416416
MAHARASHTRA                                                                        ...........Respondent(s)

BEFORE:  
  HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER
  HON'BLE MR. DINESH SINGH,MEMBER

Dated : 10 Jul 2020

ORDER PRONOUNCED ON: 10th JULY 2020

ORDER PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1.      The present Revision Petition is against the Order dated 03.04.2019 of the State Consumer Disputes Redressal Commission, Maharashtra (hereinafter referred to as the “State Commission”) in First Appeal No. A/18/605.

2.       In the interest of justice, to provide fair opportunity to the Petitioner LIC, to decide the case on merit, the self-admitted delay of 15 days in filing the petition is condoned.

3.       Briefly, the case of the Complainant is that the Petitioner LIC issued a policy under its ‘Jeevan Adhaar Plan– without profits - with accident benefits’ to the Complainant Anil Laxman Matade w.e.f. 25.07.1996 for sum assured Rs. 1,00,000/-. The half yearly premium was Rs. 2,257/-. The Complainant’s wife was the nominee. The policy was for the benefit / welfare of the Complainant’s daughter who was mentally challenged with congenital Down’s Syndrome. The Complainant paid all premiums regularly till the maturity of the policy on 25.01.2015. After the policy matured, the Complainant claimed the sum assured from the Petitioner LIC, but the Petitioner LIC refused. Further, as averred by the Complainant, he was surprised and taken aback to be told that 20% of the sum assured would be paid to his dependent mentally challenged girl-child only after his death and the remaining 80% would be paid to her over a further period of 15 years thence.

4.       Being aggrieved by the refusal of the LIC to pay the sum assured, the Complainant filed a Complaint before the District Forum, Sangli alleging deficiency in service.  

5.       The LIC filed its written version and argued that the policy was for the benefit of only the dependant and would become effective only after the demise of the insured Complainant. The insured Complainant was not entitled for any payment during his lifetime. As per the terms and conditions of the policy only 20% of the sum assured was payable to the mentally challenged dependent daughter after the death of the insured Complainant and the remaining 80% was payable to her over the next 15 years.

6.       The District Forum allowed the Complaint and directed the LIC to pay the sum assured, Rs. 1,00,000/- along with interest @ 9% per annum with effect from 25.01.2016 to the insured Complainant and also awarded Rs. 20,000/- as compensation and Rs.5,000/- as litigation cost.

7.       The LIC preferred an Appeal before the State Commission. The Appeal was dismissed with cost of Rs. 5,000/-.

8.       Both the fora below, the District Forum and the State Commission, have returned concurrent findings in favour of the Complainant.

9.       We find the State Commission’s impugned Order to be well-appraised and well-reasoned. No jurisdictional error or legal principle ignored or miscarriage of justice is evident, as may require interference in the exercise of the revisional jurisdiction of this Commission.

10.     We may but add that, admittedly, the Complainant had paid all premiums for 20 years without any default, the last premium was paid on 25.01.2015, after the period of 20 years was over, he did not receive the sum assured from the LIC despite several requests, he waited for one year and thereafter served a legal notice on the LIC on 26.06.2016, the LIC has not shown any logical application of mind to the peculiarities of this case, but has intransigently adhered to a mechanical straightjacketed application of its terms and conditions by rote.

11.     From the record it is evident that the present age of the Complainant’s daughter is about 34 years, she is having 75% mental disability. No doubt the old parents have to struggle for the welfare and care of their Down’s - adult girl.  They are also concerned for her safety from unforeseen sexual exploitation. She needs to undergo hysterectomy. The Complainant has this only girl, he has no relatives who can look after his such handicapped daughter. 

12.     The LIC has brought this product to the consumers under the clothing of uberrima fide. The name of the policy is very attractive “Jeevan Adhaar” i.e. “Life Support”, but, at times, this policy makes the consumer, in certain cases, as in the instant case, helpless, i.e. “Niradhar”, “life without support”- “crippled”. Thus, the insured is thrown in vacua..! after 20 years payment of all premiums.  

13.     The Act, 1986 is a benevolent social legislation as has been held by the Hon’ble Apex Court in a catena of judgements from time to time, and is aimed at providing for better protection of the interests of the consumers. Given the facts in the present case at hand, the interests of the consumer can be protected only if he is provided a remedy from all angles for the care of his Down’s adult girl. It is a fight between two unequal. The intention of LIC is not to pay a single penny till the death of insured, which makes the father helpless (the whole matter cannot even be understood by the mentally – challenged dependent daughter for whose benefit the father took the policy and paid premiums for 20 years).  It is obvious that to secure the future of his daughter, the father, with good intention, took such policy, but he has been put to trouble and prejudice and made to struggle and face the intransigent arbitrariness of the LIC.  The approach of the LIC in the instant case is contrary to the principle of uberrima fide.

14.     To know about the agony & gravity of “Down’s syndrome and its social effects” we have gone through voluminous medical literature on the subject. Down’s syndrome is caused by triplicate chromosome 21 (Trisomy 21). The syndrome has a variable physical expression, sometimes it is associated with congenital cardiac defects, transient myelodysplasia (acute leukaemias) and duodenal atresia of the new-born. The care of the infant or young child with Down syndrome can be complicated and may involve a myriad of immediate and long-term medical problems, psychomotor and psychosexual development connected with mental retardation and endocrine disorders. Generalized tonic clonic seizures are the most common. IQs range from low normal to profoundly retarded.

15.     When the parents first learn that their baby has Down syndrome, they may feel disappointment, grief, anger, frustration, fear, and anxiety about her future.  The parents may react with shock, denial, anger, grief, fear, acceptance or any combination of these emotions. The Parents often have strong fears about the future of their child with Down’s disabilities. Dealing with the idea of someone else taking care of their child is never easy. As parents, their worry is that child will not be adequately prepared for the world. It is difficult for many to plan for such child. They face and realise their own mortality. There is a feeling always that no one will ever love, care for, and support their child. Thus the parents having Down’s daughter suffer agony and apathy throughout their life. Many parents think that if their child has money, he’ll be safe. Obviously, the financial resources, money, can help to make the child’s life more secure after the death of her parents.

16.     Privacy is important. The sexuality is an intrinsic aspect of human development. Individuals with Down’s syndrome need individualized instruction and education to develop appropriate socio-sexual behaviours. They still require routine and preventive reproductive health services including urological care for men and gynaecological care for women. They also need education and counselling to prevent unplanned pregnancy, abuse, and sexually transmitted disease. The mentally disabled individual is particularly vulnerable to sexual abuse and maltreatment for several reasons: isolation; communication deficits; etc. Other contributing factors include multiple living situations and transient caregivers, some of whom may be paedophiles. [Pedophilia (alternatively spelt paedophilia) is a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children] 

17.     The essential crux of the matter is that the Complainant took LIC’s Jeevan Adhaar policy for his daughter, who is mentally challenged with Down’s Syndrome. That all premiums were paid and that the policy had matured is not disputed. The only dispute is that the LIC is intransigent that the benefit will accrue to the beneficiary i.e. the daughter of the Complainant only after his death, as per the terms and conditions of the policy. The Complainant on the other hand, pointing out that his daughter is mentally challenged, wishes to immediately obtain the sum assured and to make adequate arrangements for his daughter in his lifetime, for her future (when he is no longer alive and there is no one else to make the requisite arrangements for his daughter).

18.     We make it clear that we are not amending or adding to or subtracting from the general terms and conditions of the LIC’s subject Jeevan Adhaar policy. It is meant for the benefit of the handicapped dependents / nominees of the insured, the sum assured is to be paid to the handicapped dependents / nominees on the death of the insured. However, the policy and its terms and conditions cannot be implemented in an arbitrary and mechanical manner without application of mind and without having regard to the facts and specificities of a particular case. Making of adequate arrangements during his life time by the father of a mentally handicapped dependent (who would not be able to herself make arrangements or be able to agitate her case after the demise of her father) is nowhere precluded in the terms and conditions, that is to say, payment in such cases, in such facts and specificities, is nowhere precluded. The terms and conditions cannot be implemented in a straightjacketed mechanical arbitrary manner, with total disregard to the facts and specificities.

In this particular case, the handicapped dependent of the insured is an adult girl with Down’s Syndrome, she is not physically challenged, but is mentally challenged, and as such she cannot think and act for herself. The plight of a child and of her father and mother, and especially in the case of a girl-child having Down’s Syndrome, had to be understood and kept in view by the LIC with the due application of mind at the competent level (whichever it may be) while deciding the insured i.e. the girl-child’s father request that after the payment of all the premiums the sum assured may be immediately given so that he may make adequate arrangements for his mentally challenged daughter while he is still alive. The LIC failed to appreciate that a victim of Down’s Syndrome would be in no position to apply her brain and to act for herself so as to make appropriate arrangements for her well-being on her own, when her father is no more, and that she would be in no position to pursue her claim with the LIC, far less agitate it in the consumer protection fora / civil courts. The afore, which is the crux of the case, has been evaded and ignored by the LIC in its decision-making and in its litigation, both.

19.     The intransigent, arbitrary, mechanical decision-making and the intransigent, protracted litigation, in an issue in which straightjacketed mechanical adoption of the terms and conditions by rote was deemed to be inviolable, and understanding the nature of the handicap, that it is mental (repeat mental) challenge caused by Down’s Syndrome, was kept in opacity, overlooked and ignored, is well and truly evident.

20.     We have no hesitation in upholding the impugned Order dated 03.04.2019 of the State Commission and in affirming the award made therein. The award made by the State Commission shall, now, be complied with most immediately, without further delay. In addition, to compensate for the intransigent mechanical decision-making without application of mind and the intransigent protracted litigation by rote and the delay and trouble and prejudice caused to the Complainant and to his mentally challenged daughter, a cost of Rs. 2.50 lakh shall also be paid by the LIC to the Complainant, for the benefit / welfare of his mentally handicapped adult girl within four weeks of the pronouncement of this Order, without fail. The Chief Executive of the LIC shall ensure timely compliance.

Further, the Chief Executive of the LIC is advised to inculcate systemic improvements in future for apt logical decision-making in such cases of congenital mental (repeat mental) disabilities in which the dependent cannot think and act for herself / himself.

21.   Needless to add, in case of failure or omission in timely compliance, the District Forum shall undertake execution, for ‘enforcement’ under section 25(3) and for ‘penalties’ under section 27 of the Act 1986.

22.   A copy each of this Order be sent by the Registry to the Complainant, the Chief Executive of the LIC, the State Commission and the District Forum within three days of its pronouncement.

......................
DR. S.M. KANTIKAR
PRESIDING MEMBER
......................
DINESH SINGH
MEMBER

Wednesday, January 9, 2019

Insurance Company denies health insurance on the basis of disability - Court of Chief Commissioner approached

Dear Colleagues,


A Bengaluru based banker with visual disability has preferred a complaint in the Court of Chief commissioner for Persons with Disabilities against Religare for denying him health insurance policy on the grounds of his blindness. The 63 year-old banker Mr. TR Raghu Kumar has optic nerve atrophy (ONA), a condition of permanent vision loss caused due to damaged optic nerve, in March 1991. 

“I suddenly lost my eyesight; I woke up one morning to know that my vision has been affected. This can happen to anybody,” he said. He bought a health insurance policy from Religare for Rs 5 lakh and paid one-year premium of Rs 16,597 on October 26, 2018. “I had declared my condition in the insurance proposal and submitted a copy of the medical certificate,” he added.

A month later, Raghu received a call from the company stating that his insurance was rejected as he was totally blind and the premium was refunded. Alleging discrimination, Kumar wrote to the commissioner for persons with disabilities on November 29.

Responding to an email query, Religare said Kumar’s insurance proposal was declined due to ONA. “ONA can be caused by multiple reasons and not limited to trauma (including stroke), tumour, decrease in oxygen or blood supply, infections, disorders or hereditary reasons. There was no ascertainment with regard to the cause in his proposal. We cover persons with any kind of disability (physical/visual/hearing), provided there’s no co-existing health condition that’s in contravention with our medical underwriting guidelines,” Religare said.

However, Kumar said the company never asked him anything pertaining to the cause of ONA. “I’ve submitted the disability certificate which is self-explanatory. The company collected money for the premium and rejected my proposal without raising any question. This is nothing but discrimination against a disabled person,” he added.

Source: Times of India 

Sunday, April 22, 2012

Delhi High Court- Extra Premium or Reduced Insurance Cover, both discriminatory against Disabled [Judgement Included]

Dear Colleagues,

Refer to my earlier posts on 02 Sep 2009, 09 October 2009 and 21 January 2010 on the issue since the matter has been pending before the Delhi High Court. There were several occasions that the Court was about to pronounce judgement however, Union of India bought time on each hearing with a promise that they are amending the rules to remove the discriminatory practices against the persons with disabilities (read employees) in insurance sector and dragged the case to 2012. However, at the end, the court got infuriated the way the Government turned turtle on their own statement before the court and tried to justify the discrimination of extra premium.

The brief background of the case

In the instant case, the petitioner Mr. Vikas Gupta, through a public interest litigation, filed by Mr. Pankaj Sinha, a lawyer with visual impairment from Human Rights Law Network, brought to the notice of the court that the Postal Life Insurance Policy issued for the benefit of government employees was inherently discriminatory against employees with disabilities. It allowed the maximum sum insured for employees with disabilities to only Rs. 1 lac while their non-disabled counterparts enjoyed a maximum insurance cover of 5 lacs. Not only this, the employees with disabilities were paying a higher premium than those without disabilities.

Thus through this litigation, the petitioner sought parity in the maximum sum assured and premium charged from the employees with disabilities in comparison to the employees without disabilities. When the matter came up for hearing and notice was issued, Postal Life insurance realizing their follies, issued a notification during pendency of the petition raising the maximum insurance coverage for employees with disabilities to that of non-disabled employees i.e. up to Rs. 5 lakhs. However, they continued to charge extra premium from the employees with disabilities.

The petitioner argued that the extra premium charged was without any scientific justification. When the court sought explanation from PLIC, the Additional Solicitor General stated before the court that they do not discriminate on the basis of disability and there is no extra premium charged.

However, later Union of India turned turtle on their statement and justified the extra premium from the employees on the blanket ground of disabilities and argued that the Insurance Policy was a contract between the insurer and the insured. That in the insurance business a pool was created through contributions made by persons seeking to protect themselves from common risk. Premium was collected by insurance companies which also act as trustee to the pool. Any loss to the insured in case of happening of an uncertain event was paid out of this pool. It worked on the principle of risk sharing. Therefore, prejudice would be caused to the normal insured persons in case of any casualty of the disabled persons. As disabled persons are more prone to accidental risks as compared to normal persons and the amount which is to be paid to the family of the deceased would be paid out of the same pool.  Hence, it is justified to charge extra premium from the employees with disabilities. They also argued that extra premium payable by the disabled person is marginally different from the premium payable by normal persons. Further they justified the extra premium on the ground that the extent of handicap differs from one person to another and that they would continue to charge differential premium decided upon the health profile of the individual proponent.

The petitioner argued that the extra premium clause has no scientific base nor can be justified by any legal enactment or any empirical study. On the contrary, such a standalone stipulation for Persons with Disabilities in form of a special scheme in the Postal Life Insurance for Government employees was discriminatory, non-inclusive, unjust and violates principles of natural justice of equity and fairness and above all it ran against the mandate of the Persons with Disabilities Act 1995 and the UN Convention on the Right of Persons with Disabilities that India is a proud signatory to. Further, it specifically violated Articles 3 and 25(e) of the UN Convention.

The petitioner accepted the rationale of PLI to the extent that any loss to the insured in case of happening of an uncertain event is paid out of this pool and that it worked on the Principle of risk sharing. However the petitioner strongly refuted that disabled persons are more prone to accidental risks as compared to normal persons. On the contrary, the petitioner argued, there was no empirical study or data to support or substantiate such a baseless, false and biased view which only reinforced the stereotypes about persons with disability and their proneness to accident.

Petitioner argued that the right to equality and non-discrimination were inalienable rights which couldn't be taken away by any contract and charging extra premium from employees with disabilities was a direct discrimination with them on the basis of disability which was in direct conflict with Article 2 of UNCRPD.

The petitioner also argued that the justification of health profile put forward by the respondents was faulty for they seem to treat disability as a negative health profile. It was stressed that living with disability was distinct from suffering from a life threatening disease, while the respondent seemed to consider both as synonymous. An employee with visual impairment or with hearing impairment or with neurological impairment also enjoyed good health like anybody else. Therefore, an employee living with a disability would not mean that he / she was suffering from a disease and prone to life risks or susceptible to die prematurely. Such a conclusion on the part of respondent was illogical, arbitrary, had no empirical base and without any understanding of disability, hence, such a conclusion was required to be struck down.

The judgement 

Hon’ble High court in the instant case agreed that charging extra premium from employees with disabilities was indeed a discrimination on the basis of disability and therefore through this remarkable judgement directed the postal life insurance to provide equal insurance coverage and not charge extra premium from the employees with disabilities.
  • Download the Vikas Gupta Vs. UOI judgement [PDF 381 KB]  
  • For copy of the interim notification raising the maximum insurance amount to Rs. 5 lakh, [word file


The Road Ahead


I see this judgment  as a milestone in the disability rights movement with far-reaching implications not only in India but also beyond India and especially in European countries where the Actuaries continue to discriminate against persons with disabilities by under-valuing their lives. However, India, its Courts and the persons with disabilities are very progressive on this front and the western countries can follow suit at least on this count.

This is just a beginning. We need a well devised future strategy  to dismantle the entire regime of discrimination that is prevailing in the insurance sector and the immediate challenges are:

(a) The insurance sector still discriminates on the basis of etiology of the disability i.e. causes of disability, whether it is from birth and after birth; neurological or physical and  then rates their lives accordingly,  which in my considered view has again no scientific base.

(b) The persons with neurological disabilities are still not allowed any insurance policy and needs to be challenged.

(c) PLI is an insurance scheme for the benefit of government employees hence, it will cover a very small section of persons with disabilities. Those who are outside the government jobs especially those in rural areas are far away from reaping the benefits of insurance. Though the judgement challenges the principles that have so far formed the basis for denying the  insurance to the disabled.

(d) The Actuaries who are in the business of assessing the life risks are not aware of the real challenges and the lives of the persons with disabilities and they continue to live in their own world and decide on their own whims, the risk calculation of the life of a person with disabilities. They need to be sensitized and made aware not only about the lives of persons with disabilities but also the rights regime that UNCRPD brings.

(e) The entire literature on insurance that I had to read while pursuing this case from outside, I found it reinforced the stereotypes about persons with disabilities and their proneness to accident! Hence, we need new literature for future actuaries to understand that Disability can not be treated always as a negative health profile and that living with disability was distinct from suffering from a life threatening disease.

(f) There is a need to raise awareness that a person with visual impairment or with hearing impairment or with neurological impairment also enjoys good health like anybody else.

(g) The rules of Insurance sector needs to be changed in light of this judgement and applied across the sector. All insurance  issuing companies - be it private or government have to factor in the principles of this judgement and make amends.

(h) The discrimination continues unabated in not just in `life insurance, sector but in health insurance and other insurance products on the offer. This needs to be addressed on priority.

(j) We need to take this awareness to the most marginalized persons with disabilities in rural areas through several means.  

I am sure we all are up for it and would take this to its logical end.

regards

Subhash Chandra Vashishth
Advocate-Disability Rights

Thursday, January 21, 2010

Govt. brings in Notification to give equal benefit under PLI Scheme, but is that equal indeed?

Refer to my earlier post on Government seeking six week more time to bring in an appropriate insurance scheme which doesn't discriminate employees with disabilities.

After a prolonged period finally they came up with a notification on the last date of hearing which provides the maximum insurance limit up to 10 lacs as available to other employees. You can view the notification of Department of Post by clicking here: Notification dated 04th January 2010

In other words with this notification the maximum limit of insurance for physically handicapped persons has been made equal with maximum limit prescribed under Rule 3 of POIF Rules and revised from time to time to ensure non-discrimination and equality with other employees.

Consequently, POIF Rules have been amended to include Physically Disabled employees also. However, what remains to be seen is that the extra premium being charged from the employees with disabilities has yet not been addressed which would actually go on to prove that the insurance scheme is still discriminatory against employees with disabilities.

I am hopeful that they would address this lacunae also and not ask employees with disabilities to cough up extra premium for an insurance amount that is equal to other employees.

regards

Subhash Chandra Vashishth
Advocate-Disability Rights