Luxy Marketing v United India Insurance Company Ltd. (W.P.(C) No. 7395 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937** **WP(C).NO. 7395 OF 2011 (Y) ---------------------------** **PETITIONER:** **------------** **M/S.LUXY MARKETING, REP. BY ITS MANAGING PARTNER V.J.GEORGE, AGED 71 YEARS, S/O.JOSEPH, VADAKKEMULLOTH HOUSE, L.F.C.ROAD, KALOOR, KOCHI-17.** **BY ADV. SMT.C.G.BINDU** ## **RESPONDENT(S):** **---------------** **1. THE DIVISIONAL MANAGER,** **UNITED INDIA INSURANCE COMPANY LTD., JOY'S BUILDING, NEAR PADMA JUNCTION, M.G.ROAD, ERNAKULAM-35.** **2. C.A.KURIAN, INSURANCE SURVEYOR AND LOSS ASSESSOR, UNITED INDIA INSURANCE COMPANY LTD., JOY'S BUILDING, NEAR PADMA JUNCTION, M.G.ROAD, ERNAKULAM-35.** **R2 BY ADV. SRI.A.A.MOHAMMED NAZIR** **R1 BY ADV. SRI.S.ARUN RAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO. 7395 OF 2011 (Y) ---------------------------** ## **APPENDIX** **---------** **PETITIONER'S EXHIBITS: ---------------------** |**EXT.P1**|**TRUE COPY OF THE POLICY CERTIFICATE NO. 100200/ 11/**| |---|---| ||**06 /11 / 00000002 FOR THE PERIOD COMMENCING FROM 1.4.06**| ||**TO 31.3.07 ISSUED BY THE 1ST RESPONDENT.**| |**EXT.P2**|**TRUE COPY OF THE FIRE REPORT DATED 30.12.2006 ISSUED**| ||**BY THE FIRE FORCE.**| |**EXT.P3**|**TRUE COPY OF THE F.I.R. DATED 30.12.2006 OF CENTRAL**| ||**POLICE STATION, ERNAKULAM.**| |**EXT.P4**|**TRUE COPY OF THE REPRESENTATION DATED 4.1.07 SUBMITTED**| ||**BEFORE THE 1ST RESPONDENT.**| |**EXT.P5**|**TRUE COPY OF THE LAWYER NOTICE DATED 5.2.10 ON 8.2.10**| ||**ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.**| |**EXT.P6**|**TRUE COPY OF THE ACKNOWLEDGEMENT CARD.**| |**EXT.P7**|**TRUE COPY OF THE LETTER DATED 9.2.10 RECEIVED FROM 1ST**| ||**RESPONDENT BY THE 2ND RESPONDENT ON 24.2.10.**| |**EXT.P8**|**TRUE COPY OF THE JUDGMENT DATED 9.6.10 IN W.P.(C) NO**| ||**17786/2010**| |**EXT.P9**|**TRUE COPY OF THE APPLICATION OF THE PETITIONER DT.12.8.10**| ||**SUBMITTED BEFORE INSURANCE OMBUDSMAN.**| |**EXT.P10**|**TRUE COPY OF THE NOTICE DT. 14.1.11 ISSUED BY THE**| ||**INSURANCE OMBUDSMAN.**| ## **RESPONDENTS' EXHIBITS: NIL** **---------------------** **//TRUE COPY//** **P.A. TO JUDGE** **DST** **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No.7395 of 2011** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 27th day of January, 2016 ## **J U D G M E N T** The petitioner herein is a partnership firm, represented by the Managing Partner and has been doing wholesale business in paints and allied products. Since the nature of business is highly inflammable, they have taken insurance policy in the category of fire and special peril with the 1[st] respondent, the United India Insurance Company Limited, for a sum of Rs.12,00,000/-with a premium of Rs.3,570/- under Ext.P1 Policy Certificate for the period commencing from 01.04.2006 to 31.03.2007. While so, on 30.12.2006 there occurred a fire in the petitioner's premises and all the stocks caught fire and destroyed and the petitioner has sustained heavy **W.P.(C) No. 7395 of 2011** **==> picture [34 x 8] intentionally omitted <==** loss to the tune of Rs.75,00,000/- and the occurrence of fire is evident by Ext.P2 Fire Report and Ext.P3 First Information Report. Consequently, the petitioner had approached the 1[st] respondent, claiming insurance amount of Rs.12,00,000/-, by filing Ext.P4 on 04.01.2007. Pursuantly, the 1[st] respondent directed the 2[nd] respondent to conduct a survey and he has conducted a survey and submitted his report. But, the 1[st] respondent has not disbursed the insurance amount and hence, the petitioner approached the Insurance Ombudsman for the reliefs, as directed by this Court in Ext.P8 judgment. Accordingly, the petitioner has submitted Ext.P9 application before the Ombudsman on 12.08.2010. But, the Insurance Ombudsman, by Ext.P10, rejected Ext.P9 application on the ground that the Insurance Ombudsman has no jurisdiction to entertain the complaint of the petitioner since the insurance ## **W.P.(C) No. 7395 of 2011** ## **-: 3 :-** policy has not taken personally, in an individual capacity, as defined in Rule 4(I)(A) of the Redressal of Public Grievance Act, 1998. Aggrieved by the rejection of the application on that ground, the petitioner has filed this Writ Petition with a prayer to issue a writ in the nature of certiorari, calling for all records leading to Ext.P10 and quash the same and also to issue writ in the nature of mandamus against the 1[st] respondent, directing him to grant insurance amount with interest covered, by Ext.P1 insurance policy. 2. Heard the learned counsel for the petitioner and learned counsel appearing for the 1[st] respondent. 3. Going by the averments in this writ petition, it is seen that the petitioner is aggrieved by the rejection of Ext.P9 application filed by the petitioner, before the Ombudsman on the reason that the application is not maintainable, as ## **W.P.(C) No. 7395 of 2011** ## **-: 4 :-** the complainant is a partnership firm represented by the Managing Partner and the insurance have been taken for the firm and not on personal lines, in individual capacity, as defined under Rule **4(I)(K)** of the Redressal of Public Grievance Act, 1989. The question, whether a complaint field by a corporate body either as a company or firm before the Ombudsman is maintainable or not was considered by this Court in _**National Insurance Co. Ltd. and Others v. Indus Motor Co. Ltd. and Another**_ [2005 (4) KLT 391] and held as follows: _“8. Legislature as a rule making authority makes several rules from the experience gathered from the past and may design to used the words to deal with certain classes of persons. This rule firmly establishes that the intention of the legislature must be found by reading the statute as a whole. In order to examine the nature of the power conferred on the Ombudsman we are guided by R.13 read with R.4(I) (K) which places emphasis on the words “ individual”, “personal lines”, “himself or through his legal heirs”. There is nothing to show that incorporated company would fall under any of those expressions. We may in_ ## **W.P.(C) No. 7395 of 2011** ## **-: 5 :-** _this connection refer to the definition of the expression “insurer” in S.2(9) which states that any individual or unincorporated body of individuals or body corporate incorporated under the law of any country. If the legislature wanted the incorporated company also to come within the definition clause of “insured person” or “any person” within the meaning of R.13 the same could have been incorporated in the Rules. Having not incorporated we are of the view, the court is not justified in importing a meaning which has not been attributed by the rule making authority to the expression “any person” since the context clearly shows otherwise. Above being the legal position, we find it unable to subscribe to the view of the learned single Judge._ 4. In view of the above decision, the Ombudsman is justified in rejecting the application on the finding that the complaint is not maintainable as the same is filed by a firm; not an individual, in his individual capacity. 5. Coming to the next point, going by Ext.P4, it is seen that the fire which ws occurred on 30.12.2006, was duly intimated to the 1[st] respondent by Ext.P4 on 4.1.2007. But, it is discernible from ## **W.P.(C) No. 7395 of 2011** ## **-: 6 :-** Ext.P7 that the 1[st] respondent was sleeping over the claim raised by the petitioner till 2010. in Ext.P7 it is admitted that the occurrence of fire was reported to the 1[st] respondent in the year 2007 and the petitioner had been enquiring about the claim with the 1[st] respondent at the time when Ext.P7 was issued by the 1[st] respondent to the 2[nd] respondent. The grievance of the petitioner against the 1[st] respondent is that even though the occurrence of fire and the claim thereunder were duly intimated and raised before the 1[st] respondent, the 1[st] respondent has not taken any action towards the claim of the petitioner till the filing of the writ petition. 6. Now, the learned counsel for the 1[st] respondent submits that the 1[st] respondent has repudiated the claim. Even if the 1[st] respondent has repudiated the claim, certainly the 1[st] respondent ## **W.P.(C) No. 7395 of 2011** ## **-: 7 :-** could have intimated the repudiation properly to the petitioner. It is to be remembered that both the insurer and the insured are parties to a contract and both of them are having equal rights and liabilities under the contract. Obviously, it could be seen that up to 2011 till the filing of this writ petition, the claim was not repudiated properly. Had it been otherwise, certainly the petitioner could have narrated the same in this writ petition. Even though the petitioner has sent Ext.P5 lawyer notice in February 2010, the 1[st] respondent has not responded to that notice also till the filing of this writ petition. The callousness and the laches on the part of the 1[st] respondent towards the insured is evident from Ext.P5 and Ext.P7. 7. In the above view of the matter, the 1[st] respondent is directed to consider the claim of the petitioner afresh with reference to Ext.P5 lawyer's ## **W.P.(C) No. 7395 of 2011** ## **-: 8 :-** notice and pass orders afresh, notwithstanding the alleged repudiation, made by the petitioner, within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner or his representative. This writ petition is disposed of accordingly. Sd/- **K. HARILAL,** **JUDGE** DST/OKB //True copy// P.A. To Judge