M. R. Ajayan v. Director, Central Bureau of Investigation (CBI) & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N. BHATTI** **&** **THE HONOURABLE MR. JUSTICE BASANT BALAJI** **FRIDAY, THE 23[RD] DAY OF JUNE, 2023 / 2ND ASHADHA, 1945** **WA NO. 906 OF 2023** **[AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE IN WP(CRL.) NO. 754/2022 DATED 04-04-2023]** ## **APPELLANT/PETITIONER:** M. R. AJAYAN, AGED 59 YEARS OCC: EDITOR, GREEN KERALA NEWS, MATTAPPILLY-HOUSE, OCHANTHURUTH-POST, KOCHI, ERNAKULAM, PIN - 682508. BY ADVS. SRI. BIJU ANTONY ALOOR SRI. M. ABDUL RASHEED SRI. K. P. PRASANTH SMT. T. S. KRISHNENDU SMT. ARCHANA SURESH SMT. HARITHA HARIHARAN ## **RESPONDENTS/RESPONDENTS:** 1 THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION (CBI), PLOT NO: 5 B, 10TH FLOOR, B-WING, CGO COMPLEX, NEW DELHI, PIN - 110003. 2 THE SP OF POLICE (CBI), ANTI-CORRUPTION BUREAU, KATHRIKADAVU, KALOOR, KOCHI, ERNAKULAM, PIN - 682017. 3 DEPUTY GENERAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., ERNAKULAM REGIONAL OFFICE, 36/707, 2ND FLOOR, KANDAMKULATHY TOWERS, M G ROAD, ERNAKULAM, PIN - 682011. WA:906/2023 -:2:- - 4 CHIEF VIGILANCE OFFICER, THE NEW INDIA ASSURANCE CO. LTD., 87, M G ROAD, FORT, MUMBAI, PIN - 400001. 5 M/S. LULU INTERNATIONAL SHOPPING MALL, (REPRESENTED BY SRI. YUSUF ALI, THE CHAIRMAN AND MANAGING DIRECTOR OF LULU GROUP) 28/2167/A, KURUVINAKUNNEL, PANDARACHIRA-ROAD, KADAVANTHRA-POST, ERNAKULAM-DIST, PIN - 682020. BY ADV. SRI. SREELAL WARRIAR R3 BY ADVS. SRI. GEORGE A CHERIAN SRI. V. M. SYAM KUMAR SMT. KRIPA ELIZABETH MATHEWS (K/1404/2002) SMT. SNEHA RAJIV(K/001710/2018) BY ADV. SRI. SUVIN R. MENON - CGC BY ADV. SRI. MANU S., DSGI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA:906/2023 -:3:- ## **JUDGMENT** Dated this the 23[rd] day of June 2023 ## **S. V. N. Bhatti, CJ** The writ petitioner is the appellant, and the appeal arises from the judgment dated 04.04.2023 in W.P.(Crl.) No.754/2022. 2. We will refer to the parties as arrayed in the writ petition. 3. M. R. Ajayan/petitioner filed W.P.(Crl.) No.754/2022 praying for a mandamus to the Director, Central Bureau of Investigation, New Delhi, and SP of Police (CB), Anti-Corruption Bureau, Kochi, (respondents 1 & 2) respectively, to investigate Exhibit-P2 complaint dated 16.07.2022 filed by the petitioner. 4. The averments in the writ petition are that the Deputy General Manager, New India Assurance Company Ltd./3[rd] respondent invited sealed tenders to sell damaged Leonardo Helicopter AW 109SP Helicopter MSN22394. In Exhibit-P1 notification, it is stated that the 3[rd] respondent intends to sell the WA:906/2023 -:4:- helicopter on an “as is where is” basis. The owner of the helicopter was paid its total retained value. The sale process has been initiated pursuant to Exhibit P1 without the requirement of having two expert committees' reports. The need to obtain an expert's opinion is mandatory. The deviation from the mandatory procedure is a clear case of fraud committed by the officers of the insurance company. 5. The petitioner further avers that on coming to know of the fraud, complaints were filed before the first and second respondents, and the same was acknowledged. Respondents 1 and 2 have not moved in the matter. The writ petition has been preferred, questioning the respondents' inaction in investigating the matter. 6. Before we take up the grounds urged by the appellant for CBI investigation, we excerpt Exhibit-P2 hereunder: WA:906/2023 -:5:- ## “SPEED POST M.R.Ajayan, Editor, Green Kerala News, Mattappilly House, Ochanthuruth P.O., Kochi-682 508. ## 1. The Director Central Bureau of Investigation, Plot No:5 B, 10[th] Floor, B-Wing, CGO Complex, New Delhi – 110 003. 2. The SP of Police (CBI), Anti-Corruption Bureau, Kathrikadavu, Kaloor, Kochi – 682 017. Respected authorities, Sub: Investigation into the fraud on the part of “The New India Assurance Company Ltd., in the sale of Helicopter MSN 22394 The New India Assurance Company Ltd. has invited sealed tenders for sale of damaged Leonardo Helicopter which was owned by Sri. Yusuff Ali (Chairman, Lulu Group) and which was involved in an accident. It is notified to be sold on an "as is where is" basis. But it is understood that full refund of the insurance amount has been paid (around 62 crores) to the owner of the Helicopter. It is mandatory that the insurance company has to obtain a report from two expert committees including one from Leonardo Company and another company from India before the actual damage is assessed and then only the Insurance amount can be disbursed. In the instant case no such mandatory inspection has been followed by the WA:906/2023 -:6:- company. This is a clear case of fraud committed by the officers of the Insurance Company with a view to obtain illegal gratification. The date of opening of the bid was 13.07.2022. This has to be enquired and the truth has to be brought to light. Hence it is hereby requested that an investigation may be ordered into the sale now sought to be conducted consequent to sealed tenders being invited and the officers involved in the scam be arrested forthwith. With regards, M R Ajayan Enclosed: Copy of the newspaper advertisement.” 7. The other grounds urged in the writ petition are that the New India Assurance Company Ltd. is a nationalised general insurance company under the ownership of the Ministry of Finance and state within the meaning of Article 12 of the Constitution of India. Presumably, the action initiated through Exhibit-P1 sale notice must be fair and legal. The failure to obtain the experts' report shows a lack of fairness and objectivity. Payment of the total retainable value of the helicopter to the owner is illegal. Therefore, the direction is to investigate Exhibit-P2 complaints by respondents 1 and 2. WA:906/2023 -:7:- 8. The Deputy General Manager/respondent No.3 has filed a counter affidavit; objects to the writ petition's maintainability at the petitioner's instance. She avers that the writ petition suffers from being bald and baseless allegations made without evidence. The 3[rd] respondent also avers that following the provisions of the Insurance Act and Insurance Regulatory and Development Authority (IRDA), a surveyor was appointed on intimation of loss to access the damaged helicopter. The extended guidelines of IRDA discourage the insurance company from selecting more than one surveyor for assessing the damage in a claim. 9. The 3[rd] respondent further asserts that the insurance company has obtained from M/s. Leonardo Helicopters reports through letters dated 08.06.2021, 18.06.2021, 27.07.2021, and 20.01.2022. The manufacturer deployed Engineers to perform the possible rectification and repair to the helicopter in India. The approved service centre of the manufacturer extended the services. The assessment revealed that the helicopter suffered extensive WA:906/2023 -:8:- damage and, therefore, the estimated costs and repairs were very significant compared to the value of the helicopter, which points towards commercial non-viability. The Directorate General of Civil Aviation (DGCA) inspected the damaged helicopter, and the investigation report dated 26.10.2021 was issued on the cause of loss. 10. The counter affidavit further shows steps such as the appointment of M/s. McLarens Aviation, in consultation with the National Re-insurer, GIC Re. Mr. Ajith Kumar Kokkeri, Senior Aviation Surveyor of M/s. McLarens Aviation was carried out for survey and assessment of the loss incurred. The surveyor verified the helicopter's repair feasibility by comparing the repair cost and helicopter value, opined that the expenses exceeded 75% of the hull agreed value, and recommended settlement. The surveyor advised the insurer to settle the claim of the insured. It is further stated that after following all the procedural formalities noticed above, the insurer's claim amounting to Rs.48,42,50,000/- was paid to the WA:906/2023 -:9:- insured on 3.3.2022. 11. The sale process was strictly followed as per the guidelines/procedures laid down by the company and M/s. Prime Airward Private Limited responded to Exhibit-P1 tender notice. The company accepted the sealed tender of M/s. Prime Airward Private Limited. The petitioner filed the writ petition immediately without approaching the vigilance authorities of the insurance company. The 5th respondent insured the helicopter. Therefore, the insurance company completed the settlement of the claim. 12. There is no ground for issuing directions to respondents 1 and 2 as prayed for by the petitioner. 13. Before consideration, we refer to Exhibit-P3 communication dated 26.07.2022 addressed by the 2[nd] respondent to the Vigilance Officer of the insurance company. From Exhibit-P3, what can be discerned is that the 2[nd] respondent would have felt that the matter has a vigilance angle and could be interfered with by the WA:906/2023 -:10:- Chief Vigilance Officer. Though this decides the point, the contents of Exhibit-P3 are referred to for the limited purpose of appreciating that from the perspective of the 2[nd] respondent, the communication as Exhibit-P2 was made over to the Chief Vigilance Officer of the insurance company and not noted a reason for CBI investigation. 14. The writ petition stood dismissed by the impugned judgment. The insurance company, with the settlement of compensation for the damage of an insured vehicle as a commercial transaction between the insurer and the insured, has followed all the procedures. The petitioner is neither connected with the aircraft ( _sic_ ) nor its accident and settlement. Thus, the judgment under appeal declined to exercise the discretion conferred for issuing directions to respondents 1 and 2. 15. Learned counsel Mr B. A. Aloor argues with considerable force that dismissing the writ petition is erroneous and illegal and that the view taken in the judgment under appeal is not sustainable in law and facts. WA:906/2023 -:11:- 16. The grounds raised in the writ appeal refer to the procedure followed by the 3[rd] respondent to dispose of the damaged helicopter through Exhibit-P1. Therefore, the counsel argues that there is a violation of the mandatory provisions of the Insurance Act, and the impugned judgment _per se_ is unsustainable in law. We are persuaded to state the argument made by the counsel before us and note that the argument suffers from fundamental fallacy. 17. The grounds raised in the writ appeal need to be appreciated in the background of the limited prayer made, i.e., inaction on the part of the respondent in investigating Exhibit-P2. The assumption with which the case is filed is that the mandatory steps needed before taking up a property for sale are not adverted to. A look at the writ averments would disclose that they are completely bald, and the minimum details on alleged fraud etc., could not go beyond a limited narrative in a court of law. In other words, when a reply is filed by the 3[rd] respondent and without additional materials, the appellant now desires to change the track WA:906/2023 -:12:- of the argument and try to convince us to direct respondents 1 and 2 to investigate Exhibit-P2. We are convinced that such an approach, in a matter as the present, to call upon the CBI to investigate every issue brought to their notice would not be a proper course of exercising our jurisdiction and discretion under Article 226 of the Constitution of India. 18. We keep in perspective the comprehensive ratio laid down in v. **K. V. Rajendran Superintendent of Police, CBCID South Zone, Chennai, and Ors.** reported in (2013) 12 SCC 480 and are of the view that where FIR has been registered, and investigation by either the State Police or CBCID is found to be lackadaisical, in such cases, CBI enquiry can be ordered. As stated in the preceding paras, a letter is sent in the case on hand, and an investigation is sought. 19. Taking note of the guidelines laid down by the Hon'ble Supreme Court in the decision cited _supra_ , we are persuaded that the grounds urged in the writ appeal do not have merit, and by recording pertinent and correct findings, writ prayer was declined. WA:906/2023 -:13:- For the above reasons, the appeal fails and is dismissed accordingly. Sd/- **S.V.N. BHATTI CHIEF JUSTICE** Sd/- **BASANT BALAJI JUDGE** krj/23.06.2023 //TRUE COPY// P.A. TO C.J. WA:906/2023 -:14:- ## **APPENDIX** ## APPELLANT'S ANNEXURES: ANNEXURE1 COPY OF THE JUDGEMENT DATED 4/04/2023 ON WP(C) NO. 754/2022. ANNEXURE2 COPY OF WRIT PETITION (CRIMINAL) NO. 754 OF 2022. ANNEXURE3 COPY OF THE COUNTER FILED BY THE THIRD RESPONDENT DATED 07/10/2022. ANNEXURE4 COPY OF THE REPLY AFFIDAVIT FILED AGAINST THE COUNTER FILED BY THE THIRD RESPONDENT DATED 12/12/2022. ANNEXURE5 COPY OF THE IMPLEADING PETITION DATED 12/12/2022. ANNEXURE6 COPY OF THE COUNTER FILED BY THE FIFTH RESPONDENT DATED 27/01/2023. ANNEXURE7 COPY OF THE COUNTER DATED 02.03.2023 AND PETITION FOR CONDONATION OF DELAY DATED 11.03.2023 ## RESPONDENTS' ANNEXURES: - 'NIL' //TRUE COPY// P.A. TO C.J.