Noushad Khalid v. Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943 ``` ## **`WP(C) NO. 3529 OF 2011`** ## **`PETITIONER:`** ``` NOUSHAD KHALID, S/O.KHALID KUNJU AGED 43 YEARS, KODIYIL HOUSE, 66/KALLOORVILA, NAGAR, ERAVIPURAM P.O., KOLLAM-691 011. ``` ``` BY ADVS. SRI.V.JAYAPRADEEP SMT.V.V.RISANI SMT.SADHANA KUMARI ESWARI SRI.SANEESH KUNJUKUNJU ``` ## **`RESPONDENTS:`** ``` 1ORIENTAL INSURANCE CO.LTD. REPRESENTED BY THE DIVISIONAL MANAGER,, DIVISIONAL OFFICE, JYOTHI SUPER BAZAR,, THODUPUZHA-685 584. ``` ``` 2THE INSURANCE OMBUDSMAN OFFICE OF THE INSURANCE OMBUDSMAN, 2ND FLOOR,, CC 27/2603, PULINAT BUILDING, OPP. COCHIN, SHIPYARD, M.G.ROAD, ERNAKULAM-682 015. ``` ``` BY ADV SRI.A.R.GEORGE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.3529/2011** **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.3529 of 2011** ## **---------------------------------------------Dated this the 11[th] day of January, 2022** ## **`JUDGMENT`** This writ petition is filed with following prayers: - i. A writ of certiorari calling the records pertains to Ext. P2, P6 & P8 and quash the same. - ii. To declare that the 1[st] respondent has to satisfy the claim of this petitioner with interest. - iii. Issue a Writ of mandamus directing the 1[st] Respondent to pay the claim raised by the Petitioner with interest. - iv. Pass appropriate writs or orders which are deemed fit and necessary in this case and allow costs to this petitioner. 2. Petitioner is mainly aggrieved by Ext.P8 order passed by the 2[nd] respondent - Insurance Ombudsman by which the claim of the petitioner is repudiated. The complaint was filed under Rule 12(1)(b) read with Rule 13 of the Redressal of Public Grievances Rules, 1998 against the **3** ## **W.P.(C).No.3529/2011** repudiation claim under Private Car Package Policy No.441701/31/2006/17366 for the period 20.01.2006 to 19.01.2007 issued to the petitioner covering his car namely Mahindra Scorpio. The petitioner had covered his vehicle No.KL-2X-5867 by taking a motor policy for a sum insured for Rs.6,71,368/- from the Oriental Insurance Company Ltd. According to the petitioner, the vehicle was stolen on 02.11.2006 between 3.30 pm and 7 pm. He lodged a claim with the insurer for Rs.7,50,000/-. The claim was repudiated by the insurer citing various reasons vide their letter dated 15.05.2008. Thereafter the petitioner approached the 2[nd] respondent as per Ext.P8. The claim of the petitioner was rejected by the 2[nd] respondent also. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 1[st] respondent. 4. The learned counsel for the petitioner reiterated his contentions in the writ petition. The learned counsel relied on the judgment of the Apex Court in **National Insurance Company v. Nitin Khandelwal [2008 (2) KHC 900 (SC)]** **4** ## **W.P.(C).No.3529/2011** and the judgment of the Punjab and Haryana High Court in **New India Assurance Company Ltd. v. M/s. Hari Agro Industries and Another [2021 KHC 3086].** The learned Standing Counsel for the 1[st] respondent submitted that the entire case set up by the petitioner is suspicious. The 2[nd] respondent considered all the available materials and concluded that the stand of the insurer is justified and therefore the complaint was dismissed. The learned Standing Counsel submitted that there is nothing to interfere with, by invoking the powers under Article 226 of the Constitution of India. 5. This Court considered the contentions of the petitioner and the respondents. This Court also perused Ext.P8 order. The 2[nd] respondent, after perusal of the documents and the points discussed in the hearing, observed the following points: - “On a perusal of various documents and the points discussed during the hearing, the following observations are made: 1. The vehicle was stolen on 02.11.2006 and the timing of theft is mentioned as 9:00 AM in FIR No.1152 dated 07.11.2006 and between 3:30 PM and 7:00 PM in FIR No.294 dated **W.P.(C).No.3529/2011** **5** 12.11.2006. 2. The need for filing two FIRs in different police stations on different dates was also not convincing. 3. The place of theft also has been mentioned differently in both the FIRS. 4. In the claim form submitted by the insured, duly signed by him, he has mentioned the date of theft as 02.11.2006 between 3:30 PM and 7:00 PM and place mentioned as 'Near Kodunganoor temple'. 5. The place of theft has been mentioned as 'nearer to his shop' in complaint letter as well as in FIR No.1152. 6. The UN report based on the 2[nd] FIR clearly mentions that the vehicle was rented out for Rs.1,000/- per day for 15 days and an advance of Rs.5,000/- was collected by the insured. [This is violation of policy condition which states the ‘Limitations as to use’. The policy covers use of the vehicle for any purpose other than [a] hire or reward [b] carriage of goods etc.etc. 7. As per policy condition No.1, 'Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim. In case of theft or criminal act, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction **W.P.(C).No.3529/2011** **6** of the offender. As per the above clause, the theft of the vehicle had to be intimated immediately to the police authorities and insurance company but in this case, 2 FIRs were lodged, one on 07.11.2006 and another on 12.11.2006 and the insurance company was intimated only on 08.11.2006 for the vehicle that was stolen on 02.11.2006. Hence delay in intimating the claim to the police authorities and the insurer has been established. Taking all the above factors into account, the insurer is fully justified in repudiating the claim due to violation of policy conditions and also filing of 2 FIRS in different police stations giving different timings and place of theft in the respective FIRs. The complaint is DISMISSED. ” 6. I perused the judgment of the Apex Court in ## **National Insurance Company’s case** (supra). It will be beneficial to extract the relevant portion of that judgment: “12. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company **W.P.(C).No.3529/2011** **7** ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft. ” 7. I also considered the judgment of the Punjab and Haryana High Court in **New India Assurance Company’s case** (supra). The relevant portion of the above judgment is extracted hereunder: “11. It is pertinent to mention that as pleaded above by the applicant, the vehicle was parked in the premises of the petrol pump of which the proprietor was a partner, which shows that it was under supervision, as such. But in spite of that it was stolen and therefore, it cannot be said that there was any violation of the terms and conditions of the policy that the vehicle had been left unattended without proper precautions. The fact of the proprietor being owner of the petrol pump has not been denied in the written statement filed by the petitioner Company. In such circumstances, the repudiation had rightly been held to be unjustified, in the facts and circumstances.” 8. After going through the judgment of the Apex Court and the judgment of the Punjab and Haryana High Court, I think the manner in which the 2[nd] respondent decided the matter is not correct. According to me, a reconsideration by the 2[nd] respondent is necessary in the facts and circumstances **W.P.(C).No.3529/2011** **8** of the case. Therefore, Ext.P8 order can be set aside and the petitioner can be allowed to raise all their contentions before the 2[nd] respondent once again and the 2[nd] respondent can be directed to reconsider the matter in accordance to law within a time frame. While considering the matter by the 2[nd] respondent, the 2[nd] respondent will also consider paragraph 13 of the decision of the Apex Court in **National Insurance Company’s case** (supra), Therefore, this writ petition is disposed in the following manner: 1. Ext.P8 order is set aside. 2. The 2[nd] respondent is directed to reconsider the matter and pass appropriate orders in accordance to law, after giving an opportunity of hearing to the petitioner and the 1[st] respondent, as expeditiously as possible, at any rate, three months from the date of receipt of a copy of this judgment. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **9** ## **W.P.(C).No.3529/2011** ## **`APPENDIX OF WP(C) 3529/2011`** ``` PETITIONER EXHIBITS Exhibit P1THE COPY UN REPORT FILED U/S 379 IPC Exhibit P2THE COPY OF THE LETTER DATED 15.05.08 OF THE RESPONDENTS Exhibit P3COPY OF THE JUDGMENT DATED 1.008.2009 IN WPC 27922/08 Exhibit P4COPY OF THE LETTER DATED 8.1.20 OF THE REGIONAL MANAGER OF R1 Exhibit P5COPY OF THE APPLICATION TO R2 Exhibit P6COPY OF THE ORDER DATED 29.01.10 OF R2 Exhibit P7COPY OF JUDGMENT DATED 6.7.10 IN WPC 6245/10 Exhibit P8COPY OF THE ORDER OF R2 DATED 14.12.10 Exhibit P9COPY OF THE INSURANCE CLAIM COVER NOTE OF R1 Exhibit P10COPY OF THE LETTER DATED 8.11.2006 TO R1,RTO KOLLAM,AND THE ICICI BANK Exhibit P11COPY OF THE LETTER DATED 12.12.06 OF R1 Exhibit P12COPY OF THE SECOND LETTER OF THE PETITIONER TO GET CLAIM FORM Exhibit P13COPY OF CLAIM FORM DTD 13.11.07 ```