Dipak Maiti vs Hdfc (Housing Development ...
2023 Latest Caselaw 4235 Cal

14th July,
 2023
 (AK)
08-09

                                W.P.A 15689 of 2023

                                    Dipak Maiti
                                        Vs.
                HDFC (Housing Development Finance Corporation
               Limited) Life Insurance Company Limited and others

                                         With

                                W.P.A 15694 of 2023

                                     Doli Maiti
                                        Vs.
                HDFC (Housing Development Finance Corporation
               Limited) Life Insurance Company Limited and others


                          Mr. Pappu Adhikari
                                                     ...for the petitioners.

                          Ms. Soni Ojha
                          Ms. Sonia Nandy
                                  ...for the respondent nos. 1, 2, 3 & 7.

Mr. Ayan Kumar Boral ...for the respondent nos. 4 & 6.

Learned counsel for the Insurance Company, at the

outset, objects to the maintainability of the writ petition.

Learned counsel cites a judgment of the Supreme

Court in the case of Commissioner of Income Tax and

others vs. Chhabil Dass Agarwal, reported at (2014) 1 SCC

603, as well as a coordinate Bench unreported judgment

of this court delivered in W.P. 2525(W) of 2016.

The premise of both the judgments is that in view of

availability of an alternative remedy, unless the said

remedies are exhausted, the writ jurisdiction cannot be

invoked.

It was further observed by the Supreme Court that

the scope of invocation of the writ jurisdiction is limited to

certain cases only, being, where the remedy available

under the statue is not effective but only a mere formality

with no substantial relief, where the statutory authority

did not act in accordance with provisions of the

enactment-in-question, where the statutory authority

acted in defiance of fundamental principles of judicial

procedure, the statutory authority resorted to invoke

provisions which are repealed or where an order was

passed in total violation of principles of natural justice.

It is submitted that in the present case, none of the

said yardsticks are satisfied.

Learned counsel for the petitioners contends that

the remedy-in-question, that is, an approach before the

Insurance Ombudsman, was duly exhausted by the

petitioners but the petitioners are aggrieved by the said

adjudication as well.

It is submitted that in view of the lop-sided clauses

of the contract of Insurance Companies, in particular, the

respondent-Insurance Company in the present case, the

petitioners seek to invoke Article 14 of the Constitution of

India.

It is submitted that the clauses in the insurance

contract, a copy of which was sent to the petitioners'

letter after entering into the contract, are clearly suited to

favour the insurer.

It is further contended that there was a patent miss-

selling to the petitioners on the part of the insurance

agent.

Certain employees of the Insurance Company also

coaxed the petitioners into opening such policies.

That apart, the petitioners patently come below the

income slab which is the minimum requirement for

opening the policy-in-question.

It is submitted that such arguments will be

substantiated on a bare perusal of the materials annexed

to the writ petition.

It is seen, upon hearing learned counsel for the

parties, that the Ombudsman entered into the question

as to whether there was miss-selling.

However, the petitioners could not establish the

details to substantiate their allegations before the

Ombudsman.

The question, however, still remains as to the

veracity of the allegations regarding miss-selling as well

as the factual premise of the petitioners not being

competent to open the policies-in-question.

It cannot be said at this juncture that the

petitioners would not be able to establish their cases or

that the Insurance Company would not be able to rebut

the same on factual premise, if opportunity was given to

the parties to adduce full-fledged evidence.

However, unfortunately, it is beyond the domain of

the writ court to decide disputed questions of fact, where

evidence is required to be adduced and appreciated.

Such being the case, there is no scope of

interference in the present writ petition.

Accordingly, the objection as to maintainability is

upheld.

WPA 15689 of 2023 and WPA 15694 of 2023 are,

thus, dismissed on the ground of maintainability, with

liberty to the petitioners to approach the competent civil

court with the issues as raised in the present writ

petition.

This court has not gone into the merits of the

allegations and counter-allegations of the parties and it

will be open to the civil court, if so approached, to decide

all issues in accordance with law, independently and

without being influenced in any manner by any of the

observations made herein.

Since no affidavits have been invited, it is deemed

that the allegations made in the writ petition are not

admitted by any of the respondents.

There will be no order as to costs.

Urgent photostat copies of this order, if applied for,

be given to the parties upon compliance of all requisite

formalities.

(Sabyasachi Bhattacharyya, J.)