Kerala High Court
M.B.Koyakutty vs The Oriental Insurance Company ... on 26 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 26TH DAY OF APRIL 2021/6TH VAISAKHA, 1943
WP(C).No.9912 OF 2015(L)
PETITIONER:
M.B.KOYAKUTTY, PROPRIETOR,
M.K. OIL INDUSTRIES, CHUNANGAVELY,
ERUMATHALA P.O., ALUVA - 683 105.
BY ADVS.
DR.V.N.SANKARJEE
SRI.V.N.MADHUSUDANAN
SRI.S.SIDHARDHAN
SMT.M.SUSEELA
SMT.R.UDAYA JYOTHI
SRI.M.M.VINOD
RESPONDENTS:
1 THE ORIENTAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE NO. V, DOOR NO.6/990-B,
SHAN COMPLEX, IST FLOOR, BAZAR ROAD,
MATTANCHERY, COCHIN - 682 002,
REP. BY ITS DIVISIONAL MANAGER.
2 THE CHIEF REGIONAL MANAGER,
ORIENTAL INSURANCE CO.LIMITED,
GRIEVANCE CELL, REGIONAL OFFICE,
METRO PALACE, OPP. NORTH RAILWAY STATION,
ERNAKULAM - 682 018.
3 THE INSURANCE OMBUDSMAN, KOCHI,
OFFICE OF THE INSURANCE OMBUDSMAN,
2ND FLOOR, PULINAT BUILDING,
OPP. COCHIN SHIPYARD, M.G. ROAD,
ERNAKULAM, KOCHI - 682 015.
R1 BY ADV. SRI.GEORGE CHERIAN (SR.)
R1 BY ADV. SMT.LATHA SUSAN CHERIAN
R1 BY ADV. SMT.K.S.SANTHI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-04-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.9912/2015
:2 :
JUDGMENT
~~~~~~~~~
Dated this the 26th day of April, 2021
The petitioner, a Marine Insurance policy holder, is
aggrieved by Ext.P10 Award of the Insurance Ombudsman to
the extent the Award denied full refund of unutilised part of
insurance premium and interest on the Award amount.
2. The petitioner states that he is Proprietor of an Oil
Industry and has been taking Marine Insurance from the 1 st
respondent-Insurance Company. The petitioner pays
insurance premium in advance, which will be utilised for
insuring the consignments. Whenever consignments arrived,
insured sends documents to the 1 st respondent showing the
value of consignment. At the end of the year, the total availed
insurance amount is calculated on the basis of consignments
arrived. Balance insurance premium amount is adjusted
towards future insurance policy, treating the premium account
WP(C) No.9912/2015
as a running account.
3. In the year 2005, the petitioner found that huge
amount is lying with the insurer as unutilised premium
balance. The petitioner therefore sent Ext.P1 letter dated
22.07.2005 to the 1st respondent seeking refund of ₹48,884/-,
which was the undrawn balance amount. Ext.P2 reminder
was sent on 06.12.2005. The 1st respondent replied, as per
Ext.P3 dated 12.12.2005, that no premium is pending for
refund under the policy.
4. According to the petitioner, Ext.P3 reply was given
by the 1st respondent without verifying the records. The
petitioner again verified his records and found that actual
amount due to the petitioner is ₹50,170/-. The petitioner
therefore again sent Ext.P4 letter along with the statement of
policy balance and balance statement.
5. As there was no response from the 1 st respondent,
the petitioner preferred Ext.P5 complaint dated 20.02.2006
before the 2nd respondent-Chief Regional Manager, Grievance
Cell. Thereupon, Ext.P6 dated 03.04.2006 was served on the
WP(C) No.9912/2015
petitioner stating that no amount is found due to the petitioner
towards unutilised premium. Aggrieved by Ext.P6, the
petitioner filed Ext.P7 complaint before the Insurance
Ombudsman on 18.09.2006.
6. Before the Insurance Ombudsman, the petitioner
submitted a statement of accounts substantiating his claim for
refund of `50,170/-. The 1st respondent did not submit any
calculation statement and instead made an oral submission
that they have adjusted the balance amount due for every
year towards future policy and that the undeclared amount
refundable to the complainant in the year 2004-'05 on the
expiry of the policy, was issued in favour of Muzhukkattil Mills
which is a sister concern. The 1 st respondent submitted that
`9,471/- is the amount paid to the said sister concern.
7. The Insurance Ombudsman found that the sum of
`9,471/- is not paid to the petitioner. The Ombudsman, as per
Ext.P8 Award, directed the 1 st respondent to pay `9,471/- to
the petitioner. The petitioner thereupon approached this
Court filing WP(C) No.20193/2007 and this Court set aside
WP(C) No.9912/2015
Ext.P8 order and directed the Insurance Ombudsman to
consider the issue afresh, as per Ext.P9 judgment.
8. The Ombudsman again heard the petitioner and
respondents 1 and 2. The Ombudsman held that amount of
`50,170/- is liable to be refunded to the petitioner. As regards
payment of interest, the Ombudsman found fault with the
petitioner for the reason that it is only on 12.07.2005 after one
year from the expiry of the policy term, that the petitioner
approached the insurer for refund. On that ground, the
Ombudsman held that both the insurer and insured are
equally responsible for the protraction of litigation. The
Ombudsman held that there is no reason to order any interest.
However, an amount of `5,000/- was allowed towards cost.
9. I have heard the learned counsel for the petitioner
and the learned Standing Counsel appearing for the 1 st
respondent. I have also perused the pleadings in the writ
petition.
10. Ext.P5 is the claim made by the petitioner before
the Grievance Cell. The petitioner has not claimed interest on
WP(C) No.9912/2015
the amount due, in Ext.P5. Ext.P7 is the complaint filed
before the Ombudsman. In Ext.P7 also, the petitioner has not
made any claim for interest. A perusal of Ext.P9 judgment of
this Court would show that the petitioner did not make any
claim for interest, when he approached this Court.
11. From the pleadings, it appears that the petitioner
has made a claim for interest before the Ombudsman after the
matter was remitted back by this Court. The learned
Ombudsman allowed the entire claim of the petitioner and
also awarded `5,000/- towards cost. The Ombudsman found
that there is delay on the part of the petitioner in making the
claim before the insurer.
In such circumstances, this Court finds no reason
to interfere with Ext.P10 Award of the learned Insurance
Ombudsman. The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/16.04.2021
WP(C) No.9912/2015
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER SENT BY THE
PETITIONER TO RESPONDENT NO.1 DATED
22/07/2005.
EXHIBIT P2 TRUE COPY OF THE LETTER SENT BY THE
PETITIONER TO RESPONDENT NO.1, DATED
06/12/2005.
EXHIBIT P3 TRUE COPY OF THE REPLLY SENT BY RESPONDENT
NO.1 TO THE PETITIONER DATED 12/12/2005.
EXHIBIT P4 TRUE COPY OF THE LETTER SENT TO RESPONDENT
NO.1 ALONG WITH STATEMENT OF POLICY BALANCE
AND DECLARATION WISE BALANCE STATEMENT
DATED 20/12/2015.
EXHIBIT P5 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE
RESPONDENT NO.2 GRIEVANCE CELL DATED
20/02/2006.
EXHIBIT P6 TRUE COPY OF THE REPLY RECEIVED FROM
RESPONDENT NO.2, DATED 03/04/2006
EXHIBIT P7 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE
RESPONDENT NO.3, DATED 18/09/2006
EXHIBIT P8 TRUE COPY OF THE ORDER OF RESPONDENT NO.3
IN COMPLAINT NO. 10/KCH/G1/11-005-159/2006-
07 DATED 28/11/2006.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN W.P(C)
20193/2007
EXHIBIT P10 TRUE COPY OF THE AWARD NO.10/KOC/
A/G1/0225/2014-15 PASSED BYT RESPONDENT NO.
3 DATED 09/01/2015.
ncd
