Nizar Hassan Anwar vs Oriental Insurance Company Ltd
2021 Latest Caselaw 3111 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MR. JUSTICE GOPINATH P.

  THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA,
                          1942

                   WP(C).No.844 OF 2011(E)


PETITIONER:

              NIZAR HASSAN ANWAR,
              MANAGING DIRECTOR
              KERALA COMMUNICATORS CABLE LTD.,
              KERALA VISION, CC 28/491, GIRI NAGAR,
              KADAVANTHRA, ERNAKULAM.

              BY ADV. SRI.P.V.JAYACHANDRAN

RESPONDENTS:

     1        ORIENTAL INSURANCE COMPANY LTD
              ORIENTAL HOUSE, A-25/27. ASAF ALI ROAD,
              NEW DLEHI - 110 002, REPRESENTED BY ITS
              MANAGING DIRECTOR.

     2        THE SENIOR DIVISIONAL MANAGER
              ORIENTAL INSURANCE COMPANY LTD.,
              DIVISIONAL OFFICE NO.1, JEWAL ARCADE,
              LAYAM ROAD, ERNAKULAM, COCHIN - 682 011.

              R1 TO R2 BY ADV. SRI.GEORGE CHERIAN
              THIRUVALLA

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 28.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.9C)No.844 of 2011(E)                    2




                                   JUDGMENT

Dated this the 28th day of January 2021

This writ petition was filed praying inter alia for a declaration

that the words "lightning included" in the exclusionary Clause of

Ext.P1 policy under the head "General Exclusions" is inconsistent

with the risks that are insured and mentioned in Clause II of the

policy and for a direction to the 2 nd respondent to settle Ext.P3 claim

and disburse the amount within a time limit to be fixed by this Court.

The petitioner also sought for a writ of certiorari to quash Ext.P4, by

which it was informed that the claim is liable to be rejected on

account of the exclusion as above.

2. Briefly, the case of the petitioner is that certain

equipment, which was insured under Ext.P1 policy were damaged on

account of lightning. The respondents refused to honour a claim in

respect of those instruments on the ground that the damage in

question was on account of circumstances mentioned under Clause

No.7 under the head "General Exclusions" in Ext P.1 policy. The

clause reads as under:-

"7. Loss, destruction or damage to any electrical machine, apparatus, fixture or fitting arising from or occasioned by over running, excessive pressure, short circuiting,

arcing, self heating or leakage of electricity from whatever cause (lightning included) provided that this exclusion shall apply only to the particular electrical machine, apparatus, fixture or fittings so affected and not to other machines, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up."

3. Therefore the dispute between the petitioner and the

respondents rests on the question as to whether the damage caused

to the equipment/instruments in question are covered by Clause II of

the policy, whereby damage on account of lightning is insured or

whether the claim has to be rejected on the ground that it falls within

the exclusions under Clause No.7 under the head "General

Exclusions". This, obviously, is a matter of evidence and involves the

determination of disputed questions of fact, which this Court under

Article 226 is not ideally suited to examine.

4. The learned Counsel for the petitioner submits that this

writ petition was admitted on 11.01.2011 and has remained on the

files of this Court till today and therefore that any suit in respect of

the claim may be barred by limitation. However that fact by itself is

no reason for this Court to adjudicate disputed questions of fact in a

writ petition under Article 226 of the Constitution of India. In the

facts and circumstances of the case, it would be open to the

petitioner to seek exclusion of the time the writ petition was pending

in this Court under Section 14 of the Limitation Act.

This writ petition will stand dismissed without prejudice to the

right of the petitioner to move the competent Civil Court for

adjudication of his claims.

Sd/-

GOPINATH P.

JUDGE DK

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF POLICY CERTIFICATE NO.440100/11/2010/106 DATED 14.10.2009

EXHIBIT P2 TRUE COPY OF REPORT DATED 3.9.2010

EXHIBIT P3 TRUE COPY OF THE CLAIM DATED 16.09.2010

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 9.11.2010

RESPONDENTS' EXHIBITS:

EXHIBIT R1(a) TRUE COPY OF THE LIST OF EQUIPMENTS ATTACHED TO THE POLICY

EXHIBIT R1(b) TRUE COPY OF THE SURVEY REPORT DATED 14.10.2010