Bajaj Allianz General Insurance vs Puthen Modern Rice Mill
2021 Latest Caselaw 7735 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

 FRIDAY, THE 05TH DAY OF MARCH 2021/14TH PHALGUNA, 1942

                  WP(C).No.27441 OF 2015(E)


PETITIONER:

              BAJAJ ALLIANZ GENERAL INSURANCE
              COMPANY LIMITED, A COMPANY INCORPORATED
              UNDER THE COMPANIES ACT, HAVING ITS
              REGISTERED OFFICE AT GE PLAZA,AIRPORT ROAD,
              YERWADA,PUNE-411 006 AND BRANCH OFFICE AT
              3RD FLOOR, FINANCE TOWER, NEAR NEW INDIAN
              EXPRESS KALOOR, ERNAKULAM,PIN 682 017,
              REPRESENTRED BY ITS DEPUTY MANAGER-LEGAL
              RANEEN B.R.KUMAR,AGED 33 YEARS,
              S/O.RAVI KUMAR,RESIDING AT THAUFEEQ MANZIL,
              FLAT NO.A7,POTTAKUZHI ROAD,
              KALOOR,ERNAKULAM,PIN 682 017.

              BY ADVS.
              SRI.THOMAS M.JACOB
              SRI.T.R.JERRY SEBASTIAN

RESPONDENTS:

     1        PUTHEN MODERN RICE MILL, OKKAL,KALADY,
              ERNAKULAM DISTRICT,PIN 683 550,
              REPRESENTRED BY ITS MANAGING PARTNER
              DR.RAMESH BABU.

     2        THE INSURANCE OMBUDSMAN KOCHI
              OFFICE OF THE INSURANCE OMBUDSMAN,
              2ND FLOOR, PULINAT BUILDING,
              OPPOSITE COCHIN SHIP YARD, M.G.ROAD,
              ERNAKULAM ,PIN 682 015.
 W.P.(C) No.27441/2015
                             :2:


      3      UNION OF INDIA REPRESENTED BY
             ITS SECRETARY, MINISTRY OF FINANCE
             DEPARTMENT OF ECONOMIC AFAIRS,
             INSURANCE DIVISION, NORTH BLOCK
             NEW DELHI,PIN 110 001.

             R1 BY DR. RAMESH BABU (PARTY IN PERSON)
             R3 BY ADV. SRI.K.A.BALAN, CGC
             SRI P.VIJAYAKUMAR, ASGI

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 05-03-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 W.P.(C) No.27441/2015
                                       :3:




                                                                          [CR]




                           N. NAGARESH, J.

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                      W.P.(C) No.27441 of 2015

          `````````````````````````````````````````````````````````````
                Dated this the 5th day of March, 2021

                            JUDGMENT

~~~~~~~~~

The petitioner, a Company engaged in the

business of General Insurance, has filed this writ petition

seeking to set aside Ext.P10 Award passed by the Insurance

Ombudsman, Kochi.

2. The petitioner states that the 1st respondent-

Partnership Firm had taken a Standard Fire and Special

Perils Insurance Policy from the petitioner. The insurance

coverage was for destruction or damage of rice mill insured

and described in the schedule, by any of the perils specified

therein during the period of insurance. The 1 st respondent W.P.(C) No.27441/2015

made a claim that the chimney of their rice mill was broken in

the alleged storm/heavy wind and rain on 25.06.2013

between 1 a.m. and 6 a.m.

3. On receipt of the claim, the petitioner deputed a

duly licensed Surveyor and Loss Assessor. The Surveyor

submitted immediate Loss Report dated 10.07.2013 and a

detailed final report dated 26.10.2013. The petitioner would

submit that the claim of the 1 st respondent that the chimney

was damaged due to storm/heavy wind is incorrect. The

chimney was corroded and holed near the flange joint. The

Surveyor reported that the storm/heavy rain were at various

other locations and not in the locality surrounding the insured

property. In view of the said report, the petitioner repudiated

the claim of the 1st respondent.

4. The 1st respondent thereupon preferred Ext.P8

claim before the Insurance Ombudsman. The petitioner

contested the claim filing written statement. The Insurance

Ombudsman, without conducting proper enquiry, passed an

Award directing the Insurance Company to settle the claim of W.P.(C) No.27441/2015

the 1st respondent for an amount of `6 lakhs. It is aggrieved

by the said Award of the Ombudsman that the petitioner has

filed this writ petition.

5. The learned counsel for the petitioner submitted

that the Surveyor has assessed the loss of the 1 st respondent

to the tune of `1,94,000/-. The Ombudsman wrongly

awarded an amount of `6 lakhs, which is without any basis,

reasoning or evidence. The Ombudsman passed the Award

holding that there is circumstantial evidence in favour of the

1st respondent. None of the newspaper reports showed that

there was any storm or heavy wind and rain in the area of the

insured on the crucial date. The 1 st respondent did not

produce any report of the Meteorological Department to

substantiate that there was a storm. When the petitioner

specifically denied storm, it was the duty of the insured to

prove the storm/heavy wind. There is no basis for fixing the

liability of the petitioner at `6 lakhs. The Ombudsman has

not acted fairly and equitably. Ext.P10 Award is therefore

liable to be set aside.

W.P.(C) No.27441/2015

6. The 1st respondent filed a counter affidavit. The 1 st

respondent stated that on the night of 24.06.2013 and early

morning of 25.06.2013, heavy wind, storm and rain lashed

over the rice mill of the petitioner at Okkal, Kalady. The

chimney of the mill was heavily damaged. The chimney was

brought down in the presence and with the permission of the

Surveyor recruited by the Insurance Company. The

petitioner did not produce relevant documents before the

Ombudsman. The 1st respondent had produced all the

documents. Taking an overall view of the facts and

circumstances of the case, the Ombudsman directed the

petitioner to pay `6 lakhs to the 1st respondent. Ext.P10

Award is therefore just and proper and is not liable to be set

aside, contended the 1st respondent.

7. Learned counsel for the petitioner, relying on the

judgment of this Court in Life Insurance Corporation of

India, Ernakulam v. A. Thresiamma and another [2016 (1)

KLT 328], argued that Ombudsman can allow a claim only in

terms of contract of insurance and not on equitable grounds. W.P.(C) No.27441/2015

The petitioner would be entitled to insurance benefits only on

happening the events referred in the insurance policy. In this

case, there is no evidence to show that there was

storm/heavy wind as alleged by the petitioner around the

location of the rice mill and hence the Ombudsman ought not

have ventured to adjudicate the claim. In the event rights

and obligations itself are in dispute, the Ombudsman cannot

shift his role as an Adjudicator from the very beginning itself

to decide the dispute, contended the counsel for the

petitioner, relying on the judgment of this court in New India

Assurance Company Ltd. v. Jebby M. Aliyar and others

[2018 (3) KLT 827].

8. The learned counsel for the 1st respondent relied

on judgment of the Hon'ble High Court of Calcutta in W.P.

No. 2299 (W) of 2016 to contend that orders of judicial/quasi-

judicial bodies should be complied with by the insurer within

the time frame stipulated in the order or Award, and in cases

where time frame is not specified in the order/Award, the

order/Award should be complied with within 60 days of the W.P.(C) No.27441/2015

receipt of the order/Award by the insurer. If the insurer

proposes to file appeal, the appeal should be preferred within

the stipulated time limit as per the Rules applicable. Relying

on the judgment of the Hon'ble High Court of judicature at

Hyderabad in Writ Petition No.21044 of 2005, the learned

counsel for the 1st respondent contended that when the

insurer suppresses material facts from the Ombudsman, the

Insurance Ombudsman can direct the insurer to pay the

insurance amount.

9. I have heard the learned counsel for the petitioner

and the learned counsel appearing for the 1 st respondent.

10. The learned counsel for the petitioner brought to

the notice of this Court a Division Bench judgment of this

Court in National Insurance Co. Ltd and others v. Indus

Motor Co. Pvt. Ltd. and another [2005 (4) KLT 391],

wherein it was held that under Rule 13 of the Redressal of

Public Grievances Rules, 1998, an Insurance Ombudsman

has jurisdiction to entertain complaints only from any person

or individual on whose behalf an insurance policy has been W.P.(C) No.27441/2015

taken on personal lines.

11. The Redressal of Public Grievances Rules, 1998

have been framed by the Central Government in exercise of

the powers conferred by sub-section (1) of Section 114 of the

Insurance Act, 1938 (Act 4 of 1938). Rule 13 of the said

Rules, 1998 reads as follows:-

"13. Manner in which complaint is to be made - (1) Any person who has a grievance against an insurer, may himself or through his legal heirs make a complaint in writing to the Ombudsman within whose jurisdiction the branch or office of the insurer complaint against is located.

(2) The complaint shall be in writing duly signed by the complainant or through his legal heirs and shall state clearly the name and address of the complainant, the name of the branch or office of the insurer against which the complaint is made, the fact giving rise to complaint supported by documents, if any, relied on by the complainant, the nature and extent of the loss caused to the complainant and the relief sought from the Ombudsman.

(3) No complaint to the Ombudsman shall lie unless:

(a) the complainants had before making a complaint to the Ombudsman made a written representation to the insurer named in the complaint and either insurer had rejected the complaint or the complainant had not received any reply within a period of one month after the insurer concerned received his representation or the complainant is not satisfied with reply given to him by the insurer;

(b) the complaint is made not later than one year after the insurer had rejected the representation or sent his final reply on the representation of the W.P.(C) No.27441/2015

complainant; and

(c) the complaint is not on the same subject matter, for which any proceedings before any Court, or Consumer Forum, or Arbitrator is pending or were so earlier."

The question is whether a Partnership Firm can prefer a

complaint under Rule 13 of the Rules, 1998.

12. A Division Bench of this Court in National

Insurance Co. Ltd. and others (supra) considered the

scope of Rule 13 and held as follows:-

"6. The word "person" as such is not defined either in the Insurance Act or in the Rules. R.4(i) of the Rules defines the words "insured person" to mean an individual by whom or on whose behalf an insurance policy has been taken on personal lines. S.4(k) of the Rules states that "personal lines" means an insurance policy taken or given in an individual capacity. Only an insured person as defined in R.4(i) read with R.4(k) would fall under the term "any person" in R.13. R.13 also uses the expression "may himself or through his legal heirs". R.13 states that any person who has a grievance against an insurer, may himself or through his legal heirs make a complaint. The expression "may himself or through his legal heirs" qualifies the expression "any person.

Definition clause available under the General Clauses Act, in our view, cannot be imported to explain the meaning of the expression "any person" in the Rules, since Rule itself gives sufficient indication with regard to the expression "any person". Further definition clause in S.3 of the General Clauses Act giving the definition says W.P.(C) No.27441/2015

that the definition clause would apply to the General Clauses Act.

7. We may in this connection refer to the decision of a Full Bench of the Andhra Pradesh High Court in Sri Ramadas Motor Transport Private Ltd. v. Vijayawada Municipality (AIR 1968 AP 160) wherein it was held that several features in the Act and the very scheme of the Act are repugnant to the view that person in S.93(4) of the Act should be treated as including company so that the provision under S.3(22) of the Andra Pradesh General Clauses Act can be of no avail. In this connection, reference may also be made to the decision of the apex court in M/s.Agarwal and Co. v. Commissioner of Income Tax, U.P. (1970 (2) SCC 48) and M.M. Ipoch v. C.I.T., Madras (AIR 1968 SC 317).

8. Legislature as a rule making authority makes several rules from the experience gathered from the past and may design to use the works to deal with certain classes of persons. This rule firmly establishes that the intention of the legislature must be found by reading the statute as a whole. In order to examine the nature of the power conferred on the Ombudsman we are guided by R.13 read with R.4(1)(k) which places emphasis on the words "individual", "personal lines", "himself for through his legal heirs". There is nothing to show that incorporated company would fall under any of those expressions. We may in this connection refer to the definition of the expression "insurer" in S.2(9) which states that any individual or unincorporated body of individuals of body corporate incorporated under the law of any country. If the legislature wanted the incorporated company also to come within the definition clause of "insured person" or "any person" within the meaning of R.13 the same could have been incorporated in the Rules. Having not incorporated we are of the view, the court is not justified in importing a meaning which has not been attributed by the rule making authority to the expression "any person" since the W.P.(C) No.27441/2015

context clearly shows otherwise. Above being the legal position, we find it unable to subscribe to the view of the learned single Judge."

The Division Bench of this Court held that an incorporated

Company cannot be treated as a person and would not fall

under the term "person" contemplated in Rule 13.

13. The Division Bench came to such confusion on

the ground that the Rule itself gives sufficient indication that

the expression "any person" used in Rule 13 is intended to

mean an individual by whom or on whose behalf an

insurance policy has been taken on personal lines. Going by

the dictum laid down by the Division Bench of this Court, a

Partnership Firm also will not fall within the ambit of the term

"any person" as contained in Rule 13, and hence a complaint

by a Partnership Firm will not be maintainable under the

Redressal of Public Grievances Rules, 1998 before an

Insurance Ombudsman. Ext.P10 Award of the 2 nd

respondent-Insurance Ombudsman is therefore ultra vires

and is liable to be set aside.

W.P.(C) No.27441/2015

In the circumstances, the writ petition is allowed

and Ext.P10 Award passed by the 2 nd respondent-Insurance

Ombudsman is set aside.

Sd/-

N. NAGARESH, JUDGE aks/04.03.2021 W.P.(C) No.27441/2015

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE STANDARD FIRE AND SPECIAL PERILS POLICY TAKEN BY THE 1ST RESPONDENT

EXHIBIT P2 TRUE COPY OF CLAIM FORM TOGETHER WITH DETAILED STATEMENT OF PROPERTY DESTROYED OR DAMAGED SUBMITTED BY 1ST RESPONDENT

EXHIBIT P3 TRUE COPY OF IMMEDIATE LOSS REPORT DATED 10/7/2013 OF THE SURVEYOR

EXHIBIT P4 TRUE COPY OF FINAL REPORT DATED 26/1/2013 OF THE SURVEYOR

EXHIBIT P5 TRUE COPY OF THE PHOTOGRAPHS SUBMITTED BY THE SURVEYOR

EXHIBIT P6 TRUE COPY OF THE LICENSE ISSUED BUY OKKALA GRAMA PANCHAYAT TO THE IST RESPONDENT

EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 29/10/2013 REPUDIATING THE CLAIM

EXHIBIT P8 TRUE COPY OF THE COMPLAINT OF 1ST RESPONDENT FORWARDED BY 2ND RESPONDENT

EXHIBIT P9 TRUE COPY OF WRITTEN STATEMENT FILED BY PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P10 TRUE COPY OF AWARD NO. 10/KOC/A/G1/0142/ 2015-16 DATED 14/7/2015

RESPONDENTS' EXHIBITS

EXHIBIT R1(a) TRUE COPY OF THE NEWS APPEARED IN THE NEW INDIAN EXPRESS DATED 25TH JUNE 2013 AND MALAYALA MANORAMA DAILY DATED 26TH JUNE, 2013, REGARDING HEAVY RAIN AND STORM ON 24TH AND 25TH JUNE 2013.

W.P.(C) No.27441/2015

EXHIBIT R1(b) TRUE COPY OF THE LETTER DATED 07.08.2014 SUBMITTED BY THE 1ST RESPONDENT TO THE PETITIONER'S MANAGER - CLAIM SETTLEMENT/ DISPUTE REDRESSAL AT KALOOR, KOCHI WITH COPY TO AGM, IDBI BANK FOR FINDING REASONS FOR REPUDIATION OF CLAIM.

EXHIBIT R1(c) TRUE COPY OF THE EMAIL DATED 07.08.2014 ISSUED BY WASIM SHAIKH FROM THE PETITIONER'S OFFICE INFORMING THE 1ST RESPONDENT'S/COMPLAINANT'S THAT HE WAS TAGGED TO TRACK NO.53971937.

EXHIBIT R1(d) TRUE COPY OF THE EMAIL DATED 08.08.2014 SUBMITTED BY 1ST RESPONDENT TO CUSTOMER CARE BAJAJ ALLIANZ, PUNE, JABEEN SHIEK- CUSTOMER SERVICE, PUNE, RITA FRANCO - CUSTOMER CARE DIRECT MARKETING; TO SEND SURVEY REPORT OF MR.P.K.GEORGE AND OTHER DETAILS, BASED ON WHICH THE CLAIM OF THE INSURER WAS REJECTED.

EXHIBIT R1(e) TRUE COPY OF THE EMAIL 12.08.2014 ISSUED BY KISHORE SUTAR OF GRIEVANCE REDRESSAL UNIT INFORMING THE 1ST RESPONDENT/COMPLAINANT THAT THE REFERRED CLAIM IS NOT DUE TO ANY INSURED PERIL

EXHIBIT R1(f) TRUE COPY OF THE EMAIL DATED 13.08.2014 OF 1ST RESPONDENT/COMPLAINANT REQUESTING KISHOR SUTAR OF THE PETITIONERS OFFICE FOR A COPY OF SURVEY REPORT OF MR.P.K.GEORGE AND ALL DOCUMENTS FOR REPUDIATING THE CLAIM.

EXHIBIT R1(g) TRUE COPY OF THE LETTER DATED 18.05.2015 REQUESTING THE INSURANCE COMPANY TO PRODUCE THE CERTIFICATES AND DOCUMENTS BEFORE THE OMBUDSMAN BASED ON WHICH THEY HAD REPUDIATED HIS CLAIM.

W.P.(C) No.27441/2015

EXHIBIT R1(h) TRUE COPY OF THE ACCEPTANCE (CONSENT) LETTER P.VI(A) SUBMITTED BY THE 1ST RESPONDENT TO INSURANCE COMPANY ON 24.7.15 UNDER INTIMATION TO THE LEARNED OMBUDSMAN

EXHIBIT R1(i) EMAIL OF SURVEYOR GEORGE P.K. AT 4.56 PM ON 16TH JULY, 2013 REQUESTING FOR 9 DETAILS REQUIRED FOR PROCESSING THE CLAIM FORM.

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