Sam Kumar Velayudhan vs Oriental Insurance Company ...
2022 Latest Caselaw 1338 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                       WP(C) NO. 25550 OF 2020
PETITIONER/S:

               SAM KUMAR VELAYUDHAN, AGED 64 YEARS
               PARACKAL HOUSE, PERUMBAIKADU, KUMARANALLOR P.O.,
               KOTTAYAM, PIN-686016.
               BY ADVS.
               P.FAZIL
               SRI.V.S.SREEJITH
               SMT.JAYASREE MANOJ
               SRI.SAJU THALIATH
               SRI.JITHIN PAUL VARGHESE
               SMT.ANN MARY FRANCIS

RESPONDENT/S:

    1          ORIENTAL INSURANCE COMPANY LIMITED
               REGIONAL OFFICE, METRO PALACE, OPPOSITE NORTH
               RAILWAY STATION, COCHIN-682018, REPRESENTED BY
               ITS DEPUTY GENERAL MANAGER.
    2          THE INSURANCE OMBUDSMAN,
               2ND FLOOR, PULINATTU BUILDING, OPPOSITE COCHIN
               SHIPYARD, M.G.ROAD, COCHIN-682015.
    3          MS. POONAM BODRA,
               INSURANCE OMBUDSMAN, 2ND FLOOR, PULINATTU
               BUILDING, OPPOSITE COCHIN SHIPYARD, M.G.ROAD,
               COCHIN-682015.
               BY ADVS.
               SRI.GEORGE CHERIAN (SR.)
               SRI.GEORGE A.CHERIAN
               SRI.ALEXY AUGUSTINE

        THIS    WRIT   PETITION     (CIVIL)    HAVING    COME    UP    FOR
ADMISSION       ON   01.02.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                     -2-
W.P.(C). No. 25550 of 2020



                             P.V.KUNHIKRISHNAN, J.
                              =================================================

                             W.P.(C).No.25550 of 2020
                       =============================================================

                  Dated this the 1st day of February, 2022

                                        JUDGMENT

The above writ petition is filed challenging Ext.P8 order

passed by the Insurance Ombudsman, Kochi in Complaint No.

KOC-G-050-1920-0265. The petitioner is the registered owner

of a car bearing Registration No.KL-35/A-6660, which met

with an accident on 06.07.2019. The car was insured with the

1st respondent. According to the petitioner, a total repair

estimate of Rs.11,64,214/- was prepared by the service centre.

It is the further case of the petitioner that the supervisor deputed

by the 1st respondent agreed for the vehicle to be considered as

total loss and issued communication regarding the same. It is

further stated by the petitioner that the 1 st respondent changed

their position and stated that total loss cannot be approved.

Aggrieved by the action of the 1st respondent, the petitioner

W.P.(C). No. 25550 of 2020

approached the 2nd respondent with a complaint. It is the case

of the petitioner that the 2nd respondent in a totally arbitrary

manner disposed of the claim of the petitioner by Ext.P8 award

wherein the claim of the petitioner was reduced to Rs.1,79,000/-

without any basis. It is stated by the petitioner that he was

called for a hearing on 13.02.2020 but his arguments were not

considered and he was not even served with copies of objection

filed by the 1st respondent. It is the specific case of the

petitioner that he was kept in dark regarding the communication

between the respondents. It is also stated that aggrieved by

Ext.P8, the petitioner sought copies of the documents relating to

the complaint under Right to Information Act from the 2nd

respondent and came to know that the 1 st respondent has

submitted Ext.P10 communication dated 03.02.2020 and

Ext.P11 communication dated 12.02.2020 without serving any

copy to the petitioner. It is also stated that the surveyor has

W.P.(C). No. 25550 of 2020

prepared Ext.P12 addendum report, which is after the date of

hearing before the 2nd respondent Ombudsman. It is specifically

alleged in the writ petition that the petitioner came across

Exts.P13 and P14 e-mail communications dated 19.02.2020 and

03.04.2020 between the 3rd respondent Insurance Ombudsman

and the 1st respondent. It is the specific case of he petitioner

that quasi-judicial authority communicating with one of the

parties in the lis is illegal. Hence, this writ petition is filed with

a prayer to set aside Ext.P8 because it violates the fundamental

principles of natural justice.

2. Heard the learned counsel for the petitioner and the

learned Standing Counsel appearing for the 1st respondent.

3. I perused the averments in the writ petition. I also

perused Ext.P8 order. The petitioner has got a specific case that

sufficient opportunity is not given to him before passing Ext.P8

W.P.(C). No. 25550 of 2020

award. Serious allegations are made against the 3 rd respondent,

who is the Ombudsman. I do not want to make any observation

or comments about the allegations in the writ petition against

the 3rd respondent. But in the interest of justice, I think an

opportunity should be given to the petitioner to raise his

contentions before the 2nd respondent afresh. The petitioner can

adduce oral and documentary evidence before the 2 nd

respondent and the 2nd respondent will also allow the petitioner

to represent through a lawyer.

Therefore, this writ petition is allowed in the following

manner:

1. Ext.P8 order is set aside.

2. The 2nd respondent is directed to reconsider the complaint after giving an opportunity of hearing to the petitioner and the 1st respondent.

3. The 2nd respondent will give an opportunity to the

W.P.(C). No. 25550 of 2020

petitioner and the 1st respondent to adduce oral and documentary evidence before concluding the proceedings and will permit the petitioner to represent through a lawyer.

4. The 2nd respondent will conclude the proceedings as expeditiously as possible.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 25550 of 2020

APPENDIX OF WP(C) 25550/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE INSURANCE POLICY CERTIFICATE CUM POLICY SCHEDULE ISSUED IN FAVOUR OF THE PETITIONER DATED 13.5.2019.

EXHIBIT P2 TRUE COPY OF THE INSURANCE POLICY CERTIFICATE CUM POLICY SCHEDULE ISSUED IN FAVOUR OF MR.JINO SREENIVAS DATED 3.4.2019.

EXHIBIT P3 TRUE COPY OF THE GENERAL DIARY ABSTRACT DATED 10.7.2019 ISSUED BY SUB INSPECTOR OF POLICE, KOTTAYAM EAST POLICE STATION.

EXHIBIT P4 TRUE COPY OF THE ESTIMATE DATED 12.7.2019 ISSUED BY GERMAN TECH, GANDHI NAGAR, KOTTAYAM.

EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE DIVISIONAL MANAGER OF THE 1ST RESPONDENT AT ALAPPUZHA DATED 15.11.2019.

EXHIBIT P6 TRUE COPY OF THE REPORT PREPARED BY MR.BINOY AUGUSTINE DATED 4.11.2019. EXHIBIT P7 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE AWARD DATED 30.3.2020 ISSUED BY THE 2ND RESPONDENT WITH COVERING LETTER.

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 13.7.2020 ISSUED BY CENTRAL PUBLIC INFORMATION OFFICER, OFFICE OF THE INSURANCE OMBUDSMAN, KOCHI.

W.P.(C). No. 25550 of 2020

EXHIBIT P10 TRUE COPY OF THE REPLY DATED 3.2.2020 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE REPLY DATED 12.2.2020 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE REPORT DATED 17.2.2020 PREPARED BY THE SURVEYOR MR. BINU VARKEY.

EXHIBIT P13 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 19.2.2020 RECEIVED THROUGH RIGHT TO INFORMATION ACT.

EXHIBIT P14 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 3.4.2020 BETWEEN THE 1ST RESPONDENT AND THE 2ND RESPONDENT RECEIVED THROUGH RIGHT TO INFORMATION ACT.

Exhibit P15 TRUE COPY OF THE LETTER OF INTENT DATED 24/6/2021 ISSUED BY KOTTAYAM RTO RESPONDENT'S EXHIBITS EXT.R1(A) TRUE COPY OF THE POLICY ISSUED BY UNITED INDIA INSURANCE COMPANY EXT.R1(B) TRUE COPY OF LETTER DATED 3.1.2020 BY RESPONDENT TO THE PETITIONER