MANGO MASS MEDIA PVT LTD v. disregarding the second final Survey report dt.31-05-2023 Ex-PB recommended

Counsel for the Petitioner : SRI P.KAMLAKAR Counsel for the Respondent : SRI SRINIVAS RAO PACHWA, SC FOR UIICL The Court made the following: ORDER i{VSK,J W.P.No.2992 | of 2024 2 THE HON'BLE SRI JUSTICE N.V. SHRAVAN KUMAR WRIT PETITION No.2992L of 2024 ORDER: Heard Sri P. Kamaldkar, learned counsel for the petitioner and Sri Srinivasa Rao Pachwa, learned Standing Counsel appearing for respondent. With their consent, the writ petition is being taken up for disposal at the admission stage itself. Perused the record.

2. This Writ Petition is filed with the following prayer: "(i) issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring the action of Respondent in arbitrarily ignoring and disregarding the second final Survey report dt.31-05-2023 [Ex-P8] recommended claim settlement on TOTAL LOSS BASIS and the repairers final estimate dt. 24-L2-2O22 [Ex-P6] gives repair cost of more than the IDV which is TOTAL LOSS BASIS claim settlement, thereby not settling the Claim No.0520O312OC05O126001, as arbitrary, illegal, unjust, as same is contrary to second final Survey report dt.31-05-2023 [Ex-P8] and repairers final estimate dt.24- l2-2O22 [Ex-P6], and is also against Terms trnd conditions of Policy schedule issued by Respondent to the Petitioner, and is also against the settled Insurance Practice and Law and judgments and is in violation of principles of natural justice and is also against Article L4, 16 and 300-A of the Constitution of India, and (ii) issue a writ, order or direction more particularly one in the nature of writ of Mandamus directing the Respondent to consider Survey report dt.31-O5-2O:23 [Ex-PS] and repairers final estimate dt. 2+-12-2022 [Ex-P6] read with Terms and Conditions of Policy Schedule, and settle the NVSK,J w.P.No-29921of 2024 J claim No. 05200312OCO5012600 1 of the writ petitioner- 9n TOTAL LOSS BAsIs as per Terms and conditions of Policy Schedule and accordingly pay the below amount' without any further delaY: a) Immediate Claim settlement on TOTAL LOSS BASIS on fult IDV of Rs. 5,14,24,7101- plus interest @12% per annum from L2-Od,-2O2t li.e the date of claiml to till the receipt of full tDV amount by the Petitioner' b)ThePetitionerhasbeenwithoutVehicleforthelast aboutthreeandhalfyearsandhencedirectthe Respondent to pay to the Petitioner the compensation @ Rs10000p.'a"yfrom12-o2-2o2ltotilldateofclaim settlement on rorru LOSS BASIS and receipt of the amount by the Petitioner, which is in addition to the claim amount mentioned in Para (3) (W) (ii) (a) hereinabove' "rra c)ThePetitioner'sVehicleisparked'forlogtimeinthe due to g'"t"g. "" advised by the Respondent' -However' Irr".iio, of Respondent, the Petitioner wilt be liable to pay parking charges @ Rs 5000 per day' Thus' Respondent-is b; diieated to pay parking charges for the ii"ut. period from L2-O2-2O21 to till date of claim settlement on TOTALLossBASlsandreceiptoftheamountbythe Petitioner, which is in addition to the claim amount mentioned in Para (3) (W) (ii) (a) & (b) hereinabove' The that these parking charges lon petitioner is actual basis] ."i b. paid by Respondent directly [on behalf of the Petitionerl to the concerned Person/entity providing the parking. ^gr.."bi.' d)SincethePetitionerhasbeenunder-tremendous fr.".rrr. and experiencing the h-arassment from Insurer to settle his g.rrrirr. claim on TOTAL LOSS BASIS and further,trrepetitionerisrepeatedlybeing-subjectedto multiple and unauthorised investigations !V unlawful agencies even after ad'mitting the claim' which is not aEceptable and it amounts to mental torture and harassment and hence a compensation by way of liquidated damrges of Rs'5O,00,0O07- be paid by the Respondent to trre petitioner, which is in'addition to the claim amount mentioned in Para (3) (w) (iil (a) to (c) hereinabove." NVSK,J W.P.No.2992l ot 2O2a 4

3. The facts in brief are that the petitioner _ company has insured its car bearing No.MH_05_DK_0006 (Lamborghini / Aventrador) with respondent _ insurance company vide policy No.0520013120p1O0755399 dated 29.04.2020 with effect from 24.O4.2O2O to 23.O4.2O2L and paid insurance premium of Rs.g,07,95g/_ for Insured's Declared Value (IDV) of Rs.5,14,24,T1O/_.

4. On 11.02.2021 at 10.30 p.M., the car met with an accident and was damaged resulting in total loss to petitioner's vehicle. The said accident was reported to the respondent on L2.O2.2O21 arrd claim was registered vide Claim No.O52OO312OCOSOL26001 and claim form dated 2O.O2.2O2L was submitted to the re.spondent. Thereafter the respondent - insurance company dppointed a Surveyor on 26.02.2021 and, the petitioner submitted all claim related documents to the Surveyor on 05.O3.202 1. The Surveyor has taken all the information from the authorized service provider. Thereafter the Surveyor I{VSK,J W.P.No.2992l of 2024 5 verified the facts and admitted the claim as per various communications exchanged by respondents. It is submitted that towards repair of cost of the vehicle, the iditial estimation was given on 23.O2.2O21 for Rs.3 ,37 ,52,I3O /-. Thereafter a revised estimate was given on 09.03.2021 for Rs.5,0I,44,797 -71 and on 24-12'2022 Lamborghini Bengaluru gave a further revised estimate for Rs.4,98,11,003/-. Besides the above estimates, the repairer and car maker has declared that the vehicle cannot be repaired in India. The l't Surveyor appointed by the respondent has issued the survey report on

05.0 1.2022 and the 2.d surveyor subsequently submitted final survey report was on 3L.O5.2O23. As per the survey report 3 1 .Q5.2 O23, the surveyor had mentioned the liability of the respondent on repair cost basis as Rs.4,78,62,0031- and accordingly recommended to settle the clairir on total loss basis, but the respondent is arbitrarily refusing to settle the claim on total loss'basis. NVSK,J W.P.No.2992 t of 2024 6 5' The main grievance of the petitioner is that even after lapse of 3 yz years of the craim, the respondent is ignoring the revised estimate dated 24.L2.2022 and the final suruey report dated 31.05.2 o23. The petitioner arso gave a grievance complaint on 07.70.2022. Questioning the deliberate actions of the respondents in not setting the petitioner's claim the present writ petition is filed. 6' Learned counser appearing for the petitioner submits that the damage and ross to the vehicre is a "total loss" though the respondent - Insurance company took considerabre period of time and the respondents have disregarded the survey report dated 31.05.2 o23 and, revised estimated cost of repair dated 24.12.2022, thereby the petitioner is made to wait for a iong period and also paying demurrage costs to the service centre. 7 - Per contra, learned standing counsel submits that the respondent - Insurance company has offered to settre the claim of the petitioner to a tune of Rs.1,gg,o3,3gL/- I I I NVSK,J W.P.No.2992l of 2024 7 which has been rejected by the petitioner and that there are disputed questions of facts to the extent of damage and cost to be incurred. Learned Standing Counsel would submit that based on the survey report, latter it was observed that the subject car was used for adventure / rally purpose and it was reported that the accident occurred due to adventure knowingly and that the petitioner ought not to have involved the car in such sports as the said car is meant for passenger commuting and is not a sports car and that the subject car was driven at a high speed of 2OO Kms., p€r hour.

8. On a perusal of the insurance policy / contract, dated 29.04.2020 which is filed along with the material papers, the period of insurance coverageis from 10.30 hours of 24.O4.2O2O to mid night of 23.04.2021 and as per the terms of the agreement, for any dispute or difference, there is a dispute resolution clause. Any NVSK,J W.P.No.2992L of 2024 8 dispute is subject to the provisions of the Arbitration and Conciliation Act, L996. 9 - Learned couns'el for the petitioner fiIed a Memo placing copy of circular dated 22.Lo.2o23 issued by the Insurance Regulatory and Development Authority of India (IRDA), which has been communicated to all the cAos and cMDs of General Insurance company with respect to the Applicability of Arbitration clause. The said circular was issued for amendment of Arbitration clause in General Insurance policies. Learned counsel further submits that there is an amendment of Arbitration clause in General Insurance policies which stipulates that retall/ individual policy holders may be kept out from the piovisions of Arbitration clause a.s they have alternative forums of Insurer's Grievances system, Insurance ombudsman and the consumer courts besides the civil courts are available for redressal of their grievances / disputes and that all the policies issued N\/SK,J W-P.No.29921 of 2024 9 und.er the Retail Lines of Business shall not have any Arbitration Clause.

10. This court on 3 1 . 1 2.2024, questioned the maintainability of Writ Petition and adjourned the matter' Learned cou.nsel appearing for the petitioner filed a Memo dated L7.o2.2O25 relying on the judgment dated 13. 1 | .2024 of Telangana High court in case of P. vijayalakshmi and others v. the Union of India and others passed in w.P.Nos .25779 and 188 13 of 2024 , reported in MANU/TLI Ll42 /2OO4 and judgment of Honble Apex court in case of subodh Kumar Singh Rathour v. the Chief Executive Officer and others, reported in AIR20 245C37 84. 1 1. Heard learned counsels on record and perused the record. L2. The judgments relied by petitioner are not similar to the facts and circumstances of this Writ Petition. The J., NVSK,J W.P.No.2992l of 2024 10 subject matter of this Writ Petition concerns with the enforcement of the contractual rights of the petitioner in terms of policy No.05200 13 1 2oPloo755399 dated 29 -o4.2o2o based on the survey reports dated

05.0L.2022 and 31.05.2023 and on the maintainability of the present writ Petition, the relief sought in this writ Petition is not amendable for issuance of a writ of Mandamus. Further judgments relied upon by the petitioner are distinguishable and inapposite to the facts and law of the present case. 13' In case of ziye Insurance corporation of rndia and, others u- Asha Goert on the issue of maintainability of writ Petition for the Enforcement of Contractual rights arising out of contract of Insurance, the Honbre Supreme court held that pros and cons of fact-situation shourd be carefulry-weighed. The rerevant para Nos.10 and 11 a_re extracted for reference: '1zoot12 scc t6o NVSK,J W.P.No.2992 | of 2024 1l "oit'a"tual "7O. Articte 226 of the Constitutton confers ertraordinary jurisdiction on the High Court to issue high prerogatiue wits fo, enforcement of the fundamental ights or for ang other purpose- It is uide and expansite. The Constitution does not place ang fetter oru exercise of the extraordinary jurisdiction. I! is -teft to the discretion of the High Court. Thereford, it cannot be laid doutn as a general proposition of law that in no case the High Court can entertqin a utrit petition und.er Articte 226 of the constitution to enforce a claim und.er a lw insurance policg. It is neither possible nor proper to enumerate exhaustiuelg the circumstances in which such a claim can or cannot be enforced bg fiting a utrit petition. The determination of thb qu""ioi d.epends on consideration of seueral factois like, uiether a utit petitionet. '.t merelg rights or the attempting to enforce his/he' case raises important questions of laut and constituttonal issies, the nature of the dispute raised; the nature of inquiry necessarA foi determination of the dispute etc. rnJ-iitt", is to be- considered in the focts and. circumstai"'es of each ca?e' While the jurisdiction of the High c;;; h entertain a u'rrit petition under Article 226 i*'rn"- constitu.ion caniot a3 denied must bear i-n mind the setf-imposed yauutia ay High courts all altogether, "o'i"" restnction "on'.i"tiiilg these aerrrs ]i'"''i7 cons.ltitytionit pou)er came into enstence in iot entertainini utnt fefitions filed for rigit s an d o-blig atto n s e nfo r cem"n' oi puiety co ntr oill "t uhich inuolue disputed quest:ions of facts' The courts haue"consisten'i'g''olo"n in" ui"* thai in a''case where for d-eter*ino'tioil i'ry; qity"* raised' it is necess@ry "toinquirei*t;""i;;i'fordeieiinationofulhichitmay become n""""!ilii l"*'a o'il *ide:ce a proceeding not the und-er a,t'"ti*zz;" ;j-1lht .Con"tttutton' --is appropnat" f';;: rt" p'srtro" ;t also utell settled that if ihe ,ont'actZit"'"a beualen the parties prouide an Ltternate forum for resolutiii of aliorlt3s aising from approach the the contract, tien the parti"! "niaa forum agreed bg them oni"'nt Htgh Court in wit iuisdiction shourd" not p"ir"it--the; to bgpass the- "ogr"ed foruli-- of dispute re-sotutiort' At the cost oJ NVSK,J W.P.No.2992l of 2024 t2 repetition it mag be stqted that in the aboue discussions wL haue ontg Tndicated some of the ciranmstances in which the Hign court haue declined to entertain petitions filed inder Articte 226 of the Constitution for 'enforcem-ent of contractuat rights and obligation; the dilcussfons one not intended to be exhaustiue. This Court from time to time disapproued of a High Court entertiining a petition under Article 226 of the Constitution in matters of enforcement of contractual rights and obtigation parttcularly where the -claim oie partg is coitested. bg the other and adjudication of the dispite req,ires inquiry into facts We mag notice a few sich coset; Mohd. Hanif u. State of Assam [(1969) -2 SCC 7B2l ; Banchhanidhi Rath u' State of Onssa [(1972) 4 781]; Rukmanibai Gupta i. Cotlector, Jabalpur [(1980) 4 SCC 556] ; Food Coipn. of India u. Jagannath Dutta [1993 Supp (3) SCC 63il and state of H.p. u. Raja Mahendra pat [(1999) 4 scc 4sl. SCC

77. The position that emerges from the discussions in the decided c@ses is that ordinarilg the High court should not entertain a writ petition filed under Article 226 of the constittttion for mere enforcement of a claim und-er a contract of insurance. Where an insurer has repudiated the claim, in case such a wit petition is fiied, the High court has to consider the facts and circumstances of the case, the nature of the dispute raised. arud" the nature of the inquirg necessary to be mad.e for determination of the questtons raised and other ieteuant factors before taking a decision uhether it shoutd entertain the utrit petition or reject it as not maintainable. It has also to be kept in mind that in case an insured or nominee of the deceased insured is refused relief merely on the ground that the claim relates to contractua[ rights and obtigations and he/ she is driuen to a long-dra.wn titigation in the ciuil court it wilt cause seriois prejudice to the claimant/ other beneficiaries of the policg. The pros and cons of the matier in the contert of the fact-situation of the case shoutd. be carefultg weighed and appropiate decision shoutd. be takin. ln o "i"" where claim bg an insured NVSK,J w P.No-29921 of 2024 l3 or a nominee is repudiated raising a serious dispute and the Court finds the dispute to be a bona fide one which requires oral and documentary euidence for its determination then the appropiate remedg is a ciuil suit and not a wit petition under Article 226 of the Constitution. Similarlg, u;here a plea of fraud is pleaded, bg the insirer and on examination is found pima facie' to haue mertt and oral and documentary euideruce mag become necessary for determination of the issue raised, then a writ petition is not an appropiate remedg." In case of Neut Indiq Assurance Co. Ltd. a. Pradeep Kumar2, the Hon'ble Apex Court observed that the report of licensed surveyors / loss assessors is not final and binding on the parties. The relevant paragraphs Nos.21 and 22 of the said judgment are extracted under:

21. Section 64-UM(2) of the Act, 1938 reads: "64-UM. (2) No claim in respect o/ a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twentA thousand rupees in ualue on ang policg of insurance, arising or intimated to an insurer at ang time afi,er the expiry of a period of one year from the commencement of the Insurance (Amehdment) Act, 1968, shall, unless otheruti,se directed bg the Authoitg, be admitted for pagment or settled bg the insurer unless he has obtained a report, on the loss that has outned, from a person uho holds a licence issued under this section to act as a. surueAor or loss assessor (hereafier referred to as 'approued surueAor or loss assessorJ.. 'zpooey 7 scc rBZ NVSK,J W.P.No.2992 | of 2024 t4 ' Prouided that nothing in this sub-section shatt be deemed to take awaa or abrid.ge the rigltt of the tnsurer to paa or settle ang claim at ang amount different from the amount assessed bg the approued suruegor or loss assessor. " The object of the aforesaid. prouision is that where the claim in respect of loss required. to be paid. bg the insurer is Rs 2O,OOO or more, the loss must prit te alsessed by an approued surueaor, /or loss assessoy' before it is ad.mitted" for payment or settrement ba the iniurer. The prouiso appended thereto, howeuer, makes it clear that insurer mag settle the claim for the ross suffered bg insured. at ang amount or paa to the insured ana amouit d.iyerent froi" the amounf asses sed. bg the approued. suruiyor 1or toss assessor/.

22. In other word-s arthough /he assessment of loss bg the approued surueyor is a- prerequisite for pagment or settlement of claim of twentgihousind. *p""i or more bg insurer, but suruegor's ,.poi is not the tast and" finar word.. It is not that sacrosanct that it cannot be d.epaied. from; it is not conclusiue. The approued. surueAor,s report mag be t:!1 basi: or found.atAi 7or settlemeni of a-"-ii* bg the tnsurer in respect of the loss suffered. ai in" *ured. but report i neither aiiii"g upin-tl"'rn"ur"r nor ?:::::";.ych t4' on a perusal of the circurar dated 27 .10.2023, clarifies the arternative forums of Insurerrs Grievance System available for retail/ individual policy Since there are disputed questions of fact on the quantum of damages to be granted to the petitioner arising out of the poricy No.05200131 20p700755399 holders \ \ I / NVSK,J w.P.No.2992l of 2024 l5 dated 29.O4.2O2O, this Court cannot decide such issues in this Writ Petition under Article 226 of the Constitution of India. The petitioner has an alternative remedy go to before the concerned Court in terms of Circular dated

27.1O.2O23 where they can lead proper evidence and on a meaningful adjudication, the case of the petitioner can be considered.

15. With the above observations, no Mandamus can be issued for the reliefs sought by the petitioner in this Writ Petition. Accordingly, this Writ Petition is dismissed' However, liberty is granted to the petitioner to pursue appropriate remedy as per the Circular daled2T'70'2023 issued by IRDA and as available under law' There shall be no order as to costs' pending, shall Miscellaneous applications' if any stand closed' //TRUE COPY// \ One fair coPY to the (for His N.V.S Hon'ble Sri Justice LordshiPs Kind Peru sal) to'r. on" cc to SRI P.KAMI+AKAR, Advocate' toPUCl ', NNA KRISHNA REG ON OFFICER Kumar L' 2.oneCCtoSRISRINIVASPACHWA,SCFoRUNITEDINDIAINSURANCE dijrtrFAr.tY LltvllTED. [oPUc] =^:. +liffi:lurt".r",.rr, Union of rndia, Ministrv of Law, Justice and companv Affairs' 5. |r"yr?:[lary, Advocates,Association Librarv, High court Buirdings, Hvderabad' 6. Two CD CoPies' \ BSK BS HIGH COURT \ DATED:08/0712025 17 rln i{6 ,i\ '.,j :-- \'-.,. 'r. t'r -. \.:- .- . , D l' D ER WP.No.29921 of 2024 DISMISSING THE WRIT PETITION WITHOUT COSTS I t I I I I