M/s.Jain Silks v. The Insurance Ombudsman & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.11.2009CORAM:THE HONOURABLE MR.JUSTICE R.SUDHAKARW.P.No.40152 of 2006M/s.Jain Silks, represented by M.Parasmal Jain,1095/1, East Main Street, Thanjavur. ... Petitionervs.

The Insurance Ombudsman, 453, Anna Salai, Chennai-600 018.

The New India Assurance Company Ltd., Regional office, First Line Beach, Chennai.

The New India Assurance Company Ltd., Division 721100. 85/P, Market Road, Thanjavur-613 001. ... RespondentsWrit Petition is filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus, calling for the records of the first respondent in his Award No.10(CHN/G/109-2005-06 dated 24.3.2006 and quash the same and consequently direct the respondents 1 and 2 to pay claim amount for Rs.14,00,000/- with interest at 12% p.a. For petitioner :Mr.A.VivekanandhanFor respondents :Mr.M.B.Raghavan for R2 and R3:No appearance for R1 https://hcservices.ecourts.gov.in/hcservices/

O R D E RThe Writ Petition is filed praying to issue a writ ofcertiorarified mandamus, calling for the records of the first respondent in his Award No.10(CHN)/G/109-2005-06 dated 24.3.2006 and quash the same and consequently direct the respondents 1 and 2 to pay claim amount for Rs.14,00,000/- with interest at 12% p.a. 2. The petitioner owns the premises consisting ground plus two floors and is running a textile shop. Petitioner insured the building with M/s.New India Insurance Company, the third respondent under the Standard Fire and Special Perils Policy for the period from11.10.2004 to 10.10.2005 for a sum of Rs.30,00,000/- and paid the premium thereon. According to the petitioner, on 23.7.2005 at about10.30 p.m., the owner of the adjoining vacant site undertook some construction work and in that process there was excavation of the earth using JCB Poclain machine. Due to use of heavy machinery and removing of mud and earth to a large extent, the foundation of thepetitioner's building eroded and the foundation lost its stability and developed cracks. The JCB poclain machine operator was informed to stop the work which was not heeded, resulting in a complaint to the Inspector of Police, Thanjavur East Police Station. It is also stated that the driver of the vehicle was arrested by the police.3. Petitioner estimating his loss due to the illegal act of thepoclain operator claimed a sum of Rs.14,00,000/- from the third respondent insurance company with interest and Rs.1,00,000/- towards mental agony. The third respondent repudiated the claim stating that the claim is not covered by the policy. Thereafter, on 8.12.2005,the petitioner preferred a complaint before the first respondent, viz., the Insurance Ombudsman by invoking Rules 15(1) and 16 of the Redressal of Public Grievances Rules, 1998.

The factual details relating to damage caused to the building and the consequent loss suffered by the Petitioner were made by way of the complaint to the first respondent and it was supported by an assessment report. The third respondent on its turn relied upon a survey report to state that petitioner's claim is misconceived and not payable under the policy and the factual details as submitted by the petitioner were seriously disputed.

The first respondent after considering the stand of the rival parties passed an award on 24.3.2006. After going into the details of the complaint and the stand taken by the third respondent, the Insurance Ombudsman, the first respondent came to the conclusion that the Standard Fire Policy under the subsidence clause will bereferable to an "act of God" and not arising out of human activity. It also came to conclusion that the damage alleged by the petitioner is not due to the impact of the machine. The order dated 24.3.2006reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "From the above mentioned exclusion clause it can be reasonably inferred that the Standard FirePolicy under the subsidence clause to only subsidence which is an 'act of God' and not subsidence arising through human activity. As per the insured's claim intimation letter as well as the Survey report the soil beneath the foundation of the building had lost its stability and the ground floor had developed a long crack due to the activity of the JCB Poclin excavating the adjacent ground. Under the circumstances since subsidence as an 'act of God' peril has not taken place, the contention of the insured that the said loss occurred as a result of subsidence and hence is payable under the Standard Fire Policy is not tenable. " 14. The complaint is dismissed. " Challenging the same the present writ petition has been filed.

Counsel for the petitioner relied upon the Rules under the Redressal of Public Grievances Rules, 1998 and stated that the first respondent Insurance Ombudsman should have allowed the claim in its entirety and has misconstrued the scope of the policy.

The third respondent filed a counter-affidavit and raised the preliminary objection in paragraphs 3 and 4 which reads as follows:-"3. I respectfully submitted that the order of the 1st respondent on the complaint filed by the petitioner does not in any manner affect the right of the petitioner to work out its remedies before any other forum. As per Redressal Of PublicGrievances Rules any order of the 1st respondent is enforceable only if accepted by the petitioner andother policy holders. If not, the order is not binding and the parties are liberty to enforce their claim before any other Court or Forum.4. The 1st respondent as a special agency under the Rules has expressed his views on the claim. If the petitioner is not satisfied with the same, the order is not binding upon the petitioner and hence no prejudice is caused to the petitioner. In such circumstances, the WritPetition is totally misconceived since there is no binding order which causes prejudice to the rights https://hcservices.ecourts.gov.in/hcservices/ of the petitioner. Hence the Writ Petition is liable to be dismissed in limine. "

Learned counsel appearing for the third respondentMr.M.B.Raghavan contended that even on merits the complaint as raised by the petitioner is disputed by the third respondent on facts. Primarily, he stated that the insurance policy does not cover the claim of this nature as the allegation contained in the complaint that the damage has been caused to the building due to subsidence is not on account of the natural calamity or an "act of God". On the factual aspect, Mr.M.B.Raghavan, learned counsel for the third respondent submitted that the petitioner did not make out a case of damage due to a natural calamity or by an "act of God". On the contrary even as per the complaint, there are errors in the claim and that is summarised in para 6 of the counter-affidavit, which reads as follows:-"a) In in the FIR lodged by the petitioner and in the Claim Form submitted for the purpose of the claim with these respondents, the petitioner has nowhere mentioned that the Poclain machine used by the adjacent owner had any impact with thepetitioner's building or foundation.b) In the complaint filed before the 1strespondent, nothing has been stated about the circumstances surrounding the damage. ThePetitioner apparently did not wish to commit itself to the cause of damage.c) However, before this Hon'ble Forum it is being categorically stated that the Poclainmachine had dashed against and damaged the foundation. Such a statement which is not borne out by the FIR or the Claim Form is apparently an after thought, in an attempt to bring the claim within the scope of the Policy. d) The petitioner is thus making inconsistent statements for the purpose of the claim. In fact even the date of the occurrence is stated as23.7.2005 in the FIR whereas in the Claim Form itis stated as 25.7.2005."

On the first plea as to the enforceability of the dismissed complaint (Award), the Rule 16 of the Redressal of Public Grievances, Rules, 1998 speaks about the award. In terms of Clause (5) of Rule16, the complainant has to furnish to the insurer within a period of one month from the date of receipt of the award, a letter of acceptance that the award is in full and final settlement of his https://hcservices.ecourts.gov.in/hcservices/ claim. It is only thereafter, the insurer has to comply with the award within 15 days. In this case, the petitioner has not accepted the award in terms of Clause (5) of Rule 16. It is only when the complainant receives the award in his favour and calls upon the insurance company to comply with the award, the question of enforcing the same will arise. The insurance company has nothing to comply with. In this case, the complaint itself has been dismissed. Thereis no award in favour of the complainant to enforce. The petitioner, if at all has to establish his claim before proper forum and not byway of writ petition as has been done in the present case.

The petitioner is canvassing several disputed questions offact and the third respondent has consistently taken a stand that the claim is not maintainable both under the terms of policy and also on factual aspects.

In such view of the matter, since there is no award interms of the Rule 16(5) of the Redressal of Public Grievances, Rules,1998, for enforcement, the writ petition is not maintainable. It is however, open to the writ petitioner to proceed against the third respondent in accordance with law before any other appropriate forum where an adjudication of his claim can be effectively made both on the interpretation of the policy as well as factual aspects of hisclaim. The period during which the matter was pending before the court can be eschewed by such forum if the petitioner is called uponto respond with regard to limitation.