Kerala High Court
Dr.Shajahan Yoosaf Sahib vs Office Of The Insurance Ombudsman on 11 March, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938
WP(C).NO. 6364 OF 2006 (G)
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PETITIONER(S):
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DR.SHAJAHAN YOOSAF SAHIB,
PROPRIETOR, M/S.ETTICKAL FUELS, NEDUMKANDAM P.O. IDUKKI.
BY ADV. SRI.S.EASWARAN
RESPONDENT(S):
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1. OFFICE OF THE INSURANCE OMBUDSMAN,
KOCHI 2ND FLOOR CC 27/2603, PULINAT BUILDINGS,
M.G.ROAD, ERNAKULAM, KOCHI 682 015.
2. THE REGIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE, ERNAKULAM.
R2 BY ADV. SRI.KKM.SHERIF
R2 BY ADV. SRI.P.A.MOHAMMED ASHROF
R2 BY ADV. SRI.LAL K.JOSEPH
R2 BY ADV. SRI.A.A.ZIYAD RAHMAN
R2 BY ADV. SRI.T.K.SAIDALIKUTTY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).NO. 6364 OF 2006 (G)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE POLICY BEARING NO.761503/11/04/00153 ISSUED
IN FAVOUR OF THE PETITIONER
EXT.P2: TRUE COPY OF THE CLAIM SUBMITTED BY PETITIONER
EXT.P3: TRUE COPY OF LETTER DATED 11.03.2005 ISSUED BY THE BRANCH
OFFICE OF THE 2ND RESPONDENT
EXT.P4: TRUE COPY OF THE REPRESENTATION DATED 29.08.2005 SUBMITTED BY
THE PETITIONER BEFORE 2ND RESPONDENT
EXT.P5: TRUE COPY OF THE LETTER DATED 28.09.2005 ISSUED BY THE 2ND
RESPONDENT
EXT.P6: TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT
EXT.P7: TRUE COPY OF THE ORDER DATED 29.11.2005 ISSUED BY THE 1ST
RESPONDENT
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P A TO JUDGE
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).No.6364 of 2006
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Dated this the 27th day of May, 2016
J U D G M E N T
The petitioner is the proprietor of a fuel station. At the time of operation of the fuel station, the petitioner had taken a Fire and Special Peril Policy which is produced as Ext.P1 in the writ petition. It is the case of the petitioner that almost immediately after taking the policy on 13.06.2004, the retaining wall of the fuel station that was set up by the petitioner collapsed owing to continuous heavy rain in the locality. The petitioner, therefore, preferred a claim before the respondent Insurance Company. By Ext.P3 order, the claim of the petitioner was rejected by the respondent company. From Ext.P3 order, it is evident that the respondent Insurance Company was of the view that the construction of the retaining wall put up by the petitioner was inherently defective and it was this defective construction that resulted in the collapse of the retaining wall and not any special peril such as heavy rain fall, landslide etc. The respondent company, inter alia, relied on the exclusion clause in Ext.P1 insurance contract which excluded losses owing to defective design or workmanship, or use of defective materials, from the ambit of W.P.(C).No.6364 of 2006 2 the coverage under the insurance policy. Aggrieved by Ext.P3 order, the petitioner approached the 2nd respondent with a similar claim. By Ext.P5 order, the said claim was also rejected by the 2nd respondent. This led the petitioner to approach the 1st respondent Ombudsman. The Ombudsman by Ext.P7 order rejected the petition of the petitioner and confirmed the findings of the 2nd and 3rd respondents. In the writ petition, Ext.P7 order of the Ombudsman is impugned, inter alia, on the ground that the Surveyor, on whose report the Ombudsman placed reliance in Ext.P7 order, was not competent to speak on the strength and construction of the retaining wall and his report ought to have confined itself to the extent of damage caused pursuant to the collapse of the retaining wall. It is also pointed out that the petitioner had obtained a clearance from the Oil Marketing Company at the time of construction of the fuel station and the Oil Marketing Company had certified that the construction was in accordance with the norms laid down by the Company for the construction of fuel station.
2. I have heard the learned counsel for the petitioner and the learned Standing counsel for the respondent company.
3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from Ext.P7 W.P.(C).No.6364 of 2006 3 order of the Ombudsman, that it places reliance on the report of the Surveyor attached to the respondent company to come to the conclusion that the retaining wall put up by the petitioner around his fuel station was inherently defective in that, the construction was not in accordance with the norms laid down by the Oil Marketing Company for construction of the retaining wall. There is a specific finding that, as against the recommendation of the Oil Marketing Company for a retaining wall of 11 metres height with a foundation of 7 metres x 0.92 metres at a depth of 2 metres, the foundation of the retaining wall put up by the petitioner was in fact 2.3 metres x 0.3 metres. The surveyor indicated in his report therefore, that while the construction of the petitioner was against the specifications stipulated by the Oil Marketing Company, the retaining wall constructed by the petitioner ought to have had a foundation width of at least 0.7 metres which was not there in the case of the walls that collapsed. The Ombudsman in Ext.P7 order relies primarily on the said report to find that the cause of collapse of the retaining wall put up by the petitioner was the inherently defective construction and not any special peril such as heavy rain fall etc. While the learned counsel for the petitioner would vehemently submit that commenting upon the strength of the retaining wall, or the defects in the construction of the retaining wall, was beyond the scope of the duties assigned to the Surveyor W.P.(C).No.6364 of 2006 4 attached to the respondent company, I find that even assuming that the Surveyor had submitted a report which was beyond the scope of his duties, there was no objection to the said report or any contrary certificate produced at the instance of the petitioner to indicate that the construction put up by him was not inherently defective. Under the said circumstances, and particularly in view of the uncontroverted finding that the construction of the retaining wall put up by the petitioner was against the specifications stipulated by the Oil Marketing Company in respect of the retaining wall, I see no reason to interfere with Ext.P7 order of the Ombudsman which proceeds solely on the basis of the report on technical matters submitted by the Surveyor.
Resultantly, I find that the prayers sought for in the writ petition cannot be granted and for the said reason the writ petition is dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns/27.05.16