Calcutta High Court (Appellete Side)
Ajit Ghosh vs The New India Assurance Company Limited ... on 9 February, 2012
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr.Justice Jayanta Kumar Biswas
W.P.No.1740(W) of 2012
Ajit Ghosh
v.
The New India Assurance Company Limited & Ors.
Mr.Sk.Abu Aptafuddin ...for the petitioner
Mr. Nripendra Ranjan Mukherjee ...for the Insurance Company
Mr.A.Chakraborty
Mr.P.Saha. ...for the fourth respondent
Heard on: February 9, 2012 Judgement on: February 9, 2012 The Court:- The petitioner in this WP under art.226 dated January 18, 2012 is seeking the following principal relief:
"a)A Writ of or in the nature of Mandamus by quashing the order of hearing dated 17.10.2011 as passed by the Divisional Manager, Howrah Division, New India Assurance Co. Ltd.
annexure P-8 to this petition directing the Respondents particular the Respondent nos.1 and 2 to forthwith allow the claim of your petitioner and give a direction to hand over the Cheque amounting to Rs.5,00,000/- (Rupees five lacs) alongwith interest @ 12% per annum from the date of filing of the claim application i.e. on and from 21.2.2003 to till the date of actual payment."
The petitioner's case is this. His son Prosanta, killed in an accident on August 29, 2002, had obtained the coverage of a fifteen-year Rs.5 lakh Group Janata Personal Accident Insurance Policy issued by New India Assurance Company Limited (in short NIACL)in the name of one Golden Trust Financial Services (in short GTFS) on September 11, 2000 nominating his mother to receive the benefit in his absence. The mother lodging the claim died on September 9, 2004.
Since the claim was not settled the petitioner moved a WP No.3277(W) of 2008 before this Court under art.226. By an order dated August 3, 2011 the WP was disposed of 2 directing NIACL to decide the claim. Accordingly, NIACL has given the impugned decision dated November 9, 2011 (at p.37).
In the impugned decision, NIACL has recorded the following facts:
"In our aforesaid letter dt.10.10.2011 we asked you to clarify the relationship of the deceased, Sri Prasanta Ghosh with GTFS and to submit the proper documentary proof in support of your statement. This is for your further information that interms of the letter dt. 01.09.2002 as issued from the M.G. Hydraulics India(P) Ltd. The deceased Mr. Prasanta Ghosh was an employee of the said Company till the date of the accident dt. 29.08.2002, hence it is apparent on the face of record that the deceased cannot ordinarily be an employee or field worker of GTFS SIMULTANEOUSLY. Moreover if the deceased were a field worker or employee of GTFS he must have been issued proper identity card having endorsement or Licence No. in support of his association with GTFS."
NIACL has recorded the following further facts:
"In the said hearing as conducted on 17.10.2011 you could not furnish any identity proof rather you have avoided your specific liability by way of stating that you do not have any knowledge regarding such identity or status proof of the deceased and thus put the public exchequer insurance company in an acute dilemma to settle the matter.
This is to inform you that vide Order dt. 06.07.1999 the Honourable High Court specifically restricted GTFS to provide any policy certificate to the category of Friends. Your present policy was issued on 11.09.2000 i.e. much after the passing of the said Order. Hence it is incumbent up on the insurance company to verify and scrutinize the fact that the deceased did not belong to any friend's category or the order of the Honourable High Court had not been flouted by any means."
After recording the above-noted facts, NIACL gave the following decision:
"Your claim is not admissible at the very threshold since the most vital document regarding the identity or status of the deceased is not furnished before us either by yourself or by GTFS. Be it noted that if you do not have any proper identity proof of the deceased you can easily obtain the true copy of the same from the office of the GTFS and provide us the same to facilitate to consider your claim.
The GTFS was the principal insured under the terms of the MOU and was thus entrusted to provide such policy certificate to the specified category in terms of the MOU dt. 30.12.1998 and hence it is urgent to prove that the deceased policy holder belonged to the said specified category.
It is obscured what prevented you as well as the GTFS to provide the proper identity proof of the deceased as aforesaid and the Insurance Company being Government Public Exchequer can not make any payment in absence of any urgent document ignoring the specific stipulation as made by the Honourable High Court vide its Order dt.06.07.1999.
Under this constraining circumstances your claim is finally repudiated for non furnishing of essential document which please note."3
Mr. Mukherjee appearing for NIACL has questioned the maintainability of the WP. In support of his contentions he has relied on the decisions in Kulchhinder Singh & Ors. v. Hardayal Singh Brar & Ors., AIR 1976 SC 2216; The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh & Ors., AIR 1977 SC 2149; Life Insurance Corporation of India & Ors. v. Smt. Kiran Sinha, AIR 1986 SC 1265 and Life Insurance Corpn. of India & Ors. v. Asha Goel & Anr., (2001) 2 SCC 160.
In response to the preliminary objection Mr. Aptafuddin appearing for the petitioner has submitted that since NIACL is a State within the meaning of art.12 of the Constitution of India, questioning its decision repudiating the claim, the petitioner is entitled to approach the High Court under art.226.
Mr. Chakraborty appearing for GTFS, the fourth respondent, has submitted that by a decision dated April 22, 2010 in W.P.No.13359(W) of 2008 (Monoranjan Mukherjee v. The New India Assurance Company Limited & Others), considering an identical situation, a Single Bench of this Court has held that after issuing the certificate accepting the proposal and declarations, NIACL cannot question the validity, genuineness, etc. of the proposal and declarations.
His submissions are these. The proposal and declarations submitted by GTFS, the principal insured, were accepted by NIACL that never questioned their validity, genuineness, etc. Now NIACL cannot repudiate the claim taking the grounds mentioned in the impugned decision. Since the decision is perverse, questioning it the petitioner can approach the High Court under art.226.
I hope, in view of the principles stated in Life Insurance Corpn. of India & Ors. v. Asha Goel & Anr.,(2001) 2 SCC 160, it will not be inappropriate, if I refrain myself, for brevity's sake, from dealing with the other cited decisions that are actually concerning enforcement of contractual right through the High Court under art.226 and hence not really relevant to the issue involved in this WP.
4In Life Insurance Corpn. of India & Ors. v. Asha Goel & Anr., (2001) 2 SCC 160, the Supreme Court held as follows:-
"11.The position that emerges from the discussion in the decided cases is that ordinarily the High Court should not entertain a writ petition filed under Article 226 of the Constitution for mere enforcement of a claim under a contract of insurance. Where an insurer has repudiated the claim, in case such a writ petition is filed, the High Court has to consider the facts and circumstances of the case, the nature of the dispute raised and the nature of the inquiry necessary to be made for determination of the questions raised and other relevant factors before taking a decision whether it should entertain the writ 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 contractual rights and obligations and he/she is driven to a long-drawn litigation in the civil court it will cause serious prejudice to the claimant/other beneficiaries of the policy. The pros and cons of the matter in the context of the fact-situation of the case should be carefully weighed and appropriate decision should be taken. In a case where claim by an insured 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 evidence for its determination then the appropriate remedy is a civil suit and not a writ petition under Article 226 of the Constitution. Similarly, where a plea of fraud is pleaded by the insurer and on examination is found prima facie to have merit and oral and documentary evidence may become necessary for determination of the issue raised, then a writ petition is not an appropriate remedy."
The Single Bench decision of this Court dated April 22, 2010 in the WP No.13359(W) of 2008 (Monoranjan Mukherjee v. The New India Assurance Company Limited & Ors.) was given without considering the above-noted decision of the Supreme Court in Life Insurance Corpn. of India & Ors. v. Asha Goel & Anr.,(2001) 2 SCC 160. In any case, by the decision NIACL was not directed to accept any claim.
In this case after NIACL gave the impugned decision GTFS wrote a letter dated November 16, 2011 contending that NIACL placed reliance on misplaced facts; and that the findings of fact were not sustainable in the face of the facts stated in the letter as objection.
NIACL repudiated the claim saying that the most vital document regarding identity and status of the deceased was not produced by GTFS. It was mentioned that GTFS, the principal insured, entrusted to provide policy certificate to the specified category, evidently, provided policy to an ineligible person.
5According to NIACL, on the facts, the deceased was not a person falling in the category of friends, for he was in employment of one M.G. Hydraulics India (P) Ltd. and hence could not be ordinarily an employee or a field worker of GTFS; and in view of an order of the High Court dated July 6, 1999 the policy could not be provided in September 2000 unless the deceased belonged to any friends' category.
Whether the deceased belonged to any friends' category is a question that is to be adjudicated and determined. Since it is the case of NIACL that at the relevant date he could not belong to any friends' category, it can be adjudicated and determined only by taking down evidence. Hence applying the principles stated in Life Insurance Corpn. of India & Ors. v. Asha Goel & Anr.,(2001) 2 SCC 160, I hold that the petitioner's remedy, if any, was before the Civil Court.
For these reasons, I dismiss the WP saying that nothing herein shall prevent the petitioner from approaching the Civil Court. No costs. Certified xerox.
(Jayanta Kumar Biswas, J) sm(c);ab(f).