Kerala High Court
Bahrti Axa General Insurance Co.Ltd vs Hari on 18 December, 2024
WP(C) NO.19828/2014 1
2024:KER:95291
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY,THE 18TH DAY OF DECEMBER 2024/27TH AGRAHAYANA,1946
WP(C) NO.19828 OF 2014
PETITIONER:
BAHRTI AXA GENERAL INSURANCE CO.LTD
5TH & 6TH FLOOR, MODAYIL CENTER POINT,
PALLIMUKKU, M.G.ROAD, KOCHI-682035.
BY ADVS.
GEORGE A.CHERIAN
LATHA SUSAN CHERIAN(K/412/2008)
GEORGE CHERIAN (SR.)(G-81)
RESPONDENTS:
1 HARI
S/O.NARAYANAN, 9/495, MUKULUVILLATHEKKATHIL,
VAKKANADU P.O., KAREEPRA, ULAKODU, KOLLAM-691509.
2 THE HON'BLE PERMANENT LOK ADALAT
(FOR PUBLIC UTILITY SERVICES), OLD HIGH COURT
BUILDING, ERNAKULAM, KOCHI-31.
BY ADV. SRI.P.V.CHANDRA MOHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04.11.2024, THE COURT ON 18.12.2024 DELIVERED THE
FOLLOWING:
WP(C) NO.19828/2014 2
2024:KER:95291
JUDGMENT
Dated this the 18th day of December, 2024 This Writ Petition is filed seeking to set aside Ext.P7 Award dated 07.03.2014 rendered by the Permanent Lok Adalat (For Public Utility Services), Ernakulam in O.P.No.10 of 2013. Petitioner was the respondent in the said O.P. and 1st respondent was the petitioner therein.
Brief facts:
2. The 1st respondent - insured purchased a Tata Hitachi Model Excavator with Rockbreaker in November 2011. He had been using the excavator and machinery in metal quarries and was thus earning a livelihood therefrom. He took an insurance cover for the said machinery from the petitioner - Insurance Company for the period 28.6.2011 to 27.6.2012. The sum insured was Rs.25 Lakhs for machinery and an amount of Rs.2,50,000/- was towards third-party liability. On
08.03.2012, some miscreants set fire to the excavator and the incident led to the registration of crime by the local police. The insured informed the matter to the Insurance Company and they deputed their surveyor to assess the damages. The surveyor reported that the excavator was completely destroyed in fire and it was a case of total loss. The WP(C) NO.19828/2014 3 2024:KER:95291 Insurance Company after several communications initially offered the amount of Rs.15,50,032/- towards indemnification. The said amount was subsequently re-fixed after factoring in depreciation, salvage etc. to an amount of Rs.8,79,433/-. The insured was not agreeable to this amount offered by the Insurance Company and demanded the full insurance cover availed by him viz., Rs.25 Lakhs. Since this was declined by the Insurance Company, the insured moved the Permanent Lok Adalat (For Public Utility Services), Ernakulam, and filed O.P.No.10 of 2013 seeking to recover the amounts due to him from the Insurance Company under the policy. He contended that after destruction of the machinery, he had been rendered jobless and that he had suffered a loss of Rs.3,00,000/- on that count for a period of 10 months. He thus sought a total claim of Rs.30,79,500/- from the Insurance Company. However, the claim was limited to Rs.25 Lakhs, with interest @ 12% from the date of the claim petition to be paid to the insured. Proceedings before the Lok Adalath:
3. The Insurance Company appeared before the Lok Adalat and filed their written statement. It was contended that the petition is not maintainable and that the claim exceeded pecuniary jurisdiction of the Lok Adalat. After the filing of the written statement, the Lok Adalat conducted conciliation proceedings as envisaged under the Legal WP(C) NO.19828/2014 4 2024:KER:95291 Service Authorities Act, 1987 towards exploring an amicable settlement of the disputes. Since the parties failed to arrive at an amicable settlement, the matter was taken up for decision on merit by the Lok Adalat as envisaged under Section 22 (C) (8) of the Legal Services Authorities Act, 1987. The point for consideration was duly framed by the Lok Adalat and the parties proceeded to tender evidence. Exts.P1 to P9 were produced on behalf of the insured and Exts.R1 to R3 were produced by the Insurance Company. The insured was examined as PW 1 and from the side of the Insurance Company, an officer RW 1 was examined. The Lok Adalat, after hearing both sides, rendered its Award, inter alia finding that the insured is entitled to claim an insurance amount of Rs.16,58,750/- together with interest at the rate of 9% per annum from the date of filing of the petition till the date of realisation of the amount from the Insurance Company. The said Award of the Lok Adalat is impugned in this Writ Petition.
4. Heard Senior Advocate Sri.George Cherian, instructed by Advocate Smt.Latha Susan Cherian, appearing on behalf of the petitioner and Advocate Sri.P.V.Chandramohan, appearing for the 1 st respondent.
5. Contentions of the petitioner/Insurance Company in brief:
● Ext.P7 Award passed by the Permanent Lok Adalat is WP(C) NO.19828/2014 5 2024:KER:95291 legally unsustainable. The Permanent Lok Adalat erred in directing the Insurance Company to pay the insured Rs.16,58, 750/-. The said amount was arrived at without any legal or factual basis and ignored the written terms of the insurance contract entered into between the parties. ● The insured had entered into a 'Contractors' Plant and Machinery Insurance Policy', the terms and conditions of which were specifically binding on him.
● The permanent Lok Adalat erred in interpreting the terms and conditions of the said policy and in properly appreciating the clauses which were binding on the parties to the said contract of insurance.
● It was a specific policy term that the sum insured has to be equal to the replacement cost of the insured property by new property of the same kind and same capacity. The reinstatement quotation (Ext.P3) submitted by the insured very specifically stated that the replacement cost of the insured property is Rs.51,15,557/-.
● Though the sum insured ought to have been Rs.51,15,557/-, the insured had taken a policy cover for only WP(C) NO.19828/2014 6 2024:KER:95291 Rs.25 Lakhs, thus attracting the consequence of 'underinsurance' as stated in the policy. There was a 51.13% underinsurance which the insurer had to suffer.
● The reinstatement quotation shows the reinstatement and replacement cost, which ought to have been the basis of the legal loss assessment. The Lok Adalat brushed aside the specific terms of the admitted policy and reinstatement quotation which was submitted by the insured himself. This course adopted by the Lok Adalat is illegal and unsustainable.
● No amount of oral evidence can vary the terms of an admitted written contract. The Lok Adalat substituted the written terms of the policy with oral evidence rendered by the witnesses examined by both sides.
● The Lok Adalat misunderstood the term 'warranty' as used in the policy. Warranty, in an insurance policy, is an undertaking or assurance by the insured to the insurer and not vice versa. Warranty number 8 of the policy stated that "warranted that the sum insured shall represent the current new replacement value of the equipment."
WP(C) NO.19828/2014 7
2024:KER:95291 ● Provision 1 of the policy which explicitly stated about sum insured and the replacement cost was erroneously understood by the Lok Adalat.
● The Lok Adalat failed to understand that insurance contracts are contracts entered into in utmost good faith on the principle of 'Ubberimae fidei'.
● The Adalat erred in relying on Ext.P6 which was just a xerox copy of the invoice by which an earlier owner of the insured property had purchased the same in the year 2008. The Adalat ought to have found that Ext.P3 series replacement cost produced by the 1st respondent himself is the only document that would reveal the said cost. It was not a document that was procured behind the back of the 1 st respondent. On the contrary, it is a document produced and handed over by the 1st respondent himself.
● The date of depreciation as fixed by the Lok Adalat is erroneous. The year of manufacture of the insured property and the year of loss are relevant for fixing depreciation. Accordingly, the years 2008 and 2012 were to be considered, not 8 months as arrived at by the Adalat. WP(C) NO.19828/2014 8
2024:KER:95291 ● The Adalat has not stated any valid or legal reason to reject the survey report prepared by a competitor, which had been prepared after investigation and exhaustive inspection. ● The Lok Adalat ought not to have mulcted the petitioner with liability over and above the assessed amount in Ext. P5 survey report. It is settled law that a report submitted by the insurance surveyor under Section 64 - UM (2) of the Insurance Act, 1938 is a legally reliable document and its non-consideration results in a serious miscarriage of justice and vitiates the judgment rendered by a court/ adjudicating forum.
● Ext.P7 Award of the Lok Adalat is illegal and unsustainable in law and it is fit to be set aside.
● Reliance was placed on the dictum laid down by the Supreme Court in United India Insurance Company Limited and others v. Roshan Lal Oil Mills Limited and others [(2000) 10 SCC 19]; National Insurance Co. Ltd. v. Raghunathan (2004 (1) KLT SN 37); Sikka Papers Ltd. v. National Insurance Co. Ltd. and others [(2009) 7 SCC 777].
WP(C) NO.19828/2014 9
2024:KER:95291
6. Contentions of the 1st respondent in brief:
● Ext.P7 Award of the Lok Adalat is just, valid, and legal. It does not call for any interference.
● The insured is entitled to a sum insured amounting to Rs.25 Lakhs for which he had remitted the premium and had taken the policy cover.
● There is no 'underinsurance' of the policy, as the Insurance Company had alleged. There has been no violation of good faith on the part of the insured.
● The insurer violated the solemn undertaking made under the insurance policy, which was to pay Rs.25 Lakhs to the insured in case of loss of the insured machinery.
● The surveyor appointed by the insurer admits that the machinery was a total loss. Hence, the insurer, under the policy, was bound to indemnify the loss that had occasioned to the insured to the full extent.
● After accepting the premium for the insured amount of Rs.25 Lakhs, the insurer cannot contend that there has been underinsurance.
● The Lok Adalat had correctly appreciated the evidence tendered WP(C) NO.19828/2014 10 2024:KER:95291 by the officer of the respondent insurer who was examined as RW1. The finding that the witness had given an evasive reply, but had later clearly admitted that the proposal was accepted with a warranty that the sum insured is the current replacement value of the machinery. Lok Adalat very correctly concluded that as per the evidence tendered by RW1, the sum insured must be taken as the replacement cost of the machinery.
● As regards the contention put forth by the insurer that the proposal made by the property owner regarding the sum insured is accepted by the Insurance Company without any demur and without verification, the Lok Adalat had very correctly turned down the said contention based on the deposition of RW1, who is an officer of the insurer and had correctly concluded that it is quite clear that 'the sum insured in this case was equal to the replacement cost of the machinery as on the date of insurance.' ● The Lok Adalat had very validly concluded that the insistence on the part of the Insurance Company to make available the documents of the kind of Ext.R2 series from the insured was a clever attempt to dislodge the legitimate claim of the insured if not it was to outsmart or defraud the insured.WP(C) NO.19828/2014 11
2024:KER:95291 ● The Lok Adalat validly and legally interpreted Exts.P1 and P2 documents in light of the evidence tendered by RW1 and concluded without hesitation that the replacement cost of the insured machinery as on the date of insurance was equal to the sum insured as per Ext.R1 policy.
● The Lok Adalat's finding that, as per clause 2 (b) of the provisions of the policy, the Insurance Company is liable to pay the actual value of the destroyed item as it was immediately before the loss, is valid and legal. The same needs no interference. ● The Lok Adalat validly based on principles of natural justice, equity, and fair play as enjoined under Section 22 D of the Legal Services Authorities Act, 1987 and fixed the proper depreciation at 8% of the cost of the machinery as of the date of the insurance. The said finding arrived at by the Lok Adalat is valid and proper. ● The Lok Adalat had validly concluded that the survey report Ext.R3 is a self-serving document. It was also validly found that Ext.R3, which is a continuation of the earlier survey report, had been suppressed from the Lok Adalat's notice. Lok Adalat had validly concluded that the survey report has no probative value. ● It is trite law that if both sides with their eyes open had arrived at a WP(C) NO.19828/2014 12 2024:KER:95291 particular figure to be the real value of the subject matter of insurance, it is not open to any party to dispute the said sum and contend that the real value was something different from what was declared by the parties to be the sum insured. Reliance is placed on the dictum laid down by the Supreme Court in Sumit Kumar Saha v. Reliance General Insurance Co. Ltd. [(2019) 16 SCC
370)].
● The principles relating to the interpretation of insurance policies are well settled by the Supreme Court. The provisions of the policy must be read and interpreted in such a manner to give effect to the reasonable expectations of all the parties including the insured and the beneficiaries.
● It is well settled that coverage provisions should be interpreted broadly and if there is any ambiguity, the same should be resolved in favour of the insured. On the other hand, the exclusion clauses must be read narrowly. The policy and its components must be read as a whole and given a meaning that furthers the expectations of the parties and also the business realities. Looking from the said point, the Lok Adalat had in the impugned Award validly interpreted the policy terms and arrived at the reasonable amount payable. Reliance is placed on the dictum laid WP(C) NO.19828/2014 13 2024:KER:95291 down by the Supreme Court in Canara Bank v. United India Insurance Co. Ltd. and others [(2020) 3 SCC 455)]. ● The contention put forth by the Insurance Company that there has been under insurance is not legally sustainable. The question of 'Underinsurance' and its meaning and content has been defined by the Supreme Court in I.C. Sharma v. Oriental Insurance Company Limited. [(2018) 2 SCC 76]. It has been held therein that 'underinsurance' basically means that the insured has taken out an insurance policy in which he has valued the insured items for a sum that is less than the actual value of the insured item. In a country like India, this is normally done to pay a lesser premium. This is, in fact, harmful to the policyholder and not to the Insurance Company because even if the entire insured property is lost, the policyholder will only get the maximum sum for which the property has been insured and not a penny more than the sum insured.
● The Supreme Court, in Dharmendra Goel v. Oriental Insurance Co. [(2008) 8 SCC 279], has depreciated the practice of insurance companies often acting in an unreasonable manner when in a dominant position and after having accepted the value of a particular insured good, disowning that very figure on one pretext WP(C) NO.19828/2014 14 2024:KER:95291 or another when they are called upon to pay compensation. It has been held that the take-it-or-leave-it attitude exhibited by Insurance Companies is clearly unwarranted not only as being bad in law but ethically indefensible. The said dictum laid down by the Supreme Court squarely applies to the facts of the case at hand.
Discussion and finding:
7. Since the subject dispute revolves around the terms and conditions of an insurance policy and its interpretation before proceeding to consider the contentions of both sides, it would be relevant to examine the law relating to the scope and nature of insurance contracts as well as the approach to be adopted while interpreting its terms. Based on such settled legal principles, the contentions put forth will have to be appreciated.
8. It is trite law that an insurance policy is a contract between the insurer and the insured and the parties are strictly bound by the terms and conditions as provided therein. [See Gurshinder Singh v. Shriram General Insurance Company Ltd. and another (2020 (11) SCC 612)]. It is also settled that insurance contracts are special contracts based on the general principles of full disclosure inasmuch as a person seeking insurance is bound to disclose all material facts relating to the risk WP(C) NO.19828/2014 15 2024:KER:95291 involved. Law demands a higher standard of good faith in matters of insurance contracts which is expressed in the legal maxim uberrimae fidei [See Mahakali Sujatha v. Branch Manager, Future Generali India Life Insurance Company Limited and another (AIR 2024 SC 2019); Texco Marketing Pvt. Ltd. v. TATA AIG General Insurance Company Ltd. and others [(2023) 1 SCC 428] It is also a well- entrenched principle that a contract of insurance like any commercial contracts, should be interpreted strictly. [see Industrial Promotion and Investment Corporation of Orissa Ltd. v New India Assurance Company Ltd. and another (AIR 2016 SC 3908). As regards the vexed question of how the terms and conditions of an insurance policy have to be interpreted subsequent to the happening of the incident and total loss has been succinctly laid down by the Supreme Court in Jaina Construction Company v. Oriental Insurance Company Limited and another [(2022) 4 SCC 527] quoting the observations in Gurshinder Singh v. Shriram General Insurance Company Ltd. and another reported in [2020 (11) SCC 612]. It reads as follows:
"Under the English law, the development of insurance jurisprudence is given credence to Lord Mansfield, who developed the law from its infancy. Without going much into the development of the interpretation rules, we may allude to Neuberger, J. in Arnold v. Britton, which is simplified as under:
(1) Reliance placed in some cases on commercial common sense and surrounding circumstances was not to be invoked to undervalue the importance of the language of the WP(C) NO.19828/2014 16 2024:KER:95291 provision which is to be construed.
(2) The less clear the words used were, the more ready the court could properly be to depart from their natural meaning, but that did not justify departing from the natural meaning. (3) Commercial common sense was not to be invoked retrospectively so that the mere fact that a contractual arrangement has worked out badly, or even disastrously, for one of the parties was not a reason for departing from the natural language.
(4) A court should be very slow to reject the natural meaning of a provision as correct simply because it appeared to be a very imprudent term for one of the parties to have agreed. (5) When interpreting a contractual provision, the court could only take into account facts or circumstances which existed at the time that the contract was made and which were known or reasonably available to both parties. (6) If an event subsequently occurred which was plainly not intended or contemplated by the parties, if it was clear what the parties would have intended, the court would give effect to that intention. (emphasis added)"
9. Having thus reminded myself regarding the law on the point, I proceeded to examine the relevant terms of the subject insurance policy, which the Lok Adalat had considered and had proceeded to interpret. The subject policy was termed as a 'Contractors' Plant and Machinery Insurance Policy' and it inter alia contained the following clauses:
"If the sum insured is less than the amount required to be insured as per Provision 1 herein above, the Company will pay only in such proportion as the sum insured bears to the amount required to be insured. Every item, if more than one shall be subject to this condition separately"
Provision 1 relating to the "Sum Insured" reads as follows:
" It is a requirement of this insurance that the sum insured shall be equal to the cost of replacement of the insured property by new property of the same kind and same capacity, which shall mean it's replacement cost including freight dues and Customs duties, if any, and erection costs" WP(C) NO.19828/2014 17
2024:KER:95291 The Lok Adalat had also taken specific note of clause 2 (b) of the provisions of the policy which reads as follows:
"In cases were an insured item is totally destroyed the Company will pay the actual value of the item immediately before the occurrence of the loss including costs for ordinary freight, erection and customs duties if any, provided such expenses have been included in the sum insured, such actual value to be calculated by deducting proper depreciation from the replacement value of the item. The Company will also pay any normal charges for dismantling of the machinery destroyed, but the salvage shall be taken into account."
10. The subject machinery of the respondent insured was covered by the insurance policy issued by the petitioner Insurance Company which was taken out for Rs.25 Lakhs. The premium demanded for the said coverage has been admittedly paid by the insured and has been received without demur by the Insurance Company. However, subsequent to the occurrence of the covered incident, it is contended by the Insurance Company relying on 'Provision 1' reproduced hereinabove that there has been 'underinsurance' by the insured since even as per the document Ext.P3 produced by the insured, (after the loss-causing event) the current value of the subject matter (reinstatement cost of the insured property by new property of the same kind) is Rs.51,15,557/-. Hence it is contended that there has been 'underinsurance' by the insured at the time of availing the policy, when he took insurance cover only for Rs.25 Lakhs. Thus there is an 'underinsurance' and breach of WP(C) NO.19828/2014 18 2024:KER:95291 utmost good faith it is alleged.
11. The insured, however, contends that he had insured the subject matter for Rs.25 Lakhs and had admittedly paid the premium, which the Insurance Company had received without demur. Now, after the total loss that has occurred, which is admitted by the surveyor's report, the Insurance Company cannot contend that there has been a violation of the policy alleging 'underinsurance'. Ext.P3 which states the current value of the subject machinery as Rs.51,15,557/- was produced by him in all bonafide as demanded by the Insurance Company after the loss- causing incident as part of processing the insurance claim. It denotes the present value of a brand-new subject matter. All that the insured seeks is Rs.25 Lakhs which is the insurance cover availed and not the present value of Rs.51,15,557/-. The insured cannot have anticipated the current value at the time of availing of the insurance coverage. He cannot be bound by the subsequent value now revealed in Ext.P3 even though it was he who had produced it from a dealer. There has been no willful undervaluation of the subject matter from his part and there is no breach of utmost good faith.
12. The contention put forth by the insured appears attractive at the first blush. However, looked at from the prism of insurance law and the manner in which insurance policies are to be interpreted, the same WP(C) NO.19828/2014 19 2024:KER:95291 soon looses its sheen. The procedure and reasoning adopted by the Lok Adalat further diminish the legal reliability and worth of the said contentions.
13. The clause termed 'Provision 1' concerning the sum insured is an integral part of the insurance policy between the parties. It stipulates that the sum insured shall be equal to the cost of replacement of the insured property by new property of the same kind and same capacity. This sum is termed as the replacement cost of the subject matter. The insured was called upon to produce the reinstatement quotation ie., the then-current value of the subject matter. He accordingly produced Ext.P3 which stated the then current value as Rs.51,15,557/-. This immediately triggered the other clause in the policy which mandated that upon the sum insured being less than the amount required to be insured as per Provision 1, the insurer need to pay only in a specified proportion. The same was explained as the proportion that the sum insured bears to the amount required to be insured. By virtue of this clause, the amount of Rs.51,15,557/- stated in Ext.P3 submitted by the insured which reveals a 51.3% under-insurance became relevant and will bind him. Worked out thus, the assessment of loss by the Insurance Company stands at Rs.8,79,433/- which they had after negotiations enhanced to Rs.9,40,032/-. This amount though substantially less than WP(C) NO.19828/2014 20 2024:KER:95291 the policy amount of Rs.25 Lakhs, is the amount to which the insured is entitled to as per the policy terms. Since the policy terms cannot be wished away by a party, the insured may be able to claim anything beyond.
14. Now comes the question of sustainability of the amount of Rs.16,58,450/- arrived at by the Lok Adalat as payable to the insured which is challenged by the Insurance Company in this Writ Petition. The same has been arrived at by placing reliance mainly on clause 2 (b) of the provisions of the policy reproduced above. The first part of the said clause stipulates that in cases where an insured item is totally destroyed the Company will pay the actual value of the item immediately before the occurrence of loss. The Lok Adalat, however, overlooked the fact that the said clause further mandates that the actual value will be calculated by deducting proper depreciation from the 'replacement value' of the item. Thus Provision 1 which mentioned about the replacement cost has been roped in by clause 2 (b). Hence, as per the specific terms of the policy the 'actual value' cannot be assessed de hors the 'replacement cost/value' as mentioned in Provision1. Consequently, the endeavor made by Lok Adalat to calculate the actual value immediately prior to the loss by deducting the depreciation which in turn was arrived at on the basis of 'natural justice, equity and fair play' WP(C) NO.19828/2014 21 2024:KER:95291 cannot be termed as a valid or legal exercise while adjudicating on inter parte rights in an insurance policy.
15. It is trite that there is no equity in commerce. So while examining or interpreting a commercial contract, it is not generally open to courts to grant relief solely on the principles of equity and fairness. A relief that would lie within the fours of the contract and the governing law, if any, is all that can be granted. When the contractual provisions are clear and unambiguous they need to be understood and implemented literally. No amount of deposition by witnesses based on their own perceptions, can water down, dilute or vary an otherwise clear contractual provision. The finding arrived at by Lok Adalat that "Thus going by the evidence of RW1 as aforesaid it is quite clear that the sum insured in this case was equal to the replacement cost of the machinery as on the date of insurance" cannot be sustained.
16. Further, Lok Adalat has in Ext.P7 termed the action of the Insurance Company requiring the insured to produce the reinstatement quotation (Ext. P3) as part of its claim processing, as, a "clever attempt to dislodge the legitimate claim of the insured, if not, it was to outsmart or defraud the insured." With reference to Ext.P4 survey report which had been submitted by a Surveyor who was appointed under Section 64 UM of the Insurance Act, 1968, the Lok Adalat termed the same to be "a WP(C) NO.19828/2014 22 2024:KER:95291 self-serving document". No material is presented before the Lok Adalat to arrive at such conclusions and they cannot hence be countenanced.
17. The Lok Adalat erred in overlooking the specific clauses of the insurance policy between the parties and proceeding to interpret them based on the evidence of the witnesses. As held by the Supreme Court in Gurshinder Singh (supra), insurance policy is a contract between the insurer and the insured and the parties are strictly bound by the terms and conditions as provided therein. The insured was bound by the clause in the policy that specifically mandated that if the sum insured is less than the amount for which the subject matter is required to be insured as per the relevant clause in the policy, then the Insurance Company will only pay such proportion as sum insured bears to the amount required to be insured. The said clause which in turn depended on Provision -1 of the policy relating to 'sum insured' mandated that the sum insured shall be equal to the cost of replacement of the insured property by new property of the same kind and same capacity. The insured was bound by these clauses in the policy and the same cannot be later termed as inequitable or unjust merely because it causes inconveniences or is too onerous on the insured. The court while construing the terms of policy ought not to venture into extra-liberalism that may in effect result in re-writing the contract or substituting the WP(C) NO.19828/2014 23 2024:KER:95291 terms which were not at all intended by the parties.
18. In view of the above discussion, Ext.P7 Award dated 07.03.2014 of the Permanent Lok Adalat, Ernakulam is unsustainable in law and it is set aside. It is clarified that this will not stand in the way of the 1st respondent realising the amounts, if any, due under the policy as admitted by the Insurance Company. If any admitted amounts are thus due and outstanding from the petitioner Insurance Company to the 1 st respondent insured under the relevant policy, the same shall be paid within a period of three weeks from the date of receipt of a copy this judgment.
The Writ Petition stands allowed.
Sd/-
SYAM KUMAR V.M. JUDGE csl WP(C) NO.19828/2014 24 2024:KER:95291 APPENDIX OF WP(C) 19828/2014 PETITIONER'S EXHIBITS EXHIBIT P1: COPY OF THE APPLICATION NO.O.P.10/2013 FILED BY THE 1ST RESPONDENT DATED 9.1.13.
EXHIBIT P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER DATED 4.7.2013 IN O.P.NO.10/2013. EXHIBIT P3: COPY OF THE REINSTATEMENT QUOTATION GIVEN BY THE 1ST RESPONDENT TO THE PETITIONER 1.8.2012.
EXHIBIT P4: COPY OF THE INSURANCE POLICY ISSUED ON 30.6.2011 TO THE 1ST RESPONDENT BY THE PETITIONER.
EXHIBIT P5: COPY OF THE SURVEY REPORT SUBMITTED BY THE SURVEYOR DATED 13.8.2012.
EXHIBIT P6: COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT AS INVOICES DATED 17.3.2008.
EXHIBIT P7: COPY OF THE AWARD DATED 7.3.2014.
EXHIBIT P8 : COPY OF E.P.NO.161/2014 OF THE SUBORDINATE JUDGE'S COURT, ERNAKULAM