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2008 DIGILAW 66 (JK)

Manzoor Ahmad Bhat v. Oriental Insurance Co. Ltd.

2008-03-15

J.P.SINGH

body2008
1. Petitioner had come to this Court on an earlier occasion also in OWP No. 1305/96 which was disposed of on March 25, 1998 with the directions, which read thus: - "Mr. Ashan Ul Haq for the petitioner. Petitioner had approached the `court seeking a writ of mandamus against the respondents for releasing the settled and approved amount. It is submitted by the learned counsel for the respondents that disbursement was not possible because genuineness of the approval was in question. The enquiry conducted by the respondents reveals that the approval is genuine. In this view of the matter learned counsel for the petitioner submits that the petition be disposed of with a direction to the respondents to release the amount. I have considered the matter. Since the approval has been held to be genuine, the respondents are, therefore, directed to consider the petitioners claim for disbursement and pass appropriate orders within one month. By virtue of order dated 9.4.97 respondent No.2 was directed to with hold an amount of Rs. 6,70,252/- till further orders from the court. Since the writ petition has been disposed of it is ordered that the respondent No.2 shall release the amount in favour of respondent No. 1 and the order dated 9.4.97 shall stand vacated. This shall dispose of the writ petition as also the connected CMPs." 2. His contempt petition, seeking implementation of the aforementioned direction was disposed of on 1.9.2000 by providing as follows:- "Mr. Z.A. Qureshi. Mr. J.A. Kawoosa, AAG. The respondents are required to consider the claim of the petitioner, in terms of the order dated 25.3.1998. Mr. Qureshi submits that they have not communicated to him as to whether his claim has been considered. However, Mr. Kawoosa submits that it is specifically stated in the statement of facts ` that consideration has been accorded. Regard being had to the stand taken by L/C for the parties the respondents are directed to communicate the outcome of the consideration in writing to the petitioner within two weeks, so that `if any cause accrues to him against such consideration he may invoke the proper remedy. Period stipulated to begin from the date the knowledge of this order accrues to the respondents." 3. Period stipulated to begin from the date the knowledge of this order accrues to the respondents." 3. Aggrieved by respondent, Oriental Insurance Company Limiteds Communication of October 6, 2000 informing him the grounds of rejection of his insurance claim, the petitioner has once again approached this Court seeking a writ of certiorari quashing companys communication of October 6, 2000, besides seeking a command on to the respondents to pay him an amount of Rs. 6,70,252/-. 4. The case set up by the petitioner in this writ petition is that his insurance claim for the damage caused to his carpets because of the fire, had been settled by Oriental Insurance Company Limited for an amount of Rs. 6,70,252/- and despite issuance of directions by this Court in OWP No. 1305/96 and Contempt Petition No. 390/98, the amount had not been paid to him. According to the petitioner, the respondents grounds for not finding his claim genuine were unjustified because the very basis on which the petitioners claim had been rejected did not survive in view of Central Bureau of Investigation and Superintendent of Police, City South Zones final investigation reports [indicating that allegations of the company against its the then Senior Divisional Manager, Mr. L.K. Joshi, of having projected and settled false claim of the petitioner had not been found to be substantiated. 5. Insurance Company says that disputed and complicated questions of fact raised by the petitioner in his writ petition cannot be adjudicated upon in exercise of this Courts extra ordinary civil writ jurisdiction. According to the company, the respondents had lodged his claim of loss caused to his carpets due to fire with the company on May 8, 1996. The records of the then Senior Divisional Manager had however revealed that Javed Hussain, Surveyor had been shown to have been deputed on May 7, 1996, i.e. a day prior to the intimation of loss to the company. The claim petitioner, according to the company, had been settled by the then Senior Divisional Manager for extraneous considerations and without following the rules and procedure laid down for just settlement of the claim. 6. To support its case, besides relying upon petitioners communication of loss caused to carpets dated 8.5.1996, the company refers to the settlement of claim by Mr. 6. To support its case, besides relying upon petitioners communication of loss caused to carpets dated 8.5.1996, the company refers to the settlement of claim by Mr. Joshi on June 4, 1996 whereas the final police investigation report was of June 11, 1996 i.e. seven days after the settlement of the claim. Shakeel Ahmed Bhat deputed by the company to investigate the claim had, on his final investigation of the matter reached at the conclusion that petitioners claim was not genuine. To be sure about the report of this investigator, the company had deputed yet another investigator Mr. R.N. Tickoo whose investigation too had confirmed that the petitioners claim was not genuine. According to the company, the petitioner had sworn an affidavit and handed it over to the investigator that he did not possess any purchase bills for the carpets, stated to have been purchased during the year 1996-97. 7. Referring to the directions of this Court in Contempt Petition No. 390/98, the Company says that the, petitioner had been informed in writing that his claim had been rejected. 8. Mr. Z.A. Qureshi, learned Advocate for the petitioner, submitted, during the course of hearing of this petition, that he would not press petitioners claim for recovery of Rs.6,70,252/- because that may, according to the counsel, require leading of evidence by the parties to determine the value of loss caused to the carpets because of the fire. He, however, submitted that as the Insurance Company had not taken into consideration the result of investigation of Central Bureau of Investigation and State Police on the respondents complaint against Mr. Joshi, so the rejection of petitioners claim was unwarranted and respondents communication of October 6, 2000, impugned in the writ petition is required to be set aside, leaving the petitioner free to have resort to an appropriate remedy available to him under law to seek assessment of damage caused to the carpets. 9. Mr. Kawoosa appearing for the Insurance Company, on the other hand, while referring to State of Bihar and others v. Jain Plastics and Chemicals Limited, reported as AIR 2002 SC, 206, submitted that it was not open to a litigant to invoke the extra ordinary writ jurisdiction of the Court when he had an alternative and equally efficacious remedy of a suit before the civil Court for settlement of contractual rights and obligations of the parties. Learned counsel submitted that the petitioner cannot seek piecemeal consideration of his aim and respondents communication of October 6, 2000 cannot be seen in isolation. He, however, submitted that petitioners claim had not been rejected solely on the basis of pendency of criminal proceedings against Mr. Joshi, but there were other factors too which eloquently demonstrated about the falsity of petitioners claim. The grounds communicated to the petitioner in terns of October 6, 2000 communication, for rejection of his claim, were justified on the basis of material available with the company. 10. I have considered the submissions of learned counsel for the parties, perused their pleadings and gone through the documents which have been placed on records by the parties. 11. I will first examine the respondents objection regarding piecemeal consideration of petitioners claim in this writ petition. 12. Petitioners plea that respondents consideration of petitioners claim stood vitiated because of their non-consideration of the investigation reports of Central Bureau of Investigation and Superintendent of Police, Srinagar which had been made in the F.I.Rs lodged against companys the then Senior Divisional Manager, Mr. Joshi, arises out of the rejection of petitioners insurance claim by the respondents. 13. Cause of action to raise the plea that the rejection was bad because of one or the other reasons would accrue to the petitioner only if he had to maintain a claim for the recovery of the cost of damage allegedly caused to his carpets. 14. Going by the principle under-lying Order 2 Rule 2 of the Code of Civil Procedure, a litigant is required to include whole of his claim in framing his petition/suit, which he is entitled to make in respect of a cause of action, and if he omits to do so then he is visited with the consequences indicated in the rule. In other words, the principle enshrines that all reliefs arising out of a cause of action are required, to be set out in one and the same lis. The salutary principle under-lying Order 2 Rule 2 of the Code of Civil Procedure is that a respondent or defendant should not be vexed time and again in same cause by splitting the claim and the reliefs for being indicted in successive litigations. 15. The salutary principle under-lying Order 2 Rule 2 of the Code of Civil Procedure is that a respondent or defendant should not be vexed time and again in same cause by splitting the claim and the reliefs for being indicted in successive litigations. 15. The principle under-lying Order 2 Rule 2 of the Code of Civil Procedure based on public policy is intended to avoid multiplicity of litigation and can thus be applied to proceedings under Section 103 of the Constitution of Jammu and Kashmir and Article 226 of the Constitution of India. In this view of the matter, I am of the view that petitioners real cause of action to maintain a lis is the recovery of an amount of Rs. 6,70,252/-, and his challenge to the grounds conveyed vide Communication of October 6, 2000, may be one of the issues which may fall for consideration of a Court trying his claim for recovery of an amount of Rs. 6,70,252/-. Petitioner cannot, therefore, segregate his challenge to various issues that may arise while adjudicating his claim for an amount of Rs. 6,70,252/- on account of loss caused to his carpets. Piecemeal consideration of his pleas in the present writ petition leaving him free to agitate his main claim elsewhere may not thus be permissible. 16. Although petitioners writ petition, going by the strict application of law may not be maintainable, yet in order to examine whether some directions, in exercise of this Courts extra ordinary writ jurisdiction may be warranted against the Insurance Company in view of the facts and circumstances of the case, I had examined the petitioners plea that the grounds conveyed to him for rejection of his claim stood vitiated by the conclusion of investigation by Central Bureau of Investigation and State Police in cases registered against Mr. L.K. Joshi, the then Senior Divisional Manager of the Company. 17. The examination of the case reveals that petitioners claim had been rejected by Oriental Insurance Company Limited on various factors, which may be summarized thus: (1) "Javed Hussain Surveyor had been deputed on June 7, 1996 i.e. one day prior to the date of intimation of loss by the petitioner to the company. 17. The examination of the case reveals that petitioners claim had been rejected by Oriental Insurance Company Limited on various factors, which may be summarized thus: (1) "Javed Hussain Surveyor had been deputed on June 7, 1996 i.e. one day prior to the date of intimation of loss by the petitioner to the company. (2) L.K. Joshi, Senior Divisional Manager, Oriental Insurance Company had approved the petitioners claim on June 4, 1996 whereas the final investigation report had been prepared on June 11, 1996 i.e. 7 days after the approval of petitioners claim by Mr. Joshi. (3) Shakeel Ahmed Bhat, Surveyor and loss assessor, had conducted a detailed investigation into the petitioners claim and found that the claim was not genuine and the petitioner was not entitled to any amount indemnification. (4) The petitioner had himself sworn an affidavit and given it to the investigator of the company that he did not possess any purchased bills for the carpets purchased during the year 1996-97. (5) Mr. L.K. Joshi, Senior Divisional Manager had not been complying with the rules and procedure laid down for just settlement of claims for extraneous considerations and he had been found to have issued many approval letters to the claimants after his retirement by pre-dating approval letters. (6) A case under Section 120-B read with Section 420/380 RPC and under Section 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act had been registered against the Senior Divisional Manager by the Central Bureau of Investigation." 18. Petitioners counsels submission that non-consideration of Superintendent of Police, City South Zone, Srinagars final police report regarding investigation of F.I.R No. 271/99 under Sections 420, 468, 471, 120-B R.P.C and order passed by Special Judge, Anticorruption on 7.8.1998 agreeing with the final report submitted by Central Bureau of Investigation that the allegations in R.C.10 (a) 96 JMU had not been established, by the respondents, vitiates their communication of October 6, 2000, is misconceived because in terms of this Courts order in Contempt Petition No. 390/98 on 01.09.2000, all that the respondents were required to do was to communicate the petitioner about the outcome of the consideration of his claim by the respondents which according to them had already been considered at the time of issuance of order dated 01.09.2000. In this view of the matter, the respondents were not required to reconsider the claim of the petitioner and as such were not required to take into consideration the investigation report of Superintendent of Police, City South Zone, Srinagar which had been issued about three months after the passing of order by this Court in Contempt Petition No. 390/98. 19. Order passed by learned Special Judge, Anticorruption, Srinagar on the final report of the Central Bureau of Investigation too was not required to be taken into consideration by the respondents because the respondent-company, as the order indicates had not been heard in the matter before the closure of the investigation and was not infact the complainant in the case. That apart, failure of a police case against delinquent officer of the company would not debar the company from taking its decision on a claim, if material on records would demonstrate about the involvement of the officer in projecting and settling a false claim. 20. Respondents had not rejected petitioners claim solely on the ground of the pendency of investigation of a criminal case against its the then Senior Divisional Manager, but on the order hand had taken various other factors into consideration which according to the company were sufficient to reject the petitioners claim as not genuine. 21. Whether or not the respondents were justified in rejecting petitioners claim for recovery of an amount of Rs. 6,70,252/-, on the factors on which the claim had been rejected, can be examined only if both the parties had been provided opportunity to prove their view point by leading evidence in support thereof. 22. Respondents have rejected petitioners insurance claim as not genuine, inter alia, on the basis of the reports of the two investigators it had deputed to investigate the matter. 23. There is nothing on records, on the basis whereof, it may be conclusively held that the investigation reports of the two investigators were not based on facts. Decision taken, by the respondents that the petitioner had projected a false claim can be faulted only if convincing evidence is brought on records to lead to the conclusion that petitioners claim was genuine and the investigators had erred in holding the petitioners claim not to be genuine. 24. Decision taken, by the respondents that the petitioner had projected a false claim can be faulted only if convincing evidence is brought on records to lead to the conclusion that petitioners claim was genuine and the investigators had erred in holding the petitioners claim not to be genuine. 24. In order to succeed in his claim, the petitioner is required to approach a competent Court of civil jurisdiction to seek adjudication of his claim which has been repudiated by the respondents. Extra ordinary writ jurisdiction of the Court cannot thus be exercised in these matters involving adjudication of disputed questions of fact. 25. Petitioner having abandoned his claim for recovery of the amount of damage caused to his carpets in this writ petition cannot thus be permitted to maintain this writ petition insofar as it questions the grounds of rejection of his claim communicated vide communication of October 6, 2000. 26. There is thus no force in this writ petition, which is, accordingly, dismissed, leaving the petitioner free to agitate his claim for recovery of the cost of damage allegedly caused to his carpets, in fire, in a competent Court of jurisdiction.