Judgment:
ORDER
V.V.S. Rao, J.
1. The petitioner is an officer in Rayalaseema Gram Panchayat. In 1996, he bought Janata Personal Accident Policy (policy) of first respondent. He met with an accident on 24.2.1999. He allegedly suffered injuries and resultant 50% disability in the right leg. He, therefore, claimed an amount of Rs. 2,50,000/- and first respondent rejected the same by an order 30.3.2000. He, therefore, sought redressal before the Insurance Ombudsman, Hyderabad, second respondent herein, as per redresal of Public Grievance Rules, 1998, and the same was dismissed by an order dated 22.1.2001. Yet again the petitioner approached the District Forum, Cuddapah, by way of complaint under Section 12 of the Consumer Protection Act, 1986. By an order dated 11.2.2004, the learned District Forum dismissed the complaint. While doing so, in Para 26 of said order, the District Forum observed that the petitioner has remedy by way of a suit or writ. Therefore, he filed instant writ petition. Second respondent filed a counter-affidavit and none appears for first respondent. Therefore, this Court requested Sri Kota Subba Rao, learned standing Counsel for various insurance companies, to assist the Court as amicus curiae. He appeared and made submissions, for which this Court is grateful to him.
2. Learned Counsel for the petitioner submits that rejection of the claim on the ground that 50% disablement cannot be considered as total loss is erroneous in view of the binding clauses in policy. He placed reliance on Clause (c) of policy, which obligates the insurer to pay 50% of the sum insured even if the disablement is not associated with loss or physical separation of the limbs. He also relied on observations made by the District Forum that a writ would lie in such a matter. Per contra, the learned amicus curiae submits that for claiming policy amount a writ would not lie. He also submits that it is Clause (d) of policy which applies in this case and as the petitioner was not absolutely disabled from being occupied with or giving attention to any employment or occupation, he is not entitled to any claim even though he suffered 50% disablement.
3. If the rejection of insurance claim by the insurer can be justiciable issue in a writ petition, the other question would fall for consideration. However, having regard to the binding precedents referred to hereinafter this Court is of the considered opinion that a writ petition for claiming insurance amount, as it involves disputed questions of fact, would not lie.
4. A reference may be made to decisions in N. Venkateswarlu v. Regional Manager, United India Insurance Co. Ltd. : 2000(5)ALD105 , L.I.C. of India v. Ajit Gangadhar Shanbhag : AIR1997Kant157 and Durgawati Devi v. L.I.C. of India : AIR1997All257 .
5. In N. Venkateswarlu's case (supra), this Court was dealing with a claim of the defendant of deceased who had policy, the plaint was not processed. The writ petition was filed for a mandamus. Inter alia, it was opposed that writ petition would not lie. Reliance was placed on L.I.C. of India v. Kiran Sinha AIR 1985 SC 1265, wherein it was held by the Hon'ble Supreme Court that a writ petition for payment of money claimed under insurance policy would not lie and remedy of claimant would be a suit. Following the same, giving liberty to the petitioner to file a suit, this Court observed as under:
There is no dispute with regard to the jurisdiction of the Civil Court to settle the claim. A reading of the above decision of the Supreme Court in L.I.C. of India's case (supra), clearly indicates that the Civil Court's jurisdiction is not excluded, even if there is a clause prohibiting a particular forum and Section 46 of the Insurance Act, in clear and categorical terms with non-obstante clause confers a right to issue any relief in respect of the policy in the Court of competent jurisdiction in India. In the facts and circumstances of the case, to resolve the controversy in question and following the dictum laid down by the Apex Court in L.I.C. of India's case (supra), I am of the view that the writ petition is not the adequate and proper forum and the only remedy available to the petitioner is to approach the Civil Court, if he is so advised, for settling the claim.
In Ajit Gangadhar's case (supra), Division Bench of Karnataka High Court held as under:
At the very outset, it has to be stated that the matter involves serious disputed questions of fact, which needs thorough investigation and cannot be decided in the manner in which it is sought to be done by the learned Single Judge in the writ petition filed before him. Further, we are at loss to understand as to which statutory duty is not performed by the appellant insurance company in repudiating the claim of the respondent On the other hand, the appellants sought to repudiate or deny the claim of the respondent by taking recourse to Section 45 of the Act and on the basis of the principles involved in such type of contracts. In view of the facts and circumstances narrated hereinabove, apart from the fact that the matter in issue has arisen out of the contract between the insured and the insurer, there are disputed questions of facts which could be decided only in a regularly drawn trial between the parties. In Food Corporation of India v. Jagannath Dutta : [1993]2SCR497 , it has been observed that question of contractual obligations cannot be gone into in writ jurisdiction.
A similar view was expressed by Division Bench of Allahabad High Court in Durgawati Devi's case (supra), wherein it was held as under:
The petitioner, the widow of the insured, desires the Court to issue a certiorari to quash the communication dated 22.1.1994 (Annexure 2 to the writ petition) by which the insurance claim has been denied. She seeks mandamus that payment be made on the policies. The issue of the insurance policy is truly a matter of enquiry. Thus, the Court cannot issue a certiorari nor a mandamus for quashing the decision of L.I.C. not to make payments on the policies nor can give a rule of mandamus to deliver payments.
6. From the above it is clear that to enforce the insurance contract i.e., policy, a writ petition would not lie. In view of this, this Court is not inclined to express any opinion as to whether the petitioner comes within Clause (c) or Clause (d) of policy. If so advised, the petitioner may institute a suit subject to law of limitation and claim insurance amount.
7. The writ petition is misconceived and the same is accordingly dismissed. No costs.