# Smt. Shanti Devi v. Office of Insurance Ombudsman and others

- **Citation:** (2008) 1 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-20
- **Case number:** Civil Misc. Writ Petition No. 69235 of 2005
- **Bench:** Amitava Lala, Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-devi-v-office-of-insurance-ombudsman-and-others-41256
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.
226-writ
jurisdiction disputed question of factscan not be ground for rejection-unless
proved beyond doubt that can not be
resolved by writ court-claim of insurancy
policy rejected on pretext the policy
holder suppressed the disease-death due
to
heart
attack-working
even
after
deposit of premium not denied-heldInsurance
Act
1938
a
beneficial
legislation-denied of claim-not properdirection issued to pay whole amount
with 12% simple interest within one
month.

Held: Para 3

According to us, the Insurance Act, 1938
with
the
latest
amendment
is
a
beneficial piece of legislation. Therefore,
if a benefit which the petitioner is legally
entitled has been refused, Court can not
enter upon the arena to render equitable
justice. The Court of equity can not shut
out the eyes taking plea that there is
154 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
mere or bare disputed question of fact.
The disputed question of fact ipso facto
can not be ground for rejection unless or
until it is proved beyond the doubt
before Court of equity under Article 226
of the Constitution of India that the
dispute is such that can not be resolved
by the writ jurisdiction at all. If we place
factum of case within the guidelines of
the Supreme Court in Asha Goel (Supra),
we shall have no doubt in our mind that
the writ jurisdiction can be invoked in
the circumstances.
Case law discussed:
2001 (2) SCC-160, 2007 (2) ESC-1026, Alld.
(D.B.), AIR 1962 SC-814

## Text

1 All] Smt. Shanti Devi V. Office of Insurance Ombudsman and others
153
consumer disputes. The statement of
objects and reasons clearly mentions that
the Act is intended to provide speedy and
simple redressal of consumer disputes by
providing a self-contained quasi-judicial
machinery. The Act has created a
hierarchy of bodies under the Act with
power to hear appeals at every stage. No
one can say that the District, High Court
or Supreme Court Judges who preside
over the Consumer forums are not
competent to decide the question of
jurisdiction. They have long judicial
experience
to
face
such
questions,
however, complicated. They are not like
executive authorities who have no judicial
experience. It is well settled that such
bodies are entitled to decide whether they
have jurisdiction to decide a dispute and
whether the complainant before them is a
consumer within the meaning of Section
2(d). The intention of legislature would be
defeated if at the initial stage itself,
objections regarding the jurisdiction are
permitted to be raised before the High
Court because such proceedings are
bound to cause delay an the very purpose
of creating the new forum would be
defeated.

11. The petitioners can not get any
benefit of order dated 18.9.2007 shown to
us by Hon'ble Single Judge in Writ
Petition No. 45088 of 2007 against
District
Consumer
Forum's
order
regarding jurisdiction. Only admission of
said writ petition for hearing gives no
benefit to any party.

In view of our above discussion, we
are of the considered opinion that this writ
petition is devoid of merits and is liable to
be dismissed.

12. Accordingly, the writ petition is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2007

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 69235 of 2005

Smt. Shanti Devi

...Petitioner
Versus
Office of Insurance Ombudsman and
others

 ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Srivastava
Sri Anoop Baranwal

Counsel for the Respondents:
Sri Prakash Padia

Constitution
of
India,
Art.
226-writ
jurisdiction disputed question of factscan not be ground for rejection-unless
proved beyond doubt that can not be
resolved by writ court-claim of insurancy
policy rejected on pretext the policy
holder suppressed the disease-death due
to
heart
attack-working
even
after
deposit of premium not denied-heldInsurance
Act
1938
a
beneficial
legislation-denied of claim-not properdirection issued to pay whole amount
with 12% simple interest within one
month.

Held: Para 3

According to us, the Insurance Act, 1938
with
the
latest
amendment
is
a
beneficial piece of legislation. Therefore,
if a benefit which the petitioner is legally
entitled has been refused, Court can not
enter upon the arena to render equitable
justice. The Court of equity can not shut
out the eyes taking plea that there is
154 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
mere or bare disputed question of fact.
The disputed question of fact ipso facto
can not be ground for rejection unless or
until it is proved beyond the doubt
before Court of equity under Article 226
of the Constitution of India that the
dispute is such that can not be resolved
by the writ jurisdiction at all. If we place
factum of case within the guidelines of
the Supreme Court in Asha Goel (Supra),
we shall have no doubt in our mind that
the writ jurisdiction can be invoked in
the circumstances.
Case law discussed:
2001 (2) SCC-160, 2007 (2) ESC-1026, Alld.
(D.B.), AIR 1962 SC-814

(Delivered by Hon'ble Amitava Lala, J.)

1. The fact remains that the
petitioner's deceased husband made a
policy during his life time under the
money back scheme of Life Insurance
Corporation of India (hereinafter called as
'L.I.C.') in its local office. Number of the
policy is 311465500 dated 31st January,
2002. The policy was lapsed due to nonpayment of premium on 28th June, 2002
and 28th December, 2002. The policy was
revived on full payment of premium on
15th February, 2003. However, the insured
expired on the following day i.e. 16th
February, 2003 due to heart attack. On
27th
May,
2004
Senior
Divisional
Manager of the L.I.C., Allahabad had
rejected the claim of his wife on account
of her husband's death. On 18th January,
2005 Zonal Manager of the L.I.C. from its
office at Kanpur had also rejected such
claim. On 2nd February, 2005 wife of the
insured was formally informed by the
Divisional Office, Allahabad about the
order of the Zonal Manager, Kanpur, from
which an appeal was preferred before the
Insurance Ombudsman. Ultimately the
Insurance Ombudsman by his award
dated
30th
June,
2005
upheld
the
repudiation action taken by the insurer, in
repudiating the claim under the Policy
No.
311465500.
Challenging
the
order/award dated 30th June, 2005 passed
by the Ombudsman this writ petition has
been
filed
by
the
wife
of
the
deceased/insured.

2. Before entering into the dispute,
we have to consider the scope and ambit
of the writ jurisdiction as it has been held
in 2001 (2) SCC 160 (life Insurance
Corporation of India and others Vs.
Asha Goel (Smt.)and another). Supreme
Court held that the determination of the
question under the writ jurisdiction will
depend on consideration of several
factors, like, whether a writ petitioner is
merely attempting to enforce his/her
contractual rights or the case raises
important
questions
of
law
and
constitutional issues;-the nature of the
dispute raised; the nature of inquiry
necessary for determination of the dispute
etc. The matter is to be considered in the
facts and circumstances of each case.
While the jurisdiction of the High Court
to entertain a writ petition under Article
226 of the Constitution can not be denied
altogether, Court must bear in mind the
self-imposed
restriction
consistently
followed by High Courts all these years
after the constitutional power came into
existence in not entertaining writ petitions
filed
for
enforcement
of
purely
contractual rights and obligations which
involve disputed questions of facts.

3. According to us, the Insurance
Act, 1938 with the latest amendment is a
beneficial piece of legislation. Therefore,
if a benefit which the petitioner is legally
entitled has been refused, Court can not
enter upon the arena to render equitable
justice. The Court of equity can not shut
1 All] Smt. Shanti Devi V. Office of Insurance Ombudsman and others
155
out the eyes taking plea that there is mere
or bare disputed question of fact. The
disputed question of fact ipso facto can
not be ground for rejection unless or until
it is proved beyond the doubt before
Court of equity under Article 226 of the
Constitution of India that the dispute is
such that can not be resolved by the writ
jurisdiction at all. If we place factum of
case within the guidelines of the Supreme
Court in Asha Goel (Supra), we shall
have no doubt in our mind that the writ
jurisdiction can be invoked in the
circumstances.

4. In this case it has been contended
by the learned Counsel appearing for the
petitioner that before the date of death the
deceased attended his office to work. He
was not under treatment for any disease to
be treated by any Doctor. However, as per
the certificate given by the particular
hospital, the deceased was suffering from
jaundice.
In
the
common
parlance
different kind of jaundice and its several
stages of suffering are available to which
an expert can give any opinion. But it
gradually
develops
and
gradually
diminishes. A person having jaundice
normally can not attend his office to do
the work just before one day of his death.
Death occurred by heart attack. No
specific denial is available whether the
deceased was medically treated any where
before his death. Nobody was examined
on behalf of hospital. Only on the
certificate of the Hospital "according to
attendant he was suffering from jaundice",
the concerned Ombudsman upheld the
repudiation of insurance agreement. The
petitioner has shown two Division Bench
judgments of the High Court reported in
2007(1) ADJ 11 (DB) (Umesh Narain
Sharma Vs. New India Assurance Co.
Ltd. and others) and 2007 (2) ESC 1026
(All) (DB) (Smt. Ram Kali Vs. Life
Insurance Corporation. Allahabad) to
establish her case. In the first one, factum
of heart attack and in the other factum of
suffering of cancer is applicable. Both
claims were allowed. We have gone
through the facts of both the cases and
found that factually this case in the hand
is standing on a better footing than those
cases.

5. Mr. Prakash Padia, learned
Counsel appearing for L.I.C., cited before
us a iudgment reported in AIR 1962 SC
814
(Mithoolal
Nayak
Vs.
Life
Insurance Corporation of India) to
establish that second part of, Section 45 of
the Insurance Act. 1938 applies in the
following
circumstances--
(a)
the
statement must be on a material matter or
must suppress facts which it was material
to disclose; (b) the suppression must be
fraudulently made by the policy-holder;
and (c) the policyholder must have known
at the time of making the statement that it
was false or that it suppressed facts which
it was material to disclose.

6. According to us, second part of
Section 45 of the Act can not be taken
into account in isolation but in the context
of first part which deals with fixation of a
period of two years from the date on
which the policy was effected. There is a
reason behind insertion of such Section
under the Act. If somebody makes a
policy by misstatement that can be taken
care of before making an agreement or
within a reasonable period of two years
after the execution of the agreement. Such
period can not be extended as per the
sweet will of the insurance company. In
the case of Mithoolal Nayak (Supra) the
insurance policy was executed on 18th
October, 1945. The policy holder expired
156 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
on 12th November, 1946. The claim was
repudiated for some reason or other on
10th
October,
1947.
Therefore,
misstatement or falsity, if any, was taken
care of by the authority within such
period. In the instant case the agreement
in support of the policy was executed on
31st January, 2002. The policy holder
expired on 16th February, 2003. The
decision on account of repudiation was
made on 27th May, 2004 taking a plea that
the insurance policy was revalidated only
on 15th February, 2003. We are of the
view that as soon as a policy is
revalidated it relates back to the date of
execution i.e. 31st January, 2002 herein.
Thus, the period for repudiation is beyond
the period as provided in first part of
Section 45 of the Act and as such can not
be sustainable.

7. Secondly, Section 45 speaks for
statement made in the proposal for
insurance
etc.
which
has
been
specifically taken care of by the Supreme
Court in Mithoolal Nayak (Supra) and
also held as follows:
"........that
the
insured
Mahajan
Deolal had been guilty of deliberate misstatements and fraudulent suppression of
material
information
in
answers
to
questions in the proposal form and the
personal statement, which formed the
basis of the contract between the insurer
and the insured."

8. Hence, we are of the view that the
incident subsequent to the execution of
the document if not related to the
execution of the policy and two years
being the reasonable ground can not be a
valid
ground
for
the
purpose
of
repudiation. A suffering or a disease or
any death not arising out of any false or
misstatement at the time of making the
policy can not be a ground for repudiation
by the insurance company as alleged or at
all. It has to be related to the execution of
the document.

9. From the paragraph 15 of the
judgement referred above i.e. Umesh
Narain Sharma (Supra) a Division
Bench of this High Court made such
aspect of the matter explicit on the basis
of the terms and conditions of the
insurance policy as quoted hereunder:

"Clause 4.1 of the terms and
conditions of the insurance policy read as
under:
"4. Exclusions.
..................
4.1 Such diseases which have been in
existence at the time of proposing this
insurance pre-existing condition means
any injury which existed prior to the
effective date of this insurance. Preexisting conditions also means any
sickness or its symptoms which existed
prior to the insured person had knowledge
that the symptoms were relating to the
sickness. Complications arising from preexisting disease will be considered part of
that pre-existing conditions."

10. Lastly, it is to be seen how the
Ombudsman proceeded in this matter.
The Ombudsman proceeded in this matter
on the basis of the order of the earlier
officers but at the same time out of his
usual fairness quoted about an effort of
mediation as follows:
"Efforts for mediation were made
during
Personal
Hearing
but
since
insurer's representative was not prepared
to reconsider the claim, these did not
succeed. In view of failure of mediation
proceedings, I proceed to give my award
in the matter as under."
1 All] Sri Ram Pathak and others V. State of U.P. and others
157
11. According to us, fraud and
equity can not run simultaneously. If it is
a question of genuine fraud there is no
scope of showing any equitable justice
towards any insured but when at an
occasion the authority made an effort for
mediation it is to be understood that the
insurance company was also not in a
position to come to a definite finding
about any falsity. Therefore, it can be
safely presumed that the question of any
falsity does not arise otherwise the
Ombudsman could not have poised down
to a position of making effort of
mediation to render equitable justice.

12. Therefore, in totality we do not
find that any such case has been made out
on behalf of the Insurance Company to
repudiate the agreement ignoring payment
of the meagre amount of Rs.1.0 lakh
(Rupees one lakh only) to the petitioner.
Hence, we hereby quash the order of the
Ombudsman dated 30.6.2005 as well as
the orders dated 18.1.2005 and 27.5.2004
passed by the authorities of the L.I.C.,
being impugned in the present writ
petition. As a result whereof we hold and
say that the petitioner is entitled for the
said sum which will be released by the
Insurance Company in favour of the
petitioner as early as possible but not
beyond the period of one month from the
date of communication of this order
alongwith interest @ 12% per annum at a
simple rate from the date of first refusal
till the date of actual payment finding that
the same is reasonable. Accordingly, the
writ petition is allowed.

13. However, no order is passed as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2007

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 51653 of 2007

Sri Ram Pathak and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri P.K. Rai
Sri S.P. Rai

Counsel for the Respondents:
Sri Gajendra Pratap
S.C.

U.P. Intermediate Education Act 1921Section
7AA-termination-part
time
teacher-earlier petition dismissed as
infructous
upon
the
statement
of
management- impugned order revokedfurther termination on two countsFirstly under Rule 3(2) of commission
Rules 1983 No male teacher could be
appointed
in
girls
school,
Secondly
female
teacher
available
in
the
concerned subject-both reasons lost its
existence-management
can
not
be
allowed to take plea of such reason not
disclosed in termination order-heldimpugned order cannot sustain.

Held: Para 9

Thus, the submission of learned Counsel
for
the
Respondent
that
the
management even without reason can
terminate the services of Part Time
Teacher, cannot be accepted. In view of
the above, the order impugned cannot
sustain and hereby set aside.
Case law discussed:
A.I.R. 1979 SC. 429