Allowed

K.E.Sunitha v. the Insurance Ombudsman

Kerala HC18 Jan 2021WP(C)/17195/2020

Case brief

AI extract

What is this about?

The High Court allowed a petition challenging an Insurance Ombudsman's dismissal of an insurance claim against Cholamandalam Insurance. The Court held that despite the insurer's reliance on the surveyor's report over the petitioner's claim, the petitioner should be allowed to produce additional evidence to establish flood levels. Consequently, the Ombudsman's award was set aside, and they were dir

What did the court decide?

The Order of the Insurance Ombudsman (Ext.P5) was set aside to enable the petitioner to produce additional evidence/documents to establish her claim for higher insurance amount. The Ombudsman was dire

K.E.Sunitha Vs the Insurance Ombudsman — Consumer Protection | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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MONDAY, THE 18TH DAY OF JANUARY 2021/28TH POUSHA, 1942

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WP(C).No.17195 OF 2020(Y)

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PETITIONERS:

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K.E.SUNITHA, W/O. DR. SHUKOOR, AGED 45 YEARS, KOTTAKKAL ARYAVAIDYASALA AGENCY, KARUMALLOOR, ALUVA.

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BY ADVS. SRI.K.MOHANAKANNAN SRI.H.PRAVEEN (KOTTARAKARA)

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RESPONDENTS:

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1 THE INSURANCE OMBUDSMAN, REPRESENTED BY ITS SECRETARY, OFFICE OF THE INSURANCE OMBUDSMAN, BODHI BUILDING, 55 2869, MAHATMA GANDHI RD, RAVIPURAM, PERUMANOOR, KOCHI 682 016.

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2 THE CUSTOMER SERVICE MANAGER, CHOLAMANDALAM M.S. INSURANCE COMPANY LIMITED, HARINIVAS TOWERS 1ST FLOOR, 163, THAMPUCHETTY STREET, PARIS CORNER, CHENNAI 600 001.

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3 THE MANAGER (LEGAL),CHOLAMANDALAM M.S. GENERAL INSURANCE COMPANY LIMITED, 2ND FLOOR, DARE HOUSE, NSC BOSE ROAD, CHENNAI 600 001.

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4 VILLAGE OFFICER, KARUMALLOOR, ALUVA 683 511.

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R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R4 BY GOVERNMENT PLEADER SMT RASHMI K.M.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)No.17195/2020

JUDGMENT

Dated this the 18^th day of January, 2021

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The petitioner, an Ayurveda Agency in Karumalloor, Aluva suffered considerable loss during the Kerala Flood, 2018. The petitioner made an insurance claim of 20.23 lakhs. However, the insurer after holding a survey of the building, sanctioned only and amount of 2,70,309/- to the petitioner towards insurance.

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Aggrieved by the quantum, the petitioner approached the 1^st respondent Insurance Ombudsman. The Insurance Ombudsman passed Ext.P5 order holding that the insurance surveyor has assessed gross total loss for 3,19,930/-. Based on the Stock Register and Supportive Invoices and after applying under-insurance and policy excess, an amount of 2,70,355/- was settled by the

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WP(C)No.17195/2020

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respondent-insurer. Therefore the petitioner's application was dismissed by the Insurance Ombudsman.

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I have heard the learned counsel for the

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petitioner, the learned Standing Counsel appearing for respondents 1 to 3 and the learned Government Pleader appearing for the 4^th respondent.

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A perusal of Ext.P5 Award would show that the contention of the petitioner that building in question was flooded with water level upto 1.92 m was rejected by the learned Ombudsman. The Ombudsman stated that the petitioner failed to produce photographs in respect of the damage caused. The Ombudsman observed that photographs and report submitted by the insurance surveyor would show that the flood water level height was only upto a level of 2.5 feet. It is solely based on the report of the surveyor that the Ombudsman came to the conclusions of possible loss suffered by the petitioner.

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Karumalloor where the petitioner's establishment is situated in Aluva area which has seen worst of Kerala Flood, 2018. The Village Officer has certified that the water level in the area where the building of the petitioner was situated, was hit upto 1.92 meters high. If the quantum of flood certified by the Village Officer is correct, there is no doubt that the petitioner might have suffered much more damage and loss.

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In such circumstances, merely for the reason that the petitioner has not produced photographs of the damage caused, the claim of the petitioner cannot be disbelieved. The petitioner can produce other evidence in the nature of photographs of nearby buildings to establish the flood level. In the facts of the case, this Court is of the firm opinion that the petitioner should be permitted to produce additional evidence/documents before the learned Ombudsman to establish her claim.

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In the circumstances, for the purpose of enabling the petitioner to produce additional evidence to establish her claim of insurance for higher amount, Ext.P5 order of the Ombudsman is set aside. The Ombudsman is directed to reconsider the matter and decide the issue afresh, after granting opportunity to either side, to produce additional evidence/documents if any.

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The writ petition is disposed of as above.

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Sd/-

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N. NAGARESH JUDGE

ncd

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESIDENT DATED 29.3.2019.

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EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 7.8.2019. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION ON 17.2.2020 SUBMITTED BEFORE THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 24.6.2019. EXHIBIT P5 TRUE COPY OF THE AWARD DATED 5.8.2020 RECEIVED BY THE PETITIONER ALONG WITH COVERING LETTER DATED 6.8.2020.

K.E.Sunitha v. the Insurance Ombudsman

Case brief

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K.E.Sunitha v. the Insurance Ombudsman

Case brief

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