IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 4057 of 2008(G) ------------------------- PETITIONER(S): --------------- VALSALA GOPINATH, W/O. GOPINATHAN NAIR M., PROPRIETRIX, LAKSHMI GAS AGENCIES, PALAKKADAVU ROAD, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN RESPONDENT(S): --------------- 1. THE INSURANCE OMBUDSMAN, PULINAT BUILDING, 2ND FLOOR, OPP. COCHIN SHIPYARD, M.G.ROAD, ERNAKULAM, KOCHI. 2. THE ORIENTAL INSURANCE COMPANY, BRANCH OFFICE, 'PADMASREE', NEAR KSRTC BUS STAND, NEYYATTINKARA, THIRUVANANTHAPURAM. ADV. DR.ELIZABETH VARKEY FOR R1 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ---------------- W.P(C)NO.4057 OF 2008 -------------------------- Dated this the 24th day of June 2009 ------------------------------------- JUDGMENT The petitioner is the proprietrix of a gas agency by name Lakshmi Gas Agency. The petitioner's husband was the original proprietor of the agency. He obtained an insurance policy for a mini lorry bearing registration No.KL-1-G-4278 from the second respondent. Subsequently the husband died and the petitioner became the sole owner of the agency. In respect of that vehicle she raised an insurance claim before the second respondent which was repudiated . The petitioner filed a complaint before the first respondent Insurance Ombudsman. The Insurance Ombudsman rejected the same by Ext.P6 order the relevant portion of which reads as follows :- W.P.(C)No.4057/2008 2 2. “ We have been advised by the Governing Body of Insurance Council at Mumbai not to proceed with cases of 'Sole Proprietary Concerns'. Therefore, your complaint filed before this Forum is being closed. Papers furnished by you in connection with your case, including your original complaint, are returned to you. You are advised to take up the matter before an appropriate Legal Forum ”. 2) The contention of the petitioner is that neither the governing body of Insurance Council nor the Insurance Ombudsman has any jurisdiction to hold that the sole proprietary concern cannot maintain a complaint before the Insurance Ombudsman. According to the petitioner, there is no difference between an individual and a sole proprietary concern. As such a sole proprietary concern is entitled to all rights of an individual W.P.(C)No.4057/2008 3 in respect of the policy taken by the proprietor of the concern. 3) The first respondent would oppose the writ petition. According to the respondent only claims on personal lines can be entertained by the Insurance Ombudsman. The first respondent also relies on the decision of this court in National Insurance Company Ltd. v Indus Motor Company(P)Ltd. 2005(3) KLT 391. 4) I have heard counsel for the petitioner, the first respondent and the second respondent. I have perused the decision relied upon by the first respondent. I am of the opinion that the said decision has no application to the facts of this case. In that decision, the Division bench held that complaint filed by a corporate body before the W.P.(C)No.4057/2008 4 Insurance Ombudsman is not maintainable. A sole proprietary concern is not a corporate body at all. When an individual chooses to name his business, he becomes the proprietor of that business and the same is popularly known as sole proprietary concern. That cannot make that sole proprietary concern a corporate body. The decision covered to by the first respondent only proscribes complaints by corporate bodies. The petitioner though described as a proprietrix of a gas agency she runs the agency as an individual. The policy in respect of which she claims relief is like any other policy taken by an individual. As such, there is no logic in holding that sole proprietary concerns can not maintain a complaint before the Insurance Ombudsman. W.P.(C)No.4057/2008 5 5) Ext.P6 is bad for another reason also. Ext.P6 decision has not been taken by the Insurance Ombudsman. He has only followed an advice by the governing body of Insurance Council, which is not what the Insurance Ombudsman is expected to do under the provisions of law by which he has been appointed. He is expected to take independent decisions without being influenced by any advice by others. For both reasons Ext.P6 is clearly unsustainable. Accordingly, Ext.P6 is quashed. The first respondent is directed to entertain the complaint filed by the petitioner and to take its logical conclusion in accordance with law as expeditiously as possible. However I hasten to add that I have not considered the claim of the petitioner on merits and it is entirely for the Ombudsman to decide the complaint on merits in accordance with law, after taking into account the W.P.(C)No.4057/2008 6 contentions to be raised by second respondent. The writ petition is disposed of as above. Sd/- S.SIRI JAGAN, JUDGE //TRUE COPY// P.A TO JUDGE VDV