IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 WP(C).No. 17056 of 2004(E) ------------------------------------- PETITIONER : ------------------ THE ADHYAPAKA CO-OPERATIVE BANK LTD., NO.A-300, PUTHUSSERY, PATHANAMTHITTA DISTRICT PIN 689 602, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE RESPONDENT : -------------------- THE NEW INDIA ASSURANCE COMPANY LTD., (A SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA), REPRESENTED BY IT'S BRANCH MANAGER, CHANGANACHERRY BRANCH, 1ST FLOOR, SALIM BUILDINGS, NEAR H.P.O., M.C.ROAD, CHANGANACHERRY. BY ADV. SRI.P.R.RAMACHANDRA MENON - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17056 of 2004(E) APPENDIX PETITIONER'S EXHIBITS :- EXT.P1:- TRUE COPY OF THE INSURANCE POLICY BEARING NO. 760102/48/02/01675 EXT.P2:- TRUE COPY OF THE REQUEST FOR FUND DATED 02.06.2003 SUBMITTED BY THIRUVALLA BRANCH OF THE PETITIONER BANK EXT.P3:- TRUE COPY OF THE RELEVANT PAGE OF THE PASS BOOK ISSUED TO THE PETITIONER BANK, FROM THE PATHANAMTHITTA DISTRICT CO-OP. BANK.LTD. EXT.P4:- TRUE COPY OF THE LETTER DATED 03.06.2003 ISSUED BY THE BANK TO THE RESPONDENT EXT.P5:- TRUE COPY OF THE F.I.R. DATED 03.06.2003 EXT.P6:- TRUE COPY OF THE F.I. STATEMENT DATED 03.06.2003 GIVEN BY MR.VIJAYAN TO THE POLICE EXT.P7:- TRUE COPY OF THE CLAIM STATEMENT DATED 23.07.2003 SUBMITTED BY THE PETITIONER BANK TO THE RESPONDENT EXT.P8:- TRUE COPY OF THE REQUEST DATED 24.09.2003 SUBMITTED BY THE SECRETARY OF THE PETITIONER BANK TO THE RESPONDENT EXT.P9:- TRUE COPY OF THE REPLY TO THE LAWYER NOTICE ISSUED BY THE RESPONDENT DATED 04.12.2003 EXT.P10:- TRUE COPY OF THE NEWS ITEMS REPORTED IN MALAYALA MANORAMA DAILY DATED 10.07.2003 EXT.P11:- TRUE COPY OF THE ENQUIRY REPORT DATED 25.07.2003 EXT.P12:- TRUE COPY OF THE LAWYER NOTICE DATED 26.11.2003 ISSUED TO THE RESPONDENT EXT.P13:- TRUE COPY OF THE CERTIFIED COPY OF THE MAHAZER DATED 03.06.2003 EXT.P14:- TRUE COPY OF THE CERTIFIED COPY OF THE MAHAZER DATED 08.07.2003 EXT.P15:- TRUE COPY OF THE COVERING LETTER DATED 10.02.2004 ADDRESSED TO THE RESPONDENT RESPONDENT'S EXHIBITS:- EXT.R1(a):- TRUE COPY OF THE JUDGMENT DTD 22.07.2004 PASSED BY THIS HON'BLE COURT IN OP 26291/00 EXT.R1(b):- TRUE COPY OF THE JUDGMENT DTD 22.07.2002 PASSED BY THIS HON'BLE COURT IN OP 10435/01 EXT.R1(C):- TRUE COPY OF THE REMINDER DTD 29.06.2004 SENT BY THE RESPONDENT TO THE PETITIONER, SEEKING TO FURNISH THE RELEVANT DOCUMENTS -TRUE COPY- P.A. TO JUDGE pac S.SIRI JAGAN, J ============== W.P.(C).No. 17056 OF 2004 ==================== Dated this the 7th day of July, 2008. J U D G M E N T The petitioner is a Co-Operative Bank. They have a insurance policy with the respondent against loss of money in transit as per Ext.P1 policy. On 3.6.2003, an amount of Rs. One Lakh of the bank was lost during transit due to theft. A crime was registered and the accused was arrested. The petitioner filed a claim for the insurance amount before the respondent, which was not honoured by the Insurance Company. Therefore the petitioner has filed this writ petition seeking the following relief: Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to disburse the amount of Rs. 1,00,000/- with 18% interest per annum from the date of claim till payment to the petitioner bank for the loss sustained during transit of money. 2. A counter affidavit has been filed by the respondent who would challenge the maintainability itself of this writ petition. According to them, what is sought to be W.P.(C).No. 17056 OF 2004 2 enforced is purely a contract between the petitioner and the respondent which cannot be enforced through proceedings under Article 226 of the Constitution of India. The respondent relies on Exts.R1(a) and R1(b) judgments of this Court, in support of this contention. The respondent would also contend that as far as the respondent is concerned, it is for the petitioner to prove their claim by producing appropriate documents which includes the final report filed by the police before the court trying the offence relating to the loss of the money. In so far as, the petitioner has not produced the final report, the respondent is not bound to honour the claim, is the contention raised. It is submitted in the counter affidavit that as is evidenced by Ext.R1(c), the petitioner was directed to produce documents relating to the claim which has not been produced. Therefore according to the respondent there is no merit in the allegations raised by the petitioner against the respondent. W.P.(C).No. 17056 OF 2004 3 3. I have considered the rival contentions in detail. 4. In Exts.R1(a) and R1(b) judgments, this Court has categorically held that if an insurance company is not willing to settle the claim made by an insured, this Court cannot compel the insurance company to honour the claim in proceedings under Article 226 of the constitution of India. Therefore following Exts.R1(a) and R1(b) judgments, I deny jurisdiction to the petitioner and dismiss the writ petition, without prejudice to the right of the petitioner to seek appropriate other remedies available to them under law. S.SIRI JAGAN, JUDGE bkn/-