IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 OP.No. 29583 of 2000(V) ------------------------------------ PETITIONER: -------------------- JOHN V.D., S/O.DEVASIA MICHAEL, KARUKAYIL HOUSE, VATTAPPALLY, CHANGANACHERRY. BY ADV. SRI.JOHN VARGHESE RESPONDENT: ----------------------- THE NEW INDIA ASSURANCE COMPANY LTD., NEW INDIA ASSURANCE BUILDING, 87, MAHATMA GANDHI ROAD, FORT, MUMBAI, REPRESENTED BY THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., SALIM BUILDINGS, NEAR HEAD POST OFFICE, M.C.ROAD, CHANGANACHERRY – 686 101. BY ADV. SRI.RAJAN P.KALIYATH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss O.P.NO.29583/2000 V ORDER ON C.M.P.NO.50094/2000 IN OP.NO.29583/2000V DISMISSED 22/05/2008 SD/- K.M.JOSEPH, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE INSURANCE POLICY DTD. 4/06/96 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P2: COPY OF THE CHARGE SHEET IN CRIME NO.564/96 OF CHANGANACHERRY POLICE STATION. EXT.P3: COPY OF THE PETITION DTD. 8/08/2000 FILED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P4: COPY OF THE COMMUNICATION DTD. 8/8/2000 ISSUED BY THE RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBIT: EXT.R1: COPY OF POLICY NO.3176010261048 FROM 5/6/96 TO 4/6/97. /TRUE COPY/ P.S.TO JUDGE Kss K. M. JOSEPH, J. -------------------------------------- O.P. NO. 29583 OF 2000 V -------------------------------------- Dated this the 22nd May, 2008. JUDGMENT Petitioner is the owner of an Autorickshaw. It is his case that it was found missing along with the driver on 24.8.1996. The said Autorickshaw was covered by Ext.P1 Insurance Policy. The period of the insurance was from 5.6.1996 to 4.6.1997. According to petitioner, the driver of the Autorickshaw was murdered and the Autorickshaw itself came to be dismantled. It is stated that certain parts of the Autorickshaw were recovered by the police and produced before the Judicial First Class Magistrate Court, Changanacherry and the same was released to the police and they were kept in the custody of police. Ext.P2 is the draft charge. The offences alleged are under Sections 302, 392 read with section 34 IPC. It is stated that after the vehicle was lost, the matter was intimated to the respondent and a claim petition was filed. It is further stated that thereafter on 8.8.2000 the petitioner again approached the respondent stating that he OP NO.29583/00 V 2 may be given compensation. Ext.P3 is the petition. However, Ext.P4 dated 8.8.2000 is issued by the respondent, Insurance Company. Therein, it is stated as follows: "We acknowledge receipt of your letter dated 8.8.2000 and noted the contents as therein. In this connection, we would inform you that the matter is now pending at the Court for their disposal. As regard to the compensation to your vehicle, this also be decided by the Court. Since the matter is pending in the Court, we are unable to do anything further in the matter till the case is disposed ." 2. Petitioner challenges Ext.P4 and seeks a direction to settle the claim of petitioner's autorickshaw covered by Ext.P1 involved in Crime No.564/96 of Changanacherry Police Station. 3. A Counter Affidavit has been filed by the respondent, inter alia, stating that what is the best involved in the Original Petition is a mere civil dispute and the Writ Petition is not maintainable and there is an alternate remedy. The respondent produced Ext.R1 as the Policy. Regarding the averments OP NO.29583/00 V 3 contained in paragraphs 3 and 4, it is stated that the petitioner has not reported the details of the loss, nor has he lodged any claim with the respondent prior to 8.8.2000. It is stated that prior to 8.8.2000 the alleged loss of vehicle occurred on 24.8.1996 and the cause of action itself got extinguished by efflux of time. What is stated in Ext.P4 is the pendency of the Criminal Case. It is also stated that the Criminal Court has to award the compensation. 4. It is to be noted that the reasons stated in Ext.P4 may not hold good. At any rate, the case is of the year 1996. Therefore, I would think that the respondent should be directed to take a decision in the matter. Of course, I note the contention of the respondent that the claim is barred by limitation. In view of the fact that the reason stated in Ext.P4 is that the matter is pending in Court and the Company is unable to do anything in the matter till the case is disposed of, I would think that having regard to the passage of time, it may not be open to the respondent to pursue with the said reasoning, as nearly ten years OP NO.29583/00 V 4 have gone-by from the time of the incident in 1996. In such circumstances, the Original Petition is disposed of directing the respondent to take a decision in the matter, in regard to the autorickshaw of the petitioner, if any claim of the petitioner has been submitted. K. M. JOSEPH, JUDGE kbk. OP NO.29583/00 V 5 K.M. JOSEPH, J. O.P. NO.29583 OF 2000 V JUDGMENT 22nd May, 2008.