IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 WP(C).No. 18909 of 2005(Y) -------------------------------------- PETITIONER(S): ------------------------ P.K. RE-ROLLING MILLS (P) LTD., REPRESENTED BY ITS MANAGING DIRECTOR, NALLALAM, CALICUT. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): ----------------------------- 1. THE INSURANCE OMBUDSMAN, PULINAT BUILDING, 2ND FLOOR, OPP.COCHIN SHIPYARD, M.G. ROAD, ERNAKULAM, KOCHI-682 015. 2. THE NEW INDIA ASSURANCE COMPANY LTD., REGD. & H.O. NEW INDIA ASSURANCE BUILDING 87, M.G. ROAD, FORT,MUMBAI-400 001. 3. THE REGIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, KANDAMKULATHY TOWERS, M.G. ROAD, ERNAKULAM. 4. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G. ROAD, CALICUT. 5. THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, 1ST FLOOR, POOTHERI BUILDING, FEROKE, CALICUT-673 631. ADV. SRI.P.R.RAMACHANDRA MENON FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18909/2005 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LAWYER'S NOTICE DT. 9.9.02. P2:- COPY OF THE REPLY DT. 30.1.03. P3:- COPY OF THE LETTER DT. 21.5.02 ISSUED BY THE REGIONAL OFFICE OF THE INSURANCE COMPANY. P4:- COPY OF THE COMPLAINT DT. 27.1.04 FILED BY THE PETITIONER COMPANY BEFORE THE IST RESPONDENT. P5:- COPY OF THE NOTICE DT. 28.1.04 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. P6:- COPY OF THE ORDER DT. 28.10.04 PASSED BY THE IST RESPONDENT. R3(a):- COPY OF THE RECEIPT DT. 13.8.01 IN RESPECT DISBURSEMENT OF RS.30,00,000/- TO THE PETITIONER. R3(b):- -DO- DT. 5.9.01 IN RESPECT OF RS. 9,40,910/-. R3(c):- -DO- DT. 4.12.01 IN RESPECT OF RS. 1,21,806/-. /TRUE COPY/ P.A. TO JUDGE tss KURIAN JOSEPH, J. --------------------------------------- W.P.(C) No.18909 OF 2005 --------------------------------------- Dated this the 5th day of November, 2008. J U D G M E N T Petitioner is aggrieved since its Exhibit P4 complaint before the Insurance Ombudsman was rejected as per Exhibit P6 order on the ground of limitation. It is stated in the reply that the insurer had admitted petitioner's claim and the petitioner had received the compensation in full and final settlement of the claim on three occasions, viz. 30.07.2001, 10.08.2001 and 03.09.2001. Admittedly, Exhibit P4 complaint is dated 27.01.2004. The contention of the petitioner is that Exhibit P4 is within time since the claim was finally rejected only as per Exhibit P2, reply to lawyer notice, dated 30.01.2003. 2. The relevant Rule 13(3) of the Redressal of Public Grievances Rules, 1998 reads as follows: Rule 13(3): “No complaint to the Ombudsman shall lie unless - (a) The complainants had before making a complaint to the Ombudsman made a written representation to the insurer named in the complaint and either insurer had rejected the complaint or the complainant had not received any reply within a W.P.(C) No.18909/05 2 period of one month after the insurer concerned received his representation or the complainant is not satisfied with the reply given to him by the insurer; (b) The complaint is made not later than one year after the insurer had rejected the representation or sent his final reply on the representation of the complainant; and (c) The complainant is not on the same subject-matter, for which any proceedings before any court, or Consumer Forum, or arbitrator is pending or were so earlier”. It is seen that the petitioner itself had pursued its grievance with the Insurance Company, after receipt of the admitted amounts from the Company. In reply to such an attempt made by the petitioner by letter dated 20.05.2002, Exhibit P3 reply dated 21.05.2002 has been issued by the Company. Exhibit P3 reads as follows: “We are in receipt of the captioned letter. In this regard, we would like to inform you that the settlement done was final. However we had once again gone through the file and found that further enhancement of the claim amount was not possible and the amount settled may be treated as final. We deeply regret our inability to abide your request”. W.P.(C) No.18909/05 3 It is far thereafter, Exhibit P1 lawyer notice was issued by the petitioner. To the said notice dated 09.09.2002 only, Exhibit P2 reply dated 30.01.2003 has been issued. It is stated in Exhibit P2 reply also that the Insurance Company had clarified the position and “.....it was specifically conveyed to them vide letter dated 21.05.2002 sent by the Regional Manager of my client Company”. 3. Learned counsel for the petitioner Sri.Mohammed Nias submits that the Company had not dealt with the claims of the petitioner in Exhibit P3 and hence only Exhibit P1 lawyer notice happened to be issued. But, in Exhibit P2 reply also, what is reiterated by the lawyer on behalf of the Company is that the entire claims had already been finally settled and that the petitioner itself had received the amounts in full and final settlement of its claims. 4. Therefore, for the purpose of final reply as contemplated under Rule 13(3)(b) of the Redressal of Public Grievances Rules, 1998, it is the final reply furnished by the Company that is to be considered and not the reply notice sent by the counsel on behalf of the Company. W.P.(C) No.18909/05 4 In the above circumstances, the Insurance Ombudsman has rightly held that Exhibit P4 complaint filed by the petitioner is beyond the period of limitation. There is no merit in the writ petition. It is accordingly dismissed. However, it is made clear that in case there is any other forum available to the petitioner, the judgment will not stand in the way of the petitioner approaching the said forum, in which case, the time taken for prosecuting this writ petition shall stand excluded in computing the period of limitation before the said forum. KURIAN JOSEPH, JUDGE. smp W.P.(C) No.18909/05 5 KURIAN JOSEPH, J. W.P.(C) No. 18909 OF 2005 J U D G M E N T 05.11.2008