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2022 Supreme(Ker) 15
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.Manikumar, Shaji P.Chaly, JJ.
M.B.Koyakutty – Appellant
Versus
Oriental Insurance Company Ltd. –Respondent
WA NO. 1283 of 2021
Decided On : 03-01-2022
Advocate Appeared:
For the Petitioner: V.N. Sankarjee, V.N. Madhusudanan, R. Udaya Jyothi, M.M. Vinod M. Suseela
For the Respondent: Smt. K.S. Santhi, Standing Counsel
Point of Law : Section 3 of the Interest Act, 1978 enables the court to allow in any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made.
Headnote:
Constitution of India, 1950 - Article 226 - Civil Procedure Code, 1908 - Section 34 - Interest Act, 1978 - Section 3 – Interest - Power of court to allow interest - Proceedings for the recovery of any debt or damages - Being aggrieved by judgment declining to grant interest for alleged delay for refund of an undeclared amount liable to be refunded to appellant for year 2004-2005 on expiry of policy, instant writ appeal is filed.
Findings of the court :
Court may, if it thinks fit, allow interest to person entitled to debt or damages or to person making such claim, as case may be, at a rate not exceeding current rate of interest, for whole or part of period from which amount has fallen due - Applying provisions and doctrine of justice, equity and good conscience, we deem it fit that 6% interest on delayed payment would be reasonable - Thus, while interfering with judgment and setting aside same, we direct Oriental Insurance Company Limited, represented by its Divisional Manager, and Chief Regional Manager, respondents, to refund a sum with 6% interest on abovesaid sum for period , till date of payment of amount to appellant, within two months from date of receipt of a copy of this judgment.
Result : Appeal allowed
JUDGMENT :
S. MANIKUMAR, J.
Being aggrieved by the judgment dated 26.04.2021 in W.P.(C) No. 9912 of 2015 declining to grant interest for the alleged delay for the refund of an undeclared amount of Rs.50,170/-liable to be refunded to the appellant for the year 2004-2005 on the expiry of the policy, instant writ appeal is filed.
2. Writ petitioner, a Marine Insurance policy holder, has made a Complaint No.10/KCH/Gi/11-005-159/2006-07 before the Insurance Ombudsman, Kochi. The averments made in the complaint, as summarised in Ext. P8 award, are reproduced hereunder:
“2. The main allegations in the complaint reads as below :
For the last several years, on behalf of his proprietorship concern, the complainant had taken the Marine Insurance Policy from the insurer a sum of Rs.50170/- was paid in excess of the premium amounts. The complainant had on various occasions contacted the insurer to make refund of the same, it was in no use, hence the complaint.
3. On registration of the complaint notices under relevant forms were issued to either side for appearance of parties and for their pleadings. In response to the said notice the complainant had filed P-II form on 13.10.2006 reiterating the allegations in the original complaint, whereas the respondent had filed a self-contained note on 26,10.2006 reputing the claim on the following contentions:
In furtherance to the request for refund of undeclared balance from the complainant, the insurer had from their records found that there was an undeclared balance of Rs.23,70,000/-under policy No.128/2004, whereas there was over declaration to the tune of Rs.18,88,000/-under Pol.No.129/2004 pertaining to M/s. Mezhukkattil Mills, a sister concern of the complainant. On expiry of the policies an amount of Rs.9471/-was due for the complainant's concern and recovery of Rs.7544/-was to be effected from M/s. Mezhukkattil Mills. Instead of the complainant, the cheque for refund was wrongly drawn in favour of M/s. Mezhukkattil Mills vide letter dated 30th March, 2006. The complainant's request for refund on policies for the year 2001 was received only in 2005; the amount was not paid as the Company had no provision for refund on policies which had expired long back.”
3. Earlier, the Insurance Ombudsman directed refund of Rs.9,471/- only. Being aggrieved by the said award dated 28.11.2006, appellant has filed W.P.(C) No.20193 of 2007. Before the writ court, the appellant/writ petitioner has contended that a sum of Rs.50,170/-was liable to be refunded.
4. After hearing the learned counsel for the parties, a learned single Judge, vide judgment dated 3rd October, 2013 in W.P.(C) No. 20193 of 2007, set aside the order and remitted the matter back to the Insurance Ombudsman, for fresh reconsideration of the issue. Operative portion of the said judgment reads thus:
“10. As the impugned order is passed on such a premise, this Court is of the definite view that the order calls for an interference. Accordingly, the writ petition is allowed. The impugned order is set aside and the matter is remitted back to the Insurance Ombudsman for fresh consideration of the issue. Both the parties shall be at liberty to adduce further evidence in the matter. After re-considering the entire evidence, the Insurance Ombudsman shall pass appropriate orders, in accordance with law, at the earliest.”
5. After reconsideration of the matter, the Insurance Ombudsman passed Ext. P10 award dated 09.01.2015 holding that the first respondent Insurance Company is liable to pay Rs.50,170/-towards premium refund as claimed by the appellant. However, the Ombudsman declined to grant interest.
6. Being aggrieved by the denial of interest, appellant has filed W.P. (C) No. 9912 of 2015 for the following relief:
“Issue a writ of certiorari or any other appropriate writ or order quashing Ext. P10 to the extend of not granting proper relief to the petitioner and direct respondent No.1 to pay the sum of Rs.50,170/-with 12% interest from the date of claim i.e.,
