Final Order 1

Order Details: Other
Pdf Text: IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 130 OF 2019
IN
SUMMARY SUIT NO.382 OF 2017
Mr. Dennis Nair
Adult Indian Inhabitant.
Residing at Flat No. 505, D-wing,
Vasant Fiona Service Road,
Near Jupiter Hospital, Majiwada Junction,
Maharashtra, Thane- 400 601.
.. Plaintiffs
V/s.
1. Reliance General Insurance Company Limited
A Company incorporated under the provisions of
the Companies Act, 1956, having its registered
office at H-Block, 1st Floor,
Dhirubhai Ambani Knowledge City, Navi
Mumbai, Maharashtra- 400 710. ,
through its branch office located at 570, Rectifier
House, Naigaum Cross Road,
Next to Royal Industrial Estate, Wadala(West),
Mumbai, Maharashtra- 400 031.
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2. Aditya Birla Housing Finance Limited
A Company incorporated under the provisions of
the Companies Act, 1956, having its registered
office at Indian Rayon Compound, Veraval,
Junagadh, Gujarat – 362 266,
through its branch office at One Indiabulls
Center, Tower 1, 18th Floor, Jupiter Mill
Compound, 841, Senapati Bapat Marg,
Elphinstone Road, Mumbai-400 013. ... Defendants
Appearance:-
Adv. Mr. Amir Arsiwala for the Plaintiff.
Adv. Mr.Pandit Kasar for the Defendant no.1.
Adv. Mr. Sanket Mungale for the Defendant no.2.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 18/12/2021
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment thereby
directing the defendant no.1 to pay a sum of Rs.48,92,870/- with the
interest @ 18% per annum from the date of filing of the suit till its
realization.
2. Perused the documents on record.
3. The defendant no.1 appeared on Summons for Judgment
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and filed reply/leave to defend within limitation on the following
grounds:-
i) No cause of action arose against the defendant no.1 as
nothing is due and payable by defendant to the plaintiff. From the
policy schedule dtd. 31.12.2015, it is evident that the policy period start
date was 30.11.2015. No benefits under the policy shall be payable for
any critical illness or surgical procedures which result due to any
preexisting disease or symptoms or which is diagnosed within 90 days
of start date of period of insurance. The plaintiff was allegedly
diagnosed with Aortic Aneurysm and Re-suspension of Heart Vale on
dtd.19.12.2015 i.e within 90 days of the start date of period of
insurance and thus not entitled to any benefit under the policy.
ii) Suit is not maintainable as a summary suit as ingredients of
Order -XXXVII Rule -02 of the C.P.C are not attracted to the facts and
circumstances of the present suit.
iii) There are triable issues involved and thus defendant no.1 is
entitled to unconditional leave to defend. The plaintiff has played a
fraud upon defendant no.1 by not disclosing diagnosis on 19.12.2015 or
his treatment on dtd. 24.12.2015 prior to the policy being issued to the
plaintiff on 31.12.2015. He was aware that the policy period start date
was 30.11.2015.
iv) The plaintiff has suppressed material facts . The plaintiff has
not provided the copy of schedule and copy of commercial terms of the
policy. Therefore, he is not entitled to any relief claimed against the
defendant no.1.
4. That the defendant no.1 is not liable to pay the alleged
amount to the plaintiff.
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5. The plaintiff while arguing the summons for judgment has
placed rejoinder on record and also focused on various documents
produced by him. He specifically contended in the summons for
judgment that the sum of Rs.48,92,870/- arose out of an insurance
policy tilted “Reliance Home Loan Protect Policy”, which was issued by
defendant no.1 in his favour. The defendant no.1 is under liability to
pay this amount as per the terms and conditions of said policy. He gave
the details as to how the defendant no.2 instigated him for drawing the
policy from defendant no.1 and how he obtained the policy. According
to him the disbursal date were 31.8.2015, 31.8.2015 and 30.11.2015
respectively for three different loan accounts. It was insured that the
loan amount would be repaid by the insurer instead of insured in case
of any eventuality that may affect his liability to repay. The loan
amount was disbursed on 31.8.2015 . The plaintiff was diagnosis with
the diseases on 19.12.2015 i.e around 120 days after the loan account
bearing No. HFHL-421040000001141 was disbursed. He had availed a
surgery on 24.12.2015. Thereafter, he was bed ridden. His illness is
covered under critical illness and therefore the defendant no.1 was
bound to release the insured amount. However, the defendant no.1
rejected his claim for said amount vide letter dtd. 5.2.2016. Therefore,
the defendant is liable to repay the amount of insurance policy to the
plaintiff alongwith interest at the rate of 18% p.a.
6. It appears that the dispute in between the parties is in
respect of the date on which the insured is entitled to be insured from
the insurer. The plaintiff has placed different authorities on record to
satisfy that his claim for the insurance policy is legal and the policy
becomes operative in his case. It is argued that when there is any
ambiguity regarding the date and how it is to be concluded then the
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benefit of said ambiguity is to be given to the insured. On said point the
plaintiff placed reliance on the authority in the case of Hanial Era
Textiles Ltd. V/s. Oriental Insurance Co. Ltd and others. In this authority
it has been held that the contract of insurance needs to be informed by
the insurer to the insured. Illegally withholding the amount payable to
the insured is not legal. Further, the plaintiff has placed the authority in
the case of United India Insurance Co. Ltd. V/s. Pushpalay Printers
(2004) 3 SCC 694. The construction of contract is elaborated in this
authority. It is observed that the principles of contract and the intention
of the parties has to be gathered from the words used in the contract
and it is settled principal of law that if there is ambiguity or a term is
capable of two possible interpretations, one beneficiary to the insured
should be accepted consistent with the purpose for which the policy is
taken , namely to cover the risk on the happening of a certain event.
7. Further, he drew my attention towards the authority in the
case of IDBI Trusteeship Services Ltd V/s. Hubtown Ltd. (2017) 1 SCC
568. In this authority the law regarding leave to defend is illustrated
and it is held that the law laid down in Mechelec, (1976) 4 SCC 687
stand superseded by virtue of the amendment of the year 1976 to order
XXXVII Rule-3 of the CPC.
8. I have gone through the authorities cited by the advocate
for plaintiff. With due respect, I opine that the authorities cited supra
had laid down the settled principles of law and the same cannot be
challenged . However, it is to be seen whether the same are applicable
to the case in hand or not.
9. The defendant has put forth the defence that the plaintiff is
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not entitled to the policy amount and the benefits under the policy are
not payable to him as the illness is diagnosed within 90 days of start
date of period of insurance. According to the plaintiff the illness was
occurred within 120 days and according to the defendant no.1 it has
been diagnosed within 90 days. It means that there is ambiguity
regarding the construction and interpretation of the policy. As per the
settled law as laid down in the case of United India Insurance Co.Ltd. as
cited Supra, if two interpretations are possible, one beneficiary to the
insured should be accepted. However, one rider is there. It can be
accepted, if it is consistent with the purpose for which the policy is
taken. Here we have to look into the details and merits of the case to
arrive at the conclusion that the interpretation of the policy beneficiary
to the insured can be accepted. To my mind, the same cannot be
determined in a summary way in the summary suit. The disputes raised
by the defendant no.1 have some root and legal substance. The amount
involved is very big. The issues so raised cannot be determined in a
summary way.
10. On perusal of leave to defend moved by the defendant
no.1, it transpires that the defendant no.1 has raised objection to the
tenability of the suit and denied the suit claim in toto. The questions are
whether any cause of action arose for the filing of the suit, whether the
provisions of Order XXXVII are attracted or not and whether plaintiff is
entitled for recovery or not. The submissions and contentions made by
the defendant no.1 leads to the inference that the defendant no.1 has
probable defence and the controversy has to be decided on merit.
11. This Court neither intend to comment on the merits of the
case as this is not the stage of passing order on merit or appreciation of
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evidence. But this case being a case based on contract between the
parties, it becomes necessary to assess the merits of case on the strength
of the averments and contentions raised by the parties and the
documents produced in support of said averments and contentions. It
is also necessary to adjudicate the case on the basis of evidence as to
find out as to whether defendant no.1 is liable to pay the amount
claimed by the plaintiff or not.
12. Therefore, I am of the opinion that , whether the plaintiff is
entitled to recovery of amount as claimed is the triable issue in this suit
alongwith other material issues and these issues can not be brushed
aside on the count of procedure of summary suit.
13. In this background, I hold that the that defendant no.1 has
successfully made out a case to allow them to leave to defend this suit.
Defendant no.1 has plausible defence. Therefore, the defendant no.1
should be allowed leave to defend. However, if the defendant no.1 fails
to prove the defence, he will have to pay the amount claimed by the
plaintiff. The amount comes around Rs.48,92,870/- with interest at the
rate of 18% p.a . The suit is filed under Order XXXVII of C.P.C for
getting speedy recovery. To my mind, the defendant no.1 has tabled
triable issues and possible defence before the court. Therefore, I hold
that the circumstances are such that unconditional leave to defend can
be granted to the defendant no.1 in the interest of justice.
14. In consequence, the Summons for Judgment is liable to be
dismissed. Hence, the following order is passed.
ORDER
1. Summons for Judgment No.130 of 2019 is dismissed.
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2. Leave to defend is granted to defendant no.1
unconditionally and he is directed to file written statement
in Summary Suit No. 382/2017on record within four weeks
of passing of this order.
3. Costs in cause.
4. Summons for Judgment No.130/2019 is disposed off
accordingly.
Date: 18.12.2021.
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 18.12.2021
Typed on : 18.12.2021
Signed on : 29.12.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.12.2021 03.40 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
18.12.2021.
JUDGMENT/ORDER signed by
P.O.on
29.12.2021.
JUDGMENT/ORDER uploaded on 29.12.2021.
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