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Judgment
Debiprasad Sengupta, J.—This appeal is directed against the judgment and order dated 22.11.2006 in W.P. No. 10869 (W) of 2004 passed by the learned Single Judge of this Court. The case of the writ petitioner/respondent in the writ petition was that her husband Late Chinmoy Sarkar, who was the holder of one Janata Personal Accident Insurance Policy, met with an accident on 24.06.2003 and he died on 25.06.2003. The Senior Branch Manager of Oriental Insurance Company Limited, Haldia Branch, Haldia, Medinipur was duly informed about such death of the writ petitioner''s husband by a letter dated 30.06.2003 issued by the present writ petitioner/respondent and such letter was duly received by the Senior Branch Manager of the concerned Insurance Company. Such policy was for the period from 31.3.1998 to 31.3.2010 and the insured amount was Rs. 10 Lacs.
On 29.07.2003 the writ petitioner/respondent sent a letter to the Senior Branch Manager of the Insurance Company claiming the benefits of the policy of her husband as she was the nominee. It was the case of the writ petitioner/respondent that on 1.8.2003 a letter was issued by the Senior Branch Manager in the name of the Late husband of the writ petitioner/respondent intimating that such policy was cancelled with effect from 19.09.2002. It was further disclosed that such intimation of cancellation of the policy was given to the late husband of the writ petitioner/respondent earlier. It was the case of the writ petitioner in the writ petition that no such communication of cancellation of policy was ever made earlier either in the name of her late husband or in her name.
The learned Single Judge by the impugned judgment allowed the writ application and quashed the letter of refusal dated 18.11.2003 to pay the insured amount and directed such payment to be made within a period of four weeks together with interest @ 10% p.a. from the date of death of Chinmoy Sarkar, the late husband of the writ petitioner/respondent. Challenging such order the present appeal is preferred.
Mr. Bikash Ranjan Bhattacharyya, learned Counsel appearing for the appellants submits, by referring to Clause 5 of the Insurance Policy (Janata Personal Accident Policy) that the appellant company may at any time by notice in writing cancel the policy provided that the company shall return to the insured the then last paid premium and such notice shall be deemed sufficiently given, if posted, addressed to the insured at the address last registered in the company''s book and shall be deemed to have been received by the insured at the time when the same would be delivered in the ordinary course of post. It is the submission of the learned Counsel of the appellants that initially after such policy was cancelled, the same was intimated to the insured by a letter dated 19.09.2002 and a refund voucher of Rs. 1,875/- was sent to the insured by post on 26.09.2002. Mr. Bhattacharyya, learned Counsel refers to a letter dated 26.09.2002 issued by the Senior Branch Manager of the Insurance Company addressed to the Postmaster of Khanjanchak Post Office, Purba Medinipur and submits that 151 sealed envelopes were sent to the concerned Postmaster along with a list showing total number of envelopes for delivery. According to Mr. Bhattacharyya, this letter is sufficient to show that 151 letters were posted for delivery to the policy holders. It is the contention of Mr. Bhattacharyya that this is sufficient compliance of Clause 5 of the insurance policy. Clause 5, according to Mr. Bhattacharyya, casts a duty upon the insurer to post the letters and since the letters were handed over to the concerned Postmaster for delivery, it amounts to "posting" and it shall be deemed to have been received by the insured. It is the contention of Mr. Bhattacharyya, learned Counsel that when there is a contract the Court can only examine as to whether the terms of contract was complied with. The words used in the contract are to be accepted. Whether there was service of notice/intimation to the insured cannot be decided by the writ court and such point can only be decided by adducing evidence.
In support of his contention, Mr. Bhattacharyya, learned Counsel relies upon a judgment reported in Central Bank of India Ltd. Vs. Hartford Fire Insurance Co. Ltd., ). From a reading of the said judgment, it appears that the main question, which fell for consideration before the Hon''ble Supreme Court, was whether the policy had been terminated. It was the contention of the respondent that it had power under Clause 10 of the policy to terminate the contract and it had duly exercised that power. The appellant denied such contention and stated that a term must be implied in Clause 10 that the termination could only be for a resemble cause. It was held by the Hon''ble Apex Court that in such a situation the Court must give effect to the plain meaning of the words and should not go beyond that. The Hon''ble Apex Court was of the view that the language used in Clause 10 of the policy was very clear and there cannot be any other meaning of the words used in the said Clause. The next judgment relied upon by Mr. Bhattacharyya is reported in General Assurance Society Ltd. Vs. Chandumull Jain and Another, . In the said judgment it was held by the Hon''ble Apex Court that a condition in an insurance policy giving mutual rights to parties to terminate the insurance at any time is a common condition in policies and must be accepted as reasonable and the right to terminate at will, cannot, by reason of the circumstances be read as a right to terminate for a reasonable cause. The next judgment relied upon by the learned Counsel of the appellants is reported in State of Punjab and Others Vs. Ram Lubhaya Bagga Etc. Etc., Relying upon the said judgment, it is submitted by Mr. Bhattacharyya that such cancellation/termination of the insurance policy is a policy matter of the company and the same cannot be judicially scrutinized though the Court can consider whether the policy is arbitrary or violative of law. Mr. Bhattacharyya submits that the point involved in the present case is a disputed question of facts and it is the settled legal position that where disputed question of facts are involved, a petition under Article 226 of the Constitution of India is not a proper remedy. In support of his contention Mr. Bhattacharyya relies upon a judgment of the Hon''ble Supreme Court reported in Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Others Vs. Smt. Sukamani Das and Another, .
Relying upon the aforesaid judgment, it is submitted by Mr. Bhattacharyya that Clause 5 of the insurance policy confers a right upon the insurer to cancel the policy at any point of time. After such policy was cancelled the insured was duly intimated by a letter dated 19.09.2002. Mr. Bhattacharyya produced before us the Post Office Guide Part 1 relating to the rules and regulations of the Inland Post. He refers to Clause 15(5) of the said regulation, which reads as follows : "15(5) Presentation of large official and other letters in bulk at the window of the van or post office - Large official or other letters, which owing to their size, cannot be posted in the letter boxes, may be received by hand at the window of the van or post office. There is also no objection to receiving at the window of the van or office, letters or packets posted in bulk provided, the postage and the late fee, if any, are fully prepaid." Relying upon the said provision it is submitted by Mr. Bhattacharyya that since a bunch of 151 letters was handed over to the concerned Postmaster for service, the same should be deemed to have been received by the insured. Finally it is submitted by Mr. Bhattacharyya that since the insurance policy was cancelled in full compliance with the provision of Clause 5 of the said policy the writ petitioner being the wife of the insured is not at all entitled to claim any benefit of the said policy.
Mr. Gupta, learned Advocate appearing for the respondent/writ petitioner submits at the very outset that the judgment cited by the learned Counsel of the appellants are all settled principles of law. It is not disputed that the insurance company has got every right to cancel a policy. It is also not disputed that such cancellation can be done in view of the provision of Clause 5 of the policy, but the question is whether the said provision of Clause 5 was duly complied with. Mr. Gupta refers to Clause 5 of the policy, which runs as follows:
The company may at any time by notice in writing cancel this policy, provided that the company shall in that case return to the insured the then last paid premium less a prorata part thereof for the portion of the current insurance period which shall have expired. Such notice shall be deemed sufficiently given if posted addressed to the insured at the address last registered in the company''s books and shall be deemed to have been received by the insured at the time when the same would be delivered in the ordinary course of post.
According to Mr. Gupta, Clause 5 has two parts. The first part speaks about power of cancellation and the second part speaks about the mode of service. It is clear that the insurance company is authorized to cancel the policy at any time by notice provided that the company is to return to the insured the last paid premium. That apart the time of delivery of that notice is required to be taken into consideration for presumption in favour of giving notice. It is the admitted position that such payment was not made to the insured. Since no payment was made it cannot be said that Clause 5 was complied with. Referring to the second part of Clause 5 Mr. Gupta submits that the words "if posted" appearing in the said clause is very significant. Simply handing over bunch of 151 letters to the Postmaster cannot be said to be termed as "posting". From a reading of the letter issued by the insurance company to the Postmaster, it becomes clear that nothing has been said about the mode of posting i.e. whether it was under certificate of posting or under registered post or by ordinary post.
Nothing has been mentioned in the said letter that those sealed envelopes were properly addressed in the name of the addressee and were stamped properly. There is no material on record to arrive at a presumption in favour of giving notice taking into account the time of delivery. Although a seal of the post office is appearing in the said letter dated 26.09.2002, in the list of addressees enclosed to such letter, there is no seal and signature of the postal authority. This creates every doubt as to whether any such letter was posted in the name of the insured.
Mr. Gupta next points out that intimation of such cancellation of policy was sent for the first time on 1.8.2003, i.e. after the death of the insured. Mr. Gupta further submits that insurance is a contract between two parties, who must be living individuals. Proposal, acceptance or revocation must be within the lifetime of the parties. In the present case the letter dated 1.8.2003 was sent by the insurer in the name of the insured after his death. Mr. Gupta further submits that u/s 4 of the Indian Contract Act a revocation becomes complete as against the person to whom it is made only when it comes to his knowledge. There is nothing on record to show that the policy holder was ever intimated or came to know that the policy had been terminated in exercise of power under Clause 5.
Mr. Gupta next refers to the provision of Section 3(c) of the Indian Post Office Act, 1898 which runs as follows:
Meanings of "in course of transmission by post" and "delivery". - For the purposes of this Act.:
(a) **********
(b) **********
(c) the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee.
The perusal of the said Section of 3(c) of Indian Post Office Act makes it clear that "delivery" means the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other persons concerned to be authorized to received such article. Mr. Gupta referring to such provision of Section 3(c) submits that if the said provision of Section 3(c) is taken into consideration, one must come to the conclusion that there was no delivery of any such letter to the insured.
Mr. Gupta learned Counsel appearing for the respondents relies upon a judgment of the Hon''ble Supreme Court reported in K. Narasimhiah Vs. H.C. Singri Gowda, wherein it was held by the Hon''ble Apex Court in paragraph 11 as follows:
"Giving" of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however "giving" is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete.
Mr. Gupta next relies upon a judgment of the Hon''ble Supreme Court reported in Nitin Rashmikant Kantawala Vs. Union of India and others, In the said judgment the provision of Section 3 of the Indian Post Office Act was taken into consideration and it was held as follows:
Under Section 3(c) it is permissible to make delivery of the postal article at the house or office of the addressee. The expression "house or office of the addressee" in Section 3(c) cannot be confined to the part of the building in which the addressee is residing or has his office. The said expression would include the building in which the residence or office of the addressee is situate. The delivery of a postal article in a mail box kept in the building in which the residence or office of the addressee is located has to be treated as delivery at the house or office of the addressee. The provision in the 1996 Order regarding delivery of the postal article in the mail box of the addressee cannot, therefore, be held to be impermissible u/s 3(c) of the Act.
We have heard the learned Advocates of the respective parties. We have also perused the documents referred to by the learned Advocates of the respective parties. There is no doubt that the insurance company has a right to cancel the policy at any time with notice, but to terminate the policy refund of the last paid premium is a primary requisite, which was not done in the present case as no payment of such amount was made to the insured at any point of time. We also find that cancellation of policy was never intimated to the insured immediately after such policy was cancelled and during the lifetime of the insured. The learned Advocate of the appellants referred to a letter addressed to the Postmaster, appearing at page 65 of the paper book, from which it appears that a bunch of 151 sealed envelopes was handed over to the Postmaster for delivery. From a perusal of the said letter it becomes clear that nothing was mentioned about the mode of such posting i.e. whether it was under certificate of posting or by registered post or by ordinary post. Nowhere it is mentioned in the said letter that the sealed envelopes were duly stamped or addressed in the name of the addressee. In the list of addressees enclosed to such letter we do not find any seal and signature of the postal authority. There is no material on record to ascertain the time of delivery of the notice dated 26.09.2002. This creates grave doubt as to whether such notice of cancellation was actually sent to the insured in accordance with the provisions of Clause 5 of the policy. It was for the first time on 1.8.2003 a letter was sent in the name of the deceased insured from which the writ petitioner came to know about such cancellation. Such cancellation subsequent to the death of the insured is of no consequence in the eye of law. Section 4 of the Indian Contract Act makes it clear that a revocation is complete as against a person to whom it is made only when it comes to the knowledge of that person. There is nothing on record to show that the deceased came to know during the lifetime that the policy had been terminated in exercise of the power under Clause 5 of the policy. After scrutinizing all the documents relied upon by the learned Advocate of the appellants we are of the view that Clause 5 of the insurance policy was not complied with before such cancellation of the policy.
We also find from the provision of Section 3(c) of the Indian Post Office Act, 1898 that the word "delivery" means the delivery of an article at the house or office of the addressee or to the addressee or to any of his authorized agent. Admittedly there was no such delivery of letter to the insured or to any agent of the insured.
The decisions of the Hon''ble Apex Court relied upon by the learned Advocates of the appellants are all settled principles of law laid down by the Hon''ble Court. It is not the submission of the learned Advocate of the writ petitioner/respondent that the Insurance Company has no right to cancel the policy. It is the case of the writ petitioner/respondent that such cancellation was made in total non-compliance of Clause 5 of the said policy as we have already discussed above.
In view of the discussion made above, we find sufficient merit in the submission made by the learned Advocates of the writ petitioner/respondent. We do not find any reason to interfere with the judgment of the learned Single Judge and accordingly, we affirm the same.
The appeal is accordingly dismissed.
There will be no order as to costs.
Urgent Xerox certified copy of this judgment and order may be supplied to the learned Advocates of the respective parties, if the same is applied for.
Debiprasad Sengupta, J.
I agree.