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M/S.Star Health And Allied … vs State Of Kerala on 11 December, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA,
1941

WP(C).No.17046 OF 2019(E)

PETITIONER/S:
1 M/S.STAR HEALTH AND ALLIED INSURANCE COMPANY
LIMITED,
HAVING ITS REGISTERED AND CORPORATE OFFICE AT
NO.1, NEW TANK STREET, VALLUVAR KOTTAM HIGH ROAD,
NUNGAMBAKKAM, CHENNAI- 600034, REPRESENTED BY ITS
ASSISTANT VICE PRESIDENT MRS.USHA
CHANDRASEKHARAN.

2 MURALEEDHARAN.D,
AGED 52 YEARS
S/O.N.DHANANJAYAN NAIR, WORKING AS BRANCH
MANAGER, STAR HEALTH AND ALLIED INSURANCE COMPANY
LIMITED, THIRUMALA BRANCH, THIRUMALA,
THIRUVANANTHAPURAM, PIN- 695006.
BY ADVS.
SRI.M.ASOKAN
SRI.DEVAPRASANTH.P.J.
SMT.SMINI JOSE
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE HOME MINISTRY
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-
695001.

2 STATION HOUSE OFFICER,
FORT POLICE STATION, THIRUVANANTHAPURAM, PIN-
695001.

3 MR. SANTHOSH KUMAR JHA,
AGED 39 YEARS
S/O.MR.JHA, TC 23/229(2), KNRA 122, KAVIL KADAVU,
VALIYASALA WARD, THYCAUD VILLAGE,
THIRUVANANTHAPURAM, PIN- 695001.

R3 BY ADV. SRI.D.AJITHKUMAR
R3 BY ADV. SHRI.SYAM KUMAR A.G.
R3 BY ADV. SMT.NAIR JAYA
R1 R2 BY SMT V SREEJA-PP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.17046 OF 2019(E)

2

R. NARAYANA PISHARADI, J
—————————————————-
W.P.(C) No. 17046 of 2019
—————————————————–
Dated this the 11th day of December, 2019

JUDGMENT

This writ petition is filed for quashing Ext.P1 first information

report (FIR) in Crime No. 872/2019 of the Fort Police Station,

Thiruvananthapuram.

2. The aforesaid case is one registered against the second

petitioner, for the offences punishable under Sections 406 and Section420

IPC, on the basis of the first information statement given to the police

by the third respondent (hereinafter referred to as ‘the complainant’).

3. The material averments in the first information statement

given to the police by the complainant are the following: The

complainant is a person who hails from Bihar. He has been residing in

Thiruvananthapuram for the last eighteen years. He does not know

reading and writing Malayalam or English. The complainant was

acquainted with Sudhakaran Nair, who is an agent of M/s Star Health

and Allied Insurance Company Limited (hereinafter referred to as ‘the

insurance company’). At the instance of Sudhakaran Nair, on
WP(C).No.17046 OF 2019(E)

3

14.01.2019, the complainant took an insurance policy of the aforesaid

company on payment of Rs.11,516/- as premium for one year. After a

period of one month, Sudhakaran Nair entrusted with the complainant,

the insurance policy and a treatment card. There was also a list which

showed the hospitals where the card could be used by him. On

03.04.2019, the complainant was admitted in the S.P Fort Hospital for

conducting surgery for ureteric calculi. The surgery was conducted on

04.04.2019 at 12:00 noon. However, on that date, at 17:49 hours, the

complainant received an intimation from the insurance company

rejecting his claim for money based on the policy of insurance. The

complainant had to remit an amount of Rs.90,000/- in the hospital.

The complainant had shown the treatment card at the hospital and the

authorities there had told him that the claim would be admissible.

4. Heard the learned counsel for the petitioners and also the

third respondent and the learned Public Prosecutor.

5. Since I have my own doubt as to whether this writ petition

filed under SectionArticle 226 of the Constitution of India is maintainable for

quashing the proceedings against the petitioners in a criminal case, I

intend to treat this petition as one filed under Section 482 Cr.P.C and

deal with it accordingly.

WP(C).No.17046 OF 2019(E)

4

6. The first petitioner is the insurance company. As per Ext.P1

FIR, the first petitioner is not an accused in the case registered by the

police. Learned Public Prosecutor has not reported that the insurance

company has been implicated as an accused in the case. Therefore,

the petition, as far as it relates to the first petitioner, is liable to be

dismissed.

7. Even if the entire allegations in the first information

statement given to the police by the complainant are accepted as true,

an offence punishable under Section 406 IPC is not made out against

the second petitioner. The complainant had not entrusted any money

to the second petitioner. Even if it is accepted that Sudhakaran Nair

had obtained amount from the complainant on behalf of the insurance

company, which was premium for taking the insurance policy, the

complainant has no case that insurance policy was not taken by

Sudhakaran Nair in his name. Therefore, the offence punishable

under Section 406 IPC is not made out from the averments in the first

information statement.

8. The second petitioner is the Manager of the Thirumala

branch of the insurance company. Even if it is accepted that

Sudhakaran Nair had made the complainant to believe that all claims

made by the complainant for treatment of any disease during a period
WP(C).No.17046 OF 2019(E)

5

of one year would be honoured by the insurance company and even if

the complainant had taken the insurance policy on the basis of such

representation made by Sudhakaran Nair, it eludes comprehension

how an offence punishable under Section 420 IPC will lie against the

second petitioner, who is only the branch manager of the insurance

company. There is no allegation or averment in the first information

statement given to the police by the complainant that the second

petitioner had made any representation to the complainant or that he

had induced the complainant to take any insurance policy.

9. Of course, there is an averment in the first information

statement given to the police by the complainant that, on 03.04.2019,

at 12:40 hours, a message was received by him in his mobile phone

that his claim was registered. However, Ext.P4 document, which is a

copy of the message sent by the hospital to the insurance company,

would show that it was only at 15:01 hours at 04.04.2019, a claim for

money was made from the hospital. Ext.P5 letter issued by the

insurance company to the complainant is dated 04.04.2019. The time

of sending this letter is shown in it as 17:49 hours. In such

circumstances, the second petitioner cannot be found liable for an

offence punishable under Section 420 IPC. There is no allegation or

averment in the first information statement given to the police by the
WP(C).No.17046 OF 2019(E)

6

complainant that the second petitioner had assured the complainant

that, on admission and treatment in the hospital, his claim for

treatment would be honoured by the company.

10. In the aforesaid circumstances, I find that continuation of

the criminal proceedings against the second petitioner would be an

abuse of process of law. The proceedings against him based on Ext.P1

FIR are liable to be quashed.

11. In the result, the writ petition is dismissed as far as it

relates to the first petitioner. The petition by the second petitioner is

allowed. Ext.P1 FIR in Crime No. 872/2019 of Fort Police Station,

Thiruvananthapuram, as far as it relates to the second petitioner, is

quashed. It is made clear that this judgment will not affect the right,

if any, of the third respondent to claim money from the first petitioner

insurance company on the basis of the policy of insurance.

Sd/- R. NARAYANA PISHARADI
JUDGE
lsn
WP(C).No.17046 OF 2019(E)

7

APPENDIX
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 COPY OF THE FIR INCLUDING FIS IN CRIME NO
872 OF2019 OF FOR POLICE STATION
THIRUVANANTHAPURAM DISTRICT

EXHIBIT P2 COPY OF THE SCHEDULE AND TERMS AND
CONDITIONS OF FAMILY HEALTH OPTIMA
INSURANCE PLAN ISSUED TO THIRD RESPONDENT

EXHIBIT P3 COPY OF THE REQUEST FOR CASHLESS
HOSPITALIZATION FOR MEDICAL INSURANCE
FORWARDED BY HOSPITAL

EXHIBIT P4 COPY OF THE E-MAIL COMMUNICATION FROM THE
HOSPITAL SUBMITTING THE REQUEST

EXHIBIT P5 COPY OF THE REJECTION E-MAIL COMMUNICATION
FROM THE INSURANCE COMPANY

RESPONDENTS EXHIBITS: NIL

TRUE COPY

P.A TO JUDGE

LSN

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