NAND CONSTRUCTION COMPANY Vs. REGIONAL MANAGER

JUDGEMENT

(1.) M/s. Nand Construction Company (hereinafter shall be referred to as `the petitioner') filed S. B. Civil Writ Petition No. 1041/1999 against the Regional Manager, Oriental Insurance Company limited and its Branch Manager (hereinafter shall be referred to as `the respondents'), which was decided by the learned Single Judge under its judgment dated 4. 3. 2002 (RLW 2002 (2) Raj. 1233) Distinguished. The petitioner filed S. B. Civil Review Petition No. 54/2002, which was dismissed by the learned Single Judge under its order dated 4. 9. 2002. The petitioner and the respondents, felt aggrieved of the judgment of the learned Single Judge filed these special appeals under Section 18 of the Rajasthan High Court Ordinances, 1949. Both the special appeals were taken up for hearing together; arguments were heard and concluded and the order was reserved on 29. 8. 2005.

(2.) BRIEFLY stated the facts of the case are that the petitioner entered into insurance contract with respondent Oriental Insurance Company Limited vide Contractors All Risk (CAR) Policy No. 44/96/00008 for a total contract price of Rs. 1. 42 crores four road on different sites in Nadbai Tehsil, District Bharatpur. The petitioner paid premium of Rs. 39,661/- through Cheque No. 378071, dated 27. 10. 1995, and the respondent Insurance Company issued a miscellaneous provisional Cover Note No. 069264/93, dated 27. 10. 1995, in favour of the petitioner and the period of contract was specified as from 27. 10. 1995 to 26. 11. 1996 (including one year maintenance period ). A loss alleged to have been occurred in respect of CAR Policy aforesaid and accordingly the petitioner lodged a claim vide Claim No. 44/97/00006 with the respondent Insurance Company. It is alleged that the respondent Insurance Company entrusted the job of surveying he actual loss sustained by the petitioner, to different surveyors on different times, first to Mr. N. K. Jain (Surveyor of Jaipur) and secondly, to M/s. R. K. Singhal & Company (Surveyor of New Delhi ). After completing his survey work Mr. N. K. Jain alleged to have quantified the loss sustained by the petitioner to the tune of Rs. 29. 50 lacs. The second surveyor M/s. R. K. Singhal & Company private Limited, New Delhi assessed the loss sustained by the petitioner and quantified it to the tune of Rs. 24. 50 lacs. The grievance of the petitioner was despite repeated requests made. A notice of demand of justice was served and the writ petition, out of which these special appeal arise, was filed on 12. 2. 1999.

(3.) LEARNED counsel for the respondent Insurance Company contended that the learned Single Judge has committed an error in granting relief to the petitioner in a petition filed under Article 226 of the Constitution of India as therein attempt was made for enforcement of alleged right under the contract of insurance. In his submission the writ petition under Article 226 of the Constitution of India for enforcement of contractual rights is not maintainable. In support of his contention learned counsel for the respondent Insurance Company placed reliance on the decision of Hon'ble the Apex Court in Belde Venkatesham vs. Chokkarapu Lakshmi Narasiah (AIR 1977 SC 1504 ).