033-SLLR-SLLR-2003-V-2-ARIYARATNE-v.-THE-NATIONAL-INSURANCE-CORPORATION-AND-OTHERS.pdf
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12003] 2 Sri L.R
ARIYARATNE
v
THE NATIONAL INSURANCE CORPORATIONAND OTHERS
COURT OF APPEALTILAKAWARDENA, J„ ANDWIJEYARATNE JC.A. NO. 1084/2002JANUARY 23, 2003
Insurance (Special Provisions) Act, No. 22 of 1979, section 3 – Conversion ofPublic Corporations and Government Owned Business Undertaking intoPublic Companies Act, No. 23, of 1987. Benefit in terms of an insurance poli-cy – Does writ lie?, – Is there a “statutory flavour” requiring payment in termsof the policy. ?
The question arose whether the petitioner was entitled to the benefits in termsof the Divipiyasa Insurance policy.
Held:
The authority under which payment was required to be made is not interms of any statute but in terms of the contract that has been enteredinto in terms of the policy.
CA
Ariyaratne v The National Insurance Corporation and others
(Tilakawardena J.)
213
The fact that the authority has failed or refused to fulfil certain terms con-tained in that contract does not give rise either to public law rights or toany statutory obligations under which court can assume jurisdiction toissue a writ of mandamus.
There is no statutory flavour requiring payment in terms of the Policy.
There is no public duty cast upon the 1st respondent that can beenforced.
APPLICATION for a Writ of Mandamus.
Phillip Chandraratne, for petitioner.
Nigel Hatch for 1 st, 2nd and 3rd respondents.
Sajeewa Samaranayake, State Counsel for 4th and 5th respondents.
Cur. adv. vult.
February 02, 2003
SHIRANEE TILAKAWARDENA, J.
The petitioner in this case has preferred this application seek- 01ing a declaration that the petitioner is entitled to benefits in termsof the Divipiyasa Insurance Policy. This relief that has been claimedis not within the purview of the jurisdiction of this Court and mustnecessarily be refused.
The second relief that has been claimed by the petitioner is fora writ of mandamus to compel the 1st to 3rd respondents to settlethe loan granted by the 4th respondent to the petitioner in terms ofthe said “Divipiyasa Housing Loan Life Policy”.
The respondents have raised several preliminary objections. 10The most salient objection being that the claim is based on a poli-cy, which has been adverted to as P2, and in these circumstancesthat this is a pure contractual matter and does not attract the writjurisdiction of this Court.
It is not in dispute that the policy had been obtained by thepetitioner on the 21 st of November 1998. The 1 st respondent cor-poration was formed in terms of the Gazette Notification 1 R4 in
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terms of the Insurance (Special Provisions) Act, No. 22 of 1979 interms of section 3 of the said Act (1R4).
Subsequently on or about 03.02.1993 in terms of theConversion of the Public Corporations or Government OwnedBusiness Undertakings into Public Companies Act, No. 23 of 1987,the 1st respondent Company by the sale of 51% shares to the pub-lic, formed itself into a public company registered under theCompanies Act, No. 17 of 1982. Vide 1R1. It is also not in disputethat the said 51% shares of the Company were sold to the publicand in that sense the 1st respondent Company became a PublicCompany.
The important issue that has to be decided in this case is whetherthis company acting in terms of the powers vested in it, in terms ofthe Memorandum and the Articles of Association and entering intothe contract P2, could be considered as having a public duty tothe petitioner to pay under the aforesaid policy.
It is relevant to consider whether in the application that hasbeen brought before this Court where the petitioner is seeking amandate in the nature of a mandamus, was there a statutory dutycast upon the 1st respondent to make payments in terms of thepolicy.
This Court has carefully perused the insurance policy markedP2. The authority under which payment was required to be madeis clearly not in terms of any statute but in terms of the contract thathas been entered into in terms of this policy.
In other words the fact that the authority has failed or refusedto fulfil certain terms contained in that contract does not give riseeither to public law rights or to any statutory obligations underwhich this Court can assume jurisdiction to issue a writ of man-damus.
The fact that 51% of shares of the company were owned bythe public does not convert a matter that has been entirely gov-erned by the four corners of the contract into a matter that impos-es a public duty under a statute.
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CA
Ariyaratne v The National Insurance Corporation and.others
(Tiiakawardena J.)
215
Indeed an examination of the policy shows that there is no“statutory flavour” requiring payment in terms of this policy.
The right to make payment or to refuse payment is entirelygoverned by the contractual clauses contained in the policy.
Therefore Court holds that this is not a fit and suitable casefor this Court to invoke the public law remedies that are availableby the issuance of a writ of mandamus. Clearly there is no publicduty that has been cast upon the 1st respondent that can beenforced in terms of any statutory provisions.60
Counsel for the petitioner has urged this Court to consider thefact that the corporation initially was formed as a statutory body interms of section 3 of the Insurance (Special Provisions) Act, No. 22of 1979.
However the immediate matter that has to be determined bythis Court is whether in terms of the policy any public duty arisesfor invoking the writ jurisdiction of this Court. Here there is a cleardistinction in terms of the Private Law and Public Law.
This Court is unable to see any statutory duty which makes itincumbent upon the 1st respondent to make payment in terms of ?othis policy entered into after it had been incorporated as a publiccompany.
In any event the petitioner is not without an alternative reme-dy in a civil court of competent jurisdiction. Accordingly the applica-tion is dismissed without costs.
WIJEYARATNE, J. – I agree.Application dismissed.