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Judgment
Vinod K. Sharma, J.
CM No. 1005-C of 2009
For the reasons stated in the application civil misc. is allowed and the delay of 25 days in refiling the appeal is condoned.
RSA No. 401 of 2009
This regular second appeal is directed against the judgment and decree dated 6.8.2008 passed by learned courts below vide which suit filed by the plaintiff-respondents for declaration, to the effect that they were entitled to 2/3rd share out of the insurance amount of Rs. 1.5 lacs plus other benefits including bonus etc. pertaining to policy No. 17203718 (Jeevan Surbhi) lying with the appellant in the name of Kulwinder Singh son of Kartar Singh who died on 20.11.2001, with consequential relief of injunction claimed restraining defendant No. 2 from making payment of the policy to defendant No. 1 alone who was stated to be the nominee, stands decreed.
The appellant/defendant No. 2 in the facts and circumstances of the case could have absolved its liability by making payment to defendant No. 1 as it is the settled law that the insurance company is bound to pay to the nominee, which is for the benefit of all the legal heirs. The payment was not made either to the nominee or to the legal heirs.
Learned trial court, however, ordered that the payment be shared by all the legal heirs of late Kulwinder Singh.
Instead of complying with the judgment and decree passed by the learned trial court appellant/defendant No. 2 preferred an appeal primarily disputing the liability to make the payment wherein plea of genuineness of the claim deceased was raised. The plea raised was contrary to the pleadings, thus rejected.
Learned lower appellate court while dismissing the appeal has granted decree in favour of the plaintiff/respondent for recovery of insured amount along with interest.
Mr. B.R. Mahajan, learned Counsel for the appellant contends that the appeal raises the following substantial question of law:
Whether the learned lower appellate court was justified in granting interest on the insurance amount even though no appeal was preferred by the plaintiff./appellant?
In support of the substantial question of law, learned Counsel for the appellant contends that once the plaintiff/respondents were satisfied with the decree passed by the learned trial court, and no appeal was filed, it was not open to the learned lower appellate court to have granted interest on the amount while dismissing the appeal.
It may be noticed that the defendant/appellant had chosen to challenge the judgment and decree passed by the learned trial court, even on merit. The conduct of the appellant in challenging the judgment and decree on merit disentitles it to challenge the grant of interest. Once it is not in dispute that amount was payable, under the insurance policy there was no justification for the defendant/appellant to have retained the amount by disputing the claim. The dispute if any was only inter se between the legal heirs and not with the insurance company.
In the facts and circumstances of the case, coupled with the conduct of the appellant in contesting the claim of legal heirs of the deceased to the payment of insurance amount, no fault can be found with the grant of interest by the learned lower appellate court.
Plea of the learned Counsel for the appellant that there was no claim of interest, therefore, interest could not be granted also cannot be accepted as the court, has power under the Interest Act as well as under
Section 34 of the CPC to grant interest in case the amount due is not paid to the person entitled to.
The substantial question of law raised is answered against the appellant.
No merit.
Dismissed.