Nazir Singh vs Life Insurance Corporation Ltd. and Another

L.N. Mittal, J.—Plaintiff Nazir Singh, having been non-suited by both the courts below, has filed this second appeal. Petitioner''s wife Manjit Kaur had taken life insurance policy from the respondents/defendants for Rs. 1,50,000/-. On her death, the plaintiff being her husband and nominee in the insurance policy, claimed the insurance amount from the respondents, but they negatived his claim. Thereupon, the plaintiff filed suit for mandatory injunction directing the defendants/respondents to pay the insurance amount of Rs. 1,50,000/- to the plaintiff.

The defendants resisted the suit and while admitting the insurance policy in favour of plaintiff''s wife, broadly controverted the other averments of the plaintiff. It was pleaded that claim of the plaintiff has been rightly negatived because the plaintiff''s wife concealed the material fact that she was already holding another policy from another branch of respondent No. 1-Life Insurance Corporation and she also concealed the factum of her kidney problem, for which she was taking treatment from Ludhiana and Bikaner. Territorial jurisdiction of Court at Barnala was also challenged. Maintainability of the suit for mandatory injunction was also challenged.

Both the courts below have dismissed the plaintiff''s suit. Feeling aggrieved, plaintiff has filed this second appeal.

I have heard counsel for the parties and perused the case file.

As regards maintainability of the suit in the form of mandatory injunction, the suit has to be treated as the suit for recovery of money because the plaintiff in essence is seeking recovery of Rs. 1,50,000/- from the defendants. The contention that the defendants are under obligation to pay the said amount, and therefore, suit for mandatory injunction is maintainable, as also held by the lower appellate court, cannot be accepted because in every suit for recovery of money, the defendant is alleged to be under obligation to pay the suit amount to the plaintiff. If this contention is accepted, then instead of filing suit for recovery, every plaintiff would seek relief of mandatory injunction so as to avoid payment of ad valorem court fee on the suit amount. It is apparent in the instant case that the suit for mandatory injunction is not maintainable in the present form. Accordingly, suit is treated to be suit for recovery of Rs. 1,50,000/- and the plaintiff is directed to pay ad valorem court fee on the suit amount for all the three courts.

On merits, counsel for the appellant contended that plea of the defendants that plaintiff''s wife was suffering from kidney ailment and concealed the same has been negatived by the lower appellate court and rightly so. There is only report of Investigator of the defendants that plaintiff''s wife was suffering from kidney ailment and was taking treatment from hospitals at Ludhiana and Bikaner. However, it was mentioned by Investigator in his report that record of the said hospitals was to be verified to know the history of the deceased. The said medical record of the hospitals was neither verified by the Investigator nor the said record has been produced in evidence. Consequently, it cannot be said that the plaintiff''s wife was suffering from kidney ailment and she concealed this fact, while obtaining insurance policy from the defendants.

The main plea, on which claim of the plaintiff has been negatived by the courts below, is that the plaintiff''s wife had earlier obtained insurance policy from Dabwali Branch and did not disclose the same while obtaining the instant policy. However, claim of the plaintiff cannot be negatived on this ground. It is not shown by the defendants as to how nondisclosure of earlier policy by the plaintiff''s wife effected the defendants'' liability in any manner. It is also not depicted that if the said previous insurance policy had been disclosed, the instant policy would not have been issued. No harm, loss or injury has occurred to the defendants due to nondisclosure of the previous insurance policy of plaintiff''s wife, while obtaining the instant policy, It has to be observed with anguish that insurers are negativing the claims of the insured on technical or frivolous grounds in many cases. While selling the insurance policy, all sorts of assurances are extended to the;, insured, but when the claim is to be satisfied, all sorts of objections and obstructions are created to negative the claim. This tendency of insurance companies/insurance corporations has to be disapproved. In the instant case, there was no valid ground for negativing the claim of the plaintiff.

It may be mentioned that the lower appellate court has also observed that the plaintiff has not impleaded his three issues, who are also among the legal heirs of the insured (wife of the plaintiff), and are therefore, necessary party to the suit. However, no such objection was even raised by the defendants in the written statement nor any issue in this regard was framed. Moreover, plaintiff could not be non-suited on this ground because plaintiff is nominee of his wife in the insurance policy, and therefore, plaintiff alone can maintain the suit for recovery of the insurance amount, although plaintiff''s children, being also the legal heirs of the insured, may have a right to claim their share in the insurance amount, but that would be an issue between the plaintiff and his issues and not between the plaintiff and the defendants. Plaintiff''s suit cannot be said to be bad for non-joinder of the issues of the plaintiff because plaintiff is the sole nominee in the insurance policy.

For the reasons aforesaid, I find that the claim of the plaintiff has been illegally and erroneously negatived by the Courts below. Substantial question of law, therefore, arises for determination in this second appeal as to whether finding of the courts below to negative the claim of the plaintiff is perverse and illegal and is based on misreading and mis-appreciation of evidence and misapplication of law.

For the reasons already recorded herein before, the said substantial question of law is answered in the affirmative i.e. in favour of the plaintiff-appellant. Resultantly, the instant second appeal is allowed, judgments and decrees of the courts below are set aside and suit filed by the plaintiff appellant is decreed with costs throughout for recovery of Rs. 1,50,000/- from the defendants along with interest thereon @ 9% per annum since the date of filing of suit i.e. 05.08.2006 till recovery. However, the decree is subject to payment of ad valorem court fee by the plaintiff for all the three courts.