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Judgment
Abhay Manohar Sapre, C.J.—Heard Mr. B. Sharma, learned counsel for the appellant.
This is an intra-court appeal filed by the writ petitioner of Writ Petition (C) No. 659 of 2013 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 4.12.2013 passed by the learned Single Judge in above mentioned writ petition.
By impugned order, the learned Single Judge dismissed the appellant�s writ petition and declined to grant him the relief claimed in the writ petition.
So the short question which arises for consideration in this writ appeal is whether learned Single judge was justified in dismissing appellant�s writ petition?
Facts of the case are short.
The appellant�s husband had taken one LIC policy to secure his life. He (husband) paid two yearly installments of premium in time. The date for payment of third yearly premium installment was upto 5.3.2011. He, however, did not pay the third installment of his yearly premium till 5.3.2011. The term in the policy, however, enabled him to pay premium within extended grace period of 15 days from due date i.e. on or before 20.3.2011. He, however, did not pay the premium even within this grace period. Due to non-payment of premium, the policy lapsed on 20.03.2011 as provided in the policy. The insured (appellant�s husband) unfortunately died on 25.3.2011. The appellant - being the wife of deceased and legal representative of deceased and nominee then claimed the insured sum in terms of the policy consequent upon the death of her husband which according to her had become payable to the nominees. It is this claim which was denied by the LIC to her on the ground that policy had lapsed, which gave rise to filing of the writ petition by the appellant out of which this appeal arise claiming a writ of mandamus against the LIC directing the LIC to pay to the appellant the assured sum in terms of the policy on the death of her husband. The writ court dismissed the writ petition which has now given rise to filing of this appeal by the writ petitioner (wife of the insured).
Having heard the learned Counsel for the appellant and on perusal of the record of the case, we find no merit in the appeal which deserves dismissal in limine.
In our considered view, the reasoning and the conclusion of the learned Single Judge appears to be just and proper. One cannot dispute that the policy of the insurance is a contract between the insurer and insured. Payment of premium is one of its essential condition to keep the policy alive and enforceable inter se parties. Non-payment of premium within the time prescribed results in lapse of the policy and in turn makes it unenforceable. In other words, non compliance of any of the essential term of the policy by the insured within the time prescribed therein attracts the adverse consequence provided in the policy to his detriment which in turn and in certain circumstances results in lapse of the policy.
In this case, since the insured (appellant�s husband) failed to pay the yearly installment of the premium within the stipulated time and also within the grace period prescribed, the policy in question came to an end during his life time itself on the expiry of the grace period on 20.3.2011. Since the insured himself was not in a position to take benefit of his policy during his life time for any purpose, it having lapsed due to his non-paying of the third installment of yearly premium, -- a fortiori, his legal representatives too were not entitled to claim any benefits arising out of such policy except those specifically provided therein.
It is a settled principal of law, that only those contractual rights are enforceable by the legal representatives of the deceased contracting parties, which are capable of being devolved and are devolved on the legal representatives who steps into the shoes of deceased contracting party to enforce such enforceable rights to the extent permissible in law. In other words, if the right was not enforceable by the original contracting party, then such right cannot be devolved upon his legal representatives or nominee and nor becomes enforceable by his legal representatives/nominee. Similarly, legal representatives/nominee have no independent right of their own to enforce any right of their own and they can only enforce those rights which the original party was in a position to enforce or when policy itself enabled the legal representative/nominee to exercise any specific right against the Insurer. Such is not the case here.
Learned counsel for the appellant then lastly argued on equity and contended that it would be a harsh case, if the appellant is denied the relief in this case because despite she/her late husband paying some installments of premium in time were deprived of the benefit arising out of the policy due to some delay on their part in paying the installment.
True it is and we also have sympathy but having regard to the nature of legal position arising in the case, it does not appear possible to grant any relief to the appellant in these proceedings.
Before parting with the case, we, however, wish to observe that in case, if the LIC has any scheme, circular, or discretionary powers to give/extend any monetary benefit (whether partially or fully) to the legal representatives/nominee then appellant�s case should be considered sympathetically within the parameters for finding out as to whether she can be extended any kind of monetary benefit?
This we observe because we find that appellant or her late husband did not indulge in any kind of fraud or/and manipulation either before obtaining of policy or while it was in force to secure any illegal monetary benefit. The only fault, if at all, on their part was some delay in not paying one yearly installments of premium on the due date. We, however, leave the issue at this stage.
It is with these observations, we find no merit in the appeal which fails and is, accordingly, dismissed, in limine.
No cost.