IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).No. 2849 of 2008(L) -------------------------------------- PETITIONER(S): ----------------------- MRS. GITA SUBBA RAO, PLOT NO.139, "SEATARA", KUMARANASAN NAGAR, COCHIN-682 020. BY ADV. SRI.T.L.ANANTHASIVAN, SMT.VANAJA MADHAVAN. RESPONDENT(S): -------------------------- 1. LIFE INSURANCE CORPORATION OF INDIA, REPRESENTED BY ITS DIVISIONAL MANAGER, D.A.BRANCH, ERNAKULAM. 2. P. BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA, BRANCH OFFICE II, ELIAS CHAMBERS, MARKET JUNCTION, BANERJI ROAD, ERNAKULAM-682 018. R1 & R2 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2849/2008-L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT DATED 15/03/2007 IN TEST CASE NO.1/2007-R. EXT.P2: COPY OF THE TWENTY YEAR MONEY BACK POLICY WITH PROFITS TAKEN BY LATE DR.A.N. SUBHA RAO AS EARLY AS 6/8/85. EXT.P3: COPY OF THE LETTER WRITTEN BY THE 2ND RESPONDENT ADDRESSED TO THE PETITIONER. EXT.P4: COPY OF THE CLAIMANTS STATEMENT DULY FILED BY THE PETITIONER IN CLAIM FORM A DATED 17/10/2007. EXT.P5: COPY OF THE RECEIPT BY THE CENTRAL POLICE STATION, ERNAKULAM DATED 01/09/1999. EXT.P6: COPY OF THE COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 15/11/2007. EXT.P7: COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 11/01/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.2849/2008-L ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 14th day of September, 2010 J U D G M E N T The writ petition is filed by the petitioner seeking for a direction to the respondents to make the payment of the amount covered under Ext.P2 insurance policy which was due for payment as early as on 06/02/2005. 2. The case of the petitioner is that her husband, Dr.A.N.Subba Rao had taken an insurance policy No.66481751, under the caption 'Twenty Year Money Back Policy with Profits', in the year 1985, for a sum of Rs.1,00,000/- and she was the nominee. His whereabouts were not known from August 1999 and all her efforts to trace him out did not succeed. He was working as a Neurosurgeon in the Medical Trust Hospital, Ernakulam. He had executed a Will dated 15/05/1989 in favour of the petitioner, and their son and daughter. Since the petitioner's husband's whereabouts were not known for a period of more than seven years, she filed an application for grant of Letters of Administration with the Will annexed. This Court, by Ext.P1 Judgment granted relief. It was held that since he was not heard for more than seven years after he disappeared, it is presumed, under Section 108 of the Evidence Act, that Dr.A.N.Subba Rao is dead. Thereafter, the petitioner W.P.(C). No.2849/2008 -:2:- approached the first respondent for the insurance amount which had matured on 06/02/2005 and the original policy was also handed over, a copy of policy is produced as Ext.P2 herein. It shows that the she is the nominee under the policy. Various correspondences ensued and finally, by Ext.P7, she was informed to produce legal evidence of title from a court of law. According to her, in spite of production of all documents and the claim statement the respondents refused to make the payment. It is in these circumstances, she has sought for a direction for payment of the amount covered by the policy with bonus and interest. 3. The respondents have filed a counter affidavit. It is pointed out in the counter affidavit that even though the petitioner was the nominee, the policy was assigned to the Housing Development Finance Corporation Ltd on 12/09/1989 and it was re-assigned by HDFC Ltd to the life assured on 29/12/1999. Thereafter, there was no fresh nomination under the policy. Therefore, in the absence of a fresh nomination, the petitioner is not entitled for release of the amounts of the policy. It is further pointed out that if there is no nomination of the policy, the title is open and claim has to be settled to the legal representatives/heirs of the deceased policy holder who W.P.(C). No.2849/2008 -:3:- prove title to the policy moneys. The said requirement has not been satisfied by the petitioner. 4. The learned counsel for the petitioner raised various contentions pointing out that a reading of Ext.P1 Judgment will show that this Court had drawn the presumption under Section 108 of the Evidence Act to hold that Dr.A.N.Subba Rao is dead. After appreciating the evidence adduced, this Court was satisfied that Ext.P6 Will produced therein, has been proved in accordance with law as one duly executed by late Dr.A.N.Subba Rao. Accordingly, Letters of Administration with Ext.P6 Will attached was ordered to be issued. It is pointed out that in the light of the same, title of the petitioner and children has been proved. It is further pointed out that as policy has been re-assigned as evident from the endorsement in Ext.P2 itself, the nomination survives going by the effect of the proviso to Section 39(4) of the Insurance Act, 1938 (for short 'the Act'). It is also pointed out that being the legal representative, she is entitled to claim the above amount. It is pointed out that there is no merit in the contentions raised by the respondents. 5. Section 38 of the Act relates to Assignment and transfer of insurance policies. The nomination by a policy W.P.(C). No.2849/2008 -:4:- holder is covered by Section 39 of the Act. Sub-section 4 of Section 39 of the Act reads as follows:- (4) A transfer or assignment of a policy made in accordance with section 38 shall automatically cancel a nomination: [Provided that the assignment, of a policy to the insurer who bears the risk on the policy at the time of the assignment, in consideration of a loan granted by that insurer on the security of the policy within its surrender value, or its reassignment on repayment of the loan shall not cancel a nomination, but shall affect the rights of the nominee only to the extent of the insurer's interest in the policy.] Going by Sub-section 4 of Section 39 of the Act once there is assignment of a policy in accordance with Section 38, there will be an automatic cancellation of the nomination. Going by the the proviso to Sub-section 4 of Section 39, when an insurer bears the risk on the policy at the time of assignment, in consideration of a loan granted by that insurer on the security of the policy within its surrender value, or its reassignment on repayment of the loan shall not cancel a nomination, but shall affect the rights of the nominee only to the extent of the insurer's interest in the W.P.(C). No.2849/2008 -:5:- policy. Therefore, in such cases, when there is a re- assignment, it will not cancel the nomination. Herein, going by the endorsement in Ext.P2, there is a re- assignment of the policy. Of course, there is no fresh nomination. But, still going by the proviso of the Act, in the light of the re-assignment, the nomination will actually resurrect. 6. At any rate, the said issue need not deter this Court from granting the relief, in the light of the fact that the husband of the petitioner had been declared as dead as per Ext.P1 by drawing the presumption under Section 108 of the Evidence Act. Ext.P1 Judgment is in favour of the petitioner and her children. Going by the same, the Letters of Administration has been issued with Ext.P6 Will therein. Naturally, when a person is dead, going by the terms of the policy itself, the legal representatives are entitled for the benefit of the policy. Therefore, evidently, Ext.P1 will come to the help of the petitioner in the light of the fact that Dr.A.N.Subba Rao is declared as dead by this Court. Further, in the light of Ext.P1, the title to the property is also established. Section 273 of the Indian Succession Act embodies this principle. 7. There is no dispute that the petitioner is the wife of Dr.A.N.Subba Rao. The objection whether the W.P.(C). No.2849/2008 -:6:- petitioner should have filed a suit and not a writ petition which is raised in the counter affidavit, need not deter the Court from issuing a direction when no disputed questions of facts are available for adjudication. That the policy has been issued in favour of Dr.A.N.Subba Rao and the petitioner was a nominee under the policy are not disputed. That the policy is matured is also not disputed. In that view of the matter, the Corporation being a public authority, this Court will be justified in issuing a mandamus. Further the writ petition was admitted and was pending for the last more than two years. 8. The learned counsel for the petitioner placed reliance upon the Judgment of the Bombay High Court in W.P. (C).No.999/2006 to point out that in similar circumstances, after drawing the presumption under Section 108 of the Evidence Act, the Bombay High Court directed the Corporation to pay the petitioner therein the entire sum assured with accrued bonus and interest at the rate of 12% per annum from 13/11/1995 till payment. 9. Herein, the policy has matured in the year 2005 and the amount remains with the Corporation even now. Therefore, actually, the petitioner will be entitled for the payment of reasonable interest also for the delayed payment. Therefore, the writ petition is allowed. There W.P.(C). No.2849/2008 -:7:- will be a direction to the first respondent to disburse the amount covered by policy No.66481751 (sum assured) along with accrued bonus and interest at the rate of 8% per annum from 06/02/2005 till the date of payment. Since it is pointed out that the petitioner's daughter's marriage is scheduled to be held in November, 2010 the amount will be disbursed on or before 30th October, 2010. No costs. (T.R. Ramachandran Nair, Judge.) ms