IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 AS.No. 719 of 1999(D) --------------------- OS.945/1995 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S)/THIRD DEFENDANT: -------------- THE MANAGER, LIFE INSURANCE CORPORATION OF INDIA, IRINJALAKUDA BRANCH. BY ADV. SRI.S.EASWARAN RESPONDENT(S)/PLAINTIFF & DEFENDANTS 1, 2 AND 4: --------------- 1. SHEEJA, W/O.LATE VALLIYIL SIVADAS, PAZHUVIL DESOM, KURUMBILAVU VILLAGE, THRISSUR TALUK. 2. BALAN, S/O.VALLIYIL KUNHIRAMAN, PAZHUVIL DESOM, KURUMBILAVU VILLAGE, THRISSUR TALUK. 3. SUBHADRA, W/O.VALLIYIL BALAN, -DO- -DO- 4. THE SOUTH INDIAN BANK, ALAPPAD BRANCH, REP. BY THE MANAGER, SOUTH INDIAN BANK, ALAPPAD. ADV. SRI.N.P.SAMUEL FOR R2 & R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- A.S.No.719 of 1999 -------------------------------------- Dated this the 9th day of February, 2009. JUDGMENT Heard counsel for the appellant and respondents 2 and 3. There is no appearance for the first respondent. 2. This appeal arises from the judgment and preliminary decree passed by learned II Additional Sub Judge, Thrissur in O.S.NO.945 of 1995. As per the judgment and preliminary decree under challenge, court below found that first respondent, wife of the deceased (insured) is entitled to get half of the sum assured with the appellant and half of the amount deposited by the deceased with the fourth respondent. Appellant/third defendant is aggrieved by the judgment and preliminary decree to the extent the court below found that there is concluded contract of insurance between the appellant and the deceased (insured) and therefore the appellant is liable to pay half of the sum assured to the first respondent. 3. When the appeal came up for hearing today, learned counsel for appellant submitted that on ex gratia basis, appellant is prepared to pay the sum assured to the legal heirs of the deceased (insured) and sought four weeks' time to deposit the amount in the court below. Learned counsel also sought for permission to withdraw this appeal. A.S.No.719/1999 2 4. Learned counsel for respondents 2 and 3 submitted that as found by the court below, respondents 1 and 3 are the legal heirs of the deceased (insured) and therefore, the court below ought to have granted decree for partition in favour of the third respondent, the mother of the deceased (insured) as well. 4. I find from paragraph 11 of the judgment under challenge that the learned Additional Sub Judge observed that respondents 1 and 3 are the legal heirs of the deceased and that the second respondent being only a nominee under the policy could only collect the money due under the policy for and on behalf of the legal heirs. Counsel for the appellant submits that in case respondents 2 and 3 made an application claiming half of the sum assured under the policy, the appellant is prepared to disburse that portion of the sum assured to the second and third respondents. The submission is recorded. Resultantly, this appeal is dismissed as withdrawn as below in the light of the submission made by the learned counsel for appellant. (i) Appellant shall deposit in the court below half of the sum assured under the policy together with the entire proportionate cost awarded by the court below (directed to be paid by the appellant) for payment to the first respondent within four weeks from this day. A.S.No.719/1999 3 (ii) On such deposit, the first respondent can withdraw the said amount. (iii) It is made clear that it will be open to the second and third respondents to make appropriate claim before the appellant for half of the sum assured under the policy in the light of the observations made in paragraph 11 of the judgment under challenge. (iv) Parties shall suffer their cost in this appeal. C.M.P.No.719 of 1999 will stand dismissed. THOMAS P.JOSEPH, Judge. cks A.S.No.719/1999 4 Thomas P.Joseph, J. A.S.No.719 of 1999 JUDGMENT 9th February, 2009.