Delhi District Court
Smt. Nisha vs Smt. Krishna on 23 December, 2020
IN THE COURT OF HARVINDER SINGH,
SENIOR CIVIL JUDGECUMRENT CONTROLLER,
SOUTHWEST DISTRICT, DWARKA COURTS, NEW DELHI.
JUDGMENT
Smt. Nisha W/o Late Sh. Omveer, D/o Sh. Hansraj, R/o RZ - 347/F - 6, Raj Nagar Part - II, Near Ration Card Office, New Delhi - 110 045. ..................Plaintiff Versus Smt. Krishna W/o Sh. Prem Raj R/o RZ - 347/F - 6, Raj Nagar Part - II, Near Ration Card Office, New Delhi - 110 045. .................Defendant SUIT FOR RECOVERY OF RS.2,83,899/ (TWO LAKH EIGHTY THREE THOUSAND EIGHT HUNDRED NINETY NINE ONLY) DATE OF INSTITUTION : 15.05.2018 DATE OF FINAL ARGUMENTS : 16.12.2020 DATE OF DECISION : 23.12.2020
1. Vide this judgment, this Court shall decide the present suit filed by plaintiff for recovery of Rs.2,83,899/ alongwith pendentelite and future interest @ 18% per annum and for costs of litigation against the defendant. CASE OF PLAINTIFF Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.1 of 11
2. Succinctly, the case of plaintiff side as discernible from her pleadings is that plaintiff is daughterinlaw of defendant. Plaintiff was married to son of defendant namely Sh. Omveer on 01.02.2013 and he expired on 05.07.2015 due to braintumer. Husband of plaintiff was having a life insurance policy bearing no.484498799 with Life Insurance Corporation of India (hereinafter referred to as LIC). Defendant was nominee in said policy. After death of husband of plaintiff, defendant received a sum of Rs.5,67,798/ as nominee of said LIC policy. The plaintiff being wife of deceased has equal share in estate/debt of the deceased. The deceased has left behind only two first class legalheirs, the plaintiff and the defendant. Plaintiff is entitled to one half of share of insurance amount which the defendant has not shared with her, hence, this suit.
MISCELLANEOUS PROCEEDINGS
3. The plaintiff initially filed this suit against present defendant and arraying LIC as defendant no.02. Summons of the suit were issued to both defendants. Written statements were filed by defendants. The defendant LIC moved an application under Order 1 Rule 10 of The Code of Civil Procedure, 1908 (hereinafter referred to as CPC) for deleting its name from array of parties which was allowed vide order dated 24.04.2019 and defendant LIC was deleted from array of parties. CASE OF DEFENDANT
4. Succinctly, the case of the defendant as discernible from her pleadings is Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.2 of 11 that the suit is not maintainable as plaintiff has suppressed material facts. Plaintiff has no right, title or interest in the amount of policy received by defendant as deceased Omveer had voluntarily appointed defendant as nominee in said policy. The plaintiff never took care of her ailing husband whereas defendant and her other family members spent around Rs.40,00,000/ on his treatment. The defendant however admitted that deceased Omveer was related to plaintiff as her husband and he expired on 05.07.2015. He was having policy no.484498799 of LIC. Defendant was nominee in said policy and received the amount of policy as averred by plaintiff. The defendant however denied the other averments of suit of plaintiff, prayed the plaint of plaintiff is false and frivolous and has been filed with intent to grab the property of defendant.
ISSUES FRAMED
5. After completion of pleadings, following issues were framed by my scholarly predecessor vide order dated 31.05.2019 :
(i) Whether plaintiff is entitled for decree of declaration for declaring the plaintiff rightful legal heir and owner of the one half amount of LIC insurance owned by deceased husband of the plaintiff to the tune of Rs.2,83,899/? OPP
(ii) Whether plaintiff is entitled for decree of recovery of liquidated amount of half of the insurance amount alongwith future interest @ 18% per annum? OPP
(iii) Whether the defendant no.01 being the mother of deceased is entitled for equal share in death benefits of deceased? OPD Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.3 of 11
(iv) Whether by virtue of the fact that the mother is the nominee of LIC policy is entitled for entire policy amount? OPD
(v) Whether Rs.40 Lakh was spent by mother of the deceased on the treatment of deceased? OPD
(vi) Relief.
PLAINTIFF SIDE EVIDENCE
6. In order to prove her case, plaintiff has examined herself as PW1, tendered her examinationinchief vide affidavit Ex.PW1/1 reiterating almost similar facts as of her pleadings and exhibited documents i.e. Aadhar Card as Ex.PW1/A, copy of Marriage Card Ex.PW1/B and Death Certificate of deceased Omveer as Ex.PW1/C in her evidence. PW1 was crossexamined by Ld. Counsel for the defendant which is not reproduced herein for sake of brevity. PW1 was examined and discharged. No other witness was examined by plaintiff side. DEFENDANT SIDE EVIDENCE 7.1 Defendant examined herself as DW1, tendered her examinationinchief vide affidavit Ex.DW1/1 reiterating almost similar facts as of her pleadings and marked copy of her passbook as Mark 'A' in her evidence. She also deposed in her affidavit that plaintiff has received amounts of Rs.2,42,297/ and Rs.37,571/ as death benefits/amount of provident fund of deceased Omveer. DW1 was crossexamined by Ld. Counsel for the plaintiff which is not reproduced herein for sake of brevity. DW1 was examined and discharged.
Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.4 of 11 7.2 Sh. Prem Raj was examined as DW2 by defendant who tendered his affidavit Ex.DW2/1 as his examinationinchief wherein he supported the case of the defendant. In gist, he has deposed in his examinationinchief that the deceased Omveer voluntarily appointed defendant as his nominee in his policy in question as he intended to provide said amount to his mother/defendant only. The deceased Omveer has shown his intention to provide the amount of LIC policy to defendant in his presence and in presence of other family members. He also deposed that the plaintiff has received amounts of Rs.2,42,297/ and Rs.37,571/ as death benefits/amount of provident fund of deceased. DW2 was crossexamined by Ld. Counsel for the plaintiff and was discharged. No other witness was examined by defendant. 7.3 Final arguments from both sides heard. Written submissions filed by defendant side also perused and considered.
FINAL ARGUMENTS/SUBMISSIONS/CONTENTIONS 8.1 It is submitted/contended by the plaintiff side that the defendant side has admitted that the plaintiff is also classI legalheir of deceased Omveer being his wife alongwith defendant. Defendant has also admitted to have received the amount of Rs.5,67,798/ of the insurance policy of deceased Omveer, therefore, the defendant is bound to share half of amount received by her. It is submitted that suit of the plaintiff be decreed with interest and costs of the suit.
8.2 Per contra, it is submitted/contended by defendant side that the defendant Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.5 of 11 has admitted to have received Rs.2,42,297/ of EPF of late Sh. Omveer. She has also admitted to be receiving pension of Rs.2,700/ per month. The plaintiff has also admitted that her inlaws spent a lot of money on the treatment of deceased Omveer. The defendant and her other family members have spent more than Rs.40 lakh on the treatment of deceased Omveer. It is submitted/contended that in given circumstances, the plaintiff is not entitled for amount claimed vide present suit and the suit be dismissed with costs.
8.3 Submissions of both sides considered.
ISSUE WISE DISCUSSION Issue no.(i) & (ii) 9.1 Since, issues no.(i) and (ii) are related and interlinked with each other and can be decided by way of common discussion, therefore, they are taken up together. The onus of proving said issues was upon the plaintiff. It is not disputed that deceased Omveer was husband of the plaintiff and the son of defendant. It is also not in dispute that the plaintiff and defendant are only classI legalheirs of the deceased Omveer as per The Hindu Succession Act, 1956. It is also not in dispute that the deceased Omveer was having insurance policy bearing no.484498799 of LIC in which defendant was nominee. It is also not in dispute that deceased Omveer expired on 05.07.2015. It is also not in dispute that defendant received Rs.5,97,798/ of said policy. The Section 39 of The Insurance Act, 1938 governs the sphere of nomination Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.6 of 11 in life insurance policies. Now, the question is whether the nominee in an insurance policy is entitled to retain the whole amount or the amount of insurance received by nominee is the estate of deceased and is governed by intestate succession/testamentary succession after death of policy holder as the case may be. 9.2 Hon'ble Supreme Court of India in division bench decision of "Sarbati Devi Vs. Usha Devi", (1984) 1 SCC 424 has held as under : "12...............We approve the views expressed by other High Courts on the mentioning of Section 39 of the act and held that the mere nomination made under Section 39 of the act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only undertakes the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them." 9.3 In view of the above cited decision of Hon'ble Supreme Court of India, it is clear that a nominee in a life insurance policy only indicates the hand which is authorize to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount payable under policy becomes part of estate of deceased which is governed by law of succession applicable to him if there is no testamentary disposition qua it. The Section 39 of The Insurance Act, 1938 does not operate as a third kind of succession which can be styled as a statutory testament. A nominee cannot be treated as being equivalent to heir or legatee. The amount received under the policy, therefore, can be claimed by heirs of the assured in accordance with law of succession governing them. In view of said preposition, the Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.7 of 11 plaintiff is certainly entitled to receive half of the amount of Rs.5,67,798/ being first class legalheir equivalent to the defendant. Hence, the issue no.01 is decided in favour of plaintiff and against the defendant holding that plaintiff being first class legalheir of deceased Omveer is entitled to half of the insurance amount received by defendant equivalent to Rs.2,83,899/. Now, as far as question of interest is concerned, the plaintiff has prayed vide prayer clause (b) for grant of interest @ 18% per annum till its realization. The plaintiff has further claimed pendentelite and future interest without actually demanding any specific pendentelite and future rate of interest with costs vide his prayer clause (c). The plaintiff has not lead any evidence to show how she is entitled to interest @ 18% per annum. The transaction in question is certainly not a commercial transaction. In given circumstances, only nominal pendentelite interest @ 6% per annum could be granted to the plaintiff upon principal amount of Rs.2,83,899/. As far as future interest is concerned, the same could also be granted 6% per annum only as per Section 34 of CPC. Hence, the said two issues are decided in favour of plaintiff and against the defendant in abovesaid terms. Issue no.(iii), (iv) & (v) 9.4 Since, issues no.(iii), (iv) and (v) are related and interlinked with each other and can be decided by way of common discussion, therefore, they are taken up together. If we go through the written statement of defendant then the defendant while admitting herself to have received the above stated insurance amount has Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.8 of 11 averred in para no.02 of her preliminary objections that the plaintiff has received the death benefits of deceased Omveer and has not shared them with the defendant. She has further averred in para no.04 of her preliminary objections that she and her other family members have spent around Rs.40 lakh on the treatment of deceased Omveer. Except those averments, there are no other averments in the written statement of the defendant setting up any case of legal setoff, or counterclaim or equitable setoff. The Order 8 Rule 6 CPC provides for legal setoff. For setting up a case for legal set off, the conditions; (a) the suit must be for recovery of money; (b) the sum of money must be ascertained; (c) such sum must be legally recoverable by defendant or all defendants; (d) it must be recoverable by the defendant or defendants from plaintiff or all the plaintiffs; (e) it must not exceed pecuniary jurisdiction of the Court in which suit is brought and both the sides should fill the same character in the claim of setoff as they fill in the plaintiff's suit needs to be fulfilled. Now, if we consider the averments of the written statement of defendant, the defendant has nowhere claimed as to what is the exact amount which she wants to setoff against the claim of the plaintiff. If we even consider that the defendant has mentioned a sum of Rs.40 lakh to have been spent on the treatment of deceased Omveer and have impliedly said that half of the said amount was payable by plaintiff, even then the said setoff could not have been claimed by defendant in this Court being beyond the pecuniary jurisdiction of this Court. As far as counterclaim which is governed by Order 8 Rule 6A to 6G of Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.9 of 11 CPC is concerned, the counterclaim being an independent and separable claim from the claim of the plaintiff has to be brought by way of cross action. The counter claimant has to come up with a specific case and has to pay requisite Court fees on such a counterclaim which is certainly not the case here. Further even a counter claim should not exceed the pecuniary jurisdiction of the Court, hence, certainly the defendant has not brought a counterclaim in the present suit. If we further consider the case of the defendant being a case of equitable setoff, the equitable setoff cannot be claimed as a matter of right and further equitable setoff can be claimed only when cross demand arise out of same transaction which is certainly not the case here. The plaintiff claims share from amount of insurance policy whereas defendant claims amount from EPF funds and amounts spent on treatment of deceased. In given circumstances, this Court is of the opinion that these issues were inadvertently and unnecessarily framed in this suit without proper pleadings and case being put up in proper manner. As far as the contention of the defendant side qua admission of the plaintiff to have received the EPF amount and that the defendant and her other family members have spent a lot of money on the treatment of deceased Omveer is concerned, it is the settled preposition of law that no amount of evidence will help any party in civil suit in absence of pleadings. Reliance can be placed upon full bench decision of Hon'ble Supreme Court of India in matter of "Diraji @ Brijraji & Anr. Vs. Surya Pratap & Ors." Civil Appeal No.48834884 of 2017 decided on Nisha Vs. Krishna etc. CS No.597/2018 [23.12.2020] Page No.10 of 11 03.11.2020. In view of above discussions, it is clear that no proper pleadings have been put up by defendant for any legal setoff or counterclaim or equitable setoff in this case. Hence, there is no need for any discussion upon said issues and they are left undecided accordingly as if they were not framed in this case. CONCLUSION/RELIEF
10. In view of above discussions, the suit of plaintiff is hereby decreed. A decree for principal sum of Rs.2,83,899/ (Rupees Two Lakh Eight Three Thousand Eight Hundred Ninety Nine Only) alongwith pendentelite and future interest @ 6% per annum is passed in favour of plaintiff and against the defendant. Plaintiff shall also be entitled for costs of the suit. Decree sheet be prepared accordingly. File be Digitally signed consigned to Record Room after due compliance. by HARVINDER HARVINDER SINGH SINGH Date:
Announced in the open Court 2020.12.23
15:54:04 +0530
on 23.12.2020.
(HARVINDER SINGH)
SCJcumRC/SouthWest,
DWK/ND/23.12.2020
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