Delhi District Court
Smt. Indrawati Devi W/O Late D.S. Mishra vs Indraprastha Medical Coroporation Ltd on 20 May, 2010
1
IN THE COURT OF SH. LOVLEEN, CIVIL JUDGE: DISTRICT CENTRAL-
04:DELHI.
Suit no. 1153/06
IN THE MATTER OF:
1. Smt. Indrawati Devi w/o late D.S. Mishra,
R/o 39, Krishna Vihar, Najafgarh, Delhi.
2. Sh. Ramendra Mishra/ S/o late Sh. D.S. Mishra,
R/o 39, Krishna Vihar, Najafgarh, Delhi ..... PLAINTIFF
VERSUS
1. Indraprastha Medical Coroporation Ltd.
(Indraprastha Apollo Hospital New Delhi)
A joint Sector Venture of Delhi Administration, Sarita Vihar, Delhi-Mathura Road,
New Delhi-110044.
Through its Managing Director;
2. United India Insurance Co. Ltd.
Vasant Vihar, near Priya Cinema,
Vasant Vihar, New Delhi ....DEFENDANT
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
Date of institution: 07.04.1999.
Date on which judgment was reserved: 20.05.2010.
Date of pronouncement of the judgment: 20.05.2010.
JUDGEMENT
1. The plaintiffs has filed the present suit for declaration and mandatory injunction.
2. Briefly stated the facts of the case are that one Sh. Daya Shankar Mishra Suit No. 1153/06 page 1 of 10 2 (hereinafter referred to as 'deceased') was the employee of defendant no. 1 as a Security Supervisor. The plaintiffs are the wife and the son of the deceased. The defendant no. 2 is the insurance company who insured the employees of the defendant no. 1. It is stated by the plaintiffs that the defendant no. 1 was satisfied with the work and conduct of the deceased and had been paying him a salary of Rs. 4,044/- per month. The defendant no. 1 had obtained an insurance in respect of the deceased, after deducting the contribution from the salary of deceased, with the defendant no. 2 for a sum of Rs. 1,50,000/-. On 23.02.1997, the deceased had gone to his native place with the permission of defendant no. 1 and he was murdered there. Thereafter the plaintiffs being the legal heirs of the deceased, had approached the defendant no. 1 for providing benefits admissible to the LRs of the deceased employee and also for the payment of plaintiff no. 2 on compassionate grounds. Although the defendant no. 1 paid some amount in the sum of about Rs. 4,000/- to the plaintiffs and assured the plaintiff no. 1 that the plaintiffs would be given the insurance amount and also that the plaintiff no. 2 shall be appointed on compassionate grounds. However, in the month of August, 1998, the defendant no. 1 refused to appoint plaintiff no. 2 and in the month of September, 1998 the defendant no. 2 had declined the payment of insured amount to the plaintiffs. A legal notice was served upon the defendant no. 1 in this respect. However, except for paying a sum of Rs. 1,861/- the defendants have not paid the dues admissible to the plaintiffs being the LRs of their deceased employee. The defendant no. 1 has also failed to appoint the plaintiff no. 2, in place of the deceased, on compassionate grounds. Hence, the present suit has been filed.
3. Written Statement has been filed on behalf of defendant no. 1 wherein defendant has taken the preliminary objection that the present court has no Suit No. 1153/06 page 2 of 10 3 pecuniary jurisdiction to try the present suit; that suit of the plaintiff has not been properly valued; that the present suit is not maintainable in view of Section 41 (J) of the Specific Relief Act and defendant no.1 further submits that the scheme of group insurance obtained by the defendant no. 1 (i.e. The employer) from the defendant no. 2 was non-contributory and the premium in respect thereof was paid by the defendant no. 1 only. It is further submitted by the defendant no. 1 that the deceased was murdered and therefore the defendant no. 2 had rejected the claim of the plaintiffs for the payment of insurance amount citing the exception clause in the policy. It is further averred by the defendants that the relief for the appointment of plaintiff no. 2 on compassionate grounds is not maintainable; that no cause of action has accrued in favour of the plaintiffs and against the defendants; that the plaintiff has not approached this Court with clean hands. Rest of the averments contained in the plaint are denied by the defendant no. 1.
4. The defendant no. 2 never appeared in pursuance to the summons served upon it and was proceeded exparte on 10.01.2000.
5. Replication was filed on behalf of plaintiff to the written statement of defendants in which the averments made in the written statement have been denied and averments made in the plaint have been reaffirmed.
6. From the pleadings of the parties, the following issues were framed on 17.05.2010.
ISSUE No. 1. Whether the plaintiff is legally entitled to the recovery of the insurance amount as claimed in the plaint?OPP.
ISSUE NO. 2. Whether the plaintiff is entitled to a decree for mandatory injunction Suit No. 1153/06 page 3 of 10 4 as prayed?OPP.
RELIEF.
7. In support of his case, the plaintiff has examined herself as PW-1 and relied upon documents Ex. PW1/A i.e. Legal notice, Ex. PW1/B Postal Receipts, Ex. PW1/C AD Cards and certified copy of post mortem report as PW1/D. The plaintiff also examined PW-2 Shri Shiv Kumar s/o Sh. Jai Kishan who placed on record the document Ex. PW2/1 i.e. Letter of appointment of deceased, PW2/2 joining report, PW2/3 final settlement of dues in respect of deceased, PW2/4 final settlement amount paid by the accounts department, PW2/5 one office circular, PW2/6 Issuance policy, the receipt of payment of the premium of group accident insurance policy as Ex. PW2/7. The plaintiff also examined Ms Sharma Assistant, Divisional Manager, United India Insurance company Ltd as PW3 who placed on record documents Ex. PW3/1 i.e. Copy of office record, PW3/2 Copy of claim.
On the other hand, the defendant has examined Sh. Gopal Nath s/o late Sh. Mohan Nath and relied upon documents DW1/1 i.e Policy, DW1/2 i.e. Letter dated 17.03.1997.
8. I have heard the final arguments addressed by both the parties and perused the material available on record. My issuewise findings are as under:-
9. ISSUE No. 1.
Whether the plaintiff is legally entitled to the recovery of the insurance amount as claimed in the plaint? OPP.
The onus to prove this issue is upon the plaintiff. The case of the plaintiff Suit No. 1153/06 page 4 of 10 5 is that the deceased was under the employment of defendant no. 1 and had died during the tenure of his service when he went to his native place after taking leave from defendant no. 1. The defendant no. 1 had obtained a group accidental insurance policy in respect of its employees from the defendant no. 2. The deceased was also covered by the above said group accidental insurance policy obtained by the defendant no. 1. However after the death of the deceased when the plaintiffs approached the defendants for the payment of the insurance amount and also for the appointment of plaintiff no. 1 on compassionate grounds in place of the deceased, the defendant no. 1 wrongfully refused to appoint plaintiff no. 2 on compassionate grounds. Later on the defendant no. 1 informed the plaintiffs that the defendant no. 2 has refused to honor the insurance claim of the plaintiffs in respect of the death of the deceased.
The defendant no. 1 has contested the claim of the plaintiffs on the ground that firstly that the group insurance policy was obtained by defendant no. 1 in respect of its employees from the defendant no. 2 but the premium of the said insurance policy was paid only by the defendant no. 1 and nothing was ever deducted towards premium by defendant no. 1 from the salary of the deceased. It is further averred by the defendant no. 1 that the claim filed by the plaintiffs with the defendant no. 2 was rejected by the defendant no. 2 on the ground that the deceased was murdered and the same was covered within the exception clause of the insurance policy. The defendant no. 2 has never appeared to contest the claim of the plaintiff despite service of summons.
I have gone through the deposition/ testimony of the witness PW1 who has deposed on the same lines as in the plaint. The cross examination conducted by the defendant no. 1 on the abovementioned witness has been pointed mainly towards the cause and circumstances leading to death of the deceased. The witness PW2 Suit No. 1153/06 page 5 of 10 6 examined by the plaintiffs in support of their case has filed certain documents i.e. the letter of appointment as Ex. PW2/1. However, the witness PW2 has stated in his deposition that the deceased was insured in the sum of Rs. 1.5 lakh as he fell in category no. 2 of the policy. The witness PW3 has merely placed on record the insurance policy along with the insurance claim as filed by the plaintiff no. 2.
On the other hand, the defendant has examined DW1 in support of its case and has deposed to the effect that the claim raised by the plaintiffs in respect of the insurance amount was rejected by the defendant no. 2 on the ground that the death of the deceased was not an accident (being a murder). The witness DW1 has further deposed that the other dues which were admissible, have already been paid to the plaintiffs.
The ld. counsel for the plaintiffs has argued that it is admitted by the defendant no. 1 that the insurance claim of the plaintiff was rejected by the defendant no. 2 on the ground that the deceased was murdered. Since the defendant no. 2 has remained exparte throughout, therefore, this court may presume that the defendant no.2 has no defence to state and may decide whether the plaintiffs would be entitled to the insurance claim in respect of the death of the deceased. The ld. counsel for the defendant no. 1 submits that it is the defendant no. 2 who has to pay the insurance claim and if this court is satisfied that the claim of the plaintiffs was wrongly rejected by the defendant no. 2 then defendant no. 1 has no role to play in respect of the insurance claim. However the ld. counsel for the defendant no. 1 has submitted that the claim of the plaintiffs was rejected by the defendant no. 2 on the ground that 'murder' of the deceased brings the claim of the plaintiffs within the exception clause. The ld. counsel for the plaintiffs has argued that the defendant no. 2 has inappropriately rejected the claim of the plaintiff as the same is covered within the term 'accident'. In this regard, I am enlightened by the Suit No. 1153/06 page 6 of 10 7 judgement passed by the Hon'ble Apex Court in (2000) 5 Supreme Court Cases 113 titled as "Rita Devi & Ors Vs New India Assurance Co. Ltd", wherein it has been observed at para 10 that:-
"The question, therefore, is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder"
which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
The Hon'ble Apex Court had categorised the case where the murder could be an accident and where not, for the purposes of claims under the Motor Vehicles Act, 1998. The unrebutted testimony of PW1 is on record, which is to the effect that the deceased died in a scuffle between the relatives when some party was trying to take possession of certain land. The act of the alleged perpetrators of murder is not in question but it appears that the intention of the alleged perpetrators was to take possession of land. Hence I am of the opinion that the murder of the deceased Suit No. 1153/06 page 7 of 10 8 would be covered with the term "accident" and the plaintiff must be held entitled to the insurance claim for the amount for which the deceased was insured.
It has been ruled out by the National Consumer Disputes Redressal Forum in III(2008) CPJ 120 (NC) Maya Devi Vs LIC after discussing the law exhaustively that "even will ful murder of insured is an accident" From the above citations, it is clear that the factum of murder of the deceased wil not be covered under the exception clause of the group insurance policy issued by the defendant no. 2 to the defendant no. 1 in respect of the employees of defendant no. 1. Hence, the defendant no. 2 is liable to pay the insurance claim to the plaintiffs as per rules. Hence the present issue is decided in favour of the plaintiffs and against the defendant.
10. ISSUE NO. 2.
Whether the plaintiff is entitled to a decree for mandatory injunction as prayed? OPP.
The onus to prove this issue is upon the plaintiffs. The plaintiff has sought a mandatory injunction against the defendant no. 1 to the effect that the defendant no. 1 may be ordered to appoint the plaintiff no. 2 in place of the deceased on compassionate grounds. The ld. counsel for the plaintiffs has relied upon DCLR 2002 (1) Delhi -01 Hetram & Ors vs Union of India & Ors. On the other hand, the ld. counsel for the defendant no. 1 has argued that no obligation exists in favour of the plaintiffs and against the defendants whereby the injunction as prayed for by the plaintiffs could be issued against the defendant no. 1 . The ld. counsel for the defendant no. 1 has submitted that the appointment letter issued to the deceased by the defendant no. 1 does not contain such a term as pleaded by the plaintiffs and since it is simple contract for service between the defendant no. 1 and the deceased, Suit No. 1153/06 page 8 of 10 9 the terms contained therein have to be construed strictly and in the absence of anything which could support the claim of the plaintiff no. 2 for appointment on compassionate basis, the plaintiffs cannot be granted the relief claimed by them.
I have heard the arguments raised by the scholarly counsel for the parties. The counsel for the plaintiff has relied upon Hetram & Ors V Union of India and Ors (supra) but the same is not applicable to the present facts and circumstances as the plaintiff has failed to place on record any material/ circular issued by the defendant no. 1 whereby any family member of their deceased employee (in case of premature death) was to be appointed in his place, as was the case in the citation referred to by him. The citation relied upon by the ld. counsel for the plaintiffs cannot be of any aid to the case of the plaintiffs as the same is concerning the policy decision of a statutory body i.e. Railways, whereas the case in hand pertains to a private service contract. In my opinion, this court cannot import new term in the contract entered into between the parties. The appointment letter Ex. PW2/1 does not contain any provisions for appointment of an heir of a deceased employee in his place on compassionate basis. It is a settled law in civil jurisprudence that the plaintiff has to stand upon its own legs. In the absence of any material in support of the case of the plaintiff, the present issue is decided against the plaintiff and in favour of the defendants.
11. RELIEF.
In view of my discussion on the above issues, a decree for declaration is passed in favour of the plaintiffs and against the defendant to the effect that the plaintiffs are legally entitled for the recovery of the insurance claim to the tune of Rs. 1,50,000/- from the defendant no. 2. The defendant no. 2 shall release the Suit No. 1153/06 page 9 of 10 10 above mentioned amount to the plaintiff jointly within one month from today along with interest @ 6 per cent p.a. from the filing of this suit i.e. 07.04.1999 till the date of its realisation. Costs are also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the open court today i.e. on 20.05.2010 (LOVLEEN) (Total pages 1 to 10 ) CJ/DistrictCentral-04/20.05.2010. Suit No. 1153/06 page 10 of 10 11 Suit NO. 1153/06 20.05.2010 Present: None.
Vide my separate judgement announced and dictated in the open Court, the su it of the plaintiff is decreed and a decree for declaration is passed in favour of the plaintiffs and against the defendant to the effect that the plaintiffs are legally entitled for the recovery of the insurance claim to the tune of Rs. 1,50,000/- from the defendant no. 2. The defendant no. 2 shall release the above mentioned amount to the plaintiff jointly within one month from today along with interest @ 6 per cent p.a. from the filing of this suit i.e. 07.04.1999 till the date of its realisation. Costs are also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
(LOVLEEN)
CJ/DistrictCentral-04/20.05.2010
Suit No. 1153/06 page 11 of 10