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2014 DIGILAW 713 (MAD)

A. Gayathri v. National Insurance Co. Ltd.

2014-03-21

V.DHANAPALAN

body2014
Judgment : 1. Heard Mr. N.L. Rajah, learned counsel for the petitioner and Mr. Raghunath, learned counsel for M/s. T.S. Gopalan & Co., appearing for the respondent. 2. The petitioner has filed this writ petition for a direction to the respondent to release 50% of the terminal benefits of late Dr. S. Ashok Kumar amounting to Rs.20,05,493.96 (Rupees Twenty Lakhs Five Thousand Four Hundred Ninety Three and Ninety Six Paise only) due and payable to the petitioner along with interest @ 9% p.a. from the date of receipt of the said amount into their account till date of deposit of the amount to her account without insisting on production of an order under Section 10 of Guardians and Wards Act, 1890. 3. The case of the petitioner in a nut-shell is as follows :- (3a) The mother and natural guardian, namely, Mrs. S.S. Geetha Ramani of petitioner / minor daughter A. Gayathri had married to one Dr. S. Ashok Kumar on 14.09.1988 and out of their wedlock, they were blessed with two daughters viz., A. Lekha Priya aged about 21 years and A. Gayathri, aged about 15 years. Subsequently, due to difference of opinion, their marriage ended in divorce and a decree dissolving their marriage was also passed on 28.11.2010. (3b) In the meantime, after passing of the decree of dissolution of marriage, it was diagnosed that Dr. S. Ashok Kumar had cancer. Though divorce was granted, mother of petitioner had taken care of him. Consequently, since Dr. S. Ashok Kumar had not remarried any one after divorce, he did not also make any alterations or changes in the nominations with respect to terminal benefits due to his legal heirs from the respondent. Thereafter, the said Dr. S. Ashok Kumar had passed away on 13.07.2012 and therefore, the mother of petitioner forwarded an application along with necessary papers including a copy of the decree for divorce, for release of terminal benefits in the name of Dr. S. Ashok Kumar's children. Apart from that, a copy of both legal heirship certificate dated 07.08.2012 and general power of attorney executed in the name of mother by her elder daughter A.Lekha Priya, who had left for USA to pursue her higher studies, were also appended. (3c) Since there was no reply to the said application, an email dated 21.09.2012 requesting the respondent to settle the terminal benefits was sent by her. (3c) Since there was no reply to the said application, an email dated 21.09.2012 requesting the respondent to settle the terminal benefits was sent by her. In the meantime, an Investigator, by name M/s. Vasu Associates was appointed by the respondent, who in turn requested the mother of petitioner to send certain documents primarily relating to the divorce proceedings. Inspite of handing over all the documents, the respondent apprehended that there might be some claim from others. Thereafter, the mother of petitioner received a letter from the respondent dated 22.01.2013 for production of following documents: "Succession Certificate is required for two daughters (being legal heirs of late Dr. S. Ashok Kumar to share the benefits amongst themselves equally) viz. Ms. A. Lekha Priya, Age 22 years and Ms. A. Gayathri, Age 14, being a minor (after obtaining appointment of guardian certificate as per point No.2, mentioned below, as no succession could be issued in favour of minor), separately or jointly as the case may be from the appropriate Court. Being the second daughter viz. Ms. A. Gayathri, being a minor, the Proof of guardianship is to be obtained from appropriate Court in respect of minor daughter as per Guardian and Wards Act, 1890, from yourself (i.e. mother) showing yourself as Legal Guardian of Ms. A. Gayathri, as claimed by you." A reply dated 08.02.2013 was also sent to the above letter along with a legal opinion from an Advocate, which states as under: "i) There is no need or requirement for Geetha Ramani to be appointed as Guardian of minor Gayathri as he is a natural guardian, on death of Ashok Kumar, even if a divorcee as her status as mother commends itself to it automatically. ii) In any case by orders dated 28.11.2010 Family Court, Chennai has vested legal custody with Geetha Ramani of the minor daughter and to which Ashok Kumar himself was a party and hence any fresh appointment as guardian was not required at all. iii) As for Succession Certificate, in the face of clear evidence that Ashok Kumar having died intestate, only the two daughters being entitled for the same and as such there is no need for the same at all. iii) As for Succession Certificate, in the face of clear evidence that Ashok Kumar having died intestate, only the two daughters being entitled for the same and as such there is no need for the same at all. iv) Legally, if there is a genuine rival claim (and not mere rival claim, please note) with basis, a Succession Certificate could be sought for and not otherwise as held in AIR 1990 Bom 255 , which is good law throughout India. v) If at all, NIC, could as a matter of abundant caution, send a letter to the siblings/rival claimants that they would be disbursing the terminal benefits to the two children within 3 or 4 weeks unless the rival claimants produce any order of a court of law to the contrary and place the burden rightly on the so called claimants. vi) NIC can safely accept the claim of the two daughters and settle 50% to the major daughter based on the Power of Attorney issued by her and the balance 50% being deposited in any Nationalized Bank until Gayathri attained majority with Geetha Ramani as guardian thereof, being the natural guardian. There is thus no scope or need for the claimants to produce either Guardianship Certificate for Geetha Ramani to represent minor daughter Gayathri or produce Succession Certificate for settlement of terminal benefits of the deceased employee either in fact or in law." Despite a clear reply, once again a letter dated 04.04.2013 was received at her end requesting to furnish following documents: "i. Indemnity Bond executed by each daughter pertaining to their share of terminal benefits. ii. Proof of guardianship obtained in your favour for the minor daughter. It is also informed by our Head Office that the entire amount of minor's share be deposited in Fixed Deposit Account of Minor with Guardian till the attainment of majority (date of attainment of majority 13.06.2016). iii. Your declaration that you do not prefer any claim in respect of any benefits of late Dr. S. Ashok Kumar in Non-Judicial Stamp Paper duly notarised." (3d) It is submitted that from the above, it was evident that the respondent had no real intention of relaxing their stand and was not inclined to relent from insisting on production of proof of guardianship in respect of her daughters. However, a further communication dated 22.07.2013 was received from the respondent informing as follows: "1. However, a further communication dated 22.07.2013 was received from the respondent informing as follows: "1. Settlement and release of the terminal dues of Late Dr. S. Ashok Kumar to the extent 50% share in favour of Ms. Lekha Priya, (elder daughter) on the basis Indemnity Bond being one of the two legal successors. -Kindly send us the bank accounts details of Ms. Lekha Priya to effect NEFT credit. 2. With regard to the balance 50% share in favour of Ms. Gayathri, minor daughter of late Dr. S. Ashok Kumar, our HO advices are yet to be complied with. Hence you are advised to obtain an order under S.10 of Guardian and Wards Act, 1890, to act as a legal guardian. Further as advised earlier, the share of minor must be deposited in fixed deposit account amount of minor (under the guardianship of her mother, so appointed by the Competent Court till the attainment of her majority. Regarding Point No.1 above, we shall send us our detailed statement of payments and recoveries before making NEFT credit to Ms. Lekha Priya's account. Regarding Point No.2 above, kindly comply with the above instructions and send us the order as required by our H.O. After submission of the same, the share amount of minor Ms. A. Gayathri will be deposited into the bank of your choice as Fixed Deposit." (3e) It is further submitted that directions in respect of para 1 of letter dated 22.07.2013 were duly complied with by executing necessary indemnity bond and all other documents and in the month of August, 2013, a sum of Rs.20,14,486.96 (Rupees Twenty Lakhs Fourteen Thousand Four Hundred Eighty Six and Ninety Six paise only), being 50% of the terminal benefits was deposited in the name of her first daughter Ms. A. Lekha Priya by way of RTGS transfer to her bank account. (3f) It is submitted by the mother of petitioner that inspite of her several requests and various communications to release the terminal benefits due to her second daughter without insisting upon any order under Section 10 of the Guardian and Wards Act, 1890, the respondent has arbitrarily and unreasonably failed to release the amount due to the petitioner / minor daughter. Therefore, the mother of petitioner is before this Court seeking for the above direction. 4. A counter has been filed by the respondent, wherein it has been stated that one Dr. Therefore, the mother of petitioner is before this Court seeking for the above direction. 4. A counter has been filed by the respondent, wherein it has been stated that one Dr. S. Ashok Kumar (hereinafter referred to as the "employee"), who was employed as Divisional Manager in the Company's Divisional Office at Tuticorin, married to Mrs. S.S. Geetha Ramani and had two daughters. On 14.10.1992, the said employee had nominated his mother Mrs. Padma Sundarajan and his wife Mrs. Geetha Ashok Kumar to receive 50% each of the Provident Fund accumulation in case of his death, while in employment and on 27.02.1997, he cancelled the previous nomination and appointed his wife Mrs. Geetha Ashok Kumar alone to receive the full amount of accumulations, standing to his credit in the provident fund, in case of death. 4a. It is stated in the counter that on 18.07.2012, the respondent received a fax message from Mrs. S.S. Geetha Ramani informing about the death of her husband Dr. Ashok Kumar on 13th July, 2012 and she requested the Company to issue application for settlement of PF and Gratuity as nominee of the employee, which was duly signed by her daughter Lekha Priya. At the same time, on 25.07.2012, the respondent also received a letter from one Mr. S. Gowthaman, claiming to be the brother of the said employee and informing that the employee had divorced his wife and an order dated 28.12.2010 passed in O.P.No.1350 of 2010 by the learned 1st Additional Family Court, Chennai to that effect was also enclosed. A perusal of which order revealed that the relationship was stained, that the employee and his wife were living separately from 03.05.2003 onwards and that the said Mrs. S.S. Geetha Ramani had filed O.P.No.2414 of 2003, claiming alimony. The said order also revealed that the employee had obtained visitation rights in respect of his minor daughter and that the said Mrs. S.S. Geetha Ramani had agreed not to take away her minor child abroad without getting permission from the Court. 4b. It is the stand of the respondent in the counter that on receiving the letter from Mr. S. Gowthaman only, the respondent came to know about the divorce of the said Mrs. S.S. Geetha Ramani with the employee and as such, she could not make a request for payment in the capacity of nominee as stated in her letter dated 18.07.2012. S. Gowthaman only, the respondent came to know about the divorce of the said Mrs. S.S. Geetha Ramani with the employee and as such, she could not make a request for payment in the capacity of nominee as stated in her letter dated 18.07.2012. Even on 11.08.2012, the said Mrs. S.S. Geetha Ramani sent one more letter requesting to treat the employee's absence from 19.04.2012 to 12.07.2012 as on sick leave, wherein also, she had not disclosed the fact of her divorce with the employee. After sending an application on 10.08.2012 for payment of gratuity to her daughters, vide an email dated 21.09.2012 addressed to the Chief Manager, Personnel Department of the respondent at its Head Office, for the first time, she disclosed that she had legally divorced on 28.11.2010. Since she claimed that the employee had not remarried, that his parents were no more and that she was entitled to the benefits of the employee, the respondent made a local investigation regarding the claims. 4c. It is also the stand of the respondent that in view of the totality of the circumstances and substantial sum of about Rs.40,00,000/- involved, the Company could not rule out the claim from persons other than children by reason of any testament. On legal advice, it was deemed prudent that appropriate indemnities should be obtained in respect of payment to the major daughter and the amounts should be disbursed to her. In respect of the money due to the minor daughter, it can be paid to a person acting for and on behalf of the minor as her guardian duly appointed through the process of Court and a guardianship certificate was also advised. It was only in these circumstances that a sum of Rs.20,05,493/- was paid to the major daughter after obtaining an indemnity and the Company called for a guardianship certificate for payment on behalf of minor daughter. 4d. It is further stated in the counter that the amount payable to the minor daughter was substantial and the money was minor's individual property. Mrs. S.S. Geetha Ramani had obtained orders for the custody of the person of the minor and not her property. In view of the marital discord and separate living and the proceeding referred to in the order of the Family Court, it was necessary to avoid any claim from any person acting as the next friend of minor. Mrs. S.S. Geetha Ramani had obtained orders for the custody of the person of the minor and not her property. In view of the marital discord and separate living and the proceeding referred to in the order of the Family Court, it was necessary to avoid any claim from any person acting as the next friend of minor. The respondent company had to obtain a valid discharge to obviate future claims from the minor herself. It was only in these circumstances, a guardianship order from the Court of appropriate jurisdiction was sought for. Calling for such evidence of Guardianship from a Court of competent jurisdiction was just and necessary, which was in accordance with law and in the interest of the minor. There was nothing illegal or improper in requesting production of such a guardianship certificate and when an appropriate and efficacious alternative remedy was available in the form of petition under Guardians and Wards Act, the respondent could not direct Mrs. S.S. Geetha Ramani to obtain a direction from this Hon'ble Court. 4e. The stand taken in the counter is that the respondent Company was always ready and willing to pay over the money owned to the minor to the right person representing the interests of the minor. Since the respondent had no legal duty to investigate the capacity or competence of Mrs. S.S. Geetha Ramani to represent the minor or expertise or resources to do so, the Company sought for a Guardianship Certificate from a Competent Court. Moreover, there was no provision to disburse amounts to persons claiming to represent the minors without insisting upon production of appropriate orders from Courts of appropriate jurisdiction. Final stand taken in the counter by the respondent is that the respondent Company will disburse money owned to the minor on the directions of this Court to the person to whom such payment is directed. 5. Learned counsel for the petitioner has submitted that insofar as the benefits due to late Dr. S. Ashok Kumar are concerned, Mrs. Final stand taken in the counter by the respondent is that the respondent Company will disburse money owned to the minor on the directions of this Court to the person to whom such payment is directed. 5. Learned counsel for the petitioner has submitted that insofar as the benefits due to late Dr. S. Ashok Kumar are concerned, Mrs. Geetha Ramani, mother of the petitioner is the natural guardian of minor daughter and therefore, in order to safeguard the interest of her minor daughter A. Gayathri and without prejudice to the rights of the parties, the amount pertaining to her minor daughter / petitioner may be ordered to be deposited in a separate bank account standing in her daughter's name with due permission to the mother of petitioner to withdraw the interest accrued thereon for the welfare of her minor daughter. 6. Mr. Raghunath, learned counsel for the respondent Insurance Company has contended that in absence of any guardianship certificate, the respondent Insurance Company has no authority at all to disburse the benefits to the natural guardian of a minor. The substantial portion of the amount due and payable to the minor daughter is construed as her individual property and even though Mrs. S.S. Geetha Ramani had obtained orders for the custody of the said minor, she is not entitled to administer the property of her minor daughter. In view of the marital discord and separate living and the proceeding referred to in the order of the Family Court, it was necessary to avoid any claim from any person acting as the next friend of minor. He has however submitted that on the direction of this Court, the respondent company is prepared to deposit the amount without prejudice to the rights of parties, on receipt of necessary indemnity bond from the mother / natural guardian. 7. I have heard the learned counsel appearing for the parties and perused the material documents available on record. 8. A careful scrutiny of the affidavit filed in support of this writ petition reveals that Mrs. S.S. Geetha Ramani had married to one Dr. S. Ashok Kumar, an employee in the respondent insurance company, pursuant to which, two daughters were born to them, namely, A. Lekha Priya aged about 21 years and minor daughter / petitioner A. Gayathri, aged about 15 years. S.S. Geetha Ramani had married to one Dr. S. Ashok Kumar, an employee in the respondent insurance company, pursuant to which, two daughters were born to them, namely, A. Lekha Priya aged about 21 years and minor daughter / petitioner A. Gayathri, aged about 15 years. Later on, their marriage was dissolved by the 1st Additional Family Court, Chennai on 28.11.2010. After some time, Dr. S. Ashok Kumar had become prey to cancer and died intestate on 13.07.2012. Thereafter, entire problem arose as to the entitlement and disbursement of terminal benefits of the Dr. S. Ashok Kumar, since the deceased had not remarried any one after divorce and also not made any alterations or changes in the nominations with respect to terminal benefits due to his legal heirs from the respondent. While the request for release of 50% of the terminal benefits in the name of her first daughter was acceded to by the respondent, the release of another 50% due to her 2nd daughter, who is a minor, was declined owing to non existence of proper guardianship certificate. After several rounds of correspondences and communications, finding no other efficacious and effective remedy, the petitioner represented by her mother / natural guardian has filed this writ petition, seeking for release of the amount into her account without insisting on production of an order under Section 10 of Guardians and Wards Act, 1890 and to render justice. 9. When the matter was taken up for hearing on 14.03.2014, learned counsel for the petitioner sought time to file an affidavit on behalf of mother / natural guardian for indemnifying the quantum. Accordingly, today the petitioner has come out with an affidavit of undertaking, wherein it has been stated as under: "1. I am the mother and natural guardian of my daughter A. Gayathri and being aware of the facts of the case do hereby solemnly affirm and sincerely state as follows: 2. I humbly state that I had filed the present Writ Petition on behalf of my daughter, A. Gayathri, praying this Hon'ble Court to issue a writ, order or direction in the nature of a writ of Mandamus directing the Respondent to release 50% of the terminal benefits of late Dr. I humbly state that I had filed the present Writ Petition on behalf of my daughter, A. Gayathri, praying this Hon'ble Court to issue a writ, order or direction in the nature of a writ of Mandamus directing the Respondent to release 50% of the terminal benefits of late Dr. S. Ashok Kumar amounting to Rs.20,05,493.96/- (Rupees Twenty Lakhs Five Thousand Four Hundred and Ninety Three and Ninety Six Paise only) due and payable to the petitioner along with interest @ 9% Per annum from the date of receipt of the said amount into their account till date of deposit of the amount to her account without insisting on production of an order under Sec.10 of Guardians and Wards Act, 1890 and to render justice. 3. I humbly state that the Respondent in Para 14 of their Counter Affidavit have also clearly agreed to abide by the orders of this Hon'ble Court subject to protection of the minor's interest and also discharge of company's interest upon payment. 4. I state that my priority is also to safeguard the interest of my daughter A. Gayathri and therefore I have no objection in opening a separate bank account in the name of my daughter A. Gayathri and depositing the terminal benefits of Late Ashok Kumar as fixed deposit in the name of my daughter till she attains the age of majority and till then use the proceeds from fixed deposit for her education and other requirements. 5. In the circumstances, it is prayed that this Hon'ble Court may be pleased to issue a writ, order or direction in the nature of a writ of Mandamus directing the Respondent to release 50% of the terminal benefits of late Dr. S. Ashok Kumar amounting to Rs.20,05,493.96/- (Rupees Twenty Lakhs Five Thousand Four Hundred and Ninety Three and Ninety Six Paise only) due and payable to the petitioner along with interest @ 9% Per annum from the date of receipt of the said amount into their account till date of deposit of the amount to her account without insisting on production of an order under Section 10 of Guardians & Wards Act, 1890 and thus render justice." 10. In the light of the above and keeping in view the fact that a rigid insistence of strict statutory interpretation may not be conducive for the growth of the child and also taking into consideration the fact that it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and growth of the child, this writ petition is disposed with following directions: 1. National Insurance Company Limited / respondent herein shall, within a period of three weeks from the date of receipt of a copy of this order, deposit 50% of the terminal benefits of late Dr. S. Ashok Kumar amounting to Rs.20,05,493.96/- (Rupees Twenty Lakhs Five Thousand Four Hundred Ninety Three and Ninety Six Paise only) along with interest @ 9% per annum from the date of receipt of the said amount into the Company's account till date of deposit of the amount in the name of A. Gayathri under Fixed Deposit scheme in any one of the Nationalised Banks till her attainment of majority without insisting on production of any order under Section 10 of the Guardians & Wards Act, 1890; 2. The mother / natural guardian of A. Gayathri is hereby permitted to withdraw the interest alone accrued thereon once in three months for her minor daughter's education and other requirements; and 3. The petitioner A. Gayathri, on attaining majority, is entitled to withdraw the full amount of her share on production of necessary certificate in proof of her majority with prior intimation to the respondent. No costs. Consequently, the connected miscellaneous petition is closed.