JUDGMENT : The defendants in O.S.No.7 of 2000 on the file of the Principal District Munsif, Kuzhithurai are the appellants in this second appeal. 2. One N.Nagappan Nair who is no more filed the said suit challenging the order of recovery dated 08.03.1999 and for directing the appellants herein by way of decree of mandatory injunction to pay him his entire gratuity amount with interest without any deduction. The appellants herein filed written statement controverting the plaint averments and opposing the grant of the suit relief. The learned trial Judge framed the necessary issues. The plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A11. On the side of the defendants, a witness was examined. Ex.B1 to Ex.B6 were marked. After a consideration of the evidence on record, the learned trial munsif vide judgment and decree dated 29.10.2003 set aside the order of recovery dated 08.03.1999 passed by the Deputy Director, Health and Preventive Medicine, Nagercoil. Aggrieved by the same, A.S.No.3 of 2004 was filed by the defendants before the Sub Court, Kuzhithurai. The first appellate court vide judgment and decree dated 07.08.2009 dismissed the appeal with cost. Challenging the same, this second appeal came to be filed. Though the second appeal was filed way back in the year 2010, only notice was ordered and it has not been admitted till date. 3. The learned counsel appearing for the appellants reiterated all the contentions set out in the memorandum of grounds and called upon this Court to admit this second appeal after formulating the necessary substantial question of law and set aside the impugned judgments and decree. 4. Per contra, the learned counsel appearing for the legal heirs of the deceased plaintiff submitted that no substantial question of law arises for consideration. 5. I carefully considered the rival contentions and went through the evidence on record. The deceased plaintiff was working as driver in the Health Department of the Government of Tamil Nadu. He was an Ex-service man. He was to retire on 30.04.1998. A day prior to the date of retirement, while he was reversing the official jeep bearing registration No.TMK-1738, it fell into a ditch and suffered damage. The plaintiff also sustained injuries. Since he was to retire on the next day, his claims had to be settled. The issue on hand arose just a day earlier. A day prior to the date of retirement, while he was reversing the official jeep bearing registration No.TMK-1738, it fell into a ditch and suffered damage. The plaintiff also sustained injuries. Since he was to retire on the next day, his claims had to be settled. The issue on hand arose just a day earlier. The plaintiff undertook before the authorities that the damage suffered by the vehicle which was to the tune of Rs.20,476/- could be deducted from his service benefits. The gratuity dues payable to the plaintiff was Rs.39,556/-. Out of the said sum, Rs.20,476/- with withheld by the appellants and the balance amount alone was paid. The plaintiff challenged the order whereby the said amount was withheld and he sought payment of the balance amount also. 6. The learned Government Advocate would submit that if the plaintiff had not agreed for recovery, certainly, he would not have been allowed to retire. Because he gave an undertaking, he was allowed to retire. The principle of estoppel would clearly operate against him. The plaintiff was allowed to retire only because he gave such a specific undertaking. Having enjoyed the benefit of undertaking, he cannot be now allowed to go back on the same. 7. Though this submission of the learned Government Advocate is certainly persuasive and appeals to me, in the facts and circumstance, I am not inclined to interfere. What happened was a pure accident. If the Government vehicle had been insured, he would not have been fastened with any liability. That apart, this Court can very well imagine the position in which the plaintiff was placed. He was to retire on 30.04.1998. The accident had taken place on 29.04.1998. He had also suffered injuries and was taking treatment. Under such stressful circumstances, he must have given a letter of undertaking that a sum of Rs.20,476/- can be deducted from his service benefits. It is well settled that the principle of waiver can be pressed against the person only if it was voluntary and the person was fully aware of the consequences. Considering the situation in which the plaintiff was placed, I am not in a position to hold that the plaintiff had voluntarily given such a letter of undertaking. In any event, the courts below have concurrently held against the appellants. No substantial question of law arises for consideration. Considering the situation in which the plaintiff was placed, I am not in a position to hold that the plaintiff had voluntarily given such a letter of undertaking. In any event, the courts below have concurrently held against the appellants. No substantial question of law arises for consideration. The plaintiff is also no more and his legal heirs alone are on record. Therefore, the second appeal is dismissed. If the balance gratuity amount has not been disbursed sofar, the appellants are directed to disburse the same at the earliest together with interest payable at the statutory rate. No cost. Consequently, connected miscellaneous petition is closed.