S.H.A.RAZA, J. - (1.) Mrs. Aqeela Kamal widow of late Kamal Ahmad, who claims that her maiden name was Aqeela Bano, and was married to Sri Kamal Ahmad on 25/04/1976, by means of this writ petition, has prayed for the issuance of a writ in the nature of mandamus commanding the Oriental Fire and General Insurance Company Ltd. and its Divisional Manager to pay the amount due to her under policy bearing No.22117/ 41/ 52/ 83/ 00017. The said policy wasPersonal Accident Policy for a sum of rupees fifty thousand. It was averred that the husband of the petitioner had taken the aforesaid policy in his name and the petitioner was nominated as the nominee in the said policy. In the said policy after the words 'nominee', the name of the petitioner was mentioned asMrs. Quila Kamal wife of the Insured.
(2.) Besides the above, Late Sri Kamal Ahmad, the husband of the petitioner also got himself insured with another policy No.59332252 with Life Insurance Company of India, in which the petitioner was nominated by Sri Kamal Ahmad in her maiden name Aqila Bano. On 25-2-1984, the petitioner's husband met with an accident and expired on 13-3-1984. Whereupon, the petitioner being the nominees stated her claim before the Divisional Manager Oriental Fire and General Insurance Company Limited well within a fortnight from the date of the demise of her husband. By means of the letter dated 4-3-1986, opposite party No.2 informed the petitioner that her claim had met with the approval subject to the submission of succession certificate from the judicial authorities. Petitioner informed the Divisional Manager of the said Insurance Company that her late husband had made a nomination in her favour in two policies mentioned above and in one policy in which the Insurer was Life Insurance Company Limited of India, the payments had already been made to her. She requested that the payment should be made to her without insisting on production of succession certificate. In its letter dated 31-3-1986, the Divisional Manager stated that in the policy pertaining to life Insurance Company of India insured nominated Aqila Bano. The petitioner was asked to explain astowhether said Aqila Bano was another claimant or there were two claimants for the reason that in the Oriental Fire and General Insurance Company's policy, the Insured nominated Aquila Kamal. On 4-4-1986, the petitioner informed the Divisional Manager that when her late husband took up the policy with the Life Insurance Corporation. Insurer looked into Nikahnama of the petitioner in which her name was entered as Aquila Bano, and for that reason her late husband nominated her in the name of Aquila Bano. But, as after the marriage, surname of her husband was added to the name of the petitioner, hence in the policy in question, her husband nominated her in the name of Aquila Kamal. She had clearly stated in her application that the petitioner was the only claimant for the policy in question. In that regard she also produced before the Divisional Manager-opposite party No.2, a photo-state copy of the Nikahnama.
(3.) In the counter-affidavit, it was stated that Head Office of the Insurance Company has sent instructions to the effect that a nominee was not entitled for being paid insurance amount until and unless a succession certificate was produced before them. It was also stated that under Section 39 of the Insurance Act, the settled position of law was that until and unless the succession certificate was furnished, no payment could be made particularly on the basis of nomination. It was also indicated that it did not stand to reason as to why the nomination was made in the maiden name of the petitioner after the marriage. It was also stated that Section 39 is not applicable to the present case, inasmuch as, the policy has been issued under category of miscellaneous insurance business as defined under S.2(13) of the Act. Sections 38 and 39 of the Act refer to the assignment or transfer in respect of the policy of Life Insurance and do not apply to personal accident insurance policy. It was also indicated that there was no statutory protection to the nominees in respect of the policies issued under miscellaneous insurance business. Hence, the petitioner was not entitled to be paid insurance amount on the basis of nomination made in the accident policy.;