Sarojini Gopalan v. M/S Indian Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 1935** ## **WP(C).No. 29762 of 2012 (U)** **----------------------------** **PETITIONER(S):** **--------------------------** **SAROJINI GOPALAN AGED 72 YEARS W/O.THANDASSERY GOPALAN, MUTTICHOOR DESOM, P.O.PADIYAM PADIYAM VILLAGE, THRISSUR TALUK THRISSUR DISTRICT 680641.** **BY ADVS.SRI.K.PADMANABHAN SRI.A.D.RAVINDRA PRASAD** **RESPONDENT(S):** **----------------------------** **M/S. INDIAN BANK K.D.S.BUILDING, SWARAJ ROUND EAST THRISSUR-REPRESENTED BY CHIEF MANAGER 680001.** ## **BY ADV. SRI.S.EASWARAN, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29762 of 2012 (U)** **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1 TRUE COPY OF FIXED DEPOSIT RECEIPT NO.TS/BTDK 0966039 DATED 25.11.2008 ISSUED BY RESPONDENT.** **EXT.P2 TRUE COPY OF THE F.I.R NO.347/2003 DATED 22.11.2003 FILED BY ANTHIKKAD POLICE STATION BEFORE THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE NO.II, THRISSUR.** **EXT.P3 TRUE COPY OF THE REPRESENTATION DATED 05.09.2008 SUBMITTED BY THE FIRST PETITIONER TO THE RESPONDENT** **EXT.P4 TRUE COPY OF THE LETTER DATED 24.02.2011 ISSUED BY THE RESPONDENT BANK.** ## **RESPONDENT'S EXHIBITS** ## **NIL** R.AV TRUE COPY PA TO JUDGE ## **C.T.RAVIKUMAR.J. =================** ## **W.P.C.NO.29762 of 2012** ## **=====================** Dated this the 24[th] day of July 2013. ## **JUDGMENT** ## **-----------------** The petitioner who is a widow filed this writ petition with prayers to issue a direction to the respondent Bank to effect payment of the family pension and also to arrange to pay the fixed deposit amount to her made by her late husband as per Ext.P1. The circumstances that constrained the petitioner to approach this Court with the aforementioned prayers are as follows:- - (i) Issue a direction to the respondent Bank to effect payment of the family pension to the petitioner and also arrange to pay the fixed deposit amount to the petitioners vide Ext.P1 receipt treating that the pensioner Gopalan is presumed to be dead as per Section 108 of Evidence Act, by issuing writ of mandamus or any other writ order or direction. - (ii)Issue appropriate writ order or direction to the respondent to grant interest on the amount payable to the petitioner. 2. The petitioner's husband Gopalan became a pensioner of the respondent Bank on 30.06.1994 and while in service he made a fixed term deposit of an amount of Rs.1,92,810/- with the respondent, Bank. Ext.P1 is a copy of the fixed deposit receipt. The 2 **W.P.C.NO.29762 of 2012** petitioner's husband Gopalan left the house on 27.10.2003 and the specific contention of the petitioner is that thereafter nothing was heard about him till date by the petitioner as also the near relatives, of the said Gopalan. The contention of the petitioner is that in the case of a missing person of whom nothing was heard for the past seven years in terms of the provisions Under Section 108 of the Indian Evidence Act it has to be presumed that the said person is dead. In other words, by virtue of the said provisions, in the case of such persons a presumption of death has to be taken. It is specifically contended by the petitioner that immediately after the missing of the said Gopalan the petitioner lodged a complaint before the Anthikad Police Station and consequently Crime No.347/2003 under the caption 'man missing' was registered. After the culmination of the investigation Ext.P2 final report was laid before the Court of the Judicial First Class Magistrate-II, Thrissur on 26.03.2004. It is stated therein that though the Police conducted a thorough enquiry they could not find out the missing person. Indisputably, in this case since, the missing of the petitioner's husband Gopalan a period of seven years has lapsed and nothing was heard about him. The investigation conducted by the police also remained futile. In such circumstances one can draw only a presumption in tune with 3 **W.P.C.NO.29762 of 2012** the provisions under Section 108 of the Indian Evidence Act, 1872. When once the presumption of death is taken by virtue of the provisions under Section 108 of the Indian Evidence Act that would definitely make the petitioner herein entitled to receive the pension. It is an admitted position that from 27.10.2003 onwards the amount payable towards the pension of the petitioner's husband said Gopalan was not disbursed. The prayer of the petitioner is that the said Gopalan has to be presumed as dead in the light of the provisions under Section 108 of the Indian Evidence Act and to give appropriate directions to the respondent Bank to disburse the family pension to the petitioner along with arrears. 2. As noticed hereinbefore the further contention of the petitioner is that her late husband had made a term of fixed deposit Rs.1,92,810/- on 09.09.2003 as is obvious from Ext.P1 receipt and that the said amount is liable to be returned to the petitioner. A statement has been filed on behalf of the respondent. The facts that the husband of the petitioner was an employee of the respondent Bank and that he retired from his service 30.06.1994 and also that he was missing from 2003 onwards are not at all in dispute. It is stated that the presumption on death under Section 108 of the Indian Evidence Act regarding the death 4 **W.P.C.NO.29762 of 2012** of the person could be presumed only when such a question is called upon to be decided in a Court of Law. It is also the contention of the respondent that for sanctioning family pension there should be a declaration to that effect in terms of Section 108. It is fairly admitted by the learned counsel appearing for the respondent that if a presumption under Section 108 of the Indian Evidence Act is permissible to be taken in the case on hand and such a declaration is made the respondent would take appropriate steps in the matter of disbursement of family pension to the petitioner. With respect to the claim of the petitioner for the returning of the fixed deposit amount covered by Ext.P1 it is submitted that if the original of Ext.P1 is produced, after identifying the nominee the amount would be disbursed. It is also submitted by the learned counsel appearing for the respondent that in case the original of Ext.P1 is not available with the petitioner a certificate showing the details of the legal heirs and also a no objection from such legal heirs for disbursement of the amount to the petitioner the amount could be disbursed to the petitioner. The learned counsel appearing for the petitioner relied on the decision of this Court in **Mariamma Samuel v. State of Kerala reported in 2013 (2) KLT 418.** In view of the fact that a crime was registered immediately after the missing of the said 5 **W.P.C.NO.29762 of 2012** Gopalan, the husband of the petitioner and a final report was filed before the Competent Court after conducting an investigation to the effect that nothing was heard about the whereabouts of the said person I am of the view that a presumption permissible to be drawn in view of the provisions under Section 108 of the Indian Evidence Act could be drawn in this case. Accordingly, the respondent is directed to take appropriate steps for granting family pension to the petitioner in accordance with law presuming that the petitioner's husband Gopalan is dead. Steps to disburse the arrears payable to the petitioner shall also be taken and such amounts shall be disbursed expeditiously. In the matter of the claim of the petitioner for the amount covered by Ext.P1 receipt to be opened to the petitioner to produce the original of Ext.P1 before the respondent. In case the original of Ext.P1 is produced before the respondent steps for the disbursement for the amount covered by Ext.P1 together with the interest accrued thereon shall be disbursed to the petitioner. In case the original of Ext.P1 is not available the petitioner has to produce a certificate showing the names of the legal heirs and their relation with the deceased person from a competent authority and also a letter concerned from such other legal heirs authorizing for disbursing the amount to the petitioner. In case such certificate along with the consent 6 **W.P.C.NO.29762 of 2012** are produced before the respondent, the respondent shall disburse the amount in terms of the above direction. This writ petition is disposed of accordingly. ## **C.T.RAVIKUMAR, JUDGE** R.AV