Master Tanish Subramaniam And ... vs Hewlett Packard India Ltd. And ...
2008 Latest Caselaw 626 Del

ORDER

Shiv Narayan Dhingra, J.

1. Plaintiffs have filed above two suits against the defendants being suit Nos. 1872/2000 and 2205/2003. In Suit No. 1872/2000, plaintiffs claimed a decree for a sum of Rs. 30 lacs against three defendants jointly and severely. In suit No. 2205/2003, plaintiffs prayed for a decree of exemplary damages against five defendants. This Court on 21.2.2005 observed that parties in both the suits were same and relief claimed in two suits related to the payment to which the plaintiffs are allegedly entitled to, on account of death of Mr. A. Subramaniam, an employee of Hewlett Packard India Ltd., one of the defendants. In the circumstances, both the suits were consolidated for common trial. The suits were at the stage of pleadings. The issues were yet to be framed. Defendants raised objections in written statement of second suit that the two suits were based on same cause of action and second Suit No. 2205/03 was not maintainable. Defendants also filed an application under 7 rule 11 for rejection of the plaint on the ground that suit No. 2205/03 does not disclose any cause of action. The two cases were listed for framing issues on 22nd July, 2005 and following common set of issues was framed in the two suits on 17th August, 2005:

1. Whether the suit of the plaintiff is bad for non-joinder of necessary and/or proper parties? OPD-1

2. Whether there is any cause of action for filing the suit against defendant No. 1? OPP

3. Whether the defendant No. 1 was responsible to pay the charges on the Amex Card used by its employees for business travels and related business expenses and if so, to what extent? OPP

4. Whether the card holder was liable to keep the card alive when it was within his knowledge about the validity and expiration date ? OPD-1

5. Whether the Corporate Card of the deceased stood cancelled in November, 1998 and was revalidated as alleged by defendant No. 2 in his written statement? OPD- 2

6. Whether the defendant Nos. 1, 2 and 3 colluded with each other and unlawfully and intentionally denied the insurance claim of the plaintiffs ? OPP

7. Whether the defendants are jointly and severally liable for the breach of contract ? OPP

8. Whether the plaintiffs are entitled for a decree of Rs. 30 lakhs against all the defendants jointly and severally? OPP

9. Whether the plaintiffs are entitled to any interest. If yes, at what rate, amount and period? OPP

10. Whether the suit No. 2205/2003 is not maintainable in view of the provisions of Order 2 Rule 2 of the Code of Civil Procedure? OPD

11. Whether the insurance policy in question covers the circumstances of the death which preceded the death of Mr. A. Subramaniam entitling the plaintiff to make a claim involving the said insurance policy? OPP and OPD5

12. Whether the plaintiffs are entitled to the relief claimed in the plaint? OPP

2. Vide order dated 11th January, 2007, this Court treated issue Nos. 2 and 10 as preliminary issues and parties were asked to address the Court. I have heard both the parties.

3. In suit No. 2205/03, defendant No. 1 has taken the stand that no cause of action was disclosed as against defendant No. 1 and defendant Nos. 2, 4 and 5 have taken the common stand that the Suit No. 2205/2003 was barred in view of the provisions of Order 2 Rule 2 CPC. Defendant No. 1 Hewlett Packard even as per plaintiff, is a corporation duly constituted and existing under the laws of State of California, USA and was engaged in the business of providing computing and imaging solutions having its offices throughout the world. Defendant No. 3 is an Indian Company, Hewlett Packard India Ltd. incorporated under the Indian Companies Act having its office at Chandiwala Estate, Maa Anandmai Marg, Kalkaji, New Delhi. As per Plaintiffs, defendant No. 3 was a wholly owned subsidiary of defendant No. 1, under control and management of defendant No. 1 in USA. Defendant No. 4 is American Express Bank Ltd., an Indian Company under Indian companies Act, 1956. Defendant No. 5, Oriental Insurance Company Ltd. also an Indian company having its office in New Delhi.

4. Late Mr. A. Subraminiam was hired by defendant No. 3 as Dealer Accounts Manager in its Sales Division in September, 1995. Plaintiffs have described how he was a hard worker and a brilliant employee. It is stated that since Mr. A. Subramaniam had to travel extensively throughout India to get more and more customers, defendant No. 3 had procured for Mr. Subraminam an American Express Corporate Card bearing No. 3769-19437901009. One of the benefit of such Corporate Card was that it provided insurance cover for the life of the member along with many other benefits. It is submitted that due to this American Express Corporate Card, Mr. Subramaniam was covered by policy bearing No. 42/99/6013 which covered risk to the life of Mr. Subramaniam for travel tickets purchased through American Express Corporate Card and Mr. Subramaniam was insured as the member, for a sum of Rs. 30 lacs. It is stated that Mr. Subramaniam's travel was planned by defendant No. 3 and was paid through card of defendant No. 4. Mr. Subramaniam was robbed and murdered at Lucknow on 13th December, 1998 when he was traveling during the course of his employment. After death of Mr. Subramaniam, defendant No. 3 wrote a letter to defendant No. 4 requesting it to cancel the Corporate Card of deceased and it asked defendant No. 4 to furnish a copy of the insurance policy. Defendant No. 4 had an office desk in the office of defendant No. 3 and it was an established practice for defendant No. 4 to send bills for all Corporate Cards of the employees of defendant No. 3 directly. On 8th March, 1999, plaintiff claimed the sum insured by the Corporate Card from Oriental Insurance Company, defendant No. 5. However, defendant No. 5 wrote back stating that claim could not be cleared by it as the Corporate Card of the deceased had expired due to non-payment of dues in November, 1998. According to defendant No. 5, the deceased was not a valid card member on the date of mishap. Plaintiff submitted that all outstanding dues of Corporate Card were cleared by Mr. A. Subramaniam on 11th December, 1998. Additionally, it was duty and practice of defendant No. 3 to pay the annual dues and keep the cards alive and valid. Despite the fact that dues were cleared by Mr. Subramaniam, defendants continued to deny the claim and rights of the plaintiff and acted in bad faith. However, defendant No. 3 supported the claim of plaintiffs qua defendant No. 5 and vehemently argued with defendant No. 5 that the plaintiff had a valid claim for insurance and wrote letter, Annexure-E, dated 2nd September, 1999 to defendant No. 5 espousing the cause of the plaintiffs.

5. It is pleaded by plaintiffs that airline tickets of all employees of defendant No. 3 used to be booked on Corporate Card No. 3769- 19783921007 of another employee namely Ms. Natasha Gautam. This practice was being followed by defendant No. 3 with tacit understanding and consent of defendant No. 4. This practice being wanton and reckless was being deliberately followed by defendant No. 3 and 4. They allowed the card of deceased to lapse and thus conspired with defendant No. 5. It is also submitted that despite all justification given by defendant No. 3, defendant No. 5 was not willing to pay and did not pay the insurance claim. The defendants cannot walk away from their responsibilities and plaintiff must be compensated fully for outrageous conduct of the defendants and the defendants must be, for the sake of setting an example, ordered to pay exemplary damages.

6. It is pleaded that plaintiff also filed a recovery suit being suit No. 1872/00 seeking disbursement of the insured amount (Rs. Thirty Lacs) along with the interest. Defendant Nos. 3, 4 and 5 however opposed the plaintiff's rightful claim. Consequently, plaintiffs were short of funds and were not able to live day-to-day life in a dignified manner. Plaintiffs also suffered trauma of the violent incidence, emotional distress and monumental financial loss. The defendants without any just cause denied the legitimate claim of the plaintiffs. Therefore, they were liable to pay exemplary damages and the Court should set an example.

7. It is stated that the cause of action for filing suit No. 2205/2003 arose when for the first time defendant No. 3 denied the claim of the plaintiff on 7th July, 2001 (in the written statement filed in suit No. 1872/2000) and cause of action further arose for the second time when defendant No. 4 denied the claim of the plaintiffs on 24th April, 2002 by filing written statement in the suit No. 1872/2000. Similarly, cause of action against defendant No. 5 arose when defendant No. 5 filed written statement on 4th April, 2003 and denied liability to pay any amount. Defendant Nos. 1 and 2 are the parent companies of defendant Nos. 3 and 4 and they directly or indirectly control the operations and policies of defendant Nos. 3 and 4. So cause of action arose against them also. Plaintiffs did not specify what damages they were claiming and made a prayer that Court should hold that defendant No. 3 was in breach of its fiduciary duty and defendants were liable to pay exemplary damages for outrageous acts.

8. In the earlier suit No. 1872/2000, the plaintiffs had pleaded the same facts about the employment of Mr. Subramaniam with Hewlett Packard India Ltd. Mr. Subramaniam being a very competent employee and issuance of an American Express Corporate Card as a perk to him. It was pleaded that Hewlett Packard India Ltd. insured deceased against all risks while traveling as he was doing the same for the benefit and promotion of his employer. A policy of obtaining credit card by defendant No. 3 is pleaded and it is stated that deceased was covered by the same policy as stated in suit No. 2205/03 for a sum of Rs. 30 lacs. Same facts as pleaded in suit No. 2205/2003 are also there in earlier suit as to how the travel related services were given by defendant No. 4 (defendant No. 2 in suit No. 1872/2000) and all payments were made by Hewlett Packard India Ltd. under one consolidated statement including the covering of annual fees for all card members of Hewlett Packard India and the bills were sent by American Express to Hewlett Packard India directly. It was pleaded that on 13th December, 1998, Mr. Subramaniam lost his life in a case of robbery in Lucknow. He was carrying with him distribution material weighing over 50 Kgs for purposes of circulation and promotion of the company and deceased fell prey to an organized gang who thought he was carrying valuables. Same pleadings are made that Hewlett Packard India Ltd. wrote a letter to American Express, Delhi Office asking for cancellation of credit card of the deceased. It was pleaded that plaintiffs applied for insurance claim on 8th March, 1999 as in suit No. 2205/03 on the basis of holding Corporate Card at the time of his death and defendant No. 3 wrote back to the plaintiffs that claim was not cleared by them as Corporate Card has expired due to non-payment of dues in November, 1998. Hewlett Packard India Ltd. supported the claim of the plaintiffs and wrote to insurance company that Mr. Subramaniam was holding American Express Corporate Card at the time of incidence and policy nowhere mentions that card should be valid at the time of accident as alleged by insurance company.

9. It was also stated that the tickets of Mr. Subramaniam were billed to an another valid American Express Corporate Card and this card was generally used by company for business travel accounts. Plaintiffs in in suit No. 1802/2000 also pleaded that enquiries from defendant No. 1 revealed that airline tickets of all employees traveling out as well as casual visitors were booked on Corporate Card of Ms. Natasha Gautam bearing No. 3769-19783921007.

10. It was further pleaded in suit No. 1872/2000 that despite all justification given by Hewlett Packard, the insurance company was not willing to pay the insurance amount and there seemed to be a concerted effort amongst the defendants to deny the justified claim of the plaintiffs and defendant No. 1 (Hewlett Packard India) was primarily responsible along with defendant No. 2 to compensate the plaintiffs to the extent of Rs. 30 lacs and a bogus dispute has been created to help the defendant No. 3 to avoid the claim under the Insurance Policy.

11. It was stated that all the three defendants in suit No. 1872/2000 were jointly and severally liable to pay the insurance amount of Rs. 30 lacs along with the interest.

12. Prayer was made for passing a decree of Rs. 30 lacs in favor of the plaintiffs and against the defendants jointly and severally along with the 18% interest and costs of the suit.

13. A perusal of the pleadings of two suits make it abundantly clear that the facts in the two suits are identical. The plaintiffs had taken the stand in the second suit that the cause of action for filing second suit arose because defendants in the first suit denied their liability to pay the insurance claim by filing written statement in the first suit. I consider that defendants had a right to file written statement and in the written statement defendants had to give their version of the things. Denial of the claim by the defendants does not give rise to a fresh cause of action for the plaintiffs to file another suit claiming damages because of denial of claim in written statement.

14. The Oriental Insurance company had denied its liability to pay the insurance amount in its correspondence with the plaintiffs in 1999. Hewlett Packard India had been supporting the claim of the plaintiffs to recover the insurance amount from Insurance company, but at no stage before filing of the suits, had admitted its own liability to pay insurance claim. However, it had cleared all dues, other liabilities and paid around a sum of Rs. 20 lacs to the plaintiffs after the death of Mr. Subramaniam. Vide letter dated 12th August, 1999, plaintiff, Shilpa Subramaniam wrote to Mr. Himanshu of Hewlett Packard India as under:

Dear Himanshu,

Today, last of the in-house agendas of compensation from HP towards me, came to a conclusion. It will be an understatement to make, that; 'It would never have been possible without your guidance, methodicity, dynamic decision making and undaunted support'. I was down, but never broken, as a the very first meeting, you infused the spirit of hope in me by taking my cause to the right quarters.

THANK YOU, I know these words cannot express my gratitude and sentiments, for all that you have done for me! But I take this opportunity, to thank you and your team for holding my hand and providing me the most viable and genuine support in my hours of turmoil.

I am aware that you would be leaving for bigger challenges soon. But no job would be difficult for you with your acumen to take simple decisions to difficult situations. Your are destined to lead. I wish you the very best in your new assignment and many more feathers in your cap in times ahead.

Wishing you and the family the very best.

Best regards.

15. Thus, before filing the suit No. 1802/2000, plaintiffs had been appreciative of the help given by Hewlett Packard India. However, a legal notice was served by the plaintiffs on 23rd December, 1999 to Ms. Carli Fiorina of Hewlett Packard, Palo Alto Hanover and to Hewlett Packard, Singapore as well as the Hewlett Packard India making allegations that all the above persons were liable for making payment of the insurance amount of Rs. 30 lacs to the plaintiffs. In reply to these notices, all the defendants and addressee had denied their liabilities. It is thus clear in 2000 when plaintiffs filed the first suit, the liability to pay the insurance amount had already been denied by all the defendants. In the written statement no fresh denial was made.

16. Order 2 Rule 1 CPC reads as under:

1. Frame of suit.- Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

17. Order 2 Rule 2 CPC is a sequel to Rule 1 and it provides that the suit shall include whole of the claim which the plaintiff is entitled to make in respect of a cause of action. However, plaintiff is given liberty to leave any part of his claim in order to bring the suit within the jurisdiction of any Court. If the plaintiff intentionally relinquishes or omits to suit in respect of a portion of his claim, he cannot afterward sue in respect of the claim so omitted or relinquished. Thus, on the same cause of action, plaintiffs cannot file two suits splitting up the claim. It is settled law that cause of action is the cause which gives occasion for filing the suit and it forms foundation of the suit. If the cause enables the man to ask for larger and wider relief than what he has claimed in the suit, he cannot afterward seek to recover the balance by separate proceedings. In order to bar a suit under Order 2 Rule 2 CPC, Court has to see that every fact which is necessary to establish and support a right in first suit is there in the second suit also. Normally, cause of action in two suits is considered identical if in substance they are identical. However, if the evidence to support the two claims is different then the cause of action is considered different. In the present case in suit No. 2205/2003 and suit No. 1872/2000, there is absolutely no difference in cause of action or in substance of the pleadings.

18. Plaintiff has relied upon Kunjan Nair Sivaraman Nair v. Narayanan Nair and Ors. 145(2007) DLT 700, K.K. Modi and Anr. v. K.N. Modi and Anr. , Chitavalasa Jute Mills v. Jaypee Rewa Cement and Prem Lala Nahata and Anr. v. Chandi Prasad Sikaria. It is settled law that each case deals with the facts before it. None of the case cited by the plaintiffs deals with the facts similar to this case. The second suit has been filed by the plaintiff on the ground that in the written statement of first suit the defendants denied the claim of the plaintiffs which gave fresh cause of action to the plaintiffs to file a second suit on the same facts. The suit filed by the plaintiffs is unique in its nature where plaintiffs presume that defendants had no right to deny the claims made by the plaintiffs and if they deny they are liable to pay exemplary damages. In the second suit filed by the plaintiffs, the pith and substance of the entire pleadings is same except that two more defendants have been added and same rhetorics have been added.

19. I find that the second suit No. 2205/2003 filed by the plaintiff is not maintainable in view of the Order 2 Rule 2 and is liable to be dismissed and is hereby dismissed.

20. Since suit No. 1872/2000 was consolidated with suit No. 2205/2003 and the suit No. 2205/03 has been dismissed, all the issues framed in suit No. 2205/2003, except issue Nos. 2 and 10, shall be read as issues in suit No. 1872/2000. File of CS(OS) No. 2205/2003 shall remain tagged with the file of CS(OS) No. 1872/2000 as the parties have filed documents which are necessary for being considered even in CS(OS) No. 1872/2000.

CS(OS) No. 1872/2000

List this suit for further proceedings on 14th July, 2008.