Decided on August 20,1953



Mack, J. - (1.) This is an appeal against a judgment of the Additional Subordinate Judge of Coimbatore dismissing with costs a suit filed by Kullammal, widow of one Subbiah Chettiar, against the Oriental Life Assurance Company Ltd. for the recovery of Rs. 52,750 on an endowment policy for Rs. 50,000 with profits for 20 years taken out by her husband on 27-6-1945. Subbiah Chettiar assigned the policy to his wife. He paid the first premium of Rs. 3540-10-0 on 27-6-1945. He also paid the second year's premium in July 1946 and then died on 27-7-1946 in a Nursing Home after an accident necessitating an operation to his thigh. The extract from the Death Register shows that death was due to haemoptysis cellubitis of the thigh. The evidence of his son Sanjeevi Chettiar (P. W. 1) who was 20 years old at the time of his father's death that the injury to his thigh became septic, and that he died after an operation in a Nursing Home is not disputed. Pending appeal, the widow Kullammal died and her sons have been brought on record as her legal representatives.
(2.) The Insurance Company repudiated liability on the ground that Subbiah Chettiar gave false and inaccurate answers to some questions in the proposal for insurance, Ex. B. 1, and in the personal statements Exs. B. 2 and B. 3 made before the company doctors to the effect that he had no previous ailment, sickness or disease and had never consulted a medical practitioner. This repudiation is contained in a letter, Ex. A. 5, dated 7-7-1945 from the Insurance Company stating that they had indisputable proof to show that the deceased suffered from gastric trouble (Gastroenteritis) about a couple of months before the Insurance proposal, and had also suffered from the bronchitis just about the time of the proposal and before the acceptance letter was issued on 16-7-1945. The nature of the proof held by the Insurance Company was nowhere indicated. After the issue of a lawyer's notice, Ex. A. 3, this suit was filed in September 1947. The written statement proceeded in substance on the lines of the letter of repudiation, Ex. A. 5, and contended that Subbiah Chettiar had given untrue answers to the following questions, all answered in the negative: 1. Question No. 13 in the proposal for Insurance: Have you within the past five years consulted any medical man for any ailment not necessarily confining you to your house? If so, give details and state names and addresses of medical men consulted A. No. 2. In his personal statements Exs. B. 2 and B. 3 before the doctors Q. 5(a) : Have you suffered from any of the following ailments? If so when and for how long? A. No. (1) Cough, shortness of breath, palpitation, asthma, pneumonia. Pleurisy, consumption or any other disease of the chest? A. No. Q. 5(c) : Any other illness, accident or injury whether considered by you to be important or not? A. No. Q. 12(b) (1) : When last were you under medical treatment? (2) For what ailment and how long? A. No. According to the written statement, the deceased wrote "No" in answer to all these questions, and it was on this footing that the legal position was adopted for the company that in the declarations made by the assured in the proposal for assurance, Ex. B. 1, all the answers given by him and to be given by him at the medical examinations shall be the basis of the contract between him and the company and that "if any untrue averments be therein contained, all moneys which shall have been paid up on account of the said assurance shall be forfeited and the assurance itself should be absolutely null and void."
(3.) On the basis, therefore, that Subbiah Chettiar was irrevocably bound by every answer in Exs. B. 1, B. 2 and B. 3, the Insurance company merely examined one witness, a Dr. Panik-kar, who deposed that he treated Subbiah Chettiar at Tiruppur from 7-4-1945 to 17-4-1945 for gastric trouble, which seems to be on his own showing mere diarrhea, and from 5-6-1945 to 15-6-1945 for bronchitis which also on his own showing seems to be cough and slight fever. The written statement made no "reference to this doctor, whose identity was not revealed until, it would appear, a sub-peona was issued for his examination as a witness. In the witness box, he produced a prescription book Ex. B.9, which we shall presently show is full of very unsatisfactory features.;

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