S.K. Dutta, J. - (1.) THIS is an appeal by the Defendant against the judgment and decree of the Subordinate Judge, Lower Assam Districts at Dhubri by which a money suit for recovery of Rs. 1,00,000/ - under an insurance policy effected with the said Defendant, namely the New India Assurance Company Limited (hereinafter referred to as the Company), was decreed in favour of the Plaintiff. The Plaintiff's case in short is that her adopted son Kumar Jagadindra Narayan Choudhury, Zemindar of Rupshi, took out a life insurance policy bearing No. 251927 R dated the 13th October 1949 from the Defendant Company for a sum of Rs. 1,00,000/ - to be paid by the Defendant Company together with bonus on the expiry of fourteen years, or on the death of the insured whichever was earlier. The insured made the proposal on the 7th of August, 1949 and submitted his personal statement on the 10th of August, 1949. The proposal was accepted and the policy was issued on the 13th October, 1949 after a medical examination of the insured by a doctor of the Company, and on payment of the due premium. Kumar Jagadindra Narayan Choudhury was a Hindu governed by the Dayabhaga School of Hindu Law and he died intestate on 26th August,1950.
(2.) THE Plaintiff is the adoptive mother and the sole heir of the deceased. The Defendants declined to pay the sum payable under the policy on the ground that the proposal and the personal statement contained statements which were incorrect and untrue and that the deceased suppressed facts material to the insurance. It was alleged in the written statement that the answers given by the deceased in reply to questions Nos. 6(a) and 7(a) in the personal statement were incorrect and false and that the deceased was a heavy drinker and suffered from disorders of the nervous system such as hepatitis and hallucinosis and nervous weakness. Consequently, answers to question No. 11 in the proposal were also false. It was further alleged that the answers given by the deceased to the questions Nos. 12 and 13 in the personal statement were also false and that the deceased was taking medical treatment for serious disorders for a considerable period. The above questions and answers were as follows: THE declarations made by the deceased show that the answers given by the deceased were made the basis of the contract. The allegation made in the written statement that the deceased suffered from serious nervous disorders such as hepatitis and hallucinosis and nervous weakness is not pressed before us. On the other hand, evidence was led to prove that the deceased suffered from Delirium Tremor (hereinafter called D.T.) in order to show that he was a heavy drinker. Two other issues were raised at the trial viz. regarding jurisdiction and the Plaintiff's right to file the suit. These are not pressed before us. The only important question which has to be decided is whether the deceased was accustomed to heavy drinking.
(3.) IT may be noted that the Kumar never said in his statement that he was a teetotaller. His statement was that he used to drink a peg or so a day. If the Kumar was accustomed to heavy drinking this was a material fact requiring disclosure as it would have guided the insurer in determining whether to take the risk and if so at what premium and on what condition. If such a fact was not disclosed it would amount to suppression of a material fact. But the burden of proving non -disclosure or misrepresentation is on the insurer and it has to be seen how far the Company discharged this burden. The Company examined several witnesses to prove that the deceased was accustomed to heavy drinking. (After discussing evidence His Lordship proceeded); From the evidence discussed above, I do not think that there are materials to hold that the Kumar was a habitual hard drinker. The Company's doctor said that if a person took alcohol daily he would not be considered as one not sober and intemperate unless the habit was of taking alcohol excessively. In this view of the matter, the Kumar's statement that he was a man of sober and temperate habit was not proved to be false.;