BENARASI DEBI Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) This appeal arises out of an action for the recovery of a sum due under an insurance policy bearing No. 178335 effected with the defendant-respondents -- The New India Assurance Co., Ltd., hereinafter referred to as "the Company" -- on the life of one Kaluram Choudhury, who was the husband of the present plaintiff appellant.

(2.) It is not denied that the policy was an endowment policy and the risk covered thereunder amounted to a sum of Rs. 10,000/-. Further it is also admitted that the proposal form (exhibit A) for that policy had been signed on 20-4-1947, and that it was thereafter finally accepted on 14-5-1947, though on condition that the first premium thereunder should be paid within 30 days from the date of that acceptance. It is well established that such a conditional acceptance is in law a counter offer to be completed thereafter into contract by the fulfilment of that condition as required thereunder. In the present case unfortunately the first premium was not paid within 30 days from the date of the aforesaid acceptance, namely. 14-5-1947, with the result that the counter offer, as stated, stood automatically withdrawn. Therefore, in order to secure that contract again, as provided in the original proposal form itself, a fresh declaration form of continued good health had to be filled by the assured and then sent to (the Company along with the first premium. This the assured did and thereupon the policy was accepted by the company. The fresh declaration then filed about the continued good health was dated 21-6-1947, and is exhibited on the record as C (1). The policy thereafter remained in force until 21-6-1949, when there was another default committed and that was in respect of the premium then due. That necessarily led to the policy being lapsed. Again, therefore, in order to revive the policy, as required by the rules of the company as also by the term of the agreement as provided in the proposal form, the assured had to fill up another fresh declaration about his continued good health and then to send it along with that due. This also the assured did and the declaration in this case was 4-11-1949, and that is exhibit C on the record. Thus, the policy again came into force and remained as such until 15-4-1950 when Kaluram Choudhury died. On his death, the plaintiff, as his nominee, put in her claim for the amount due under that policy. Originally there was certain correspondence between the parties but finally on 14-4-1953, it was followed by the action which has given rise to this appeal.

(3.) In the ordinary course, the policy being valid and in force on the date when Kaluram Choudhury died, there could have been no difficulty for the plaintiff in getting her claim due thereunder. But it appears that in the course of tHe correspondence that the company had with the plaintiff, they came to learn that on 26-4-1947, there was one more proposal which had been sent by the assured to the Hindusthan Co-operative Life Assurance Company for the insurance of his life. That was for a sum of Rs. 4,000/- and it had been received, as it appears from the evidence of D. W. 3, in the branch office of that company at Jamshed-pur on 12-5-1947. But that was, as it appears from exhibit E, finally declined by the Hindusthan Co-operative Life Assurance Company. It is however unfortunate that the statements made about this policy in the proposal form of the defendant company (exhibit A) are not at all correct and so far as the subsequent declarations (Exhibit C(1) and C) filed with them are concerned, they are completely silent both as to that policy as also about the decli-nature. Accordingly it is said that the statements made in the proposal form (Exhibit A) of the com-pany as also in the declaration forms subsequently submitted with them for the validity and renewal of the policy were on the one hand inaccurate and false and on the other suppressed facts which were material.