SHARDABEN KANTILAL PANCHAL Vs. LIFE INSURANCE CORPORATION OF INDIA
LAWS(GJH)-1988-4-11
HIGH COURT OF GUJARAT
Decided on April 26,1988

SHARDABEN KANTILAL PANCHAL Appellant
VERSUS
LIFE INSURANCE CORPORATION OF INDIA Respondents


Referred Judgements :-

L. I. C. OF INDIA. V. KIRAN SINHA [REFERRED TO]
KIRAN SINHA VS. LIFE INSURANCE CORPORATION OF INDIA [REFERRED TO]


JUDGEMENT

P.R.GOKULAKRISHNAN - (1.)This Letters Patent Appeal is against the order of the learned single Judge dismissing the Special Civil Application No. 3822 of 1987. The gravamen in the Special Civil Application is that in the policy for Rs. 50 0 the policy holder not his agent consented for dating back of the said policy. The prayer in the main Special Civil Application is for declaring as illegal and bad in law the impugned decision and action of the respondent-Corporation to treat Policy No. 49718948 of Mr. K. V. Panchal (deceased) as lapsed and to deny the payment of claim under that policy to the appellant as per their letters dated 13-8-1986 (Annexure 1 to the Special Civil Application) and 9-6-1987 (Annexure L to the Special Civil Application) and to quash and set aside the same. The learned single Judge after considering the facts of the case thought it fit to relegate the parties to the Civil Court and on that score dismissed the Special Civil Application observing that the contentions raised are disputed questions of fact and as such the remedy will be before the Civil Court. It is as against that order the present Letters Patent Appeal has been filed.
(2.)Mr. Pujara the learned Counsel appearing for the appellant contends that the matter can be decided on the available records with the Insurance Company and also the affidavits filed by the respective parties and there is no point in driving the parties to the Civil Court which will unnecessarily consume time and energy. According to the learned Counsel even though the policy holder took the policy in March 1985 and died on 3-8-1985 the first premium receipt and the subsequent deductions were received by the wife of the deceased who is the appellant herein much later to the death of the policy holder. Hence according to Mr. Pujara the facts on record will definitely reveal that there is absolutely no consent for dating back the insurance policy which is in dispute as at present.
(3.)The facts reveal that the deceased took two policies out of which one has been paid and the dispute is in respect of the other policy for Rs. 50 0 According to the appellant there was no dating back with regard to this policy and the agent of the deceased or the deceased himself never wrote to the Corporation giving consent with regard to the dating back. On the other hand it is the case of the Corporation that there was dating back and that was decided much earlier to the death of the policy holder. The policy was in the month of March 1985 and the premium was also entered in the books of the Corporation much earlier to the death of the policy holder Admittedly the policy holder died in August 1985 Mr. Pujara wanted to distinguish the decision in the case of LIC of India v. Kiran Sinha reported in AIR 1985 SC 1265 and referred to in the reply affidavit of the Corporation and said that that case arose under different circumstances and that cannot be made applicable to the facts of the present case. the said Supreme Court decision arose out of the judgment rendered by the Patna High Court in this case of Kiran Sinha v. LIC of India reported in AIR 1983 Patna 142. In that decision the Bench of the Patna High Court granted prayer in the writ petition by directing the Corporation to pay the amount. That was a case in which the deceased assured had purchased three insurance policies. The wife of the deceased who was the nominee under the policies made an application for payment under the policies. The fact of the death of the assured was informed by his wife to the Agent and also to the Development Officer. The Corporation refused to pay the sums assured under the policies on the grounds that the Corporation had no knowledge about the death of the deceased and that since the premiums were received after the death of the deceased the policies stood lapsed. In those circumstances the Patna High Court held that the information of the death of the assured to the Agent is an adequate information and it amounts to an information to the Corporation itself and further even if the payments were received by the Corporation after the death of the deceased-assured with or without the knowledge of such death with the Corporation accepting the payment of premium the principle of waiver was attracted and the Corporation was precluded from raising the plea that on the death of deceased policies stood lapsed. It is as against this judgment the Supreme Court had occasion to consider the effect of such directions given by the High Court in the decision in the case of LIC of India v. Kiran Sinha reported in AIR 1985 SC 1265. In that case the Supreme Court held:
"The High Court could not have in the circumstances of this case directed the payment of the money claimed under the insurance policies in question in a petition filed under Art. 226 of the Constitution. The only remedy available to the respondent in this case was a suit before a Civil Court. The judgment of the High Court is therefore set aside".
As far as the present case is concerned the main dispute is as to whether there was a consent by the deceased or whether the Insurance Company had made out a case that there was a consent for dating back with regard to the policy which is under dispute now. Such a question in our opinion cannot be decided by affidavits and the records alone and the same has to depend upon the evidence that has to be let in by the respective parties for the purpose of finding out as to where there is a consent for dating back of the policy. Even with regard to the contention raised by Mr. Pujara to the effect that there is no notice as contemplated under Sec. 50 of the Insurance Act the same can be agitated before the Civil Court. Simply because a defect is alleged in non-issuance of the notice the same cannot be a subject matter by writ proceedings under Art. 226 of the Constitution. Such a question on the facts and circumstances of the case can as well be agitated before the Civil Court when the main issues which we have referred above are contested before the Civil Court. We need not as at present discuss the provisions of Sec. 50 of the Insurance Act and as to whether the notice contemplated was not issued by the Insurance Company or not except quoting Sec. 50 of the Insurance Act herein:
"50 Notice of option available to the assured on the lapsing of a policy : An insurer shall before the expiry of three months from the date on which the premiums in respect or a policy of life insurance were payable put not paid gave notice to the policy-holder informing him of the options available to him unless these are set forth be the policy".
Underline is given by us for the purpose of showing that many matters raised by the learned Counsel appearing for the appellant are disputed questions which have to be decided only in a properly framed Civil Suit. For all these reasons we are in complete agreement with the reasoning and finding of the learned single Judge and accordingly the Letters Patent Appeal is dismissed. Appeal summarily dismissed.
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