M.Katju, R.S.Tripathi, J. - (1.) This writ petition has been filed for a writ of mandamus directing the opposite parties to pay Rs. 1,00,000/- of amount of insurance policy with upto date interest.
(2.) The petitioner claims to be a nominee of Policy No. 310175506 taken by one Matapher Tiwari from the Life Insurance Corporation of India, Indira Bhawan, Civil Lines, Allahabad. According to the petitioner, Shri Matapher Tiwari was his grand father and had nominated the petitioner for payment of the above policy. Shri Matapher Tiwari died on 15.11.1995 and the petitioner informed about his death to the authorities on 10.1.1996 but when he did not receive any information from the opposite parties till 20.3.1996, he sent a reminder to the opposite parties. The petitioner claims that on 1.6.1996 he received an acknowledgement of his letter sent to the respondents and asking him to furnish certificate of death of the deceased. In compliance of this letter, he sent the required death certificate. Thereafter on 26.6.1999 the respondents demanded a copy of the Kutumb Register which was also furnished by the petitioner. Thereafter, the respondents demanded B.H.T. from the Hospital and the petitioner also sent reply to that effect, but till this date no payment has been made by the respondents. Therefore, the petitioner had no alternative but to file this petition for issuing a direction for payment of the amount of the above policy to the tune of Rs. 1 lac alongwith interest to the petitioner.
(3.) The respondents have filed counter affidavit wherein the insurance of Matapher Tiwari by the respondents has not been denied. According to the respondents, insurance is a contract and is founded upon good faith, and if a party fails to observe this faith, the contract may be avoided. It is also pleaded by the respondents that the material facts for insurance are to be disclosed honestly, and if there is mis-statement or suppression of material facts, the policy can be repudiated. According to the respondents, on the basis of the declaration made by the insurer, the insurance contract is undertaken by the insurer and in the event of non-disclosure of material facts, the payment can be refused. The respondents have relied on the provisions of Section 43 of the Life Insurance Corporation of India, Act 1956 which states that certain provisions of the Insurance Act, 1938 (including section 45) apply to the L.I.C. Section 45 of the Insurance Act, 1938 states: "45 Policy not to be called in question on ground of mis-statement after two years-No policy of life insurance effected before the commencement of this Act, shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement [was on a material matter or suppressed facts which it was material to disclose and that it was fraudulent made] by the policy-holder and that the policy-holder knew at the time of making it that the statement was false for that it Suppressed facts which it was material to disclose]".;