Salil Kumar Roy Choudhury, J. - (1.) This is a suit for the recovery of Rs. 75,000/- together with all bonus declared and payable in respect of three insurance policies dated 2nd November, 1959 ; 28th December 1961 and 6th June, 1964 for Rs. 25,000/- each. The particulars of the said policies are set out in paragraph I of the plaint. The said assured died on the 8th October, 1968 during the currency of the said three policies of insurance and on the 23rd October, 1968 the notice of death of Atmaram Arya, the assured, was duly given to the defendant, Life Insurance Corporation of India. On the 9th November, 1968 the claim in respect of the said three policies was submitted to the defendant in the usual claim forms as required. But after several correspondence by and between the son of the deceased and the defendant the defendant ultimately by its letter dated 13lh/16th September, 1969 finally repudiated its all liabilities under the said policies on account of the deceased having withheld material informations regarding his health at the time of effecting the assurance with the defendant Life Insurance Corporation of India. It was also alleged that in the personal statements signed by the deceased assured on the 19th July 1959, 2nd December, 1961 and 30th June, 1964 respectively at the time of his medical examination he had answered falsely. It will be convenient to set out the said letter, which is an admitted document and is at pp. 116-117 of Ext. A. Registered with A.D. Life Insurance Corporation of India Calcutta Divisional Office : Hindusthan Buildings. Annexe. 4, Chittaranjan Avenue, Calcutta-13. 13th September, 1969, 16 Sept. 1969 Re : PHS : CLAIMS : AO : D/3441 Sm. Sunahari Devi Arya, P 95, Lake View Road, Calcutta-19 Madam. Re : Death Claim on policy Nos. 9254742, 9547314, 3188911-A Arya (Deed) With reference to your claim under the above policies on the life of your deceased husband we have to inform you that we have decided to repudiate all liabilities under the policies on account of the deceased having withheld material information regarding his health at the time of effecting the assurance with us. In this connection, we have to inform you that in the personal Statement signed by the deceased assured on 19th July, 1959, 2nd December Rs.61 and 30th June Rs.64 respectively at the time of his medical examinations he had answered the following questions as under noted : 4. (a) What has been your usual state of health : Good. (b) Have you consulted a medical practitioner within the' last five years ? If so, give details. No. 7. Have you ever suffered from any of the following ailments ? (b) Persistent cough, asthma, Pneumonia, pleurisy, spitting of blood, tuberculosis or any other affection of lungs ? No. (k) Any other illness within the last five years requiring treatment for more than a week ? No. e. Have you ever passed purse, albumen of sugar in the urine ? No. We may, however, state that all these answers were false as we hold indisputable proof to show that before he proposed for the above policies he had suffered from debut is emeritus at least from 1958 and also from tuberculosis of lungs for which he had consulted medical men and had taken treatment from them. He did not however, disclose these facts in his personal statements as aforesaid. Instead, he gave false answers therein as stated above. It is, therefore evident that he had made deliberate misstatements and 'withheld material information from us regarding his health at the time of effecting the assurance and hence in terms of the policy contract and the declaration contained in the forms of proposal and personal Statement, we hereby repudiate the claim and accordingly, we are not liable for any payment on the above policies and all moneys that have been paid in consequence thereof belong to the Corporation. Yours faithfully, Sd/-Illegible. P. Sr. Divisional Manager." After the repudiation of the claim, on behalf of the plaintiff Sunahari Devi Arya, solicitor's notice dt. 25th September, 1969 was served demanding payment of the moneys due under the said three policies of her deceased husband together with interest thereon at the rate of 12% per annum from the date of the claim until payment. By a letter dt. 4th October 1969 the defendant denied its liability and referred to its letter dt. 13th September 1969. Consequently the present suit was filed on the 10th October, 1969 and as usual after appearing from time to time in the list before various Learned Judges of this Court, ultimately it was heard by me for several days. On the pleadings of the parties the following issues were raised. Issues 1(a) Did the assured make inaccurate, false and fraudulent statements in the 'proposals' personal statements and declaration as alleged in paragraph 8 of the Written Statement. (b) Did the defendant issue the policies which are the subject matter of this suit, upon and/or being induced by such statements ? 2 Are the policies void and did the claims, thereunder cease and stand determined as alleged in paragraph 10 of the Written statement ? 3. To what relief if any, are the plaintiffs entitled ?
(2.) Before proceeding further may mention here that in the death certificate of the assured, which is an admitted document being at p. 67 of Ext. 'A' where under the column' cause of death it is stated as follows: Acute coronary occlusion diabetes mollitus chronics congestive heart failure, and the death certificate was issued by Dr. S. S. Zaveri. The usual correspondence started after the formal letters were exchanged informing the death of the assured and the claim forms being filed and it appears that the L.I.C., the defendant, started making enquiries as the proposal form of the last policy being dated 30th June, 1964 which was accepted and the policy is dated 17th September, 1964 and the death occurred within four years from the date of the last policy i. e. on 8th October 1968. It is also admitted that the deceased belonged to an affluent family and had several policies issued and three of them are the subject matters of this suit but another policy of the deceased being policy No. 1763557 Unit Oriental in respect of which the claim was also filed and the same appears to have been paid by the defendant being a sum of Rs. 13,219/- in full satisfaction of her claim by the Life Insurance Corporation in respect of the said policy. The said policy was issued in 1954 for Rs. 10,000/- by the Oriental Life Assurance Co., in respect of the said claim the L. I. C. has not raised any dispute and paid the sum in full satisfaction of the claim of the said policy of the deceased to the plaintiff which will appear from the letter dt. 10th December 1976 at p. 72 of Ext. A.
(3.) Now the only question in this suit urged before me is whether the deceased obtained the said three policies, which are the subject matter of this suit, by fraudulent misrepresentation of material facts knowing them to be false in respect of his personal statements as having no diabetis or no illness which is material for the purpose of issue of the said policies. Mr. M. M. Sen elaborately placed the personal statements in respect of the said three policies and the answers to various questions and it is admitted that nowhere it is stated that the deceased suffered from diabetis mallitus or coronary occulussion in any of the said statements. The defendant has examined on commission Dr. Zaveri who issued the death certificate and also Dr. M.K. Chettri and relying on the said two Medical witnesses and on the letters and forms filled up by the family physician of the deceased, one Dr. D. Mukherjee, since deceased, it was sought to be submitted that the plaintiff is not entitled to any money under the said three policies as those are void in view of the fraudulent statements of facts and false statement of facts and suppression of material facts under section 45 of the Insurance Act, 1938.;