- (1.) JOLEKHA Khatun since deceased, wife of the writ petitioner, took a life insurance policy on 20th December, 1995 for a sum assured of Rs. 50,000/-and nominated her minor sons. Similarly she took another policy on 20th July 1997 for a sum assured of Rs. 1,00,000/- and nominated one of her minor sons viz, Md. Ziahul Haider. The insured died on 22nd October, 1998 during continuance of the aforesaid policies, The information as regards death of the insured was duly given to the Life Insurance Company of India (hereinafter referred to as the LICI for brevity ). But the sum assured was not disbursed. By a letter dated 31st August, 2002 claim was finally made which was replied to by a letter dated 4th September, 2002 stating that the matter had been referred to the Divisional Office and the writ petitioner was likely to get a suitable reply shortly. No reply was however received. In the circumstances the present writ petition was filed on 20th March, 2003.
(2.) ON behalf of the LICI an affidavit-in-opposition was filed affirmed by one Shri Amit Kumar Bose wherein as regards the maintainability of the writ petition the following points were taken :- "2. 1 That the said application is not maintainable since an insurance is a contract between the insurer and the insured and a dispute relating to a contractual matter cannot be decided by way of a writ application, 2. 2 That said application is not also maintainable since it involves disputed questions of fact which can only be settled by way of adducing evidence and as such writ Court is not the proper forum for adjudication of the same. " As regards the merit the following defence was taken :- 2. 4 In terms of the rules of Life Insurance Corporation of India (hereinafter referred to as 'lici') investigation was initiated and on the basis of the documents collected by LICI both of the policies were repudiated on the ground of suppression of material fact which have also been communicated to the appointee to the nominee of the life assured. Since both the claims were repudiated for suppression of material facts nothing is payable against the two polices. "
(3.) WHEN the petition was taken up for hearing the learned Advocate appearing for the respondents reiterated the points noticed above. On behalf of the writ petitioners it was submitted that the writ petition is maintainable because the LICI a State within the meaning of article 12 acted unfairly in rejecting the claim. On merits the allegation as regards the suppression of material facts was denied. It was submitted that in any event insofar as the policy dated 28th December, 1995 was concerned the respondents were not entitled to reject the claim on the basis of an alleged suppression of material facts under Section 45 the Insurance Act, 1938. Therefore the questions which arise for determination are as follows :- a) Is the rejection of the claim arising out of the aforesaid policies bad altogether ? b) Is alternative remedy a bar in this case ?;