- (1.) The facts leading to this writ petition inter alia are that on or about 28/03/1978 Smt. Radha Ram Singh since deceased, the wife of the writ petitioner took out two policies of Life Insurance bearing Nos.33456592 and 33456593 each for Rs. 50,000/ - from the defendant No.1 and the petitioner was appointed the nominee under S.39 of the Insurance Act in both the policies. The said policies were issued by the respondents after full and proper medical examination of the insured lady. In or about the last week of the month of Jan., 1984. The said Smt. Radha Rani Singh suddenly fell ill and on 28th Jan., 1984 she was admitted to the Calcutta Medical research Institute at 7/2, Diamond Harbour Road, Calcutta for treatment and on 29th Jan., 1984 she expired at the said Hospital. The said insured during her life-time had duly paid all insurance premiums which were payable up to the time of her death and by letter dt. 3rd Feb., 1984 the petitioner lodged his claim to the sums insured on the aforesaid two policies as nominee thereof to the Branch Manager, City Branch Unit No.14 of the Life Insurance Corporation of India who is respondent No.3 herein who by his letter dt. 12th Mar., 1984 informed the petitioner that the said letters of the petitioner have been forwarded to the Senior Divisional Manager, Death Claim, Calcutta Divisional Office of the Life Insurance Corporation of India, the Respondent No.2 herein It has been alleged in the writ petition that after submission of all documents as demanded by the respondents the petitioner made several written and verbal requests to the respondents to make payments of the amounts of the claim in respect of the said policies to the petitioner as nominee under the same. On 19/06/1986 the petitioner had to make a complaint regarding the conduct of an employee of the said - hospital who is also an agent of the respondents and who threatened to defeat the claim of the petitioner unless money is paid to him. By letter dt. 2/ 4/07/1986 the respondents repudiated all liabilities under the said policies on account of the deceased having withheld material information regarding her health at the time of effecting the assurances with the respondents. In reply to the said letter of the respondents dt. 2/ 4/07/1986 the petitioner on 13/07/1986 wrote a letter enquiring whether the said letter dt. 2/ 4/07/1986 was reply to the complaints made by him in his letter dt. 19/06/1986 and in reply to the same respondents finally repudiated the claim by his letter dt. 19/07/1986 affirming the letter dt. 2/ 4/07/1986. It is the contention of the petitioner that the refusal of the respondents to make payment of the sums assured under the said life insurance policies to the petitioner as nominee thereof is utterly illegal, wrongful and arbitrary as no information regarding the health of the deceased was suppressed by her at the time of effecting the said policy as alleged. In this writ petition the petitioner has challenged the said actions of the respondents to repudiate all the liabilities under the Policy No.33456592 and 33456593 on the life of the insured Smt. Radha Rani Singh, deceased by their aforesaid letters dt. 2/07/1986 and 19/07/1986 respectively.
(2.) The learned Advocate for the petitioner submitted that since the death of the insured the petitioner as nominee wrote several letters and made also verbal representations and also produced and/or submitted all documents as asked for by the respondents. The respondents, however, only by letter dt. 2/ 4/07/1986 repudiated the liability to-make any payment on the alleged ground of the deceased's having withheld material information regarding her health at the time of effecting assurance. The respondents further alleged in the said letter that the answers given to the questions at the time of her medical examination were false. The relevant and material portion of the said letter is quoted hereinbelow "In this connection: we have to inform you that in the proposals and personal statement signed by the deceased assured on 19-1-78 and 27-12-77 respectively at the time of her medical examinations, she had answered the following questions as under: Questions Answers 17(A) What has been your usual state of health? Good 18. Have you ever suffered from or are you suffering from Persistent cough, asthma, bronchitis, Pneumonia, Pleurisy, spitting of blood, tuberculosis or any other of lungs? No We may, however, state that all these answers were false as we hold indisputable proof to show that about eight years before she proposed for the above policies, she had been suffering from asthema for which she had consulted medical men and had taken treatment from them. She however, did not disclose these facts in her personal statements, instead she gave false answers therein as stated above. It is, therefore, evident that she had made deliberate misstatements and withheld material information from us regarding her health at the time of effecting to assurances and hence in terms of the policy contracts and the declarations contained in the forms of personal statements, we hereby repudiate the claim and accordingly we are not liable for any payment under the above policies and all moneys that have been paid on consequence thereof belong to us." The learned Advocate for the petitioner submitted that the refusal of the respondents to make payment of the sum assured under the said Life Insurance policy to the petitioner as nominee on the alleged ground mentioned in the said letter that the petitioner has suppressed material information on the plea that "about 8 years before she proposed for the above policies she had been suffering from asthma for which she had consulted medical men and had taken treatment from them "is absolutely untenable in view of the fact that the certificate of the medical attendant Dr. A.N.Mukherjee which had been forwarded to the respondents mentions that she had been suffering from bronchities for the last four years before her death. It has been submitted that certificate by hospital in Form-B(1) should not have been relied upon by the respondents. The learned Advocate for the petitioner also relied upon S.45 of the Insurance Act, 1938 and submitted that in view of the provisions contained therein no policy of Life 1nsurance effected after coming into force of the said Act after the expiry of two years from the date on which it was effected be Called in question on the ground that a statement made in the proposal for insurance or in any report of a Medical Officer of 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 fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. In the instant case no such allegation has been made by the insurer to the effect that the insured fraudulently suppressed the material fact that she was suffering from asthma and that the policy holder knew at the time of making that the said statement was false or she suppressed fact which it was material to disclose. Under such circumstances the petitioner submitted that the respondent acted illegally and arbitrarily and without jurisdiction and malafide in repudiating the liability under the policies long after the period of 2 years from the commencement of the same i.e. 28th Mar. 1977 by the impugned letters dt 2/07/1985 and 19/07/1986. It has also been submitted on behalf of the petitioner that the respondent Life Insurance Corporation being a statutory body is bound to act in accordance with the provision of the statute, rules and regulations. 1n the instant case, according to the petitioner the respondent has violated the provisions of S.45 of the Insurance Act in repudiating the liability for payment of the sums assured.
(3.) The learned Advocate for the respondent, on the other hand submitted that this court will not interfere in the writ jurisdiction in view of the disputed questions of facts involved in this writ petition. The learned Advocate further submitted that even from the medical certificate issued by Dr. Amar Nath Mukherjee which has been relied upon by the petitioner being Annexure "D" to the petition it appears under Col. 9 and 10 that the said doctor was attending the deceased for last 15-20 years as stated by the doctor in answer to question No.9 and in answer to question No.10 the doctor mentioned that he treated the deceased for minor effects of cold bronchities preceding his last illness. Therefore, the learned Advocate submitted that the petitioner was suffering from minor effects of cold bronchities and the said doctor was treating him cannot be disputed. But the said fact Was suppressed while the policy holder .made her declaration. The learned Advocate for the respondent referred to certificate of hospital treatment where in answer to Col.5(a) it was mentioned that the patient had a past history of asthmatic since 10-15 years and that the patient had taken bronchodilator and stereyods. The learned Advocate further submitted that in view of the aforesaid fact of the deceased having suffered from the said illness appearing from the certificate of the medical attendant as also of the hospital treatment Certificate several questions and controversies arose and the Life Insurance Corporation repudiated the liability to make payment on the ground of material suppression of the fact of illness which the deceased suffered but which was not mentioned in declaration form at the time when the said insurance proposal was effected. The learned Advocate argued in any event these are disputed and controversial questions of facts for which the proper remedy, if any, for the petitioner lies in suit and not in writ proceeding. The writ court should not interfere in a matter involving controversial and disputed questions of facts. The learned Advocate for the respondent relied upon S.45 of the Insurance Act and submitted that the Life Insurance Corporation is entitled to repudiate the claim on the ground of the policy holder having suppressed material information at the time when the declaration was made by the policy holder in the declaration form for effecting the said policy. In support of his contention the learned Advocate relied upon a judgment of the Supreme Court in the case of Mithoolal Nayak v. Life Insurance Corporation of India reported in AIR 1962 SC 814. The learned Advocate submitted that in that case the facts were inter alia that the policy holder who had been treated a few months before he submitted a proposal for insurance of his life with the Insurance Company by a physician of repute for certain serious ailment anaemia, shortness of breath and asthma not only failed to disclose his answer to the questions put to him by the insurance company that he suffered from those ailments. But he made a false statement to the effect that he had not been treated by any doctor for any such serious ailments. The Supreme Court held that judged by the standard laid down in S. 17 of the Contract Act the policy holder was clearly guilty of fraudulent suppression of material facts when he made his statements which he must have known were deliberately false and hence the policy issued to him relying on those statements was vitiated. It was also held that the principle underlying the Explanation to S. 19 of the Contract Act is that a false representation whether fraudulent or innocent is irrelevant if it has not induced the party to whom it is made to act upon it by entering into a contract. The terms of the policy made it clear that the averments made as to the state of Health of the insured in the proposal form and the personal statement were the basis of the contract between the parties and the circumstance that the policy holder had taken pains to falsify or conceal that he had been treated for a serious ailment by a physician only a few months before the policy was taken showed that the falsification or concealment had an important bearing in obtaining the other party's consent. A man who has so acted cannot afterwards turn round and say, "It could have made no difference if you had known the truth." In the circumstances no advantage could be taken of the Explanation to S. 19 of the Contract Act.;