GUPTA, J. - (1.) THIS is plaintiff's first appeal for the recovery of a sum of Rs. 10,256/- from the respondent Life Insurance Corporation of India (hereinafter called 'the Corporation') and arises in the following circumstances: - On November 27, 1958 a proposal for insurance for a sum Rs. 10,000/- on the life of Jai Singh (now deceased) husband of the plaintif-appellant along with a personal statement and a confidential report of the medical examiner was submitted to the respondent Corporation. The appellant was nominated under sec. 39 of the Insurance Act, 1938 (hereinafter called 'the Act') as the person to whom the money secured by the aforesaid policy was to be paid in the event of the death of Jai Sing The aforesaid proposal for insurance was accepted by the respondent Corporation on December 11, 1958 and an insurance policy No. 6833799 was issued by the Corporation for a sum of Rs. 10,000/- in favour of Jai Singh, commencing from December 24, 1958 Jai Singh paid yearly insurance premia which fell due in respect of the aforesaid policy in the years 1959 and 1960. However, the next yearly premium which fell due on December 24, 1961 was not paid and, therefore, the above mentioned policy stood lapsed, with effect from that date. On October 20, 1962, the Branch Manager of the Corporation's Jodhpur office addressed a letter to Jai Singh informing him that on payment of Rs 425. 25 inclusive of Rs. 405/- as the yearly premium due on December 24, 1961 and Rs. 20. 25 as interest due thereon and on furnishing a short medical report, the Corporation may consider the revival of the aforesaid lapsed policy. In compliance of this letter, on January 28, 1963, Jai Singh submitted a personal statement regarding health (Ex. A/7) and a short Medical Report (Ex. A/8) signed by Dr. S. C. Mathur, Medical Officer Incharge, Government Hospital, Bilara. The Corporation by its letter dated February 6/7, 1963 accepted the short medical report on the Life of Jai Singh and informed him that he should remit Rs 843/- consisting of two yearly premia which had fallen due on December 24, 1961 and December 24, 1962 respectively and Rs. 33/- as interest thereon so as to enable the Corporation to revive the policy in question. Jai Singh remitted the aforesaid amount with the result that the aforesaid insurance policy was revived with effect from April 1, 1963. Sometime later, on January 22, 1964- Jai Singh died and the information regarding his death was communicated to the Branch Manager of the Corporation's Jodhpur office. Thereafter the appellant, being the nominee of Jai Singh deceased in respect of his aforesaid insurance policy, claimed the amount due under the aforesaid policy from the Corporation. After some correspondence, the Corporation by its letter dated February 26/28, 1966 repudiated the claim of the appellant as the Corporation was of the view that Jai Singh deceased had made deliberate mis-statement in his personal statement and withheld material information from the Corporation regarding his health at the time of getting his policy revived and as such, in their view, the revival of the insurance policy in question was void. The Corporation, however, expressed its intention to make payment of Rs. 1200/- towards the paid-up value of the policy and Rs. 256/- as the bonus, which had become payable in respect of the policy on the date of its lapse. The appellant requested the Corporation to reconsider her claim, but the Corporation intimated the appellant by its letter dated July 26/27, 1966 that its decision in that regard remained unaltered. Consequently, the appellant filed a suit in the Court of Senior Civil Judge No. 1, Jodhpur for a decree in the sum of Rs. 10,256/- and interest thereon and costs.
(2.) THE Corporation in its written statement admitted that the appellant was the nominee of Jai Singh deceased in respect of the insurance policy in question. It was also admitted that the proposal for insurance on the life of Jai Singh was received and a policy was issued by the Corporation. However, the Corporation averred that it was not liable for payment of any amount to the plaintiff-appellant because the policy issued in favour of Jai Singh deceased had lapsed on account on his failure to make payment of the premia due in respect thereof and the Corporation, believing the personal statement and short medical report sent by the deceased, revived the policy and the assured died within one year of the aforesaid revival. On making inquiries, the Corporation came to know that the deceased was suffering from diabetes mellitus and it was further revealed that Jai Singh deceased remained as an indoor patient at the M G. Hospital, Jodhpur from November 7, 1960 to November 19, 1960 for treatment of diabetes mellitus and coma. THE case of the Corporation was that Jai Singh intentionally suppressed the fact of his aforesaid illness and gave wrong replies to questions 3 (a) and (b) in his personal statement and that as the revival of the policy was obtained by Jai Singh deceased by making mis statement of fact and suppression of material information, the contract of insurance was null and void and, therefore, the plaintiff-appellant was not entitled to receive any amount from the Corporation. The trial court framed an omnibus issue as to whether the deceased assured got the policy revived by practising fraud on the Corporation, the particulars of which were mentioned in paras Nos. 16 and 17 of the written statement and as such, the contract of revival was null and void. The trial court came to the conclusion that the case of the appellant fell under the second part of sec. 45 of the Act. It further held that it was proved by the evidence on record that Jai Singh deceased remained as an indoor patient at the Mahatma Gandhi Hospital, Jodhpur from November 7, 1960 to November 19, 1960 and that he suffered from diabetes mellitus The learned trial court further held that Jai Singh deceased knowingly made a false statement on a material matter and suppressed facts which it was material to disclose regarding his health, in the personal statement submitted by him in connection with the revival of the policy in question It was held that Jai Singh was fully aware of the fact that he was suffering from diabetes mellitus and that he knowingly and fraudulently suppressed material information and indulged in fraudulent concealment of material fact which vitiated the contract of insurance. On the basis of the aforesaid findings, the learned Additional District Judge No 1, Jodhpur, by his judgment and decree dated October 30, 1969, dismissed the plaintiff's suit, but left the parties to bear their own costs. Aggrieved from the aforesaid decree, the plaintiff has filed the present appeal and the learned counsel for the appellant, Mr. S. K. Mal Lodha raised the following five contentions before me: - (1) That the identity of Jai Singh has not been established as the person who had remained as an indoor patient at the M. G. Hospital, Jodhpur from November 7, 1960 to November 19, 1960 and that Jai Singh did not suffer from diabetes mellitus. (2) That even if Jai Singh deceased suffered from diabetes before the aforesaid policy lapsed, then he was completely cured and the revival of the policy was not affected and that Jai Singh was not required to disclose the alleged illness relating to the period prior to the lapsing of the policy. (3) That Jai Singh deceased was not conversant with English and as he could not understand the questions, he was not responsible for the answers given to questions No. 3 (a) and (b) of the personal statement Form Ex. A-7 and as such, it cannot be held that Jai Singh suppressed any material facts or committed any fraud. (4) That the facts which are alleged to have been suppressed were not material and it has not been proved that Jai Singh knew at the time of making the personal statement that the effect of his alleged illness in November, 1960 was material and should have been disclosed. Thus it could not have been concluded that there was any-fraudulent suppression of material facts by Jai Singh deceased within the meaning of sec. 45 (2) of the Act. (5) That in any event the appellant was entitled to a decree for Rs. 1546/- plus Rs 810/- in respect of the paid up value of the policy and vested bonus and the revival amount and the learned trial Court erred in not granting a decree at least for the said amount. In respect of the first submission, learned counsel urged that there was no cogent evidence to establish that it was Jai Singh, husband of the appellant, who was an indoor patient at the M. G. Hospital, Jodhpur from November 7, 1960 to November 19, 1960 and that he suffered from diabetes mellitus. In this connection, inpatient bed-head ticket Ex. A-1 and the laboratory reports Ex. A 2, Ex A-3 and Ex. A-4 have been produced. It is evident from Ex. A-1 that a person by the name of "jai Singh son of Bishan Singh, resident of village Nimbol, aged 30 years by caste Rajput" was admitted in the M. G. Hospital, Jodhpur as an inpatient on November 7, 1960 and was discharged from the said hospital on November 19, 1960. It also appears from the aforesaid bed-head ticket that Jai Singh was treated for diabetes mellitus and coma. The name of the Medical Officer Incharge of the Ward in which Jai Singh was an indoor patient has been mentioned in Ex. A-1 as Dr. K. Benerjee and the address of the patient has been mentioned as "c/o Kanwar Chan Singh, Sardar-pura Road No, 1-A, House No. 12" Dr. K. Benerjee and Dr. Manraj Mehta, who are said to have treated Jai Singh, have been examined as DW 2 and DW 5 respectively. Dr. K. Benerjee identified the bed-head ticket Ex. A-1, the original of which was brought by him in Court at the time of his examination and stated that he had examined the patient on the date of his admission in the hospital and that he was unconscious on that date. Dr. Benerjee stated that a portion in the bed-head tickect was in his handwriting and bore his initials. He further stated that the particulars of the patient were filled in by the registration compounder in accordance with the usual practice at the aforesaid hospital. He also stated that the aforesaid patient was attended during his stay in the hospital by him, Dr. Manraj Mehta, Dr. Ajeetmal Singhvi, Dr. D. N. Chatterjee and one more doctor, who made their notes on the bed head ticket Ex. A-1 and initialled them and that the record Ex. A-1 was correct and complete Dr. Manraj Mehta DW 5 stated that the medical prescriptions on the bed-he ad ticket from 8-11 -1960 to 15-11-1960 and 17-11-1960 and 19-11-1960 were in his handwriting and that he attended upon the said patient in the Hospital. He also confirmed that at the time when the patient was admitted in the hospital his condition was the same as was mentioned in the bed-head ticket Ex. A-1 as he had examined the patient soon after his admission. The bed head ticket Ex. A-1 mentions that the patient was brought in a state of convulsion in the hospital. He was unconscious, drowsy, had many vomits and passed blood in stool and that on the next day i. e. on regaining consciousness, the patient gave out his history of passing sugar in urine since a long time and that he was loosing weight, feeling weakness and diminution of vision, swetting all over the body since many days, had insomnia and also cough and expectoration. Dr. Mehta further stated that the patient was discharged on November 19, 1960 on his own request although he was not completely cured then. Thus from the aforesaid bed-head ticket Ex, A-l and the statements of the two doctors, Dr. K. Benerjee and Mr. Manraj Mehta, it is absolutely clear that one Jai Singh whose particulars are mentioned in the bed-head ticket Ex A. 1 was admitted as an indoor patient at the Mahatma Gandhi Hospital, Jodhpur on November 7, 1960 and was discharged on his own request on November 19, 1960. It is also proved that the said Jai Singh suffered from diabetes mellitus and that he was suffering from the aforesaid disease for several days before he was admitted in the hospital as an indoor patient. As a matter of fact, he was brought into the hospital on November 7, 1960 in a state of coma after he had suffered from diabetes mellitus for considerable time. The laboratory reports Ex. A-2 to Ex. A-4 reveal that there was acetone in the urine and the sugar content therein was two to three percent. The contention of the learned counsel for the appellant is that there is no evidence on record to connect the husband of the appellant with the person who is alleged to have been admitted in the hospital as an indoor patient on November 7, 1960 and to whom the bed-head ticket Ex. A-l and the laboratory reports Ex. A-2 to A-4 related. It is true that none of the two doctors who attended the patient at the M. G. Hospital knew him from before and when they were examined in Court in January, 1968, they were unable to mention any special features in respect of the identification of Jaisingh. However, the parentage, village, age and caste which have been mentioned in the bed head tickect Ex A-l entirely agreed with the description of Jaisingh and, in my opinion, they are sufficient to identify that the person who entered the hospital as an indoor patient on November 7, 1960 was the husband of the appellant. It is impossible to believe that some other person would have entered the hospital at Jodhpur on November 7, 1960 as Jaisingh whose particulars regarding name, parentage, residence, caste and age as mentioned in Ex. A-l were fully and completely identical with the particulars of the appellant's husband. The brothers of Jaisingh, Sawaisingh and Chandsingh who have been examined as PW 3 and PW 4 respectively have admitted that in the village Nimbol there was no other person by the name of Jaisingh son of Bishansingh Rajput. It is also not disputed that the age of Jaisingh deceased husband of the appellant, at the relevant time would have been nearabout 30 years, because in the proposal form which was admittedly filled in by Jaisingh on November 97, 1958, his age has been mentioned as 27 years. DW 4 Prern Krishan Pitti, Development Officer of the Corporation, stated that he made an enquiry in village Nimbol and there was no other person, who was resident of that viilage by the name of Jaisingh son of Bishansingh, Rajput except the husband of the appellant He also said that on basis of the electoral roll of village Nimbol for the year 1959 that the only person answering to the aforesaid was the husband of the appellant. In D'cruz, F. A. V. D'cruz, Mrs W. E. (l), it was held that the entries in a prescription register maintained by a Government compounder in a Government Dispensary was admissible under S. 35 of the Evidence Act, although the particular compounder who made the entries may not have been called as a witness to prove his handwriting and the evidence of the doctor of having treated a person by the name mentioned in the prescription register would be sufficient evidence to prove that the register was genuine. The same principle should be made applicable in the present case to the inpatient bed-head ticket, which was prepared and kept in the office of a Government Hospital and the same was no doubt admissible in evidence under s. 35 of the Evidence Act, as it was a public record made by a public servant in the discharge of his official duties Learned counsel for the appellant argued that the entries contained in Ex. A-l relating to the description of Jaisingh were not proved. Dr. K. Banerjee and Dr. Manraj Mehta have proved that certain entries made in the inpatient bed-head ticket Ex A 1 were in their handwriting and such entries bore their initials as well. Thus, the genuiness of the aforesaid document Ex. A-l could not be doubted. Their Lordships of the Privy Council in Dirgaj Deo Bahadur vs. Beni Mahto (2) held that a register which is an official document, is admissible in evidence under s. 35 in the absence of anything to show that any particular part thereof was in excess of the official duty. Dr. Banerjee clearly stated that the entries relating to the description of the patient were made by the registration compounder at the time of admission of the patient in the hospital. The whole of the inpatient bed-head ticket Ex. A 1 was an official record and it would be proper to presume that the entries made therein were so made by public servants in the discharge of their official duties. I am, therefore not prepared to discard the inpatient bed-head ticket Ex. A-l from consideration merely because the registration compoun-der, who filled in the particulars of the patient, or the doctor who admitted Jai Singh in the M. G. Hospital, Jodhpur, on 7-11-60 was not examined on behalf of the respondent. There is nothing to create any suspicion or doubt regarding the genuiness of the entries made in the bed head ticket Ex. A-l, both regarding the treatment prescribed by the doctors, who attended upon the said patient while he was an indoor patient at the M. G. Hospital, Jodhpur as also the particulars and the description of the patient recorded at the time of his admission. Much capital was sought to be made in this connection by fact that the name of the person, who gave the description was not mentioned in the bedhead ticket, as Jaisingh was unconscious at the time when he was brought and was admitted in the hospital and further that a declaration regarding the risk and responsibility was not got signed from a relative of the patient, who got him admitted into the hospital. Dr. Banerjee explained that generally a rubber seal is got signed by the patient, if he is conscious or by his relative if the patient is unconscious. But merely on account of the fact that the declaration in question was not got signed by a relative of Jaisingh at the time when he was admitted in the hospital could not lead to the conclusion that Jaisingh, husband of the appellant, was never admitted in the M. G. Hospital, Jodhpur. As a matter of fact the seal relates to willingness to get an operation performed on the patient and it was not at all necessary to affix the seal in the case of Jaisingh, in respect of whom no surgery was required to be performed and the signing of the seal was, therefore, inconse-quential. In view of the evidence of Dr. K. Banerjee and Dr. Manraj Mehta along with the bed-head ticket Ex. A-l, I am convinced that Jai Singh, husband of the appellant, was got admitted in the M. G. Hospital,jodhpur on 7-11-1960 as a patient of diabetes mellitus and coma and was discharged on 19-11 i960 from the hospital on his own request and the identify of Jaisingh husband of the appellant is fully established. As regards the second objection raised by the learned counsel for the appellant, it was argued by him that at the time of revival, the policy holder was required only to disclose any illness between the period of the lapsing of the policy and its revival and that any illness prior to the date when the policy lapsed was not required to be disclosed by the policy holder. In the present case, Jaisingh had already paid premia in respect of the policy in question upto December 23, 1961 and the policy was revived on April 1, 1963 and thus according to the learned counsel for the appellant, only the illness during the period between December 24, 1961 and April 1, 1963 was required to be disclosed by him and not the illness, if any, suffered by Jaisingh prior to December 24, 1961, Jaisingh entered the M. G. Hospital, Jodhpur as an indoor patient for treatment of diabetes mellitus on November 7, 1960 and remained there upto November 19, 1960, which was prior to the date the aforesaid policy lapsed and as such the illness was not required to be disclosed or considered for the purpose of revival of the policy. Learned counsel in this context relied upon Indian Equitable Insurance Go. Ltd Calcutta vs. Om karappa (3 ). In that case, the Rules of the Insurance Company and the terms of the insurance policy merely required that the policy could be revived on the policy holder "furnishing satisfactory evidence of continued good health". It was held in that case that a statement of continued good health in the declaration for the purpose of revival did not imply that the person was required to state that he had no ailment between the date of the original policy and the date of declaration for the purpose of revival but that it would be sufficient if at the time he made the statement he was in good health. However, the form of personal statement regarding health Ex. A-7 which was required to be filled in for the purposes of revival in the present case did not only require a general statement of continued good health of the policy holder, but questions 3 a) and (b) are specific and the policy holder is required to disclose as to whether he suffered from any physical or mental illness, injury or disability since his last medical examination in-connection with the said policy and whether he was required to take medical treatment. The policy-holder was also required to give details of illness suffered by him such as the date and duration thereof, the effect of the treatment and the name and address of the doctor, who treated the person. Thus the decision in Onkarappa's case (3) is not applicable to the facts of the present case. Moreover, Dr. K. Banerjee as well as Dr- Manraj Mehta stated that Jaisingh was not completely cured at the time when he left the hospital on November 19, 1960, but his condition has been described as 'fair' in the bedhead ticket Ex. A I and it has also been mentioned therein that he was discharged on his own request. Dr. Banerjee also stated that there was no cure from the disease diabetes mellitus but in case the patient took insulin injections regularly then his longevity may be normal. Thus the submission of the learned counsel for the appellant that Jaisingh was completely cured of diabetes and did not suffer from it at the time of revival of the policy is not supported by the medical testimony. Learned counsel for the appellant in this respect very strongly relied upon the fact that in short medical report Ex. A 8, Dr. S. C. Mathur, who examined Jaisingh for the purpose of the revival of the policy stated that no sugar was found on an analysis of his urine. In that respect Dr. Banerjee stated that if a man sufferring from diabetes took insulin injection and the urine passed by him within a short period thereof was examined, it may not show any sugar. He further asserted that even if the urine report regarding sugar was nil in the cases of diabetes then too the patient could not be said to have been completely cured of diabetes. Thus the mere fact that at the time of the medical examination by Dr. Mathur, for the purpose of revival of the policy the urine analysis of Jaisingh did not show any sugar content; it could not be concluded that Jaisingh was completely cured of diabetes mellitus. The requirement of questions 3 (a) and (b) was the disclosure of all illness and treatment undergone by the policy holder not only since the date of the lapsing of the policy, but since the last examination of the policy holder in connection with the said policy, which obviously took place in the instant case when the proposal for insurance Ex. A 9 and along with it a confidential report of the medical examination were sent on November 27, 1958. Once the conclusion is reached that Jaisingh, who was admitted in the M. G. Hospital, Jodhpur on November 7, 1960 as an indoor patient was the husband of the appellant, then on the strength of the medical evidence recorded in the case it cannot be held that he was completely cured of diabetes mellitus and, therefore, the disclosure of the aforesaid illness sufferred prior to the lapsing of the policy was necessary in answer to the question 3 (a) and 3 (b ). Thus the second ground urged by the learned counsel for the appellant also fails.
(3.) AS regards the third contention, learned counsel pointed out that forms of personal statement regarding health were also available in Hindi with which Jaisingh was conversant, but the Development Officer of the Corporation did not use the Hindi form but utilised the form in English, although he knew fully well that Jaisingh could only put his signatures in English but actually he did not understand English. In this respect the statement of Johrilal DW 3, Development Officer of the Corporation, is relied upon. Learned counsel also laid stress upon the fact that the form Ex. A 7 was filled in by Joharilal, Development Officer of the Corporation and was not filled in by Jaisingh himself. Learned counsel also relied upon the statements of PW 3 Sawai Singh and PW 4 Chand Singh. PW 3 Sawai Singh and PW 4 Chand Singh are the real brothers of Jaisingh deceased and there is no doubt that they are deeply interested in the plaintiff, who is their brother's widow. Ah hough these persons have stated that Jaisingh had read upto 5th class, they also denied the fact that Jaisingh was ever admitted as an indoor patient in the M. G. Hospital, Jodhpur, although Chandsingh admitted that he passed his B. A. Examination from Jodhpur in the year 1962 and the inpatient bedhead ticket Ex. A 1 also mentioned the address of Jaisingh as "c/o Kanwar Chan Singh, Sardarpura Road No. 1 A; House No. 12/' In view of these circumstances the statements of these two witnesses could not be believed. Further Jaisingh signed the original proposal form for insurance Ex A 9 as also the personal statement of health annexed thereto in English and although the form Ex. A 9 was also not filled in by Jaisingh himself, yet none of the contents of that form which is in English including the questions and their replies has been disputed by the plaintiff. If the statements and declarations made by Jaisingh in that form Ex. A 9 and in the personal statement of Health annexed thereto can be accepted to have been given by him after understanding the same and if Jaisingh was bound by the statements made therein, it is difficult to appreciate the argument of the learned counsel for the appellant that the statements made in the personal statement regarding health for the revival of the policy, Ex. A 7 were not understood by Jaisingh and the replies were, therefore, not binding upon him. Johrilal DW 3 who was the Development Officer of the area concerned at the relevant time when the form Ex. A 7 was filled in, clearly stated on oath that he read over the questions to Jaisingh and also explained to him the questions of the said form Ex A 7 and that the replies entered into the said form were those which were given by Jaisingh himself. He also stated that Jaisingh could understand English. He further explained that when a question in the form is read over to the insured in English and the latter gives a reply to the same either in English or in Hindi, it is sufficient to conclude that the insured understood English, though he may not be able to express himself well in that language. He stated that the que-stions in form Ex. A 7 were explained to Jaisingh by him both in English as well as in Hindi and the answers were written after he had fully understood the questions. The form Ex A 7 also contains a declaration that the statements and answers given therein were true in every particular and that the assured agreed and declared that the statements made there in would be the basis of revival of the lapsed policy between him and the Corporation and that the contract would be void if any untrue averments were contained therein. There is no reason to disbelieve the statement of Johrilal DW 3 as there is apparently no basis for presuming that Johrilal might have written incorrect replies to the questions contained in the form Ex. A 7. DW 4 Prem Kishan Pitti, who had filled in the original proposal form Ex. A 9 on behalf of Jaisingh stated that he knew Jaisingh for 10 years and that from the conversation he had with Jaisingh he came to the conclusion that he was an English knowing man and could understand English quite well. He also stated that he explained the questions in the proposal form Ex. A 9 to Jaisingh in Hindi as well as in English and filled in the form as per the replies given by Jaisingh. Thus this witness also testifies that Jaisingh understood English sufficiently well and was capable of understanding the questions contained in the form Ex. A 7 so as to make him responsible for the answers contained therein. Much stress was laid by the learned counsel for the appellant on the fact that in the declaration in the form Ex. A 7 one of the two alternatives namely, "the contract of assurance/revival of the lapsed policy" had not been scored out. But, in my opinion, it has little relevance in the matter, because admittedly the form Ex. A 7 was filled in not for the purpose of a fresh policy by the insured but it was tilled in for the revival of the lapsed policy of Jaisingh and merely because at the time of signing the form Jaisingh failed to score out one out of the two alternatives, no significance could at all be attached thereto. Learned counsel for the appellant relied upon Smt. Benarasi Debi vs. New India Assurance Go. Ltd. (4) in support of his contention that in case of an assured who did not know English language, mere declaration under his signatures was not sufficient to establish that the assured signed the forms after understanding their full import. In that case it was not denied that the assured did not know English and there was an endorsement in Hindi along with the signatures of the assured on the form to the effect that Lgh le> dj fd;k ;