BENGAL INSURANCE AND REAL PROPERTY CO LTD Vs. VELAYAMMAL

JUDGEMENT

(1.) The appellant in A. Section No. 50 is the Bengal Insurance and Real Property Company having its head office in Calcutta. It was sued by the plaintiff, the widow of one Sengottiah Goundan, to recover the money due on a life assurance policy between her husband and the Company. The proposal for this policy was made through the Company's agent ad Erode on 24 August 1927. The proposal was accepted by the Company on 8 September 1927. Thereupon a half year's premium became payable within five days from the date of the Company's notice of acceptance of the proposal. But this premium not having been paid, a fresh certificate of health, as required by the Company's notice (Ex. 23), had to be furnished by the assured to the Company. This he did on 22 January, 1928, and the declaration or certificate is Ex. 1. It stated that he was at the time in good health and that since his medical examination on 30 August 1927 he had not consulted any medical man or suffered from any illness. The policy was issued on 5 May 1928. In a little over three months, namely on 16th August 1928, the assured died of pernicious anaemia.

(2.) The plaintiff's claim to recover the money was resisted by the Company on. two principal grounds: (1) The written statement alleged that the policy was made void by the fraudulent suppression of a material fact by the assured, viz. his disease, of which he must have been aware at the time when he made his declaration of good health on 22 January, 1928; and (2) that the trial Court at Coimbatore had no jurisdiction over the suit as no part of the cause of action had arisen within the limits of that Court's jurisdiction.

(3.) There is no evidence that the assured was ill when he made the declaration or that he was suffering then from the ailment which was so soon to be fatal to him. The doctor who examined him in August 1927 certified the assured as a first class life for insurance. This witness says that he had never seen a case of pernicious anaemia; but he has read about this ailment and he stated that he saw none of its symptoms in the assured when he examined him. The widow of the assured (P.W. 2) says that her husband was in good health until about 1? months before his death. He was then advised to go to Bangalore for a change, and he died in Bangalore. The doctor who attended him there has not given evidence. He gave the certificate that assured was cinder his treatment for pernicious anaemia and that he died of this disease. This information is expanded in a later letter to the effect that the assured was under his treatment from 29 July till his death. But there is no evidence when this ailment seized the assured. Refer. ence has been made to standard medical books, from which it appears that pernicious anaemia is an insidious complaint which may run its course rapidly within a period of 6 to 12 weeks. Upon this state of the facts it is impossible to hold that the defendant company has succeeded in showing that the assured knew that he had this disease or, indeed, that he had it in January 1928 when he signed the declaration of his good health, or even in April when he paid the premium. The learned advocate for the appellant briefly referred to the question whether the plaintiff's suit might not be barred by Art. 85, Lim. Act, the suit having been brought more than three years after the proof of the death of assured. But he very fairly conceded that it was difficult to maintain this position in the face of Ex. 12. This document is a clear admission by the company of the claim and is sufficient to save the bar of time. We are of opinion that the suit is not time-barred.