Rekha Kumari, J.
1. First Appeal No. 337 of 1977 and First Appeal No. 338 of 1977 filed by the Life Insurance Corporation of India (hereinafter referred to as the Corporation) and others arise out of the same judgment dated 17.1.1977 passed by the 3rd Additional Subordinate Judge, Munger in Money Suit No. 1 of 1970/1 of 1976 and Money Suit No. 13 of 1969/ 2 of 1976 and as such they have been heard together and this judgment would govern both the appeals. Money Suit No. 1 of 1970/1 of 1976 was filed by the original respondent Smt. Jharo Devi against the appellants and Money Suit No. 13 of 1969/2 of 1976 was filed by respondent Tilak Yadav against the appellants and the suits were disposed of by the above common judgment. Smt. Jharo Devi was widow of Late Sundar Mahto and Tilak Yadav is the son of Sundar Mahto.
2. The plaintiffs had brought the suits being nominees of Sundar Mahto for recovery of Rs. 14,191/- and 27,827/- inclusive of interest being due under Insurance Policy Nos. 10062040 and 10062015 of the year 1960 effected with the Life Insurance Corporation of India on the life of the above Sundar Mahto.
3. The case of the plaintiffs-respondents is that Sundar Mahto had taken the above policies from the Corporation. The policies were for a period of 20 years. He paid the premium regularly. At the time of proposals, for the above policies, he was examined by the Medical Officer of the Corporation. Other formalities were also complied with. The Corporation, hence, accepted the proposals. He also sent his horoscope in proof of his age which was also accepted and the Corporation granted age admission certificate on 20.3.1961. Sundar Mahto, however, died on 19.12.1963 due to Coronary Thrombosis and sudden heart failure within two hours of illness. He was examined by the local doctor at that time. The plaintiff sent information to the District Manager of the Corporation about the death and sent claim forms duly filled in. The Corporation after more than three years sent its reply to the plaintiffs that the age of the insured was very much understated in the proposal forms in relation to the policies and the insurances were effected by suppressing inter alia the fact that the proposer had already attained the un-insurable age and thereby the Corporation had repudiated the claims.
4. The case of the plaintiffs-respondents, hence, is that the Corporation being satisfied with the conditions of the general health reported by the Medical officer had accepted the proposal and being satisfied with the horoscope had also accepted the age of the insured. Therefore, the Corporation was estopped from challenging the age given in the proposals and could not repudiate the contract and refuse to pay the amounts insured and the plaintiffs are entitled for the recovery of the above amounts.
5. The appellants Life Insurance Corporation of India and others contested the suit by filing written statement. Their case, inter alia, is that at the time of effecting insurance, the Corporation on the basis of the horoscope submitted and the medical certificate, had accepted the proposals of the deceased Sundar Mahto in ordinary course, in good, faith believing the declaration given by him about the age to be correct. However, after his death, on enquiry they came to know that the deceased had suppressed material facts, inasmuch as he had suppressed that he was suffering from elephantiasis for some years before the proposal and had also understated his age. The enquiry revealed that he had already attained an un-insurable age.
6. The case of the appellants, hence, is that the claims of the respondents have been rightly repudiated. The Corporation on no account can be stopped from challenging the correctness of the age of the deceased insured. The suits, hence, are fit to be dismissed.
7. The learned Subordinate Judge on the basis of the pleadings of the parties framed the following issues for consideration:
(i) Whether the suits as framed maintainable?
(ii) Whether the plaintiffs have got any cause of action and right to sue?
(iii) Whether the suits are barred by law of limitation and under any provisions of the Insurance Act?
(iv) Whether there was any suppression of the material information and fact regarding the age and health of the insured?
(v) Whether the plaintiffs are entitled to get a decree of the amount as claimed by them?
(vi) To what relief or reliefs, if any, the plaintiffs entitled to?
8. The learned Subordinate Judge, after considering the evidence adduced by the parties held that there is no clear proof that the deceased was suffering from elephantiasis from before submission of the proposals and the enquiry report submitted by Sri A.P. Verma, Branch Manager, L.I.C. Munger stating that the deceased was suffering from elephantiasis is not correct. He further held that from the evidence adduced, it cannot be said that the age given by the deceased in the declarations was false and incorrect. He accordingly decided the issues in favour of the plaintiffs-respondents and decreed the suits.
9. The points which have been urged in these appeals are whether the deceased had suppressed the fact that he was suffering from elephantiasis and had given an incorrect age and if so, whether they are sufficient for the appellants to repudiate the claims.
10. In this connection, it is relevant to refer to Section 45 of the Indian Insurance Act, 1938 (hereinafter called the said Act) which reads as follows:
No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or 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.
Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.
11. Therefore, so far as the first part of Section 45 of the Act is concerned, a policy can be called in question on the ground that some statements leading to the issue of policy was found incorrect or false, only within two years of the date it was effected. But in this case admittedly the deceased died after expiry of two years from the date on which the policy was effected. So, only because some statement in the declaration was incorrect or false, it cannot be the basis of repudiation of the claim in these cases. However, the claims in these cases have also not been repudiated on the ground that some statements were false or inaccurate. Therefore, the court is not concerned with this part of Section 45 of the Act in these cases.
12. As regards the second part of Section 45 of Act, in the case of Mothoo Lal Naik v. L.I.C. of India : AIR1962SC814 , which was also a case of repudiation, the Supreme Court held that three conditions are necessary for the application of second part of Section 45 of the Act.
(a) The statements must be on a material matter or must suppress facts which it was material to disclose.
(b) The suppression must be fraudulently made by the policy holder.
(c) The policy holder must have known at the time of making statement that it was false or that it suppressed facts which were material to disclose.
13. A Division Bench of this Court in the case of Ratanlal v. Metropolitan Insurance Company : AIR1959Pat413 has explained what is 'material fact' as 'Authorities say that any fact which intends to suggest that the life is likely to fall short of average duration is a material fact'.
14. In this case, according to the pleading of the appellants, the deceased had suppressed the material fact that he was suffering from elephantiasis from before the proposals. The proposal of the deceased has, however, not been brought on record to show whether he had mentioned about it in the proposal or not. However, as the respondents have denied that the proposer was suffering from this disease, it may be taken that no mention was made by the deceased in the proposals.
15. The question, hence, is that whether actually the insured was suffering from the above disease.
16. In this regard it is an admitted fact that the insured was examined by a Medical Officer on behalf of the Corporation at the time of contract. That doctor, hence, was a very important witness on this point because he had examined the insured to ascertain his general conditions of health but he has not been examined by the appellants. If the insured had been suffering from this disease, there was no reason why the doctor would not have noticed it but his certificate has also not been produced by the appellants in Court.
17. The Corporation, however, has examined Dr. Shambhu Nath Todi (D.W. 1), Dr. Ali Razi (D.W. 2) and has proved the letter (Ext. A) dated 18,2.1966 written by D.W. 1 to the Branch Manager, Letter (Ext. B) dated 14.12.1965 written by D.W. 2 to the Divisional Manager, L.I.C. Patna and a letter dated 15.12.1965 written by Dr. Jafar Hassan to the Divisional Manager, L.I.C. Patna (Ext. B/l) in support of their case. According to D.W. 1, he was posted as Medical Officer, Sheikhpura State Dispensary and he had examined Sundar Mahto on the date of his death and he was suffering from elephantiasis. D.W. 2 has also stated that he had practiced at Sheikhpura and had examined Sundar Mahto. He was suffering from elephantiasis. The learned Subordinate Judge had disbelieved the evidence of these two doctors. The evidence of D.W. 1 shows that he had deposed about the malady on the basis of the memory and the letter (Ext. A) written long after the death of the insured, during enquiry by the Branch Manager. The evidence of D.W. 2 is also not based on any prescription or any entry of any register of his clinic. His letter (Ext. B) shows that in that letter, during enquiry, when he was residing at Patna and he had written that the insured was suffering from the above malady. So this is also based on memory. Therefore, I agree with the learned Subordinate Judge that from the above evidence, it cannot be concluded that the insured was suffering from the above disease.
18. As regards the letter of Dr. Jafar Hassan (Ext. B/2), the doctor himself has not been examined. So, this latter is of no consequence.
19. As against the above evidence, the plaintiffs have filed copy of the medical certificate of Dr. Todi (D.W. 1) who had attended the insured at the time of his death on 19.12.1963. The evidence of D.W. 1 also is that he was Medical Officer, L.I.C. and had examined Sundar Mahto at the time of his death. The certificate shows that nowhere it is written that the insured was suffering from elephantiasis.
20. P.Ws. 1, 2 and 4 who are neighbours of Sundar Mahto have also stated that Sundar Mahto never suffered from elephantiasis.
21. Therefore, the learned Subordinate Judge has correctly held that mere is no reliable evidence that the insured was suffering from elephantiasis and so suppressed this fact fraudulently in his declaration. There is also no evidence that this is such a disease which shortens the longivity of a person. Hence, it cannot be said to be a material fact as described above.
22. To crown all, admittedly the claims were repudiated only on the ground that the insured had understated his age. The above disease was not a ground to repudiate the claims. Therefore, even if it be assumed that the insured had suppressed this fact, that is not important in deciding whether the L.I.C. of India was justified in repudiating the claims.
23. As already mentioned the ground on which claims have been repudiated is that the age of the insured was very much understated in the proposal form in relation to the policy and the insurance was effected by suppressing, inter alia, the fact that the proposer had already attained an uninsurable age.
24. The age of a proposer is definitely a material matter as it has nexus to the premium and insurability and is covered by the second part of Section 45 of the Act and this matter, hence, can be called in question even after two years of coming into effect of the Insurance Act, 1938.
25. The parties in their pleadings have not stated the age given by the insured in his proposals. The policies (Exts. K & K/1), however, show that the age given in the proposals was 48 years. The policies also show that they were issued without verifying the age of the proposer, on the basis of the age given by him in the proposals. The case of the respondents is that they had sent the horoscope of Sundar Mahto to the L.I.C. Exts. 7 & 7/A (letters dated 22.2.1961 and 20.2.1961 of L.I.C.) show that the horoscope was received. The age admission certificates (Exts. 6 & 6/A) show that being satisfied with the evidence of age furnished, the L.I.C. had admitted the age of the proposer.
26. Learned Counsel for the respondents submitted that when the Corporation accepted the proof of age furnished by the proposer, it cannot afterwards be heard to say that the age of the proposer was something different from what he had stated. But when the statements provide that even thereafter the age given can be called in question, the appellants cannot be estopped from pleading this. There cannot be estoppel against statement.
27. In the case of Allianz & Stuttgarter Life Insurance Bank Company Ltd. v. Hemanta Kumar Das : AIR1938Cal641 a Division Bench of Calcutta High Court had observed in almost a similar case that 'It is not necessary that one should apply in terms of the principles of estoppel because that is merely a rule of evidence. In my view, the matter goes far deeper than that.' The High Court in that case held that after admission of the age, the Company cannot say that the age is different.
28. The above decision was referred to in the case of P.C. Chocko v. Chairman of L.I.C. of India : AIR2008SC424 in the Supreme Court, and the decision of the Supreme Court shows that the above principle is not applicable where there was enquiry subsequently with regard to the question.
29. So, only because the appellants had admitted the age of the insured, it cannot be said that the matter cannot be reopened.
30. The plaintiffs respondents in support of the age of the insured has not filed any document in court. P.W. 1 in his cross examination has stated that Sundar Mahto was aged about 54 years at the time of his death. P.W. 4 has stated that Sundar Mahto was aged 52 years at the time of his death. P.W. 5, aged about 75 years on 27.8.1975 (as recorded in the deposition) has stated that Sundar Mahto was 12 years younger than him. Likewise, P.W. 6 examined in court on 27.8.1975 had given his age as 70 years and has stated that Sundar Mahto was younger than him by 4-5 years.
31. As against this, the appellants have proved the entries of admission register of D.M. High School, Sheikhpura Mungerand they have been marked as Exts. D & D/1. According to Ext. D Sita Sharan Prasad Son of Tilak Prasad resident of Lal Bagh of Sheikhpura was admitted in the school in Class IV on transfer from L.P.I. School, Yehyapur, Munger on 3.1.1951 and his date of birth was 15.2.1942. According to Ext. D/1, Om Prakash Son of Tilak Prasad of the same village was admitted in the school in Class VI on 2.7.1954 and his date of birth was 2.1.1945. So, according to these entries, Sita Sharan Prasad was aged 18 years on 15.2.1960 and Om Prakash was aged 15 years on 2.1.1960.
32. The appellants have also proved entries in the admission register of an Upper Primary Girls School, Sheikhpura and they have been marked as Exts. D/2, D/3 and D/4. According to Ext. D/2 Lalita Devi, daughter of Tilak Prasad Yadav of Lai Bagh, Sheikhpura was admitted on 31.7.1956 in Class I and her date of birth was 31.3.1951. The signature of Tilak Yadav on the entry is Ext. E/2. Ext. D/3 shows that Chameli Devi, daughter of Ram Charan Prasad of Lai Bagh, Sheikhpura was admitted on 9.1.1963 on transfer in Class IV and her date of birth was 4.9.1953. Ext. D/4 shows that Basanti Devi, daughter of Tilak Yadav of the same village was admitted on 28.1.1963 in Class VI and her date of birth is 23.12.1948. The signature of Tilak Prasad in this entry has been marked as Ext. E/3.
33. Thus, according to this entry Lalita Devi, daughter of Tilak Prasad was aged 9 years on 31.3.1960. Chameli Devi, daughter of Ram Charan Prasad, brother of Tilak Prasad was 7 years on 4.9.1960 and Basanti Devi, daughter of Tilak Yadav was aged 12 years on 23.12.1960.
34. If the dates of birth of the above children are taken into consideration, definitely Sundar Mahto, their grand father was aged more than 48 years on the date of proposal i.e. on 21.12.1960 as shown in the policies.
35. The learned Subordinate Judge has not relied on these entries on the ground that there is no proof that the dates given are correct and that as Tilak Yadav and his family members were all villagers, the dates were mentioned on mere suppositions and conjectures. But for illustration, without analyzing the age of the other children, if the dates of birth of his first two children are taken, the first son of Tilak Yadav was admitted in Class IV and according to the date of birth recorded he was aged 9 years at that time. The date of birth recorded, hence, appears to be proper. It can be expected that a student of Class IV would be of nine years. Similarly, the second son Om Prakash was admitted in Class VI and according to the date of birth he was 9 years of age at that time. This is also quite probable.
36. The plaintiffs respondents have also not filed any document to show that the dates mentioned in the above documents are not correct. However, in his deposition Tilak Yadav (P.W. 8) has denied that he had any son named Sitaram Yadav But, there is no evidence that there is/was any other person in the same name and parentage in his village. In the entry also their father's name has been given as Tilak Yadav. The appellants have also filed copy of the written statement of Smt. Panna Devi dated 7.1.1966 (Ext. I/1) to show that Sitaram was son of Tilak Yadav and he had died leaving behind his widow Panna Devi.
37. It may be mentioned here that in the admission register the name Sita Sharan Prasad son of Tilak Yadav has been mentioned, whereas in other evidence the name of that son has been mentioned as Sitaram Yadav, but there is no doubt that both are the same persons being son of Tilak Yadav.
38. As regards Om Prakash, P.W. 8 in his evidence has stated that he had two marriages. He had no issue from the first marriage, and after the death of his first wife, he married the second wife who was a widow, and she came to his house with two children, a son named Om Prakash and a daughter named Basanti Devi from the first husband. But if Om Prakash is not the own son of Tilak Yadav, surely in the admission register his name would not have been given as the father of the child. The entry in the admission register also shows that Tilak Yadav had gone to the school and put his signature in the admission register. Therefore, it cannot be said that Om Prakash was not the son of Tilak Yadav.
39. Besides the above documents, the appellants have relied upon the sale deed (Ext. H) executed by Sundar Gope and Ram Kishore Gope in favour of Sk. Azhar Hussain. The deed is dated 25.6.1938 and is signed by Tilak Yadav (plaintiff) as witness. Learned Counsel for the appellants submitted that as Tilak Yadav was a witness in the deed, he must have attained majority and be atleast of 18 years at that time. Hence, he was 40 years of age in 1960. So, his father Sundar Gope could not be of 48 years at the time of proposal.
40. Though, this is not a proper evidence of age, the document lends support to the case of the appellants.
41. Ext. 1 is the deposition of Tilak Yadav in G.R. Case No. 1212 of 1964 in which he has stated his age as 41 years and the court has assessed his age as 45 years. The deposition is dated 21.1.1965. Therefore, according to this document, plaintiff Tilak Yadav was of 38 years in 1960. So, his father Sundar Yadav was much more than 48 years in 1960. When a witness mentions his age after he had been sworn in, that age is certainly a proper evidence.
42. According to the voter list (Ext. J.) Sundar Yadav was of 72 years of age on 1.1.1959 and Tilak Yadav was of 40 years of age. Though, this is not a conclusive proof of age, the document also suggests that Sundar Yadav was of much more than the age given by him in the declarations.
43. Therefore, in view of the above documentary evidence, particularly the dates of birth of two grand sons of Sundar Mahto in the admission register of the school which can be presumed to be correct in the absence of other reliable evidence to the contrary, it is clear that Sundar Yadav was aged more than 48 years if not above 70 as suggested to Tilak Yadav (plaintiff) on the date of proposal and in the face of those documents, no reliance can be placed on the oral evidence adduced on behalf of the plaintiffs.
44. In this case, of course, as mentioned above, the report of the doctor, who had examined the insured at the time of acceptance of proposal has not been brought on record. The doctor has also not been examined by the appellants. But the doctor had examined him in respect of the general conditions of health and his report is also not an evidence in proof of age. So, even if it be assumed that he had mentioned the age of the proposer as 48 years, that cannot be taken to be proper evidence of age. Therefore, non examination of the doctor and non filing of his report cannot over weigh the above evidence of the appellants.
45. The plaintiffs have also proved the copy of the death report (ext. 3) prepared by Dr. Shambhu Nath Todi (D.W. 1). According to this report, on the date of death i.e. 19.12.1963 Sundar Yadav was of 52 years. Learned Counsel for the appellants submitted that the age given by the doctor is not based on any scientific method and as the report gives the policy numbers, it appears that on the basis of the policies he had noted the age of the deceased. The report shows that the same was prepared on 14.1.1964, several days after the death. Therefore, the contention of the learned Counsel cannot be ruled out. Besides this, the report was with respect to the cause of death and not on the point of age. So, it cannot be given preference over the age of the grand sons of the deceased recorded in the school register by a public servant in discharge of his duties.
46. Therefore, I find from the evidence adduced by the parties that the insured Sundar Yadav had understated his age in the proposals. He was much more than 48 years of age on the date of proposals. The Horoscope furnished to the L.I.C. of India by the proposer in support of his age thus does not appear to be genuine. It is also an admitted fact that the Horoscope was received by the Corporation after about two months of the proposal. Hence, in the absence of explanation for delay, it can be inferred that it is a manufactured document. This also proves that the policy holder know about his real age at the time of the proposal which is a material fact but fraudulently suppressed it.
47. So, when Sundar Mahto (insured) had given a deliberate wrong answer in respect of his age which has a great bearing on the contract of insurances, it is evident that the contract of insurances had vitiated. The L.I.C. of India (appellants) were thus within their rights to repudiate the claims of the nominees on the death of the insured.
48. The learned Subordinate Judge has observed that life insurance is a social security measure and the L.I.C. should have liberal approach. But though the policy of insurance serves the purpose of social security, the same should not be obtained by practicing fraud.
49. In the result the judgment and decree passed by the learned Subordinate Judge is set aside. The appeals are allowed. In the facts and circumstances of the case, however, the parties would bear their own costs.