Judgment:
A.S. Tripathi, J.
1. This appeal is preferred against the judgment and decree dated 1-11-1991 passed by IVth Additional District Judge of Gwalior, whereby a decree for recovery of Rs. 50,000/- along with interest of Rs. 11,250 and interest at the rate of 18 per cent per annum was passed, with Rs. 50 as expenses incurred on notices etc. However, Rs. 1,388.80 paise were directed to be adjusted. Costs was also allowed in favour of the plaintiffs/respondents.
2. One Surjan Singh had taken life insurance policy for Rs. 50,000/-under Policy No. 57592125 on 25-5-1982. Surjan Singh died on 20-11-1982 on account of sudden illness in the hospital. The plaintiffs/respondents had put a claim of Rs. 50,000/- under the life insurance policy which was refused by the defendant/appellant, hence, the suit was filed.
3. The plaintiffs/respondents alleged that Surjan Singh was quite healthy at the time of taking of insurance policy, he suddenly fell ill on 13-11-1982 and was hospitalised. Some swellings and boils had taken place and he died on 20-11-1982. The Insurance Company wrongly refused to pay the claim, hence the suit was filed.
4. The defendant/appellant contested the suit on the grounds that Surjan Singh had concealed his ailment and the Insurance Co. was not liable to pay in accordance with section 45 of the Insurance Act. Surjan Singh was suffering from Jaundice, which he did not disclose in the policy form and on that ground, nothing was to be paid under the policy.
5. The trial Court had framed necessary issues on the points of the claim of the plaintiffs/respondents, insurance policy, concealment of illness by Surjan Singh, etc and recorded the evidence. Alter recording evidence, the trial Court came to the conclusion that Surjan Singh had not concealed anything in his policy and the plaintiffs were entitled to the claim and the same was decreed accordingly.
6. In this appeal, after hearing learned counsel for the appellant/defendant Shri T C. Singhal, and Shri S. K. Jain, counsel for the plaintiffs/respondents, the first point raised by the learned counsel for the appellant/defendant was that Surjan Singh had concealed his illness of Jaundice in the form and on that ground, the claim could not be allowed by the trial Court
7. It has come in evidence that Surjan Singh had taken a policy on 25-5-1982. He was medically examined by the doctor of the Insurance Company and he was found fit to have a policy. On that recommendation, policy was given for Rs. 50,000/-. Later on 13-11-1982 Surjan Singh suddenly fell ill. He had a boil in the scrotal region with swelling. He was hospitalised on 13-11-1982 and he died on 20-11-1982.
8. According to the contention of the learned counsel for the appellant/defendant, Surjan Singh was suffering from Jaundice, which he had not disclosed in the policy proforma. There is nothing on record to suggest that Surjan Singh was suffering from Jaundice at the time of obtaining policy. The only evidence which has come is of his previous illness, that he was hospitalised only for two days from 9-8-1981 to 11-8-1981 on account of some fever etc. He was medically treated and discharged. This was not such an illness which could be said to have been concealed at the time of taking of policy. From the medical report Ex. D/4 on record, it appears that Surjan Singh went in hepatic coma and he had an ailment of cellutitis abscess. This was not such an illness which could be known to the deceased earlier at the time of obtaining policy, which he was bound to disclose. The medical report Ex. D/4 clearly indicates that he was found to have been suffering from swelling over the scrotal region four days before the admission in the hospital due to an accident from his scooter eight days back only. Since then he had developed swelling in the scrotal region, and the same swelling had attained the present size within eight days, which could not be cured and he died. It was clearly mentioned in the medical report that swelling was the cause of death. Hepatic coma had developed on account of this swelling and injury and ultimately Surjan Singh died. This could not be known to Surjan Singh at the time of taking policy that he would meet with an accident, which would result in his death. The illness of jaundice which was mentioned in the history sheet was not such an illness which could have been mentioned in the policy by Surjan Singh, as the same was only mentioned casually in the medical history sheet, which was said to have been developed after the policy.
9. There is nothing in the medical report Ex. D/4 to show that Surjan Singh was suffering from Jaundice at the time of policy. Jaundice was not such an ailment, which could be concealed and could not be detected by the doctors of the Insurance Company, who examined him at the time of policy. This developed later on, and therefore, on that ground, claim of the plaintiffs could not be rejected.
10. In the oral evidence, PW. 1 Prakash Kaur wife of deceased, had stated on oath that deceased was having sound health. PW. 2 Gurudpal Singh had also stated the same facts.
11. On the other hand, D.W. 1 F. A. Khan and D.W. 2 Dr. Ashok. Kumar Hemal had simply stated in respect of the illness of the deceased, on account of which he died.
12. The trial Court, after examining the evidence on record, rightly held that there was no concealment of any major ailment on the part of Surjan Singh at the time of obtaining Policy and in such a condition, claim of the plaintiffs could not be denied.
13. The trial Court also rightly relied on the cases of Smt. Krishnawanti v. Life Insurance Corporation, AIR 1975 Delhi 19, and the cases reported in AIR 1971 AP 41, AIR 1981 Delhi 171, and 1983 MPLJ Note 47.
14. In the case of Mithoolal v. Life Insurance Corporation, AIR 1962 SC 814, conditions laid down in section 45 of the Insurance Act have been clarified and the law laid down was that the factors governing section 45 of the Insurance Act will depend upon the facts of each and every case. To deny the claim under the insurance policy, the company has to prove that material facts were suppressed by the policy holder, suppression must be fraudulently made by the policy holder and the policy holder must have been knowing at the time of making statement that it was false, or the suppressed facts were material to be disclosed.
15. The implication of section 45 of the Insurance Act was also considered in the case of P. Sarojam v. L.I.C. of India, AIR 1986 Ken 201, in which it was found that the policy holder had a heart ailment for two years and was granted leave by the Department, and was getting treatment for the same. He did not disclose this fact in the policy and on that ground it was found that he had suppressed all material facts.
16. But in the present case, there was nothing for the policy holder Surjan Singh to disclose, which was a material fact for insurance policy. The only evidence which has come was that Surjan Singh had fallen ill for two days earlier for minor ailment like fever etc., and that was no fact material for disclosure by the policy holder, and as such, the claim of his dependants could not be denied. Similar view was taken in the cases reported in V.K. Kohli v. Life Insurance Corporation of India, AIR 1992 All. 45 and Life Insurance Corporation v. G.M. Channabasamma, (1991) 1 SCC 357.
17. Therefore, I find that the trial Court had rightly assessed the evidence on record and correctly held that there was no suppression of material fact on the part of the policy holder, and the suit was rightly decreed for recovery of the policy amount with interest.
18. Second point raised by the learned counsel for the appellant/defendant was that excessive interest has been allowed.
19. I have examined this point and I find that the interest claimed by the respondents/plaintiffs was rightly assessed at Rs. 11,250/- to be paid till the filing of the suit. But during the pendency of the suit and future interest, the same could be allowed not more than 6 percent per annum as provided under section 34 of the Code of Civil Procedure. It was not a business transaction, and therefore, in absence of any contract for interest, the same could be allowed not more than 6 percent per annum. In the Insurance policy, there is no contract for interest, and therefore, the statutory rate of interest could be allowed which could not exceed 6 per cent per annum. As such, the rate of interest pendente lite and future could not exceed Rs. 6/- per cent per annum and the same could be allowed to that extent only.
20. Thus, it is held that the suit for recovery of Rs. 50,000/- plus interest till the date of filing of the suit, i.e. Rs. 11,250/- with notice expenses of Rs. 50/- was rightly decreed in favour of the plaintiffs/respondents. The adjustment of Rs. 1,388.80 paise was also rightly ordered by the trial Court. But the interest on the principal sum from the date of suit till the date of payment of the amount, shall be only at Rs. 6/- per cent per annum.
21. Except in the modification of rate of interest pendente lite and future, as indicated above, this appeal is dismissed with costs.