1. On February 19, 1968, Smt. Krishna Wanti Puri widow of Late Dharam Pal Puri instituted an action against the Life Insurance Corporation for the recovery of Rs, 85,000/- and profits and interest on the four policies.
2. Dharam Pal Puri when he was alive insured his life with the Corporation and took out four policies, particulars whereof are as under:-
Date Policy Amount Policy No. 12-10-1959 Rs. 10,000/- 6081583; 12-6-1961 Rs. 25,000/- 6151357 10-3-1964 Rs. 45,000/- 6297731 15-6-1964 Rs. 5,000/- 6315544
3. Dharam Pal Puri died on 5th August 1964. The widow claims the amount of the four policies from the Corporation on the ground that she is the assignee. The Corporation resists the suit. The main ground of defense is that Dharam Pal Puri was suffering from heart disease, that he know about his ailment, that he had consulted doctors about his disease but fraudulently suppressed these facts. In the proposal forms and the personal statements he made declarations knowing them to be false because he never disclosed to the Corporation that he, was suffering from heart disease.
4. On the pleadings of the parties the following issues were framed on merits on 19th August, 1969:-
1. Is the plaintiff entitled to recover the amount, if any, due to her on the policies mentioned in the plaint on the allegations made in the plaint? O. P. P.
2. Who is the assignee of these policies? O P. P.
3. Are the defendants entitled to deny payment to the plaintiff on the grounds stated in the written statement? O. P. D.
4. Relief
Issue No. 3:
5. The only question that arises for decision is whether the widow is entited to recover the amount of the four policies from the defendant Corporation or whether the Corporation is entitled to avoid the policies and refuse to pay the amount to her on the ground that the deceased fraudulently concealed and suppressed material facts which were necessary for the insurer to know.
6. The chief issue in the case is Issue No. 3 and clearly the onus of this issue was on the defendant Corporation to prove fraudulent concealment and material suppression of facts. In support of their case the Corporation examined three doctors. They are Dr. Santosh Singh who was examined on commission, Dr. (Miss) S. Padmavati (D. W. 3) and Dr. V. K. Dewan (D. W. 10). In order to appreciate their evidence it is necessary to set out the relevant questions which were required to be answered by the deceased in the personal statements and the answers given by him thereto.
Question Answer What has been your usual state of health? Good Have you consulted a medical practitioner within the last five years? If so, give details. No Have you ever suffered from any of the following ailments - fainting attacks, pain in chest breathlessness pulpitation or any disease of the heart No Any other illness within the last five years requiring treatment for more than a week. No Have you ever had any electric cardiogram. X-ray or fluoroscopic examination made or your blood examined. If so, give details. No Have You ever been in any hospital, asylum or sanatorium, check up, observation, treatment or an operation? No
7. In identical terms were the answers of the deceased in all the four policies. On the basis of these statements the Corporation issued the policies.
8. On the death of Dharam Pal Puri the widow made a claim and gave to the Corporation the certificate of death of her husband. From the certificate the Corporation came to know that the deceased was admitted in Sir Ganga Ram Hospital on 4th August, 1964 and died there on 5th August. 1964. The Corporation also learnt that the deceased was suffering from Mitral Stenosis with auricular fibrillation and that he died of this disease in the hospital. The Corporation made certain investigations and as a result came to the conclusion that Dharam Pal Puri was suffering from this heart disease since 1959 in any case, if not earlier. The Corporation contacted the three doctors named above and took from them certificates stating that the deceased was suffering from this heart disease.
9. Dharam Pal Puri consulted Dr. (Miss) S. Padmavati on 29th May, 1959 and 25th of September, 1959. Dr. Padmavati appeared in the witness-box and deposed to this effect. She had at the request of the Corporation issued a certificate on 11th December, 1964 in which she had stated that the deceased was examined by her on these two occasions and that he suffered from Mitral Stenosis with auricular fibrillation. In the certificate she had also said that the deceased was suffering since 1946 according to the statement of the patient himself which was made to her. This Doctor never saw the patient after 25th September, 1959. When Dr. Padmavati was examined in court on 9th October, 1970 she said that she verified the contents of certificate (D-6) issued by her from the records of the Lady Harding Hospital which were supplied to her. It appears that on 11th December, 1964, when she gave the certificate the records of the Lady Harding Hospital were available to her. She was Professor of Medicine in Lady Harding Medical College at that time. She is F. R. C. P. of London and F R. C. P. of Edinburgh. She also deposed that before she signed the document she verified the name, address and age of the Patient from the record. As regards the nature of the disease, she said this:
'Mitral stenosis is a type of rheumatic heart disease. Auricular Fibrillation is a complication of mitral stenosis in which an abnormal rhythm is super imposed. According to entry made in Col. 5 the patient's case was a case of serious form of heart disease. This disease can be checked without doing the electro cardiogram. This disease can be checked by a stethoscope. Normally a general medical practitioner should be able to check this disease.'
10. The next medical man who was approached by the Corporation to find out the nature of the disease from which Dharam Pal Puri was suffering was Dr. V. K. Dewan. He had also similarly certified on 17th November. 1964, that Dharam Pal Puri suffered from the very ailment of which Dr. Padmavati deposed. He also said that deceased had been suffering from this disease for about five or seven years before his death. Dr. Dewan is an honorary physician in Sir Ganga Ram Hospital. He attended or the deceased when he was admitted to the hospital on 4th August, 1964. In his evidence before the court he stated that the contents of his certificate (D-7) were correct and the entire form had been filled up by him in his own hand. He delivered the information from the hospital record where the patient was admitted.
11. Dr. Santosh Singh was examined on commission at Ranchi. When the deceased was admitted in the hospital in August 1964, Dr. Santosh Singh was the Registrar of Sir Ganga Ram Hospital. He also attended on the deceased on the 4th and 5th of August, 1964. and similarly gave two certificates regarding the hospital treatment. In the two certificates (B-2 and B-3) Dr. Santosh Singh stated that Dharam Pal Puri was suffering from Mitral stenosis and died as a result of heart failure. He said that the deceased had been suffering from this disease for about seven years before his death and the symptoms of this illness were first observed by the deceased about seven years ago. Both these certificates were signed by Dr Santosh Singh. He solemnly declared that the foregoing statements were true and correct to the best of his knowledge and that the information was correct as per records of the hospital. These certificates are dated 31st October, 1964. Dr. Santosh Singh also signed a report regarding the deceased wherein too he stated that the deceased was suffering from this ailment for the last 71/2 years (Exhibit A). These certificates and report were obtained by Shri P. C. Puri, the brother of the deceased, and were passed on to the Corporation. These certificates set the Corporation thinking and put the officials on enquiry regarding the cause, place and the date of his death.
12. Later on it appears that Dr. Santosh Singh was prevailed upon by the relatives of the deceased and he issued another certificate of hospital treatment dated 24th October, 1964 and a report dated 28th November, 1964. In the certificate and report Dr. Santosh Singh stated that some attendant on the deceased had reported to him that Dharam Pat Puri had been suffering from the disease only for the last 11/2 years. The relatives also procured another medical attendant certificate dated 30th October, 1964, Purported to be signed by Dr. Santosh Singh wherein it was stated that the deceased had been suffering from this disease for about 11/2 years before his death. A Photostat copy of this certificate dated 30th October, 1964, was produced during the examination of Dr. Santosh Singh on commission, (Exhibit E). The original of this document has not been placed on the record. In his examination Dr. Santosh Singh admitted the correctness of all the documents. He also admitted that Dr. V. K. Dewan was the Physician in charge who was attending on the deceased in the hospital. He admitted that the records of the hospital were available to him at the time of signing the two certificates (B-2 and B-3). When it was pointed out to the witness that in some certificates he had given the duration of the disease 71/2 years and in some 11/2 years, the witness said:
'It appears that certain entries in Exhibit B-3 and Exhibit 'E' different. I cannot assign any reason unless I see the original records. Without reference to the original record it is not possible to say whether the entries in the certificates are correctly made.'
13. This is the evidence of the three doctors and the counsel for the Corporation strongly relies on their evidence to show that the deceased had been suffering from heart disease since 1946 and, as has been proved in the evidence of Dr. Padmawati that Dharam Pal knew about the same and that is the very disease of which he ultimately died. On the ground of fraud and suppression of material facts the counsel urges that the Corporation is entitled to avoid all the four policies.
14. Section 45 of the Insurance Act, 1938, in so far as it is material is in these terms:
'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 of 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 hat 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:
........................................................... '
15. In Mithoolal Nayak v. Life Insurance Corporation of India, : AIR1962SC814 it was held that the three conditions for the application of the second part of Section 45 are:
(a) the statement 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; and
(c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.
16. The crucial question before me is whether these three conditions were fulfillled in the present case.
17. Now what is the nature of a contract of insurance. Contracts of insurance are uberrima fides and thereforee the insured owes a duty to disclose before the contract is made every material fact of which he knows or ought to know. If a material fact is not so disclosed, the insurers have the right at any time to avoid the contract. As Lord Mansfield demonstrated in Carter v. Boehm. (1763) Sm 5 Lc 546 insurance is a contract upon speculation here the special facts upon which the contingent chance is to be computed lie generally in the knowledge of the assured only, so that good faith requires that he should not keep back anything which might influence the insurer in deciding whether to accept or reject the risk. A fact is material if it is one that would affect the mind of a prudent man, even though the materiality is not appreciated by the assured. In the words of Bayloy, J.:
'I think that in all cases of insurance whether on ships, houses or lives, the underwriter should be informed of every material circumstance within the knowledge of the assured: and that the proper question is, whether any particular circumstance was in fact material, and not whether the party believed it to be so. The contrary doctrine would lead to frequent suppression of information and it would often be extremely difficult to sow that the party neglecting to give the information thought it material. But if it be held that all material facts must be disclosed it will be in the interest of the assured to make a full and fair disclosure of all the information within their reach.'
Lindenau v. Desborough. (1828) All E Rep 117.
18. In India the duty of disclosure in the case of marine insurance is prescribed as follows in the Marine Insurance Act, 1963:
'S. 20 (1) Subject to the provisions of this section, the assured must disclose to the insurer before the contract is concluded, every material circumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary course of business ought to be known to him. If the assured fails to make such disclosure, the insurer may avoid the contract.
(2) Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk.'
19. A similar duty of disclosure exists in the case of non-marine insurances, Whether the policy is taken out for a. life, fire, burglary, fidelity or accidental risk, it is the duty of the assured to give full information of every material fact; and it has been held by the Court of Appeal in England that the definition of 'material' contained in the Marine Insurance Act. 1906 namely, every circumstance which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk is applicable to all forms of insurance. (Locker and Woolf Ltd. v. Western Australian Insurance CO. Ltd., (1936) 1 Kb 408.
20. Life Insurance stands on the same footing. The provisions of Marine Insurance Act in India are in pari material with the English Act in this respect, I would thereforee similarly hold that the test of what is a material fact and the degree of good faith which is required is otherwise the same in all classes of insurance.
21. In the case of London Assurance Co. v. Mansel (1879) 11 Ch D 363. Jessel, M. R. said:
'As regards the general principle, I am not prepared to lay down the law as making any difference in substance between one contract of assurance and another. Whether it is life, or fire or marine insurance, I take it good faith is required in all cases, and thout1h there may be certain circumstances from the peculiar nature of marine insurance, which require to be disclosed and which do not apply to other contracts of insurance, that is rather, in my opinion, an illustration of the application of the principle than a distinction in principle.'
22. In that case a proposal form for a Life Insurance contained the questions: Has a proposal ever been made on your life at any other office or offices? If so, where? Was it accepted at the ordinary premium or at an increased premium or declined? The replies were: Insurance now in two offices for 16000 al ordinary rates policies effected last year. After a policy was issued the insurer discovered that although the answers were true the assured had concealed the fact that other companies had refused to insure his life. It was held that the company was entitled to avoid the policy.
23. Any material fact that comes to the knowledge of the proposes; the would-be assured, before the contract is made must be disclosed. The duty to disclose all material facts to the insurer arises from the fact that many of the relevant circumstances are within the exclusive knowledge of one party, and it would be impossible for the insurer to obtain the facts necessary for him to make a proper calculation of the risk he is asked to assume without this knowledge It has been for centuries in England the law in connection with insurance of all sorts, marine, fire, life, guarantee and every kind of policy, that, as the underwriter knows nothing and the, would-be assured knows everything it is the duty of the assured to make a full disclosure to the underwriters of all the material circumstances.
24. The words 'prudent insurer' in Section 20(2) of Marine Insurance Act should be noted, They mean that in a dispute the court must apply the objective standard of business usage and disregard the exacting standard of a particular insurer. Circumstances that need not be disclosed include those diminishing the risk and matters of common knowledge generally or in the insurer's business. The prospective assured must disclose material circumstances that he knows or ought to know: See Section 20 Marine Insurance Act, 1963.
25. Whether the omission to disclose any Particular circumstance is material so as to render the contract voidable is a question of fact in each case In Mutual Life Insurance Co. of New York v. Ontario Metal Products Co., (1925) Ac 344 a proposal form asked the name of any physician whom the proposer had consulted in the last four years. The proposer said 'none' though in fact, he had consulted a doctor and received tonics, but he had never been away from his work. The insurer's doctor said that if he had known of this he would still have recommended the acceptance of the risk at the ordinary Premium. it was held that there was no material concealment and policy was not avoided.
26. The Present case however, presents no difficulty. If the assured had truly disclosed his illness that fact would have certainly influenced 'the judgment of a prudent insurer in fixing the Premium or determining whether he will take the risk.'
27. If the insured makes a statement containing certain information and the policy contains a term to the effect that the proposal form constitutes the 'basis of the contract' the insurers are entitled to avoid liability if any answer in the proposal form is incorrect, whether it is material or not. The insurers are entitled to avoid liability if any answer in the proposal form is incorrect irrespective of whether the insured made the answers fraudulently or innocently and irrespective of whether the answer relates to a material fact. This is the law in England. Thus, in Dawsons Ltd. v. Bonnin, (1922) Ac 413. the proposal form for the insurance of a lorry against fire required the proposer to state the full address at which the lorry would be garaged, and inadvertently the wrong address was inserted. A claim was made under the policy when the lorry was lost by fire, The House of Lords held that as the proposal form was clearly expressed by the terms of the policy to be 'the basis of contract' the answer in the proposal form amounted to a contractual promise as to its accuracy. Since the answer was not accurate the insurers had a right to avoid the policy for breach of warranty. It made no difference that the answer was not material, i.e., the premium would have been no different had the correct address been shown, nor that the inaccuracy was inadvertent.
28. Dawson's case, 1922 Ac 413 illustrates how insurance companies often increase the duties of the insured by inserting a clause into the contract whereby a failure to disclose any matter raised by the proposal form, however trivial, allows them to rescind the contract. It is widely felt in England that in protecting themselves to this extent insurance companies have gone too far. Fletcher Moulton, L. J.. has said:
'I wish I could adequately warn the public against such practices on the part of the insurance offices .......................... Few of those who insure have any idea how completely they leave themselves in the hands of the insurers, should the latter wish to dispute the policy when it falls in.'
Joel v. Law Union and Crown Insurance Co.. (1908) 2 Kb 863.
29. The courts in England tend to construe the basis of the contract clauses strictly against the insurance companies. The question of legislating against such clauses has been considerable the law Reform Committee (1957-5th Report) but no definite recommendation was made.
30. English Law on this score has been reproached both by Judges and academic writers. We have noticed the observations of Fletcher Moulton, L J., Cheshire and Fifoot have this to say:
'The duty, however, may be enlarged by the express terms of the contract, and in fact insurers have taken extensive, perhaps indeed unfair, advantage of this contractual freedom. In practice they almost invariably require the assured to agree that the accuracy of the information provided by him shall be a condition of the validity of the policy. To this end it is common to insert a term in the proposal form providing that the declarations of the assured shall form the basis of the contract. The legal effect of this term is that if his answer to a direct question is inaccurate, or if he fails to disclose some material fact long forgotten or even some fact that was never within his knowledge, the contract may be avoided despite his integrity and honesty of purpose. Nay more, his incorrect statement about a matter that is nothing more than a matter of opinion is sufficient to avoid the policy. Thus for instance, one of the commonest questions put to a person who applies for a life insurance is 'have you any disease?', a matter which, even or a doctor, is often a subject of mere speculation or opinion. ...... ...... ...... ...... ..... ...... The courts view this practice with distaste and they do what they can to mitigate its severity by imposing a strict burden upon insurers. (Law of Contract (8th Edition) page 276).
31. In India the Legislature has enacted in Section 45 of the Insurance Act that no policy of life insurance shall e called in question by an insurer on the 1round that a statement made in the proposal form '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.' The test of materiality is thereforee, superimposed by the statute on the terms and conditions of the proposal. The contractual freedom of the insurers has been severely restricted by the Indian Legislature. The insured has thus been sufficiently protected and the resulting contract cannot be rescinded merely upon proof that the information is inaccurate unless all the three conditions of Section 45 are satisfied. In this sense Indian Law is a distinct advance upon the English Law.
32. In this case it is clearly provided in the proposal form of the Corporation that the declarations of the assured shall be the 'basis of the contract' and that
'If any untrue averment be contained therein the said contract shall be absolutely null and void and all moneys which shall have been paid in respect thereof shall stand forfeited to the Corporation.'
33. In view of the term of the policy the insurer is entitled to avoid the contract as there was misrepresentation and concealment by the assured. No one will doubt that the questions in the proposal form regarding state of health were on a material matter and that the answers given by the assured were fraudulent and false. Insurers are generally well able to take care of their own interests by requiring a -prospective insured to complete an application form giving information on a wide range of matters. But the important thing is that answers to material questions must be accurate and true. From the very necessity of the case, the assured alone possessed full knowledge of all the material facts and the law required him to show uberrima fides. The insurer contracts on the basis that all material facts have been communicated to him; and it is a condition of the contract that the disclosure shall be made and that if there has be a non-disclosure he shall be entitled to avoid: See Blackburn Law and Co. v. Vigeis, (1887) 12 Ac 531.
34. In Brownlie v. Campbell, (1880) 5 Ac 925, Lord Blackburn said:
'In policies of insurance, whether marine or life insurance, there is an understanding that the contract is uberrim a fides, that, if you know any circumstances at all that may influence the underwriter's opinion as to the risk he is incurring, and consequently as to whether he will take, it, or what Premium he will charge if he does take it you will state what you know. There is an obligation there to disclose what you know, and the concealment of a material circumstance known to you, whether you thought it material or not, avoids the policy.
35. To use the language of the Indian Statute, a contract of insurance s a 'contract based upon the utmost good faith and if the utmost good faith be not observed by either party, the contract may be avoided by the opposite party' (Section 19, Marine Insurance Act).
36. The general principle of good faith governing insurance is tersely stated by Lord Chorley:
'The general principle governing insurance is that of good faith. In a sense this applies to all contracts, but an insurer can insist on a more stringent requirement - utmost good faith. The terminology is unfortunate, is unfortunate, for good faith in ordinary parlance, is an absolute term; it cannot be graded. Ordinarily a person has acted either in good faith or in bad faith. But insurance law utmost good faith has a precise meaning and a genuine purpose.
In negotiations for an ordinary contract no Party must say anything that misleads the other party. If he does the other Party can avoid the contract.............. In insurance. however, the cards are stacked against the insurer. The buyer can inspect the goods, and the employer can obtain references about a candidate for employment but the insurer has very few means of discovering the nature and magnitude of the risk. Accordingly the law prospective assured refrain from ac tive1v misleading the insurer he must also disclose all material circumstances.' (sic)
(Slater's Mercantile Law 16th Edition page 296 edited by Lord Chorley).
37. Dharam Pal Puri must have known that it was material to disclose the fact of his ailment to the Corporation. In the answers to the questions put to him he not only failed to disclose what it was material for him to disclose, but he made a false statement to the effect that he had never suffered from any disease of the heart. In other words, there was a deliberate suppression fraudulently made by Dharam Pal. Fraud, according to Section 17 of the Indian Contract Act, means and includes inter alias any of the following acts committed by a party to a contract with intent to deceive another party or to induce him to enter into a contract -
(1) The suggestion as to a fact of that which is not true by one who does not believe it to be true; and
(2) the active concealment of a fact by one having knowledge or belief of the fact.
Judged by the standard laid down in Section 17, Dharam Pal Puri was clearly guilty of a fraudulent suppression of material facts when he made declarations in the proposal form statements which he must have known were deliberately false.
38. The counsel for the plaintiff has argued that the statement of Dr. (Miss) S. Padmawati should not be believed as the original record of the Lady Hardinge Medical College and Hospital was not produced in court at the time she made her statement, This is true that she gave her deposition in court with the help of the certificate which she had issued in 1964, though she was examined on November 9, 1970. In the course of arguments I ordered that the original record of the hospital should be produced. Today the medical record keeper appeared in court and stated that the record of outdoor patients was maintained in the hospital only for a period of five years and was destroyed thereafter, Dharam Pal Puri was examined by Dr. (Miss) S. Padmavati as an outdoor Patient obviously. Dr. (Miss) S. Padmavati did not depose that Dharam Pal Puri was admitted to the hospital the record of outdoor patients, thereforee could not be produced. Probably by 1970 when Dr. (Miss) S. Padmavati was examined in court the record of the hospital had been destroyed because she examined the patients in 1959. The fact of the destruction of the record does not destroy the probative value of Dr. (Miss) S. Padmavati's evidence. In her statement she unequivocally stated that she examined Dharam Pal Puri on two occasions and had referred to the record before signing the statement land that the deceased was suffering from heart disease. I have not reason to disbelieve the testimony of a doctor of the eminence of Dr. (Miss) S. Padmavati. What axe had she to grind, what motive to perjure herself? I feel confident to found my conclusion on her evidence because similar was the evidence of Dr. V. K. Dewan and of Dr. Santosh Singh in his two earlier certificates dated October 31, 1964, and the report dated August 4, 1964.
39. The Plaintiff's counsel then argued that no reliance should be placed on the testimony of Dr. V. K. Dewan and Dr. Santosh Singh as they were never told by the deceased that he was suffering from heart trouble for the last seven years. It is true, as appears from the evidence, that Dharam, Pal Puri was unconscious when he was admitted to the hospital on August 4, 1964. and his past medical history was given by his brother who accompanied him. It is so stated in Exhibit B-2, certificate dated October 31, 1964, of Dr. Santosh Singh. When the deceased was unconscious his brother was the best person to give the past history of his brother. At that time his brother was telling the truth because he was interested in saving somehow the life of Dhararn Pal his brother. He knew that without disclosing correctly the illness and its past history doctors in the hospital will not be able to give treatment to his brother it is only later on that Dr. Santosh Singh was prevailed upon to issue certificate and report wherein the doctor changed his stand and said that the illness was of only 11/2 years standing before the death. Since I had some doubts on the veracity of the certificates issued by Dr. Santosh Singh for he issued as many s five certificates and reports I ordered that the original record of Sir Ganga Ram Hospital be produced before me. Today Shanti Swarup Sharma (P.W. 3) brought the original record. I have examined the original record and find that some one had written on the case sheet 71/2 years originally. This figure of 71/2 years as obliterated and in its place 11/2 years was written. The two writings are quite different. The entire case-sheet, it is in the evidence of Shanti Swarup Sharma (P.W. 3) is in the hand of Dr. Santosh Singh, who actually made this obliteration is not clear because Dr. Sanosh Sinh could not be examined with reference to the original case-sheet which I have today before me and which the witness did not have at the time of making his statement on commission. On a consideration of the entire evidence no doubt is left in my mind that the deceased was suffering from this heart disease since 1946 as deposed by Dr. (Miss) S. Padmavati, for five or seven years as deposed by Dr. V.K. Dewan or for about seven years as was certified by D. Santosh Singh in his two certificates and 7 1/2 years as stated by him in his report. In view of the incontrovertible evidence on the record I will discard from consideration the certificate dated August 24, 1964, of Dr. Santosh Singh. Similarly the Photostat copy of the certificate dated October 31, 1964 is no piece of evidence in this case as the original was never produced in court.
40. On behalf of the plaintiff two witnesses were examined. The first was P. C. Puri, the brother of the deceased. He merely stated that his brother died on August 5, 1964, and that he entered into correspondence with the Corporation after the death of his brother for the purpose of claiming the amount from them. The proposal forms for these policies he said were filled in his presence by the insurance agents who had come to insure the deceased.
41. The next witness examined by the plaintiff was the widow Krishna Wanti Puri. She completely denied that her husband ever consulted Dr. (Miss) S. Padmavati prior to his death. She also said that she did not know the name of the doctor who attended on the deceased at the time of his death and what was the result of the doctor's examination. As regards the deceased's illness she simply said that her husband developed pain in the hip on the morning of August 4. 1964, and he had to be removed to the hospital. As regards other questions put to her she stated that the deceased's elder brother was dealing with the matter of insurance and that she knew nothing about these matters. The cumulative result of the evidence adduced on both sides is that there is evidence of the doctors examined on behalf of the Corporation to show that the deceased's illness was of the heart and that he suffered from the same since 1946 and that he actually died of it. There is no rebuttal to this evidence on behalf o the plaintiff. Mere denial by the widow takes us nowhere. The brother of the deceased who according to the widow knew everything about his own brother said nothing in evidence to disprove the testimony of the doctors. The main plank of the plaintiff's claim is the certificate and the report of Dr. Santosh Singh wherein the doctor had given the period of illness as 11/2 years. The certificates and the report, I have already said, are not worth relying upon the rest of the evidence on the record which in my opinion is overwhelming, contradicts the correctness of the certificate and the report dated November 24, 1964 and November 28, 1964, respectively.
42. The plaintiff's Counsel lastly urged that before the deceased was insured he was examined by as many as three doctors of the Corporation Dr. Uppal, Dr. R. N. Rohatri and Dr. Kartar Singh. All these doctors: appeared in the witness on behalf of the Corporation. It is true that all of them deposed that in the opinion the deceased was fit to be insured at the time of their examination but their evidence does not advance the case of the plaintiff. The corporation did not know that there was a fraudulent suppression of facts by the deceased. The terms of the policy make 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 contract between the parties and the circumstances that Dharam Pal Puri had taken Pains to conceal that he had ever been treated for this serious ailment by Dr (Miss) S. Padmavati when in fact he had been treated only a few months before the took out the first policy dated October 12, 1959, shows that the fraudulent suppression and concealment had an important bearing in obtaining the consent of the Corporation.
43. On the whole case my conclusion is that the declarations made by the deceased in the Personal statement were on a material matter and that he suppressed fraudulently facts which were material to disclose and that the deceased knew at the time of making the statement that it was false and that he suppressed facts which it was his duty to disclose.
44. I, thereforee, hold that the Corporation is entitled to avoid the policies on the grounds available to the insurers under Section 45) of the Act which I have reproduced above.
Issue No. 2:
45. In view of my decision on Issue No. 3 this issue does not arise.
Issue No. 1:
46. I have already held that the Corporation is entitled to avoid the policies and, thereforee the plaintiff is not entitled to claim the amount on the four policies from them.
Issue No. 4:
47. As a result of my finding on Issue No. 3, I dismiss the suit of the plaintiff, leaving the parties to bear their own costs.
48. As regards the premium paid by the deceased on the four policies the rule of law is that if the policy is voidable owing to fraudulent misrepresentation, the insurer can have the -policy set aside without having to return the premiums. The Supreme Court has held in Mithoolal Nayak. : AIR1962SC814 (Supra) that in a case of fraud the plaintiff cannot claim or ask for the refund of the money Paid. It was held that the courts will not entertain an action for money had and received where in order to succeed the plaintiff has to -prove his own fraud. Above all the policy contains the term that if the policy is void the premium shall be forfeited and this term will prevent the premiums from being recoverable. (Sparenborg v. Edinburgh Life Insurance Co. (1912) 1 K. B. 195.
49. Suit dismissed.