B.J. Shethna, J.
1. An unfortunate young widow has to wait for justice for as many as 12 long years. The respondent is Life Insurance Corporation of India (L.I.C.), which is a mighty institution by itself. This legal battle is between David and Goliath.
2. The petitioner has become widow in her young age of 30 years. On the death of her late husband Jaswant Kumar Chauhan, who died oh 10th September, 1982, at the young age of only 36 years, leaving behind him his young widow and two minor children, a son and a daughter, aged only 10 and 4 years respectively. Shri Jaswant Kumar took Life Insurance Policy of Rs. 51,000/-, for which the proposal was made on 22.10.1980, which was accepted by the LIC on 20th January, 1981 and the Policy was also issued later on in favour or Shri Jaswant Kumar. He paid first premium of Rs. 1494/- on 29.12.1980, by nominating his wife Smt. Manju Devi - the present petitioner as the sole nominee. Next premium was also paid on 20th January, 1982. Unfortunately, Jaswant Kumar died on 10.9.1982, after a brief illness, during which he was examined by the Doctors and also given treatment. Examination Report dated 20th August, 1982 (Annex.6) of deceased Jaswant Kumar clearly ruled out the possibility of Tuberculosis (T.B.). After the death of Jaswant Kumar, his widow-Smt. Manju Devi - present petitioner submitted a claim of Rs. 51,000/- to the respondent-Corporation on 30th October, 1982. However, the claim was not settled for quite a long time, therefore, a reminder was sent by Registered post on 9.2.1984 (Annex. 7) However, respondent-Corporation rejected the claim of the petitioner by a letter dated 15th/18th September, 1984 (Annex. 8) and repudiated the liability of the payment of Rs. 51,000/-, on the ground that the statements made by deceased Jaswant Kumar in the questionnaires of the proposal form were false. Hence, according to them, Shri Jaswant Kumar suppressed the fact of his being suffering from T.B., at the time of applying for Life Insurance Policy. This aggravated the wounds of widow as it was very difficult for her to maintain herself with her two minor children aged 10 and 4 years respectively. Due to paucity of the funds, there was no question of her going to Civil Court and file a suit by spending court-fees and other expenses. She had no funds, even to approach this Court, by way of this writ petition, for years together. She could file this petition only in 1987, when the helping hands were extended to her by Shri Lodha, learned Counsel for the petitioner, Initially, on 1.9.1987, the Division Bench of this Court ordered to issue notice to the respondents to show-cause as to why this petition should not be admitted. The respondents were duly served and learned Counsel Shri Singhi put up his appearance also. Thereafter, after hearing the learned Counsel Shri Singhi, for the respondents, the Division Bench of this Court admitted this petition on 23.9.1998. However, this matter was placed for hearing for the first time before this Court on 18.3.1999 and, at the request of the learned Counsel Shri Singhi, for the respondents, this petition was kept today, i.e., 5.4.1999, for orders, at the top of the cause list.
3. Today, Learned Counsel Shri Singhi, for the respondents, raised a preliminary objection about the maintainability of the writ petition in view of the un-reported judgment of this Court (Hon'ble Miss Kahta Bhatnagar, J., as she then was) dated 10.10.1983, delivered in S.B. Civil Writ Petition No. 2600/82. Shri Singhi has also placed reliance upon a Supreme Court judgment reported in AIR i985 SC 1265 Life Insurance Corporation v. Suit. Kiran Sinha's. Both these cases were relating to the insurance claim. In Smt. Kiran Sinha's case (Supra), what were the facts and circumstances of the case, were not stated, but it can be seen from the brief order of the Hon'ble Supreme Court that in the circumstances of that case, the Apex Court found that the High Court could not have directed the payment of money claimed under the Insurance Policy in question in a petition filed under Article 226 of the Constitution as the petitioner had the alternative remedy by way of suit before the Civil Court. The learned Single Judge of this Court decided the matter at the show-cause notice stage and accepted the preliminary objection raised by Shri Singhi. However, from the facts narrated hereinabove, it is clear that in this case, before admitting the writ petition, show-cause notice was issued to the respondents and the Division Bench of this Court, after hearing the learned Counsel Shri Singhi on preliminary objections, including the objection regarding maintainability and other objections, found the said objections without any substance and, therefore, admitted this writ petition. In that view of the matter, this Court had no alternative, but to entertain this matter on merits. Thus, the preliminary objection raised by the learned Counsel Shri Singhi is not sustainable, hence rejected.
4. It may also be stated that by now, a period of limitation of filing the suit has also expired. That apart, in a series of decisions, the Apex Court as well as this Court has held that once the matter is admitted and the same is pending since years together, then, merely because there is an alternative remedy of suit available to the petitioner, that itself would not be a ground for this Court not to entertain the petition. In such type of cases, the matters will have to be decided on merits.
5. Coming to the merits of the case, I find lot of substance in the submission made by the learned Counsel Shri Lodha, for the petitioner, that after the expiry of two years period, it was not open to the respondent-LIC to question the statement made by the deceased. Section 45 of the Insurance Corporation Act (for short, 'the Insurance Act') provides that no policy of the Insurance be called in question by insurer after the expiry of a period of 2 years from the date of which it was effected on the ground that a statement made in the proposal for insurance or any report of medical officer or reference or any other document leading to the issue of the policy was false. In this case, the policy was accepted on 20th January, 1981. Jaswant Kumar died on 10.9.1982. Claim was put forward by the petitioner, widow of Jaswant Kumar, on 13.10.1982. There was a reminder sent in February, 1984. However, the impugned decision at Annex. 8 to repudiate all liability under the Policy was taken only on 15th/18th September, 1984, which was admittedly after a period of two years.
6. There is also lot of substance in the second submission made by the learned Counsel Shri Lodha, for the petitioner, that the impugned decision (Annex. 8) is in clear breach of the principles of natural justice as without any opportunity to the petitioner, the respondent-Corporation has taken unilateral decision in the matter and came to the conclusion that the statement made by the deceased Jaswant Kumar, at the time of filling of the proposal, was false, She, being the wife of deceased-Jaswant Kumar, would have been certainly in a position to lead oral as well documentary evidence to show that her husband had not made any false statement in the questionnaires at the time of taking insurance policy. She could have as well pointed out that before taking insurance policy, her husband-Jaswant Kumar was duly examined also by their (LIC) own doctor and he had also not stated a word that Jaswant Kumar was suffering from a disease like T.B. If a person is suffering from a disease like T.B., then even an ordinary man can say that he (person) is suffering from T.B. Then, in such type of cases, when their own doctor certified then later on, after the death of Jaswant Kumar, the respondent-Corporation could not have come to this conclusion that the deceased was suffering from T.B. which fact was suppressed by him.
7. The averments made in this petition on oath by the petitioner have remained uncontroverted as no counter is filed by the respondent-Corporation in this writ petition, therefore, the same have to be accepted as it is.
8. I must state that the learned Counsel Shri Singhi had submitted that an opportunity may be given to the Corporation to pass fresh order, after affording an opportunity of hearing to the petitioner. In ordinary circumstances, such request would have been readily granted, but this being a case, where the petitioner is deprived from her legitimate rights since years therefore, such a belated request cannot be granted. I am of the humble opinion that such a request should have been made at the time when the respondents were served with the show-cause. However, instead of making such reasonable request, at the appropriate time, a preliminary objection was raised regarding maintainability of this writ petition which was rightly turned down by the Division Bench of this Court by admitting this petition.
9. In the case of Collector, Land Acquisition v. Mst. Kattji : (1987)ILLJ500SC , it was held by the Apex Court that the substantial justice should be done and not the technical one. At least, the State Government or the Corporation like the respondent-Corporation or the Statutory body should not take up such technical pleased to defeat the substantial justice. Nothing more is required to be observed in the matter.
10. In view of the above discussion, this writ petition is allowed. The impugned order at Annex. 8 dated 15th/18th September, 1984, rejecting the claim of the petitioner for Rs. 51,000/-, is hereby quashed and set aside. The respondents are directed to pay Rs. 51,000/- with interest at the rate of 18% per annum from the date of filing of this writ petition, i.e., 25.8.1987, within 3 months from today. Having regards to the peculiar facts and circumstances of the case, the respondents are also directed to pay a special cost of Rs. 10,000/- to the petitioner.