Kamlesh Sharma, J.
1. Appellants are the defendants whereas the respondent is the plaintiff and they will be referred to as such in this judgment. The defendants are aggrieved by the decree and judgment dated 19-11-1993 passed by the District Judge, Shimla, whereby their appeal was dismissed and the decree and judgment dated 2-5-1991 of the Senior Sub-Judge, Shimla was affirmed. The Senior Sub-Judge had decreed the suit of the plaintiff with costs for declaration that the repudiation of the claims of the plaintiff with respect to policies Exts. PA and PB conveyed to her vide letters Exts. PC and PD is an act of arbitrariness and is null and void and the letters Exts. PC and PD were of no consequence as against the rights of the plaintiff. The suit was further decreed to the effect that the defendants shall pay an amount of Rs. 40,000/- to the plaintiff under policies Exts. PA and PB along with interest at the rate of 12% per annum from 1-7-1983 till the date of payment on filing of court-fee on the amount of Rs. 40,000/- within a period of 30 days from the date of decree and judgment, failing which she would stand non-suited for her claim of recovery of the amount of insurance policies.
2. The undisputed facts in brief are that the husband of the plaintiff Sh. H. K. Parhawk was insured with the defendants for a sum of Rs. 10,000/- under Policy No. 22986115 and for a sum of Rs. 30,000/-under Policy No. 22921493. He died in the year 1983 leaving behind his wife Smt. Kiran Bala. She applied to the defendants for payment of insurance amount due to her on account of policies Ext. PA equal to D1 and Ext. PB equal to DZ, but the defendants repudiated the claim on the ground that on investigation conducted by them it was found that the insured was suffering from brain tumor, a fatal disease and he could not tae insured, but for his mis-statement and suppression of facts in the proposal form.
3. In support of her case, the plaintiff has examined herself on oath and has tendered in evidence the copies of policies Exts. PA and PB and letters of defendants Ext. PC and PD. According to the plaintiff, her husband had died of stomach ache in June, 1983 and not of brain tumor. She has admitted that her husband remained on medical leave for some intervals from January, 1979 to June, 1979 and he was getting treatment at PGI, Chandigarh and at C.M.C. Hospital, Vellore.
4. On the other hand, the defendants examined DW-1 Mr. S. K. Chopra, Manager of the Bank of India, Dharamsala branch where the insured was serving in the year 1979, who has proved from the record that the insured remained on sick leave from 4-7-1979 to 28-7-1979 and has brought on record discharge slip Ext. DW-1/A. DW-2 Mr. S. C. Kapoor, Marketing Manager of the defendants has deposed that he had recommended the repudiation of the claim of the plaintiff as per his report Ext. DW-2/A, as it was found on investigation that insured had withheld the factum of his illness at the time of taking policies Exts. PA and PB. The defendants have also examined Dr. Jacob Abraham of Christian Medical College and Hospital, Vellore on commission, who had operated upon the insured for left anterior burr hole ventriculogram. This witness has proved documents Exts. C-1 to C-3, As per these documents and the statement of this witness, the insured was operated upon on 5-2-1979 and 16-2-1979 and was discharged on 27-2-1979 and his condition had improved at the time of discharge.
5. On the basis of this evidence on record, both the Courts below have concurrently held that the insured was not suffering from any disease at the time he got himself insured vide insurance policies Exts. PA and PB, therefore, there is no question of his either misrepresenting or withholding the factum of his suffering from a fatal disease of brain tumor. It is also held that the defendants have failed to produce any evidence on record that the insured had died of brain tumor and not of stomach ache as alleged by the plaintiff. As a result of these findings, the repudiation of the claim of the plaintiff has been held as absolutely unwarranted and arbitrary.
6. These are the concurrent findings of fact which are not supposed to be interfered with except on a substantial question of law arising in the appeal. At the time of admission of the appeal, the following substantial questions of law were framed :
1. Whether the Courts below have correctly interpreted the Section 45 of the Insurance Act, 1938 ?
2. Whether the Courts below have correctly applied the judgments of the Hon'ble Supreme Court, reported in AIR 1991 SC 392 and AIR 1962 SC 814 ?
7. Section 45 of the Insurance Act is as under :
'45. Policy not to be called in question on ground of mis-statement after two years.-- 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).
8. The perusal of this Section shows thatfor repudiating the claim under a policy oflife insurance after two years from the dateon which it was effected on the ground thatthe statement made in the proposal formfor insurance or in any report of the Medical Officer or referee or friend of the insuredor in any other document leading to the issue of the policy, was inaccurate or false,the following three conditions as laid downby the Supreme Court in Mithoolal Nayak v.Life Insurance Corporation of India, AIR1962 SC 814, are required to be fulfilled inevery case :
(a) the statement must be on a material matter or must suppress facts which it was material to disclose;
(b) the suppression must be fraudulentlymade by the policy-holder; and
(c) the policy-holder must have knownat the time of making the statement that it,was false or that it suppressed facts whichit was material to disclose.
9. So far the case in hand is concerned, none of these conditions, is fulfilled in view of the concurrent findings of both the Courts below that the insured after undergoing two operations had improved and was not suffering from brain tumor at the time he got himself insured.
10. The aforesaid judgment has been further reiterated in Life Insurance Corporation of India v. Smt. G. M. Channabasemma, AIR 1991 SC 392, wherein it is further elaborated in para 7 that :
'........... ........... ........... It is well settled that a contract of insurance is contractuberrima fides and there must be completegood faith on the part of the assured. Theassured is thus under a solemn obligationto make full disclosure of material factswhich may be relevant for the insurer to takeinto account while deciding, whether theproposal should be accepted or not. Whilemaking a disclosure of the relevant facts,the duty of the insured to state them correctly cannot be diluted. Section 45 of theAct has made special provisions for a lifeinsurance policy if it is called in question bythe insurer after the expiry of two years fromthe date on which it was effected. Havingregard to the facts of the present case,learned Counsel for the parties have rightlystated that this distinction is not materialin the present appeal. If the allegations offact made on behalf of the appellant-Company are found to be correct, all the threeconditions mentioned in the Section had discussed in Mithoolal Nayak v. Life InsuranceCorporation of India, (1962) Supp 2 SCR571 : (AIR 1962 SC 814), must be held tohave been satisfied. We must, therefore, proceed to examine the evidence led by the parties in the case.'
11. This Court has heard the learned Counsel for the defendants at length, who has not been able to point out any piece of oral or documentary evidence which has been either misread or misinterpreted or not referred to, to interfere with the concurrent findings of fact arrived at by both the Courts below that Section 45 of the Insurance Act is not applicable in the present case as neither of the three conditions prescribed therein are fulfilled in the present case. Both the substantial questions of law are answered accordingly.
12. In the latest judgment of the Supreme Court in Life Insurance Corporation of India v. Asha Goel (Smt.), (2001) 2 SCC 160 : (AIR 2001 SC 549), the learned Judges have again referred to their earlier judgments in Mithoo Lal Nayak v. Life Insurance Corporation of India and Life Insurance Corporation of India v. Smt. G. M. Channabasemma (supra) and sounded a note of caution that approach of the Corporation in the matter of repudiation of a policy admittedly issued by it, should be one of extreme care and caution. It should not be dealt with in a mechanical and routine manner,
13. In view of the judgment of the Supreme Court, this Court need not refer to the judgments of the various High Courts cited by the learned Counsel for the defendants in respect of Section 45 of the Insurance Act.
14. Learned Counsel for the defendants, has tried to raise another point that interest could not be awarded under the contract of insurance. This point has been raised for the first time before this Court and did not find mention in the grounds of appeal before the District Judge. Otherwise also, in view of the concurrent findings of both the Courts below that the defendants have failed to make out a case of repudiation of the claim of the plaintiff, this Court is not inclined to disallow the interest to the plaintiff on the insurance amount of Rs. 40,000-. Learned Counsel for the defendants has also not been able to point out from the insurance policies Exts. PA and PB that there was any express bar to disentitle the plaintiff from interest. In the judgment of Delhi High Court in Smt. Shanta Trivedi v. Life Insurance Corporation of India, AIR 1988 Delhi 39, cited by the learned Counsel for the defendants, there was specific bar of payment of interest in the life insurance policy. The other judgment of the Punjab High Court in Lakshmi Insurance Co. Ltd. v. Bibi Padma Wati, AIR 1961 PunJ 253, is also on the facts and circumstances of that case and cannot be a precedent in the present case:
15. The result of above discussion is that there is no merit in this appeal and it is dismissed. There is no order as to costs.