Shrichand Girdharilal Batra Alias Shrichand Girdharilal Punjabi and ors. Vs. Life Insurance Corporation of India - Court Judgment

Excerpt:
civil - evidence - sections 32, 60, 61 and 63 of evidence act, 1872 - no evidence of any doctor available to show that deceased suffered from asthma for about 20 years - best evidence available to corporation - statement of deceased at time he was admitted in hospital - it proves that deceased suppressed this fact in his personal statement form submitted along with his proposal form - in view of suppression of said facts contract of assurance had become null and void - judgment and decree of trial court dismissing plaintiff's suit confirmed - appeal dismissed. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 1. the appellants who are the heirs of the original claimant as well as the deceased assured, girdharilal batra have filed the present first appeal against the judgment and decree passed by the city civil court, bombay, dismissing their suit with costs in respect of the life insurance claim to the tune of rs. 3. in the plaint the plaintiff denied that the deceased had failed to give any information in the proposal form as alleged by the corporation. 4. the respondent corporation by their written statement raised the main contention that the proposer in his personal statement submitted at the time of taking out the insurance policy had failed to mention that he was suffering from asthama for a period of 20 years and inspite of that he had made a declaration that whatever he had stated in the said declaration form was true and if any untrue averment be contained therein the said contract shall be absolutely null and void and all monies which shall have paid in respect thereof shall stand forfeited to the corporation. according to the respondent the insured was under an obligation to give full, true and correct answers to all the questions contained in the personal statement form and inasmuch as the deceased was suffering from asthama for over a period of 20 years as could be seen from the hospital's history of his illness, recorded on his admission to bhatia general hospital on 15th october, 1961, he had clearly committed a breach by suppressing the said fact and withholding the correct information from the corporation. 6. shri devnani, learned counsel appearing on behalf of the appellants took me through the relevant oral and documentary evidence, lead both on behalf of the plaintiffs as well as the defendant and after taking me through all such evidence he made certain submissions which i will deal with one by one. batra have been carefully preserved in safe custody of the hospital. 3 was examined in court a great deal must have happened in a public institution like bhatia hospital. besides there is no reason either to suggest or one can imagine as to why a public institution like bhatia general hospital should shirk from producing the original case papers in respect of a patient who had died in their hospital long back, if in fact they were aware of their existence in the year 1976 when they were called in the court on a court summons. therefore, even though it cannot be said that this note was a mechanical copy of the original history noted by her on the case paper of girdharilal it is quite probable that she must have made the note after looking to the original case papers which, as per the letter of bhatia general hospital dated 18th july, 1964 were carefully preserved in the safe custody of the hospital. sheth, exhibit 10 clearly appears to be a copy made from the original case paper by her on 13th october, 1962 as asserted by her in her evidence. it has to be remembered that the patient died in a public general hospital like bhatia general hospital of an ailment which is not in issue in any way in the present litigation. punjabi, the son of the deceased as well as p. punjabi as well as p. having regard to her duty there was nothing unnatural that she could have recorded the case history on being narrated by the patient on the case paper which she appears to have reiterated in exhibit 10. in exhibit 10 she is positive that the statement that patient complained of chronic asthama since 20 years etc. 16. at this juncture i would like to refer to another similar document exhibit 2 which is claim form b in respect of the deceased which is purported to be signed by ms. vora who had issued certificate in support of evidence of deceased for accepting his proposal is only for the purpose to show that the personal statement given by girdharilal did not mention that he was suffering from asthama or any such similar ailment in his personal history at the time when examined by him on 21st march, 1961. he did not find that girdharilal suffered from ailment like asthama. 2 as well as srichand p. 1 being an interested witness his evidence cannot be believed for the simple reason that the success or failure of the claim depends on his oral evidence unsupported by any medical evidence as such. 10 clearly falls within second paragraph of section 60 which says that a person who heard a fact can give evidence of the said fact which he said, he heard. sheth's evidence to the extent that deceased made such a statement is clearly admissible under section 60, 2nd paragraph of the evidence act, as it cannot be said to be hear-say in law though mrs. 3 poddar, it is sufficiently established that the original case papers were not traced and were not easily available at the time when the evidence was being recorded in this case and therefore a case was clearly made out for production of secondary evidence on behalf of the defendant corporation. sheth has only deposed as stated in exhibit 10, as part of the statement contained in exhibit 10 that the patient complained of cronic asthama since 20 years etc. , reported in air1954mad636 .23. it is observed in the said kulla ammal's case (supra) that where the assured is a person who does not know english and the proposal and declaration forms are in english and the company which defends the claim by repudiating its liability on the ground that the answers said to have been given by the assured and found typed in the forms are false and inaccurate in respect of some of the questions but does not produce the evidence of the person who put those questions or how they were interpreted to the assured or who typed the answers, the defence exposes itself to the criticism that it has failed to furnish strict legal proof that the assured in fact gave the answers to those questions. 26. in the first instance the whole case of the corporation as it appears from the written statement as well as the evidence lead appears to be based on the evidence dr. sheth who recorded exhibit 10. except exhibit 2 which has been rejected as in-admissible in evidence there is nothing to indicate that the corporation had in its possession some other relevant evidence and failed to produce the same. sheth who recorded exhibit 10. when exhibit 10 is taken into consideration it clearly shows that while he was admitted as a patient in the bhatia general hospital he stated to dr. this statement of the deceased is clearly contrary to what is stated by the deceased in his personal statement dated 21st march, 1961 that he does not suffer from any affection of illness or asthma, before or after the submission of the proposal. that would clearly mean that the declaration made by the proposer that he had answered every question by fully understanding its meaning and he had not withheld any information which was the basis of the contract of insurance was clearly false to his knowledge and consequently the learned trial judge was right in coming to the conclusion that the insurance effected under such a proposal was null and void and consequently all the claims and benefits under the policy had ceased and the corporation was entitled to liquidate the claim under the policy. i have already held hereinabove that so far as the corporation is concerned it does not appear that they had any other best evidence in its possession than what is already produced and therefore the question of withholding any evidence on the basis of a claim of privilege does not arise at all. 37. in the present case no doubt no evidence of any doctor as such is available for the purpose of showing that the deceased suffered from asthama for a period of about 20 years but best evidence that was available to the corporation, namely the statement of the deceased at the time when he was admitted in the hospital on 15th october, 1961 had been produced and it proves that the deceased had suppressed the said fact in his personal statement form submitted along with his proposal form.b.v. chavan, j.1. the appellants who are the heirs of the original claimant as well as the deceased assured, girdharilal batra have filed the present first appeal against the judgment and decree passed by the city civil court, bombay, dismissing their suit with costs in respect of the life insurance claim to the tune of rs. 23,000/- against the respondent - life insurance corporation of india.2. the relevant facts which give rise to this appeal are thus :deceased girdharilal batra had taken out a policy on his life for a sum of rs. 20,000/- on 12th april, 1961. the said girdharilal was admitted to bhatia general hospital, bombay on 15th october, 1961. he was under the treatment of dr. raheja, an expert visiting bhatia general hospital. however, the said girdharilal expired on 23rd october, 1961. the cause of death as reported by the hospital authorities on the death certificate was from agranulocytosis and aplastic anaemia. dayawanti, who was the wife of the deceased girdharilal and nominee of the said policy taken out by girdharilal, informed the respondent about the death of girdharilal on 30th november, 1961. she called for the necessary claim forms from the respondent. claim forms were supplied to the said dayawanti who ultimately submitted her claim for the insurance amount of rs. 20,000/-. on 14th may, 1962. after receiving the claim the respondent started its routine investigation and ultimately the respondent informed the claimants that their claim was repudiated on the ground that the deceased while filling in the proposal form had omitted to mention information about his previous ailment of asthma from which he was suffering for over a period of 20 years. after an exchange of notices the claimant dayawanti filed the original short cause suit no. 2183 of 1964 against the respondent on 15th april, 1964 for recovering the assured amount of rs. 20,000/- plus rs. 3000/- by way of interest at 6% per annum, costs and other reliefs.3. in the plaint the plaintiff denied that the deceased had failed to give any information in the proposal form as alleged by the corporation. an assertion was made that the deceased did not suffer from asthama and attack of restlessness, as alleged by the corporation and it was a false allegation made to evade payment.4. the respondent corporation by their written statement raised the main contention that the proposer in his personal statement submitted at the time of taking out the insurance policy had failed to mention that he was suffering from asthama for a period of 20 years and inspite of that he had made a declaration that whatever he had stated in the said declaration form was true and if any untrue averment be contained therein the said contract shall be absolutely null and void and all monies which shall have paid in respect thereof shall stand forfeited to the corporation. it was specifically pointed out in the written statement that the assured had in reply to the relevant questions about the state of health had stated that he had not suffered from any of the ailments mentioned in column 6(b) including asthama at any time. according to the respondent the insured was under an obligation to give full, true and correct answers to all the questions contained in the personal statement form and inasmuch as the deceased was suffering from asthama for over a period of 20 years as could be seen from the hospital's history of his illness, recorded on his admission to bhatia general hospital on 15th october, 1961, he had clearly committed a breach by suppressing the said fact and withholding the correct information from the corporation. therefore, according to the respondent in terms of the declaration made by the deceased the contract of assurance has become null and void and the claimants had forfeited the claim under the said policy.5. the learned trial judge after recording the evidence of the parties came to the conclusion that the respondent had proved that the assured had suppressed the facts and made false statements and withheld the correct information from the corporation that he was suffering from asthama for over 20 years and in view of the suppression of the said facts the contract of assurance had become null and void and all the claims and benefits under the said policy stood determined. he held that, therefore, the respondent corporation had rightly repudiated the claim under the said policy and consequently dismissed the suit with costs.6. shri devnani, learned counsel appearing on behalf of the appellants took me through the relevant oral and documentary evidence, lead both on behalf of the plaintiffs as well as the defendant and after taking me through all such evidence he made certain submissions which i will deal with one by one.7. now the first submission made by shri devnani was that in the first instance the defendants have not satisfactorily proved that the original record maintained by bhatia general hospital in respect of the deceased girdharilal was lost in order to enable it to lead secondary evidence in respect of the original record maintained by the bhatia general hospital. on behalf of the corporation evidence was lead in the first instance of d.w. 3 dr. pramod d. potdar who was then working as acting superintendent of bhatia hospital with effect from 1st of august, 1975. his evidence shows that after receiving the summons in this case he made a search for the record of the treatment given to one girdharilal batra who was treated in bhatia hospital in october, 1961. according to this witness he made search in the relevant records but could not find the same. he stated that he cannot say what has happened to that record. it may have been destroyed. shri devnani pointed out from his cross examination that this witness did not know as to in what manner the case papers of cases which are required to be preserved are maintained in the hospital and he does not know what is the system followed in order to preserve the records, so as to make them available for the court cases concerned. shri devnani pointed cut that this witness has said that till the previous day before his examination he was not shown even the letter written by the life insurance corporation to the hospital authorities for preserving the records and therefore it is not possible to believe him when he says that he made search for the records four to five times and inspite of that the original record is not available.8. one has to remember that the patient died on 23rd october, 1961. indeed bhatia general hospital had written to the life insurance corporation on 18th july, 1964 that case papers of deceased girdharilal p. batra have been carefully preserved in safe custody of the hospital. between 1964 and 1976 when in fact this suit was tried and d.w. 3 was examined in court a great deal must have happened in a public institution like bhatia hospital. besides there is no reason either to suggest or one can imagine as to why a public institution like bhatia general hospital should shirk from producing the original case papers in respect of a patient who had died in their hospital long back, if in fact they were aware of their existence in the year 1976 when they were called in the court on a court summons. merely because the summons addressed to dr. poddar was not for producing the case papers and that summons was addressed to one ms. parvatikar who was working at that time as r.m.o., does not make much difference for the simple reason that it has come on record that ms. parvatikar was no more there and at the material time dr. poddar was acting as the superintendent of bhatia general hospital and therefore it was but natural that as acting superintendent he should be deputed by the hospital authorities to give evidence on a matter for which the hospital was concerned. in my view, therefore the contention of mr. devnani that defendants have not made out the case by proving the loss of papers conclusively for production of secondary evidence, cannot be accepted.9. it may be mentioned that when it appeared that the original case papers were not coming forth, on behalf of the defendant subsequently an affidavit came to be filed by which two additional documents viz. (1) a covering letter dated 16th october, 1962 purporting to have been written by miss parvatikar, the then r.m.o. and (2) a note recorded by d.w. 4 mrs. dr. sheth, came to be produced in the court. although an objection was taken on behalf of the plaintiff, the learned trial judge overruled this objection and allowed the affidavit of supplementary documents to be taken on record.10. now these two documents were in the nature of secondary evidence in support of the defendant's case that during their investigation they came to know that deceased girdharilal was suffering from asthama long before his insurance proposal was accepted, but he had omitted to mention the said fact in his personal statement submitted for the purpose of the issuance of the insurance policy. so far as the covering letter written by dr. ms. parvatikar is concerned it was not duly proved and though put to d.w. 4 dr. mrs. sheth she could not identify the signature of ms. parvatikar, nor could she say anything about this letter. therefore this covering letter could not be read in evidence. however, d.w. 4 dr. sheth who was working as a houseman in the gynaecology and obstetric department in bhatia hospital from february, 1961 to january, 1962 identified the second document which was the note recorded by her and, therefore, it came to be exhibited as exhibit 10. so far as this document is concerned since she was practically deposing after a gap of 14 years, she frankly stated that by merely looking at this letter she cannot testify regarding the correctness of the said letter which she would be able to do if she was given the case papers concerning the patient. after this her pointed attention was invited to second paragraph of exhibit 10 which is to the effect, 'the above statement which i have written in the case paper of the patient shri girdharilal p. batra was told to me by the patient himself, while giving me the history'. when her attention was invited to this portion she stated that, because she herself had written it in her hand writing, though she could not recollect the occasion as to why this writing has been given by her on 13-6-1962, this statement has to be correct. at this stage objection was raised on behalf of the plaintiff for marking this document as exhibit but it appears as pointed out by mr. pagnis on behalf of the respondent that no objection was taken for the second part of the letter as admissible, and his only objection was to the first part of the writing on the ground that it was hit by section 64 and 32 of the indian evidence act. however, the objection was over-ruled and the document came to be exhibited.11. now the first part of this document exhibit 10 reads as under :'pt. c/o chronic asthama since 20 yrs and he also givens a history that since 20 years every year when he gets an attack of breathlessness he takes injections. this time also before 2 months he had taken two injections.'in fact this is the statement on which the whole case of the defendant hinges.12. shri devnani on behalf of the appellants strongly urged before me that at the first instance this exhibit 10 was not admissible because a proper case for secondary evidence was not made out. i have already dealt with this aspect in the earlier portion of the judgment and therefore i hold that the defendant had proved that the original case papers in respect of the patient girdharilal while he was in the bhatia general hospital were not easily traceable at the time when they were required in the court. in this behalf it was pointed out by shri devnani that even assuming that the defendant had proved that the original case paper was not traceable the secondary evidence could be only in a manner as permitted by section 63 of the evidence act and not otherwise. his contention was that under section 63 secondary evidence means copies made from or compared with the original and according to him in the present case it was nobody's case that exhibit 10, note prepared by d.w. 4 dr. mrs. sheth was a mechanical copy of the hospital note, noted by her on the case paper of girdharilal, nor is there anything to show that it was compared with the original and found correct. he, therefore, urged that in such circumstances exhibit 10 could not be read in evidence.13. it is difficult to accept this contention. section 63 of the evidence can be reproduced thus:'63. secondary evidence - secondary evidence means and includes - xx xx xx xx xx xx(3) copies made from or compared with the original.'thus secondary evidence means and includes copies made from or compared with the original. so far as copies made by mechanical process is concerned it is provided by clause 2 of section 63 which permits secondary evidence in the nature of copies made from the original by mechanical process which in themselves ensure the accuracy of the copy and copies compared with such copies. the opening words of section 63 indicate that it is not exhaustive. it says that secondary evidence means and includes, and, therefore, secondary evidence could be lead in any other manner also, so long as it is permissible in accordance with the other provisions of the evidence act. however, in the present case d.w. 4 dr. mrs. sheth who was then the houseman has stated in her evidence that in 1961 she was working as a houseman and her duty as a houseman, inter alia, was to take the case history of patient from the patient himself, if possible and if the patient was not in a condition to do so, she used to collect the said information from the person or persons who had accompanied the patient. in the present case d.w. 4 mrs. sheth could not say as to what was the occasion for her to record this note dated 13th october, 1962, exhibit 10. but she has positively stated that the said statement has to be correct because she had herself written it in her hand-writing.14. contention of shri devnani was that in the absence of evidence to show that this note exhibit 10 was compared with the original it would not become admissible under section 63 of the evidence act. it must be remembered that this note, according to d.w. dr. mrs. sheth was recorded by her on 13th october, 1962 when it appears that the claim application of smt. dayawanti, received by the respondent corporation was under investigation. therefore, even though it cannot be said that this note was a mechanical copy of the original history noted by her on the case paper of girdharilal it is quite probable that she must have made the note after looking to the original case papers which, as per the letter of bhatia general hospital dated 18th july, 1964 were carefully preserved in the safe custody of the hospital. in my view, therefore, having regard to the evidence of d.w. 4 mrs. sheth, exhibit 10 clearly appears to be a copy made from the original case paper by her on 13th october, 1962 as asserted by her in her evidence. it has to be remembered that the patient died in a public general hospital like bhatia general hospital of an ailment which is not in issue in any way in the present litigation. that apart, at the material time mrs. sheth had already left service of the bhatia general hospital and, therefore, in october, 1962 when she recorded this note exhibit 10 there were absolutely no reason for her to prepare any false record as such.15. it was tried to be urged by shri devnani by pointing out to the evidence of p.w. 1, s.g. punjabi, the son of the deceased as well as p.w. 2 dr. punjabi that on 15th october, 1961, deceased girdharilal was in an unconscious state and therefore there was no possibility of dr. mrs. sheth recording the previous history of his previous illness as narrated in exhibit 10 on being told by girdharilal himself. now both p.w. 1 shrichand g. punjabi as well as p.w. 2 dr. punjabi are the close relatives of the deceased and highly interested in the claimant. there is nothing to show that at the time when girdharilal was admitted in the hospital on 15-10-1961 he was in an unconscious state. in fact if the contemporaneous evidence is looked at, it appears from the reply given by dr. punjabi exhibit 11 that during his visit to girdharilal he found his condition rather vague and difficult to diagnose and therefore he referred girdharilal to a specialist doctor raheja at bhatia general hospital. there is no reference in this exhibit 11 which is dated 22nd june, 1962 that the condition of deceased girdharilal was such that he was not at all in a position to make any statement regarding the previous history of his illness to the houseman concerned. on the other-hand d.w. 4 mrs. sheth who appears to be totally disinterested witness and who has given frank and free evidence, unbiased in any way deserves credence when she says that she had recorded the said statement exhibit 10 in her own handwriting and it has to be correct because she herself had written it in her handwriting. having regard to her duty there was nothing unnatural that she could have recorded the case history on being narrated by the patient on the case paper which she appears to have reiterated in exhibit 10. in exhibit 10 she is positive that the statement that patient complained of chronic asthama since 20 years etc. was written in the case papers of the patient girdharilal as told to her by the patient himself while giving the case history to her which lends an assurance to her evidence that she must have recorded the statement on being told by girdharilal himself, particularly when there is absolutely no reason for her to record something inconsistent with the factual position. in my view, therefore this exhibit 10 which is contemporaneous record must be accepted and which has been duly proved by d.w. 4 mrs. sheth as the true copy of the history noted by d.w. 4 mrs. sheth at the time when girdharilal was admitted in the bhatia general hospital.16. at this juncture i would like to refer to another similar document exhibit 2 which is claim form b in respect of the deceased which is purported to be signed by ms. parvatikar, the then resident medical officer, bhatia hospital and issued on 29th march, 1962. this document against column 7 mentions that patient had asthama for the last 20 years etc. this has been relied upon on behalf of the respondent and also by the trial court as evidence showing that girdharilal was suffering from asthama as stated in column 7 of this claim form which is a medical attendance certificate issued by the rmo of the hospital where the patient died. a great deal of argument was advanced on either side as to whether this claim form b was submitted by the claimant along with her claim statement in form a or whether it was procured as contended by shri devnani by the life insurance corporation from bhatia general hospital for defeating the claim of the claimants. no doubt d.w. 2 kolambkar who has been examined on behalf of the respondent as a person who produced the original claim papers including exhibit '2' has not been able to throw much light as to whether these forms were supplied by the corporation and whether all the claim forms including exhibit '2' were received by the corporation from the original claimants. after all it cannot be disputed that the original claimant called for the claim forms from the life insurance corporation by her letter dated 30th november, 1961 exhibit 1 (collectively) and the fact that these forms were submitted to the corporation on 14th may, 1962 is confirmed by another letter of the original claimant dayawanti dated 31st july, 1962 exhibit '1' (collectively). having regard to the ordinary course of business there was no reason for the corporation to procure the medical claim certificate exhibit '2' directly from the bhatia general hospital as suggested by shri devnani and from the date which this certificate bears, namely, 29th march, 1962 in all probability after receiving the forms from the respondent, the original claimant must have obtained this certificate from the hospital and submitted it to the corporation along with her certificate in claim form 'a' on 14th may, 1962. in my view, therefore, there is no justification for making any criticism so far as the production of this exhibit 2 is concerned. however, in my view, merely because it is said that it has come from the custody of the claimant it does not require any formal proof, would not be correct on the facts and circumstances of the present case. the reason is the heirs of the claimant have seriously disputed, right from the beginning that the deceased was suffering from asthama and therefore, particularly when this exhibit '2' mentioned about this ailment against entry in column no. vii, it was incumbent upon the respondent to prove this document exhibit '2' by calling a witness who could have proved atleast the signature of miss parvatikar who had signed this document since she could not be called as she was no longer in service. in my view, therefore, this document exhibit '2', in the absence of proper proof cannot be taken into consideration in support of the defendants' case.17. therefore, so far as the present case is concerned, the crucial question that falls for determination is whether it is proved that deceased girdharilal was, at any time before he submitted his proposal for assurance, suffering from asthama and inspite of the knowledge of such ailment he omitted to mention the same in the relevant column of the personal information form submitted by him to the respondent corporation. evidence of d.w. 1 dr. vora who had issued certificate in support of evidence of deceased for accepting his proposal is only for the purpose to show that the personal statement given by girdharilal did not mention that he was suffering from asthama or any such similar ailment in his personal history at the time when examined by him on 21st march, 1961. he did not find that girdharilal suffered from ailment like asthama. however, the evidence does show that a patient who is suffering from asthama after a particular attack is over and before he gets the next attack if he is examined clinically it is not possible to say that he will show any symptoms as such of asthama at such examination.18. on the other hand on behalf of the appellants evidence has been lead of dr. punjabi p.w. 2 as well as srichand p.w. 1 for the purpose of showing that deceased never suffered with asthama. of course p.w. 2 dr. punjabi who is girdharilal's wife's cousin has nowhere stated that he was treating the deceased prior to his admission to bhatia general hospital and therefore on the question whether girdharilal suffered with the ailment of asthama or not, his evidence cannot be accepted as worthy of credence, particularly when he happens to be an interested witness. srichand p.w. 1 being an interested witness his evidence cannot be believed for the simple reason that the success or failure of the claim depends on his oral evidence unsupported by any medical evidence as such. it is worthy to note that neither the plaintiff nor the defendants have examined dr. raheja who was treating the deceased while he was in hospital between 15-10-1961 to 23-10-1961. however, there is nothing to show that dr. raheja was treating the deceased earlier to 15th october, 1961 and therefore one cannot say positively that dr. raheja's evidence would have thrown light on this aspect. therefore, so far as the defendants' side is concerned what remains on record is the note exhibit '10' recorded by dr. mrs. sheth.19. shri devnani, the learned counsel appearing for the appellants raised three objections for reading exhibit 10 in evidence. his first objection was that since exhibit 10 does not pertain to the cause of death of the deceased assured it is inadmissible in evidence under section 32 of the evidence act. his second contention was that in any case the statement recorded by dr. mrs. sheth of the deceased amounts to hear-say evidence and merely because dr. mrs. sheth says that she recorded it on being stated by deceased does not make it other than hear-say. in any case, according to shri devnani unless and until the loss of the original case papers was proved secondary evidence in the form of exhibit 10 cannot be admitted in evidene, particularly when it is not proved that it was read and compared with the original.20. in my view, there is no substance in either of these contentions. so far as the argument that the statement contained in exhibit 10 is not admissible in evidence under section 32 of the evidence act there is no doubt that section 32 does not come into operation at all because the issue regarding the cause of the death is not under enquiry in the present case and therefore, section 32 of the evidence act is not attracted at all. however, that does not mean that the statement exhibit 10 recorded by dr. mrs. sheth is entirely inadmissible in evidence as hear-say as contended by devnani. section 60 of the evidence act provides that oral evidence must be direct and it says in the second paragraph that if evidence refers to a fact which could be heard it must be the evidence of a witness who says 'he heard it'. in the present case dr. mrs. sheth says that the deceased while giving the case history narrated to her the statement contained in exhibit '10' and whatever he narrated she reduced it into writing and therefore exh. 10 clearly falls within second paragraph of section 60 which says that a person who heard a fact can give evidence of the said fact which he said, he heard. it is not in every case that a witness who hears something and gives evidence in court in respect thereof can be said to given hear-say evidence. hear-say evidence has not been defined in evidence act, but it is understood, hear-say means something which a witness before the court says that he heard from a third party, who is not called as a witness and the statement of that witness is inadmissible to prove the truth of the facts stated. hear-say, therefore means a secondary evidence of oral statement. it would be advantageous to illustrate the position by quoting the illustration given on page 623 of the evidence act by sarkar, 13th edn. which is to the following effect :'a says that b told him about the happening of event x (though b is not before the court). a's assertion about event x, being not based on his own observation, he is not qualified to speak to it. b's assertion made out of court cannot be accepted because it cannot be subject to cross-examination and other tests. but if the object is only to prove b's assertion of the event (and not to prove the event), a is competent to speak to it and it may be received if it has any relevancy in the case.'applying the said illustration to the facts of the present case, here mrs. sheth has deposed that she recorded the statement of deceased assured in the relevant case papers which was as contained in exhibit 10. here mrs. dr. sheth's evidence to the extent that deceased made such a statement is clearly admissible under section 60, 2nd paragraph of the evidence act, as it cannot be said to be hear-say in law though mrs. sheth's said evidence and the statement in exhibit 10 cannot be taken as assertion of the truth of the statement made by the deceased.21. so far as the argument based on the secondary nature of this evidence is concerned, i have already held that through the evidence of d.w. 3 poddar, it is sufficiently established that the original case papers were not traced and were not easily available at the time when the evidence was being recorded in this case and therefore a case was clearly made out for production of secondary evidence on behalf of the defendant corporation. so far as the contents of exhibit 10 are concerned it is nobody's case that it is a mechanical copy of the history noted in the case papers and mrs. dr. sheth has only deposed as stated in exhibit 10, as part of the statement contained in exhibit 10 that the patient complained of cronic asthama since 20 years etc., was written by her in the case paper of the patient shri girdharilal on being told to her by him while giving the history. i also hold that under section 63 of the evidence act secondary evidence need not be in the form of a mechanical reproduction of an original but section 63 permits giving of secondary evidence in any form, subject to relevancy or otherwise admissibility under the evidence act. in the circumstances the objection raised by shri devnani for reading exhibit 10 in evidence cannot be sustained.22. this being the position shri pagnis, the learned counsel for the respondents pointed out that in the proposal for insurance submitted by deceased, in his personal statement, column 6(b) in which the question asked was whether the proposer inter alia, suffered from asthama or any other affection of lungs, the deceased replied in the negative. he pointed out that this statement is signed by the assured and certified by d.w. 1 dr. vora who has identified his signature on the relevant exhibit 1 (colly.). on the other hand. shri devnani contended that p.w. 1 son of the deceased has stated in his evidence that the deceased only knew english for the purpose of making signature and therefore it was incumbent upon the respondent corporation to examine the concerned insurance officer who brought the proposal from the deceased in order to show that all these respective columns were explained to the deceased before he signed relevant forms. he placed reliance on kulla ammal v. oriental govt. security life assurance co. ltd., reported in : air1954mad636 .23. it is observed in the said kulla ammal's case (supra) that where the assured is a person who does not know english and the proposal and declaration forms are in english and the company which defends the claim by repudiating its liability on the ground that the answers said to have been given by the assured and found typed in the forms are false and inaccurate in respect of some of the questions but does not produce the evidence of the person who put those questions or how they were interpreted to the assured or who typed the answers, the defence exposes itself to the criticism that it has failed to furnish strict legal proof that the assured in fact gave the answers to those questions. they also observed in this case that the contract of life insurance called 'fides uberrima' is certainly not intended to be one way traffic and it calls for a reciprocal obligation resting on the insurance company of placing before a court all the evidence in its possession without reserve.24. now so far as the first aspect is concerned it is no doubt true that p.w. 1 srichand son of the deceased has said that the deceased only knew english for the purpose of signature. it is also true that the corporation has not examined the concerned the insurance officer, who completed the proposal although he appears to have signed in the name of one shri patil. if the matter had rested there perhaps there would have been something which could have been said in favour of the plaintiff. however, d.w. 1 dr. vora who examined the deceased and issued the confidential report of the medical examination has signed the personal statement form which contains mainly negative answers of the assured to the questions regarding any earlier detection of illness, on which he has certified that the proposer has signed in his presence after admitting that all the answers have been correctly recorded. in my view the assertion of dr. vora that the assured has signed his personal statement form dated 21st march, 1961 is sufficient in the facts of the present case to hold that the assured has been proved to have subscribed to his personal statement form after understanding the relevant question.25. it may be mentioned here that the relevant observation made in kulla ammal's case (supra) says that the corporation must place before the court all the evidence in its possession without reserve. it was contended by shri devnani that the corporation did not disclose the name of the investigating officer who investigated into the claim of the claimant on the basis of which the claim was repudiated nor did the corporation examine dr. raheja. in my view there is no substance in this argument.26. in the first instance the whole case of the corporation as it appears from the written statement as well as the evidence lead appears to be based on the evidence dr. mrs. sheth who recorded exhibit 10. except exhibit 2 which has been rejected as in-admissible in evidence there is nothing to indicate that the corporation had in its possession some other relevant evidence and failed to produce the same. so far as dr. raheja is concerned it is not even the plaintiff's case that dr. raheja was giving treatment to the deceased prior to admission in the bhatia general hospital and therefore one cannot expect dr. raheja to know whether the deceased suffered from any ailment of different kind before he was admitted into the hospital.27. therefore, the position comes to this that so far as the corporation is concerned it has relied upon the evidence of dr. mrs. sheth who recorded exhibit 10. when exhibit 10 is taken into consideration it clearly shows that while he was admitted as a patient in the bhatia general hospital he stated to dr. mrs. sheth that he was a patient of chronic asthama since 20 years and every year when he gets attack of restlessness he takes injection and accordingly before he was admitted to the hospital he had taken two injections before two months. this statement of the deceased is clearly contrary to what is stated by the deceased in his personal statement dated 21st march, 1961 that he does not suffer from any affection of illness or asthma, before or after the submission of the proposal. that would clearly mean that the declaration made by the proposer that he had answered every question by fully understanding its meaning and he had not withheld any information which was the basis of the contract of insurance was clearly false to his knowledge and consequently the learned trial judge was right in coming to the conclusion that the insurance effected under such a proposal was null and void and consequently all the claims and benefits under the policy had ceased and the corporation was entitled to liquidate the claim under the policy.28. incidentally i may note certain authorities that were cited by shri devnani at the bar in the course of his argument only for the purpose of showing that so far as the facts of the present case are concerned they do not have much bearing.29. shri devnani relied upon the decision in life insurance corporation of india v. parvathavardhini ammal, reported in : air1965mad357 . it is held in this case that an insurer seeking to repudiate a contract of insurance, after the expiry of two years from the date on which it was effected, on the ground of misstatements or untrue answers has to prove in view of the provisions of section 45 that the suppression or fraudulent representation was in relation to material facts and that the suppression or the fraudulent representation was made by the assured with the full knowledge that the facts in question were material. on the face of it this decision has no application to the facts of the present case because here the repudiation was made within 2 years from the date of the acceptance of the proposal. since the deceased died on 23rd october, 1961 that is, within a period of 6 months from the date of acceptance of the insurance, strict compliance with the provisions of section 45 is not called for, so far as the facts of the present case are concerned.30. shri devnani also made a reference to a decision of the supreme court in the case of sharad birdhichand sarda v. state of maharashtra, reported in : 1984crilj1738 in relation to his argument based on section 32 of the evidence act. i have already dealt with and held that section 32 of the evidence act is not relevant so far as the enquiry in the present case is concerned and what is relevant is whether the deceased suffered from any ailment at or about the time his proposal was accepted, which fact he had answered in the negative in his personal statement. therefore this authority is not relevant sofar the facts of the present case are concerned.31. shri devnani also made a reference to a decision in s.p. gupta and others v. president of india and others, reported in : [1982]2scr365 , in relation to his argument that the corporation was not entitled to claim any privilege in respect of the report of the investigating officer on the basis of which the corporation has repudiated the claim of the claiment. it does not appear from the proceedings that any claim of privilege as such was made except that at the trial when a question was asked about the name of the investigation officer it was objected to on behalf of the corporation and consequently that objection was upheld. i have already held hereinabove that so far as the corporation is concerned it does not appear that they had any other best evidence in its possession than what is already produced and therefore the question of withholding any evidence on the basis of a claim of privilege does not arise at all.32. the next authority relied upon by mr. devnani was in the case of life insurance corporation of india v. smt. g.m. channabasemma, reported in : air1991sc392 . this case reiterates the proposition that the burden of proof that the insured had made false representations and suppressed material facts, is undoubtedly on the corporation. it also refers to a case in respect of the life insurance policy in question after the expiry of two years from the date on which it was effected and a reference was made to section 45 of the act which has made certain special provisions. as stated earlier in the present case the death of the deceased occured within a short period of 6 months from the date of issuance of the policy and therefore any special consideration under section 45 of the insurance act does not arise.33. reliance was also placed in the case of the life insurance corporation of india v. bhogadi chandrayathamma, reported in : air1971ap41 , where it was held that where there was no evidence that the questionnaire which was in english was fully explained to and was understood by the insured who was a layman, it could not be held that there was fraudulent concealment or suppression of a material fact which was within his knowledge viz., that he was suffering from diabetes. so far as the facts of the present case are concerned i have already held that dr. vora who examined the assured at the time when his proposal was made he has given necessary certificate on the personal statement signed by the deceased and therefore it cannot be said that the deceased blindly signed the personal statement form without understanding its implication.34. shri devnani also relied upon a decision in m/s. parekh brothers v. kartick chandra saha and others, reported in : air1968cal532 , in support of his argument that no case was made out in the present case for leading secondary evidence and the secondary evidence was not of the nature described in section 63. i have already considered this argument and held that secondary evidence permissible under section 63 read with section 65 can be of any other kind and not only of mechanical copies of original documents and so far as the loss of original case papers are concerned it has been proved by the corporation that the original case papers were not available though a search was made on 5 to 6 occasions which is sufficient to fulfil the requirement of section 65 of the evidence act.35. on the other hand shri pagnis the learned counsel for the corporation referred to a decision between mrs. maniluxmi patel and another v. hindustan co-operative insurance society ltd. and another, reported in : air1962cal625 . in answer to a query in the proposal for insurance on his own life the deceased had made an untrue statement that he had not been insured in another company at an extra charge. it was proved that the answer to the questions in the proposal form written down by the agent had been read out and explained to the assured and were accepted by the assured and consequently it was held that the knowledge of the assured could not be imputed to the defendant company so as to constitute a waiver of the breach of warranty, merely because the agent of the company was acting as an agent of the proposer while filling in the proposal form for and on behalf of the assured. it was held that the repudiation by the company was right and the policy was void on the ground that the assured gave an untrue reply to the questions in the proposal forms signed by him. in the present case the question about the knowledge of the previous illness of the assured to the insurance officer who got the proposal completed on the assured does not arise at all because in fact there was no mention made of any prior ailment by the assured in his personal statement. that being no, strictly speaking this authority has no bearing on the facts of the present case except to the extent that it lays down that if an assured gave an untrue reply to the question in the proposal form signed by him the policy is void. in the present case it is proved that the reply given in question no. 6 in his personal statement by the assured was false and consequently the policy was void.36. similarly a reference was made to the case of all india general insurance co. ltd. v. s.p. maheshwari, reported in : air1960mad484 wherein it has been held that where there was misrepresentation about the drinking habit and non disclosure of general deceases, the insurance company was entitled to repudiate the liability. it was a similar case where the assured died within 6 months of his taking out of the policy on account of syphilis and cirrarsis of the liver and fortunately for the insurance company in that case evidence of the doctor who had treated the assured earlier was available and the high court accepted the said evidence and held that the insurance company was justified in repudiating its liability on the ground of deliberate non-disclosure by the assured of syphilis and deliberate misrepresentation of his drinking habit in his personal statement.37. in the present case no doubt no evidence of any doctor as such is available for the purpose of showing that the deceased suffered from asthama for a period of about 20 years but best evidence that was available to the corporation, namely the statement of the deceased at the time when he was admitted in the hospital on 15th october, 1961 had been produced and it proves that the deceased had suppressed the said fact in his personal statement form submitted along with his proposal form.38. in the circumstances the judgment and decree passed by the trial court dismissing the plaintiff's suit deserves to be confirmed and the present appeal will also have to be dismissed. however, so far as the costs are concerned it is clear that the claimants came to the court because the deceased had taken an insurance policy. but they are being non-suited on the ground that deceased had made certain false statement and therefore in such circumstances it would not be just and proper that the claimants should be saddled with the costs of this litigation.in the result the appeal stands dismissed. however, parties shall bear their own costs throughout.the appellant has filed a civil application for amendment in the plaint in the rate of interest claimed therein. however, since the appeal itself being dismissed the civil application also stands rejected.