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Vaid Mahesh Chandra Shastri Rampuri Vs. Life Insurance Corporation of India - Court Judgment

LegalCrystal Citation
SubjectInsurance
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 257 of 1963
Judge
Reported in[1968]38CompCas767(All)
ActsInterest Act, 1839 - Sections 1; Insurance Act, 1938 - Sections 45
AppellantVaid Mahesh Chandra Shastri Rampuri
RespondentLife Insurance Corporation of India
Appellant AdvocateJ.N. Chatterji, ;S.P. Kunwar, ;B.L. Gupta, ;S.S. Verma, ;Ashok Gupta and ;R.K. Jain, Advs.
Respondent AdvocateJ. Sarup and ;S.D. Agarwal, Advs.
DispositionAppeal allowed
Excerpt:
- - if one or more of them is not proved, the challenge will fail. no). the civil judge now finds that she had had a miscarriage sometime in october 1953. we are unable to accept this finding the finding as is based on weak oral and circumstantial evidence. in her first statement the source of income was stated to be medical practice ;in the second statement it was medical practice as well as agriculture. 19. the appeal is allowed with costs of appeal as well as of the suit......the civil judge says that the latter statement was inaccurate and exaggerated, and that it was a material statement. he has accordingly held that the respondent can take the benefit of section 45. we do not agree with the civil judge that there was a material mis-statement.* * * *10. considering all the circumstances of the case, we are of opinion that the statement of pushpa devi in her second statement of proposal regarding her income was, firstly, not inaccurate, and, secondly, if inaccurate, it was not material.11. in the result, the respondent cannot take the benefit of section 45 as the respondent did not call in question the policies within two years from the date on which it was effected.12. the appellant has also claimed interest in his plaint. he has claimed the interest for.....
Judgment:

Dwivedi, J.

1. Vaid Mahesh Chandra Shastri is the appellant in this appeal. His wife, who died on May 21, 1959, was called Pushpa Devi. They together obtained two policies of life insurance on their joint lives from the respondent, the Life Insurance Corporation of India. The policies commenced from November 18 and December 28, 1958, respectively. They were for Rs. 10,000 each.

2. After the death of his wife, the appellant claimed the amount of the policies from the respondent. He submitted his claim on August 17, 1959. But on July 28, 1961, the respondent repudiated the claim. Hence the suit, out of which this appeal has arisen, was instituted for the recovery of the amount due under the two policies.

3. The respondent contested the suit on various grounds. The civil judge dismissed the suit. It is unnecessary to reproduce all his findings. The arguments in appeal have converged on three of his findings. And we shall summarise them here : (1) Section 45 of the Insurance Act applies to the case ; (2) Pushpa Devi had more than one conception ; she also had a premature delivery. So she fraudulently made a wrong statement or suppressed truth on material matter ; and (3) the appellant and Pushpa Devi gave incorrect statements as regards the income of the latter. This inaccuracy was on a material matter.

4. We have already disclosed the dates on which the two policies were effected and the date on which the respondent repudiated the claim of the appellant in respect of those policies. The repudiation was obviously made after two years of the dates on which the policies were effected. So we agree with the civil judge that Section 45 did apply to the facts of the case (Mithoolal Nayak v. Life Insurance Corporation of India, [1962] 32 Comp. Cas. 177. (S.C.)). According to the counsel for the respondent, Section 45 of the Insurance Act.does not apply, as one of the assured, namely, Pushpa Devi, had died within two years of the dates on which the policies were effected. But the argument runs against the plain words of the section. Moreover, we think that Nayak's case forecloses the argument. So we hold that Section 45 applies to the case. We quote its material portion :

'......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......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 policyholder 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.....'

5. The insurer may question a policy where a statement contained in the proposal for insurance is inaccurate or false, provided (i) such a statement was on a material matter or suppressed facts which it was material to disclose ; (ii) such a statement was fraudulently made by the assured ; and (iii) the assured knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. All these three elements have to be proved cumulatively. If one or more of them is not proved, the challenge will fail. Again, the burden of proving them all lies on the insurer. The burden cannot be deemed to be discharged by evidence which is equivocal.

6. What does the word ' material' in the Section mean A fact may be material if it will influence ' a reasonable insurer so as to induce him to refuse the risk or alter the premium ' (Mutual Life Insurance Company of New York v. Ontario Metal Products Co. Ltd., [1925] A.C. 344.), A fact per se may be material in this sense, for instance, the disease of tuberculosis; another fact per se may not be material in this sense, for instance, an ordinary fever. In the latter case the insurer should adduce some more facts to show that it is material to the acceptance of the proposal for insurance or for enhancement of the premium. With these preliminary remarks we shall proceed to examine the fact of this particular case.

7. In the two statements of proposal signed by her, column No. 12 contains four questions : (i) How many conceptions have taken place (the answer by her was : one); (ii) how many have gone full time (the answer was : one); (iii) state the date of last delivery (the answer was : 6 years back); and (iv) have you had any abortions or miscarriages? (the answer was: no). The civil judge now finds that she had had a miscarriage sometime in October 1953. We are unable to accept this finding the finding as is based on weak oral and circumstantial evidence. [The learned judges referred to the evidence and continued.]

* * * *

8. We, therefore, conclude that the statement in her personal statement that she had no miscarriage or abortion is neither inaccurate nor false.

9. In her first statement of proposal submitted in October, 1958, Pushpa Devi had shown her income as Rs. 150 per month. In her second statement submitted in December, 1958, she, however, stated that her income was Rs. 250 per month. In her first statement the source of income was stated to be medical practice ; in the second statement it was medical practice as well as agriculture. The income swelled by Rs. 100 within the course of one and a half months. The civil judge says that the latter statement was inaccurate and exaggerated, and that it was a material statement. He has accordingly held that the respondent can take the benefit of Section 45. We do not agree with the civil judge that there was a material mis-statement.

* * * *

10. Considering all the circumstances of the case, we are of opinion that the statement of Pushpa Devi in her second statement of proposal regarding her income was, firstly, not inaccurate, and, secondly, if inaccurate, it was not material.

11. In the result, the respondent cannot take the benefit of Section 45 as the respondent did not call in question the policies within two years from the date on which it was effected.

12. The appellant has also claimed interest in his plaint. He has claimed the interest for a period both before and after the institution of the suit. The civil judge framed an issue on the point. But he did not decide it because he held that the suit was liable to be dismissed on merits. The issue becomes live now, because we are allowing the appeal on merits.

13. The appellant has claimed interest in the plaint by way of damages. Interest cannot, however, be awarded by way of damages. It can be awarded for a period after the institution of the suit under Section 34, Code of Civil Procedure. It may be awarded for a period before the institution of the suit if it is payable under contract between the parties, or under some usage having the force of contract, or under the Insurance Act, or under the Interest Act. Admittedly it is not payable under any contract or usage having the force of contract. Nor it is payable under any provisions of the Insurance Act.

14. Counsel for the appellant has submitted that it will be payable under the Interest Act. Under Section 1 of the Interest Act, we can award interest if we hold that the amount payable to the appellant under the two policies is a debt or a sum certain payable at a certain time by virtue of a written instrument, or is payable otherwise. It has been held that the last clause, ' if payable otherwise,' applies to cases where interest is payable on principles of equity. Counsel for the appellant has referred us to certain decisions of the Privy Council and the Supreme Court where interest was awarded under the last category. He has also urged that the interest would be payable under the second category, ' sum certain payable at a certain time by virtue of a written instrument '. Counsel for the respondent has, on the other hand, argued that no interest will be payable under these two categories. It is not necessary for us to express any opinion on these arguments, for we are of opinion that interest will be payable under the first category--' debt '.

15. The word 'debt' has been judicially interpreted in numerous cases. In Stroud's Judicial Dictionary of Words and Phrases (1952 edition), volume I, page 733, it is stated that ' a ' debt' is a sum payable in respect of a liquidated money demand, recoverable by action '. In Kesoram Industries v. Wealth-tax Commissioner, [1966] 59 I.T.R. 767, 784; A.I.R. 1966 S.C. 1370 the Supreme Court observed :

' A debt is a present obligation to pay an ascertainable sum of money, whether the amount is payable in praesenti or in futuro : debitum in praesenti solvendum in futuro. But a sum payable upon a contingency does not become a debt until the said contingency has happened,' (See also Commissioner of Wealth-tax v. Pierce Leslie & Co. Ltd., [1963] 48 I.T.R. 1005; A.I.R. 1963 Mad. 356).

16. On the death of Pushpa Devi, the amount due under the two policies became at once payable to the appellant. The said amount was liquidated money in the hands of the respondent. So we think it was a debt due to the appellant by the respondent. Counsel for the respondent has submitted that it could not be liquidated money, because on the maturity of the policy or on the amount becoming due earlier on account of death or any other reasons, the assured or his nominee is also entitled to an uncertain amount by way of bonus. In the present case nothing was payable to the appellant by way of bonus as Pushpa Devi had died within five months of her insurance. So we are certain that in the instant case the amount due under the two policies is a debt. We are supported in our view by an American decision which is referred to in the Words and Phrases (permanent edition), volume 11, page 244. The relevant passage is :

'Rules of Civil Practice, No. 113, providing that answer may be stricken and summary judgment rendered in an action to recover a 'debt' or liquidated demand arising in certain cases, held applicable to an action on policies insuring insured against loss by riot and commotion after loss has occurred thereunder, since the liability after the loss has occurred becomes an absolute liability, and therefore a ' debt'.'

17. It has also been urged on behalf of the respondent that there was delay in filing the suit, and that, accordingly, the appellant is not entitled to any interest. The respondent repudiated the claim of the appellant by letter dated July 28, 1961. The suit was instituted on May 21, 1962, that is, after ten months from the date of repudiation. We do not think that there was any unreasonable delay in institution, having regard to the heavy court fee payable on the plaint. Again, delay is relevant to damages and not to interest payable under the Interest Act. The Interest Act does not provide that no interest shall be payable if there is delay in instituting the suit.

18. So we hold that the appellant is entitled to interest under the Interest Act. He has claimed interest from September 17, 1959, at the rate of 6% per annum. That is a reasonable rate of interest now-a-days. So he will be entitled to interest at that rate on the amount due from September 17, 1959, to the date of the institution of the suit. The amount of interest for this period comes to Rs. 3,200. He shall also get interest at that rate (6% per annum) on the amount due from the date of the institution of the suit till the date of payment.

19. The appeal is allowed with costs of appeal as well as of the suit. The judgment and decree of the civil judge are set aside. We decree the suit of the appellant for a sum of Rs. 23,200 along with interest at the rate of 6%; per annum on the sum of Rs. 20,000 from the date of the institution of the suit till payment of the sum due.


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