1. This is an appeal, at the instance of the plaintiff directed against the Judgment and decree dated 29-7-1978, passed by the Addl. District Judge, Satna, in Civil Suit No. 6-B of 1975, dismissing the plaintiff's suit.
2. It was not disputed that the plaintiff's husband late Moolchand had insured himself with the defendant, Life Insurance Corporation of India (hereinafter referred to as the 'Corporation') on 28-3-1972 for a sum of Rs. 25.000/- against policy No. 28948907 and that he had filled in a proposal form (Ex. D-l) dtd. 27-3-72 and made a personal statement (Ex. D-2) on the same date. After taking the said policy, Moolchand died within a month on 16-4-72. The plaintiff being his widow was nominated in the said policy as a beneficiary. After his death, she made a demand of the amount covered by the said policy but the Divisional Manager of the defendant Corporation, by his letter dated 29-12-1973 (Ex. D-3) refused the payment. It was also not disputed that before the insurance policy in question, late Moolchand had obtained three policies in March 1965, which had all lapsed in March 1970.
3. The plaintiff instituted the suit to enforce her claim for recovery of Rs. 25,000/-which is the amount covered by the said policy on the ground that after the death of her husband, she was entitled for the said amount as the beneficiary of the Policy. It was averred that at the time of filling of the proposal form (Ex. D-J), her deceased husband had disclosed that he had taken three more policies in the year 1965 which had lapsed but this fact was not recorded by the agent and field officer of the Corporation who had filled in the said form. It was also averred that even if the said fact was not disclosed, it was not material so as to entitle the defendant Corporationto repudiate the Policy The plaintiff also claimed interest amounting to Rs. 11.000/-w.e.f. 16-4-1972 at the rate of 12% per annum.
4. The Corporation contested the plaintiff's claim by contending that late Moolchand had suppressed the material facts with a view to obtain the insurance policy by fraudulent misrepresentation and if the said facts were known to the Corporation it would not have accepted the proposal. The defendant Corporation took the pica that the deceased Moolchand had submitted his proposal (Ex. D-J) for insurance on 27-3-1972 and also made a personal statement (Ex. D-2) on 27-3-72 itself wherein he made a declaration that the personal statement and the answers given in proposal form were true in all particulars and no information had been withheld or concealed and that he further agreed that the said statement and declaration shall be the basis of contract of insurance between him and the defendant Corporation and that if any part of the statement was found untrue, the contract of insurance shall become absolutely null and void and money paid by him shall stand forfeited to the Corporation. The defendant contended that it was under the aforesaid conditions that the policy was issued. The defendant Corporation further proceeded to aver that since the assured had died within a month from the date of commencement of policy, it made inquiries to ascertain the bona fides of the plaintiff's claim. The defendant Corporation found that the assured late Moolchand while answering the question No. 8 in the proposal form (Ex. D-l), he did not disclose the material particulars regarding the three prior policies which had all lapsed in March, 1970, which were within his knowledge and thus the reply to question No. 8 was false to his knowledge and, therefore, the policy was rightly repudiated by the Corporation in accordance with Section 45 of the Insurance Act, 1938 (hereinafter referred to as the Act).
5. The Corporation took the stand that the nondisclosure of the aforesaid material fact deprived it of its right to consider and assess the underwritten risk in the proposal as well as the right to have special medical examination and tests so as to compare the two medical reports of March 1965 and March 1972, as the assured had declined in health and was suffering from diabetes and heart ailments. The defendant Corporation also took the plea that under the Rules a new proposal can not be accepted in the previous policies had lapsed withina year from the date of new proposal unless the lapsed policies are revived.
6. The learned trial Court found that the assured deceased Moolchand Manglani had not disclosed to the officials of the Corporation about his three lapsed policies and that this fact was concealed by him but it was not a material fact. However, the trial Court dismissed the suit by holding that though the suppression of the facturn of lapsed policies was not of a material fact, yet under Section 45 of the Insurance Act, the Corporation was entitled to repudiate the contract of insurance within two years from the date the policy came into effect, on the basis of misstatement or nondiscloser of fact in the proposal form (Ex. D-1) and personal statement (Ex. D-2), the same being against the express warranty.
7. The consensus of opinion of the English decisions as well as of various High Courts in India is that a contract of insurance is contract uberrimae fidei and there must be utmost good faith on the part of the person securing insurance of his life, who is under an obligation to disclose all material facts which may have bearing on the risk undertaken by the insurer. In view of this settled opinion the points for our determination in this case are (i) whether the policy holder Late Moolchand had deliberately suppressed the fact of his three lapsed policies which he was bound to disclose while making the personal statement, with a view to obtain the fresh insurance policy, by fraudulent misrepresentation, and (ii) whether the concealment of this fact had any bearing on the risk undertaken by the Corporation by insuring his life which if known to the Corporation it would not have accepted the proposal for insurance. As stated earlier the defendant Corporation denied the liability under the policy on the ground of repudiation under Section 45 of the Act, by contending that the assured Late Moolchand was guilty of making a false statement in as much as he did not disclose the three lapsed (sic) in answer to question No. 8 in the proposal form (Ex. D-I) which invalidated the policy. The question No. 8 in terms was as under:
8. At this stage it would be relevant to refer to Section 45 of the Act also the material part of which runs as under;.---
'Section 45 : 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 'n 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 other 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 the policy holder knew at the time of making it that 'the statement was, false (or that it was suppressed facts which it was material to disclose).'
A fair reading of Section 45 of the Act would reveal that all that it contemplates is that a policy can be called in question after expiry of a period of two years from the date on which it was effected on the ground that the false or inaccurate statement made in the proposal for insurance was on a material matter or that the assured suppressed facts which it was material to disclose and that such statement or suppression was fraudulently made which the assured knew at the time of making such a false or inaccurate statement that it was false 'and that it was material to disclose the same. Section 45 however does not specifically contemplate repudiation of a policyof insurance on any of the aforesaid grounds before the expiry of the period of two years from the date on which the policy was effected. It may, however, be contended that the said section indicated by necessary implication that even if a policy is repudiated within two years under Section 45 of the Act still! it has to be shown that the fact misrepresented or suppressed was a material fact which affected the other party. It may also be avoided even on any other grounds which may otherwise be available under the general Law of Contract. See L. I. C. of India v. Manjula (AIR 1975 Orissa 116) and Kamla Wanti v. L. I. C. of India (AIR 1981 All 366).
9. Admittedly, in the case before us, the policy came into effect on 28-3-1972 and that' the said policy was repudiated by the defendant Corporation by its letter (Ex. D-3) dated 29-3-1973 within two years. It has been found on appreciation of evidence adduced by the Corporation, that the assured late Moolchand did not disclose in answer to question No. 8 of the proposal that life prior three policies had lapsed and, therefore, the defendant Corporation vehemently urged that the non-disclosure and suppression of this fact in the proposal as well as in the personal statement made by the assured had rendered the contract of insurance void because of the aforementioned misrepresentation on the part of the assured. Learned trial Court recorded a definite finding that the non-disclosure of the above said fact was not a suppression of a material matter-and there was no reasons for us to differ with that finding Consequently the second part of Section 45 of the Act was not attracted. In these circumstances; in our opinion it would be the general law of contract which would be attracted because in substance the question with which we are now confronted is whether the non-disclosure of the information about lapsed policies by the assured amounted to misrepresentation and whether the said fact had such a bearing on the risk undertaken by the defendant Corporation that it would not have accepted the proposal if the fact of lapsed policies was made known to its officials. Even if Section 45 of the Act is also attracted then also it has to be shown by the Corporation that the fact suppressed was material fact having bearing on the risk.
10. Now reverting back to the general law of contract we may first refer to Section 19 of the Contract Act which deals with voidabitity of agreements without free consent. Section 19 of the Contract Act so far it is relevant in this case reads as under: --
'Section 19. When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.
Exception ...... ...... ...... ...... ...... ......
Explanation -- A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable.'
The perusal of explanation attached to Section 19 above clearly goes to show that in order to avoid a contract misrepresentation or fraud must be proved to be the main cause in obtaining the consent of the other party to the contract and if it is not found, the fraud or misrepresentation ipso facto would not render the contract voidable.
11. Here it may also be relevant to look to the provisions of fraud and misrepresentations under the Contract Act. Section 17 defines fraud and Section 18 defines misrepresentation. A combined reading of Sections 17 and 19 of the Contract Act makes it clear that representation is a statement of fact, past or present, distinct from statement of opinion and a fraudulent misrepresentation of fact confers on the represented with a right to avoid the contract. It may be said that a misrepresentation willnot be effective to ground the avoidance of a contract unless it was material in the sense that a reasonable man would have been influenced by it in deciding whether to enter into the contract and if it was material in this sense, the represented may have considerable difficulty in satisfying the Court that he was in fact influenced by the misrepresentation. Mere non-disclosure of fact, material or not, does not ordinarily amount to misrepresentation unless it was fraudulent. The insurer cannot repudiate the liability by showing only some inaccuracy or falsity of statement nor can it avoid the policy for an immaterial misrepresentation or even for a material mis' representation which had no bearing on the risk. Similarly mere non-disclosure of some immaterial facts would not per se give right to rescission. In other words a misrepresentation would not ipso facto to be a ground available to an aggrieved party to avoid the contract unless it was found that the consent of the other party was secured by practising some deception. Thus on every misrepresentation or concealment of a fact a ' contract cannot be avoided merely on trivial and inconsequential misstatement or non-disclosure. In Joel v. Law Union and Crown Insurance Company (1908) 2 KB 853 it has been pointed out that to apply strictly the rigid rule of warranties even to the immaterial and inconsequential concealments is to throw the innocent assured at the mercy of the insurer. Further, Lord Fletcher Moulton L. J., strongly disapproved the way in which an insurance policy was effected. To quote in his own words, he observed that 'I wish I could adequately warn the public against such practices on the part of insurance offices. I am satisfied that 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.' (see at page 885).
12. The question whether a particular misrepresentation was of such a character from which it could be deduced that it did influence the mind of the other person while obtaining his consent or whether it was of such a nature that his consent could in no manner be said to be influenced by the misrepresentation is a question depending upon the facts of each case. A circumstance of misrepresentation may be material if it would influence the- judgment of a prudent insurer in accepting the proposal for insurance of a policy for life, in fixing the pre-mium or determining whether he will takethe risk. The test to determine materiality is whether the fact has any bearing on the risk undertaken by the insurer. In other words without proof of bearing on the insurability of policy cannot be invalidated. If the fact has any hearing in the risk, it is a material fact but in case it is not, it is immaterial. In such a situation the question arises in the instant case whether the defendant Corporation could be said to have been misled by the non-disclosure of the fact of three policies having been lapsed in 1970 and whether it had any bearing on the risk undertaken by the insurer in insuring the life of the assured late Moolchand. It is difficult to appreciate as to how the fact of three lapsed policies had any bearing on the risk of insurance. No case was cited before us in which it was held that non-disclosure of lapsed policies had any effect or hearing on the risk. If the assured had not given his correct age or had not disclosed any serious illness with which he was suffering at the time of proposal so as to affect the longevity of the assured or any fact which tends to suggest that the life insured was likely to fall short of the average duration, then it could be said that these factors being material matters and relevant would certainly have influenced the mind and judgment of a prudent insurer in accepting the proposal and, therefore, the insurer could avoid the policy as such facts would have a bearing on the risk undertaken. But it is difficult to accept that the nondisclosure of the lapsed policies had any such bearing on the risk. In our opinion even if the said fact was known it would have in no way influenced the mind of the insurer. Learned counsel for the respondent Corporation could not place before us any facts or circumstances to demonstrate as to how and in what manner the said fact had any bearing or that the insurer would have been influenced while accepting the proposal. The only reason pleaded was that by non-disclosure of lapsed policies the defendant Corporation was deprived of its right to have special medical examination and tests so as to compare the two medical reports of March 1965 and March 1972 as the assured was suffering from diabetes and heart ailment. But it may he noted that the defendant Corporation neither produced any of the medical reports nor the doctors who had examined the assured. This apart, the Corporation gave up this plea of defence during the course of arguments as is clear from paras 18 and 37 of Judgment of the trial Court.
13. Learned counsel for the respondent Corporation produced no Rules before us in support of the contention that a new proposal cannot be accepted if the previous policies had lapsed within a year from the date of new proposal unless the lapsed policies are revived. This contention, therefore, has no force.
14. In supporting the impugned judgment of the trial Court, learned counsel for the respondent Corporation placed his reliance on the decisions in East India Railway Company v. Major Andrew Torton Kirkwood (AIR 1922 PC 195), Brahm Dutt v. Life Insurance Corporation (AIR 1966 All 474), L. I. C. of India v. Janaki Ammal (AIR 1968 Mad 324), Mithoolal v. L. I. C. of India (AIR 1962 SC 814) and Rami Bai v. L. I. C. of India (J981 MPLJ 192) : (AIR 1981 Madh Pra 69). In the Privy Counsel case the materiality of the untruth was not in issue. In the Allahabad case (Supra) it was found that the declaration given by the assured in the proposal form in respect of his status and occupation was untrue which had a bearing on the risk undertaken by the insurer while in the case before us we find that the non-discloser has no such hearing. The Madras, Supreme Court and M. P. decisions (supra) were the cases in which the policy was repudiated after two years and the effect of second part of Section 45 of the Act was considered. But in our case the facts are quite distinguishable in which the provisions of second part of Section 45 of the Act are not attracted at all. These decisions are thus not directly applicable to the facts of the present case and, therefore, none of them advance the case of the Corporation.
15. It is true that the assured did not disclose the fact about his lapsed policies which at the most could be said to be a foolish concealment but without any fraudulent intention. In the facts and circumstances of this case we have no hesitation) in holding that the non-disclosure of fact regarding lapsed policies had no bearing on the risk and it did not amount to fraudulent misrepresentation as no undue advantage was sought to be derived by conceal-ment of said fact. Thus, the Corporation had made out no case for avoiding or repudiating the policy, and it is liable for payment of the policy amount with interest. The Corporation by its letter (Ex. D-3) dated 29-12-1973 had refused the demand of the plaintiff for payment of the amount covered by the policy while it was legally bound to pay the same. We, therefore, direct that the Corporation shall pay interest at the rate of 6% per annum on the amount of policy w.e.f. 29-12-1973 till payment of the policy amount.
16. In the result, the appeal succeeds and is hereby allowed. The plaintiff's suit for recovery of Rs. 25,000/- being the amount of policy on the life of her deceased husband is decreed with cost. The plaintiff shall also be entitled to get interest on the said amount at the rate of 6% per annum w.e.f. 29-12-1973 till payment. Counsel's fee as per schedule, if certified.