1. The plaintiff (Daulat Ram) is the appellant. He filed a suit for recovery of Rs.10,000/- on the insurance policy which has been taken by Smt. Chawli Devi being her adopted son he was the nominee of the policy. the policy was effective from 13-9-1955 in respect of which it is stated. that the respect of which it is stated. that the premiums due until the death of Smt Chawli Devi on 30-9-1956. had been paid.
2. The suit was dismissed by the learned Commercial Sub Judge 1st Class. Delhi on 12-6-1961 on the grounds s that she had not insurable interest and that she ahd stated in the proposal the was literate and did not observe pardah, which statement had been proved to be incorrect. The suit was resisted by the Life Insurance Corporation. The successor- in interest of the Bharat Insurance Co. Ltd., also on the ground that she was suffering from diabetes which fact she had not disclosed the finding on this question of fact was in the favor of the plaintiff.
3. The most important question for consideration . It seems to us is whether Smt Chawli Devi had an insurable interest in the policy. It has been stated by the plaintiff (P. W. 6) that the premiums due on respect of insurance policies had been paid our of the funds of Smt. Chawli Devi and necessary entries were made in the books of the firm of Mehtab Rai Suraj Bhan. the joint Hindu family firm which she was a member. Copies of the Khata of Smt. Chawli Devi in the said firm relating to the years 1954-55. 1955-56 1956-57 and 1957-58 were filed and marked as Ex. P. W. 6/1 (The translation has been printed at pages 83 and 84) It is been from the said translation that s sum of Rupees 3,254-15-0, as in the year 1957-58 had been carried over from, previous year in the Khata as a debit against Smt Chawli Devi. Though the Rokar had not bee file and detailed had not been fully elicited from P. W. 6 it had been elicited in his re-examination as follows:
'The above premiums of Shrimati Chawli Devi paid by me were a debited to her cannot in the books of Mehtab Rai Suraj Bhan.
No further question was out thereafter to P. W. 6 by the insurer.
4. Shri J. P. Aggarwal learned counsel for the Life Insurance Corporation of India content that this statement should not have been elicited in re-examination and this having been elicited in re-examination he had no further opportunity of cross-examining the witness. It does not appear from the record that any objection was taken to the said question which was thus elicited in the re-examination . Section 138 of the Indian Evidence Act Provides that the re-examination shall be directed to the Explanationn of matters referred to in cross examination and if new matter is by permission of the Court noticed in re-examination the adverse party may further cross examine upon that matter. It is necessary in this context to refer to the evidence given by the plaintiff both in chief-examination and in cross-examination . He had simply stated in chief-examination that Smt. Chawli Devi was insured with Indian Mutual Life Assurance Company (a different company) for Rs.7,500/- in the shape of two policies of Rs. 5,000/- and Rs. 2,500/-. These policies were taken in 1953. The suit policy was taken by her in 1955 of her own accord and not at the plaintiff instance. He stated in cross examination that the annual premium for the policy of 1954 was Rs.554/8/- the premium for the policies for 1953 was paid on behalf of the plaintiff from out of her account with the firm Mehtab Raj Suraj Bhan. The premium receipts in regard to those policies were filed with the income-tax authorities. For the policy in dispute. a cheque of Rs.500/- was initially given. It was signed by P. W. 6 and drawn against this account in the bank in question. After the proposal was accepted by the insurer he paid Rs.128/5/ in cash for the suit policy. The second premium was also paid by him in cash. But these premium receipts also were with the income-tax authorities.
5. The plaintiff was adopted by Smt. Chawli Devei's husband in 1942 and her husband died in 1950. Smt Chawli Devi took our the insurance polices only after here husband's death. In there background of the above answers the answer extracted above was elicited in re-examination. Though the leader was produced the rocker a was not produced. In the first place in seen that the question was allowed to be put in re-examination . What is more important is that no objection was taken to the said answer being elicited in re-examination. Even it if was fresh matter the Court must be deemed to have permitted the paid question when it record the said answer especially in the absence of any objection . It was the duty of the counsel who appeared or the Life Insurance corporation of India, if the wanted to contrast the observed statement to have put further question to him . This was not done their is not evidence our on the basis of the said statement of P. W. 6 if must be taken to be establish that the premium were paid of the funds of Smt. Chawli Devi though a the payment were made by or on behalf of the plaintiff and corresponding entries were also made in the accounts of Mehtab Raj Surj Bhan.
6. The learned subordinate Judge has criticised the plaintiff for not producing the Roker especially when the same was not even direct to be produced and went to the extent of drawing an adverse inference against the plaintiff form such non production to say the least this criticism seems neither justified nor ever for to the plaintiff.
7. During the course of the hearing before us we asked Shri Sultan Singh leaned counsel for the appellant plaintiff. To let us know whether the details of the as payment had been entered in the Roker. The original Roker was shown to us containing the above the entries and two entrance were taken at our instance. Their is also sufficient guarantee concerning the entries having been made in the above said manner in the account of Mehtab Raj Surj Bhan in the shape of the assessment order which was also produced before us the direction by Shri Sultan Singh. This was to fully ensure the truth of the above statement of the plaintiff which is by itself legal evidence. Since a public autonomous body like the Life Insurance Corporation of India in involved we as only wanted to make sure of the factual position it is to be had in the shape of the following observation in the assessment order of the income tax officer Addl, B-VIII district, New Delhi dated 3-9-1958.
'Assessed a per I. T. 30 issue demand notice and challan. Allow rabate on Lip as per rules. The assessed has also claimed rebate in respect of premium paid on the life of Smt. Chawali Devi. she being a widow of the deceased Karta. No rebate is allowable on this amount as she has not been shown as a member of H. U. F. in part 3 (a) of the return'.
If no rebate was allowed it was for the technical reason that she had not been shown as a member of H.U. F. in Part 3 (a) of the return. But as a matter of substance there is hardly any doubt about the rebate having been claimed in respect of the premiums paid on behalf of Smt. Chawli Devi for suit policy.
8. We directed Shri Sultan Singh to place a copy a Assessment order along with certified extract from the relevant account a original entries of the account which were shown to us during the hearing as desired by Shri J. P. Aggarwal himself. This was accordingly one by means of the application. After the conclusion of the hearing however Shri S. P. Aggarwal who was appearing along with Shri J. P. Aggarwal for the insure mentioned to us that the wanted to file a reply to the said application. In the said reply avernments have been and which don to even correctly see out the fact that the above document were file at the request of Shri J. P. Aggarwal himself who wanted to see the original account to satisfy himself about the correctness of these entries. No Explanationn has been given even the said affidavit concerning the absence of nay further question of P. W. 6 when he had made the said statement in re-examination was object to . The credit that reference to the entire a showing payment of premium by Smt. Chawli Devi applying in the account in by way of an after thought is not correct. There is no substance in the contentions set out in reply that the plaintiff should be cross-examined further with reference we to these documents. If we wanted to see the original account (true extract of which have been filed now) it was only to satisfy our selves whether details of the entries regarding payment of the insurance premiums has been given in the accountant whether the sum of Rs.324/15/- which is carried over from the previous year in the year 1975-58 (printed page 84) tailed with the entire as they actually appeared in the account . This was done at the instance of Shri J. P. Aggarwal who wanted us to be satisfied (and also to satisfy himself) above the fact whether the details are mentioned. Whether the fights tallied an whether they are supported by anything in the income tax Assessment order. The order is received as addition evidence an market Ex. B because the figures enter therein tally with the Khat already produce in respect of which P. W. 6 had already spoken during the course of his evidence. C. W. 442 of 1972 is allowed.
9. The figure given in the Leader are also seen to tally to the paid. It is worth recalling that a sum of Rs. 3,254/- 15/0 is the figure which was carried over from the previous year in the year 1957-58. The first premium was Rupees 628/5. and the second year also it was of a similar amount making a total of Rs.1256/10- The premium paid for the Indian Mutual Life Assurance company is Rs.1,998/5 and this gives us grand total of Rs. 3245/15 a figure which was carried over in the khata of Smt Chawli Devi (printed page 84) for the year 1957-58. The statement made by the plaintiff in his re-examination that the payment for the insurance premiums for the above policy were debited to the account of the joint family firm in the Khata of the Smt Chawli Devi is thus seen to be fully substantiated. We wish to make it clear that if we required the plaintiff/appellant to produce the assessment order an the original Rokar (the extract from which have been translated and filed) it was only to be doubly assured in this regard. The said statement of the plaintiff being legal evidence and the cross- examination not even being directed in respect of it there is no legal impediment in acting upon that the evidence along with any additional material in this regard.
10. In this view of the policy was taken in the name of Smt. Chawli Devi and the premiums were paid our of her funds the should be no question of Smt. Chawli Devi or even the plaintiff not having any insurable interest in the said policy.
11. Even in the view that advances has been made to Smt Chawli Devi firm for the purpose of effect her insurance policy she along and not the firm would be entitled to the benefit of the policy. This was so held by a Division Bench of the Madras High Court in Bengal Insurance and Real Property Co., Let. v. Velayammal AIR 1937 Mad 517. It was held in the at case that the profit made by member of a joint family from the enjoyment for joint property without detriment for the family by the manager from family funds to be spend by him for his own person use any profit made by such member from such money is a not family acquisition but it is the separate self acquired property of such member. In the person case however the said policy is not claimed to be a family asset. Even then it would help only the plaintiff. The insurance company along has now raised question of insurable interest. In no view of the matter there for the insure can content that there was no insurer can contend that the was no insurable interest.
12. The further question for consideration is whether the suit policy has become vitiated by reason for any misrepresentation made by Smt. Chawli Devi on a material matter. The learned sub-ordinate Judge has found that the policy was vitiated by reason of the two statement of Smt. Chawli Devi concerning literacy and prapdh being found to be incorrect the finding however was in the plaintiff favor concerning the plea of the Life Insurance Corporation that she was suffering from disbets. On this aspect the land subordinate Judge has not even paid any attention to Section 45 of the Insurance Act. 1938 which reads as follows:
'45 policy not to be called in question on ground of mis-statement after two years. No policy of life insurance effect before the commencement of this Act shall after there expirty of two year from the date of commencement of this Act and no policy of life insurance a effect after the coming into force of this Act shall after the expirty to two year 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 four insurance or in any report of a medical officer, or referee or friend of the insured or in any other document learning to the issue of the policy was in accurate or fails unless the insure shows that such a statement was no 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'.
The word underlined were substituted by Act 13 of 1914 and the amendment came into effect from 1-9-1950. the significance of Section 45 was brought out by the Supreme Court in Mitholal Nayak v. Life Insurance Corpn. of India : AIR1962SC814 . It was pointed out that the period of 2 years prescribed in Section 45 has to be calculated from the date on which the policy was originally effected. When the clam is reputed by the insure after the expiry of the 2 years section three condition are necessary for section 45 to apply-
(a) that statement must be on a material matter or must suppress facts which it was material to disclose.
(b) the suppression must be fraudulently made the policy-holder and
(c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed fact which it was material to disclose.
In that case the question arose concerning revival or lapsed policy. The policy has been issued on 13-3-1945 and it was to come into effect from 15-1-1954. The claim was repudiated by the insures only on 10-10-1947 after the expiry of 2 years. the insured had died in November 1946. On account of the policy having been repudiated more than two year after it commencement the Supreme Court invoked Section 45 and also discussed the condition necessary for complying with the said Section. It is not necessary thereforee that the insured should have been alive for two years after the policy was effect Section 45 would thereforee apply to the every case where repudiation is made more than 2 year from the date on which the policy is effected irrespective of whether insured died before the expiry of the said 2 year of not.
13. The above said decision was followed by a decision of a Division Bench of the Madras High Court in life Insurance Corpn. of India v. Janaki Ammal : AIR1968Mad324 . In that case the policy holder had taken the policy on 18-2-1955 within two year of the taking of the policy. The liability on the policy was repudiated by the life Insurance Corporation only on 10-8-1959 more than two years after the date of the policy it is was held that the case was governed by the principles indicated by the Supreme Court in the above case and that the burden lay on the insure to prove that the above said conditions were present.
14. In dealing with case arise under section 45 of the Act no martial assistance can be derived from the English case of even the case decided in India prior to Section 45 being placed on the stated book about the kind of must representation or suppression which vitiates and insurance policy. The learned subordinate Judge. while discussion a few decided case on the subject has not kept in mind the nature of the change introduced by Section 45 of the Act. Every insurance contract is no doubt a contract Uberrima find. But when the insure challenges the contract of insurance only after the expiry of two years of it being effected he cannot seek to any false statement or suppression concerning a material matter. In other words it is not every false statement or suppression that can so fact to enable the insure to avoid the policy when It is reudiated after the expiry of two year from the date of the insurance contract being of effected after the expiry of two years the three necessary conditions. as explained by the Supreme Court. Must be established.
15. We have no been persuaded that any statement concerning the literacy of the insured or observing the literacy of the insured or observing pardah was 'material' within the meaning of Section 45 of the Act. Nothing has been placed on record for us to hold that the statement to concerning the above two year aspect are material within the meaning of section 45 of the Act. The insured had signed her name in Hindi she was not makes women. She was at least able to sing her name which might by itself probably taken her at least slightly above the standard of absolute illiteracy but in there are several shades of semi-literacy. We have non been told that what material bearing this has no insurance policy. Even respecting pardah there are several variation a person completely converging herself or the Sari along covering her head wholly or one partially etc. There is no question here of any identity of the insured it is not stated that the insurance policy had not bee effected by Smt. Chawli Devi but by a different person . We have not been told how assuming she was observing pardah to any extent it was material. We have seen how it is not enough when the insure seeks to avoid the policy more than two years after it was effected to merely show that there has been some falls statement. however immaterial.
16. We are thereforee only left with the question regarding whether with insured was suffering from diabetes. On this question the finding of the learned subordinate Judge. with which we are in complete agreement is against the insurer. Shri K. R. Sardana a claims inspector of the Bharat Insurance company between 1943 and 1957 claimed to have counted and investigation concerning the death of Smt Chawli Devi he contract Dr. R. V. Singh who has been examined as D. W. 2 and obtained a certificate from him on 8-4-1957 Dr. Singh had stated in his certificate (Ex D-4 printed page 112) that Smt Chawli Devi had been going to have for treatment since 1952. She went o him in 1953 for fever or cough once or twice a year but in 1954 she went to him complaining of weakness and frequency of urination , Her urine was examined by some she had pathologist (not disclosed). Since she had sugar inhere urine he advised insulin 40 units per day. He went to the extent of stating that 2-3% sugar in her urine was noticed; she never took treatment for more than 3/4 days when she become all right. He did not attend on her during her last illness.
17. Dr. Sing issued another certificate on 18-4-1957 (Ex. D-3. printed page (111) as follows:--
'She attended my dispensary for fever and cough in 1952 and '53 on 16-8-1952 and 17-8-1952. Again. on 12-5-1952 and 14-5-1953 for the same trouble. Then she attended on 6-1-1955 for weakness and fever. She was given medicine on 7-1-1955, 9-1-1955. 13-1-1955. 15-1-1955, 16-1-1955. when she was cured. This time she was given injections. mix. & Tab. on 31-8-1955 and was put on tablets and mixture. She was advised Urine Test when it was verified for sugar and she took Insulin 40 units (as far as I remember). On 6-9-1955 and 7-9-1955 when she discontinued and started taking Insulin etc. at home by some other men. She was advised to continue insulin for pretty long time.' D. W. 3 had stated in cross-examination as follows. 'I saw the record of Dr. Singh on or about 18th April, when he gave Ext. D-3 to me. In the record with Dr. Singh, the name of the plaintiff's mother was there. The nature of medicine given was also stated therein-the giving of mixture. tablets. or insulin injection. As far as I remember it was recorded therein. 'Daulat Ram's mother Jogiwara Delhi'. I verified earlier and found that the contents of the reports Exs. D-3 and D-4 were correct'.
But then he was flatly contradicted on this aspect by D.W. 2 who stated as follows.
'The entry under date 12-5-1953 reads 'Chawli Devi -- Rs.1/8/-'. The entry under date 14-5-1953 reads 'Chawli Devi. As/15-. The entry under date 7-1-1955 reads 'Chawli Devi -- Rs.1/8/ _- Same is entry under date 9-1-1955. The entry under date 13-1-1955 reads 'Chawli Devi 1/11/-'. Same is the entry under date 15-1-1955 and 16-1-1956. The entry under date 31-8-1955 are recorded on the page pasted at the back of the note book reg. the nature of ailments for which. I treated Mst. Chawli were being recorded by me in Exs. D-3 and D-4 on the basis of my memory only.'
The entry dated 31-8-1955 in respect of Rs.5/8/ was seen to be on a page pasted at the back of the cover of the register. The learned Subordinate Judge observed that this itself made the entry very suspicious and doubtful. especially when D.W. 2 had himself admitted in cross-examination that the facts stared by him in the certificate (Ex.D-4) l were given by him from memory and has not got from any record. His memory in respect of other patients was tested in cross-examination; the learned Subordinate Judge has rightly observed that his memory had failed miserably in those cases. Even Exs. D-3 and D-4 were got typed by a typist. It was not even explained how D.W. 2 came in possession of those typed copies; he had possession of those typed copies; he had no typist with him. the learned Subordinate Judge has commented upon the evidence pertaining to the preparation and procuring of the certificates as being suspicious. We are left with a feeling that these (even like the statement Ex. D-1/A got ready by P.W. 6) were got ready by D.W. 3 himself. It is surprising in the extreme how D.W. 2 could bring himself to mention, moir than two years after he claims to have treated Smt. Chawli Devi. the actual drug he injected into her without even having any record before him showing what drug was administered. He was able to say that he gave an injection only from the entry concerning the injection given to her. Ex. D-4 reads as if the urine was tested in 1954; this was mentioned as September. 1955 in the later certificate (Ex. D-3). It is common knowledge that any diabetic would have to take insulin for a prolonged period of time and that two or three injections would hardly be enough. There is no report of any pathologist nor does any entry pertaining to Smt. Chawli Devi refer to the content of the pathologist's report showing that her urine was examined and that it contained sugar. General practitioners of medicine have facilities for at least testing urine themselves with a view to administering Insulin injections and vary the dosage according to the quantity of sugar present in the sample of urine. Judicial notice may be taken of the fact that general practitioners do not have to depend on a pathologist every time they give Insulin Injections which have to be taken regularly if diabetes is to be kept under control by administering Insulin.
18. D.W. 2 did not say that he ever told Smt. Chawli Devi about there being sugar in the sample of her urine. He only stated that he had prescribed Insulin injections; he had not stated that he explained to her the kind of drug he was giving her or that she was suffering from diabetes. It is not his version that he advised or got done any Glucose tolerance test in order to come to a reliable diagnosis. It is common knowledge that mere occasional presence of sugar in the urine or the absence of it could not by itself indicate that either the patient was or was not suffering from diabetes. for this might even depend upon the renal threshold of the patient. It is however. needless to be detained further by this aspect. because we are thoroughly un-impressed by the evidence of D.Ws. 2 and 3 we are in agreement with the learned Subordinate Judge that their evidence cannot be safely accepted. Nor is it necessary to discuss at any length the evidence of P.W. 4 (Dr. K.D. Khanna) who had been seeing Smt. Chawli Devi for about 6 or 7 years. She was having normal health prior to her having an attack of paralysis. sometime prior to her death. The prescriptions given have also been filed; in one of them (Ex.D-1/2) she had been prescribed (intravenous) Glucose injections which were not likely if she had diabetes. particularly without measures being taken at the same time to control the sugar in her blood. P.W. 4 was positive that she did nod suffer from diabetes. She had an accident shortly prior to her death.
19. It seems a pity that this claim has been resisted in this manner by the insurer. While it is the duty of the insurer to expose the falsity in statements made by the insured car has yet to be taken to refrain from contesting a claim on untenable grounds. On the materials placed on record and what materials placed on record and what D.W. 2 had before him there is nothing to suggest that the insured in this case was suffering from diabetes. It was admitted by D.W. 2 that he is now on the panel of doctors of the Life Insurance Corporation of India and that he was not on the said panel when he had issued the said certificate. The learned Subordinate Judge has commented on this fact was led to disbelieve his evidence on the ground that he had come forward with such evidence to defeat the claim. based on the insurance policy. in order to get himself included in the panel of doctors in the L.I.C. This may be a harsh view to take but by the kind of evidence D.W. gave. even without being supported by his own record and as a matter of mere recollection that the insured was suffering from diabetes. he easily lent himself to such a charge being made against him. We are. however. concerned only with whether it has been proved by the insurer that the insured was suffering from diabetes. that she knew that she was suffering from diabetes and had still suppressed the said information falsely from the Company. The burden to prove all these facts lay very heavily on the insurers when the policy was not challenged within two years after it had been effected; the said burden has not been discharged. It is needless to point out that the public interest. which is served by inducing more and more persons coming forward to insure their lives, should not be defeated by the feeling that is likely to be generated by this kind of a defense that claims based on insurance policies will be sought to be defeated by procuring even unreliable testimony.
20. The judgment and decree of the learned Subordinate Judge is set aside and the plaintiff/appellant's suit is decreed with costs both in the trial Court and in this Court. as prayed for. This appeal is accepted accordingly.
21. Appeal allowed.