1. One Ramanathan Chettiar insured his life for Rs. 10,000 with the defendant company. In order to secure this policy it was necessary for him to answer certain questions put by the company with regard to his health and other matters. In particular, he was asked whether in the past he had suffered from venereal diseases, high blood pressure, or any respiratory disease ; and to all these questions he answered that he had not. He was examined by two doctors, who found nothing amiss with him, except that more than half the surface of his body was covered with leucoderma. He was therefore classified as a first class life and a policy granted on the usual terms on the 19th May, 1938. He died on the 4th June, 1941. According to the terms of the policy he was entitled to receive the full policy amount unless he had wilfully made any misrepresentation or fraud at the time of applying for the policy which would render the policy void. The question that arose for decision in this suit by the two sons and widow of the deceased was whether he did in fact make any such willful misrepresentations. The learned Subordinate, Judge found that he had and that on account of the misrepresentations the company had issued a policy on the most favourable terms, which they would not have done had a proper disclosure been made of the previous illnesses.
2. When the plaintiffs put in a claim for the payment of the money they were asked by the company to send them a report by the doctor who had attended the 'deceased during his last illness. In accordance with these instructions, the plaintiffs in due course forwarded to the defendant company a certificate Ex. D-7-c in which the doctor stated that the deceased was of intemperate habits and that during the course of his treatment he had ascertained that the deceased had suffered from syphilis and high blood pressure. On receipt of this letter, Dr. Natarajan, the doctor in question, was asked by the company in Ex. D-8-a to answer certain questions. His answers are to be found in Ex. P-2. It is chiefly on these documents that the defendant company based their case. The only other material evidence in the case is the deposition of a son of the deceased and the evidence on commission of the manager of the defendant company. The latter was naturally unable to say anything about the deceased's condition; and the evidence of P.W. I does not contain anything upon which the Court could base a decision. The learned advocate for the company has argued that the evidence of P. W. I taken together with his statement, Ex. D-8-b, to the company, are sufficient to show that his father was suffering from diseases which would have materially affected the judgment of the company had he disclosed them. In the deposition and statement all that he however admitted was that his father had had head-aches now and then during the past ten years, that he had been examined by many doctors in Mahipalanpatti; and that his mother had told him that his father had some rashes on his body ten years before. The examination by doctors of Mahipalanpatti was presumably after he had made a declaration prior to the grant of the policy ; while occasional head-aches and a single crop of rashes are ordinarily matters of so little significance that the fnsured might have attached no significance to them, and not considered them as illnesses. It would not be possible on the evidence and statement of P.W. I to say that the insured made any wilful mis-statement which could render the policy void.
3. The documents relied on by the defendant company to prove their case of misrepresentation are Exs. D-7-c and P-2. Similar documents were filed in connection with a policy granted by the Oriental Life Assurance Company. The plaintiffs filed these, because they were to some extent inconsistent with the corresponding documents sent to the defendant company ; but in general they merely duplicate the allegations made in the statements in Exs. D-7-c and P-2. The defendant company has been unable to show how any of these documents are admissible in evidence. The facts spoken to in them, which are relevant issues in the suit can be proved only in certain recognised ways, the chief of which is by giving oral evidence of them in Court. Dr. Natarajan could and should have been examined by the defendant company and statements made by him in correspondence with the company are certainly no evidence of the correctness of the allegations made therein. It is argued on behalf of the defendant company that Ex. D-7-a is admissible by virtue of Section 20 of the Indian Evidence Act. Section 20 of the Act deals-with statements made by a referee at the instance of party ; and says that such statements are to be regarded as admissions by the party himself. The scope of this provision of law is set out very clearly in a case relied on by the defendant company, reported in Williams Spinster v. Innes and Ors. 170 E.R 987.
If a man refers another upon any particular business to a third person, he is bound by what this third person says or does concerning it, as much as if that had been said or done by himself.
4. It is argued that Dr. Natarajan was a referee in that sense ; but we cannot agree; The defendant company wrote to the first plaintiff and by implication told him that he could not receive the amount for which his father's life had been insured unless he sent a certificate from the doctor who was in attendance on his father at the time of his death. The first plaintiff was therefore bound, if he wished to obtain the money, to get the required certificate from the doctor. He at no time represented to the defendant company that he was prepared to accept any statement that the doctor made with regard to his father's health.
5. It is further argued that both these documents were properly admitted in evidence, because the plaintiffs permitted them to be marked by consent. Permittings document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved, i.e., the plaintiffs were prepared to admit that Ex. D-7-c was what it purported to be : a certificate by Dr. Natarajan sent to the defendant company in response to the letter of the company to the plaintiff asking for such a certificate, and that Ex. P-2 was the reply of Dr. Natarajan to the questionnaire sent by the company to the doctor. Agreeing to the document being marked by consent certainly did not mean that the plaintiff accepted the correctness of every statement made by Dr. Natarajan in Exs. P-2 and D-7-c. If the plaintiff had expressly or impliedly said at any stage of the suit that they would accept the statements made by Dr. Natarajan in Exs. P-2 and D-7-c as evidence of the correctness of the allegations contained therein, the case of the defendant company would have been very much stronger, though no decision that we have seen has gone so far as to say that even with the consent of the other side such documents as exs. P-2 and D-7-c could be accepted as evidence of the correctness of the statements made therein. The nearest approach to that is the decision reported in Jainab Bibi Saheba v. Hyderally Sahib : (1920)38MLJ532 in which the learned Judges had to consider whether a deposition made in a prior proceeding could be used as evidence by consent of parties in a later proceeding ; and they held that although Section 33 did not expressly permit this to be done, yet they considered that in a civil action the party could waive his right to have such evidence excluded in the absence of strict compliance with all the terms of section33. All the learned Judges did not, however, base their decisions on the same grounds. There are certain observations in the judgment of Krishnan, J. and perhaps also in the judgment of Courts-Trotter, J.-which suggest that in a civil action a statement by a party on any relevant matter could be admitted with the consent of the other side. That question, however, does not arise in this case for we are satisfied that the plaintiffs did not agree to accept the statements as evidence of the correctness of the matters contained therein. All that can be said is that they did not object during the hearing of the suit to their being admitted in evidence.
6. Various cases have been cited in an attempt to satisfy us that when a party does not object to certain material being admitted as evidence it is not open to him to raise such an objection later. In Bhagat Ram v. Khetu Ram A.I.R. 1929 P.C. 110 a question was raised as to the admissibility of certain documents their Lordships said
It is said to have been admissible in evidence by the law of the Federated Malay States. Their Lordships do not think it necessary to consider whether that was so or not. No objection seems to have been taken to its admissibility at the trial. The document, if accurate, records a most remark able and extraordinary transaction in the use of the principal's money for part-performance of the agent's loan, and their Lordships think that even if admissible it is very far from being a satisfactory document, and even if it were admissible and satisfactory it would not go a very long way towards proving the appellant's case.
7. It is certainly not clear from this passage that their Lordships thought that the absence of any objection to the admissibility at the time of the trial precluded any objection being raised later. Other cases have been cited relating to the mode of proof, in which it was held that if an objection is not raised during the course of the trial it can not be raised at the subsequent proceeding. For example, if secondary evidence is tendered and accepted and not objected to, it is too late for the other side to object in appeal that primary evidence was available and secondary evidence was not therefore admissible. In this case, the question relates to the admissibility of the allegations made by Dr. Natarajan in his certificates and statements and not to the mode of proof of the statements. It is not denied that the matters dealt with by Dr. Natarajan were relevant and that proof of these statements having been made had been waived by the plaintiffs. We therefore find that there is no evidence in this case upon which the claim of the plaintiffs can be resisted.
8. Having carefully considered whether the defendant should be given a further opportunity of examining the doctor, we feel that it was incumbent upon the defendant company to have examined Dr. Natarajan in any case. He was the only witness who could speak to circumstances which supported the case of the defendant company ; and it was therefore essential, if the defendant was to succeed, that he should examine the doctor and afford an opportunity to the other side to cross-examine him ; so that the Court might judge the value to be attached to Dr. Natarajan's statement. They ought not to have contended themselves with filing the statements made in the questionnaire, which would be almost worthless even if admissible. No petition has been filed by the defendant company asking to be permitted to adduce further evidence. We therefore feel that the defendant company ought not to be given any further opportunity of remedying a defect which was obvious at the outset.
9. The appeal is allowed and the suit decreed as prayed for, with interest on the principal sum of Rs. 10,400 at six per cent, per annum from the date of suit. The appellant will be given his costs in this Court; but since the defendant company did not raise any objection to the admissibility of the documents, Ex. P-2 and D-7-c, either during the trial or during the argument in the lower Court, both parties will bear their own costs in that Court.