1. The suit, out of which the present appeal arises, was filed by the respondent for recovery of a sum of Rs. 12,500, due on an insurance policy taken by her husband Sundaresa Iyer on 18-2-1954. Sundaresa Iyer died on 18-8-1955. The appellant Corporation, which became a successor-in-interest of the insurance company with which the respondent's husband had insured his life, finally repudiated its liability on 10-8-1959. The suit claim was in the alternative for a sum of Rs. 1865-10-0 begin the premium paid by the respondent's husband. The appellant Corporation contended that the answers given by the insured to various question sin the proposal and the personal statement were false and false to his knowledge and that the deceased having died within two years of the policy taking effect it was open to the insurer to repudiate the policy under Sec. 45 of the Insurance Act of 1938 irrespectively of the fact whether the answers contained in the proposals and the personal statement are material or not an that in any case, the deliberate suppression by the deceased about his illness, a material fact, would invalidate the policy. The trial Court held that the answers given by the deceased did not relate to material facts and that therefore, it was not open to the appellant Corporation to avoid the policy. In this Court also, it was argued on behalf of the appellant that as the insured died within a period of two years of the policy taking effect, it was open to the insurer to repudiate the policy under Sec. 45 of the Insurance Act. This contention is clearly unsustainable. Sec. 45 of the Insurance Act reads as follows:
'No policy of 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 on 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 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 of 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 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......'
It would be seen that what is relevant under the section is that if a period of two years has expired from the date on which the policy of life insurance was effected, that policy cannot be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer or referee, or a friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false. A policy can be called in question within a period of 2 years from the date on which it was effected on the ground that any statement leading to the issue of the policy was inaccurate or false, but if the policy is questioned after a period of two years, the insurer can repudiate that policy only if he shows that such a statement was on a material, matter or the insured suppressed fact which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder know at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. In this case two years had expired from the date on which the policy was effected, by the time the appellant Corporation repudiated the claim. We are clearly of opinion that it is the latter part of Sec. 45 of the Insurance Act that applies to the present case in view of the clear terms of the section. The period of two years for the purpose of the section has to be calculated form the date on which the policy was originally effected and as a period of two years had clearly expired when the appellant Corporation repudiated the claim, it was not open to it to take advantage of the provisions of Sec. 45 of the Act. We are left without the necessity of discussing this point further or referring to any authorities as the matter has been clearly decided by the Supreme Court in its decision in Mithoolal v. Life Insurance Corporation of India, : AIR1962SC814 .
(2) The only question, therefore, that remains for consideration in this case is, whether the policy holder had made an inaccurate or false statement on a material matter or suppressed facts which it was material to disclose and 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 suppressed facts which it was material to disclose. The three conditions for the application of the second part of Sec. 45 are:--
'1. the statement must be on a material matter o must suppress facts which it was material to disclose;
2. the suppression must be fraudulently made by the policy-holder; and
3. the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose'.
(3) The question therefore is, whether these three conditions were fulfilled, in the present case. On behalf of the appellant, reliance was placed on two statements. One is the answer to question 12 in Ex. B-2. The questions and answers are as follows:
What has been your usual state of health? Good.When last were you under medical treatment? No.For what ailment and how long? No.
The other was in reply to question No. 15 in Ex. B-1 and it is as follows:--
'15. Have you within the past five years consulted any medical man for any ailment, not necessarily confining you to your house? If so, give details and state names and addresses of medical men consulted.--No'.
It was not suggested that he was suffering from any disease, which would have the effect of shortening his life or from any ailment which could have an effect on the length of his life. The argument in this case simply was that there was evidence which showed that the deceased was under treatment by a doctor in 1952-53, 1953-54 and 1954-55 and this fact is enough to show that the deceased had suppressed material facts and therefore, the insurance company was relieved of its obligation to pay the insurance money. There was no evidence that the deceased was suffering from any ailment. The only evidence was that of D.W. 1, Dr. R. Venkataraman. He produced an account book Ex. B-16 p. 343, relating to the period 1952-53, Ex. B-17 (an account book) page 300 relating to the period 1953-54 and Ex. B-18 (an account book) p. 329 for 1954-55. He gave evidence that the deceased had taken medicine during September-October 1954 only, that he was complaining of general debility and Dyspepsia and that he had given him some liver extract injections which he obtained from Madras after consulting some senior consultants. His further evidence also was that the deceased was usually of neurasthenic type, that his health condition was almost normal during the first two years of his contacting him, that he had blood pressure by about ten points above normal, that occasionally he used to take medicines from the witness, that he used to make much fuss about even small ailments and that he would be quite upset over such small ailments.
It would be seen that the doctor does not give any evidence about any particular ailment, which the deceased was suffering from. Indeed it would appear that the deceased was suffering from slight hypochondria. The fact that a Hypochondriac used to take medicines or injections now and then, cannot be held to show that he was suffering from any particular ailment. After all placebo has a definite place in medical treatment It is not also as though the deceased was continuously under treatment throughout from 1952 to 1955. Neither Exs. B-16, B-17 or B-18 nor the evidence of D.W. 1 show anything like a continuous treatment nor is it clear that the deceased was suffering from any particular ailment. It is, therefore, impossible in the circumstances of this case, to hold that the deceased was guilty of suppression of material fact. The fact that the deceased was taking medicine or injection is by itself not enough. It would be necessary further to show that he was taking medicines or injections for some particular ailment or ailment which would have a bearing on the length of the policy-holder's life. In every one of the decided cases where it has been held that the policy-holder was guilty of suppression of a material fact, the suppression related to some definite illness which had a bearing on the length of the life of the insured.
In the case in : AIR1962SC814 , already referred to, the deceased was suffering from a serious type of anemia. In New India Assurance Co. Ltd. v. Sulochana, AIR 1962 Assam 65, the fact that the insured was accustomed to heavy drinking was considered to be a material fact requiring disclosure as it would guide the insurer in determining whether to take the risk, and if so, at what premium and on what condition. In that case also the insurer had contended in the written statement that the deceased was suffering from nervous disorders such as Hepatitis and Hallucinosis and nervous weakness but that was not pressed before the Court.
In the present case it was contended in the written statement that the deceased was differing from Hypertension for several years prior to the proposed and that the deceased had been in active treatment for the same at Kumbakonam and at Madras and that the deceased had also been suffering from venereal disease about ten years prior to his death and had been treated for the same and that he had also several injections for anemia and liver complaint. No evidence was let in to prove any of these statements alleged in the written statement. Indeed the only contention put forward was that the fact that the deceased had been taking medicines and injections was itself sufficient to show that the deceased was suffering from some disease or other and not having mentioned this fact in Exs. B-1 and B-2, he was guilty of suppression of a material fact. No attempt was made to prove that the deceased was suffering from any particular ailment. In the case reported in Kalyanai Achi v. Life Insurance Corporation of India 79 MLW 662, which was decided by one of us, it was held that there must be satisfactory proof that the assured was suffering from ailments, which means there must be proof of proper diagnosis and there must also be further proof that the doctor had communicated to the assured that he was suffering from particular disease or the assured himself knew that he was suffering from those ailments and that it is only if such knowledge is made out that question of a failure to disclose at all would arise. In this case as already mentioned there is no proof that the assured was suffering from any ailment or that there was proper diagnosis or that the doctor had communicated to the assured that he was suffering from any particular disease or that the assured himself knew that he was suffering from those ailments. In A. I. C. Insurance Co. Ltd. v. S. P. Maheshwari, : AIR1960Mad484 , misrepresentation about drinking habit and non-disclosure of veneral disease was held to enable the insurance company to repudiate liability. In Lakshmi Insurance Co. v. Bibi Padma Wati, , it was held that whatever the terms 'ailment' or 'sickness' may mean in the medical sense, or in accordance with their dictionary meaning, they cannot embrace merely transitory and temporary illness in its accepted sense, as they are not material to the risk insured, that they refer to disorders of substantially serious nature affecting general health and should be restricted to such illness which impair the constitution of the insured or interrupt the performance of vital functions. In that case Tuberculosis, was held to be a serious disease which materially affects considerations relating to insurability of the person affected.
(4) Thus, there is ample authority for the proposition that, an insurer could avoid a contract of insurance after the expiry of period of two years mentioned in the first part of S. 45 of the Insurance Act only on the ground of suppression of illness, which affects the expectation of life of the insured and not mere temporary or trivial illness and that unless the disease he was suffering from is clearly established and it is also established that disease would have a material bearing on the insurability of the policy holder, the policy cannot be invalidated. We are, therefore, clear that in the circumstances of this case, the mere fact that the deceased had been taking medicines and injections without proof of anything more would not be sufficient to invalidate the policy.
(5) There are many persons with varying degrees of hypochondria, who imagine they are suffering from all sorts of disease and go on taking medicines whether they are necessary or not. They cannot be said to be suffering from any ailment or to be receiving any treatment for any ailment and in such cases, the policy cannot be avoided merely by referring to the fact that they had been taking some medicines. In the present case, no attempt at all has been made to relate the medicines and injections which the deceased was taking to any particular ailment that he was suffering from. We must, therefore, hold that the appellant had failed to substantiate its contention that the deceased was guilty of suppression of a material fact which it was material to disclose and that it was fraudulently made by the policy holder and that the policyholder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. The result is we hold that the conclusion arrived at by the trial Court is correct and this appeal is dismissed with costs of the respondents. It is hardly necessary to add that if we had held otherwise, the respondent would not have been entitled to a decree for the premium amount that had been paid by the policy holder. It has been clearly laid down by the Supreme Court in : AIR1962SC814 , that in these circumstances the insured's legal representative are not entitled to be repaid the premium amounts.
6. Appeal dismissed.