1. This is an appeal against a judgment of the Additional Subordinate Judge of Coimbatore dismissing with costs a suit filed by Kullammal, widow of one Subbiah Chettiar, against the Oriental Life Assurance Company Ltd. for the recovery of Rs. 52,750 on an endowment policy for Rs. 50,000 with profits for 20 years taken out by her husband on 27-6-1945. Subbiah Chettiar assigned the policy to his wife. He paid the first premium of Rs. 3540-10-0 on 27-6-1945. He also paid the second year's premium in July 1946 and then died on 27-7-1946 in a Nursing Home after an accident necessitating an operation to his thigh. The extract from the Death Register shows that death was due to haemoptysis cellubitis of the thigh. The evidence of his son Sanjeevi Chettiar (P. W. 1) who was 20 years old at the time of his father's death that the injury to his thigh became septic, and that he died after an operation in a Nursing Home is not disputed. Pending appeal, the widow Kullammal died and her sons have been brought on record as her legal representatives.
2. The Insurance Company repudiated liability on the ground that Subbiah Chettiar gave false and inaccurate answers to some questions in the proposal for insurance, Ex. B. 1, and in the personal statements Exs. B. 2 and B. 3 made before the company doctors to the effect that he had no previous ailment, sickness or disease and had never consulted a medical practitioner. This repudiation is contained in a letter, Ex. A. 5, dated 7-7-1945 from the Insurance Company stating that they had indisputable proof to show that the deceased suffered from gastric trouble (Gastroenteritis) about a couple of months before the Insurance proposal, and had also suffered from the bronchitis just about the time of the proposal and before the acceptance letter was issued on 16-7-1945. The nature of the proof held by the Insurance Company was nowhere indicated. After the issue of a lawyer's notice, Ex. A. 3, this suit was filed in September 1947.
The written statement proceeded in substance on the lines of the letter of repudiation, Ex. A. 5, and contended that Subbiah Chettiar had given untrue answers to the following questions, all answered in the negative:
1. Question No. 13 in the proposal for Insurance: 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
2. In his personal statements Exs. B. 2 and B. 3 before the doctors
Q. 5(a) : Have you suffered from any of the following ailments? If so when and for how long?
(1) Cough, shortness of breath, palpitation, asthma, pneumonia. Pleurisy, consumption or any other disease of the chest?
Q. 5(c) : Any other illness, accident or injury whether considered by you to be important or not?
Q. 12(b) (1) : When last were you under medical treatment?
(2) For what ailment and how long?
According to the written statement, the deceased wrote 'No' in answer to all these questions, and it was on this footing that the legal position was adopted for the company that in the declarations made by the assured in the proposal for assurance, Ex. B. 1, all the answers given by him and to be given by him at the medical examinations shall be the basis of the contract between him and the company and that
'if any untrue averments be therein contained, all moneys which shall have been paid up on account of the said assurance shall be forfeited and the assurance itself should be absolutely null and void.'
3. On the basis, therefore, that Subbiah Chettiar was irrevocably bound by every answer in Exs. B. 1, B. 2 and B. 3, the Insurance company merely examined one witness, a Dr. Panik-kar, who deposed that he treated Subbiah Chettiar at Tiruppur from 7-4-1945 to 17-4-1945 for gastric trouble, which seems to be on his own showing mere diarrhea, and from 5-6-1945 to 15-6-1945 for bronchitis which also on his own showing seems to be cough and slight fever. The written statement made no 'reference to this doctor, whose identity was not revealed until, it would appear, a sub-peona was issued for his examination as a witness. In the witness box, he produced a prescription book Ex. B.9, which we shall presently show is full of very unsatisfactory features.
4. Before discussing the evidence of this doctor and his prescription book, we must express our astonishment at the failure of the Insurance company to examine any witness in connection with Exs. B.1, B.2 and B.3. The Insurance Agent, who canvassed this policy, whose name appears on Ex. B.1 was a Mrs. Padmavathi. The two doctors before whom the personal statements Exs. B.2 and B.3 were made were Dr. C. R. Venkateswaran, M. B. B. S. and Dr. K. S. Aiyar, M. B. B. S., F. R. C. S. Exs. B.1, B.2 and B.3 were all drawn up in the Insurance Company's office at Coimbatore on 27-6-1945. Subbiah Chettiar was admittedly ignorant of English in which he could only sign his name. All the answers to the questions in Exs. B.1, B.2 and B.3 were typed and on each of these documents there appears in ordinary writing by obviously the same person this curious endorsement: 'The answers of this form are typed as per my dictation and I agree that they are correct.' Beneath this there is Subbiah Chettiar's signature in English.
No evidence has been adduced as to who put these questions to Subbiah Chettiar, and most important of all who interpreted them to him. The medical confidential reports, Exs. A.13 and A.13(a) given by the two doctors certified Subbiah Chettiar to be a good or first class life. The Insurance company strangely opposed reception of even these two important documents in evidence on the ground that they were irrelevant, despite Section 51 of the Insurance Act, which confers on an assured person a statutory right to contents of these medical reports on application. The objection was quite rightly overruled by the trial court and these documents were made available to the plaintiff at the trial. The Insurance company also, this time successfully, opposed admission in evidence of the correspondence between the plaintiff and the Insurance company up to their final letter of repudiation, Ex. A.5. We are wholly unable to follow the objection to the admission of this correspondence and to appreciate the ground on which the trial Judge ruled it out.
An investigation into the alleged falsity of the answers to these questions is said to have been made by Mr. Sundaram, the then Secretary of the Coimbatore branch of the Insurance company. He has also not been examined as a witness nor have we any material to show when he examined Dr. Panikkar, when he saw his prescription book Ex. B.9, if he saw it at all, or the nature of the indisputable proof which, according to the company's letter Ex. A. 5, was placed before the Directors before they took upon themselves the responsibility of repudiating in toto liability under this Insurance and enforcing forfeiture.
5. The three documents Exs. B.1, B.2 and B.3 with the declaration In Ex. B.1 do indeed make all the answers given by the assured the basis of the contract, which the Insurance company are entitled to repudiate not merely on the ground of a false statement or non-disclosure of any material fact or on the ground of fraud, but also on the ground of a false and inaccurate answer made by the assured to his knowledge and belief. Section 45 of the Insurance Act prescribes a statutory period of two years within which however it is open to the insurance company to repudiate liability on the contract on the ground of false and inaccurate information furnished by the assured in these statements, though after this period the Insurance company is entitled to repudiate only on the ground that the disclosure or non-disclosure of a material fact has been fraudulently made. A contract of life Insurance has been called one 'uberrimae fidei' in which the insurer is entitled to be put in possession of all the material information possessed by the insured.
In -- 'Joel v. Law Union & Crown Insurance Co.', (1908) 2 KB 863 (A), Fletcher Moulton L. J. in explaining this doctrine derived from Lord Blackburn's dictum in -- 'Brownlie v. Campbell', (1880) 5 AC 925 (B), made this observation :
'There is, therefore, something more than an obligation to treat the insurer honestly and frankly, and freely to tell him what the applicant thinks it is material he should know .... The disclosure must be of all you ought to have realised to be material, not of that only which you did in fact realise to be so.'
The cases considered there, like other leading English cases on the subject, were tried by juries, and it was of great importance that there should be a clear explanation to them as to the law applicable to the facts on which they had to find. In that particular case, a lady effected an insurance upon her own life and signed the proposal form and declaration answering in the negative a question whether she had ever suffered from mental derangement. She also in answer to a question as to the names of any medical man consulted by her, omitted the name of a doctor, whom she had consulted for a nervous breakdown following influenza. The lady subsequently committed suicide. The Lord Chief Justice, who tried the case first, gave judgment for the insurance company on findings of the jury that the lady had concealed the fact that she suffered from mental derangement, and also the fact that she had consulted this Doctor for nervous depression.
The Court of Appeal directed a new trial on condition that the charge of fraud was in no way to be reopened, observing, inter alia, that Dr. Bernard Scott, who put her the questions, the answers to which were entered in the form and who certified that the assured's life should be insured as a first class one ought to have been examined. The importance of chat decision as in fact in all English decisions on the point of Insurance company liability is that it really emphasizes the necessity of determining liability on the facts of each case and not on a mere 'yes' or 'no' recorded in these forms signed by an assured person and written by some one else.
6. The case before us is one of a Tamil gentleman, who did not know any English, being only able admittedly to sign his name in this language. In this respect, this case is unlike most of the English cases placed before us where the assured appended his signature to a declaration and to these forms, after himself either answering the questions in his own hand-writing or these answers being written by an Insurance canvasser to his dictation. In cases where the assured knows the language in which the proposal forms and the personal statements are made, he must be presumed by affixing his signature to these solemn statements to have read the questions and understood the implications of the answers he was making.
In this case, we have no evidence whatsoever from any person who put a single one of these questions to this assured how they were interpreted to him or who typed the answers. With not a single one of these witnesses examined, the defence of the Insurance company exposes itself in the first instance to the criticism that it has failed to furnish strict legal proof that the assured in fact gave negative answers to these four questions. The learned Advocate for the Insurance company appears to have been quite oblivious of the onus resting on them to prove that the assured in fact gave false or inaccurate answers to the questions in Exs. B. 1, B. 2 and B. 3 by their failure to examine even one single witness, who was present at the time these documents came into existence in their office.
7. In this connection, it would be very appropriate to reproduce the following dictum by Fletcher Moulton L. J. in -- '(1903) 2 KB 863 (A)':
'I fully agree with the words used by Lord St. Leonards in his opinion in the case of -- 'Ander-son v. Fitzgerald', (1853) 4 HLC 484 (C) to the effect that in this way provisions are introduced into policies of life assurance which 'unless they are fully explained to the parties will lead a vast number of persons to suppose that they have made a provision for their families by an insurance on their lives, and by payment of perhaps a very considerable proportion of their income, when in point of fact, from the very commencement, the policy was not worth the paper upon which it was written.'
That was a case of an insurance against death from bodily injury caused by violent, accidental, external and visible means. The assured, as a result of a fall from a horse while out hunting, was wetted to the skin and subsequently developed pneumonia of which he died, The Court of Appeal affirmed the trial judgment that death was directly caused by an accident within the meaning of the policy. This is a further illustration of the need to interpret a contract of insurance, with each answer to questions put to the assured being the basis of the contract, from a broad common-sense standpoint and in relation to the human background of the case.
8. We may now consider the four questions alleged to have been answered by the assured in the negative. So far as question No. 13 in Ex. B. 1 is concerned, as it appears to us, it all depends on what the assured understood by the word 'ailment' and how it was interpreted to him. We would not ordinarily expect every case of ordinary cough, cold, head-ache, fever or diarrhoea to which even ordinary healthy persons, certified to be first class lives by doctors, are periodically liable to be detailed at length in answer to this question. It all depends on how this question was interpreted to the assured in the company's office. It may be that he may have referred to fever or diarrhoea which he recently had and this was not considered relevant to the question.
Coming then to question No. 5 (a) in Exs. B. 2 and B. 3, neither Mr. Srinivasagopalachari for the appellant nor Mr. Rajah Aiyar for the Insurance Company, though Tamil is their mother tongue, were able to give us ready Tamil equivalents for shortness of breath, palpitation, pneumonia and pleurisy. The evidence of Dr. Panikkar is that he treated the assured for cough, fever and bronchitis. The question obviously, as it appears to us, does not contemplate the disclosure of any cough however trivial unless it is in the category of 'a disease of the chest'. The question in relation to cough would read 'cough ......or any other disease of the chest'. The answers to questions 5 (c) and 12 (b) (1) would also depend upon the nature of the illness or ailment which the assured understood he was required to disclose.
9-i3. We may in this very uncertain background, without any assistance forthcoming from the Insurance company as regards the manner & the agency through whom Exs. B. 1, B. 2 & B. 3 were recorded, consider the evidence of Dr. Panikkar, the sole basis of the Insurance Company's repudiation of liability. (His Lordship after examining the doctor's evidence stated):
The more we consider Dr. Panikkar's evidence about this case, the more dissatisfied we feel about his veracity in the witness box. The Insurance company depends entirely on his evidence to prove that Subbiah Chettiar gave false answers to these four questions. Even assuming that Subbiah Chettiar knew English and was in a position to understand the meaning of all these questions, which he answered in the negative, we have no hesitation in finding that on the evidence of Dr. Panikkar none of his negative answers have been shown by satisfactory evidence to be false.
14. In view of the findings of fact to which we have arrived, it is not really necessary to consider elaborately the wealth of case law placed before us by learned Counsel on both sides. We may briefly refer to a few cases, which we consider relevant. The first is that of -- 'Bawden v. The London, Edinburgh and Glasgow Assurance Co.', (1892) 2 QB 534 (D). Bawden, who was blind in one eye, was insured against accidental injury on a proposal form which did not disclose this infirmity. It was held that the Insurance company agent was aware of this but did not communicate it to the company and that his knowledge was knowledge of the company. Bawden was an almost illiterate man unable to read and write, who could merely sign his name. An agent by name Quin filled up Bawden's declaration. Bawden recovered 500 in full as a result of an accident which deprived him totally of the use of both eyes.
This decision for reasons which appear to us with great respect, to be more apparent than real, has been regarded as being in conflict with --'Biggar v. Rock Life Assurance Co.', (1902) 1 KB 516 (E) and subsequent decisions based on it. in that case, a proposal form was filled up by the agent containing false particulars inserted without the knowledge of the applicant, who signed the proposal form. It was held that in view of the declaration that the answers should form the basis of the policy, it was the duty of the applicant to read the answers before signing them, and the agent of the company was acting not as the agent of the insurance company but of the applicant. In that case, Biggar was found by the Arbitrators to have signed the proposal form without reading it, and the answers in it were found to be false to the effect that he had not been previously insured and that he had never made a claim or received compensation. The Insurance company agent was in that case examined as a witness, and in addition other persons who were present at the time the proposal form was signed. The policy was held to be void.
15. In -- 'Newshoime Brothers v. Road Transport and General Insurance Co. Ltd.', (1929) 3 KB 356 (P), Lord Scrutton L. J. laid down that a man who has signed a proposal form with such a declaration without reading it, cannot escape the consequences of his negligence by saying that the person he asked to fill it up was an agent of the Insurance company. In that decision Biggar's case (E)' was followed in preference to 'Bawden's case (D)'. In the case of Bawden. however, the important point of differentiation was that he was almost an illiterate man who was not in a position to read and to appreciate the significance and implications of the document he was signing, and the agent appears to have withheld knowledge of Bawden's infirmity from the insurance company in order to put the policy through and get his commission. In -- 'Yorkshire Insurance Co. Ltd. v. Campbell', Ant 1916 PC 213 (G), a horse insurance proposal misdescribed the animal as a gelding by Soult St. Paul. The horse died on a voyage from Sydney to Freemantle. The trial Court held the pedigree to be material. The finding was reversed by the appeal Bench. The High Court of Australia restored the trial Court's decision. The Privy Council reversed the High Court's decision, Lord Simmer's Judgment taking the view that since the parties imported the statement into their contract presumably they thought it material. That was a case in which the animal was clearly misdescribed by the insured himself.
16. In -- 'Thomson v. Weems', (1884) 9 AC 671 (H), the insured Weems answered a question 'Are you temperate in your habits?' in the affirmative. He died eight months after the policy. The Lord Ordinary held that he did not make an untrue statement. The second division of the Court of Session, with two dissenting Judges, agreed. Death was due to chronic hepatitis, a disease of the liver caused by excessive drinking over a considerable period. The House of Lords held that the evidence clearly showed the answer was untrue-and the policy was found to be null and void. 'Dawsons Ltd. v. Bonnin', (1922) 2 AC 413 (I) was a case of a motor lorry insurance in which the company successfully repudiated liability when the lorry was destroyed by fire while garaged at-a farm on the outskirts of Glasgow. In the proposal form in answer to the question where the-vehicle would usually be garaged, the reply was in the firm's ordinary place of business in Glasgow. Inadvertence was pleaded as being responsible for the inaccurate answer. The House of Lords with Viscount Finlay and Lord Wrenbury dissenting held that the clam of the insured had to fail. The case, as their Lordships observed, gave them considerable difficulty. Viscount Hal-dane made the following observation:
'The result may be technical and harsh, but if the parties have so stipulated we have no alternative sitting as a Court of justice but to give effect to the words agreed upon. Hard cases must not be allowed to make bad law.'
17. In the domain of Indian Law, Mr. Rajah Aiyar has laid stress on -- 'East and West Life insurance Co. v. Venkiah' : AIR1944Mad559 , a decision of King and Shahabuddin JJ. This related to a policy taken out in 1935 which lapsed in June 1936. The policy was reinstated in September 1936 on the insured signing a declaration that since his original declaration, he had no sickness, ailment or injury and had not been attended by a doctor. The insured, who was a Telugu gentleman but knew no English died in May 1937. The agent however who interpreted the proposal form and declaration to him was examined as a witness. The Insurance Company proved that the insured was treated as an in-patient in a hospital for five weeks for arsenic dermatitis.
With respect, we are unable to agree with the opinion of the learned Bench that in that case the insured person must be held responsible for the untrue averments in the application form which he signed as the duty of making himself acquainted with the contents of what he was signing lay upon the insured person himself. We are unable to regard that as a general proposition of law binding on every insured person who merely puts his signature to forms in a language quite unknown to him when these forms are filled in by an agent of the Insurance company without proof that the document was properly interpreted and explained to him. With respect, we are however in agreement with the learned Judges who gave judgment for the Insurance company in that case in holding that treatment for arsenic dermatitis in hospital is not on the level of trivial complaints such as headaches, cough, fever and so on contemplated in -- 'Connecticut Mutual Life Insurance Co. of Hertford v. Moore', (1881) 6 AC 644 (K).
In -- 'Great Eastern Life Assurance Co. Ltd. v. Bai Hira', AIR 1931 Bom 146 (L), the Insurance company failed in its defence repudiating liability on the ground that the assured had not given a true reply to a question as to whether he suffered from fistula, piles, rupture, dysentry, sprue or any other afflection of the digestive organs. A doctor, who was dead, had given him several prescriptions on the basis of which the Insurance company contended that he had suffered from sangrahani or sprue for a considerable period. Two doctors were examined who expressed opinions which the Court found to be halting and indecisive. Barlee J. held that the evidence pointed to nothing more than this, that the insured suffered from one of several intestinal disorders of an allied nature.
18. Not a single case has been placed before us which gives any real assistance to the insurance company in their present repudiation of liability. Though a contract of insurance is in law regarded as based on a complete and truthful disclosure of all the facts by an insured on ques-tions put to him, the doctrine of 'fides uberrima' is certainly not intended to be one-way traffic but calls for a reciprocal obligation resting on the Insurance Company of placing before a Court all the evidence in its possession without reserve. In the present case, the Insurance company having obtained this contract from a man now dead, has sought to enforce it literally, taking it by itself to the exclusion of all other contemporaneous circumstances. Liability is sought to be repudiated solely on the testimony of a single doctor that some negative answers to some questions reallydifficult to answer in the limited space provided in the forms were false and inaccurate. We agree with the observation. In -- 'Haridasi Devi v. Manufacturers Life Assurance Co.' : AIR1937Cal510 by Lort-Williams J. that such questions as are usually asked in forms of application for insurance are often somewhat embarrassing and cannot, always be reasonably expected to ue answered with strict and literal truth.
19. The Insurance Company's repudiation Of liability is really based in this case on a Shylockian interpretation of a written contract which we are called upon to enforce, the insurance company relying on the letter of this contract and nothing but the contract which cannot be varied by one jot or tittle. We have indicated supra that mere signature of an insured person who does not understand English, on these forms with this binding declaration in English, is not enough to prove his knowledge of what he was signing and to bind him literally and irrevocably to such a contract. It is elementary law and justice that a person cannot be bound hi law by his signature to a document which he does not understand. In no case to which we have been referred has a person, who did not know English, been held irrevocably bound by an insurance contract without the examination as a witness of the person who interpreted the questions to him and recorded the answers.
In this connection in the course of arguments we have been shown forms in Tamil for Exs. B. 1, B. 2 and B. 3 which the company have recently introduced. They are certainly a step in the right direction, and give a reasonable opportunity to non-English knowing persons literate in a regional language to understand the gravity of the forms they are signing. In the case of illiterate persons, it is In our opinion necessary that the person, who interprets the forms to them and records their answers, must be examined before they can be bound by the consequences of their marks or signatures. The written statement in the suit has proceeded on a wrong factual basis that Subbiah Chettiar himself wrote the answers typed in these forms.
A legal principle or theory, if pushed to extreme logical conclusions, may more often than not result in grave injustice as in the present case, if not absurdity. It is true that hard cases must not be allowed to make bad law. But on the contrary good law should not be permitted, by misapplication to be pushed to such literal and technical extremes, as in the defence of the present action, to degenerate into mechanical machinery which results in injustice without regard to the human background, facts and circumstances. Judicial resource in the direction of achieving justice should be quite equal to the task of minimising, if not eliminating, hard cases which at first blush appear to be necessitated by settled law- called good under which if too many hard cases cannot be avoided; there should then result a radical change in the law.
20. A petition C. M. P. No. 11154 of 1952 has been filed for the appellants for the admission of six documents, some of the letters alleged to have been written by Subbiah Chettiar in Tamil in his own hand, one from Bangalore dated 11-4-1945 and another from Coimbatore to which he is said to have been over-carried by train on his return to Tiruppur. An affidavit has been filed to the effect that these letters were discovered only after the dismissal of the suit. In view particularly of the failure of the Insurance company to place all the evidence available before the trial Court and of the insured's family being really kept in the dark as to the precise facts on which liability was sought to be repudiated, we would have had no hesitation in allowing this petition, and with Mr. Rajah Aiyar for the company pressing for an opportunity to adduce rebutting evidence, this would have meant a virtual retrial of the whole suit. In the view we have taken of the evidence, we have decided to dispose of the suit on the available material, and dismiss this petition for the admission of these documents, though we are satisfied that in the circumstances the plaintiffs have satisfactorily explained their Inability to produce this evidence at the trial.
21. The suit must be decreed, in our opinion, in view of our findings supra in full. There is no dispute as to the profits which accrued on this endowment policy.
22. There will be a decree as prayed for with costs throughout for Rs. 52,750, with interest at 6 per cent. per annum from the date of plaint which has claimed interest from 16-9-1946 the date on which the necessary proofs were supplied to the company by the widow. It is regrettable that it took the insurance company nearly ten months from that date finally to repudiate liability on this policy by Ex. A. 5 dated 7-7-1947, and that all that transpired between these two dates has been suppressed by the company, and furthermore that the suit filed in 1947 should be determined in this appeal after a lapse of six years.