NEW INDIA ASSURANCE CO LTD Vs. ITTY KURIAN

JUDGEMENT

(1.) This appeal was once heard and disposed of by judgment dated 1.10.1990. But later on a petition was filed stating that the respondent plaintiff died on 28.2.1990 and praying that the appeal be reheard, after impleading his legal representatives. That petition was allowed.

(2.) The additional 2nd defendant in O.S. 78 of 1973 of the Sub Court, Kottayam is the appellant. The 1st defendant company amalgamated with 2nd defendant company. The Cross Objection relates to refusal of interest from the date of notice till date of decree.

(3.) Defendant took up the position that the policies were issued on the basis of declarations submitted by plaintiff in utmost good faith, without enquiring into the truth or otherwise of the same. Therefore, it was contended that being uberrimae fidei contracts, the plaintiff ought to have known the facts and disclosed the same to the insurance company and as he had violated the good faith reposed in him, it is riot liable to return the amount. It was further contended that even if the plaintiff was misled by the Corporation, he could have discovered the truth and therefore, the mistake was unilateral on the part of the insurance company and there is no mutual mistake of fact and the contracts would not be void. It was also pleaded that the claim is barred by limitation.