NEW INDIA ASSURANCE CO. LTD. Vs. SULOCHANA CHOWDHURANI

JUDGEMENT

(1.) THIS is an appeal by the Defendant against the judgment and decree of the Subordinate Judge, Lower Assam Districts at Dhubri by which a money suit for recovery of Rs. 1,00,000/ - under an insurance policy effected with the said Defendant, namely the New India Assurance Company Limited (hereinafter referred to as the Company), was decreed in favour of the Plaintiff. The Plaintiff's case in short is that her adopted son Kumar Jagadindra Narayan Choudhury, Zemindar of Rupshi, took out a life insurance policy bearing No. 251927 R dated the 13th October 1949 from the Defendant Company for a sum of Rs. 1,00,000/ - to be paid by the Defendant Company together with bonus on the expiry of fourteen years, or on the death of the insured whichever was earlier. The insured made the proposal on the 7th of August, 1949 and submitted his personal statement on the 10th of August, 1949. The proposal was accepted and the policy was issued on the 13th October, 1949 after a medical examination of the insured by a doctor of the Company, and on payment of the due premium. Kumar Jagadindra Narayan Choudhury was a Hindu governed by the Dayabhaga School of Hindu Law and he died intestate on 26th August,1950.

(2.) THE Plaintiff is the adoptive mother and the sole heir of the deceased. The Defendants declined to pay the sum payable under the policy on the ground that the proposal and the personal statement contained statements which were incorrect and untrue and that the deceased suppressed facts material to the insurance. It was alleged in the written statement that the answers given by the deceased in reply to questions Nos. 6(a) and 7(a) in the personal statement were incorrect and false and that the deceased was a heavy drinker and suffered from disorders of the nervous system such as hepatitis and hallucinosis and nervous weakness. Consequently, answers to question No. 11 in the proposal were also false. It was further alleged that the answers given by the deceased to the questions Nos. 12 and 13 in the personal statement were also false and that the deceased was taking medical treatment for serious disorders for a considerable period. The above questions and answers were as follows:

(3.) IT may be noted that the Kumar never said in his statement that he was a teetotaller. His statement was that he used to drink a peg or so a day. If the Kumar was accustomed to heavy drinking this was a material fact requiring disclosure as it would have guided the insurer in determining whether to take the risk and if so at what premium and on what condition. If such a fact was not disclosed it would amount to suppression of a material fact. But the burden of proving non -disclosure or misrepresentation is on the insurer and it has to be seen how far the Company discharged this burden. The Company examined several witnesses to prove that the deceased was accustomed to heavy drinking. (After discussing evidence His Lordship proceeded);