BALKRISHNA KHIRWAL Vs. NEW INDIAN ASSURANCE CO LTD

JUDGEMENT

(1.) This is an appeal by the plaintiff against the decision of the learned Subordinate Judge of Singhbhum at Jamshedpur and arises out of a money suit filed by the plaintiff against the New India Assurance Company Limited, a Company having its Head Office at Bombay, the life insurance business of which has been taken over by the Life Insurance Corporation of India. The suit was filed in the year 1950 and the plaintiffs case in short was that the plaintiffs mother, Mt. Syo Bai, widow of late Jokhiram Khirwal, made a proposal on 24-11-1946, in the printed forms of the defendant Company for insurance of her own life for a sum of Rs. 25,000. The period of the policy proposed was 15 years and the premia were to be paid quarterly, that is to say, every three months. The defendant Company accepted the proposal by its letter dated 7-12-1946, subject to a surcharge of Rs. 187/8/- per annum over the usual rate of premium to which the plaintiffs mother agreed- She paid a sum of Rs. 560/3/-towards the payment of the first quarterly premium to the Secretary of the Defendant Company at Jamshedpur. He granted a receipt and that concluded the contract between the parties covering the risk of the life of the plaintiffs mother from 21-12-1946. A policy bearing number 162231 was issued by the Defendant Company from its Head Office. The assured, Syo Bai, died on 9-3-1947, on account of heart failure at mouza Jugsalai in the district of Singhbhum after a brief spell of illness. The plaintiff being the sole surviving heir of his mother, lodged claims with the defendant Company for payment of the amount to which he was: entitled to under the said policy. After certain formalities the plaintiff was asked to procure a succession certificate which he did, but, later the Company backed out and did not pay the claim. The plaintiff also asserted in para. 9 of the plaint that the plaintiffs mother was the owner of half share in the immovable properties worth Rs. 1,30,000 besides cash money and ornaments to the extent of Rs. 40,000 or above. The enquiry set up by the defendant Company in regard to this was a belated one and was not proper.

(2.) The defendant Assurance Company, 'in its written statement, stated inter alia, that the Singhbhum court had no jurisdiction to try the suit as the action was triable at Bombay. The Company did not generally accept the proposal of insurance from a female for her life unless the proposer had independent income of her own to pay insurance premia and with that intent in view a proposal for insurance from a female is accompanied by an additional form containing particulars about the proposal which forms a part of the statement made before the Medical examiner. Such an additional form accompanying the proposal in this particular case was dated 25-11-1946, wherein the proposer had declared that she had an income of her own to the extent of Rs. 2000/- per year from house rent. Such statement, besides others, formed the basis of the contract of insurance and the proposal was accepted on such basis. The Company admitted that the proposal was accepted with the surcharge as also the fact that the first quarterly premium of Rs. 560/5/- had been paid. The issue of the policy was also admitted. In paragraph 8 of the written statement it was asserted that from enquiries the Company had learnt that the proposer was suffering from cough, asthama and bronchitis for seme years prior to the date of the proposal and that her statement that she did not suffer from those ailments or from other affection of lungs' and her statement that she had an income of her own of about Rs. 2000 from house rent were incorrect and untrue and were made deliberately to induce the Company to accept the proposal. The stand taken in paragraph 13 of the written statement was that the defendant Company was all along making enquiries to find out how far the statements in the proposal and in the accompanying additional form as to the income of the proposer were correct. The plaintiff refused to give any such information although the insurance was effected at his instance and for the first time by his pleader's letter dated 2-3-1950, purported to give particulars of properties alleged to belong to the assured. The defendant Company did not believe and did not admit that the assured held any such property or had half share in them. The plaintiffs allegation that the assured was the owner of half share in the immoveable properties worth Rs. 1,30,000 and had cash money and ornaments to the extent of Rs. 40,000 was also not admitted in paragraph 16 of the written statement wherein it was further stated that the defendant Company accepted in good faith the statement made in the proposal and if they were discovered to be untrue, the defendant company would be entitled to discharge the claim. In mat view of the matter the plaintiffs claim was denied and the Company's liability under the policy was not accepted.

(3.) The learned Subordinate Judge framed six issues in the case and answered four of them in favour of the plaintiff but two of them against him. The first issue as to whether the court had jurisdiction to try the suit was answered in favour of the plaintiff. The third issue as to the independent income of Mt. Syo Bai at the relevant date when the proposal had been made, was also answered in favour of the plaintiff and it was held by the trial court that Syo Bai had an independent income of her own at the time when her life was insured and the statement about this made in the proposal form was correct. The fifth issue framed was as to whether Syo Bai was actually examined by the doctor or she was falsely impersonated by somebody else when the proposal form was filled up and which was finally accepted by the defendant Company and it was decided against the defendant. The fourth issue was whether the defendant company was induced by misrepresentation and fraud to accept the proposal for insuring the life of the deceased Mt. Syo Bai and the Court below decided this issue also against the defendant Company. The second issue was as follows: "Were the statements made in die proposal for insuring the life of deceased Mt. Syo Bai correct"? Under this issue the court below held that it did not find any substance in the defendant's contention that the reply given by the proposer in respect of her health was a misrepresentation of fact. But the court below, while discussing this issue, gave effect to the contention on behalf of the defendant Company, based upon the evidence of P. W. 10, Bridhi Chand Agarwalla, that Jokhi Ram had four issues from Syo Bai, that the proposer had made an incorrect statement in the proposal form and its accompanying form as respects her number of children, dead or living, and hence the contract was void and unenforceable. Taking this view of the matter on a point which was not specifically pleaded, the court below answered the sixth issue against the plaintiff to the effect that he was not entitled to any relief in the suit.