East and West Life Insurance Co. Ltd. vs Kolla Venkiah and Others

The question at issue in this appeal is whether the appellant the East and ""West Life Insurance Go. Ltd., is liable to pay to respondent 1, Kolla

Venkayya the sum due on a life policy issued to respondent 1''s brother, Kolla Janakirarnayya, in December 1935 for as. 15,000. The learned

Subordinate Judge of Bapatla has granted a decree to respondent 1 for Rs. 12,862-13-0, after making certain deductions from the claim which dc

not now concern us, but has refused him costs. The company has appealed and respondent has filed a memo of cross-objections on the question

of costs only.

The undisputed facts of the ease are these. Premiums were due on the policy every six months. The premium due on 11th June 1936 was not

paid in time. The policy therefore lapsed, but under its terms could be rein stated on ""evidence being furnished of good health to the satisfaction of

the directors."" In September 1936, the premium was paid and the policy reinstated. In this connexion an application form Ex. D-16 printed

throughout in English, was signed in Telugu by Janakiramayya, who could not read or write English. In that form were (amongst others) two

declarations:

(i) That since the day of my examination for the abovementioned policy, I have had no sickness, ailment or injury whatever except as follows "" :

and, ""(ii) I have not been attended, nor prescribed by any physician, except as follows :

Under both of these declarations, the word ""none"" was written in English by the company''s agent in Bezwada (d. w. 5). According to the final

clause of the application form the insured agrees that

if any of the statements or representations contained herein prove to be incomplete or untrue then this reinstatement shall be ipso facto null and

void.

Now it is admitted that the answer ""none"" to these two declarations is in the literal sense of the word, and subject to a question of legal

interpretation to be hereafter considered, untrue. From 13th February to 19th March 1936 Janakiramayya was treated as an in-patient at a

Mission Hospital in Chirala for arsenic dermatitis. In December 1936 and January 1937 there was a second delay in the payment of premium, a

second application form similarly filled up and signed and a second reinstatement, but the evidence and arguments in the case have centred round

the facts of the first reinstatement, and we need not therefore consider the later events. Janakiramayya died on 9th May l937, the cause of death

being given on the certificate under the heading ""other fevers.

The principal matter to be first considered is the circumstances in which Ex. D-16 came to be signed. The case for the company is that their

agent, D. W. 5 explained the con-tents of the form correctly in Telugu to Janakiramayya and wrote the words ""none"" on his instructions. The case

for respondent 1, as outlined in his own evidence, as p. w. 2, is that D. W. 5 gave him. Ex. 16 at Bezwada (with the answers already filled in) and

asked him to get Janakiramayya to sign it and return it by post. The learned Subordinate Judge deals with this matter in para. 13 of his judg-ment

but does not come to any positive conclusion. He refers to a definite admission by D. W. 5 as proof that he could not have correctly translated the

first declaration into Telugu, but then goes on to point out the failure of D. W. 5 to explain a discrepancy in date, from which the only reasonable

inference would be to distrust D. W. 5''s evidence as a whole, and hold that the fact of any interview between him and Janakiramayya, in

September 1936 was not proved.

Mr. Govindarajachari who appeared for respondent 1 has thrown over-board his client''s case as to the facts; and, in order to rely upon the law

as laid down in para. 600(4) of Vol. XVIII of Halsbury''s Laws of England, and the case there quoted {Joel v. Law Union and Grown Insurance

Co.) has asked us to hold that D. W. 5 did meet Janakiramayya and intentionally misrepresented to him the meaning of the declarations. We are

unable to accept this view. We must point out in the first place that both P.W. 2 and D. W. 5 were giving evidence late in 1941, several years after

the events of which they were speaking-it is difficult therefore to rely upon the memory of either, though in this respect it is more likely, we think,

that P.W. 2 who was dealing in 1936 with his own and his brother''s individual concerns, would retain a better recollection of what happened than

D. W. 5 to whom Janakiramayya''s policy was only one of many to be considered in the ordinary routine of his duties. We are therefore unable to

rely implicitly upon any admission by D. W. 5 as being necessarily an admission of the truth.

In the second place, though we naturally speak here with some hesitation, we cannot agree with the learned Judge''s own interpretation of D. W.

5''s evidence. The learned Judge says that D. W. 5 was definitely asked how he interpreted to Janakiramayya the first declaration, and gave an

answer in Telugu which excluded the possibility of his having asked him anything more than whether he was there and then in good health. That D.

W. 5 would make an admission thus cutting at the root of the company''s case (which he had upheld in examination in chief) is in the highest degree

improbable. The original record of D. W. 5''s evidence in the Judge''s own hand is obscure and very nearly illegible, but it does establish, we think,

that the question put to D. W. 5 was recorded, and that that question could not possibly have been ""how did you translate or explain the first

declaration?

Finally, in our opinion, a consideration of the documents makes it extremely probable that there was no interview between D. W. 5 and

Janakiramayya. The receipt, Ex. P. 3 shows that the premium was paid to D. W. 5 at Bezwada on 11th September. The application form was

dated 19th September. It was this discrepancy that D.W. 5 was unable to explain, and we are not surprised at his inability. If the parties had met in

person it was surely inevitable that both these matters of business, the payment of the premium and the execution of Ex. D-16, would have been

attended to simultaneously. Our view accordingly is that in all probability, P.W. 2''s evidence is true that there was no interview between D. W. 5

and Janakiramayya and that no facts have been established to prove any positive misrepresentation by D. W. 5. The burden of proving this lies

upon respondent 1 and in the absence of proof it cannot be held that the company is bound by anything which D. W. 5 may have said. Though we

cannot commend the practice of calling upon an insured person who knows only Telugu to answer questions couched in English the duty of making

himself acquainted with the contents of what he was signing, undoubtedly lay upon Janakiramayya himself on the facts of this case, and he must be

held responsible for the statements that he had had no sickness, ailment or injury since December 1935, and had not been attended upon or

prescribed for by any physician: see Biggar v. Book Life Assurance Co (1902) 1 K.B. 516 and Newscholme Brothers v. Road Transport and

General Insurance Co., Ltd (1929) 2 K.B. 356. We have said that the answers to the declarations in Ex. D-16 are on the face of them untrue, but

it was argued by Mr. Govindarajachari that questions and answers must be reasonably interpreted, and that, judged by this test the answers are

substantially true. Much stress was laid upon the comparatively innocuous nature of arsenic dermatitis. P.W. l for instance says that it is not a

disease in the strict sense of the term, and does not affect longevity. D. W. 7 quotes a text book which gives the death-rate from dermatitis as one

in 15,000 to 22,000 injected. D. W. 6 says that Janakiramayya need not have stayed in the hospital at all, but was induced to enter it ""for nursing

care."" It is common ground that by September 1936 (and indeed so early as in March) the dermatitis was cured.

It was therefore argued on all these facts that Janakiramayya might legitimately regard this incident in his life as of trifling importance in which no

insurance company would take any interest in deciding whether to reinstate a policy or not.'' Reliance is placed in this connexion upon the decision

in The Connecticub Mutual Life Insurance Co. of Heetford v. K.D. Moore (1881) 6 A.C. 644. We do not think this case is of much assistance to

respondent 1. It is true that the expression ""attendance by a doctor"" is interpreted as excluding occasions when medical aid has been sought for

some trifling ailment, occasions which are not likely to be present to the mind of a person filling up a proposal form, but it is noteworthy that where-

as the term ""serious illnesses"" occurs in the judgment, the only non-serious complaints mentioned in it are a headache and a cut finger. It is

impossible to consider a five week''s course of treatment for arsenic dermatitis in hospital, as on the same level as such trivial complaints, however

free from danger the dermatitis may have been, and however complete its cure.

One further point must also be mentioned in this connexion and that is that it cannot in our opinion be fairly said on the facts of this ease that the

disclosure of this illness by Janakiramayya would have had no influence on the company''s decision to reinstate the policy. The dermatitis was

caused by an injection of arsenic. The arsenic was injected because the hospital authorities had reason to believe that Janakiramayya might have

been suffering from syphilis. There was no positive proof in this case that Janakiramayya did suffer from syphilis, and indeed there are indications to

the contrary but the insurance company under the terms of its policy, and of Ex. D-16 was certainly entitled to be informed of facts which might

have led it to suspect that syphilis was present. For the reasons which we have given we do not therefore think that the answer ""none"" to the two

declarations was true on a reasonable interpretation of their terms. If it was not true and if, as we have found, it was not induced by any

misrepresentation as to the meaning of the declarations, it must necessarily follow upon the terms and conditions of Ex. D-16 that the company can

legally repudiate liability. In the result this appeal must be allowed, and plaintiff''s suit dismissed with the costs of the appellant throughout. The

memorandum of cross-objections must also be dismissed, but without costs, as in our opinion the learned Subordinate Judge gave no valid reason

for refusing costs to respondent 1 on his view of the facts and law.