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Judgment
M. Katju, J.—This writ petition has been filed for a mandamus directing the respondents to pay the assured amount of Insurance Policies (Annexures1 to 4 to the petition), belonging to Sri Om Prakash Srivastava, husband of petitioner No. 1 Smt. Renu Srivastava who died on 951996 alongwith interest. The petitioners have also prayed that respondents be restrained from making deduction from the assured amount in pursuance of letter dated 30111998.
Heard learned Counsel for the parties.
Sri Om Prakash Srivastava, husband of petitioner No. 1 had taken four Insurance Policies, copies of which are (Annexures 1 to 4 to the petition). Annexure1 is the copy of the policy which he took when he was a Sales Tax Officer and Annexures 2, 3 and 4 when he was Assistant Commissioner, Sales Tax. He died by a heart attack on 951996.
It is alleged in paragraphs 11 to 15 of the petition that Sri Om Prakash Srivastava had heavy burden of official and family responsibilities. It is alleged in para 19 that he took medical leave from 8111995 to 2631996 so that both his children may complete their Board examination with meritorious performance and he may be able to provide residential accommodation to his family.
It is alleged in paragraph 20 that long medical leave cannot give inference of any ailment which can deprive insurance money to the family. In para 22 it is alleged that due to the exorbitant expenditure incurred in the construction of his residential accommodation from 8111995 to 2631996 while Om Prakash Srivastava was on long leave, the premium of his policies could not be deposited within time and the same were revived after taking a declaration that he is not suffering from any serious ailments. It is not correct that he withheld any information about his health from the L.I.C.
After his death his widow, petitioner No. 1 approached the respondent No. 3 by moving an application on 471996 vide (Annexure7 to the petition) alongwith the relevant documents but the L.I.C. repudiated the liability alleging that Om Prakash Srivastava had withheld correct information regarding his health at the time of reviving his policies vide Annexures 8 to 11 to the petition. In the order dated 2031997 the Divisional Manager, LIC has stated that since Om Prakash Srivastava availed medical leave, hence he withheld the correct information from the LIC at the time of revival of his policies. Respondent No. 1 took into consideration the medical certificate showing that Om Prakash Srivastava suffered from Primary Pulmonary Hypertension vide certificate of Dr. D.K. Agrawal dated 181995 (Annexure17 to the petition). However, the Branch Manager, LIC has issued a letter dated 30111998 stating therein that the LIC has accepted the claim of two policies only to the extent of half of the insured amount. The claim in respect of the other two policies was rejected. Aggrieved this petition has been filed.
A counteraffidavit has been filed by the LIC and we have perused the same.
It is stated in paragraph 19 that the payment of half of the assured amount in respect of the two policies was only an ex gratia payment and cannot be regarded as a precedent. In para 25 it is stated that the Corporation repudiated the policy because the policy holder had illegally withheld correct information from the LIC regarding his actual state of health. It is stated that insurance contracts are contracts of utmost good faith. If there is any concealment of the relevant facts regarding the health of the insured then the contract becomes voidable vide Mithoolat Nayak v. LIC, AIR 1962 SC 814.
In para 29 it is stated that the policy holder was suffering from Primary Pulmonary Hypertension for about three years before his death but he did not disclose this vital information regarding his health and thus, the Insurance Polices are void and they have rightly been repudiated.
On the facts of the case we are of the opinion that highly disputed questions of fact are involved as to whether Om Prakash Srivastava had disclosed the correct state of his health when he got his policies revived. Writ jurisdiction is not the appropriate forum for adjudication of these disputed questions of fact, as it would require evidence. If the petitioners are so advised, they may file a civil suit in this connection.
The averments made as to the State of health of the insured in the proposal form and the personal statement being the basis of the contract between the parties and the fact that the insured concealed important facts about his health, if found to be correct, vitiates the policy as held by the Supreme Court in Mithoolal Nayak v. LIC (supra).
For the reasons given above, we are not inclined to exercise our discretion under Article 226 of the Constitution in this case. Petition is dismissed.