Shanta Trivedi vs Life Insurance Corporation of India

Jagdish Chandra, J.—The Plaintiff Shanta Trivedi has brought this suit for the recovery of a sum of Rs. 2,50,000/- together with interest thereon at the rate of 12 per cent per annum for the period from the date the said amount became payable till the institution of the suit. She has also prayed for the grant of future interest from the date of the suit till realisation of the amount.

Uma Shankar Trivedi, late husband of the Plaintiff, had taken out five life insurance policies with the Defendant Life Insurance Corporation of India, Jeevan Vihar, 25, Kasturba Gandhi Marg, New Delhi (in short ''LIC''), the details whereof are as follows:

S. No.

Policy No.

Date

Amount of the policy

1.

24122376

28.10.1970

Rs. 50,000/-

2.

24217512

13.2.1971

Rs. 50,000/-

3.

24227823

28.3.1971

Rs. 50,000/-

4.

24268759

19.1.1972

Rs. 45,000/-

5.

24268760

19.1.1972

Rs. 55,000/-

The Plaintiff had been appointed by the assured deceased Uma Shankar Trivedi as his nominee and in that capacity she was to be paid the sums assured under the policies in the event of the death of the assured before the maturity dates of the policies. The assured fell suddenly ill on the morning of 5th February, 1973 and was immediately removed to All India Institute of Medical Sciences, New Delhi, (hereinafter to be referred to as the ''Institute'') where he was admitted and where he died on 11th February, 1973.

The Defendant LIC was informed of the death of the assured vide letter dated 7th May, 1973 and insurance claim was also alleged by the Plaintiff of the aforesaid policies. Even though the claim filed by the Plaintiff was duly acknowledged by the LIC as early as 12th May, 1973 and LIC had also assured the Plaintiff of an early settlement of the same, it was ultimately by a letter dated 31st March, 1977/lst April 1977 that the LIC communicated its repudiation of the Plaintiffs claim and also asserted its own claim to all the premia paid on the said policies by the assured alleging that the assured had given false answers to certain material questions regarding his age and health. This repudiation of Plaintiffs claim by the LIC was considered improper and illegal by the Plaintiff who then sent a registered notice dated 22nd July, 1977 through her counsel Mrs. Swaran Mahajan, Advocate, protesting against the repudiation and asserting her claim, but the LIC again in its reply dated 22nd September, 1977 through counsel confirmed the repudiation of Plaintiff s claim asserting that assured had suffered from diabetes mellitus, hypertension and kidney trouble for which he had allegedly taken treatment but had not disclosed those material facts in the proposals and personal statements/ declarations submitted by him for insurance. Feeling aggrieved, the Plaintiff has brought this suit.

The claim of the Plaintiff for the insurance amount has been resisted and controverted by the Defendant LIC on the ground that all the five insurance policies were vitiated by fraudulent suppression of material facts and misrepresentation in regard to his age and health of assured and made declarations knowing the same to be false and never disclosed to the LIC that he was suffering from the above-mentioned diseases. The alleged fraudulent suppression of material facts and false declarations on the part of the assured are identical in respect of all the five policies and in respect of the same questionnaire of his personal statements which he had to make for each policy. It would be sufficient if the relevant questionnaire is reproduced and the same is reproduced as follows:

Questions: Answers:

(1) (c) Age near birthday 48 years

(6) Have you ever suffered from any of the following ailments?

(c) Fainting attacks, pain in chest, breathlessness, palpitation or any disease No of heart. No

(g) Any affection of kidney or bladder, dropsy, rheumatism, gout, gonorrhoea, syphilis or any other venereal disease. No

(7) Have you ever passed blood, pus, albumen or sugar in urine? No

(9) (b) Have you ever been in any hospital, asylum or sanatorium for check up, observations, treatment or an No operation? No

If so, give details. No.

The aforesaid mis-statements or fraudulent suppression of material facts appear both in the proposal forms of all the five policies as also in the personal statements which he made separately in respect of each proposal. It is specifically asserted that at the time he made these personal declarations or filled up the proposal forms he was a patient of diabetes mellitus, hypertension as also a case of ectopic kidney in left side and had been administered spinal anaesthesia in the year 1960 for investigation of the kidney following which he developed paralysis of left leg for five months but the assured knowing all those material facts did not disclose the same, which consequently entitled the LIC to repudiate the Plaintiffs claim. The LIC accepted the proposal forms on the basis of the statement made by the assured in the proposal forms and in his personal statements and was not in a position to know the material facts already adverted to above regarding his age and health and it is asserted that had the correct information been disclosed by the assured to the doctors of the LIC who had conducted his medical examination on the basis of the statements made by him in the proposal forms which were completed in their presence, they would have put him on stricter medical examination in the light of the said information pertaining to his health and past medical history. The LIC learnt about the fraudulent suppression of material facts only after the death of the assured when it made investigation and enquiries from the institute where the deceased was admitted a few days before his death and was treated. The Defendant LIC has denied not only the insurance claim of the Plaintiff in the sum of Rs. 2,50,000/- and interest thereon but has also asserted the non-entitlement of the Plaintiff even for the refund of the premia paid by the deceased assured under the said policies. The Defendant LIC has, thus, prayed for the dismissal of the suit with special costs u/s 35-A of the Code of Civil Procedure.

The averments in the written statement were denied and controverted by the Plaintiff in the replication and reiterated her pleadings of the plaint.

From the pleadings of the parties, the following issues were framed:

(1) Is the claim of the Plaintiff to fail on the ground that there was fraud, misrepresentation and/or failure to disclose material facts while obtaining the policies in suit?

(2) Are the claims of the Plaintiff based on the policies in question not to be paid for the reasons stated in the written statement?

(3) In case the policies are payable, then what interest, if any, is payable thereon and from what date?

(4) Relief.

Issue Nos. 1 & 2

The relevant law on the question posed by these two issues is enunciated in Section 45 of the Insurance Act, 1938 (as amended by Act No. 13 of 1941) which reads as follows:

No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.

The perusal of this provision of law shows that it comprises two parts in respect of the life insurance policy effected after the coming into force of this Act and according to first part no policy of life insurance shall be called in question by an insurer after the expiry of two years from the date on which it was effected, on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, while according to the second part such a policy can be called into question by the insurer even after the expiry of the aforesaid period of two years if the insurer shows:

(1) that such statement was on a material matter, or

(2) that the insured suppressed facts which it was material to disclose and that it was fraudulently made, and

(3) that the insured knew at the time of making the statement that the statement was false or that it suppressed fact which it was material to disclose.

Mithoolal Nayak Vs. Life Insurance Corporation of India, , also spelt out the following three conditions for the applicability of the second part of Section 45:

(a) the statement must be on a material matter or must suppress fact which it was material to disclose;

(b) the suppression must be fraudulently made by the policy holder; and

(c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.

Repudiation of the policies in question and the claim of the Plaintiff on the basis thereof after the death of the deceased was made by the Defendant vide letter Exh. DW 8/1 dated 31.3.1977 and the Defendant obviously relies upon the aforesaid second part of Section 45 of the Insurance Act, 1938 for disputing the claim of the Plaintiff on these insurance policies. The period of two years for the purpose of this section is calculated from the date on which the policy was originally effective (vide Mithoolal Nayak Vs. Life Insurance Corporation of India, ). The policy does not become effective from the date the formal document is executed or issued. The phraseology used in Section 45 relates to a date from which the policy of insurance becomes effective and such date would be the date of acceptance of the proposal from which the risk on the life of the proposer is covered, (vide Sheo Shankar Ratanlalji Khamele Vs. Life Insurance Corporation of India, Bombay, ).

Regarding the onus of proof in such like cases it has been laid down in Lakshmi Insurance Co. Ltd. Vs. Bibi Padma Wati, , in the following terms:

According to the provisions of Section 45, the insurance contract can be avoided on fraud, and a charge of fraud, naturally, requires a high degree of probability. It is well-known that fraud is odious and cannot be presumed: fraus est odiesa et non est praesumenda. The courts will not be satisfied with proof, which falls short of showing that intentional misrepresentation was made with the knowledge of perpetrating fraud.

The onus probandi in all such cases rests heavily on the party alleging fraud. The Privy Council in AIR 1941 93 (Privy Council) , held that fraud must be established beyond all reasonable doubt and could not be based on suspicion and conjecture....

The principle of the test of preponderance of evidence was applied in that case. It was also held at page 260 in that very authority that "such defences, in so far as they result in forfeitures, have to be proved affirmatively by a preponderance of the evidence". It would be desirable to point out and note here and now that if the policies stand vitiated on the pleas taken by the Defendant, the Plaintiff loses not only her claim to insurance amounts due thereunder but would also entail forfeiture of the premiums paid by her deceased husband under these policies during his lifetime as it is one of the terms of the contract in question.

During the course of arguments, the learned Counsel for the Defendant pressed fraudulent suppression of material facts on the part of the insured only in respect of diabetes mellitus, hypertension, ectopic kidney and his age. I propose to deal with each one of them separately.

Regarding diabetes mellitus the learned Counsel for the Defendant has relied upon two medical certificates Exh. DW 2/1 dated 4.1.1974 and Exh. DW 2/2 dated 29.3.1976 issued by Dr. Vimla Virmani, Associate Professor of Neurology Department of the Institute as also on the original record Exh. DW 1/1 of the Institute for the period from 5.2.1973 to 11.2.1973 during which period the deceased insured remained as indoor patient and where he was admitted in a state of coma. The medical certificate Exh. DW 2/1 shows cerebral haemorrhage as the diagnosis arrived at in this hospital. It further mentions diabetes mellitus as the other disease or illness which preceded or co-existed with the aforesaid ailment at the time of his admission into the hospital and the duration of diabetes mellitus is further shown in col. 7 (a) as three years and the history in respect thereof having been reported by the son of the insured against col. 7 (c) therein. Against col. 5 (b) the name of Dr. Uma Kaushal is mentioned in this certificate as the doctor to whom the history of the insured ailment was reported at the time of his admission and the son of the patient is mentioned against col. 5 (c) as having reported the history of the patient. The other certificate Exh. DW 2/2 dated 29.3.1976 mentions on the basis of the hospital record that the insured was a known diabetic.

Dr. Uma Kaushal could not be produced in the witness-box by the Defendant for the reason that she had already left the Institute without leaving behind any address and so she could not be served upon with the summons to appear as a witness. Dr. Vimla Virmani (DW 2) has been examined by the Defendant and she had made an elaborate statement. According to her both the certificates, i.e., Exhs. DW 2/1 and DW 2/2 have been signed by her and were prepared on the basis of the history of the patient recorded at the time of his admission and the subsequent progress and treatment as observed by the doctors in the hospital and that the treatment of the patient was carried out under her supervision as the patient belonged to her Unit. The medical record Exh. DW 1/1 pertaining to the deceased and prepared and kept in the Institute talks of the deceased being an old case of diabetes for the last three years on internal page 79 but on running page 181 of the record. This medical record starts from running page 103 of the paper-book and ends with running page 307 whereas its internal pages are from 1 to 201. Internal pages 77 to 80 of this medical record talk of the medical history of the deceased recorded on 5.2.1973 when he was admitted in the Institute. On page 77 this record talks of the deceased having seen the history of diabetes mellitus detected two years back, whereas on page 79 his history was being an old case of diabetes for the last three years (since 5.2.1973). The learned Counsel for the Plaintiff has assailed the veracity of this history of the deceased being an old patient of diabetes asserting that these history sheets finding mention from pages 79 to 80 do not bear the signatures of anyone. Nor is it proved on the records of the case as to which person recorded the same on these pages and further that the period of two years mentioned on page 7 and three years on page 79 was discrepant which in turn was further discrepant from the period of one year mentioned on internal page 3 (running page 105) of this medical record which gives the history of the deceased as a diabetic for one year as on the date of admission, i.e., 5.2.1973. The learned Counsel has further contended that in none of the aforesaid pages it is mentioned anywhere nor on any other page of this medical record, as to who gave the history of the patient much less that it was given by his son. Dr. Vimla Virmani (DW 2) stated in her examination-in-chief that the notes at pages 77 to 79 of Exh. DW 1/1 had not been signed and that it was not possible for her to identify the handwriting of the same. Dr. Vimla Virmani, in her cross-examination, agreed that the name of the doctor to whom the history of the patient''s ailment was reported at the time of admission and the person who gave the history were of vital significance. She further stated that it was not possible to recall from memory whether she spoke to the patient''s son or not with regard to the history. Nor could she remember about her actually questioning the wife and the son of the patient about the diabetes, even though she could not remember whether she spoke to any other relation and that it was not possible for her to identify if the son of the patient was present in court. Even the history regarding the patient being diabetic for one year on his admission in the Institute on 5.2.1973 occurring on page 3 of Exh. DW 1/1 does not bear the signatures of any person, nor is it proved on the records of the case as to in whose handwriting the same appears. The certificate Exh. DW 2/1 dated 4.1.1974 was issued about 11 months after the admission of the insured in the Institute on 5.2.1973 whereas the certificate Exh. DW 2/2 was issued on 29.3.1976 about three years and two months of the admission of the patient in the Institute. Thus, this evidence does not appear to be reliable enough to found the basis for discarding the claim of the Plaintiff. The learned Counsel for the Defendant suggested during the course of arguments that the court may itself compare the aforesaid disputed writings occurring on pages 77 to 79 of Exh. DW 1/1 with the writings of Dr. Uma Kaushal so as to ascertain whether the same are in the handwriting of one and the same person. This contention cannot be accepted. In the absence of the testimony of any handwriting expert on this matter it would be rather too much for the judge to use his own eyes for the purpose of deciding very vital claims of the parties because the aforesaid is the only evidence relied upon by the Defendant to avoid the claim of the Plaintiff. The following lines appearing in The State (Delhi Administration) Vs. Pali Ram, are highly instructive on this point:

Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."

Furthermore, even otherwise it is not possible to act upon the suggestion emanating from the learned Counsel for the Defendant for the reason that there is nothing on the records of the case to bring out the sample or proof of handwriting of Dr. Uma Kaushal. No witness has stated that any portion of the medical records Exh. DW1/1 is in the handwriting of Dr. Uma Kaushal. Dr. Vimla Virmani (DW2) who is the star witness of the Defendant was able to identify the signatures of Dr. Uma Kaushal at various pages of Exh. DW 1/1 but, however, she could not identify her handwriting therein. Even R.D. Malhotra (DW 1), Computer in the Institute, did not prove any portion of Exh. DW 1/1 to be in the handwriting of Dr. Uma Kaushal. As already pointed out above Dr. Uma Kaushal could not be produced as a witness in court by the Defendant, even though summoned for the reason that her address or whereabouts could not be known as she left the Institute without leaving behind her address. Both the sons of the Plaintiff, namely, Vinod Kumar Trivedi (PW 2) and Mukul Trivedi (PW 3) denied that their father had suffered from diabetes mellitus or that they gave the past history of their father in the Institute to anyone on 5.2.1973 when the deceased was got admitted in the Institute and further that their mother had not gone to the Institute on that day as she was herself bed-ridden due to the shock of her husband and it is to be pointed out again that the alleged past history appearing in the medical report Exh. DW 1/1 is of that day alone and, thus, it was not necessary, as questioned by the learned Counsel for the Defendant, to produce the Plaintiff herself in the witness-box inasmuch as Vinod Kumar Trivedi (PW 2), son of the Plaintiff, is her general attorney and was in a position to depose to all the various facts which the Plaintiff could depose to and more so whom the medical certificate Exh. DW 2/1 dated 4.1.1974 mentions that all history of the deceased was reported by the son.

On the other hand, the learned Counsel for the Plaintiff relied upon the medical reports of the various medical practitioners who examined the assured on behalf of the Defendant when the assured filled up the proposal forms in question after various intervals and wherein the urine was found to contain no sugar and no albumin and specific gravity round about 1018 which has been described in the evidence produced by the Defendant itself as within normal range. The learned Counsel for the Plaintiff contended that it was not possible for the deceased to have fooled all the five doctors of the LIC who were highly qualified and who examined the assured on different dates in respect of these policies. Though seemingly this contention could have force but there is evidence on the records of the case from both sides to show that sugar and blood pressure could be controlled by him by taking appropriate medicines in those days.

Dr. J.N. Bahadur (PW 1) is the medical man examined by the Plaintiff and he produced six reports Exh. PW 1/1 to PW 1/6 out of which the first five are signed by Dr. Shanta Bhargava and the 6th by Dr. Sarin, and these are respectively dated as 17.4.1972, 2.9.1972, 23.3.1971, 25.5.1970, 9.12.1971 and 14.9.1966. In all these reports sugar and acetone have been shown to be ''nil''. The first five reports further show the absence of albumin and diacetic acid. Their perusal further shows that these reports pertain to the deceased assured U.S. Trivedi who had been referred by Dr. J.N. Bahadur. The first five reports further show that the deceased had been referred for these tests by way of routine examination, though the words ''routine examination'' do not find mention in Exh. PW 1/6, nor any specific purpose. So, these pieces of evidence do have evidentiary value in favour of the Plaintiff that during the relevant time, i.e., during the years 1970 to 1972 when the assured filled up the proposal forms and the personal statements, he was not suffering from diabetes mellitus inasmuch as these reports could not be said to have been procured by the deceased assured with any motive in view as could be said in the case of the medical tests conducted upon him regarding sugar in urine by the doctors of Defendant when the assured wanted to take the policies in suit. Objection was raised to the mode of proof of these documents. Mr. Danial Latifi, learned Counsel for the Plaintiff, relied upon Section 159 of the Evidence Act, 1872 in order to submit that Dr. Bahadur was entitled to refresh his memory even though others were the authors of these reports and further that Dr. Bahadur was able to identify the signatures of Dr. Shanta Bhargava and Dr. Sarin thereon. The testimony of Dr. Bahadur shows that he was a general practitioner and knew late Uma Shankar Trivedi who used to live near his dispensary and who became his patient since 1947 and continued to be so till the time of his death. His testimony further shows that as far as he knew the deceased did not suffer from diabetes, hypertension or kidney trouble. While producing these reports in court he stated that these reports were part of his record and that he had given the same to the Plaintiffs son on the close of his (Dr. Bahadur''s) practice and that he obtained back the same from the Plaintiffs son and brought the same to court as he had received a notice from the Defendant to produce his record. It cannot be said that these reports could not be proved by Dr. Bahadur even though Dr. Bahadur admitted that Dr. Shanta Bhargava and Dr. Sarin were in Delhi.

Dr. Madan Lal (PW 4) was examined in the witness-box by the Plaintiff but the testimony of this witness is not of much importance because even though he has been examined as a medical expert and he has examined the medical report Exh. DW 1/1 of the Institute pertaining to the deceased and had opined that the deceased was not a case of diabetes mellitus or hypertension for which he gave various reasons based on Exh. DW 1/1, he conceded nevertheless that from this medical report he could not say whether the deceased had been suffering or not from hypertension or diabetes mellitus for a period of about three years or at any time immediately preceding his admission in the Institute. So, his testimony does not help us whether the deceased was suffering from such diseases on the eve of filling up the proposal forms and his personal statements accompanying the same and which is the relevant period for investigation of the alleged diseases supposed to have been suffered by the deceased. It is a matter of common knowledge that a person not suffering from any of these two diseases may suffer from the same after some time or even the next day and on this point the reply of Dr. S.P. Bhargava (DW 11) in his cross-examination is quite relevant inasmuch as he stated that a person at the age of 48 having no diabetes may become diabetic at the age of 58 and any person having no hypertension today may have hypertension tomorrow. However, Dr. Madan Lai''s statement in his cross-examination on one point looks very relevant and material from the point of view that when the deceased was admitted in the Institute with a supposed history of diabetes mellitus he was notwithstanding that given glucose intravenous at 9.00 a.m. on that day, i.e., 5.2.1973, meaning thereby that if he had the past history of diabetes, glucose would not have been administered to him when he came there in coma. The following questions and answers appearing in the cross-examination of Dr. Madan Lai appear to be quite apposite:

Court question: Why it is necessary to administer glucose to a diabetic patient who is already suffering from high blood sugar?

Arts.: If we give 25 per cent glucose 50 c.c. intravenous in a known case of diabetes mellitus who has gone into ''coma'' certainly we can worsen his condition. It is not meant to revive a diabetic patient to give this quantity of glucose but if we give this quantity of glucose to a patient who is not diabetic and has gone into ''coma'' this amount of glucose can improve his condition. No quantity of glucose whatsoever is administered to a patient who suffers from high blood sugar. In a patient of diabetic ''coma'' and patient with high blood sugar we give intravenous sodium chlorine drip (normal saline).

Question: You have just said that a patient who was diabetic and in ''coma'' we need not give glucose if he is in ''coma'' in order to revive him. What would you give? Name some drug or would you give him efcorlin?

Ans.: We would not give efcorlin. We shall give him saline drip and insulin. We can also give him sodabicarb 7.5 per cent to combat the acidosis.

This also tends to cast a suspicion on the alleged past history of the deceased being a diabetic patient. It was contended by the learned Counsel for the Defendant that such questions ought to have been put on behalf of the Plaintiff in the cross-examination of Dr. Vimla Virmani (DW 1) who had treated the deceased in the Institute. The administration of glucose to a supposedly diabetic patient coming in ''coma'' is so obvious a matter on the face of it that this apparent contradiction ought to have been got explained by the Defendant in the examination-in-chief of Dr. Vimla Virmani who appeared as a witness of the Defendant. The learned Counsel for the Defendant contended that the frequent checking of urine of the deceased tended to show that he was a diabetic and this very contention was suggested to Dr. J.N. Bahadur (PW1) in his cross-examination to which Dr. Bahadur replied that the deceased was a well off person and used to get his checking up done frequently. It is a matter of common knowledge that people, especially after the age Of 40, start getting their medical check-up done at regular intervals and for that reason the contention of the learned Counsel for the Defendant loses significance. Thus, taking into consideration the entirety of circumstances referred to above it is quite difficult to hold that the deceased assured was suffering from diabetes mellitus when he filled up the proposal forms and personal statements for taking the life insurance policies from the Defendant, even though the concealment thereof had he been suffering from this disease at that time would have been tantamount to a material and fraudulent suppression of fact which would have been sufficient to avoid the policies.

Regarding hypertension in the medical certificate Exh. DW 2/1 dated 4.1.1974 signed by Dr. Vimla Virmani of the Institute there is no mention of this disease and the only disease mentioned therein and allegedly suffered by the deceased is diabetes mellitus. The assured being a known hypertensive, however, finds mention in the second medical certificate Exh. DW 2/2 dated 29.3.1976 of Dr. Vimla Virmani and for this the medical record Exh. DW 1/1 of the Institute wherein the deceased remained admitted from 5.2.1973 to 11.2.1973 till his death makes a mention of the past history of the deceased having been hypertensive for two years prior to 5.2.1973, the date of his admission in the Institute. That history-sheet finds mention on internal pages 77 and 78 (running pages 179 and 180) of Exh. DW 1/1 and nowhere else and not even on pages 79,80 and 81 (running pages 181 to 183) of Exh. DW 1/1, nor on page 3 thereof on which pages the deceased having suffered from diabetes finds mention. The aforesaid evidence regarding the past history of hypertension can in no way be better than the one regarding diabetes mellitus, for the reason of this past history not being signed by any doctor or any other official of the Institute, nor the writing purporting to evidence the same having been proved to be in the handwriting of any doctor, as already discussed above. It would be unnecessary to repeat the arguments pertaining to this past history of hypertension of the deceased which related to the alleged past history of diabetes mellitus of the deceased. This past history as also the suffering of this disease by the assured has been denied by his two sons Vinod Kumar Trivedi (PW 2) and Mukul Trivedi (PW 3) as also by Dr. J.N. Bahadur (PW 1), family doctor of the deceased and his family members. Dr. Bahadur specifically stated that he found the blood pressure of the deceased normal and that the blood pressure of the deceased used to be checked by him. It may also be noted that during the period the deceased remained in the Institute from 5.2.1973 to 11.2.1973 his blood pressure was found within normal limits and no drug whatsoever was given to him to bring down his blood pressure as is also stated by Dr. Madan Lai (PW 4) on the basis of the medical report Exh. DW 1/1 of the Institute. His blood pressure in the Institute has been recorded as 140/70,150/90, 80/50, 200/110 and 160/95. Dr. Madan Lai (PW4) has stated that the deceased had been given injection efcorlin repeatedly during the course of his treatment in the Institute and that this drug raises the blood pressure in a normal individual and further that the blood pressure 200/110 recorded at 8.30 a.m. on 9.2.1973 fell down to 160/95 within half an hour without any drug having been administered to him to bring the blood pressure down and that the rise to 200/110 was due to injection efcorlin and the subsequent fall due to the effect of the drug efcorlin having faded out. He, thus, opined that the deceased was not suffering from hypertension though ultimately he could not say whether the deceased had been suffering or not from hypertension for a period of about three years or at any time immediately preceding his admission in the Institute. There is, thus, hardly any convincing evidence to show that the deceased was a patient of hypertension at the relevant time when he filled up the insurance proposal forms and the personal statements, even though the suppression thereof, had he suffered from this disease at that time, would have been a material suppression and fraudulent sufficient to avoid the policies in question, inasmuch as the doctor of the Defendant as also its officers have stated that had the assured disclosed this disease he would have been subjected to further and special tests before the policies in suit were accepted.

Regarding ectopic kidney Dr. J.N. Bahadur (PW 1), family doctor of the deceased, stated that the left kidney of the deceased was found near the bladder and that a kidney near the bladder was ectopic kidney and that in the normal way the kidneys should be in the loins and that this ectopic kidney of the deceased had been discovered in the X-ray after a dye was given to him in the year 1960. Regarding such a kidney his testimony shows that it was normal in function and size but congenitally wrongly positioned and that the wrong positioning of the kidney is immaterial. Dr. N.S. Dixit (DW 5) has been examined as an expert by the Defendant. He is a highly qualified doctor and according to him ectopic kidney is a kidney which is not in its original place and that it does not directly affect the longevity of life. He further stated that an ectopic kidney, though prone to infection, is not a disease itself. According to Dr. S.P. Bhargava (DW 11) ectopic kidney does not shorten the life unless it is infected and that ectopic kidney is a little more prone to infection as compared to a kidney normally placed. He has also stated that ectopic kidney is not any disease but is only a congenital condition and that the person having such a kidney has it only that way and does not suffer from it. It would be noticed that in none of the five medical reports of the five doctors of the Defendant who medically examined the deceased including his urine when the deceased filled up the proposal forms and the personal statements for taking the life insurance policies, nor in any of the six urine reports Exh. PW 1/1 to Exh. PW 1/6 produced by Dr. J.N. Bahadur (PW 1) and all pertaining to the deceased any infection was detected meaning thereby that the ectopic kidney of the deceased was not suffering from any infection excluding thereby its proneness to infection even to a small degree. Thus, when such a kidney is admittedly not an ailment and does not affect the longevity of life directly except through infection and when'' there had never been seen any infection in urine, the deceased could not put himself to any occasion so as to disclose the same when he filled up the proposal forms or the personal statements and not disclosing the same could not be said to be a suppression of any material fact, nor fraudulent and, thus, the non-disclosure thereof by the deceased does not entitle the Defendant to avoid the policies in question.

In the insurance policies the deceased disclosed his date of birth as 17.9.1922 and so he disclosed his age as 48 years in some of the policies and 49 years in the remaining policies. O.P. Arora (DW 3), Superintendent in the Chief Electoral Officer''s Office, Delhi produced Exh. DW 3/1 which is a certified copy of the relevant entry of the electoral roll for the year 1971 issued from the office of the Chief Electoral Officer, Delhi and it pertains to Uma Shankar Trivedi (deceased) and shows his approximate age as 50 years. This witness could not bring the original electoral rolls as the same had been disposed of under the election law. He brought with him a cyclostyled copy marked ''Y" of the order dated 13.5.1983 directing disposal of the electoral roll which had been summoned from him. It would be seen that this document also mentions the age of the deceased as 50 years only approximately and it does not give the exact date of birth and is, thus, hardly any reliable piece of evidence to disprove the age disclosed by the deceased at the time of filling up the proposal forms or the personal statements for obtaining the life insurance policies. Moreover, this document does not show as to whether the age was given by the person concerned or by any member of his family or by a servant or by a neighbour. Such like electoral rolls are sometimes prepared on the basis of the information supplied by any one of such persons and are, thus, not worthy of much credence. In his cross-examination Des Raj Bhasin (DW 6), Assistant Administrative Officer in Life Insurance Corporation, states that they do not accept the entry in the electoral roll as proof of age but they call it corroborative evidence and that the corroborative evidence is only taken into consideration when the LIC is not satisfied about the proof of the age and that this is recorded in certain circulars. When according to this very senior officer of the Defendant itself the entry in the electoral roll regarding the age is not accepted by the Defendant and is only a corroborative piece of evidence, the same cannot be sufficient to rebut the age disclosed by the assured and accepted as such by the Defendant, especially in view of the infirmities already referred to above in regard to the preparation of the electoral rolls. It would be noticed that at almost all the places in the medical report Exh. DW/1 of the Institute the age of the deceased is mentioned as 50 years and this medical record pertains to the period from 5.2.1973 to 11.2.1973. Under these circumstances, the disclosure of the age by the deceased to the Defendant at the time of filling up the proposal forms or the personal statements had been correctly made.

The contention urged by the learned Counsel for the Defendant that the deceased having taken as many as five life policies in 1970 to 1972 went to show that he was suffering from the aforesaid ailments and was under expectation of early death stands repelled from the fact that as many as six more life policies had been taken by the other family members of the deceased in those very days when the policies in suit were taken and Exhs. PW 2/1 to PW 2/6 are the photo-copies of those six policies taken by the other family members of the deceased. Exhs. PW 2/1 and PW 2/2 are the insurance policies in the name of Vinod Trivedi each for a sum of Rs. 50,000/-. Exhs. PW 2/3 and PW 2/4 are the two life policies in the name of Shanta Trivedi in the sum of Rs. 30,000/- each. Exhs. PW 2/5 and PW 2/6 are the two life policies in the name of Mukul Trivedi each in the sum of Rs. 50,000/-. Vinod Trivedi and Mukul Trivedi are the sons of the deceased while Shanta Trivedi is the wife of the deceased. These policies had been taken out in the year 1971 except the policies Exh. PW 2/3 and PW 2/4 in the name of Shanta Trivedi which were taken out in January, 1972. Vinod Kumar Trivedi (PW 2), son of the deceased, stated that he had been in his father''s business since 1964 as a partner till his death and that their business was expanding and on the suggestion emanating from their income tax Legal Adviser the deceased took out the life policies in suit. So, in view of the above discussion there was no fraud or misrepresentation nor any failure to disclose any material fact on the part of the deceased/assured while obtaining the policies in suit and consequently the claim of the Plaintiff based on the policies in question does not fall for the reasons stated in the written statement and these issues are decided accordingly against the Defendant.

Issue No. 3

The contract of insurance as set out in the life insurance policies expressly bars the payment of any interest by the Defendant to the person entitled to receive the insurance amount. The learned Counsel for the Plaintiff contended that the Plaintiff would be entitled to interest under the Interest Act, 1978 but this contention is incorrect in view of Sub-section (3) (ii) of Section 3 of the said Act which provides that nothing in Section 3 shall apply in relation to any debt or damages upon which payment of interest is barred, by virtue of an express agreement. Interest is payable u/s 3(1) and (2) of this Act in the discretion of the court but interest cannot be allowed if the payment of interest is barred by virtue of an express agreement. There is no mercantile customary usage proved on the records of the case whereby interest would be payable to the Plaintiff. Thus, the Plaintiff is not entitled to any amount by way of interest and this issue is decided accordingly against the Plaintiff.

Relief

In view of my above findings and the insurance amounts under the life policies in suit being to the tune of Rs. 2,50,000/-, I pass a decree for the recovery of Rs. 2,50,000/- in favour of the Plaintiff against the Defendant but under the circumstances of the case as emanating from the evidence on the records of the case, parties are left to bear their own costs. The decretal amount shall be paid by the Defendant to the Plaintiff within one month from today, failing which the Plaintiff shall be entitled to future interest at the rate of 12 per cent per annum on the decretal amount from the date of suit till payment/ realisation.