Patna High Court
The Life Insurance Corp.Of Ind vs Smt.Sudama Devi & Ors on 16 January, 2013
Equivalent citations: AIR 2014 (NOC) 195 (PAT.)
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.50 of 1980
Against the Judgment and Decree dated
26.09.1979passed by Second Addl. Subordinate Judge, Gopalganj in Money Suit No.151 of 1972 / 8 of 1975.
================================================= The Life Insurance Corp.of India & Ors.
.................Defendants-Appellants Versus Smt.Sudama Devi ...............Plaintiff-Respondent ================================================= Appearance :
For the Appellants : Mr. Rajeev Ranjan Prasad, Advocate For the Respondent/s : Mr. Raju Giri, Advocate. ================================================ Dated : 16thday of January, 2013 PRESENT CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO CAV J U D G M E N T Mungeshwar
1. The defendants have filed this First Appeal against the Judgment Sahoo, J.
and Decree dated 26.09.1979 passed by the learned Second Subordinate Judge, Gopalganj in Money Suit No.151 of 1972 / 8 of 1975 decreeing the plaintiff-respondent's suit.
2. The plaintiff respondent filed the aforesaid money suit for realization of RS.50,000/- along with interest of Rs.8,800/- alleging that her husband Musafir Singh had taken a Life Insurance Policy from the Chapra Branch of L.I.C. The date of birth of her husband was recorded as 5.5.1926 2 Patna High Court FA No.50 of 1980 dt.16-01-2013 2/8 in his school certificate which was correctly mentioned in admission register. The defendants accepted the age and issue the policy being Policy No.29524483. The husband of the plaintiff died on 8.8.1966 because of suspected case of Koronary thrombosis. The plaintiff informed the defendants and then filed a claim. The defendants made investigation and ultimately repudiated the claim of the plaintiff for payment under the aforesaid policy by letter dated 29/31.10.1969. The ground for repudiation was that on the date of issue of policy, the plaintiff-husband's age was 54 years, but he disclosed his age to be 40 years. Thereafter, the plaintiff served notice but to no effect and, therefore, filed the suit for recovery of amount of Rs.50,000/- i.e., the assured amount with interest at the rate of Rs.6 per cent, i.e., Rs.8,800/-.
3. The defendants appellants filed contesting written statement. Besides taking various legal and ornamental please, the defendants mainly contended that in consideration of the proposals and personal statement together with related declaration and the statement contained therein submitted by Musafir Singh and the payment of first premium payable for the proposed insurance the defendant was induced to enter into contract of insurance with said Musafir Singh. The school certificate submitted by Musafir Singh subsequently turned out to be incorrect and untrue and not recording correct date of birth of said assured. As the assured died within less than even 2 weeks from 28.7.1966 which is the date of commencement of purported risk of the Policy investigation was made and it transpired that assured had deliberately and with ulterior motive grossly understated his age in his said proposal and personal statement dated 20.7.1966 and 27.7.1966 respectively, only to wrongfully induce the defendants to accept his said proposal for insurance. The actual age of the assured on the date of proposal was 54 years but in the proposal form and personal statement, 3 Patna High Court FA No.50 of 1980 dt.16-01-2013 3/8 he falsely stated his age to be 40 years. Had the assured disclosed his correct age, his proposal under the plan and terms mentioned therein would not have been accepted by the defendant. The other allegations were denied by the defendant.
4. On the basis of the aforesaid pleadings of the parties, the trial Court framed the following issues :-
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff got any cause of action for the suit?
(iii) Is the suit bad for mis-joinder and non-joinder of the parties?
(iv) Is the suit barred by law of limitation, principle of waiver,
acquiesce and estoppel?
(v) Are the statement given by the person insured correct?
(vi) Has the policy been obtained by practicing fraud upon the
Corporation?
(vii) Are the defendants bound by the Contract?
(viii) Is the plaintiff entitled to get the reliefs claimed?
(ix) To what relief or reliefs, if any, is the plaintiff entitled?
5. After trial, the trial Court recorded the finding that in fact the age of Musafir Singh was correctly stated on the date of the proposal and Musafir Singh was not aged about 54 years on 20.7.1966 as contended by defendants. Accordingly, the trial Court decreed the plaintiff respondent's suit.
6. The learned counsel, Mr. Rajiv Ranjan Prasad appearing on behalf of the appellant-Life Insurance Corporation submitted that just one or two months prior to declaring his age in the proposal form and personal statement, Musafir Singh had disclosed his age to be 54 years in ext. 'C' which was produced by the appellant before the trial Court but the trial Court wrongly disbelieved the said ext. 'C' instead of relying the same. This ext. 'C' is also declaration of Musafir Singh who disclosed his age to be 54 4 Patna High Court FA No.50 of 1980 dt.16-01-2013 4/8 years on 24.5.1966 before Court whereas just after 2 months on 20.7.1966 in the declaration, he disclosed his age to be 40 years, therefore, he suppressed the material fact with a view to obtain benefit of the insurance. The trial Court has not considered that the assured had clear motive and by suppressing this material fact, he played a fraud upon the Corporation and induced the defendants to enter into the insurance policy. This ext. 'C', no doubt, was made in the criminal proceeding but it is the declaration of Musafir Singh, therefore, it is admissible against Musafir Singh, there is no reason as to why he disclosed his age in the Court as 54 years and within 2 months, he disclosed his age to be 40 years in the declaration which clearly indicate that he played a fraud but the learned Court below did not rely on ext. 'C' wrongly. According to the learned counsel, this is the only question to be decided in this appeal and if it is found that this disclosure made by Musafir Singh in ext. C' is reliable then the plaintiff is not entitled for any relief and it is held that ext. 'C' is to reliable, the appellants have got no case.
7. On the other hand, the learned counsel appearing on behalf of the respondent submitted that ext. 'C', is age recorded in a examination of accused under Section 313 Cr.P.C. and it is not taken on oath. Any statement made by the accused under Section 313 Cr.P.C. will never be used against the accused. It is well known that in criminal case while the accused are being examined under Section 313 Cr.P.C., they disclosed their age higher than their real age so that they may be awarded lesser punishment because while awarding punishment age of the accused is one of the factor for consideration. In such circumstances, the trial Court has rightly not relied upon ext. 'C'. There is no legality in the impugned Judgment and Decree. The plaintiffs have produced oral as well as documentary evidences in support of the age of Musafir Singh which was 5 Patna High Court FA No.50 of 1980 dt.16-01-2013 5/8 found to be reliable by the trial Court. Therefore, the learned counsel submitted that the First Appeal be dismissed with cost.
8. In view of the above submission of the parties, the point arises for consideration is as to whether the deceased Musafir Singh intentionally suppressed material facts about his age and disclosed wrongly his age to be 40 years on 20.07.1966 in proposal form and his personal statement with a view to obtain the insurance policy and whether the impugned Judgment and Decree passed by the trial Court is sustainable in the eye of law.
9. So far the point for consideration is concerned, it may be mentioned here that unless correct age of Musafir Singh is recorded, no finding can be given either in favour of the plaintiff or in favour of the defendant. Therefore, let us see as to what was the age of Musafir Singh on the date of his declaration in proposal form and personal statement, i.e., on 20.7.1966. It may be mentioned here that along with the declaration form, school leaving certificate was filed by Musafir Singh wherein his date of birth has been mentioned as 5.5.1926. If the age is calculated on the basis of this certificate, then he was aged about 40 years. In the proposal, i.e., ext. '6' he disclosed his age to be 40 years. It is the case of the defendant that deceased played a fraud by the Corporation by suppressing the material fact about his age and disclosed his age to be 40 years wrongly, although he was aged about 54 years. It is settled principle of law that the onus is on the person to prove who alleges that fraud was played on him. From perusal of the record, it appears that no oral evidence has been adduced by the defendant to prove the fact that Musafir Singh was aged about 54 years on 20.7.1966.
10. On the contrary, the plaintiff had examined the two doctors who submitted their confidential report to the Corporation after examining 6 Patna High Court FA No.50 of 1980 dt.16-01-2013 6/8 Musafir Singh. They are Dr. Ram Ekbal Singh, P.W.5 and Dr. Jyoti Bhushan Singh P.W.8. Both doctors have proved their confidential report which has been marked ext. 5 and 5/A. In the said report, they have also disclosed the age of Musafir Singh to be 40 years. These doctors were the doctors employee under the defendant appellant. From perusal of the Judgment of the trial Court, it appears that one of the doctor was continuing in the service when the Judgment was delivered. From perusal of the evidence of these Doctors, it appears that both of them stated that they had no reason to deceive the statement made by Musafir Singh while recording his age. According to these doctors, the apparent age of Musafir Singh was 40 years. It appears that no case has been made out by the appellant- defendant to the effect that the report submitted by their Doctor, i.e., P.W.5 and P.W.8 examined on behalf of the plaintiff are wrong report. P.W.6 who is Development Officer has also stated that the report of the Doctor were accepted by the Corporation finding it to be correct. He has also stated that after perusal of ext.2, the entry in school register and ext.3, the horoscope, he accepted the age of Musafir Singh and he sent the proposal ext. '6' to the Branch office. P.W.3 has proved school register and the entry of the school register has been marked as ext.2. From perusal of the same, it is clear that the date of birth has been mentioned as 5.5.1926. P.W.4 has proved the horoscope, ext.3. No doubt, there is some discrepancies in the school register and horoscope regarding the age but it is not so, i.e., about 24 years.
11. The most important fact is that the plaintiff herself has been examined as P.W.2 in the year 1979. The Court assessed her age to be 43 years and she also disclosed her age to be 43 years. If she was aged about 43 years in 1979 then she was 30 years in the year 1966. In my opinion, therefore, it is not believable that there can be difference of 24 years in the 7 Patna High Court FA No.50 of 1980 dt.16-01-2013 7/8 age of husband and wife. In addition to the above, P.W.9 has proved the matriculation certificate, ext.10, and a school leaving certificate, ext.11, which are the certificates of Ram Dayal Singh, the elder brother of Musafir Singh. From perusal of the said certificates, it appears that Ram Dayal Singh was born in the year 1918-19. Now, if the defendants-appellants case is believed that Musafir Singh was 54 years, his date of birth will be in the year 1911. Now, therefore, if Musafir Singh was born in the year 1911 how his elder brother Ram Dayal Singh was born in the year 1918-19. There is no explanation. It is not the case of the appellant that these certificates are forged certificates or that Ram Dayal Singh is not the elder brother of Musafir Singh.
12. So far the defendants witnesses are concerned, they are either formal or not related on the fact about age of Musafir Singh. The only documentary evidences which has been relied upon by the appellant is ext. 'C'. As stated above, this ext. 'C' was not made on oath. It is the statement of an accused made while he was examined under Section 313 Cr.P.C. In such circumstances on the basis of ext. 'C', no categorical finding can be recorded that Musafir Singh was aged about 54 years, particularly when the school register, the report of the two doctors conclusive proof of age of elder brother of Musafir Singh, i.e., ext. 10 and 11 and the evidence of P.W.2, the plaintiff produced by the plaintiff are reasonable and reliable evidences. In my opinion, therefore, Musafir Singh was aged about 40 years on the date of proposal, i.e., 20.7.1966. In view of the above finding, now it can safely be held that Musafir Singh had not suppressed any material fact and he had disclosed the real age according to the certificates in the declaration form. The plaintiff has been able to prove that without suppressing of material fact, the Policy was obtained by the deceased assured whereas the defendants appellants have failed to prove that Musafir 8 Patna High Court FA No.50 of 1980 dt.16-01-2013 8/8 Singh suppressed material fact by disclosing his age about 40 years wrongly and thereby played fraud on the Corporation. I, therefore, find no reason to interfere with the finding of the trial Court. Therefore, the finding of the trial Court is confirmed.
13. It appears that the claim was filed by the plaintiff in the year 1972 but the defendant appellants have still not paid the amount to the plaintiff.
14. In the case of Slim Advocate Bar association Vs. Union of India 2005 (6) SCC 344, the Apex Court has held that unfortunately it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35 (2) C.P.C. Such a practice also encourages the filing of frivolous suit. It also leads to taking up of frivolous defence. Further when Section 35 sub Section 2 provides for cost to follow the event, it is implicit that the cost have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons therefrom.
15. In the result, this First Appeal is dismissed with cost of Rs.15,000/- to be paid by the appellant to the plaintiff respondent within 2 months failing which the plaintiff respondent is at liberty to realise the same through the process of Court.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 16thJanuary, 2013 Sanjeev/N.A.F.R.