JUDGMENT
T. Somasundaram, J.
1. This is a writ petition for the issue of a writ of mandamus directing the respondents to pay the petitioner, wife of late M. Gopal, who held the life insurance policy No. 41582069, a sum of Rs. 50,000/- along with interest at the rate of 12 per cent per annum from the date of maturity till the date of the payment as per claim No. 136 of 1982-83. The husband of the petitioner, the deceased Gopal, submitted a proposal for the insurance of his life for a sum of Rs. 50,000/- on 28.8.1979. The second respondent accepted the proposal and issued a policy bearing No. 41582069 for a sum of Rs. 50,000/ – commencing from 6.9.1979 on the life of Gopal subject to the conditions and privileges mentioned in the policy. The life assured had named the petitioner as the nominee under the policy under Section 39 of Insurance Act, 1938. The premiums under the policy paid up to and inclusive of the half-yearly the fell due in the month of September, 1979. The half-yearly premium due for March, 1980, onwards, was not paid and with the result, the policy stood lapsed since March, 1980. The life assured submitted himself for medical examination and also submitted a personal statement regarding his health dated 11.2.1981. On the strength of the documents produced by the life assured, the second respondent revived the policy on 24.4.1981. On 29.2.1982, the life assured died. Thereafter, the petitioner as nominee under the policy preferred a claim for payment of the policy amount on 10.4.1982. Again, the petitioner sent a telegram to the respondents requesting them to urgently settle the petitioner’s claim. The second respondent replied stating that he was awaiting certain information from the Madras Divisional Officer and that the claim will be settled soon. As the petitioner did not hear from the respondents, she issued a lawyer’s notice dated 8.10.1983 calling upon the respondents to pay a sum of Rs. 50,000/- as per the policy with 12 per cent per annum interest from the date of maturity till the date of payment. The respondents sent a reply stating that the life assured died within 2 1/2 years from the date of risk and within one year from the date of renewal and, therefore, their decision was likely to be delayed. In those circumstances, the petitioner filed the present writ petition seeking the relief referred to earlier.
2. The respondents filed a counter contending that the petitioner is not entitled to invoke the special jurisdiction of this Court under Article 226 of the Constitution to enforce the rights under the contract insurance and that the present writ petition is not maintainable. The further case of the respondents in their counter-affidavit is that the petitioner’s claim being an early claim an investigation was caused to be made in accordance with the practice and the investigation conducted revealed that the life assured, M. Gopal, even prior to submitting his personal statement regarding health on 11.2.1981 at the time of reviving his policy, was suffering from ‘haematemesis’ for which he took medical treatment during the year 1980 and even prior to 1980. It was further contended in the counter-affidavit that the above fact was not disclosed in the personal statement filed by the life assured on 11.2.1981 and as a matter of fact he gave untrue answers to the relevant question in the said personal statement regarding his health. The respondents stated in their counter-affidavit that in the above circumstances, they repudiated the claim under the policy and accordingly, the respondents sent the letter dated 29.1.1985 to the petitioner repudiating the claim and stating that no amount is payable to her. It is the further case of the respondents that they are having evidence to prove that the life assured was taking treatment for various ailments during the relevant period and that he fraudulently suppressed the same and got the policy revived and, therefore, they are entitled to repudiate the claim under the policy.
3. Mr. R. Arunagirinathan, the learned Counsel for the respondents, raised an objection that the writ petition arises questions of fact which can be decided only after taking evidence in a regularly instituted suit before a civil Court and that the petitioner is not entitled to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution. In support of this contention, the learned Counsel for the respondents placed reliance on the following decisions of this Court:
(1) V. Kamatchi v. Senior Divisional Manager, LIC of India Madras W.A. No. 1079 of 1990; decided on 21.11.1990.
(2) V. Padmavathy v. Divisional Manager, LIC. Of India, Madurai, W.P. No. 9934 of 1984; decided on 22.11.1984.
(3) Prema v. LIC of India by its Divisional Manager, Madras W.P. No. 10188 of 1983; decided on 3.11.1987.
(4) S. Balakrishnan v. LIC of India, Madras W.P. No. 12987 of 1990; decided on 10.1.1991.
On the other hand, Mr. R. Karuppan, the learned Counsel for the petitioner, contended that the writ jurisdiction is exercised by the Courts for advancing the cause of justice and the public body like of LIC of India should nor raise technical plea that the writ petition is not maintainable to defeat the claim of the petitioner. In support of his contention, the learned Counsel for the petitioner relied on the decision in Dipashri v. Life Insurance Corporation of India, 1985 ACJ 416 (Bombay).
4.The respondents in the counter-affidavit have taken the stand that the life assured even prior to his submitting his personal statement regarding his health on 11.2.1981 at the time of reviving the policy, was suffering from ‘haematemesis’ for which he took medical treatment during the year 1980 and even prior to 1980 and that the life assured has not disclosed the same in his personal statement given on 11.2.1981. It is the further case of the respondents that they are having evidence to prove that the life assured was taking treatment for various ailments during the relevant period and that he fraudulently suppressed the same and got the policy revived, Having regard to the stand taken by the respondents, it follows that the question whether the life assured had given correct and true information to the respondents with regard to his health or whether he had suppressed any material information regarding his health and managed to obtain the revival of the policy is a matter which can be decided only after evidence is recorded and documents are filed in a regularly instituted suit before a civil Court. The respondents by the letter dated 29.1.1985 have also repudiated the claim of the petitioner on the ground that prior to the revival of the policy, the petitioner’s husband, viz., the life assured suffered serious ailments, that he was taking treatment in the hospital and that the ailments suffered by him were not disclosed to the respondents at the time when the policy was revived. The disputed questions of facts whether the life assured suffered from ailments and whether he suppressed the same from the respondents at the time of revival of the policy in his favour cannot be decided in the present writ petition on the basis of the averments in the affidavit filed in support of the writ petition and the counter-affidavit. Therefore, it has to be held that the proper forum for deciding the question will be a civil Court.
5. In V. Kamatchi v. Senior Divisional Manager, Life Insurance Corporation of India, Madras W.P. No. 3990 of 1987; decide on 12.11.1987, dealing with a similar question Mohan, J. as he then was, while holding that the writ petition is not maintainable, observed thus:
It is well settled in law that a contract of insurance is a contract based on absolute faith. In such a case, whether the claim has been validly denied or not cannot be decided within the scope of the writ jurisdiction. The proper remedy for the petitioner is to file a civil suit.
Writ Appeal No. 1079 of 1990 filed against the order in W.P. No. 3990 of 1987 was also dismissed on 21.11.1990. This Court in (1) Prema v. LIC of India, Madras W.P. No. 10188 of 1983; decided on 3.11.1987; (2) Section Balkrishnan v. LIC of India, Madras W.P. No. 12987 of 1990; decided on 10.1.1991 (3) V. Padmavathy v. LIC of India, Madurai W.P. No. 9934 of 1984; decided on 2.11.1984, has consistently taken the view that when there is a dispute between the parties whether the life assured had given correct and truthful information to the insurance authorities or whether he had suppressed the material information and managed to obtain the policy or the revival of the policy, such disputes can be decided only after evidence is recorded in a regularly instituted suit before a civil Court and that such an enquiry is beyond the scope of the proceedings under Article 226 of the Constitution. In LIC of India v. Kiran Sinha 1985 ACJ 657 (SC), the highest Court of the land, while dealing with the question what is the proper forum to claim the payment of money under Insurance Policy has observed as follows:
(2) We have heard the learned Attorney-General and Mr. A.K. Sen, learned Counsel for the respondent. The High Court could not have in the circumstances of this case directed the payment of money claimed under the Insurance Policies in question in a petition filed under Article 226 of the Constitution. The only remedy available to the respondent in this case was a suit before a civil Court. The judgment of the High Court is, therefore set aside.
In view of the above position of law it has to be held that the proper remedy for the petitioner is to file a civil suit and this Court cannot go into the merits of the matter and find out whether the repudiation of the claim of the petitioner by the respondents is correct or not. In these circumstances, the petitioner is not entitled to any relief in the writ petition and it is liable to be dismissed. However, the dismissal of the writ petition will not be a bar to the institution of a suit before the proper Court by the petitioner for the recovery of the amount due under the policy insured in the name of the husband of the petitioner. Further, the plea of limitation in instituting such suit cannot be put against the petitioner, as the petitioner had filed the present writ petition and had been prosecuting the matter before this Court from 1984. The period during which the writ petition is pending before this Court has to be excluded for the purpose of calculating the period of limitation for filing the suit before the civil Court for the recovery of the amount on the basis of the policy of insurance.
6. The learned Counsel for the petitioner also states that the petitioner is poor and a helpless widow and she has to support her three minor children and, therefore, she is not in a position to bear the expenses to file the suit before the civil Court. If that is so, the petitioner can either approach the legal aid authorities for helping her to file the suit or even she can file the suit as an indigent person. For the reasons stated above, the writ petition is dismissed subject to the above observations. No costs.