JUDGMENT
Swatanter Kumar, J.
1. In this Regular Second Appeal challenge is to the concurrent findings of fact arrived at by the learned courts below, in decreeing the suit of the plaintiff. The plaintiff had filed a suit for declaration challenging the action of the defendants in rejecting her claim in respect of Policy No. HY/6927-C as illegal and further direction that the permissible bonus with interest and the sum assured should be directed to be paid to her.
2. Suit was contested by the defendants (present appellants) mainly on the ground that the plaintiff was not entitled to any claim because premium was not paid on time and no policy was subsisting at the relevant time. It is alleged that the premium for the months of July and August, 1991 was not deposited on time.
3. The undisputed facts are that the policy in question was issued in favour of the insured i.e. husband of the plaintiff. He was regularly paying the premium and as and when the premium was being paid delayed, they were duly accepted by the appellants. The findings of the learned courts below that the plaintiff was entitled to the relief prayed for cannot be found fault either in law or in the facts and circumstances of the case.
4. Learned counsel appearing for the appellants has placed heavy reliance on the term No. 1 of the terms and conditions of the policy; (to contend) that the policy did not subsists on the date of the death and consequently the respondent herein was not entitled to the relief granted by the courts below. In order to appreciate this contention, it will be relevant to refer the said condition.
“1. The insurant is personally responsible for the payment of premium on or before the 21st of the month in which it is due (e.g., premium for April must be paid on or before the 21st April and so on) whether he is on duty or otherwise, in or out of India. The promise of Government to pay the amount assured is conditional on the insurant paying the premium regularly and punctually.”
It is clear from the above re-produced clause that it is a term of payment of the policy by the insured to the Insurance Company. It has no bearing on the claim which may be raised on the strength of this policy. The clause does not say that if there is default in payment of premium, the policy would lapse or would stand cancelled. Clause 7 of the same policy clearly indicates the circumstances under which the policy would be treated as cancelled. Thus, the intention of the parties, not to cancel the policy for default of premium is abundantly clear from this document. Even otherwise, it has come in evidence and it is not even disputed before me that the appellant was accepting premium even after the prescribed dates in the past. Number of such payments were made by the insured and accepted by the Company without prejudice. Such conduct of the parties would indicate alteration of the agreement or policy to some extend the waiver on the part of the appellants. Bound by its own previous conduct, the appellant would be estopped from taking advantage of the situation. Respondent-herein is the claimant who has approached the Court on the basis of policy.
5. Consequently, I find no merits in this second appeal and the same is dismissed in limine.