{"id":59690,"date":"2007-11-20T00:00:00","date_gmt":"2007-11-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-c-chacko-and-another-vs-chairman-life-insurance-on-20-november-2007"},"modified":"2017-08-15T16:24:12","modified_gmt":"2017-08-15T10:54:12","slug":"p-c-chacko-and-another-vs-chairman-life-insurance-on-20-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-c-chacko-and-another-vs-chairman-life-insurance-on-20-november-2007","title":{"rendered":"P.C. Chacko And Another vs Chairman, Life Insurance … on 20 November, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
P.C. Chacko And Another vs Chairman, Life Insurance … on 20 November, 2007<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Harjit Singh Bedi<\/div>\n
           CASE NO.:\nAppeal (civil)  5322 of 2007\n\nPETITIONER:\nP.C. Chacko and another\n\nRESPONDENT:\nChairman, Life Insurance Corporation of India and others\n\nDATE OF JUDGMENT: 20\/11\/2007\n\nBENCH:\nS.B. SINHA & HARJIT SINGH BEDI\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP (C) No. 23951 of 2005)<\/p>\n
S.B SINHA, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tApplication of Section 45 of the Insurance Act, 1938 is in question in
\nthis appeal which arises out of a judgment and order dated 17th December,
\n2004 passed by a Division Bench of the High Court of Kerala at Ernakulam
\nin A.F.A. No. 18 of 2000 setting aside the judgment and order of a learned
\nSingle Judge dated 23rd September, 2000 passed in Appeal Suit No.633 of
\n1993 confirming the judgment and decree passed by the Subordinate Judge
\nof Kozhikode in OS No. 240 of 1990 dated 27th February, 1993.\n<\/p>\n
3.\tPlaintiffs in the suit are the appellants herein.  They filed the said suit
\ninter alia for recovery of the amount of insurance on the death of one
\nChackochan (hereinafter referred to as the insured).  The insured took an
\ninsurance policy on 21st February, 1987.  He died on 6th July, 1987.  On his
\ndeath, the appellants herein claimed the insured amount.  On the premise
\nthat the insured suppressed material facts, the policy had been repudiated by
\nthe respondent on 10th February, 1989.  Non-disclosure and mis-statement in
\nthe proposal form to the various questions to which answers were given by
\nthe insured is said to be the reason for the aforementioned repudiation of the
\ncontract of insurance.\n<\/p>\n
4.\tIt now stands admitted that the insured had undergone an operation
\nfor Adenoma Thyroid.  The particulars furnished by him while filling up the
\napplication form for obtaining the said policy were as under :-\n<\/p>\n
 (a)  Did you ever have any operation, accident or
\ninjury?  The answer was No.  (b)  Have your remained
\nabsent from place of your work on ground of health
\nduring the last 5 years ?  To which answer was No.  (c)
\nWhat has been your state of health?  The answer was
\ngood.\n<\/p>\n
     The fact that the said answers were incorrect is not in dispute.  The
\nsuit filed by the appellants, however, was decreed.\n<\/p>\n
5.\tOn an appeal preferred by the respondents, on the premise that despite
\nsuch wrong answers, as the injured died on account of polyneuritis, a
\nlearned Single Judge of the High Court opined that there was nothing to
\nindicate that if the injured had disclosed the factum of previous operation,
\nthe appellant-Corporation might not have inclined to insure and insisted on a
\nhigher premium and thus there was no material to show that the non-
\ndisclosure was of a material fact justifying repudiation of the policy by the
\nCorporation.\n<\/p>\n
6.\tOn an intra court appeal, the Division Bench of the High Court,
\nhowever, by reason of the impugned judgment opined that the parties are
\nbound by the warranty clause contained in the agreement which is also clear
\nfrom the declaration signed by the insured and the non-disclosure related to
\na material fact which was required to be answered correctly under question
\nNo.22(a).\n<\/p>\n
7.\tMr. R. Sathish, learned counsel appearing on behalf of the appellants
\nwould submit that a clear finding of fact having been arrived at by the trial
\ncourt that despite undergoing Adenoma Thyroid operation four years prior to
\nthe date of proposal of policy, the cause of insureds death being
\npolyneuritis which had no connection with the operation and the judgment
\nof the trial court having been affirmed by the learned Single Judge, should
\nnot have been interfered with by the Division Bench.  Our attention was
\nfurther drawn to the fact that the medical officer had noted a black mole on
\nlower aspect of left side of neck and from Ext. A1 wherefrom it appeared
\nthat there had been no past history suggestive of allergies, injuries,
\noperations, diseases like rheumatic fever, syphilis etc. and the deceased
\nhaving no other complaint due to operation, the impugned judgment cannot
\nbe sustained.\n<\/p>\n
8.\tLife Insurance policy, it was submitted is a requirement of social
\nsecurity.  In that view of the matter, a suppression could not have been led to
\nrepudiation of policy, particularly when the doctor who examined the
\ninsured was appointed by the respondent-Corporation itself.  Our attention in
\nthis behalf has been drawn to the decision of the Madras High Court in All
\nIndia General Insurance Co. Ltd. and another  vs.  S.P. Maheshwari : AIR
\n1960 Madras 484 for the proposition that there exists a distinction between a
\nrepresentation and a warranty.\n<\/p>\n
9.\tMr. Patwalia, learned Senior Counsel, appearing on behalf of the
\nrespondents, on the other hand, submitted that having regard to the
\nprovisions contained in Section 45 of the Insurance Act and the policy
\nhaving been repudiated within a period of 2 years, the impugned judgment
\nshould not be interfered with.  It was submitted that undergoing of an
\noperation having a direct nexus with the health of the insured, suppression
\nthereof has rightly been considered with all seriousness by the Corporation.
\nIt was argued that the operation underwent by the insured being a major one,
\nwas a material fact which ought to have been disclosed.  Not only the
\ninsured had given wrong answers to the questions, his brother himself being
\na Life Insurance Corporations agent and furthermore in view of the fact that
\na declaration was given by the insured that no untrue averment was made
\ntherein, the contract of insurance was null and void and all monies which
\nhad been paid in respect thereof would stand forfeited to the Corporation.
\nLearned counsel for the Corporation has placed strong reliance on Mithoolal
\nNayak  vs.  Life Insurance Corporation of India<\/a>  : 1962 Suppl (2) SCR 571.\n<\/p>\n
10.\tThe basic fact of the matter is not in dispute.  The insured had
\nundergone an operation for Adenoma Thyroid.  It was a major operation.
\nAlthough the said operation was undergone by him four years prior to the
\ndate of the proposal made by him, he did not disclose thereabout prior to
\nobtaining the insurance policy. We may notice that he died within six
\nmonths from the date of taking of the policy i.e. on 6th July, 1987, policy
\nhaving taken on 21st February, 1987.\n<\/p>\n
11.\tSection 45 of the Insurance Act reads as under :-\n<\/p>\n
45. – Policy not to be called in question on ground of
\nmis-statement after two years, –\n<\/p>\n
No policy of life insurance effected before the
\ncommencement of this Act shall after the expiry of two
\nyears from the date of commencement of this Act and no
\npolicy of life insurance effected after the coming into
\nforce of this Act shall after the expiry of two years from
\nthe date on which it was effected, be called in question
\nby an insurer on the ground that a statement made in the
\nproposal for insurance or in any report of a medical
\nofficer, or referee, or friend of the insured, or in any other
\ndocument leading to the issue of the policy, was
\ninaccurate or false, unless the insurer shows that such
\nstatement was on a material matter or suppressed facts
\nwhich it was material to disclose and that it was
\nfraudulently made by the policy-holder and that the
\npolicy-holder knew at the time of making it that the
\nstatement was false or that it suppressed facts which it
\nwas material to disclose :\n<\/p>\n
Provided that nothing in this section shall prevent the
\ninsurer from calling for proof of age at any time if he is
\nentitled to do so, and no policy shall be deemed to be
\ncalled in question merely because the terms of the policy
\nare adjusted on subsequent proof that the age of the life
\ninsured was incorrectly stated in the proposal.<\/p>\n
12.\tSection 45 postulates repudiation of such policy within a period of
\ntwo years.  By reason of the aforementioned provision, a period of limitation
\nof two years had, thus, been specified and on the expiry thereof the policy
\nwas not capable of being called in question, inter alia on the ground that
\ncertain facts have been suppressed which were material to disclose or that it
\nwas fraudulently been made by the policy holder or that the policy holder
\nknew at the time of making it that the statement was false.  Statute,
\ntherefore, itself provides for the limitation for valid repudiation of an
\ninsurance policy.  It takes into account the social security aspect of the
\nmatter\n<\/p>\n
13.\tThere are three conditions for application of  second part of Section
\n45 of the Insurance Act which are :-\n<\/p>\n
(a) the statement must be on a material matter or must
\nsuppress facts which it was material to disclose;\n<\/p>\n
(b) the suppression must be fraudulently made by the
\npolicy-holder; and\n<\/p>\n
(c) the policy-holder must have known at the time of
\nmaking the statement that it was false or that it
\nsuppressed facts which it was material to disclose.
\n[See Mithoolal Nayak (supra]<\/p>\n
14.\tThe insureds brother was an agent of the Life Corporation of India.
\nIt was he, who had asked the insured to take the insurance policy.  He, being
\nan authorized agent of the Life Insurance Corporation, presumably knew the
\neffect of misstatement of facts.  Misstatement by itself, however, was not
\nmaterial for repudiation of the policy unless the same is material in nature.\n<\/p>\n
15.\tThe insured furthermore was aware of the consequence of making a
\nmisstatement of fact.  If a person makes a wrong statement with knowledge
\nof consequence therefor, he would ordinarily be estopped from pleading that
\neven if such a fact had been disclosed, it would not have made any material
\nchange.\n<\/p>\n
16.\tThe purpose for taking a policy of insurance is not, in our opinion,
\nvery material.  It may serve the purpose of social security but then the same
\nshould not be obtained with a fraudulent act by the insured.   Proposal can be
\nrepudiated if a fraudulent act is discovered.   The proposer must show that
\nhis intention was bona fide.  It must appear from the face of the record.  In a
\ncase of this nature it was not necessary for the insurer to establish that the
\nsuppression was fraudulently made by the policy holder or that he must have
\nbeen aware at the time of making the statement that the same was false or
\nthat the fact was suppressed which was material to disclose.  A deliberate
\nwrong answer which has a great bearing on the contract of insurance, if
\ndiscovered may lead to the police being vitiated in law.\n<\/p>\n
17.\tIt is no doubt true that there exists a distinction between a
\nrepresentation and a warranty.  A Division Bench of the Madras High
\nCourt in S.P. Maheshwari (supra) upon taking into consideration the history
\nof insurance laws in United States of America, in England and in India
\nstated :-\n<\/p>\n
(10) One great principle of insurance law is that a
\ncontract of insurance is based upon utmost good faith
\nUberrima fides; in fact it is the fundamental basis upon
\nwhich all contracts of insurance are made. In this respect
\nthere is no difference between one contract of insurance
\nand another. Whether it be life or fire or marine the
\nunderstanding is that the contract is uberrima fides and
\nthough there may be certain circumstances from the
\npeculiar nature of marine insurance which require to be
\ndisclosed, and which do not apply to other contracts of
\ninsurance, that is rather an illustration of the application
\nof the principle than a distinction in principle. From the
\nvery fact that the contract involves a risk and that it
\npurports to shift the risk from one party to the other, each
\none is required to be absolutely innocent of every
\ncircumstance which goes to influence the judgment of the
\nother while entering into the transaction.<\/p>\n
18.\tWhile the parties entered into a contract of insurance the same shall,
\nsubject to statutory interdict, be governed by the ordinary law of contract.
\nThe insurer may not rely upon the disclosures made by the insured.  It may
\ngather information from other sources.  The Madras High Court, although in
\nour opinion, has rightly issued a note of caution to construe a
\nrepresentation and warranty as a general proposition which may operate
\nharshly against the policy holders, itself noticed :-
\n(12) The principles underlying the doctrine of disclosure
\nand the rule of good faith oblige the proposer to answer
\nevery question put to him with complete honesty.
\nHonesty implies truthfulness. But it happens that no man
\ncan do more than say what he believes to be the truth. <\/p>\n
19.\tWhether in a given case the court should take judicial notice of
\npractice followed in such cases or not would depend upon the facts and
\ncircumstances of each case.  If it is found that the agent himself was
\ninterested in getting the policy executed by the Life Insurance Corporation,
\nsuch common knowledge takes a back seat.\n<\/p>\n
\tIn S.P. Maheshwari (supra), it was stated :\n<\/p>\n
(27) This brings us on finally to the topics of
\nnondisclosure or misrepresentation which are practically
\nthe positive and negative aspects of the same thing. The
\neffect of misrepresentation on the contract is precisely
\nthe same as that of non-disclosure; it affords the
\naggrieved party a ground for avoiding the contract. There
\nare a number of dicta and one decision to the effect that
\nlife insurance is an exception to the general rule that
\ninnocent misrepresentation may afford grounds for
\navoiding a policy and that the misrepresentation must be
\nfraudulent to have this effect upon a policy of life
\ninsurance. But in order to give the insurer grounds for
\navoidance both under non-disclosure as well as
\nmisrepresentations, both must relate only to material
\ninformation.<\/p>\n
\tThe said decision, therefore, is of no assistance to the appellants
\nherein.\n<\/p>\n
20.\tWe are not unmindful of the fact that Life Insurance Corporation
\nbeing a State within the meaning of Article 12 of the Constitution of India,
\nits action must be fair, just and equitable but the same would not mean that it
\nshall be asked to make a charity of public money, although the contract of
\ninsurance is found to be vitiated by reason of an act of the insured.  This is
\nnot a case where the contract of insurance or a clause thereof is
\nunreasonable, unfair or irrational which could make the court carried the
\nbargaining powers of the contracting parties.  It is also not the case of the
\nappellants that in framing the aforesaid questionnaire in the
\napplication\/proposal form, the respondents had acted unjustifiably or the
\nconditions imposed are unconstitutional.\n<\/p>\n
21.\tIn Life Insurance Corpn. Of India & Ors. v. Asha Goel (Smt) & Anr.<\/a>
\n[(2001) SCC 160], whereupon reliance has been placed by Mr. Sathish, it
\nwas held :\n<\/p>\n
The contracts of insurance including the contract of life
\nassurance are contracts uberrima fides and every fact of
\nmaterial ( sic material fact) must be disclosed, otherwise,
\nthere is good ground for rescission of the contract. The
\nduty to disclose material facts continues right up to the
\nconclusion of the contract and also implies any material
\nalteration in the character of the risk which may take
\nplace between the proposal and its acceptance. If there
\nare any misstatements or suppression of material facts,
\nthe policy can be called into question. For determination
\nof the question whether there has been suppression of any
\nmaterial facts it may be necessary to also examine
\nwhether the suppression relates to a fact which is in the
\nexclusive knowledge of the person intending to take the
\npolicy and it could not be ascertained by reasonable
\nenquiry by a prudent person.<\/p>\n
\tIt has not been shown in this case that repudiation of the contract of
\ninsurance was not done by the respondent with extreme care and caution or
\nwas otherwise invalid in law.\n<\/p>\n
\tThe Division Bench of the High Court has taken all the aspects of the
\nmatter in consideration and, in our opinion arrived at a just decision.\n<\/p>\n
22.\tStrong reliance has been placed by the learned counsel for the
\nappellants on Allianz Und Stuttgarter Life Insurance Bank Ltd. v. Hemanta
\nKumar Das [AIR 1938 CAL 641] wherein in regard to some purported
\nstatements made by the proposor in regard to his age was not found to be
\nmaterial as would appear from the following :\n<\/p>\n
It is to be borne in mind that this was an insurance by a
\nman who admittedly was, at any rate, at the age of over
\nforty-five years.  He himself stated that he was fifty four.
\nTherefore, the transaction came within the category of
\nthose proposals which require at the outset the furnishing
\nby the proponents of proof of their age.  Noot Behari
\nDas was required to furnish proof of his age.  He
\nproduced a horoscope.  The horoscope was accepted by
\nthe company as being sufficient.  Therefore, we may take
\nthat the company issued the policy upon the footing that
\nthey were insuring the life of a man whose age was fifty
\nfour.  This is not a case where the proposer says that his
\nage was fifty four and the Company merely accepted that
\nstatement at its face value and proceeded to issue a policy
\non that footing and subsequently, either shortly
\nafterwards or a long time afterwards, admitted the age as
\nstated in the policy in accordance with the provisions of
\nCl.9(2) thereof.  This was a case where the whole
\ntransaction from the very beginning proceeded upon the
\nbasis that the company had satisfied themselves that the
\nproposer was of the age of fifty four and then issued the
\npolicy accordingly.  In my view therefore the admission
\ncontained in the endorsement at page 3 of the policy is of
\nsuch a character that the defendants when the policy
\nmatured could not be heard to say that the age of the
\ninsured was anything different from what he himself had
\nstated it to be in February 1934.  It is not necessary that
\none should apply in terms of the principle of estoppel,
\nbecause that is merely a rule of evidence.  In my view,
\nthis matter goes far deeper than that.  The question of the
\nage of the deceased was a definite and determining factor
\nin the transaction from the very outset.<\/p>\n
23.\tIt is not a case where the company had further enquired into the
\nmatter in regard to the question as to whether the proposor was operated
\nupon or not.\n<\/p>\n
24.\tIn Ratan Lal & Anr. v. Metropolitan Insurance Co. Ltd. [AIR 1959
\nPAT 413], a distinction was made between as to what is material and what is
\nnot material.  In regard to the disclosure of facts in that case itself, it was
\nopined :\n<\/p>\n
The well-settled law in the field of insurance is that
\ncontracts of insurance including the contracts of life
\nassurance are contracts uberrima fides and every fact of
\nmateriality must be disclosed otherwise there is good
\nground for rescission.  And this duty to disclose
\ncontinues up to the conclusion of the contract and covers
\nany material alteration in the character of the risk which
\nmay take place between proposal and acceptance.<\/p>\n
25.\tRatio of the said decision, therefore, instead of assisting the case of
\nappellants, runs counter to his contention.\n<\/p>\n
26.\tKeeping in view the facts and circumstances of the case, we are of the
\nopinion that no case has been made out for our interference with the
\nimpugned judgment.  The appeal fails and is accordingly dismissed.  No
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India P.C. Chacko And Another vs Chairman, Life Insurance … on 20 November, 2007 Author: S Sinha Bench: S.B. Sinha, Harjit Singh Bedi CASE NO.: Appeal (civil) 5322 of 2007 PETITIONER: P.C. Chacko and another RESPONDENT: Chairman, Life Insurance Corporation of India and others DATE OF JUDGMENT: 20\/11\/2007 BENCH: S.B. SINHA & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-59690","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nP.C. 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