The central legal point established in the judgment is the application of Section 45 of the Insurance Act to justify the repudiation of an insurance policy based on non-disclosure and misstatement by the insured.

S. B SINHA, J.

( 1 ) LEAVE granted.

( 2 ) APPLICATION of Section 45 of the Insurance Act, 1938 is in question in this appeal which arises out of a judgment and order dated 17th December, 2004 passed by a Division Bench of the High Court of Kerala at Ernakulam in A. F. A. No. 18 of 2000 setting aside the judgment and order of a learned single Judge dated 23rd September, 2000 passed in Appeal Suit No. 633 of 1993 confirming the judgment and decree passed by the Subordinate Judge of Kozhikode in OS No. 240 of 1990 dated 27th February, 1993.

( 3 ) PLAINTIFFS in the suit are the appellants herein. They filed the said suit inter alia for recovery of the amount of insurance on the death of one chackochan (hereinafter referred to as the insured ). The insured took an insurance policy on 21st February, 1987. He died on 6th July, 1987. On his death, the appellants herein claimed the insured amount. On the premise that the insured suppressed material facts, the policy had been repudiated by the respondent on 10th February, 1989. Non-disclosure and mis-statement in the proposal form to the various questions to which answers were given by the insured is said to be the reason for the aforementioned repudiation of the contract of insurance.

( 4 ) IT now stands admitted that the insured had undergone an operation for Adenoma Thyroid. The particulars furnished by him while filling up the application form for obtaining the said policy were as under :-

" (a) Did you ever have any operation, accident or injury? The answer was "no". (b) Have your remained absent from place of your work on ground of health during the last 5 years ? To which answer was "no". (c)What has been your state of health? The answer was "good".

The fact that the said answers were incorrect is not in dispute. The suit filed by the appellants, however, was decreed.

( 5 ) ON an appeal preferred by the respondents, on the premise that despite such wrong answers, as the injured died on account of "polyneuritis", a learned Single Judge of the High Court opined that there was nothing to indicate that if the injured had disclosed the factum of previous operation, the appellant-Corporation might not have inclined to insure and insisted on a higher premium and thus there was no material to show that the non-disclosure was of a material fact justifying repudiation of the policy by the corporation.

( 6 ) ON an intra court appeal, the Division Bench of the High Court, however, by reason of the impugned judgment opined that the parties are bound by the warranty clause contained in the agreement which is also clear from the declaration signed by the insured and the non-disclosure related to a material fact which was required to be answered correctly under question no. 22 (a ).

( 7 ) MR. R. Sathish, learned counsel appearing on behalf of the appellants would submit that a clear finding of fact having been arrived at by the trial court that despite undergoing Adenoma Thyroid operation four years prior to the date of proposal of policy, the cause of insureds death being "polyneuritis" which had no connection with the operation and the judgment of the trial court having been affirmed by the learned Single Judge, should not have been interfered with by the Division Bench. Our attention was further drawn to the fact that the medical officer had noted a black mole on lower aspect of left side of neck and from Ext. A1 wherefrom it appeared that there had been no past history suggestive of allergies, injuries, operations, diseases like rheumatic fever, syphilis etc. and the deceased having no other complaint due to operation, the impugned judgment cannot be sustained.

( 8 ) LIFE Insurance policy, it was submitted is a requirement of social security. In that view of the matter, a suppression could not have been led to repudiation of policy, particularly when the doctor who examined the insured was appointed by the respondent-Corporation itself. Our attention in this behalf has been drawn to t