The central legal point established in the judgment is the application of S.45 of the Insurance Act, 1938, which allows the insurer to repudiate a policy if the insured suppresses material facts or makes misrepresentation in the proposal form regarding their health.

Defendant in O.S. No. 504 of 1982 on the file of the Sub Court, Kottayam is the appellant. Suit is for realisation of money under the two Insurance Policies. The Court below passed a decree in favour of plaintiff for realisation of amounts covered by Exts.B10 and B13 policies, amounting to Rs. 75,000/- with its bonus up to the date of death of the insured, together with interest till date of payment.

2. Plaintiff is the widow of one Punnen Kuruvilla, who was the proprietor of Everest Umbrella Mart, Kottayam. He died on 6-8-1981. He had taken an anticipated Endowment Assurance Policy No. 40965943 with the defendant Insurance Corporation for a sum of Rs. 40,000 /- for 15 years. He paid premia for the Policy for 6 years till his death. Plaintiff was nominated in the said Policy by deceased Punnen Kuruvilla. The first 20% anticipated amount of Rs. 8,000 /- was due on 17-10-1980 and was received by the assured. Irrespective of the amount received, the deceased was entitled to receive the whole sum of Rs. 40,000 /- assured under the policy with bonus amounting to Rs. 5,824/-. Accordingly, a total amount of Rs. 45,824/- became payable to plaintiff on the death of the assured. Punnen Kuruvilla had also taken another policy with the defendant, under policy No. 41206371 on 14-11-1980 for Rs. 35,000/-. 20% of the said amount being payable on every 4 years. Plaintiff was the nominee in that policy also. An amount of Rs. 35,000/- also became payable to the nominee on the death of Punnen Kuruvilla in respect of that policy. In spite of demands made by plaintiff, defendant did not pay the amount. This, in short, is the plaintiffs case.

3. In the written statement, defendant contended that though it was true that Punnen Kuruvilla gave a proposal to insure him for Rs. 40,000 /- on 15-9-1975 and issued him Policy No. 40965943, the policy lapsed due to non-payment of premia on 17-4-1979. Deceased applied for revival of policy and submitted a personal statement regarding health on 17-3-1980. On the basis of the statements, declaration and answers given by the deceased and believing them to be true, the defendant revived the policy. On the basis of the answers given in the proposal statement for the other policy and based on the declaration contained, the defendant insured the deceased under Policy No. 41206371 on 20-5-1981 commencing from 14-11-1980. The nomination of the plaintiff is admitted. Since the claim arose within a short period, defendant conducted investigation and it was revealed that Punnen Kuruvilla was suffering from diabetes even prior to the proposal made on 15-9-1975 and that he used to consume alcohol. The assured had given false answers to vital questions regarding his health in the personal statement in the proposal forms and revival application. As the particulars furnished therein are found incorrect, the contract became null and void and the amounts already paid stood forfeited to the Corporation. The claim was repudiated based on the above allegations.

4. On a consideration of the evidence in the case, the Court below found that it has not been established that the assured had suppressed material facts by making false statements regarding his health and that therefore Exts. B10 and B13 are valid policies. In that view of the matter, the Court below passed a decree in favour of plaintiff as prayed for.

5. In this appeal, learned counsel for appellant has challenged the finding of the Court below. Before dealing with the contentions raised by learned counsel on both sides, it would be profitable to refer to S.45 of the Insurance Act, 1938 (hereinafter referred to as 'the Act' for short) insofar as it is relevant to this case:

"No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it