Requirement of proper proof to sustain the liability.

This is an appeal against a judgment of the Additional Subordinate Judge of Coimbatore dismissing with costs a suit filed by Kullammal, widow of one Subbiah Chettiar, against the Oriental Life Assurance Company, Limited, for the recovery of Rs. 52,750 on an endowment policy for Rs. 50,000 with profits for 20 years taken out by her husband on 27th June, 1945. Subbiah Chettiar assigned the policy to his wife. He paid the first premium of Rs. 3,540-10-0 on 27th June, 1946. He also paid the second year’s premium in July, 1946, and then died on 27th July, 1945, in a Nursing Home after an accident necessitating an operation to his thigh. The extract from the Death Register shows that the death was due to haemoptysis cellubitis of the thigh. The evidence of his son Sanjeevi Chettiar (P.W. 1) who was 20 years old at the time of his father’s death that the injury to his thigh became septic, and that he died after an operation in a Nursing Home is not disputed. Pending appeal, the widow Kullammal died and her sons have been brought on record as her legal representatives.

The Insurance Company repudiated liability on the ground that Subbiah Chettiar gave false and inaccurate answers to some questions in the proposal for insurance Ex. B-1 and in the personal statements Exs. B-2 and B-3 made before the Company doctors to the. effect that he had no previous ailment, sickness or disease and had never consulted a medical practitioner. This repudiation is contained in a letter Ex. A-5, dated 7th July, 1945, from the Insurance Company stating that they had indisputable proof to show that the deceased suffered from gastric trouble (gastro-enteritis) about a couple of months before the insurance proposal, and had also suffered from bronchitis just about the time of the proposal and before the acceptance letter was issued on 16th July, 1945. The nature of the proof held by the Insurance Company was nowhere indicated. After the issue of a lawyer’s notice Ex. A-3, this suit was filed in September, 1947. The written statement proceeded in substance on the lines of the letter of repudiation Ex. A-5 and contended that Subbiah Chettiar had given untrue answers to the following questions, all answered in the negative:-

1.Q. No. 13 in the. proposal for insurance: Have you within the past five years consulted any medical man for any ailment not necessarily confining you to your house? If so, give details and tate names and addresses of medical men consulted.

A. No.

2. In his personal statements Exhibits B-2 and B-3 before the doctors:

Q. 5(a): Have you suffered from any of the following ailments? If so when and for how long?

A. No.

(1) Cough, shortness of breath, palpitation, asthma, pneumonia, pleurisy, consumption or any other disease of the chest?

A. No.

Q. 5(c): Any other illness, accident or injury whether considered by you to be important or not.

A. No

Q. 12(b)(1): When last were you under medical treatment?

(2) For what ailment and how long?

A. No.

According to the written statement, the deceased wrote ‘no’ in answer to all these questions, and it was on this footing that the legal position was adopted for the company that in the declarations made by the assured in the proposal for the assurance Ex. B.-1 all the answers given by him and to be given by him at the medical examinations shall be the basis of the contract between him and the company and that “if any untrue averments be therein contained, all moneys which shall have been paid up on account of the said assurance shall be forfeited and the assurance itself should be absolutely null and void.”

On the basis, therefore, that Subbiah Chettiar was irrevocably bound by every answer in Exs. B-1, B-2, and B-3, the Insurance Company merely examined one witness a Dr. Panikkar, who deposed that he treated Subbiah Chettiar at Tiruppur from 7th April, 1945 to 17th April, 1945, for gastric trouble, which seems to be on his own showing mere diarrhoea, and from 5th June, 1945 to 15th June, 1945, for bronchitis