The main legal point established in the judgment is that under Section 45 of the Insurance Act, a policy of life insurance cannot be called into question on the ground of misstatement after two years unless the insurer proves that the statement was on a material matter, suppressed facts, and was fraudulently made by the policy-holder.

R. N. BISWAL, J.

( 1 ) LATE Surendra Sethi, the husband of the petitioner who was serving as a Gate Keeper in S. E. Railway, balasore, (Kharagpur Division) assured his life fnr Rs 50,000/- (Fiftythousand only)under Opp. Party No. 1, with effect from 28-12-1994 vide Policy No. 580885 328, which was to mature on 28-12-2009, wherein the petitioner was shown as nominee. He went on depositing the premium of Rs. 2260/-till his death, on 13-4-1996, due to cardiac vascular arrest and Hemiplegia. The petitioner made several representations to the opp. parties for settlement of the assured value of the L. I. C. policy undertaken by deceased husband, but to no effect. Ultimately she served a notice on opp. party No. 2. through her advocate on 22-2-1997, in response to which he sought for some documents with intention to delay the matter. So she filed the writ petition to direct the opp. parties to release the assured amount in her favour.

( 2 ) IN their counter affidavit opp. parties 1 to 3 contended that the writ petition should be dismissed inasmuch as the deceased suppressed the facts of his physical deformity, actual age and the medical leave, which he availed prior to taking the policy, besides answering to question Nos. 17 to 22 of the proposal form falsely, in negative. Had he disclosed the fact of availing medical leave, his physical deformity and actual age and answered question Nos. 17 to 22 of the proposal form correctly, the proposal would not have been accepted. It is the further case of the opp. parties that since the policy is a pure contract between the policy holder and the L. I. C. , the relief sought for cannot be enforced in a writ forum. Hence they prayed to dismiss the writ petition. Opp. party No. 4 in a separate counter affidavit averred that late Surendra Sethi before his death held one of the safety category posts which is only held by a person with sound physique after being duly certified as such by the Government doctor. So there was no question of any physical deformity of the life assured. However, basing on his service record, opp. party No. 4 gave details of his leave/absence/sick period as follows: 1) 24-5-1992 to 3-6-1992 -9 days sick leave 2) 11-1-1993 to 24-1-1993 -14 days sick leave 3) 6-6-1993 to 20-6-1993 -15 days leave 4) 15-8- 1993 to 9-9- 1993 -5 days leave 5) 1-9- 1993 to 9-9- 1993 9 days leave 6) 2-4- 1995 to 25-4- 1995 -sick commuted leave 24 x 2 = 48 days. 7) 26-4- 1995 to 17-5- 1995 -22 days sick leave 8) 14-2-1996to 15-2-1996 -2 days absent 9) 26-3- 1996 to 30-3- 1996 -5 days leave 10) 31-3-1996to 12-4-1996-13 days sick. Opp. Party No. 4 contended that the railways being no way responsible for non-disbursement of the assured money, if any, in favour of the petitioner, the case is liable to be dismissed against him.

( 3 ) LEARNED counsel appearing for opp. party Nos. 1 to 3 submitted that since the l. I. C. policy was a contract between the policy holder and the Corporation, the dispute cannot be decided in a writ forum. In support of his submission he relied upon the decision in State of Bihar and others v. Jain Plastics and Chemicals Ltd. , AIR 2002 sc 206. In this case the appellant invited tender for supply of P. V. C. pipes and fittings and the tender of the respondent-Company was accepted. Respondent-Company delayed the supplies for which appellant terminated the contract and purchased fittings at a higher price. While paying the final bill to the respondent, the difference of amount, which required to be incurred by the appellant, was deducted. It was pleaded on behalf of the respondent-Company that since the appellant did not supply the road permits, the respondent could not supply the p. V. C. pipes and fittings in time. The question was whether non-supply of road permits by the appellant would justify the breach of contract. by the respondent? Since it would depend upon facts and evidence, it was held in the said decision that the writ petition was not maintainable. The writ ju