In a life insurance contract, the insurer has the burden of proving that the insured fraudulently suppressed material facts in order to avoid the contract under S. 45 of the Insurance Act, 1938.

( 1 ) THIS appeal is directed against the judgment and decree D/- 29-10-93 in Civil Suit No. 82-A/89 by VIIIth Additional District Judge, Jabalpur, whereby the claim of plaintiff/respondent for recovery of amount of Rs. 20,425/- of the policy of insurance of his deceased wife, as well as notice charges was allowed and his suit was decreed.

( 2 ) THE facts no longer in dispute are that, the plaintiff's wife Smt. Manwati Bai was insured by the appellant/defendant for a sum of Rupees 20,000/- on 15-10-1986. The premium thereof was to be paid @ Rs. 1,334/- annually. As against the said policy, two premiums had been paid to the appellant/defendant. Smt. Manwati Bai died on 7-12-1987, i. e. , after about one year and two months, after she was insured. The plaintiff/respondent had given to the defendant/appellant information regarding death of his wife. He had thereafter also filled up the claim form and had also submitted necessary documents for payment of amount of insurance to him. The appellant/defendant however refused to pay the claim under S. 45 of the Insurance Act 1938, on the ground that the material facts regarding the illness of Manwati Bai was suppressed at the time of filling up of questionnaire.

( 3 ) AVERMENTS of the plaintiff/appellant were that since the defendant/appellant refused to make the payment of claim by their letter D/- 3-3-89 (Ex. P/5-A); plaintiff/respondent served it notice D/- 21-3-89 (Ex. P/6 ). Thereafter, the plaintiff filed suit for recovery of policy amount, as he was the nominee in the policy of insurance of his wife. It was also alleged by the plaintiff/respondent that the defendant/appellant has wrongfully refused to make payment of amount of policy. He had therefore claimed the amount of insurance as also the notice charges.

( 4 ) THE defendant/appellant in its written statement has averred that Smt. Manwati Bai at the time of filling the proposal form had suppressed material fact of her illness and made wrong statement regarding her state of health. It was averred by the defendant/appellant that she was suffering from pulmonary tuberculosis since 1985 and was under treatment. Manwati Bai was also receiving treatment for anaemia, weakness and loss of appetite and was referred to Medical College Hospital, Jabalpur where Dr. B. M. Arora diagnosed that she was suffering from blood cancer. It has therefore been averred that, in view of the material suppression and fraudulent concealment as above, the contract of insurance was hit by the provisions of S. 45 of the Insurance Act. Therefore, the defendant/appellant could repudiate the policy of insurance and the plaintiff/respondent was therefore not entitled to get any amount under the policy. It was therefore prayed by the defendant/appellant that the suit of the defendant/respondent be dismissed.

( 5 ) THE learned trial Court framed issues as to whether the insured Manwati Bai was suffering from pulmonary tuberculosis in the year 1985 and had fraudulently and deliberately suppressed the above fact in not truly answering the questions Nos. 17-A and 18-A of the proposal form and if so, whether the contract of insurance was hit by S. 45 of the Insurance Act. The issues regarding the plaintiff/respondent being the legal heir of deceased Manwati bai and wrongful refusal of claim by the plaintiff/respondent were also framed.

( 6 ) THE learned trial Court found that it was defendant/appellant could not prove that the insured Smt. Manwati Bai suffered from pulmonary tuberculosis in the year 1985 and it was further held that there was no fraudulent or deliberate suppression of facts by Manwati Bai, regarding her ailment. It was therefore held by the learned trial Court that the contract of insurance was not hit by S. 45 of the Insurance Act. It was also held that the plaintiff/respondent was the legal heir of deceased insured Manwati Bai. It was also found that the defendant/appellant had wrongfully refused to pay to the plaintiff/respond