Misrepresentation of age does not invalidate a life insurance policy when premiums are accepted for years without dispute.

ORAL JUDGMENT

1. On 24.2.2004, while admitting present second appeal on the following substantial questions of law, this Court has also passed order in CA No.965 of 2002, which reads as under:-

“Second Appeal NO.10 of 2002 Heard Mr.A.K.Clerk, learned advocate for the appellant.

2. In this second appeal, following substantial questions of law are involved:

(I) Whether both the courts below have erred in holding that the agent, who filled in the proposal form for the assured acting as the agent of the appellant Corporation and not as the agent of the insured?

(II) Whether both the courts below have erred in holding the appellant Corporation liable under the contract of insurance, when the contract of insurance is contract uberrima fides and the assured having furnished false information as regards his age on the date of the proposal?

(iii) Whether the plaintiff can take advantage of the incorrect information furnished in the proposal by the deceased insured? Appeal is admitted.

CIVIL APPLICATION NO.965 OF 2002.

1. Heard Mr.A.K.Clerk, learned advocate for the applicant.

THE HIGH COURT

2. Rule, returnable on 16/3/2004.

3. Mr.M.P.Prajapati, learned advocate appears for the opponents respondents and waives service and accepts notice of rule.

4 On applicant depositing the entire decretal amount together with cost and interest within 2 weeks from today, the execution / operation of the impugned decree shall remain stayed till further orders.”

2. Pursuant to above order, the appellant has deposed decretal amount before the learned trial Court.

3. Present second appeal filed u/s 100 of the CPC is directed against the concurrent findings arrived at by the learned trial Court in Regular Civil Suit No.69 of 1993, whereby the suit filed by the respondents has been decreed vide order dated 11.9.1997 in their favour to the tune that the respondents are entitled to receive Rs.27,000/- from the appellant at 18% compounding interest along with cost. Said judgment and order is approved and confirmed by the learned appellate Court vide order dated 2.1.2001 passed in RCA No.112 of 1998.

4. For the sake of convenience, parties to the proceedings are referred to as per their original status before the learned trial Court.

5. The facts gathered from the pleadings are as under:-

5.1 The respondent/orig. plaintiffs have filed suit against the appellant/orig. defendant for getting the amount of Rs. 27,000/-. The plaintiffs have stated that Haribhai Hirabhai expired on dated 31/8 89: that Haribhai Hirabhai was husband of plaintiff No. 1 and father of plaintiffs Nos.2 & 3; that deceased Haribhai Hirabhai had taken Insurance policy from the defendant on dated 15/9/83; that policy was sanctioned; that defendant had issued policy bearing No. 49690234; that deceased Haribhai had taken Insurance of Rs. 12,000/-; that said insurance was taken on dated 29/9/83; that deceased had paid premium upto his death; that on dated 31/8/89, the deceased has gone in the sim of village Mahervada for grazing cattle; that deceased was grazing cattle, at that time. he came with the contact electric wire; that said wire was in live condition; that electric current was passing from said wire; that due to said Accident, Haribhai Hirabhai was expired; that said accident occurred on dared 31/8/89; that Police has registered the offence vide accident No 15/89 u/s 174 of IPC that Police had also done inquest Panchnama and recorded the statement of the Helper and also done Post-mortem of Haribhai Hirabhai. The plaintiff has stated that after the date of Haribhai Hirabhai, they have done correspondence with the defendant to give the amount of the policy: that