Mariya Umma V. The Oriental Government Security Life Assurance Co., Ltd.

1955 Present : Gratiaen, J., and Fernando, J.

MARIYA UMMA, Appellant, and THE ORIENTAL GOVERNMENT SECURITY
LIFE ASSURANCE CO., LTD., Respondent

S. C. 278-D. C. Colombo, 23,590

Insurance-Contract of life insurance-Repudiation of liability by insurer-Vagueness of allegations against deceased insured-Framing of issues -Duty of Court to clarify issues-Civil Procedure Code, ss. 77, 146-Proposal Form-Questions appearing therein-Truth of answers-Tests to ascertain it.

(i) The insurer in a contract of life insurance, on being sued for the recovery of Rs. 30,000 due under the policy of insurance, filed answer repudiating liability in general terms alleging that the insured had withheld material information concerning the state of his health. Although the answer was defective for want of precise information as to the grounds on which liability was repudiated, it was not returned for amendment under Section 77 of the Civil Procedure Code. At the same time, the plaintiff, who was the administratrix of the estate of the deceased insured, failed to serve interrogatories on the insurer for the purpose of obtaining clarification of the allegations made against the deceased.

Held, that in the circumstances Section 146 of the Civil Procedure Code imposed a special duty on the Judge himself to order the defence to furnish full particulars of its grounds for avoiding liability, and the issues for adjudication should only have been framed after the Judge had ascertained for himself " the propositions of fact or of law " upon which the parties were at variance.

(ii) In the absence of provision to the contrary expressed in the clearest possible terms, a person making a proposal for life insurance is entitled to assume that insurance Companies do not require information frivolously or through pure inquisitiveness on matters which have no conceivable relevancy to the risk which they are invited to undertake. Therefore, in a country like Ceylon where perfectly healthy persons occasionally " suffer " from slight indispositions of brief duration, loosely described as " influenza ", an applicant for insurance cannot be deemed to have given untrue or incorrect information if, although he had once had a mild attack of " influenza " which was speedily cured by a few doses of mixture, he answered in the negative the following questions addressed to him in the proposal form :-

"1. Have you ever suffered from any of the following ailments-typhoid, influenza, filariasis, elephantiasis of leg or scrotum, kala-azar, blackwater or any other fever ?

2. 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 state names and addresses of medical men consulted. "

If the words of a question appearing in the proposal form are ambiguous, they must be construed contra proferentes and in favour of the assured.

(iii) One ground on which the insurance Company repudiated liability on the policy was that the insured had given untrue and incorrect answers to the printed questions in the proposal form when those answers would form the " basis of the contract ". The printed questions were, however, addressed

to the deceased in the English language which he could not understand. They were interpreted by the Company's agent in Malayalam, and the answers given in Malayalam were then translated into English by the Company's agent.

Held, that in the circumstances the Company could not succeed without proof that the questions and the impugned answers were correctly interpreted and recorded by the Company's agent.

APPEAL from a judgment of the District Court, Colombo.

C. Thiagalingam, Q.C., with N. Nadarasa, S. Sharvananda and T. Parathalingam, for the plaintiff appellant.

H. V. Perera, Q.C., with S. Nadesan, Q.C., S. J. Kadirgamar and J. de Saram, for the

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