Emjay Insurance Co. Ltd. V. James Perera

1957 Present : H. N. G. Fernando, J., and T. S. Fernando, J.

EMJAY INSURANCE CO., LTD., Appellant, and JAMES PERERA,
Respondent

S.C.513-D.C.Colombo, 29,431/M

    Evidence-" Admission "-No requirement that it should be adverse to the person who made it-Statement made by a deceased person-Admissibility as admission against representative in interest-Contract of life insurance-Adminiatrator'3 position as representative in interest of deceased policy holder-Evidence Ordinance, ss.17,18,21,32.

A statement, in order to be an "admission ", need not be "adverse " to the person making it. Section 17 of the Evidence Ordinance makes it clear that the only characteristics which a statement must possess in order to constitute it an admission are (1) that it suggests an inference as to a relevant fact or a fact in issue, and (2) that it must be made by one of the persons and in the circumstances hereinafter mentioned "; The following sections contain no reference to the need that the statement should be adverse to or against the interest of the maker, and section 21 permits all admissions to be proved as against the maker or his representative in interest.

Sections 17 to 21 and section 32 respectively of the Evidence Ordinance constitute independent heads of admissibility in regard to the reception of statements of deceased persons; the conditions set out in section 32 do not have to be fulfilled in the case of such statements which are within the terms of sections 18 and 21.

An insurance company sought to repudiate a claim made by the administrator of the estate of a deceased holder of a policy of life insurance on the ground that the deceased had made a false or incorrect declaration, being of the basis of the contract, as to the state of his health at the time of the declaration.

Held, that a statement made by the deceased subsequently, but to the effect that he had been suffering from certain symptoms at or about the time of the declaration, was an admission" provable under sections 18 and 21 of the Evidence Ordinance.

APPEAL from a judgment of the District Court, Colombo.

lvor Misso, with N. C. J. Rustomjee and N. W. Dissanayake, for the defendant -appellant.

Kingsley Herat, with Stanley Perera, S. D. Jayasundere and A. B. Walgampaya, for the plaintiff-respondent.

Cur. adv. vult.

August 2, 1957. H. N. G. FERNANDO, J.-

The plaintiff is the administrator of the deceased holder of a policy of life insurance. His claim on the police has been resisted on the ground that the deceased had on 31st January 1950 made a false or incorrect declaration, being of the basis of the contract, as to the state of his health, in an application for reinstatement of the policy which had lapsed I. short time before. The position of the insurance company was, in brief,

that the deceased was suffering from tuberculosis at the time of the declaration, and it is not disputed that the plaintiff's action had to fail if this allegation was proved.

The company relied on evidence proving that the deceased was admitted to the Welisara Chest Hospital on April 4th 1950 'with symptoms of tuberculosis, that he was treated for that disease thereafter and that he died of tuberculosis at the Chest Hospital in May 1953. This evidence by itself raised an inference that he might have been suffering from the disease prior to the time of admission, but was insufficient to prove that he had contracted the disease on or before January 31st 1950. But the company also relied on a statement alleged to have been made to the admitting clerk by the deceased on the day of his admission to the hospital. In answer to questions put by the admitting clerk, the deceased had stated his symptoms to be malaise, loss of strength, cough and night sweats, and had stated further that the duration of these symptoms since the first onset had been six months. In the context of the other prove1 fact

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