IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NFO. 1731 OF 1981 SUIT NFO. 1731 OF 1981 SUIT NFO. 1731 OF 1981 Date of Decision : Date of Decision : Date of Decision : 17-10-2006 For Approval and Signature : For Approval and Signature : For Approval and Signature : The Honourable Mr. Justice S.K. Shah : The Honourable Mr. Justice S.K. Shah : The Honourable Mr. Justice S.K. Shah : 1. Whether Reporters of Local Papers 1. Whether Reporters of Local Papers 1. Whether Reporters of Local Papers may be allowed to see the Judgment? may be allowed to see the Judgment? may be allowed to see the Judgment? 2. To be referred to the Reporters or 2. To be referred to the Reporters or 2. To be referred to the Reporters or not? not? not? 3. Whether Their Lordships wish to see 3. Whether Their Lordships wish to see 3. Whether Their Lordships wish to see the fair copy of the Judgment? the fair copy of the Judgment? the fair copy of the Judgment? 4. Whether this case involves a 4. Whether this case involves a 4. Whether this case involves a substantial question of law as to substantial question of law as to substantial question of law as to the interpretation of the the interpretation of the the interpretation of the Constitution of India, 1950, or any Constitution of India, 1950, or any Constitution of India, 1950, or any Order made thereunder? Order made thereunder? Order made thereunder? 5. Whether it is to be circulated to 5. Whether it is to be circulated to 5. Whether it is to be circulated to the Civil Judges ? the Civil Judges ? the Civil Judges ? 6. Whether the case involves an 6. Whether the case involves an 6. Whether the case involves an important question of law and important question of law and important question of law and whether a copy of the Judgment whether a copy of the Judgment whether a copy of the Judgment should be sent to Nagpur, Goa and should be sent to Nagpur, Goa and should be sent to Nagpur, Goa and Aurangabad office? Aurangabad office? Aurangabad office? ***** ***** ***** IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1731 OF 1981 SUIT NO. 1731 OF 1981 SUIT NO. 1731 OF 1981 1A MOHAMMED ISHAQUE KHAN 1A MOHAMMED ISHAQUE KHAN 1A MOHAMMED ISHAQUE KHAN AGE 87 YRS.,OCCU.BUSINESS. AGE 87 YRS.,OCCU.BUSINESS. AGE 87 YRS.,OCCU.BUSINESS. 1B MR. SHAHZAMAN KHAN 1B MR. SHAHZAMAN KHAN 1B MR. SHAHZAMAN KHAN AGE 60 YRS., OCCU.BUSINESS. AGE 60 YRS., OCCU.BUSINESS. AGE 60 YRS., OCCU.BUSINESS. 1C MR. KHALIQUEUZ ZAMAN KHAN 1C MR. KHALIQUEUZ ZAMAN KHAN 1C MR. KHALIQUEUZ ZAMAN KHAN AGE 58 YRS., OCCU.BUSINESS. AGE 58 YRS., OCCU.BUSINESS. AGE 58 YRS., OCCU.BUSINESS. 1D MR. SHAHJEHAN KHAN 1D MR. SHAHJEHAN KHAN 1D MR. SHAHJEHAN KHAN AGE 41 YRS., OCCU.BUSINESS. AGE 41 YRS., OCCU.BUSINESS. AGE 41 YRS., OCCU.BUSINESS. 1E MR. AMIRUZZAMAN KHAN 1E MR. AMIRUZZAMAN KHAN 1E MR. AMIRUZZAMAN KHAN AGE 39 YRSL, OCCU.BUSINESS. AGE 39 YRSL, OCCU.BUSINESS. AGE 39 YRSL, OCCU.BUSINESS. 1F MR. LAIQUE KHAN 1F MR. LAIQUE KHAN 1F MR. LAIQUE KHAN AGE 33 YRS., OCCU.BUSINESS. AGE 33 YRS., OCCU.BUSINESS. AGE 33 YRS., OCCU.BUSINESS. 1G MR. BAIDUZZAMAN KHAN 1G MR. BAIDUZZAMAN KHAN 1G MR. BAIDUZZAMAN KHAN AGE 31 YRS., OCCU.BUSINESS. AGE 31 YRS., OCCU.BUSINESS. AGE 31 YRS., OCCU.BUSINESS. 2. NASIM AKHTAR WIDOW OF KHAN 2. NASIM AKHTAR WIDOW OF KHAN 2. NASIM AKHTAR WIDOW OF KHAN SAHEB ZAMAN KHAN OF BOMBAY, SAHEB ZAMAN KHAN OF BOMBAY, SAHEB ZAMAN KHAN OF BOMBAY, ADULT, RESIDING AT GULSHAH ADULT, RESIDING AT GULSHAH ADULT, RESIDING AT GULSHAH NAHAL, LADY JAMSHEDJI ROAD, NAHAL, LADY JAMSHEDJI ROAD, NAHAL, LADY JAMSHEDJI ROAD, MAHIM, BOMBAY -16. MAHIM, BOMBAY -16. MAHIM, BOMBAY -16. :3: 3. MOHAMED ZAMAN KHAN OF BOMBAY 3. MOHAMED ZAMAN KHAN OF BOMBAY 3. MOHAMED ZAMAN KHAN OF BOMBAY INDIAN INHABITANT, AGED 4.1/2 INDIAN INHABITANT, AGED 4.1/2 INDIAN INHABITANT, AGED 4.1/2 YEARS, MINOR THROUGH NEXT YEARS, MINOR THROUGH NEXT YEARS, MINOR THROUGH NEXT FRIEND PLAINTIFFNO.2., R/O. FRIEND PLAINTIFFNO.2., R/O. FRIEND PLAINTIFFNO.2., R/O. GULSHAN MAHAL, LADY JAMSHEDJI GULSHAN MAHAL, LADY JAMSHEDJI GULSHAN MAHAL, LADY JAMSHEDJI ROAD, MAHIM, BOMBAY -16. .. PLAINTIFFS. ROAD, MAHIM, BOMBAY -16. .. PLAINTIFFS. ROAD, MAHIM, BOMBAY -16. .. PLAINTIFFS. VERSUS VERSUS VERSUS LIFE INSURANCE CIORPORATION OF LIFE INSURANCE CIORPORATION OF LIFE INSURANCE CIORPORATION OF INDIA, A STATUTORY CORPORATION INDIA, A STATUTORY CORPORATION INDIA, A STATUTORY CORPORATION CONSTITUTED UNDER LIFE INSURANCE CONSTITUTED UNDER LIFE INSURANCE CONSTITUTED UNDER LIFE INSURANCE CORPORATION ACT, 1958, HAVING CORPORATION ACT, 1958, HAVING CORPORATION ACT, 1958, HAVING ITS CENTRAL OFFICE AT YOGAKSHEMA, ITS CENTRAL OFFICE AT YOGAKSHEMA, ITS CENTRAL OFFICE AT YOGAKSHEMA, JEEVEN BIMA MARG, BOMBAY 400 001. ...DEFENDANTS. JEEVEN BIMA MARG, BOMBAY 400 001. ...DEFENDANTS. JEEVEN BIMA MARG, BOMBAY 400 001. ...DEFENDANTS. MR. R.A.THORAT I/B. V.K.GUPTA FOR THE PLAINTIFFS. MR. R.A.THORAT I/B. V.K.GUPTA FOR THE PLAINTIFFS. MR. R.A.THORAT I/B. V.K.GUPTA FOR THE PLAINTIFFS. MR. V.Y.SANGLIKAR FOR THE DEFENDANTS. MR. V.Y.SANGLIKAR FOR THE DEFENDANTS. MR. V.Y.SANGLIKAR FOR THE DEFENDANTS. JUDGMENT RESERVED ON : 10-10-2006 JUDGMENT RESERVED ON : 10-10-2006 JUDGMENT RESERVED ON : 10-10-2006 JUDGMENT PRONOUNCED ON : JUDGMENT PRONOUNCED ON : JUDGMENT PRONOUNCED ON : 17-10-2006 CORAM : S.K.SHAH, J. CORAM : S.K.SHAH, J. CORAM : S.K.SHAH, J. JUDGMENT JUDGMENT JUDGMENT 1 The Plaintiffs have filed this Suit against 1 The Plaintiffs have filed this Suit against 1 The Plaintiffs have filed this Suit against the Life Insurance Corporation for recovery of assured the Life Insurance Corporation for recovery of assured the Life Insurance Corporation for recovery of assured sum of Rs. 1 lac, alongwith interest thereon. sum of Rs. 1 lac, alongwith interest thereon. sum of Rs. 1 lac, alongwith interest thereon. :4: 2. Khansaheb Zaman Mohamed Ishaq Khan was the 2. Khansaheb Zaman Mohamed Ishaq Khan was the 2. Khansaheb Zaman Mohamed Ishaq Khan was the insured under the insurance policy. He expired on insured under the insurance policy. He expired on insured under the insurance policy. He expired on 30th April, 1977. The original plaintiff Fatima 30th April, 1977. The original plaintiff Fatima 30th April, 1977. The original plaintiff Fatima Mohamed Ishaq Khan was his mother and the nominee for Mohamed Ishaq Khan was his mother and the nominee for Mohamed Ishaq Khan was his mother and the nominee for the insurance policy. After her death, Plaintiff Nos. the insurance policy. After her death, Plaintiff Nos. the insurance policy. After her death, Plaintiff Nos. 1A to 1G were brought on record as her legal heirs. 1A to 1G were brought on record as her legal heirs. 1A to 1G were brought on record as her legal heirs. Plaintiff No.2 is the widow of deceased and the Plaintiff No.2 is the widow of deceased and the Plaintiff No.2 is the widow of deceased and the Plaintiff NO.3 is the son of the deceased Khansaheb. Plaintiff NO.3 is the son of the deceased Khansaheb. Plaintiff NO.3 is the son of the deceased Khansaheb. 3. On 1st January, 1977 deceased Khansaheb Zaman 3. On 1st January, 1977 deceased Khansaheb Zaman 3. On 1st January, 1977 deceased Khansaheb Zaman had taken life insurance policy in the assured sum of had taken life insurance policy in the assured sum of had taken life insurance policy in the assured sum of Rs. 1 lac. He had paid the first yearly premium of Rs. 1 lac. He had paid the first yearly premium of Rs. 1 lac. He had paid the first yearly premium of Rs. 2440/- on the same day. After medical Rs. 2440/- on the same day. After medical Rs. 2440/- on the same day. After medical examination, the respondent - corporation issued the examination, the respondent - corporation issued the examination, the respondent - corporation issued the acceptance letter, dated 31.1.1977 and also issued the acceptance letter, dated 31.1.1977 and also issued the acceptance letter, dated 31.1.1977 and also issued the insurance policy bearing No. 47357671. insurance policy bearing No. 47357671. insurance policy bearing No. 47357671. 4. After the death of said Khansaheb Zaman on 4. After the death of said Khansaheb Zaman on 4. After the death of said Khansaheb Zaman on 30th April, 1977, the deceased Plaintiff No. 1, by 30th April, 1977, the deceased Plaintiff No. 1, by 30th April, 1977, the deceased Plaintiff No. 1, by her letter dated 15th May, 1977 informed the her letter dated 15th May, 1977 informed the her letter dated 15th May, 1977 informed the defendant- corporation about the death of the insured defendant- corporation about the death of the insured defendant- corporation about the death of the insured and requested the defendant -corporation to settle and requested the defendant -corporation to settle and requested the defendant -corporation to settle claim under the said policy. There was correspondence claim under the said policy. There was correspondence claim under the said policy. There was correspondence between the deceased Plaintiff No.1 and the between the deceased Plaintiff No.1 and the between the deceased Plaintiff No.1 and the corporation, with regard to furnishing the requisite corporation, with regard to furnishing the requisite corporation, with regard to furnishing the requisite information to LIC. By letter dated 31st July,1978, information to LIC. By letter dated 31st July,1978, information to LIC. By letter dated 31st July,1978, the defendant- corporation intimated the Plaintiff the defendant- corporation intimated the Plaintiff the defendant- corporation intimated the Plaintiff that their inquiries revealed that the deceased was that their inquiries revealed that the deceased was that their inquiries revealed that the deceased was :5: admitted to Tata Hospital and called upon the admitted to Tata Hospital and called upon the admitted to Tata Hospital and called upon the Plaintiffs to furnish the details of the ailment and Plaintiffs to furnish the details of the ailment and Plaintiffs to furnish the details of the ailment and the treatment taken by the deceased in Tata Hospital. the treatment taken by the deceased in Tata Hospital. the treatment taken by the deceased in Tata Hospital. Accordingly, the information was given. The defendant Accordingly, the information was given. The defendant Accordingly, the information was given. The defendant by their letter, dated 22nd November, 1978, however, by their letter, dated 22nd November, 1978, however, by their letter, dated 22nd November, 1978, however, repudiated Plaintiffs claim on the ground that the repudiated Plaintiffs claim on the ground that the repudiated Plaintiffs claim on the ground that the deceased had withheld correct information regarding deceased had withheld correct information regarding deceased had withheld correct information regarding his health at the time of applying for insurance and his health at the time of applying for insurance and his health at the time of applying for insurance and that deceased was suffering from malignant cechexia that deceased was suffering from malignant cechexia that deceased was suffering from malignant cechexia for which he had taken treatment in the hospital and for which he had taken treatment in the hospital and for which he had taken treatment in the hospital and he did not disclose the same although the deceased was he did not disclose the same although the deceased was he did not disclose the same although the deceased was bound to do so. In the said letter, the defendant bound to do so. In the said letter, the defendant bound to do so. In the said letter, the defendant also alleged that the Plaintiff was suffering from also alleged that the Plaintiff was suffering from also alleged that the Plaintiff was suffering from peptic ulcer and that fact was also not disclosed. peptic ulcer and that fact was also not disclosed. peptic ulcer and that fact was also not disclosed. 5. The Plaintiff therefore sent a notice dated 5. The Plaintiff therefore sent a notice dated 5. The Plaintiff therefore sent a notice dated 27th May, 1980 calling upon the defendants to pay the 27th May, 1980 calling upon the defendants to pay the 27th May, 1980 calling upon the defendants to pay the sum of Rs. 1 lac assured under the policy alongwith sum of Rs. 1 lac assured under the policy alongwith sum of Rs. 1 lac assured under the policy alongwith the interest @ 12 % per annum. The Plaintiffs alleged the interest @ 12 % per annum. The Plaintiffs alleged the interest @ 12 % per annum. The Plaintiffs alleged that the defendant unlawfully repudiated the claim of that the defendant unlawfully repudiated the claim of that the defendant unlawfully repudiated the claim of the Plaintiffs although the defendants received their the Plaintiffs although the defendants received their the Plaintiffs although the defendants received their advocate’s notice, the defendant did not pay the advocate’s notice, the defendant did not pay the advocate’s notice, the defendant did not pay the assured sum to the Plaintiffs, hence, they have filed assured sum to the Plaintiffs, hence, they have filed assured sum to the Plaintiffs, hence, they have filed this Suit. this Suit. this Suit. 6. The defendant-corporation resisted the suit by 6. The defendant-corporation resisted the suit by 6. The defendant-corporation resisted the suit by their Written Statement, dated 16th July, 1982. It is their Written Statement, dated 16th July, 1982. It is their Written Statement, dated 16th July, 1982. It is contended that since the death of the deceased had contended that since the death of the deceased had contended that since the death of the deceased had :6: occurred within a matter of about four months, they occurred within a matter of about four months, they occurred within a matter of about four months, they made enquiry about the same and it was found that the made enquiry about the same and it was found that the made enquiry about the same and it was found that the deceased was under treatment of doctors for several deceased was under treatment of doctors for several deceased was under treatment of doctors for several months prior to the proposal for insurance submitted months prior to the proposal for insurance submitted months prior to the proposal for insurance submitted by the deceased. Defendant -corporation contends that by the deceased. Defendant -corporation contends that by the deceased. Defendant -corporation contends that even during the period between the date of the even during the period between the date of the even during the period between the date of the proposal i.e. 8th January, 1977 and the date of proposal i.e. 8th January, 1977 and the date of proposal i.e. 8th January, 1977 and the date of payment of first premium on 31st January, 1977, the payment of first premium on 31st January, 1977, the payment of first premium on 31st January, 1977, the deceased had consulted doctors for his ailment and had deceased had consulted doctors for his ailment and had deceased had consulted doctors for his ailment and had been hospitalised and was treated for the diseases been hospitalised and was treated for the diseases been hospitalised and was treated for the diseases suffered by him. They further contend that their suffered by him. They further contend that their suffered by him. They further contend that their inquiry revealed that the deceased had history of inquiry revealed that the deceased had history of inquiry revealed that the deceased had history of Tuberculosis of bone with old abacess. The deceased Tuberculosis of bone with old abacess. The deceased Tuberculosis of bone with old abacess. The deceased was also suffering from peptic ulcer of the stomach was also suffering from peptic ulcer of the stomach was also suffering from peptic ulcer of the stomach for a long time before his death and he was suffering for a long time before his death and he was suffering for a long time before his death and he was suffering pains in the stomach, vomiting etc. The deceased was pains in the stomach, vomiting etc. The deceased was pains in the stomach, vomiting etc. The deceased was also suffering from lymphosarcoma of the stomach. also suffering from lymphosarcoma of the stomach. also suffering from lymphosarcoma of the stomach. They contend that the contract of insurance was They contend that the contract of insurance was They contend that the contract of insurance was expressly made on the basis of the statements made and expressly made on the basis of the statements made and expressly made on the basis of the statements made and information provided by the deceased in the proposal information provided by the deceased in the proposal information provided by the deceased in the proposal form. However, the deceased had suppressed material form. However, the deceased had suppressed material form. However, the deceased had suppressed material information with regard to his health and, therefore, information with regard to his health and, therefore, information with regard to his health and, therefore, the contract of insurance became void and thus, was the contract of insurance became void and thus, was the contract of insurance became void and thus, was legally and properly repudiated. they further contend legally and properly repudiated. they further contend legally and properly repudiated. they further contend that the cause of death of the deceased, as stated in that the cause of death of the deceased, as stated in that the cause of death of the deceased, as stated in the death certificate was shock due to haematemasis, the death certificate was shock due to haematemasis, the death certificate was shock due to haematemasis, malignant cechexia due to lymphosarcoma of stomach. malignant cechexia due to lymphosarcoma of stomach. malignant cechexia due to lymphosarcoma of stomach. As such, their contention is that the Suit be As such, their contention is that the Suit be As such, their contention is that the Suit be :7: dismissed. dismissed. dismissed. 7. In view of the rival pleadings of the parties, 7. In view of the rival pleadings of the parties, 7. In view of the rival pleadings of the parties, following issues are framed against each of them I following issues are framed against each of them I following issues are framed against each of them I record my findings for the reasons given below:- record my findings for the reasons given below:- record my findings for the reasons given below:- ISSUES FINDINGS. ISSUES FINDINGS. ISSUES FINDINGS. 1. Whether the Defendants prove (1) In negative 1. Whether the Defendants prove (1) In negative 1. Whether the Defendants prove (1) In negative that the Suit is bad for that the Suit is bad for that the Suit is bad for misjoinder of parties ? misjoinder of parties ? misjoinder of parties ? 2. Whether the Defendants prove (2)In affirmative. 2. Whether the Defendants prove (2)In affirmative. 2. Whether the Defendants prove (2)In affirmative. that the deceased was that the deceased was that the deceased was suffering from T.B. of Bone, suffering from T.B. of Bone, suffering from T.B. of Bone, peptic ulcer and peptic ulcer and peptic ulcer and Lymphosarcoma of stomach Lymphosarcoma of stomach Lymphosarcoma of stomach before the date of proposal before the date of proposal before the date of proposal as alleged in paragraph 6 of as alleged in paragraph 6 of as alleged in paragraph 6 of the written statement? the written statement? the written statement? 3. Whether the Defendants prove (3)In affirmative. 3. Whether the Defendants prove (3)In affirmative. 3. Whether the Defendants prove (3)In affirmative. that the deceased made that the deceased made that the deceased made factually incorrect factually incorrect factually incorrect statements in the proposal statements in the proposal statements in the proposal form and declaration as form and declaration as form and declaration as alleged in paragraph 6 of the alleged in paragraph 6 of the alleged in paragraph 6 of the :8: written statement? written statement? written statement? 4. Whether the defendants prove (4)In affirmative. 4. Whether the defendants prove (4)In affirmative. 4. Whether the defendants prove (4)In affirmative. that the conditions printed that the conditions printed that the conditions printed on the reverse of the letter on the reverse of the letter on the reverse of the letter dated 31.1.1977 constitute dated 31.1.1977 constitute dated 31.1.1977 constitute terms of the contract ? terms of the contract ? terms of the contract ? 5. Whether the Plaintiffs are (5) No. 5. Whether the Plaintiffs are (5) No. 5. Whether the Plaintiffs are (5) No. entitled to the decree for entitled to the decree for entitled to the decree for the amount of Rs. 1,00,000/- the amount of Rs. 1,00,000/- the amount of Rs. 1,00,000/- assured under the Policy assured under the Policy assured under the Policy No.47357671 together with No.47357671 together with No.47357671 together with interest at the rate of 12 % interest at the rate of 12 % interest at the rate of 12 % per annum? per annum? per annum? 6. What Order and What decree ? (6)Suit dismissed 6. What Order and What decree ? (6)Suit dismissed 6. What Order and What decree ? (6)Suit dismissed with costs. with costs. with costs. R E A S O N S. R E A S O N S. R E A S O N S. AS TO ISSUE NO.1. AS TO ISSUE NO.1. AS TO ISSUE NO.1. 8. It is the contention of the defendants that 8. It is the contention of the defendants that 8. It is the contention of the defendants that the Suit is bad for misjoinder of the parties. The the Suit is bad for misjoinder of the parties. The the Suit is bad for misjoinder of the parties. The submission is that the Plaintiffs who were added as submission is that the Plaintiffs who were added as submission is that the Plaintiffs who were added as :9: Plaintiff Nos. 1A to 1G are not entitled to claim Plaintiff Nos. 1A to 1G are not entitled to claim Plaintiff Nos. 1A to 1G are not entitled to claim anything in the amount of the policy, that could be anything in the amount of the policy, that could be anything in the amount of the policy, that could be paid only to the widow of the deceased, Plaintiff No.2 paid only to the widow of the deceased, Plaintiff No.2 paid only to the widow of the deceased, Plaintiff No.2 and her minor son Plaintiff No.3. However, it has to and her minor son Plaintiff No.3. However, it has to and her minor son Plaintiff No.3. However, it has to be noted that original Plaintiff No.1 was the mother be noted that original Plaintiff No.1 was the mother be noted that original Plaintiff No.1 was the mother of the deceased and she was the nominee. The of the deceased and she was the nominee. The of the deceased and she was the nominee. The Plaintiff No.1A to 1G are brought on record as legal Plaintiff No.1A to 1G are brought on record as legal Plaintiff No.1A to 1G are brought on record as legal representatives of the original Plaintiff No.1 and to representatives of the original Plaintiff No.1 and to representatives of the original Plaintiff No.1 and to that limited extent. As such, the suit cannot be said that limited extent. As such, the suit cannot be said that limited extent. As such, the suit cannot be said to be bad for misjoinder of the parties. This issue, to be bad for misjoinder of the parties. This issue, to be bad for misjoinder of the parties. This issue, therefore, is answered in the negative. therefore, is answered in the negative. therefore, is answered in the negative. AS TO ISSUE NOS. 2,3 AND 4.: AS TO ISSUE NOS. 2,3 AND 4.: AS TO ISSUE NOS. 2,3 AND 4.: 9.