1 S.B.CIVIL FIRST APPEAL NO.690/2009. Chairman, L.I.C. of India & Ors. VERSUS Smt.Nirmala Sharma. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL FIRST APPEAL NO.690/2009. Chairman, Life Insurance Corporation of India and Others. VERSUS Smt.Nirmala Sharma. 05.04.2010. HON'BLE MR.JUSTICE DALIP SINGH Mr.Ravindra Kumar Soni, for the appellant. ***** Heard learned counsel for the appellant. This is an appeal by the defendant Life Insurance Corporation of India who had issued a policy under “Own Your House Scheme” for an amount of Rs.50,000/- on 27.03.1991 to the deceased Ravindra Kumar Sharma, husband of the plaintiff-respondent. The husband of the plaintiff who had taken the policy died on 24.05.1997 though the policy was to mature on 28.04.2006. Upon the death of the husband of the plaintiff, the plaintiff applied for the insured amount of Rs.50,000/- as well as Rs.18,000/- as interest accrued thereon for the period from 1991 to 1997. The defendant-appellant refused to honour the claim of the plaintiff on the ground that Insured i.e. the husband of the plaintiff had failed to disclose that he was suffering from certain ailments on account of which the Insurance Corporation-appellant was liable to forfeit the amount and refuse to honour its commitment. 2 S.B.CIVIL FIRST APPEAL NO.690/2009. Chairman, L.I.C. of India & Ors. VERSUS Smt.Nirmala Sharma. As a result thereof the plaintiff-respondent, the widow of the Insured, filed the present suit against the appellant-Corporation for the payment of aforesaid amount with interest. The defendant raised the same plea regarding non-disclosure of the correct facts at the time of taking of policy in the proposal form and also at the time when the Insured had failed to deposit the premium and subsequently renewed the policy along with the declaration of health forms which were required to be submitted at the time of revival of the policy as a result of the default in payment of premium. The learned trial court framed the following issues:- “1. È या पािलसी सं. 190284579 के िलए बीमाधारȣ ने वाद पऽ कȧ चरण सं. 5 मɅ वǔण[त अनुसार गंभीर बीमाǐरयɉ को िछपा कर ः वाः Ø य के संबंध मɅ स× य कथन नहȣं Ǒकया, अत: पोिलसी शूÛ य हो गई? ----- ूितवादȣ 2. È या वाǑदनी अपने पित कȧ पोिलसी सं.190284379 के बदले 50,000 Ǿपए एवं Þ याज के 18,000/- Ǿपए ूाÜ त करने कȧ अिधकारȣ है? ----- वादȣ 3. È या जवाबदावा कȧ चरण सं.1 व 2 मɅ वǔण[त अनुसार वाद िनरः त योÊ य है? ----- ूितवादȣ 4. È या Û यायशुã क पूरȣ पेश नहȣं हई है ु ? ----- ूितवादȣ 5. È या वाद पऽ अविध से परे है? ----- ूितवादȣ 6 अनुतोष" The burden of the Issues No.1 and 3 was upon the defendant. Since the defendant failed to discharge the 3 S.B.CIVIL FIRST APPEAL NO.690/2009. Chairman, L.I.C. of India & Ors. VERSUS Smt.Nirmala Sharma. burden on issues No.1 and 3, they were decided against the defendant-appellant and the suit of the plaintiff was decreed on the basis of the findings on Issue No.2. Hence, this appeal by the appellant- Corporation. Learned counsel for the appellant-Corporation during the course of hearing submitted that the defendant-appellant Insurance Corporation was not liable to honour its commitment on account of the fact that Insured had not given the correct declaration with regard to the ailments which he was suffering from at the time of taking the policy and at the time of submitting the revival application on account of default in payment of premium. I have heard learned counsel for the appellant and perused the judgment impugned dated 10.12.2007 passed by the learned trial court. I find from the judgment that the learned trial court has specifically recorded the fact that the defendant failed to produce cogent evidence in support of their plea. The learned trial court has categorically recorded that the proposal form which was filled in by the Insured-husband of the plaintiff-respondent in the year 1991 has not been produced. This fact is not in dispute since the defendant failed to produce the proposal form it is not evident as to what were the contents of the said form filled in by the Insured. In the absence of the said form, it cannot be presumed that 4 S.B.CIVIL FIRST APPEAL NO.690/2009. Chairman, L.I.C. of India & Ors. VERSUS Smt.Nirmala Sharma. the Insured failed to disclose true and correct facts regarding his state of health and the various aliments, if any, from which he was suffering. These were the facts and evidence was within the special knowledge of the defendants themselves and the said evidence was in power and possession of the defendants which they failed to produce. The burden of issue Nos.1 and 3 was also upon the defendants and the these issues were based upon the pleadings of the defendants themselves. It was, therefore, the duty of the defendants to have produced the aforesaid piece of evidence which was in their power and possession. In the absence of the said evidence the learned trial court has rightly held that the defendants failed to prove that at the time of submitting of the proposal form, the deceased failed to disclose as to whether or not he was suffering from any ailment. In view of the above, it cannot be held that the learned trial court has committed any error in coming to the aforesaid finding against the defendant-appellant. So far as the submission of the learned counsel for the appellant with regard to the revival form being submitted from time to time on account of default in payment of premium is concerned, the learned trial court has clearly stated that the deceased had not indicated any illness in the declaration of health forms (Exhibit A-3 and Exhibit A-4) filled in by the deceased in the year 1993 and 1994. The learned trial court on the basis of the evidence which was produced by the parties came to the conclusion that at the relevant 5 S.B.CIVIL FIRST APPEAL NO.690/2009. Chairman, L.I.C. of India & Ors. VERSUS Smt.Nirmala Sharma. time in the year 1993 and 1994, there was no apparent ailment from which the deceased Insured was suffering. From the evidence which came on record it was clear that for the first time in the year 1996 the deceased Insured came to know about the fact that he was suffering from mouth cancer and he died soon thereafter. Cancer of the mouth is not some thing which a patient can hide or tolerate for seven years from 1991 to 1997. Thus, so far as the evidence which was produced by the defendant-appellant is concerned, which was with respect of the declarations having been submitted for revival of the policy in the year 1993 and 1994, no presumption can be taken that the deceased at the relevant time had no knowledge about the fact that he was suffering from mouth cancer and failed to disclose the same. Thus, there is no evidence led by the defendant appellant-Corporation that the deceased was suffering from cancer and he failed to disclose this ailment. In the facts and circumstances, since the defendant-appellant themselves have not been able to prove by cogent evidence, the plea raised by the defendant in their written statement and on which issues No.1 and 3 were framed, it cannot be said that the judgment and decree passed by the learned trial court calls for any interference. 6 S.B.CIVIL FIRST APPEAL NO.690/2009. Chairman, L.I.C. of India & Ors. VERSUS Smt.Nirmala Sharma. I find no merit in this appeal and the same accordingly stands dismissed summarily. The stay application also stands dismissed. (DALIP SINGH),J. Solanki DS, Jr.P.A.