IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.264 of 2010 SMT.SAROJ KUWAR @ SAROJ DEVI W/O LATE VIVEKANAND PANDEY, R/O VILL & P.O.CHOTAKI AMAW, P.S. CHAND, DISTT-KAIMUR. ------------- Petitioner/Appellant Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY FINANCE DEPTT GOVT.OF INDIA, NEW DELHI. 2. LIFE INSURANCE CORPORATION OF INDIA THROUGH ITS DIVISIONAL MANAGER DIVISIONAL OFFICE-GAURI GANJ,VARANASI(U.P.). 3. THE REGIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA KANPUR (U.P.). 4. BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA BRANCH OFFICE-MUGALSARAI (U.P.). 5. MARKETING MANAGER, LIFE INSURANCE CORPORATION OF INDIA DIVISIONAL OFFICE,VARANASI(U.P.). 6. MARKETING MANAGER, LIFE INSURANCE CORPORATION OF INDIA DIVISIONAL OFFICE-PATNA. --------- Respondents/Respondents ------------ For the appellant : Mr. Dhanendra Chaubey, Adv. For the respondent : Mr. Prakash Chandra Jha, Adv. ----------- 2 10.02.2010 I.A. No. 1332 of 2010 Having heard learned counsel for the parties as also having taken into account the facts mentioned in this application, the delay of 317 days in filing of this appeal is hereby condoned. I.A. No. 1332 of 2010 is accordingly disposed of. 2 L.P.A. No. 264 of 2010 In view of the fact that we have condoned the delay, we with the consent of the parties are also inclined to dispose of this appeal at the stage of admission itself. By the impugned order, the learned single Judge has dismissed the writ application, C.W.J.C. No. 4395 of 2006, wherein a prayer was made by the appellant writ petitioner for a direction to the respondent Life Insurance Corporation (hereinafter to be referred to as „L.I.C.‟) and its authorities to pay the death claim of the husband of the appellant writ petitioner under policy no. 281751164 on the ground that the L.I.C. had after enquiry come to a conclusion that the signature of the husband of the appellant writ petitioner on the proposal form was forged and consequently stood repudiated in terms of Section 45 of the Insurance Act. Learned single Judge in this regard has held as follows:- “---------- Considering the submissions of the parties and their respective pleadings, it appears that the L.I.C. policy in question was taken in the name of the husband of the petitioner from the respondent no.4 and the same was repudiated by the respondent no. 2 and affirmed by the respondent no.3. Finally the representation was rejected and communicated by the 3 respondent no. 2. Besides the above , the letters contained in Annexures- 1, 3, & 5 were communicated at the village address of the husband of the petitioner in the district of Kaimur. No part of transaction/correspondence has taken place in Bihar save and except the internal correspondence between the officials of the Corporation as would be appearing from Annexure-6. Besides the above, there are two important aspects of the matter. Firstly, the claim of the L.I.C. policy in question was repudiated by the respondent-corporation on account of their finding which claims to be based on the detailed report of the Hand-writing Expert that the signature was forged, and as such, the proposal itself was a fraudulent one. So far as the question that whether the signature on the proposal form was forged or not, the same depends upon relevant evidence. The petitioner claims that the signature was genuine whereas the stand of the Corporation is that the signature was forged. Therefore, this serious disputed questions of fact with regard to a document being forged or not can not be appropriately adjudicated in a writ proceeding. Apart from the same, the claim was repudiated and communicated as per the letter dated 31st of March, 2001 (Anneuxre-1) which was reaffirmed and communicated to the petitioner as per the letter dated 23rd of September, 2002 (Annexure- 3) as also the rejection of the legal notice and communication to the petitioner by letter dated 30th January, 2003 (Annexure-5). The present writ application has been filed on 23rd of March, 2006 after delay of about three years for which there is no explanation in the writ application. For the reasons and discussions made above, 4 I do not find any merit in this writ application. The same is, accordingly, dismissed.---------” Learned counsel for the appellant writ petitioner, however, had assailed the impugned order of the learned single Judge primarily on the ground that the findings recorded by the authorities of the L.I.C. that the signature of the husband of the appellant writ petitioner on the Proposal Form of being forged was itself incorrect. In this context, it was submitted that the said findings could not have been arrived on the basis of ipsi dixit of the authorities of the L.I.C., inasmuch as, such question of fact with regard to the forgery in signature ought to have been determined in a more transparent manner by allowing the appellant writ petitioner to adduce her evidence. Before us, learned counsel for the appellant had also reiterated his same submissions as before the learned Single Judge that the husband of the appellant writ petitioner had definitely paid one premium of his policy on 21.2.1996 before his death on 1.6.1996 and any decision passed on ex-parte enquiry including the opinion of the handwriting expert declaring the signature of the husband of the appellant writ petitioner on the proposal form to be forged was not binding on the appellant writ petitioner. Reliance in this connection has also been placed by 5 him on the judgment of the Apex Court in the case of Life Insurance Corpn. of India and Others Vs. Asha Goel (Smt) and Another reported in 2001(2)SCC 160. Learned counsel for the respondent L.I.C. however has submitted that when the appellant writ petitioner had filed her claim as with regard to payment of amount under policy no. 281751164 dated 21.2.1996 on account of death of the policy holder, the husband of the appellant writ petitioner, on 1.6.1996, a detailed enquiry was conducted wherein it was found with the help of the report of handwriting expert that the signature of the husband of the appellant writ petitioner on the Proposal Form was forged and accordingly, in terms of Section 45 of the Insurance Act the policy itself was repudiated. Learned counsel for the L.I.C. in this context has invited out attention towards the report of the handwriting expert dated 8.8.2000 (Annexure-A to the counter affidavit in the connected writ application) to establish that such reasonings in the order of the Corporation dated 31.3.2001 and its confirmation in the appeal by an order dated 23.9.2002 did not suffer from any error of record. Counsel, therefore, had also questioned the maintainability of the writ application and consequently this appeal by placing reliance on the same judgment of the Apex 6 Court in the case of Asha Goel (supra). The facts being not in dispute the only question on which the writ court had proceeded while dismissing the writ application relating to forgery of signature of the husband of the appellant in fact was not capable of being decided in a writ jurisdiction. The appellant writ petitioner had in fact been intimated of such forgery by an order dated 31.3.2001 (Annexure-1 to the writ application) and its affirmance in the appellate order dated 23.9.2002 and yet she had filed the writ application on 3.4.2006 instead of a civil suit. Before the writ court, therefore, the limited materials which were brought on record by way of counter affidavit including the copy of the Proposal Form containing the alleged signature of the husband of the appellant writ petitioner and the report of the handwriting expert dated 8.8.2000 had left nothing for this Court to take a contrary view, inasmuch as, the appellant writ petitioner had not filed any document having the admitted signature of her husband for its being compared with the alleged forged signature in the Proposal Form. That apart, the appellant writ petitioner had also not denied that the admitted signature of her husband from which such comparison was 7 made by the handwriting expert was disputed by her in any manner. In fact, the appellant writ petitioner had not even filed any rejoinder to the counter affidavit and thereby had failed to traverse the pleadings brought on record by the respondent L.I.C. In the opinion of this Court, such a disputed question with regard to the forgery in the proposal form forming the base of the insurance policy could not have been decided under Article 226 of the Constitution of India as was held by the Apex Court in the case of Asha Goel (supra) in the following words:- “………The position that emerges from the discussions in the decided cases is that ordinarily the High Court should not entertain a writ petition filed under Article 226 of the Constitution for mere enforcement of a claim under a contract of insurance. Where an insurer has repudiated the claim, in case such a writ petition is filed, the High Court has to consider the facts and circumstances of the case, the nature of the dispute raised and the nature of the inquiry necessary to be made for determination of the questions raised and other relevant factors before taking a decision whether it should entertain the writ petition or reject it as not maintainable. It has also to be kept in mind that in case an insured or nominee of the deceased insured is refused relief merely on the ground that the claim relates to contractual rights and obligations and he/she is driven to a long-drawn litigation in the civil court it will cause serious 8 prejudice to the claimant/other beneficiaries of the policy. The pros and cons of the matter in the context of the fact- situation of the case should be carefully weighed and appropriate decision should be taken. In a case where claim by an insured or a nominee is repudiated raising a serious dispute and the Court finds the dispute to be a bona fide one which requires oral and documentary evidence for its determination then the appropriate remedy is a civil suit and not a writ petition under Article 226 of the Constitution. Similarly, where a plea of fraud is pleaded by the insurer and on examination is found prima facie to have merit and oral and documentary evidence may become necessary for determination of the issue raised, then a writ petition is not an appropriate remedy…..” (Underlined by us for emphasis) Having thus held that the writ application filed by the appellant writ petitioner was itself not maintainable, this Court has also found substance in the reasonings of the learned single Judge with regard to unexplained delay of more than three years in filing of the writ application. The appellant writ petitioner has not stated even a word as to why such delay was caused in filing of the writ application and therefore, we also must hold that the writ application was also suffering from the Vice of unexplained delay and laches on the part of the appellant writ petitioner. Additionally, we find no merit in that part of the submission of the learned counsel for the appellant writ 9 petitioner where reliance was placed on paragraph no.7 of the judgment in the case of Asha Goel (supra). First of all, paragraph no.7 is not the ratio of the judgment rather the same only depicts factual narration wherein the assumption of the learned single Judge of the Bombay High Court directing to make payment was set aside and the writ application was remitted by the Division Bench for further hearing by the learned single Judge. Moreover, that was not the case of fraud or forgery rather involved a question with regard to validity of medial certificate on the basis of which L.I.C. had repudiated the claim. As a matter of fact, the judgment of Asha Goel (supra) is not an authority that even a repudiated policy under Section 45 of the Insurance Act on the ground of forgery/fraud could be gone into within the limited parameters under Article 226 of the Constitution of India. In this case, therefore, we are fully satisfied that the dispute revolving round the forged signature of the husband of the appellant writ petitioner, was uncapable of being adjudicated in a writ application and as such we do not find any error in the approach of the learned single Judge who has dismissed the writ application by holding that such disputed 10 question of fact requiring evidence could not be gone into in a writ application under Article 226 of the Constitution of India, which also was filed after an unexplained delay of more than three years. Moreover, as noted above, we find that the reasons assigned for repudiation of the insurance policy based on the opinion of the handwriting expert does not require our interference, inasmuch as, it cannot be said that such exercise of power by the L.I.C. was contrary to the provision of Section 45 of the Insurance Act. The writ court at best can go into the decision making process and not in the merits of the decision and we find no error in such decision making process. That being so, we find no merit in this appeal and accordingly dismiss the same. There would be, however, no order as to costs. Rishi (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)