Judgment : The Court : This is a suit for the recovery of Rs. 75,000/- together with all bon us declared and payable in respect of three insurance policies dated 2nd November, 1959; 28th December 1961 and 6th June, 1964 for Rs. 25,000/- each. The particulars of the said policies are set out in paragraph 1 of the plaint. The said assured died on the 8th October, 1968 during the currency of the said three policies of insurance and on the 23rd October, 1968 the notice of death of Atmaram Arya, the assured, was duly given to the defendant, Life Insurance Corporation of India. On the 9th November, 1968 the claim in respect of the said three policies was submitted to the defendant in the usual claim forms as required. But after several correspondence by and between the son of the deceased and the defendant the defendant ultimately by its letter dated 13th/16th September, 1969 finally repudiated its all liabilities under the said policies on account of the deceased having withheld material informations regarding his health at the time of effecting the assurance with the defendant Life Insurance Corporation of India. It was also alleged that in the personal statements signed by the deceased assured on the 19th July 1959, 2nd December, 1961 and 30th June, 1964 respectively at the time of his medical examination he had answered falsely. It will be convenient to set out the said letter, which is an admitted document and is at pp. 116-117 of Ext. A. Registered with A.D. Life Insurance Corporation of India Calcutta Divisional Office : Hindusthan Buildings. Annexe. 4, Chittaranjan Avenue, Calcutta-13. 13th September, 1969, 16 Sept. 1969 Re: PHS: CLAIMS: AO : D/3441 Sm. Sunahari Devi Arya, P 95, Lake View Road, Calcutta-19 Madam. Re : Death Claim on policy Nos. 9254742, 9547314, 3188911-A Arya (Deed) With reference to your claim under the above policies on the life of your deceased husband we have to inform you that we have decided to repudiate all liabilities under the policies on account of the deceased having withheld material information regarding his health at the time of effecting the assurance with us. 9254742, 9547314, 3188911-A Arya (Deed) With reference to your claim under the above policies on the life of your deceased husband we have to inform you that we have decided to repudiate all liabilities under the policies on account of the deceased having withheld material information regarding his health at the time of effecting the assurance with us. In this connection, we have to inform you that in the personal Statement signed by the deceased assured on 19th July, 1959, 2nd December 61 and 30th June 64 respectively at the time of his medical examinations he had answered the following questions as under noted : 4. (a) What has been your usual state of health : Good. (b) Have you consulted a medical practitioner within the last five years? If so, give details. No. 7. Have you ever suffered from any of the following ailments? (b) Persistent cough, asthma, Pneumonia, pleurisy, spitting of blood, tuberculosis or any other affection of lungs? No. (k) Any other illness within the last five years requiring treatment for more than a week? No. 8. Have you ever passed puse, albumen of sugar in the urine? No. We may, however, state that all these answers were false as we hold indisputable proof to show that before he proposed for the above policies he had suffered from diabetis mellitus at least from 1958 and also from tuberculosis of lungs for which he had consulted medical men and had taken treatment from them. He did not however, disclose these facts in his personal statements as aforesaid. Instead, he gave false answers therein as stated above. It is, therefore evident that he had made deliberate misstatements and withheld material information from us regarding his health at the time of effecting the assurance and hence in terms of the policy contract and the declaration contained in the forms of proposal and personal Statement, we hereby repudiate the claim and accordingly, we are not liable for any payment on the above policies and all moneys that have been paid in consequence thereof belong to the Corporation. Yours faithfully, Sd/- Illegible, P. Sr. Divisional Manager." After the repudiation of the claim, on behalf of the plaintiff Sunahari Devi Arya, solicitor's notice dt. Yours faithfully, Sd/- Illegible, P. Sr. Divisional Manager." After the repudiation of the claim, on behalf of the plaintiff Sunahari Devi Arya, solicitor's notice dt. 25th September, 1969 was served demanding payment of the moneys due under the said three policies of her deceased husband together with interest thereon at the rate of 12% per annum from the date of the claim until payment. By a letter dt. 4th October 1969 the defendant denied its liability and referred to its letter dt. 13th September 1969. Consequently the present suit was filed on the 10th October, 1969 and as usual after appearing from time to time in the list before various Learned Judges of this Court, ultimately it was heard by me for several days. On the pleadings of the parties the following issues were raised. ISSUES 1(a) Did the assured make inaccurate, false and fraudulent statements in the 'proposals' personal statements and declaration as alleged in paragraph 8 of the Written Statement. (b) Did the defendant issue the policies which are the subject matter of this suit, upon and/or being induced by such statements? 2. Are the policies void and did the claims thereunder cease and stand determined as alleged in paragraph 10 of the Written statement? 3. To what relief if any, are the plaintiffs entitled? 2. Before proceeding further I may mention here that in the death certificate of the assurred, which is an admitted document being at p. 67 of Ext. 'A' where under the column' cause of death it is stated as follows: Acute coronary occulussion diabetis mollitus choronic congestive heart failure, and the death certificate was issued by Dr. S. S. Zaveri. The usual correspondence started after the formal letters were exchanged informing the death of the assured and the claim forms being filed and it appears that the L.I.C., the defendant, started making enquiries' as the proposal form of the last policy being dated 30th June, 1964 which was accepted and the policy is dated 17th September, 1964 and the death occured within four years from the date of the last policy i.e. on 8th October 1968. It is also admitted that the deceased belonged to an affluent family and had several policies issued and three of them are the subject matters of this suit but another policy of the deceased being policy No. 1763557 Unit Oriental in respect of which the claim was also filed and the same appears to have been paid by the defendant being a sum of Rs. 13,219/- in full satisfaction of her claim by the Life Insurance Corporation in respect of the said policy. The said policy was issued in 1954 for Rs. 10,000/- by the Oriental Life Assurance Co., in respect of the said claim the L. I. C. has not raised any dispute and paid the sum in full satisfaction of the claim of the said policy of the deceased to the plaintiff which will appear from the letter dt. 10th December 1976 at p. 72 of Ext. A. 3. Now the only question in this suit urged before me is whether the deceased obtained the said three policies, which are the subject matter of this suit, by fraudulent misrepresentation of material facts knowing them to be false in respect of 'his personal statements as having no diabetis or no illness which is material for the purpose of issue of the said policies. Mr. M. M. Sen elaborately placed the personal statements in respect of the said three policies and the answers to various questions and it is admitted that nowhere it is stated that the deceased suffered from diabetis mallitus or coronary occulussion in any of the said statements. The defendant has examined on commission Dr. Zaveri who issued the death certificate and also Dr. M. K. Chettri and relying on the said two Medical witnesses and on the letters and forms filled up by the family physician of the deceased, one Dr. D. Mukherjee, since deceased, it was sought to be submitted that the plaintiff is not entitled to any money under the said three policies as those are void in view of the fraudulent statements of facts and false statement of facts and suppression of material facts under section 45 of the Insurance Act, 1938. 4. Mr. M.M. Sen with Mr. D. Mukherjee, since deceased, it was sought to be submitted that the plaintiff is not entitled to any money under the said three policies as those are void in view of the fraudulent statements of facts and false statement of facts and suppression of material facts under section 45 of the Insurance Act, 1938. 4. Mr. M.M. Sen with Mr. Jayanta Mitter appearing for the defendant, submitted that in view of the declarations in the proposals for insurance of the life of the deceased and also the declarations in the personal statements of the deceased in respect of each of the said three policies on the basis of which the policies were issued are now found to be false and incorrect and, therefore, the insurance policies are void ab inito and as such not enforceable against the defendant and no money can be paid to the plaintiffs in respect of the said three policies which are the subject matter of this suit. 5. Mr. Sen strongly relied on exbit.3 being a handwritten letter of Dr. D. Mukherji, who appears to be the family doctor of the deceased, after the deceased moved to his residence at No. P95 Lake view Road, Calcutta. The original of the said document has been tendered in evidence and proved by the plaintiff's witness Mr. Mani Monan Chakraborty, who is the claim investigation officer of the defendant. I must observe here that the said letter appears to me to be an inspired letter as would he evident from the post-script in the said letter. In the facts and circumstance of the case the post-script appears to have been subsequently incorporated in the letter as on the face of it, it is written in a different ink and it has been written subsequent to the original signature put by the said family physician, Dr. D. Mukherji, who is unfortunately dead at the time of the hearing of the suit but admittedly he was alive after the claim was made by the plaintiffs on the said three policies. The said claim investigation officer of the defendant personally saw the said doctor at his residence and the said letter being exbt. 3 is alleged to have been written in his presence i.e. in the presence of the claim investigation officer, Mani Monan Chakraborty, who gave evidence before me seeking to prove the said document. The said claim investigation officer of the defendant personally saw the said doctor at his residence and the said letter being exbt. 3 is alleged to have been written in his presence i.e. in the presence of the claim investigation officer, Mani Monan Chakraborty, who gave evidence before me seeking to prove the said document. The writing is in different ink and appears to be a post-script or at least written subsequent to the letter was written and addressed to the defendant. The said writing is as follows : "He suffered from diabetis in 1953 to second quarter of 1964. Occasionally urine and blood examined but nothing could be found." The said Dr. D. Mukherji has again signed this post-script which clearly shows that this particular endorsement of the letter was obtained later by the claim investigation officer of the purpose of proving, if it is possible, that the deceased was suffering from diabetis since 1958. The admissibility of this letter under section 32(2) or (3) of the Evidence Act was strongly disputed by Mr. B.N. Sen appearing for the plaintiff, whereas Mr. M.M.Sen submitted that the said statement was made by the deceased's family doctor Dr. D. Mukherji in the usual course of his business or professional duty. It is in evidence that the said Dr. D. Mukherji was an old man and a retired person and when his statement was taken he was not practising as a physician and, as such, whether the said statement can be said to be made in course of professional duty or in the usual course of his business is a matter of great controversy and in any event, the said statement appears to have been procured by the claim investigation officer of the defendant to support the contention of the defendant Life Insurance Corporation of India by putting the year 1958 so as to challenge all the three policies which are the subject-matter of this suit, the first one being issued in 1959. 6. As it cannot be disputed that diabetis is a very material fact which had it been in the knowledge of the deceased, should have been disclosed and if the deceased with the knowledge of the said diabetis had suppressed the said fact in his said personal statements, then it must be held that the deceased is guilty of suppression of material facts and committed fraud. The onus of proving that knowing that he had diabetis and had made false statement and this is a case in the nature of a fraud is entirely on the Life Insurance Corporation of India as it would appear from the wordings of section 45 of he Insurance act and the judicial interpretation of the same as made by the Supreme Court in the decision of (1) Mithulal Nayar. v. Life Insurance Corpn. of India reported in AIR 1962 S.C. 814 . This decision has been strongly relied on by both the parties. 7. The whole question for my determination is whether the deceased at the time of taking of the said three policies knew that he had diabetis or coronary deceased as is now sought to be alleged or attempted to be proved by the Life Insurance Corporation of India. I must, before proceeding further with the contentions of both the parties, state here that in a recent decision of the Supreme Court it has been laid down that farud both in civil and criminal cases must be proved beyond reasonable doubt and as such the standard of proof required is the same in criminal as well as in a civil case. It will be convenient for me to set out the relevant passage from the said decision by which the standard of proof in the present case has to be decided. The said decision is (2) Union of India v. M/s. Chaturbhai Patel & Co., reported in 1976(1) SCC 747 wherein there was a claim against the railway and the Union of India for loss of goods and refund of excise duty paid by the plaintiff in respect of consignment of bidi tobacco. The defendant resisted the plaintiff's claim mainly on the grounds that due to fraud and collusion between the plaintiff and his father's firm in Gujarat, the consignment at Benares was interchanged by manipulation and delibaration so that the inferior goods were sent to Gaya and the superior goods were sent to Gujarat which were sold by the firm at Gujarat and a huge profit was earned by the aforesaid firm. Dismissing the appeal, Fazal Ali J. observed in paragraph 7 at page 749 of 1976(1) S.C.C. in the following terms. Dismissing the appeal, Fazal Ali J. observed in paragraph 7 at page 749 of 1976(1) S.C.C. in the following terms. "The High Court has carefully considered the various circumstances relied upon by the appellant and has held that they are not at all conclusive to prove the case of fraud. It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt; (Per Lord Atkin in (3) A.L.N. Narayanan Chettilar v. Official Assignee, High Court, Railgoon AIR 1941 PC 93). However suspicious may be the circumstances, however strange the coincidences, and however great the doubt, suspicion alone can never take the place of proof. In our normal life we are some times faced with unexplained phenomenon and strange coincidences for, as it is said truth is stranger than fiction. In these circumstances therefore after going through the judgment of the High Court we are satisfied, that the appellant has not been able to make out a case of fraud as found by the High Court. As such the High Court was fully justified in negativating the plea of fraud and in decreeing the suit of the plaintiff." 8. That being the standard of proof, the entire case before me and the evidence produced by both the parties has to be appreciated, weighted and examined and to see whether the defendant, Life Insurance Corporation of India has proved beyond any reasonable doubt that the deceased had knowledge about his disease of diabetes and coronary occlussion at the time of making the personal statements in respect of the said three policies and answering the question of the medical examiners. The strange feature of this case is that the defendant Lire Insurance Corporation of India has not called any of its doctors who has filed medical reports, special heart reports etc., in respect of the said three policies and prima facie there is nothing wrong in, the said statements. The strange feature of this case is that the defendant Lire Insurance Corporation of India has not called any of its doctors who has filed medical reports, special heart reports etc., in respect of the said three policies and prima facie there is nothing wrong in, the said statements. None of the said doctors has been called, although it appears that they are all available, but a suggestion was made from the Bar that they have been removed from the panel of the LIC doctors of which I take no notice whatsoever on the face of the documents which the plaintiff has caused to be produced by making an application before this Court against the defendant and which are marked as exbt. There is no dispute that the said documents were duly filed with the LIC, the defendant, and the policies have been issued on the basis of the said documents being the proposal forms, the confidential reports of the medical examiners, special report of floroscopic examination report of electro cardiographic examination and special heart report. 9. Mr. M.M. Sen appearing for the defendant submitted that the said medical report and the special heart report etc., on the basis of which three insurance policies where issued would not estop the Life Insurance Corporation of India, the defendant in this suit to prove that the deceased suppressed material facts and fraudulently made statements knowing them to be false and for !hat purpose he relied mainly on three evidence (1) the deposition of doctor M.M. Chettri on commission which has been tendered in this Court and copy of which is marked Ext- 1, (2) deposition on commission of doctor S.S. Jhaveri which has also been tendered in this Court and copy of which is marked Ext. 2 and (3) the letter written by the family doctor D. Mukherji being Ext. 3 which I have already referred to and also the evidence of Mr. Mani Mohan Chakraborty, claim investigation officer, who has tried to prove the document being ext. 3 and also a medical attendance certificate form filled up by the said deceased's family doctor D. Mukherjee which is defendant's document No. 24 and Ext. 5 in this suit and it is at pages 92 to 94 of Ext. A. The said Moni Mohan Chakraborty whose evidence was very strongly relied on as he obtained the said Ext. 3 and also a medical attendance certificate form filled up by the said deceased's family doctor D. Mukherjee which is defendant's document No. 24 and Ext. 5 in this suit and it is at pages 92 to 94 of Ext. A. The said Moni Mohan Chakraborty whose evidence was very strongly relied on as he obtained the said Ext. 3 being the letter written by doctor D. Mukherjee family physician of the deceased assured, has stated in questions 5 to 9 that he has addressed the letter dated 21st June 1969 to late doctor D. Mukherjee, the family physician of the deceased assured and got the reply being Ext. 5 which according to the said Moni Mohan Chakraborty was written in his presence at the chamber of doctor D. Mukherjee (see question No. 13 of Moni Mohan Chakraborty). He also admitted that he collected the said letter personally from .the said doctor D. Mukherjee as the same was very valuable being Ext, 3 (see question 14 of Moni Mohan Chakraborty) Mr. Moni Mohan Chakraborty also in question put by me stated that the said letter being Ext. 3 was the medical attendance report filled up by doctor D. Mukherjee after payment of usual fees for making the said report and writing the said letter. He admitted the payment of fees in questions Nos. 22 and 23. In question No. 24 put by me Mr. Chakrahorty stated that late doctor D. Mukherjee consulted his diary which was on his table and made the report and wrote the letter. The question No. 25 of Moni Mohan Chakraborty and answer to the same are very relevant as they prove the existence of the diary of late doctor Mukherjee in or about June 1969 and it further appears that the said doctor Mukherjee was alive after the said suit was filed but no attempt was made by the defendant, Life Insurance Corporation of India to examine the most material witness on commission or produce the said medical diary of the said doctor Mukherjee which in the circumstances of this case appears to be very vital and relevant document. I am not really concerned about the fact whether the deceased assured had diabetes since 1954 or 1958 as is sought to be contended by Mr. I am not really concerned about the fact whether the deceased assured had diabetes since 1954 or 1958 as is sought to be contended by Mr. M.M. Sen on behalf of the defendant but whether the deceased had knowledge that he had diabetes at the time of making personal statements in respect of the said three policies which are the subject matters of this suit and knowingly has suppressed the said material fact and thereby committed fraud within the meaning of section 45 of the Insurance Act. I may point out here that the evidence of doctor Jhaveri and doctor Chettri at best can be expert medical evidence that may help the court to come to conclusion that the deceased assured had diabetis or coronary trouble for a long time before 1964 but that will not in any way prove the fact that the deceased had knowledge about his said disease and knowingly he has suppressed the said material facts and committed fraud within the meaning of section 45 of the Insurance Act as laid down by the Supreme Court decision in (1) AIR 1962 SC 814 referred to above. As I have already noted that Mr. Sen has relied on the said evidence on commission of doctor Jhaveri and doctor Chettri and the evidence of Moni Mohan Chakraborty who procured the statement and medical attendence report from late doctor D. Mukherjee and also the statement alleged to have been made by the deceased assured to doctor Chettri that he was suffering from diabetes from 1954. I may point out that in the evidence and report of doctor Jhaveri in the year is 1964. It further appears that doctor Jhaveri first examined the deceased on the 29th August, 1964 that is after the proposal in respect of the last policy was accepted by the defendant but insurance policy was not issued till 17 September, 1964. 10. The matter appears to be not at all complex so far as the facts are concerned, from the death certificate it appears that the deceased was examined by doctor Jhaveri who issued the death certificate stating the case of death being diabetes mellitus and chronic congestive heart failure. Certainly that evoked strong suspicion in the mind of the Life Insurance Corporation of India in entertaining the claims on the said three policies as the deceased died within four years from his last policy. Certainly that evoked strong suspicion in the mind of the Life Insurance Corporation of India in entertaining the claims on the said three policies as the deceased died within four years from his last policy. Therefore, the Life Insurance Corporation of India has to prove the fraud or the three conditions as laid down by the Supreme Court in Mithoolal's case in (1) AIR 1962 SC 814 beyond any reasonable doubt before this Court and whether in the facts of the case or the materials before me can it be said that the deceased had knowledge of this said diseases being diabetes mellitus and heart trouble at the time of signing the declaration forms and filling up the personal statements and the medical reports in respect of the said three policies or any of them. There cannot be any question if he had knowledge of his disease of diabetes that is undoubtedly material fact, and he must be held to be guilty of suppressing the material fact and of fraud in making false statements knowingly and therefore the Life Insurance Policies would become void. 11. In the decision of Mithoolal Nayak v. Life Insurance Corporation of India, reported in AIR 1962 SC 814 in paragraph 7 the relevent portion of Section 45 of the Insurance Act has been set out and the judicial interpretation thereof will appear from paragraph 8 where S.K. Das, J. has laid down the three essential conditions for application of section 45 of the Insurance Act which are as follows :- (a) the statement must be on a material matter or must suppress facts which it was material to disclose; (b) The suppression must be fraudulently made by the policy holder and (c) The policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. These conditions must be cumulative as has been laid down by a Division Bench decision of the Allahabad High Court with which I respectfully agree. In (4) Bhai Mahesh Chandra Shastri Rampuri v. Life Insurance Corpn. of India, reported in 1968 (38) Company Cases P. 767 where after setting out the conditions laid down in the said Supreme Court decision in Mithoolal Nayak's case it has been observed by Dwivedi J. at page 768 in the following terms. In (4) Bhai Mahesh Chandra Shastri Rampuri v. Life Insurance Corpn. of India, reported in 1968 (38) Company Cases P. 767 where after setting out the conditions laid down in the said Supreme Court decision in Mithoolal Nayak's case it has been observed by Dwivedi J. at page 768 in the following terms. "All these three elements have to be proved cumulatively if one or more of them is not proved, the challenge will fail. Again the burden of proving them all lies on the insurer. The burden cannot be deemed to be decided by evidence which is equivocal. Therefore all the three elements as laid down by the Supreme Court must be proved and if one of them is missing or the insurer fails to prove their defence must fail. Mr. M.M. Sen cited a decision in (5) Yorke v. Yorkshire Insurance Co, 1918 (1) K.B. 662-1918-19 AER Reprint 877. In that case it is stated as follows:- ''In a life insurance policy was based on the proposal form which contained a question what illness have you suffered ? the insured's answer was "none of consequence" the truth of the answers on the proposal form was the basis of the policy. Three months after its date the insured died from an overdose of veronal. A claim being preferred by the assignee of the policy the Insurance company disclaimed liability on the ground that the above answer and certain others were untrue and that the insured has concealed material fact. In this case the proposal form was dated the 12th of December, 1916 and the insurance policy was issued on the 4th of December 1917. Within three months from the date of the policy the insured died from an overdose of veronal and the policy was for one year. The defendant, Insurance Company relied on substance mainly on two points viz., (a) that the answers to the above questions were untrue and (b) that the deceased and failed to disclose that he suffered from heart trouble and from Insomnia and that he was addicted to the Veronal habit. It was specifically pleaded that the deceased has suffered from a serious illness in 1911. The facts as to such illness were not then known to the Insurance Company. It was specifically pleaded that the deceased has suffered from a serious illness in 1911. The facts as to such illness were not then known to the Insurance Company. In this case the doctor who examined the deceased during his illness in 1911 gave evidence and deposed that he examined the deceased in 1911 during his illness at that time which he considered as serious the admissibility of the said evidence was challenged but the court held that the same was admissible on the ground that the view of the court as to experts evidence in Insurance cases seems to have been developed through years upto that date and it was held that expert evidence with respect to the materiality of fact has been freely admitted in recent years by the expert Judges who have administered and are now administering justice in the commercial court. It was further observed that expert evidence may freequently afford great assistance to .the Court upon question of nevelty or doubt. If excluded it would deprive the Court of the power by ascertaining those considerations and views which a Tribunal may well require to know and the insurance witness would be stricken with absolute silence upon matters of vital importance. Judges are always free to test and revise any form of expert's testimony. It may be said, however, that in the modern insurance cases reference to the expert's evidence has usually been given by those actually engaged in the occupation of insurer. I agree that this is so. But it must be pointed out that on "any question of life insurance" the matters at issue are usually physiological, medical and neuropathic. The Directors of Insurance Companies, however, are but rarely medical men. Seldom, any (if at all) of them personally sees the proposal. The reliance otherwise of that which should be disclosed to a Life Insurance Company may well be appreciated only by Doctors or Surgeons. Medicalmen may, therefore, often give a more useful opinion than the Directors themselves have what is or is not material and important. Hence, the admission of a medical opinion in an early life insurance case in (6) Lindenau v. Desborough 1824-34 AER Reprint 117. 12. Medicalmen may, therefore, often give a more useful opinion than the Directors themselves have what is or is not material and important. Hence, the admission of a medical opinion in an early life insurance case in (6) Lindenau v. Desborough 1824-34 AER Reprint 117. 12. It will appear that the doctor who examined and treated the deceased insured before: the policy was issued was examined and on his evidence the question of truth of the answer given by the assured regarding his illness has to be judged. In this case, the opinion of the doctors who examined the deceased assured before the insurance policies were issued has not been called as witness for obvious reasons because their reports which have been incorporated in ext. B are against the case of the Life Insurance Corporation. All the said doctors who appear to be very highly qualified, have certified the Life of the deceased and recorded their findings and filed their medical reports as a fit life for insurance. By simply throwing suspicion as to the correctness of the said reports will not be enough but more positive proofs are necessary. 13. As I have already noted Mr. M.M. Sen, on behalf of the Life Insurance Corporation of India, has relied on the evidence of Dr. Chettri and Dr. Javeri and the statements made by Dr. D. Mukherjee in his letter and report in addition to the evidence of M.M. Chakraborty, the inspecting officer who deposed before me. But after carefully examining the evidence only a suspicion, which may be a grave one, can be raised, but, in any event, that cannot be substituted for proof in a case under Section 45 of the Insurance Act of 1938 as it must be proved beyond reasonable doubt that the assured has suppressed material facts and has suppressed them fraudulently and knowing them to be false made statements in the proposal form pursuant to which the insurance policies were issued. 14. Mr. Sen also relied on an unreported decision of Ghose J. in (6) Tapan Kumar Bose & Ors. v. Life Insurance Corporation of India being suit No. 177 of 1963 delivered on the 29th of June, 1976. In that case it appears that late Dr. 14. Mr. Sen also relied on an unreported decision of Ghose J. in (6) Tapan Kumar Bose & Ors. v. Life Insurance Corporation of India being suit No. 177 of 1963 delivered on the 29th of June, 1976. In that case it appears that late Dr. M.M. Dey deposed before the Learned Judge in a similar case against the Life Insurance Corporation of India and a similar defence was raised, as in this case, who examined as the consultant physician of the deceased Rani Asrumati Debi who died on the 5th of January, 1954. The policies which were under consideration before Ghose J. were issued subsequent to the date the consultant physician examined the deceased assured through Dr. Subhindranath Banerjee since 1950 i.e. before the policies were issued. Therefore in that case there was positive evidence of suppression of material facts about the state of health and illness of the deceased assured as there was positive evidence by a doctor who examined the deceased assured before the proposal for insurance was accepted and a policy of insurance was issued. The said decision is entirely different as the fact was proved by a medical doctor of highest repute like Dr. Mani Dey who examined the assured deceased before the life insurance policy was issued and deposed before the Court. That is not the case here. In spite of my adjourning the matter and asking the LIC, the defendant, to produce positive evidence as to the fact that the deceased suffered from the disease of diabetes and he knew about the same or was told about the same must be produced before me so that this being a case of fraud it must be proved beyond reasonable doubt. Therefore, in my view, the said decision of Ghosh J. has no application to the facts of this case as the principles are well settled by the said Supreme Court decision and the three conditions as laid down thereunder must be proved to the satisfaction of the Court beyond any reasonable doubt to enable the life insurance corporation to take the defence to fraudulent suppression of material facts. 15. Mr. B.N. Sen appearing with Mr. Hirak Mitter for the plaintiff submitted that the evidence of Mr. Chettry and Dr. 15. Mr. B.N. Sen appearing with Mr. Hirak Mitter for the plaintiff submitted that the evidence of Mr. Chettry and Dr. Jhaveri who examined admittedly after the last proposal for insurance was accepted by the defendant Life Insurance Corporation and, therefore, their evidence are of no consequence and cannot prove the fact that the deceased knew about the fact that he was suffering from diabetes mellitus or coronary conclusion on the date of making the personal statements and declarations in respect of the said three insurance policies which are the subject• matter of this suit. 16. Mr. Sen cited a decision of the Privy Council in (8) Smt. Sabitri Devi & Ors. v. Ram Bijoy Prasad Singh & Ors, reported in AIR 1950 P.C. page 1 where it is stated : "In a suit for setting aside the compromise decree which was dismissed by the Lower Courts, the litigations related to the title to an ancient impartible Raj Family properties of the Dumraon. Under the Court of Wards Act the Board of Revenue, Bengal, took possession of the said property on the ground of minority of the owner. Thereafter, various litigations took place and the compromise decree \Vas obtained which was sought to be set aside by the suit which was dismissed before. Before the Privy Council question arose as to the admissibility of the statement of a person under section 32(3) of the Evidence Act and it has been laid down at page 6 paragraph 31 where Sir John Beuamont observed as follows : "Angus Ogilvy was appointed by the Court of Wards tutor and co-guardian of the minor and was appointed by the High Court Guardian-ad-litem of the minor in substitution of the previous guardian. There was a charge of negligence against the said Ogilvy and one of the questions and a piece of evidence was that there was no reason whatever that thinking that Ogilvy did not himself consider and approved the terms of compromise. That piece of evidence was an exbt. P, a statement made by Ogilvy in London in the year 1926 to a witness, Mahavir Prasad. In this statement Ogilvy does not suggest that the compromise was not beneficial but he says that he had no independent advice and considering himself the instrument of the Court of Wards". That piece of evidence was an exbt. P, a statement made by Ogilvy in London in the year 1926 to a witness, Mahavir Prasad. In this statement Ogilvy does not suggest that the compromise was not beneficial but he says that he had no independent advice and considering himself the instrument of the Court of Wards". Sir Beaumont then observed in respect of the said statement at page 6 paragraph 31 as follows : "This statement was received by the Trial Judge under S. 32(3) of the evidence Act, on the ground that it might have exposed Ogilvy to a suit for damages. That principle upon which hearsay evidence as admitted under Section 32(3) is that a man is not likely to make a statement against his own interest unless true, but this section does not arise unless the party knows the statement to be against his interest. There is no reason whatever for thinking that Ogilvy supposed that he was exposing himself to a suit for damages. In their Lordships' opinion this statement ought not to have been admitted in evidence. However, if it be admitted, it is of very slight essential one. No attempt was made to take the evidence of Ogilvy on commission, though he lived for 18 months after making his statement and the statement cannot outweigh the sworn petition which Ogilvy presented to Court. There Lordships see no ground whatever for imputing any negligence to Ogilvy. That being so, it becomes unnecessary to consider the point of law discussed by Edgeley J., but not argued in the Court of Appeal." 17. Mr. Sen also relied on Mithoolal Nayak's case reported in AIR 1962 SC 814 with reference to certain passages which, according to him, supports his case. It cannot be disputed that the law and the judicial interpretation of Section 45 of the Insurance Act, 1938, as now laid down by the said Supreme Court decision is binding on all Courts being the law of the land under Article 141 of the Constitution of India. Mr. B.N. Sen thereafter cited another Supreme Court decision in (9) Ram Rati Kuer v. Dharkal Prasad Singh & Ors. Mr. B.N. Sen thereafter cited another Supreme Court decision in (9) Ram Rati Kuer v. Dharkal Prasad Singh & Ors. AIR 1967 SC 1134 where in a suit for declaration and in the alternative for possession in respect of certain property the question of a Deed of Gift being not binding on the plaintiff/respondents, Supreme Court dealing with the question of admissibility of evidence held, firstly : that under Section 114 when no attempt was made by the opp0site party calling for accounts inspite of oral evidence given on the accounts it was held that the oral evidence may not be acceptable but no adverse inference can be drawn from non-production of account books. 18. It was further held, following the said Privy Council decision in AIR 1950 Privy Council p.1, that admissibility of evidence under Section 32(3) of the Evidence Act, knowledge of the person making the statement that it is against his interest must be proved. Such knowledge would have to be inferred from surrounding circumstances. But on facts that particular statement made by a widow was made consciously with knowledge that it would be against her interest, Wanchoo, J. laid down the following proposition at pp. 1138-39 of AIR 1967 SC 1134 as follows : "Now there is no doubt that this statement of Mst. Phuljhari-Kuer is against her proprietary interest. Therefore, it would be admissible in evidence under S. 32(3) as she is dead. Of course, it would not be in admission so far as the appellant is concerned; but it would certainly be a piece of evidence to be taken into consideration. But it is said that before the statement can be admissible it must be shown that the person making it knew that it was ag1inst his pecuniary or proprietary interest. In this connection reliance has been placed on (10) Savitri Devi v. Ram Ran Bijoy Prasad, 76 Ind. Appeal 255 (AIR 1950 DCI), where it has been held that 'the principle upon which hearsay evidence is admitted under S. 32(3) is that a man is not likely to make a statement against his own interest unless true, but this sanction does not arise unless the party knows the statement to be against his interest'. Appeal 255 (AIR 1950 DCI), where it has been held that 'the principle upon which hearsay evidence is admitted under S. 32(3) is that a man is not likely to make a statement against his own interest unless true, but this sanction does not arise unless the party knows the statement to be against his interest'. This statement of law is based on two earlier English decisions in (11) Tucker v. Oldbury Urban District Council, (1912) 2 KB 317 and (12) Ward v. H. S. Pitt, (1913) 2 KB 130 Accepting this to be the correct statement of law with respect to admissibility of statements under Sec. 32 (3) of the Indian Evidence Act, we may add that the question whether the statement was made consciously with the knowledge that it was against the interest of the person making it would be a question of fact in each case and would depend in most cases on the circumstances in which the statement was made, except when the statement is categorical in terms as for example, 'I owe so much to such and such person. There can hardly be any direct evidence to show that the person making the statement was against his interest and so in most cases knowledge would have to be inferred from the surrounding circumstances." The next case cited was (9) Gurucharan Rudra Pal & anr. v. Mafijuddin Molla & ors., A.I.R. 1938 Calcutta 150 where in a suit for declaration of title and on the recovery of possession of certain piece of land claiming that the same has been obtained by lease from the owners of certain estate and they were in possession but were dispossessed by the defendants and the defence was that the land did not remain in possession for more than 12 years and the plaintiffs' story of possession and dispossession was false. The Trial Court decreed the suit which was affirmed on appeal and on the Second Appeal the Division bench dealing with the admissibility of the report of the Commissioner appointed by the Trial Court under Section 32(2) of the Evidence Act, which came up for consideration and it was observed by M.C. Ghose, J., at page 151 as follows : "The argument that the report is not admissible under S.32(2) is correct. The expression 'statement made in the ordinary course of business' means a statement made during the course not of any particular transaction of an exceptional kind, but of business or professional employment in which the deceased was ordinarily or habitually engaged : See 23 Bom. 63, 13 CWN 71 and 16 CWN 252. It is urged by Dr. Sen Gupta appearing for the respondents, that even though the report of the deceased mukhtar be not admissible under S. 32(2) it is relevant under S. 32(7) which refers to a statement contained in any document which relates to any such transaction as is mentioned in S. 32(a), that is to say, relates to any transaction by which the right in question was created, claimed, modified, recognized, asserted or denied. It is urged that in the criminal case the plaintiffs asserted the right to this land and the defendants denied the same and the parties agreed to appoint a mukhtar as an arbitrator and the mukhtar having made due enquiry made this report, Ex. 3 to the Court whereby it was stated that the land was in the possession of the plaintiffs. The document therefore is admissible under S. 32 (7) and it cannot be said that the Courts below committed an error in admitting it although they did not appreciate the proper section under which it was admissible. 19. Relying on these decisions Mr. B.N. Sen submitted that the evidence of Dr. D. Mukherjee being the report and the letter being Ext. 3 cannot be admissible in evidence under Sec. 32(2) or Sec. 32(3) of the Evidence Act. He also submitted that the same contention applies to the alleged statements made by the deceased assured before Dr. Chettri which have been recorded in the statement of Dr. Chettri and made an exhibit on commission. In Ext. 5, Mr. Sen rightly submitted Dr. Mukherjee had not mentioned about diabetes of the deceased, assured. The same is at P. 92 of Ext. A being dt. 17th June, 1969. Mr. Sen also rightly commented that the signature of Dr. Mukherjee in Ext. 3, as would appear from the original letter, was put in subsequently in different ink and the year 1958 was deliberately put in there at the instance of Mr. The same is at P. 92 of Ext. A being dt. 17th June, 1969. Mr. Sen also rightly commented that the signature of Dr. Mukherjee in Ext. 3, as would appear from the original letter, was put in subsequently in different ink and the year 1958 was deliberately put in there at the instance of Mr. Monimohan Chakraborty, Claim Investigation Officer as that was required for the purpose of challenging all the three policies which are in question in this suit, the first one being that of 1959. Further, in my view the said statement is not admissible in evidence under Section 32(2) or 32(3) of the Evidence Act. The medical diary, the existence of which Mr. Chakraborty has stated, as I have noted earlier, has not been produced although it was available and it was within the defendant's power to cause production of the same. Mr. Sen submitted that none of the doctors being Dr. J. C. Gupta, Dr. S.K. Guha, Dr. H.K. Bose, Dr. Ankellswaria, Dr. N.K. Sarkar and Dr. Mukherjee were examined by the LIC as admittedly the family physician Dr. Mukherjee was alive after the suit was filed but he died before the hearing took place. In my view Mr. B.N. Sen rightly submitted that the evidence of Dr. Chettri and Dr. Jhaveri, at best they can be expert medical opinion but cannot prove the fact that the deceased assured had knowledge that he had suppressed the said fact and fraudulently made the statements and obtained the said three policies which are the subject-matters of this suit. Admittedly Dr. Jhaveri and Dr. Chettri had examined the deceased assured after the first two policies were issued and the proposal for the last policy was accepted by the defendant and, therefore, by no stretch of imagination the evidences of these two doctors disclose the state of mind or the knowledge of the deceased assured about his illness or the nature of illness at the time when the said three policies were issued. Mere statement by the deceased that he was suffering from diabetes in 1954 does not prove the fact conclusively. Firstly, the said statement directly contradicts the evidence of Dr. Mukherjee in his letter in Ext. Mere statement by the deceased that he was suffering from diabetes in 1954 does not prove the fact conclusively. Firstly, the said statement directly contradicts the evidence of Dr. Mukherjee in his letter in Ext. 3 if it is admissible at all and, therefore, that cannot be accepted as a correct statement to be relied on by court in a case where charge of fraud is being made. Secondly, in another statement made by Dr. Jhaveri it is stated to be 1964. However, there is no evidence whatsoever by which it can be said that it has been proved beyond any reasonable doubt that the deceased had been told or had the knowledge of the fact that he was suffering from diabetes mellitus or chronic cardiac failure or coronary disease at the time of issue of any of the said three insurance policies which are the subject-matters of this suit. Mr. B.N. Sen has rightly criticised the evidence of Mr. Chakraborty and stated that it is only after the son of the deponent wrote letter to the authorities for nonpayment of claim under the said policies all the activities of the said Mr. Chakraborty started and he obtained the statement from Dr. Mukherjee and finally the claim was refused by the letter dt. 13th September, 1969. The son of the deceased assured gave evidence and in Q, 105 he stated that Dr. Mukherjee is now dead and it is also in evidence that Dr. Mukherjee was alive after the claim was made and he had his diary and it was not very difficult for the LIC if it was a fact that the deceased was told a bout his disease of diabetes or coronary disease by Dr. Mukherjee or anything of that sort was in fact recorded in the diary of Mr. Mukherjee that would have been preserved or produced before this Court in evidence. Nothing was done. It was also not impossible for the LIC to get the reports from pathological laboratories where the urine and blood of the deceased were examined before the said policies were issued, if it was a case of diabetes of which the deceased had knowledge before the said three policies were issued by the defendant. Nothing was done. It was also not impossible for the LIC to get the reports from pathological laboratories where the urine and blood of the deceased were examined before the said policies were issued, if it was a case of diabetes of which the deceased had knowledge before the said three policies were issued by the defendant. No such attempt was made and in these circumstances it is very difficult for this Court to hold on mere suspecion that all the conditions laid down by the Supreme Court in Mithulal Naik's case in A.I. R. 1962 S.C. 814, paragraph 8, as stated before, have been fulfilled. All the three conditions must co-exist and have to be cumulative, absence of anyone of the conditions being proved will make the defence of the L.I.C. fail. Mr. Sen cited a decision in (10) Life Insurance Corporation of India v. Manjula Mohonlal Joshi, A.I.R 1975 Orissa 116 where the court was not satisfied as to the defence taken by the L.I.C. that the assured suppressed the material facts about his illness for the lack of proper evidence. Mr. Sen also referred to Kerr on Fraud, 7th Edition, p. 17 in support of his proposition : "An intention to deceive being a necessary element or ingredient of fraud a false representation does not amount to a fraud in law unless to be made with fraudulent intent." Mr. B.N. Sen referred to the decision in (11) Tackey v. Mecbain, 1912 Appeal Cases 186 (P.C) Mr. Sen submitted that no evidence has been led to show that there was any intention of the deceased assured to suppress the fact of his disease, as he had stated regarding his medical attendant, as no one in particular, which appears to be true and relevant as from the evidence of the son Abheram before me it appears that there were several doctors who examined the deceased during his lifetime from time to time but it is true that Dr. D. Mukherjee was the family physician during the lifetime of the deceased whose evidence during the period the Doctor was alive is not produced before this Court and the statement made by him in Ext. D. Mukherjee was the family physician during the lifetime of the deceased whose evidence during the period the Doctor was alive is not produced before this Court and the statement made by him in Ext. C, in my view, is not admissible in evidence under Sec. 32(2) of the Evidence Act as that was not made during the time when he was carrying on his profession, neither his medical diary was produced or proved. Therefore, in the absence of any positive evidence of fraud by mere suspicion and surmise no one can be held to be guilty of fraud. 20. The principle, the Court is to adopt and follow in a case of this nature where fraud is alleged and to be proved by the Life Insurance Corporation of India under Sec. 45 of the Insurance Act it is now well settled that three conditions must be fulfilled and they must be cumulative as I have already noted before and the decision in 38 Company Cases 767, the relevant passage has already been quoted. In several decisions where the life insurance policies has been declared void for fraudulent suppression of material facts, one is the Supreme Court decision in Muthulal Naik' cases, A.I.R, 1962 S.C. 814. There the doctor who examined the assured before the policies were issued gave evidence and proved the suppression of fact and also the knowledge of the deceased assured about the nature of his disease which he suppressed and made false statement before the life insurance company for obtaining the policies. That is also the case before Ghose, J. which was referred to by Me M.M. Sen. Similarly, in the Division Bench decision in (12) Manufacturers Life Insurance Co. Ltd. v. Sm. Haridasi Debi & anr. That is also the case before Ghose, J. which was referred to by Me M.M. Sen. Similarly, in the Division Bench decision in (12) Manufacturers Life Insurance Co. Ltd. v. Sm. Haridasi Debi & anr. A.I.R. 1939 Calcutta 8 where the Division Bench set aside the judgment of the trial Court on the basis of the false statement in the medical report of the deceased assured as there also the doctor who examined the assured before the policy was issued was examined and on such evidence it is was held that there was suppression of material fact and the claim was dismissed setting aside the trial court's decision by Lort Williams J. In another decision in (13) Life Insurance Corporation of India v. Bibi Padmawati, 1967 (2) Company Law Journal 292 where the question on revival of a policy by making statements which were sought to be challenged as false Wanchoo, J. observed at pp. 296-97 in the following terms : "Besides we agree with the High Court that merely because the revival application aid not mention that Diwan Balkishan was admitted to the hospital twice in 1945 is of no effect for the evidence in this case fails to prove that there was anything seriously wrong with Diwan Balkishan when he was admitted to the hospital on those occasions. When the revival form pleaded of 'sickness, ailment or injury' these words must be incorporated to include' only more serious disorders leaving a permanent mark upon the insured's health passing ailments or disorders are not considered by the Court to be material to the risk. Unless, therefore, it could be proved that Diwan Balkishan was afflicted with a serious ailment or disease during the period after the insurance policies had been issued and before the revival applications were made, the mere fact that he did not mention any passing ailment or disorder which might have necessitated his going to the hospital twice for short periods would now show that his statement in the revival applications was false to the extent of making the revival void." 21. In another decision in (14) S.V. Kalyani Achi v. Life Insurance Corporation of India, 1967(1) Company Law Journal 17 where the assured's life was certified as first class and the policy was accepted by the Life Insurance Corporation and he died after 2 years and his wife made the claim on the policy which was refuted by the Life Insurance Corporation on the ground that the policy was null and void because of fraudulent suppression of material facts by the assured that the assured had been in indifferent health for many years and suffered from disease like Anemia, diarrhoea, T. B. etc. and these facts were suppressed and after going into the facts of the case it was held following the Supreme Court decision in Mitholal's case that it is imperative on the defendant to satisfactorily establish that vital and material facts and information, have been suppressed and there has been a fraudulent misrepresentation of material facts to the knowledge of the assured. In that case it was held that the assured was suffering from ailments as set by the defendant, in that case proof of a proper diagnosis was totally absent and there must also be further proof that the doctor who diagnosed had communicated to the assured that he was suffering from particular disease or the assured knew he was suffering from those ailments Then and then only the failure to disclose would arise. In the absence thereof the claim has to be allowed. Those passages I have quoted from the head note which has summarised correctly the judgment and the principle la id down therein which to my mind, applies with full force to the facts of this case where the defendant Life Insurance Corporation has only sought to raise some suspicion and doubts in the mind of the Court by indirect evidence of medical experts with their opinions, but withholding or not producing material evidence as to the facts that the deceased assured suffered from the disease; diabetes mellitus and coronary trouble and that he had been told about it and knowingly he had suppressed it and made false statements in the proposal forms and the medical reports as sought to be alleged before me in this case, can not be said to have proved. In the case of (15) Lindenau v. Desborongh, 108 English Report 1160 it has been held that it is the duty of a party effecting an insurance on life or property to communicate to the underwriter of material facts within his knowledge touching the subject matter of the insurance and it is a question for the jury whether any particular fact was or was not material. Now, the question of jury does not arise. It is for the Court to decide whether a fact is material or not as it is a pure question of fact. In dealing with this aspect, Littledale, J. observed at page 1162 of 108 English Report as follows : "In cases of life insurance certain specific questions are proposed as to points affecting in general all mankind. But there may be also circumstances affecting particular individuals which are not likely to be known to the assurers, and which had they been known would no doubt have been made the subject of specific enquires. The general question appears to have been proposed in order to meet such cases and I think the question on such a policy is not whether a certain individual thought a particular fact material, but whether it was in truth material, and of that the jury are by law constituted the judges. I therefore think the proposed direction would have been right, and that the nonsuit ought not to be disturbed and the rule was refused". What is material fact in an insurance, has been well settled and aptly proved by Mullick, J. in the case of (16) Rahibi Nandan Goswami v. Ocean Accident & Guarantee Corporation Limited, AIR 1960 Cal. 696 , where Mullick, J. observed as follows : "In a contract of insurance there must be good faith on the part of the assured. As it is contract uberrimafidae it is the duty of the insured to disclose material facts. A false answer or non-disclosure or concealment of a material fact will avoid the policy even though there is no fraud and the concealment is innocent. As it is contract uberrimafidae it is the duty of the insured to disclose material facts. A false answer or non-disclosure or concealment of a material fact will avoid the policy even though there is no fraud and the concealment is innocent. In order to establish the defence of concealment the insurer must prove (i) that the facts alleged to have been concealed by the insured were true; (ii) that they were material facts and (iii) that they were within the special knowledge of the insured burden of proving these three facts is on the insurer who sets up the defence. Whether a particular fact is material depends upon the circumstances of a particular case. Evidence of materiality is not always necessary. Materiality of a particular fact may be obvious from its very nature. The test to determine materiality is whether the fact has any bearing on the risk undertaking by the insurer. If the fact has any bearing on the risk it is a material fact; if not it is immaterial" 22. There is no doubt that in this case the disease of diabetes mellitus or coronary occlusion or coronay disorder was material facts but there is on evidence that the same was diagnised before the policies were issued or the same was made known to the deceased assured before the said policies were issued. By mere medical expert opinions who examined the deceased long after the policies were issued as to the probable date of the disease cannot be held to be proof of knowledge of the deceased assured about his disease at the time the said proposal forms were filled up by him and the medical reports were made out. The last decision I like to refer is that of House of Lord's decision in Doson Limited v. Bonnin & ors. which was a fire insurance case but the question of material fact in an insurance policy has been laid down which has already been referred to by various decisions in India as the leading principle. The last decision I like to refer is that of House of Lord's decision in Doson Limited v. Bonnin & ors. which was a fire insurance case but the question of material fact in an insurance policy has been laid down which has already been referred to by various decisions in India as the leading principle. Therefore, considering the entire facts of this case in the light of the principles laid down in the Supreme Court decision with other decisions which I have already referred, I cannot but hold that the defendant has been able to raise some suspicion in the mind of the Court but has failed to prove beyond any reasonable doubt that the deceased has suppressed any material facts and knowing them to be false and fradulently made the statements. As the three conditions which must be fulfilled as laid down by the Supreme Court decision and the Allahabad decision to which I have already made reference that is, AIR 1962 S.C. 814 paragraph 8 and 1968 (38) Company Case 767. I am also of the view that the report of Dr. Mukherjee and Ext. 3 are not admissible in evidence under section 32(2) or 32(3) of the Evidence Act neither the statements if the same is said to be true made by the deceased assured to Dr. Chettri that he was suffering from diabetes since 1954 can be said to be admissible in evidence under any of the sections of the Evidence Act. In any event, the same contradicts the statement of Dr. Mukherjee which statement was obtained by Moni Mohan Chakraborty in 1958 and 1954. Therefore, I cannot hold that the defendant has been able to establish beyond reasonable doubt the fraud alleged in its defence that is, suppression of material facts and knowledge of the deceased about his disease and the statements made in the medical report are false. As I have already noted that none of the doctors who examined the assured and made medical reports and special heart report etc. all of which are contained in Ext. As I have already noted that none of the doctors who examined the assured and made medical reports and special heart report etc. all of which are contained in Ext. B has been examined or called as witness and in the absence of any satisfactory evidence as to the proof of fraud on mere suspicion, I cannot hold that the said deceased assured committed fraud within the meaning of section 45 of the Insurance Act and none of the conditions laid down by the Supreme Court in AIR 1962 S.C. 812 paragraph 8 has been satisfied in this case. All the three conditions must co-exist and must be cumulative as laid down in the Madras decision in 38 Company Case 767. 23. I have given my anxious thought over the matter as this matter is of great public importance and of grave significance, as the policy holders will be at mercy of the Life Insurance Corporation of India who at their pleasure without any material proof will allege fraud against the policy holders after their death and their heirs or nominees will be deprived of the policy money in spite of the fact that the same was issued after due medical examinations and the reports being filed to the satisfaction of the LIC and the life was certainly found fit for insurance and the policies were duly issued by the Life Insurance Corporation of India in its usual course of business. The Supreme Court decision in 1976 (1) Supreme Court Cases 747 has clearly laid down the standard of proof required in a case of fraud and in this particular case that has not been satisfied and the defence therefore must fail. 24. As I have already observed that this matter has given me considerable anxiety having regard to the importance of Life Insurance policies and payment of the claims arising out of the death of the assured. 24. As I have already observed that this matter has given me considerable anxiety having regard to the importance of Life Insurance policies and payment of the claims arising out of the death of the assured. I have adjourned the matter several times for enabling the Life Insurance Corporation of India on whom the onus of proving the fraud under Section 45 of the Insurance Act lie heavily as I have already referred to the Supreme Court decision that the Life Insurance Corporation must prove beyond reasonable doubt the fraud committed by the assured at the time of making the personal statements and statements made before the medical officers on which the said three policies, which are the subject matter of this suit, were issued. 25. It is a common knowledge that a person may be suffering from any disease but he has no idea or knowledge about it or has not been told by his relations or doctors about the nature of his disease. Equally it is common knowledge that there are persons who have the impression that they have got a particular disease although, in fact, he has none or, at least, not the disease which he thinks he has. Be that as it may, in this particular case, there is clear evidence of the son Atmaram Arya that his father was in good health on the date of all the said three policies which are the subject matter of this suit. He has categorically denied that his father passed sugar in urine or that his father had tuberculosis of the lungs before 1965 (see QQ. 77-79 of Atmaram Arya) It is also the evidence of the son Atmaram Arya that his father went to Japan by the end of 1963 and he went alone as a tourist (See QQ. 11-12 of Atmaram Arya). He has categorically stated in Q. 15 that upto 1965 his father was in good health but sometime in 1965 he was feeling same pain in his leg. From that time his father became ill. That was in March or April 1965 (see QQ. 15-16 of Atmaram Arya). He has also categorically stated in Q. 30 that nothing was wrong with his father in September 1964 and in Q. 31 he stated that Dr. Jhaveri was wrong in stating that he examined his father on 24th September 1964. From that time his father became ill. That was in March or April 1965 (see QQ. 15-16 of Atmaram Arya). He has also categorically stated in Q. 30 that nothing was wrong with his father in September 1964 and in Q. 31 he stated that Dr. Jhaveri was wrong in stating that he examined his father on 24th September 1964. It is only on the alleged statement of the deceased to Dr. Chettri and Dr. Jhaveri that he was suffering from diabetes since 1954, the defendant's case was sought to be based, on the basis that the same was the statement of the deceased. In any view, the said statement must have been made either by mistake or not correctly recorded and, in any event, the said statement cannot be admissible under any Section of the Evidence Act and, at least, not under Section 32(2) or (3) of the Evidence Act. 26. Merely on medical expert's evidence, i.e., the evidence of Dr. Chettri and Dr. Jhaveri that the deceased was having diabetes mellitus and coronary occlusion from which the deceased assured was suffering for about 11 years and 3 years respectively cannot prove and satisfy the three conditions under Section 45 of the Insurance Act, 1938, to which reference has already been made as laid down by the Supreme Court decision in Mithoolal's case in AIR 1962 SC 814 . At best those are admissible medical expert's opinion but cannot be the substitute of proof of fraud as required under Section 45 of the Insurance Act. Certainly it cannot prove fraud on the part of the deceased at the time of issue of the said three policies beyond reasonable doubt. 27. The only other evidence strongly relied on is the report of Dr. D. Mukherji and the letter written by him to the LIC to which I have already made repeated reference before. These again, in my view, are not admissible under Section 32(2) or (3) of the Evidence Act and further, the letter with its post-script makes it quite clear that the same has been obtained by the Life Insurance Corporation of India to substantiate the charge of fraud against the deceased assured by putting 1958 as an after-thought when it was not in the original letter written by the said Dr. Mukherji who appears to me to be the family physician and would have been the best witness had the statements been recorded during his life-time in this Court or if he was examined on commission. As I have already recorded that he is alleged to have made the medical report on payment of fees by the Life Insurance Corporation and the witness Moni Mohan Chakraborty, the claim investigation officer of the Life Insurance Corporation of India, has categorically stated that the said Dr. Mukherji had his diary from which he has made out this statement to which reference I have already made. So the said diary was available after the claim was made by the plaintiff i.e. after the assured died and no attempt whatsoever has been made to preserve the same or prove the same before this Court. The Court is bound to draw adverse inference that had the diary been produced before this Court nothing would have been shown that the deceased had diabetes or at least he has been told about the same by the said Dr. Mukherji before all the said three insurance policies were issued in favour of the deceased which are the subject matter of this suit. This is a very serious matter and the Life Insurance Corporation has not taken the matter in its proper perspective and did not realise the importance of positive evidence of fraud to be prayed before the Court in order to avoid the liabilities under the said policies under Section 45 of the Insurance Act, 1938. 28. Therefore, after careful consideration of the entire evidence before me and the conduct of the Life Insurance Corporation I cannot hold that they have proved any fraud whatsoever on the part of the deceased and none of the conditions as laid down by the Supreme Court in Mithoolal's case reported in AIR 1962 SC 814 has been proved to my satisfaction i.e. beyond reasonable doubt as it is required in the case of fraud as the present case of the defendant Life Insurance Corporation of India is. 29. 29. In these circumstances, taking the evidence of the son whom I have no reason to disbelieve save and except being an interested person, I am bound to hold that the defendant has failed to prove the three conditions laid down by the Supreme Court in AIR 1962 SC 814 as it is required that all the three conditions must be present and proved cumulatively. 30. Therefore, the defence must fail and the plaintiff no I who is the joint policy-holder in respect of the first policy dated 23rd December, 1959, and the nominee under the second policy dated 6th February, 1962 and also the third policy dated 17th of September, 1964, under Section 39 of the Insurance Act of 1938 she is the only person who is entitled to a decree as claimed in the plaint. In these circumstances, the plaintiff is entitled to decree as asked for. I am answering the issues as follows :-. Issue No.1 (a): No. Issue No.1 (b) : As the statements were true the question does not arise. Issue No.2: No. There will be a decree for Rs. 75,000/- in favour of the plaintiff No. 1. There will be also a decree in terms of prayer (b). Plaintiff is entitled to costs of this suit. Certified for two Counsel. The plaintiff would inform the defendant pursuant to the previous order made in this suit when commission was issued for examining Dr. Jhaveri and Dr. Chettri as to whether there is any balance left out of the sum deposited by the defendant and if so return the same to the defendant or if there is any deficit that will abide by the result of the decree and to be added to the cost of this suit. Stay asked for by Mr. Pyne is refused.