JUDGMENT K.S. Varma, J. - Late Mr. Farooq Ahmad Khan, husband of the Plaintiff-Appellant was insured for a sum of Rs. 11,000/- with the Life Insurance Corporation of India. The policy No. is 28071132. The policy was to take effect from 1.1.1975. At the time the contract of insurance was entered into Farooq Ahmad Khan was medically examined by the doctor of the Defendant-Life Insurance Corporation and he was found fit for being insured. On the report of the doctor the assured was insured under the said policy. Farooq Ahmad Khan, since deceased, was an employee of Punjab National Bank and posted at Chowk Branch, Lucknow. The premium on the policy was paid upto date. Farooq Ahmad Khan died on 11.4.1977 and the Plaintiff Mrs. Shakra Khatoon in her capacity as nominee claimed the amount under the policy from the Defendant. The Defendant-Life Insurance Corporation accepted the liability to pay and promised to pay the amount under the policy upon the compliance of formalities. But later on by means of letter dated 14/20th September, 1977, the payment was refused. The letter was received by the Plaintiff on 24.9.1977. According to the Plaintiff the grounds for forfeiting the policy were untenable and uncalled for and by notice dated 26.6.1978 the Plaintiff called upon the Defendant to pay the entire amount within the statutory period. The notice was served upon the Defendant, the Defendant failed to pay the amount, hence the Plaintiff filed the suit for recovery of Rs. 11,000/- with costs against the Defendant. 2. The Defendant has admitted that the deceased was insured for a sum of Rs. 11,000/- and that he was medically examined by the Defendant's medical examiner. The Defendant's case is that the deceased had deliberately withheld vital and essential information regarding his health and illness. The case is that the deceased made false statements knowingly and with a view to mislead the examining doctor and to defraud the Defendant. On enquiry being made by the Defendant it was found that vital information in regard to his health was deliberately withheld by the deceased. The deceased was suffering from chronic cough expectoration and fever off and on and had taken treatment therefor. It is also contended by the Defendant that the deceased was absent from duty off and on, on the ground of sickness. The deceased was suffering from chronic cough expectoration and fever off and on and had taken treatment therefor. It is also contended by the Defendant that the deceased was absent from duty off and on, on the ground of sickness. The main case of the Defendant is that the information given by the deceased in regard to his health was false and untrue and it was on account of false and untrue statement given out by the deceased that the insurance policy has become null and void. The Defendant accordingly denied the claim of the Plaintiff by letter dated 14.9.1977. On the above pleadings the following two issues were framed: (1) Whether the insured deceased suppressed the material facts which were the basis of the contract and due to this, the contract of insurance is liable to be forfeited, as alleged in paragraphs 17 to 23 of written statement? (2) To what relief, if any, is the Plaintiff entitled? 3. The trial court by its judgment and decree dated 30.9.1980 decreed the Plaintiffs suit for recovery of Rs. 11,000/- with costs against the Defendant. On issue No. 1 the finding recorded was that the case of the Defendant that the assured had suppressed material facts knowingly and fraudulently was not worthy of credence. The specific finding recorded by the trial court was that at the time of submitting the proposal Exh. A-4 and personal statement Exh. A-5, the deceased had no knowledge of the fact that he was suffering from tuberculosis. It was also found that the facts mentioned in the proposal and personal statement were not made fraudulently. 4. Aggrieved by the decree passed by the trial court, Life Insurance Corporation of India filed an appeal before the District Judge, Lucknow. The appeal was heard by the II Additional District Judge, Lucknow who by judgment and decree dated 5.10.1981 allowed the Defendant's appeal and dismissed the Plaintiffs suit. The Plaintiff aggrieved by the decree passed by the lower appellate court has come up in second appeal before this Court. 5. Before dealing with the points raised by the learned Counsel for the Appellant it would be appropriate to deal with the principles which govern contracts of insurance. The Plaintiff aggrieved by the decree passed by the lower appellate court has come up in second appeal before this Court. 5. Before dealing with the points raised by the learned Counsel for the Appellant it would be appropriate to deal with the principles which govern contracts of insurance. The law relating to contract of insurance is part of the general law of contract and contracts of insurance are, however, a species of that special class of contract which requires utmost good faith from the life assured. The contract of insurance is a contract uberrima fides which requires the life assured to disclose all facts which would effect the insurer to enter into a contract of insurance. Under this class of contract it is the duty of the claimant to establish that the life assured made correct statements about his health and about all those matters which affect the insurer to agree to insure the life of a person. Under the contract of insurance the assured is under duty to disclose all material facts relating to insurance which he proposes to affect. In addition he is expected not to make any misrepresentation regarding facts relating to his health. The burden of proving that there has been a breach of duty on the part of the assured rests on the insurer. The person seeking to be insured is expected to know all circumstances which materially affect the risk and the only person who has the knowledge in this respect. The insurer, cannot as a rule, know or have opportunity to learn by enquiry, circumstances which are, or may be, most material to the formation of his judgment as to his acceptance or rejection of the risk. The insurers are thus in very favourable position that they are entitled not only to bona fide but also to full disclosure of all knowledge possessed by assured which is material to the risk. The failure on the part of the assured to disclose material facts is sometime called 'concealment'. The word implies the keeping back or suppression of something which it was the duty of the insured to bring specially to the notice of the insurer. The term 'non-disclosure' perhaps would be more appropriate. The failure on the part of the assured to disclose material facts is sometime called 'concealment'. The word implies the keeping back or suppression of something which it was the duty of the insured to bring specially to the notice of the insurer. The term 'non-disclosure' perhaps would be more appropriate. Every contract of insurance proceeds on the basis that the duty of disclosure has been discharged by the assured and the failure to discharge it renders the contract voidable at the instance of the insurer. As regards the duty of the assured the legal position is well established that there is no duty to disclose facts which the assured did not know and which he is not expected to know at any material time. This principle has been explained by Fletcher Moulton, J. in Joel v. Law Union and Crown Insurance Co., (1980) 2 KB 863. The following observations of the learned Judge are quoted below: But the question always is: was the knowledge you possess such that you ought to have disclosed it? Let me take an example. It will suppose that a man, as is the case with most of us, occasionally had a headache. It may be that a particular one of those headaches would have told a brain specialist of hidden mischief. But to the man it was an ordinary headache undistinguishable from the rest. Now, no reasonable man would deem it material to tell an insurance company of all the casual headaches he had in his life, and if he knew no more as to this particular headache than that it was an ordinary casual headache, there would be no breach of his duty towards the insurance company in not disclosing it. He possessed no knowledge that it was incumbent on him to disclose, because he knew of nothing which a reasonable man would deem material, or of a character to influence the insurers in their action. It was that he did not know which would have been of that character, but he cannot be held liable for non-disclosure in respect of facts which he did not know. 6. It is the common practice in contracts of insurance that the assured is put questions on behalf of the insurer and he is required to answer them. It has to be seen whether statement made in answer to question is substantially accurate. 6. It is the common practice in contracts of insurance that the assured is put questions on behalf of the insurer and he is required to answer them. It has to be seen whether statement made in answer to question is substantially accurate. A trivial misstatement or an omission of material details does not render it inaccurate. It is a general principle that a fair and reasonable construction must be placed on the questions in the proposal form and on the answers which the proposer has given. In this connection the observations of Lord Shaw of Dunfertine in Condogianis v. Guardian Assurance Co. (1921) 2 AC 125, may be quoted: In the contract of insurance it is a weighty fact that the questions are framed by the insurer and that if an answer is obtained to such question which is upon a fair construction a true answer, it is not open to the insuring company to maintain that the question was put in a sense different from or more comprehensive than the proponent's answer covered. Where an ambiguity exists, the contract must stand if an answer has been made to the question on a fair and reasonable construction of that question. Otherwise the ambiguity would be a trap against which the insured would be protected by courts of law. Their Lordships accept that doctrine to the full, and no question is made of the soundness of it as set forth in many authorities. 7. In this background, the question arises as to what are material facts which are required to be disclosed by assured. In determining this question the test would be whether a prudent and experienced insurer would be influenced in his judgment if he knew of it. The test is not whether the insurer in question, if he is a prudent one, would have himself been influenced, but whether, applying the standard of judgment of a prudent insurer, the insurer would have been influenced in his judgment. It is the circumstances existing at the time when a fact ought to be disclosed, i.e., before the formation of the contract, and not their results, which are to be considered in determining whether any given fact is material. A state of affairs is not material simply because it causes the loss in question. It is the circumstances existing at the time when a fact ought to be disclosed, i.e., before the formation of the contract, and not their results, which are to be considered in determining whether any given fact is material. A state of affairs is not material simply because it causes the loss in question. The question of materiality is a question of fact in each case, and the decided cases give no more than an indication of what conclusion a court would reach in a particular case. Under the English law the principle is that if certain information conveyed to the insurer has been made the basis of the contract then if the basis is found to be incorrect, the insurance policy can be vitiated irrespective of whether information suppressed was material or not. There is a good deal of English case law dealing with cases where answer to questions have been made the basis of the policy. In such cases the courts have held that if the information conveyed is found to be incorrect then that alone is sufficient to vitiate the policy and it is not necessary to go into question whether the information supplied was material or not. 8. In India the law of insurance is contained in the Insurance Act, 1938. An insurance policy under the Indian law can be avoided only if the case falls within the four-corners of Section 45 of the Insurance Act (hereinafter referred to as, 'the Act')- A perusal of the said section would indicate that the Indian law has provided that the insurance policy cannot be avoided simply by showing inaccuracy or falsity of the statement made in the proposal of the insurance or in any report of the medical officer or in other document leading to the issue of the policy. It could be called in question only if the statement made was fraudulently made and the insured knew at the time of making it that the statement was false. In New India Assurance Co. Ltd. Vs. It could be called in question only if the statement made was fraudulently made and the insured knew at the time of making it that the statement was false. In New India Assurance Co. Ltd. Vs. Tambireddi Subba Raghavareddi, AIR 1961 AP 295 , the court observed that u/s 45 of the Act the insurance policy cannot be avoided on the ground of misstatements or untrue answers, unless the insurers are able to establish: (1) That the statement was inaccurate or false, (2) that such statement was on a material matter or that the statement suppressed facts which it was to disclose, (3) that the statement was fraudulently made by the policy-holder, and (4) that the policy-holder knew at the time of making the statement that it was false to his knowledge or that facts which it was material to disclose had been suppressed. 9. In a recent decision of the Supreme Court reported in Mithoolal Nayak Vs. Life Insurance Corporation of India, AIR 1962 SC 814 , S.K. Das, J. at page 819 observed as follows: The three conditions for application of the second part of Section 45 are-- (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. In view of the provisions of Insurance Act, 1938 and further in view of the principles enunciated by the Hon'ble Supreme Court in Mithoolal Nayak Vs. Life Insurance Corporation of India, AIR 1962 SC 814 , it appears that under the Indian law an insurance policy can be avoided only if the conditions of Section 45 of the Act are complied with. 10. The question that now awaits consideration of this Court is whether the policy in question can be avoided by the insurer, regard being-had to the principles contained in Section 45 of the Act and the principles enunciated in Mithoo Lal Nayak v. Life Insurance Corporation of India (supra). The case put forward by the Defendant in the written statement is that Farooq Ahmad Khan submitted a proposal for insurance accompanied by personal statement dated 30.9.1975 (sic.) and 31.3.1975 with the Defendant's Chowk Branch office at Lucknow. The case put forward by the Defendant in the written statement is that Farooq Ahmad Khan submitted a proposal for insurance accompanied by personal statement dated 30.9.1975 (sic.) and 31.3.1975 with the Defendant's Chowk Branch office at Lucknow. In the said proposal and personal statement form Farooq Ahmad Khan made a declaration that the statement given in the proposal form and personal statement in question were true in all particulars and no information has been withheld and he further agreed and declared that the said statements and declarations shall be the basis of the contract of insurance. It is further maintained by the Defendant that on the basis of information contained in the aforesaid proposal form and personal statement, the policy bearing No. 28071132 was issued by the insurer as stated in paragraphs 18 to 23 of the written statement. Paragraphs 18 to 23 of the written statement are reproduced below: (18) That the personal statement dated 31.3.1975 contained amongst others the following questions which were replied by the deceased Farooq Ahmad Khan as mentioned against them: Question Answer (4) (a) What has been your usual state of health? Good (b) Have you consulted a medical practitioner within the last 5 years? if so give details. No (6) Have you ever suffered from following ailments: any of the (b) persistent cough, asthma, pneumonia, pleurisy, spitting of blood, tuberculosis or any other affection of lungs? No (d) sprue, jaundice, anaemia, piles, dysentry, cholera, abdominal pain, appendicitis or any disease of the stomach, liver, spleen or intestine? No XXX XXX XXX (j) malaria, typhoid, influenza, kala azar, filariasis or any other fever lasting for a week? No (k) any other illness within the last five years requiring treatment for more than a week? No (19) That the life assured was reported to have died on 11.4.1977 as intimated by the Plaintiff. Since death had taken place shortly after the issue of the policy, necessary investigations were conducted to ascertain the bona fides of the claim. (20) That the enquiries revealed that the deceased assured, Farooq Ahmad Khan, was not keeping good health before and at the time of submitting the proposal for insurance. In fact he had been suffering from chronic cough expectoration, fever off and on, weakness and loss of appetite, etc. for which he had consulted medical men and taken treatment therefor. (20) That the enquiries revealed that the deceased assured, Farooq Ahmad Khan, was not keeping good health before and at the time of submitting the proposal for insurance. In fact he had been suffering from chronic cough expectoration, fever off and on, weakness and loss of appetite, etc. for which he had consulted medical men and taken treatment therefor. Moreover, Farooq Ahmad Khan had also remained absent from his work on the ground of sickness for considerably long period prior to the submission of the proposal in question. He did not, however, disclose these facts in his personal statement and instead gave false answers to the relevant questions. (21) That the answer given by the deceased assured to the various questions as mentioned in Para 18 above, were evidently false and untrue and he knowingly and deliberately gave false answers to procure the insurance with a view to defraud the Defendant. (22) That if the deceased, Farooq Ahmad Khan, had given true and correct answers to the various questions as aforesaid, the Defendant would not have accepted risk on his life and issued the policy in dispute. (23) That on account of untrue and false answers deliberately and knowingly given in the proposal and personal statement forms, the contract of insurance became absolutely null and void in terms of the agreement and declaration made between the deceased and the Life Insurance Corporation as contained in the proposal form and personal statement and the monies paid under the policy accordingly stand forfeited and nothing is now payable under the policy. The claim preferred by the Plaintiff was under the circumstances rightly repudiated by the Defendant vide its letter dated 14.9.1977. According to the Defendant, six or seven years before his death, the deceased was suffering from bilateral - pulmonary tuberculosis and jaundice and that illness was deliberately concealed in the personal statement which was material to the contract of insurance and thus the policy is to be rescinded. 11. Before the insurance policy was issued to the deceased he was required to make a statement which is headed as personal statement. Question No. 6 reads as follows: 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 the lungs. 11. Before the insurance policy was issued to the deceased he was required to make a statement which is headed as personal statement. Question No. 6 reads as follows: 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 the lungs. The answer is, No. (j) Malaria, typhoid, influenza, kala azar, filariasis or any other fever lasting for a week. The answer is, No. (k) Any other illness within the last five years requiring treatment for more than a week. The answer is, No. It may be noted that this 'personal statement' was made on 31.3.1975. Before the issuance of insurance policy the deceased was also, examined by a doctor who submitted a confidential report to the Defendant. One Dr. V.K. Khanna examined him and submitted his report which is on the file of the case. A perusal of the said report would indicate that the doctor certified that his general appearance was healthy and physical development normal. He also reported that the deceased had led a healthy life. In regard to the condition of chest the doctor reported that the lungs were healthy in every respect and there was no evidence or history of spitting of blood, bronchitis or pleurisy. After this report the insurance policy was issued to the deceased. The case of the insurer is that the evidence produced on their behalf indicates that the deceased suppressed material facts in answers to questions indicated in paragraph 18 of the written statement. It is maintained that although the deceased mentioned that he did not suffer from the ailments indicated in paragraph 18 of the written statement but the evidence reveals that he suppressed these facts. In support of his contention the insurer has relied upon various documents, which, according to the Defendant, indicate that he was suffering from tuberculosis and other ailments which he had concealed at the time of his giving personal statement. Great reliance was placed by the learned Counsel for the Defendant-Respondent on paper No. 19 Ga, which is certificate of hospital. It is dated 11.2.1978. In this certificate it is stated that the deceased was admitted in the Medical College, Lucknow, for treatment of tuberculosis. The doctor has reported that the deceased was suffering for the last seven years with cough, expectoration, breathlessness and chest pain. It is dated 11.2.1978. In this certificate it is stated that the deceased was admitted in the Medical College, Lucknow, for treatment of tuberculosis. The doctor has reported that the deceased was suffering for the last seven years with cough, expectoration, breathlessness and chest pain. The certificate also states that his ailment was diagnosed as pulmonary tuberculosis. On the basis of the report and other documents relating to the treatment of the deceased in the Medical College, Lucknow, it is contended by the insurer that the deceased was suffering from tuberculosis and was suffering from ailments in regard to chest for the last seven years and since he concealed these facts the insurance policy can be avoided at the instance of the insurer. The lower appellate court has accepted the contention of the Life Insurance Corporation but in my opinion the line of reasoning adopted by the lower appellate court is incorrect. It is not in dispute that the insurance policy was issued to the deceased which was to commence from 1.1.1975. The statements made by the deceased incorporated in paragraph 18 of the written statement were made in 1975. As stated earlier, before issuing the policy the deceased was examined by a doctor who submitted a confidential report to the insurer. A perusal of the report indicates that at that time he did not suffer from any ailments now attributed to him. As a matter of fact the confidential report of the doctor indicates that he certified that the deceased was fit to be insured. What has to be seen is whether on the date of the contract of insurance the deceased made any statement which was fraudulent and which had been made by suppressing material facts which would affect the insurer to issue a policy. It has also to be seen whether the deceased made incorrect statements in regard to his health fraudulently to secure an insurance. What has to be seen in such cases is whether on the date of contract of insurance there was any reasonable basis on which the assured knew or had reason to know the disease with which he was subsequently found to suffer. It is a matter of common knowledge that a man can only disclose what he knows. What has to be seen in such cases is whether on the date of contract of insurance there was any reasonable basis on which the assured knew or had reason to know the disease with which he was subsequently found to suffer. It is a matter of common knowledge that a man can only disclose what he knows. If he knows facts then he is bound to disclose but if a man does not know that he is suffering from a particular ailment and there is no basis upon which knowledge can be attributed to him that he suffers from the ailment then it cannot be said that at the time of making statement the deceased made false statement material to the issue of policy fraudulently. There is nothing on record to indicate that l IK I c was material on the basis of which knowledge could be attributed to the deceased that he was suffering from tuberculosis. The copies of reports obtained from Medical College, Lucknow indicate that he was suffering from tuberculosis at the time when he was admitted. In my opinion that is not enough. Before responsibility can be fastened it has to he further established that the deceased knew or had reason to know that he suffered from the diseases which are attributed to him. The doctor in his confidential report has reported that he is fit to be insured. From the answers to the questions put to the deceased it does not appear that he knew that he suffered from tuberculosis. A person may be suffering from a very serious illness but if he does not know about that illness then it cannot be said that the information furnished by him at the time of the contract was false merely because subsequent evidence proved that he was suffering from tuberculosis. The nature of illness can be diagnosed by an expert; a lay person may treat cold and cough as minor ailments but the doctor after examining the patient- may come to the opinion that the patient is suffering from tuberculosis. In the instant case, as observed earlier, there is no material on the basis of which it can be said that the deceased had reason to believe that he was suffering from tuberculosis. In the instant case, as observed earlier, there is no material on the basis of which it can be said that the deceased had reason to believe that he was suffering from tuberculosis. It may be that after the insurance policy was issued it was discovered that he was suffering from tuberculosis and the doctors apprised him of the fact that he was suffering from that ailment but on that account it is not possible lot the insurer to get the insurance policy avoided The main aspect that is important in this case is that the Respondent has failed to produce any evidence and has not indicated any circumstances which would warrant the conclusion that at the time of making statement the deceased knew that the statements made by him were false to his knowledge. It is unnecessary to refer in detail to documentary evidence in the shape of reports obtained from the Medical College. There is no denying the fact that he died of tuberculosis but that does not mean that at the time of entering into contract of insurance he knew about the nature of his illness. The medical report also indicates that it was during his treatment in the hospital that the insured developed jaundice. 12. In The Life Insurance Corporation of India South Zone, Madras and Another Vs. Bhogadi Chandravathamma, AIR 1971 AP 41 , it was observed by the High Court that the confidential reports submitted by the medical examiners of the Corporation will have to be accepted as true, as ordinarily the presumption is that they submitted the reports only after a thorough and careful examination of the proposers in accordance with the questionnaire, unless it is shown by the Corporation that either the Medical Examiner who submitted the report made a false record or that the proposer made a fraudulent suppression of the material facts. In the instant case the confidential report of the medical examiner Dr. V.K. Khanna was not challenged by the Corporation and the Corporation also failed to establish that at the time the assured made answers to questions he knew or had reason to believe that he was suffering from the ailments attributed to him. 13. In the instant case the confidential report of the medical examiner Dr. V.K. Khanna was not challenged by the Corporation and the Corporation also failed to establish that at the time the assured made answers to questions he knew or had reason to believe that he was suffering from the ailments attributed to him. 13. It was next contended on behalf of the insurer that in reply to questions in paragraph 18, the evidence led by the insurer establishes that the deceased did suffer from the ailments in respect of which enquiry was made from him. There is yet another principle which has to be borne in mind in determining the effect of answers to questions put to assured. The questions and answers should be given a reasonable interpretation and they should be considered as a whole. For instance, one of the questions put is, have you consulted a medical practitioner within the last five years? If so give details. The answer is No. It is virtually impossible for a person to recollect how many times he consulted a doctor. To a lay person a particular physical ailment may not be of any consequence and he may ignore it. A minor illness like fever or cough is always ignored and no importance is attached to it. The consultation or non-consultation of a medical practitioner is of no consequence. Unless the illness is of such a nature as to affect the opinion of the insurer to eater into a contract of insurance, lapse on the part of the assured in regard to disclosure of minor illness would not be said to be concealment of material fact. Great emphasis was laid by the learned Counsel for the Respondent that in reply to the questions put to the assured whether he consulted a medical practitioner within the last five years, he replied No. This reply according to the learned Counsel for the Respondent appears to be absolutely unreliable as a person suffering from tuberculosis and chest disease would have to consult a doctor frequently. It is not possible to agree with this argument. It is not possible to agree with this argument. If at the time of entering into insurance contract the deceased was not aware that he was suffering from any serious illness then whether he consulted any doctor within five years or not may be correct or may not be correct but the statement would not be a statement which might materially affect the insurer in issuing the insurance policy. 14. Learned Counsel for the Respondent relied upon the statement of Dr. Zafar Jamil who was examined in court. His evidence is relevant only to this extent that when deceased was admitted in the hospital he diagnosed the deceased as a patient of tuberculosis and he administered medicines for that disease but the statement does, not, however, help the insuner as it does not establish that at the time the contract of insurance was entered into, the deceased: knew that he was suffering from tuberculosis. The history sheet from the medical college indicates that he was admitted on 2.4.1976 and was discharged on 21.7.1976. During this period it came to light that the deceased was suffering from tuberculosis and was given treatment in respect of that disease. His condition showed improvement but then he was admitted again on 11.3.1977 and. died on 11.4.1977. The attention of the court was drawn to the evidence led by the insurer in the shape of reports from the Lucknow Medical College giving out the fact that in 1976-77 the deceased was suffering from tuberculosis which is a very serious illness and might have affected the opinion of the insurer to enter into a contract of insurance with the assured. But the evidence on record is completely silent on the question whether at the time the contract of insurance was entered into, the deceased, knew or had reason to believe that he was suffering from any of the ailments attributed to him now. Section 45 of the Act requires that the insurance, policy can be avoided only if it is established that the policy holder knew or 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. In the absence of any evidence that the deceased knowingly suppressed facts, it is not open to the Defendant to avoid the contract of insurance. that it suppressed facts which it was material to disclose. In the absence of any evidence that the deceased knowingly suppressed facts, it is not open to the Defendant to avoid the contract of insurance. The learned Counsel for the Respondent strenuously contended that at any rate the leave applications which are on record contain an admission about his illness and the said applications clearly prove that the deceased suppressed the illness which he indicated in the leave applications. I have examined all these applications. In all of them it has been stated that "I am not feeling well." A slight indisposition now and then will not be enough to attribute the assured to the knowledge that he was suffering from a serious illness. One of the leave applications is supported by medical certificate which indicates that the deceased was suffering from fever. The fact that a person suffers from slight cough or occasional fever cannot be treated as a material fact which would justify avoidance of an insurance policy by the insurer. 15. After having examined the evidence on record, I find that there is no evidence to establish that the assured knew or had reason to believe that He was suffering from serious illness as- tuberculosis at the time he entered into contract of insurance with the Defendant-Respondent. Even if there was any minor deviation from correct answer, such a deviation was net material. The evidence on record adduced by the Defendant does not establish that the assured at the time of making statement knew that it was false or that he suppressed facts which it was material to disclose. In my opinion, the Defendant has failed to establish by cogent and reliable evidence that at the time of entering into contract of insurance the deceased made any incorrect statement knowingly and fraudulently. The conclusion that I have reached finds support from the fact that the confidential report prepared by Dr. V.K. Khanna has not been challenged by the insurer. That report completely supports the case of the assured that at the time of the insurance he was in an insurable state of health. Learned Counsel for the Respondent relied on Krishna Wanti Puri Vs. The Life Insurance Corporation of India, Divisional Officer, New Delhi and Another, AIR 1975 Delhi 19 . That report completely supports the case of the assured that at the time of the insurance he was in an insurable state of health. Learned Counsel for the Respondent relied on Krishna Wanti Puri Vs. The Life Insurance Corporation of India, Divisional Officer, New Delhi and Another, AIR 1975 Delhi 19 . The said case is distinguishable from the facts as in that case on facts it was found that the answer of the assured was fraudulently made by him. 16. For the reasons stated above, the appeal is allowed. The decree passed by the lower appellate court dated 5.10.1981 is set aside and the decree passed by the trial court is restored. The Appellant will be entitled to costs of this Court and the courts below.