CHANDRAKANTARAJ, J. ( 1 ) THIS appeal is by the Life Insurance Corporation of India, by its Zonal Manager at Madras and also the Divisional Manager of the same Life Insurance Corporation of India at Udupi. The appeal is directed against the judgement and decree of the Additional Civil Judge at Shimoga in O. S. No. 17/1972. The Judgement is dated 20th Jan. 1976. ( 2 ) THE facts leading to the Suit and consequently this Appeal may be states as follows :- respondent Vasappa, who was the plaintiff in the trial Court prayed for a decree against the respondents the present appellants before us) in the sum of Rs. 1,05. 030-30 together with costs and current interest. The said sum was claimed under two insurance policies taken out by his father bearing Nos. 395964 for Rs. 5,000/- and 39681872 for Rs. 1,00,000. 00. Notice charges of Rs. 30/- was included in the claim. The suit became necessary because the Life Insurance Corporation of India refused to pay the claim made by the plaintiff. Their repudiation of their obligation was based on the provisions contained in S. 45 of the Insurance Act, 1938 (hereinafter referred to as the Act ). ( 3 ) THE plaint averments were as follows : the Plaintiff's (the assured) died on 30th June, 1970. On 10/12th Sept. 1970, a reply was issued by the Divisional Manager at Udupi that on Policy No. 39595964, only a sum of Rs. 1,167/- and in respect of the other Policy that being premature matter regarding the net amount payable would be decided only on admitting the liability. On 19th Jan. 1971, the Zonal Manager addressed a letter to the plaintiff that the amount under Policy No. 3968172 was repudiated and intimated that all monies payable under the said policy stood forfeited. The reason being that the deceased father of the plaintiff had given his age as 49 years and the horoscope sent in support thereof together with the earlier policy showed that the date of birth was different and he did not disclose his correct age in his proposals. He further made it clear in the said letter that the deceased was not less than 50 years of age at that time of insurance. The plaintiff did not accept the repudiation. He got a notice issued through his Counsel from Udupi. He further made it clear in the said letter that the deceased was not less than 50 years of age at that time of insurance. The plaintiff did not accept the repudiation. He got a notice issued through his Counsel from Udupi. The notice was also replied by the appellants, representing the Life Insurance Corporation of India. Plaintiff had done no more than reiterating his claim of insurance in the Lawyer's Notice. ( 4 ) IN the written statement, the fact of taking out the Policies on 24-11-1965 and the second policy on 24-1-1969 was admitted. The policy was for Rs. 5,000/- and the second policy was for Rs. 1,00,000/- was also admitted. That the plaintiff was the nominee under the Policies was admitted by the defendants. The date of death of the plaintiff was also admitted the written statement, the defendants related what had been stated by the Divisional Manager in his earlier letter. They contended that the age given by the Assured was incorrect and that amounted to fraud as he was more than 50 years of age and therefore, there was no liability on the part of the Life Insurance Corporation of India to pay on the policy. They also said that they had information that the plaintiff's father had suppressed information in obtaining the polices and on enquiry the Life Insurance Corporation had found that he had grossly understated the age and therefore the Policy had been obtained with fraudulent intention. In that circumstances, they repudiated liability to pay on the two policies. ( 5 ) ON such pleadings, the Court below framed as many as 8 issues, which are as follows :-" (1) What was the age of the deceased Kadapp Gowda can the date of the proposals relating to the two policies ? (2) Whether the defendants are estopped from questioning the correctness of any information, after the age was admitted by the defendants ? (3) Whether on the death of the insured, the defendants are entitled to re-adjust the premia and reduce the claim up to Policy No. 39595964, on the ground that the information of age given by the deceased was incorrect ? (4) Whether the defendants show that the information regarding the age was inaccurate or false and the statements regarding age was a material matter, which the deceased was found to disclose ? (4) Whether the defendants show that the information regarding the age was inaccurate or false and the statements regarding age was a material matter, which the deceased was found to disclose ? (5) Whether the defendants show that the deceased suppressed the correct age which it was material to disclose and that he knew at the time of making it that the statement was false or that he suppressed the facts which, it was (sic) material or disclose ? (6) Whether the defendants further show that the deceased fraudulently gave an inaccurate age or suppressed the correct age at the time of making a proposal ? (7) Whether the defendants are entitled to repudiate the Policy No. 396818872 on the ground that the correct age was suppressed by the deceased ? (8) Whether the defendants are liable to pay the plaintiff under the two policies as claimed in the Suit ? (9) What decree or order ?on such issues, evidence was led by parties. Plaintiff examined in all 4 witnesses and the defendants examined in all 10 witnesses. The documents marked by the plaintiffs are to be found at Exhibits P-1 to P-13 and for the defendants at Exhibits D-1 to D-15. After hearing the arguments of the Counsel for the parties, the trial Court found on all issues in favour of the Plaintiff and decreed that the defendant-Life Insurance Corporation is liable to pay Rs. 1,167/- under first policy. and Rs. 1,00,000/- under Policy No. 2. ( 6 ) IT is against that decree, the present appeal is filed. Before us, the only point urged by Sri S. V. Ramanna, Learned Counsel for the Appellants-Zonal and Divisional Managers of Life Insurance Corporation of India, is that the assured having died within 2 years after the insurance of the second policy, under S. 45 of the Act, the Life Insurance Corporation was entitled to repudiate its liability. He also urged that such repudiation was based on the fact of the disclosure of incorrect age of assured with fraudulent intention which could be inferred on the facts and circumstances of the case, such as, his taking out the first insurance in 1965 at Shimoga and thereafter the second Policy in 1968 at Chickmagalur. The further fact that the first Policy was for a small amount of Rs. 5,000/- while the second was for a large amount of Rs. 1,00,000/ -. The further fact that the first Policy was for a small amount of Rs. 5,000/- while the second was for a large amount of Rs. 1,00,000/ -. He drew the attention of the Court specially to the evidence of D. W. 10, the scribe of a document to which the deceased father of the plaintiff was a party. The said document was marked as Exhibit D-49. ( 7 ) BEFORE analysing S. 45 of the Act and the right conferred on the Insurer under the said Section, it would be useful to refer to the evidence on which the Court below has relied to come to the conclusion that the discrepancy of the age given was not so material to the issuance of the Policy which would enable the Insurer to repudiate its obligations. We see at Exhibit D-20, the first policy issued for Rs. 5,000/ -. The proposal did not give any specific indicating the date of birth, but merely stated that the date of birth would follow. However, the age was disclosed (by) the assured as 47 years. That was in 1965. In respect of the second policy, date of birth of the assured is shown (in) the proposal as 18-8-1919 and the age as 49 years, in support thereof a horoscope was produced. D. W. 3, the agent of the Life Insurance Corporation, who insured the proposal in his oral evidence stated that he filed the proposal for and entered the date of birth having calculated the same on the basis of the horoscope furnished. This fact possibly cannot be disputed by the Life Insurance Corporation as the same is borne out by records. ( 8 ) WE have, in addition to the policy and the proposal at Exhibits D-20 and D-29, Medical reports which are to be found at Exhibits D-23, D-43 and D-44. These are reports of the panel Doctors of the Life Insurance Corporation obtained at the time of preparing the proposals for the first and second policies. After physical examination, routine or otherwise in 1965, the report dictated that the assured was aged about 48 years. Similarly, in Exhibit D-43, one Doctor opined that the assured is aged about 49 years. The other Doctor opined at D-44 that the estimated age is about 49 years. After physical examination, routine or otherwise in 1965, the report dictated that the assured was aged about 48 years. Similarly, in Exhibit D-43, one Doctor opined that the assured is aged about 49 years. The other Doctor opined at D-44 that the estimated age is about 49 years. In all the reports of the Doctors, the Doctors have opined that the Life of the assured was considered to be good in column 12- (C) of the prescribed proposal form. ( 9 ) AS against this what we have in Exhibit D-49, the sale deed executed by the assured Kadappagowda, the estimated age by the Vendor is shown to be about 40 years on the 4th May 1953 the date of the document. The scribe of the document has given evidence as D. W. 10. On that date (of giving evidence), he was aged about 93 years. In examination-in-chief, he has admitted that he knew Kadappagowda and about 22 years earlier, the witness was about 71 years old. He had scribed the document in connection with the sale effected by the said Kadappagowda. He said Kadappagowda was running a hotel in thatched hut, at that time. The witness asserted that Kadappagowda the assured was about 54 years old and he was about 65 or 68 years old. In cross-examination, he admitted that he had written thousands of documents. He admitted, however, that the age of Kadappagowda was shown in the document as 40 on an estimate made by him. In response to the specific question as to what 'summaru' in Kannada means, the witness said, it may vary from 2 to 7 or 8 years of the actual age. Beyond that, there is no evidence produced by the defendants to determine the correct age of the assured on the relevant dates. In these days, the Life Insurance and other various forms of Insurances have become quite common in this Country. At the relevant time the L. I. C. had been nationalised. It operates throughout the length and breadth of the Country assisted by several Zonal Branches and Divisional Offices, employing lakhs of Agents canvassing people to take out Policies on their life or in any form such as, Annuities, Educational policies in favour of children, etc. At the relevant time the L. I. C. had been nationalised. It operates throughout the length and breadth of the Country assisted by several Zonal Branches and Divisional Offices, employing lakhs of Agents canvassing people to take out Policies on their life or in any form such as, Annuities, Educational policies in favour of children, etc. It is very rate in-deed that a person voluntarily goes and seeks to take out a Policy on his life, more so, in areas, which are not fully urban like a Metropolitan areas. Policies are taken out on the canvassing of the Agents of the L. I. C. who are trained to impart to the assured the benefits. Some time it is possible that on the advice of the tax advisers, people with taxable income take out Insurance Policies of various types for purposes of tax avoidance which will result in lesser burden of tax. The Court should not lose sight of this reality. It is, in evidence that Kadappagouda the deceased father of the Plaintiff-respondent was not a highly educated person. One may even describe him as an illterate. He only knew how to read and write. His initial occupation in 1965 was running of a Non-vegetarian Hotel in 1953. His hotel was in a hut, according to the scribe, in the village. Between 1953 and 1965 he had made much progress. But his progress in 1965 and 1968 was much more in that he had become an Excise Contractor of Thirthalli Taluk, one of the prosperous agricultural areas of Shimoga District. It is in that background, we have to look at the evidence on record both in regard to the age, as well as the conduct of parties. That the Agent, who secured the proposal in 1965 for the first policy was an agent stationed at Shimoga town is not in dispute. That the sum assured that policy was only Rs. 5000. 00. That after the few initial payments amounting to a little over 1,000/- the premiums were not paid and the policy was allowed to lapse. No specific reason has been furnished as to why the policy was allowed to lapse. A fresh policy was indeed applied for in the year 1968 and that was for a large sum. The assured amount being Rs. 1,00,000/- on the life of the assured as we have seen. No specific reason has been furnished as to why the policy was allowed to lapse. A fresh policy was indeed applied for in the year 1968 and that was for a large sum. The assured amount being Rs. 1,00,000/- on the life of the assured as we have seen. But, by that time he had become a wealthy man being a Excise Contractor Mr. S. V. Ramanna, learned Counsel for appellants drew our attention to the fact that the policy was issued from the Chickmagalur Branch Office and not from Shimoga Branch Office as was the case in the first policy issued. He, therefore, wants this Court to draw an inference that the assured was having ulterior motives in doing so. He has no drawn attention to any specific provision of law or contract which forbids anyone in the Country taking Policies from any particular Office or its Branch. On a close scrutiny, we found that the Agent, who canvassed for the second policy was the Development Officer in the L. I. C. , and he was stationed at Koppa, very close to the place of normal residence of the assured Kadappagowda. The geographical situation of the place of residence, is closer to Chick magalur than Shimoga having equally good accessibility by road. Therefore, the place of insurance of the Policy has nothing to do with the ulterior motives suggested by the learned Counsel, but it is clearly traceable to the residence of the Agent, who canvassed the business for the Life Insurance Corporation and no more. ( 10 ) THEREFORE, these circumstances cannot be taken into account or taken notice of muchless relied upon to draw the inference that the second policy was taken out with intention of committing fraud on Insurance Company. Even otherwise, the acceptance of the proposal in both the cases was by the appellants. They had the means and wherewithal to make all cross references to ascertain whether the age given was proper as the assured in the second policy had disclosed the fact of having taken the earlier policy. The age furnished on both occasions is very close to year 1919 in which he claimed to have been born according to the horoscope. They had the means and wherewithal to make all cross references to ascertain whether the age given was proper as the assured in the second policy had disclosed the fact of having taken the earlier policy. The age furnished on both occasions is very close to year 1919 in which he claimed to have been born according to the horoscope. It is said to have been assert to that horoscope had been perused by one of the agents of L. I. C. Therefore, no criminal intention to commit fraud may be inferred because in the first policy he had not furnished any date of birth. It is possible that at the time of issuance of the first proposal, the Agent did not insist upon the date of birth and therefore left the column blank to be furnished later as is evidenced by the proposal itself. Therefore, the discrepancy now sought to be read into the age furnished besides the age spoken to by the witness D. W. 10, we do not have any material to come to the conclusion that the age was 'material' for the issuance of the policy. The discrepancy may have been due to ignorance and partly due to the indifference of the canvassing agents of the appellants. ( 11 ) WE will shortly hereinafter advert to the argument whether such discrepancy in age is material to the issuance of the Policy or not. But, the preponderance of evidence is that the age furnished in the proposals would be closer to the age estimated by the Doctors who physically examined the assured. Therefore, we have no hesitation to sustain the conclusion reached by the trial Court in that behalf. Now the main argument of Sri S. V. Ramanna, learned Counsel for the appellants is that for the issuance of a Life Insurance Policy, the age is material and therefore the petitioner having suppressed his real age which ought to have been far in excess of 50 according to the evidence of D. W. 10 seen in the light of Exhibit-D-49 and therefore the Policy was obtained fraudulently and as such in terms of S. 45, the appellants were justified in repudiating their obligation under the policies in question. He had drawn our attention to the principle laid down by the English Courts in Dawsons Ltd. v. Bonnin, 1922 All ER 88. He had drawn our attention to the principle laid down by the English Courts in Dawsons Ltd. v. Bonnin, 1922 All ER 88. At page 93 Viscount Haldane has stated as follows, quoting from an earlier decision :"without going so far as to hold that this rule is also applicable to the construction of life policies generally, he thought that it applied to the life policy, before him. and said. ". . . . . . . . when we look at the terms of this contract, and see that it is expressly said in the policy, as well as in the declaration itself, that the declaration shall be the basis of the policy, it is hardly possible to avoid the conclusion that the truth of particulars (which I think, include the statement that he was of temperate habits) is warranted. . . . " we certainly cannot disagree with that proposition attributed to Lord Blackburn as is evident from the fact that could be gathered from the extract. The declaration made by the insured in that case was in respect of a suppression of the fact that the insured was a heavy drinker and that he was of moderate habits as declared. On fact it was found to be incorrect and therefore such declaration was held to be the basis of acceptance of the proposal to issue the policy. Viscount Haldane, however relied upon the ruling and applied the principles to the facts of the case of Dawsons Ltd. , which was in respect of the insurance taken to protect motor vehicle against fire accident. In the declaration it had been stated that the vehicle was garaged normally at a particular place; but actually it was burnt at another place where it had been garaged. It was proved and it was the normat place of garage where it had met with a fire accident. Therefore, in the case, they had no hesitation to come to the conclusion that declaration as to the place of garaging was material to the Issuance of the Policy covering that vehicle against fire accidents. ( 12 ) ONE may not dispute the accuracy of that statement. The question is now well settled that what is material and what is not material will vary from case to case and it has to be ascertained judicially on the basis of the facts of each case. ( 12 ) ONE may not dispute the accuracy of that statement. The question is now well settled that what is material and what is not material will vary from case to case and it has to be ascertained judicially on the basis of the facts of each case. No hard and fast rule can be laid, by which it can be categorically stated that a particular thing is material in every contract. We may even go to the extent of stating that in the case of Life Insurance, age is a material fact, if as a matter of fact it is proved that the suppression of age is so much (that) the fraud may straightway tae implied; say for instance, a 70 years old person takes out a policy declaring himself to be 40 years, such declaration cannot but be with fraudulent intention. That is not the case here. Even if this Court was to lean in favour of evidence adduced by the appellants at best, he would be 52 or 53 and that as submitted by the learned Counsel for the appellants is well below the insurable age, which we are told is 60 years. Undoubtedly, if a person is more than 50 years old, the rules and the contracts of the LIC. , provide for his examination by more than one Doctor and nothing more. ( 13 ) IT is correctly observed by the Author, the duty, in such a case is to disclose every material fact, namely, every circumstance which would influence the judgement of a prudent insurer in fixing the premium or his determining whether he will take the risk. However, the Author has further observed that, generally speaking, facts may be material because their existence renders the subject matter of the insurance peculiarly susceptible to a peril to be insured against or because they indicate that the assured is a person, whose proposal need a special consideration. From that it is clear age in every vase need not be material in regard to the acceptance of the risk, though it will be material to the fixing of quantum of premium in relation to the sum assured. What further emerges from the above principles is, the contract in regard to Life Insurance fall into that class of contracts, which are described as 'uberrima Fides' i. e. contracts of utmost good faith. What further emerges from the above principles is, the contract in regard to Life Insurance fall into that class of contracts, which are described as 'uberrima Fides' i. e. contracts of utmost good faith. This Court had occasion to consider in the case of Life Insurance Corporation of India v. Canara Bank Ltd. , (1973) 2 Mys LJ 117 the scope of S. 45 of the Act. A Division Bench of the Court on the facts of that case held that there was suppression of material facts and that the assured had deliberately withheld the fact of his hospitalisation with the fraudulent intention of inducing the insurer to accept the risk. The fact was a material one from the point of view of the insurer and the acceptance of the risk by it. There was evidence that the assured was fully aware of hospitalisation and the treatment at the time he sent up his proposals for insurance. Therefore, they held that S. 45 of the Act was applicable to the facts of the case and the claim in respect of the policies could not succeed. Thus, that S. 45 of the Act provides a safeguard to the insurer is put beyond the pale of doubt. The argument of Shri. V. Ramanna that this case with which we are now concerned comes within the ambit of S. 45 is difficult to accept. S. 45 reads as follows :"45. Thus, that S. 45 of the Act provides a safeguard to the insurer is put beyond the pale of doubt. The argument of Shri. V. Ramanna that this case with which we are now concerned comes within the ambit of S. 45 is difficult to accept. S. 45 reads as follows :"45. No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effect after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false or that it is suppressed facts which it was material to disclose. Provided that nothing in this Section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal. " (underlining is ours)FROM the language of the Section, it is clear that it is only the second part of the Section which confers on the insurer an opportunity to repudiate its obligation only on proof that in the proposal the assured had declared or failed to declare the correct position with the fraudulent intention of inducing the insured to accept the proposal. If that is not established, the burden of establishing age is on the insured, if the insured does not establish it by independent evidence, the fraudulent intention and the deliberate suppression of misstatement material (sic) to the acceptance of the proposal then the insurer cannot succeed on the basis of the S. 45 of the Act. If that is not established, the burden of establishing age is on the insured, if the insured does not establish it by independent evidence, the fraudulent intention and the deliberate suppression of misstatement material (sic) to the acceptance of the proposal then the insurer cannot succeed on the basis of the S. 45 of the Act. ( 14 ) THIS is the view taken by a learned single Judge of High Court of Bombay in the case of Asha Goel v. Life Insurance Corporation of India, AIR 1986 Bom 412 . The learned Judge dealing with the scope and analysis of S. 45 has held as follows :-"7. . . . . . . . AN analysis of this provision of law shows that the insurer (LIC in our case) under the first part of S. 45, cannot repudiate any policy of life insurance two years after it was effected merely on the ground that the time of taking the policy, inaccurate or false statement was made by the policy holder. But under the second part if the insurer can show that such statement was on a material matter or the statement suppressed facts which it was material to disclose and that the suppression was fraudulently made by the policy holder and further that the policy holder knew at the time of making if that the statement was false or that it suppressed facts which it was material to disclose, then the insurer can repudiate the policy. In other words, under the first part of this Section, the policy cannot be avoided by the insurer on the ground of inaccurate or false statement after the expiry of two years of effecting the policy but the insurer can do so if it can be established that the statement made by the policy holder was not only inaccurate or false but it was also on a material matter or that it suppressed fact which it was material to disclose and that it was fraudulently made and the policy holder knew at the time of making the statement that it was false to his knowledge or that the facts which it was material to disclose were suppressed by him. . . . . . . "that view expressed is not different from what we have said. . . . . . . "that view expressed is not different from what we have said. In the absence of any evidence other than that of D. W. 10, and Exhibit D-49, there is nothing done by the Appellants to place before the Court independent evidence to prove that the deceased-assured-had deliberately made a non-disclosure in his proposal and that nondisclosure was with fraudulent intention to defraud the insurer. We, therefore, do not see any reason to disagree with the findings of the trial Court. The appeal is misconceived and is therefore dismissed with costs. Appeal dismissed. --- *** --- .