Judgment The instant First Appeal is directed against the Judgment and decree dated 7.1987 whereby the learned Additional District Judge No. 2, Ajmer dismissed the suit filed by the plaintiff appellant for recovery of Rs. 36,000/-. Briefly put, the plaintiff appellant filed the suit with the averments in the plaint that the defendant was the Corporation established under the Life Insurance Corporation of India Act, 1956. The plaintiff husband late Shri Belaram submitted a proposal for insurance of his life for a sum of Rs. 25,000/-on 211.1976 to the Life Insurance Corporation of India, Ajmer Division, Ajmer (“LIC” for short). According to the plaintiff , the proposal was accepted and consequently first yearly instalment of extra premium amounting to Rs. 2,245/-paid by the proposer was adjusted and Policy Rs. 25833199 under the Table and Term 24-15 wa issued to Belaram commencing the risk from 22.1977. The second yearly instalment due on 22.1978 was also paid and the policy remained in force. The insured Shri Belaram died on 17.1978 and the plaintiff being the nominee in the aforesaid policy became entitled to claim the policy amount which claim was made by her. However, under a letter received by the plaintiff on 29.1979, the defendant informed the plaintiff that they had decided to repudiate all liabilities under the aforesaid policy as the deceased withheld material information regarding his health. The plaintiff made a representation on 11.1979 for sympathetic consideration and issued reminders and also served a notice dated 19.3.1981 through her counsel but without any effect. The plaintiff averred that the allegation of withholding material information by the deceased was thoroughly incorrect and reputation claimed by the defendant was against the contract and the governing law. Besides the sum assured of Rs. 25,000/-, the plaintiff claimed bonus of Rs. 2000/-and interest @ 12 per annum from the date of death of her husband and hence filed the suit for recovery of Rs. 36,000/-and other ancillary reliefs. The defendant LIC in its written statement averred inter alia that the proposal was submitted with the desire of perpetuating fraud in the matter of obtaining policy. The averment regarding extra premium and commencement of policy were not disputed with the contention that at that time the defendant was not aware of the fraud. The defendant maintained that the claim was rightly repudiated for the reason stated in the reputation letter. The averment regarding extra premium and commencement of policy were not disputed with the contention that at that time the defendant was not aware of the fraud. The defendant maintained that the claim was rightly repudiated for the reason stated in the reputation letter. In the additional pleas, the defendant made the following averments in para 15 : “15. That while submitting the proposal form and answering the questions in personal statement the deceased will fully and fraudulently suppressed that he had suffered from Tuberculosis, Diabites, hypertension and other diseases. If in answer to the relevant questions he had disclosed the information about his aforesaid ailments the defendants Divisional Office would have been put on its guard and the underwriter would not have recommended the acceptance of proposal by Divisional Office. In such circumstances the deceasd would have been put to proper checkup in every respect and the proposal with all the checkup reports would have been submitted to the Central Office and it would have been a matter for central office either to reject the proposal or to accept it on such terms as the Central Office thought fit. The fact that the deceased died of heart failure is also enough testimoney of the fact that the suffered from Diabeties, Hypertension, Tuberculosis etc. Thus looking to the averments in the proposal form personal statement, and the policy conditions the contract of Insurance stood vitiated. And the plaintiff is not entitled to base his claim on such an unenforceable and void contract.” The defendant, therefore, prayed for dismissal of the suit with costs. On the pleadings of the parties the learned trial Court framed the following issues on 9.1982 : “Issues : 1. Whether the plaintiff is entitled to the amount mentioned in para 11 of the plaintiff . 2. Whether the statements in para 5 of the written statement are correct ? If so, is the repudiation of the claim by the defendant correct ? Relief ” In evidence, the plaintiff examined herself as PW1 and in documentary evidence produced her representation dated 11.1979 as Ex.1, the letter by the LIC dated 211.1979 as Ex.2, her reminder dated 7.3.1980 as Ex.3, reminder dated 26.3.1980 as Ex.4, the notices dated 19.3.1981 as Ex. 5, 6 and 7, postal receipts and acknowledgements as Ex. 8 to 13, letter by LIC to her lawyer dated 26.3.1981 as Ex. 5, 6 and 7, postal receipts and acknowledgements as Ex. 8 to 13, letter by LIC to her lawyer dated 26.3.1981 as Ex. 14 and the repudiation letter (undated) as Ex. 15 and Agent’s is confidential report as Ex. 16. On behalf of the defendant five witnesses were examined. Dr. Prem Narain Sharma, Ex-Superintendent of TB Centre, Ajmer was examined as DW1, Dr. Prakash Karan Sharda, the LIC panel medical examiner was examined as DW 2, K.K. Shivnani, LIC Agent who filled up the proposal form was examined as DW3, Narain Das, a registered Medical Practitioner was examined as DW4 and J.P. Bhootra, Under Writer with the LIC was examined as DW 5. In documentary evidence the defendant produced certificate of hospital treatment as ex. A/1, Confidential report of medical examiner as Ex. A/2, personal statement by the proposer as Ex. A/3, proposal for insurance as Ex. A/4 and Medical Attendant’s certificate who attended the deceased in his last illness as Ex. A/5. The plaintiff also examined herself and her son Ishwar in rebuttal. The learned trial Judge thereafter heard the parties finally and by the impugned Judgment , decided Issue No. 2 in favour of the defendant and as a consequence thereof found the plaintiff to be not entitled for any relief . The suit was accordingly ordered to be dismissed. In this appeal, it has been contended by the plaintiff appellant that the defendant has attempted to develop the theory of fraudulent mis-representation only in the written statement and initially no such reason was stated in the repudiation letter. According to the appellant, life insurance of the persons suffering from T.B., diabetes and hypertension was not prohibited and such insurance was accorded by charging extra premium. The defendant charged extra premium from the deceased Belaram also. It has further been contended that the doctor of defendant LIC has himself thoroughly examined the deceased Belaram and the deceased was not found to be suffering from any disease. The finding by the learned trial Judge have been assailed on the ground that such findings are based only on the certificate issued by DW 1 Dr. Prem Narain, whereas the evidence of DW2 and DW 5 has not been appreciated nor analysed. The finding by the learned trial Judge have been assailed on the ground that such findings are based only on the certificate issued by DW 1 Dr. Prem Narain, whereas the evidence of DW2 and DW 5 has not been appreciated nor analysed. It has also been contended that the deceased insured did not conceal any material fact intentionally or with any mala fide intention for procuring insurance policy by defrauding the LIC. It has also been contended that the insured died on account of heart failure and attempt to link the alleged ailment with his death was improper. The learned counsel for the appellant in support of his contentions has also relied upon the decision of this Court dated 14.1975 in Top Kanwar vs. Life Insurance Corporation of India, reported in 1975 RLW 181 and its affirmance by the Division Bench on 27.2.1986 in Special Appeal No. 10/75. The learned counsel has also relief upon another decision of this Court dated 27.3.1985 in S.B. Civil First Appeal No. 185/72, Life Insurance Corporation of India vs. Mst. Basant Kaur. Per contra, the learned counsel for the respondent has vehemently contended that the concealment of material facts by the insured Belaram is amply established on record and the concealment included his ailments from Tuberculosis and Diabetes. Relying upon the decision by the Hon’ble Apex Court in Mithoo Lal vs. Life Insurance Corporation of India, AIR 1962 SC 814 , the learned counsel contended that it was clearly established that the deceased made a fraudulent suppression of material facts and therefore, repudiation by the LIC was legal and valid. The learned counsel also contended, on the basis of a decision of the Kerala High Court in P. Sarojam vs. Life Insurance Corporation of India, reported in AIR 1986 Kerala 201, that the report of the medical examiner of the Corporation cannot be a final answer to the question of fraudulent suppression of material facts. On the subject matter and rival contentions of the parties the following point for determination arises in this appeal : Whether the repudiation of the claim by the defendant is legal and justified ? So far as the impugned Judgment is concerned, it is apparent that the learned Judge has heavily relied upon the statement of DW 1 Dr. Prem Narain Sharma and his certificate Ex. So far as the impugned Judgment is concerned, it is apparent that the learned Judge has heavily relied upon the statement of DW 1 Dr. Prem Narain Sharma and his certificate Ex. A/1 by which it was established and Belaram insured was suffering from Tuberculosis and was under treatment from 210.1963 to 23.1966. The learned Judge has referred to the answers stated by Belaram to the questions about the ailments where Belaram has replied in the negative. The learned Judge observed that there was no justified cause with the deceased to conceal this fact and had he given the correct answers, the acceptance of the proposal might have been in question. The learned Judge has referred to the aforesaid decision of the Apex Court in Mithoo Lal’s case (supra) and observed that where the insured has made a false statement regarding the serious ailment, then by virtue of Section 45 of the Insurance Act (`the Act’ for short) this contract cannot be enforced. The learned Judge has also relied upon the decision of the Kerala High Court in P. Sarojam’s case (supra) and observed that the report of the medical examiner of theLIC makes no difference because ailment of Tuberculosis was within the knowledge of the proposer and he concealed such material fact. So far the ailment of the insured Belaram is concerned, he having been under treatment for TB from 1963-66 cannot be disputed in view of the certificate Ex. A/1. The fact remains that the proposer has replied in negative to all the questions regarding his ailment and his having not made the correct statement about his past ailment cannot be disputed. However, the question remains as to whether this could be said to be a fraudulent mis-representation within the meaning of Section 45 of the Act so as to permit the defendant LIC to repudiate the claim under the policy ? Noteworthy it is that under Section 45 of the Act it is not mere mis-representation which is enough for repudiation of the claim under the policy but the same is required to be shown to be “fraudulent mis-representation”. The element of intention has consciously been incorporated to guard against any repudiation on flimsy and frivolous grounds and the onus is heavy upon the LIC to show that it was a case of fraudulent mis-representation. The element of intention has consciously been incorporated to guard against any repudiation on flimsy and frivolous grounds and the onus is heavy upon the LIC to show that it was a case of fraudulent mis-representation. Before a comprehensive look at the evidence, it shall be worthwhile to refer to the law applicable to the case. The principles of law have been explained by the Hon’ble Apex Court in Mithoo Lal vs. LIC (supra), cited and relied upon by the learned counsel for the respondent. The Hon’ble Apex Court while interpreting the provisions of Section 145 of the Insurance Act, 1938 has held that when a contract of life insurance is entered into as a result of fraudulent suppression of material facts, the claimant cannot claim any benefit out of such contract. The Hon’ble Apex Court has explained the operation of the provisions of Section 45 of the Insurance Act. The Hon’ble Court laid down thus.” “The three conditions for application of second part of Sec. 45 are- .(a) the statement must be on 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) thepolicy holder must have known at the time of making the statement that it was false or that had suppressed facts which it was material to disclose.” The aforesaid decision by the Hon’ble Apex Court has been put into operation and considered by this Court in Top Kanwar vs. LIC of India (1975 RLW 161), relief upon by the learned counsel for the appellant. A learned Single Judge of this Court in the case of Smt. Top Kanwar (supra) dealt with the law applicable to the case in sufficient detail and considered the crucial question as to whether the insured made material suppression at the time of filling up of the proposal form for non disclosure of his illness and hospitalization for treatment of diabetes mellitus and coma. As in the present case, in the said case of Smt. Top Kanwar (supra) also it was beyond doubt that the replies recorded in the personal statement of the insured were inaccurate or false, inasmuch as the insured had failed to disclose has illness which led to his hospitalization and treatment taken. As in the present case, in the said case of Smt. Top Kanwar (supra) also it was beyond doubt that the replies recorded in the personal statement of the insured were inaccurate or false, inasmuch as the insured had failed to disclose has illness which led to his hospitalization and treatment taken. The learned Single Judge, after referring to a substantial number of authorities came to the conclusion that there was a duty cast upon the assured to disclose material facts. However, then the question was as to what is the test of materiality ? Referring to the decision of their Lordships of Judicial Committee of the Privy Council in Mutual Life Insurance vs. Ontario Metal Products Co. Ltd., 1925 Appeal Cases 344 the learned Single Judge quoted the observations of their Lordships thus,- “In their view, it is a question of fact in each case whether, if the mattes concealed or misrepresented had been truly disclosed, they would, on a fair consideration of the evidence have influenced a reasonable insurer to decline the risk or to have stipulated for a higher premium.” The learned Judge, on the facts of the said case then found that the hospitalization and treatment of diabetes mellitus and coma was a material information which should have been disclosed and non disclosure thereof amounted to suppression of facts which it was material for the assured to disclose. However, thereafter, the learned Judge considered as to whether suppression of facts by the assured was fraudulent non disclosure and considered all the facts including the fact that the medical report showed that the disease was duly controlled and the patient has reached the state of stabilization. The learned Judge also noticed the fact that the Corporation absolutely failed to lead any evidence to show that the death of the assured was in any manner connected with his suffering from the illness of diabetes mellitus. From the evidence on record and over all circumstances the learned Judge found that it was difficult to come to a conclusion that there was any intentional mis-representation from which the existence of fraud could be definitely concluded. The learned Judge observed that the mere suppression of facts even if material could not lead to the conclusion that it was caused as a result of fraud. The appeal was allowed and the suit was decreed. The learned Judge observed that the mere suppression of facts even if material could not lead to the conclusion that it was caused as a result of fraud. The appeal was allowed and the suit was decreed. A Division Bench of this Court has further considered in sufficient detail the decision by the learned Single Judge in Smt. Top Kanwar’s case (supra) in Appeal No. 10/75 and endorsed the reasons given by the learned Single Judge and dismissed the appeal on 27.2.1986. In another decision in Civil First Appeal No. 185/72, LIC of India vs. Basant Kaur, a learned Single Judge of this Court again explained the law applicable to the case and held that in such cases the stress must be on material ailment and deliberate suppression for having policy of insurance or its revival. The learned Single Judge has also cautioned that the deprivation of policy holder or members of his family from the benefits of insurance should not be lightly done away with and unless the conditions mentioned in Section 45 are strictly proved, the Court should be liberal in disallowing such defence of the insurance companies. A particular emphasis has been made on the fact that the authorized medical officer of the companies after medical check up verify the medical and physical conditions. Apart from the authorities cited at Bar, relevant it is to notice that another division bench of this Court in the case of LIC of India vs. District Permanent Lok Adalat, 2004 (3) DNJ (Raj) 1041 has independently come to the same conclusion. The allegation of suppression of material facts were made in the said case also where the insured was suffering from Hepatitis B and Sub-acute intestinal obstruction and that he was chronic alcoholic and suffering from Parkinson disease. It was again held that of course the policy holder was legally bound to disclose his illness or ailment but the Corporation was also equally and legally bound to cross check the informations furnished by the persons through their authorized doctor. If the Corporation failed to cross check the information, it has to only blame itself and not the insured. It was again held that of course the policy holder was legally bound to disclose his illness or ailment but the Corporation was also equally and legally bound to cross check the informations furnished by the persons through their authorized doctor. If the Corporation failed to cross check the information, it has to only blame itself and not the insured. The Division Bench has further observed that if the Corporation be allowed to raise the plea of this nature after the death of the insured, the whole purpose of taking the insurance policy will get frustrated which would not only be against the equity and justice but also against the principles of contractual obligations. It is also worthwhile to notice that so far the decision by the Hon’ble Supreme Court in the case of Mithoo Lal Nayak (Supra) on facts is concerned, their lordships came to the conclusion that the three conditions, as quoted above, were fulfilled in that case particularly for the reason that the assured was suffering from serious ailment of anemia, dilation of heart and cardiac asthma and in September-October, 1943 the assured was required to be treated by a specialist doctor for serious anemia and while making the proposal in July, 1944, he could not have forgotten tha he was treated only a few months earlier. The treating doctor’s evidence inter alia showed that in September, 1943 when he examined the assured, he found his condition to be serious as a result of improverished condition of his blood and he was suffering from anemia oedema of feet, diarrhoea and panting on exertion. Later decision by their Lordships of Supreme Court in the case of Life Insurance Corporation of India vs. G.M. Channabasemma, AIR 1991 SC 392 may be usefully referred here in contradistinction of the case of Mithoo Lal (Supra). After noticing the principles in Mithoo Lal’s case (Supra) the Hon’ ble Apex Court held that the burden of proving that the insured made flase representation and suppressed material facts is undoubtedly on the Corporation. The Hon’ble Court examined the worth and value of the evidence of the doctors produced by the Corporation to discharge this burden and rejected the evidence of the alleged treating doctor DW 4 as unworthy of reliance. The Hon’ble Court examined the worth and value of the evidence of the doctors produced by the Corporation to discharge this burden and rejected the evidence of the alleged treating doctor DW 4 as unworthy of reliance. The evidence of another doctor DW 2 has also been considered which pointed only to some ailment but not leading to the conclusion that the insured was inflicted by a serious disease for a long time. After rejecting other unworthy evidence. The Hon’ble Court considered as against that the evidence of the Corporation’s doctors who had certified good health of the insured at the time of taking out of the policies. Thus, the finding by the High Court of the Corporation failing to discharge burden was affirmed and the appeal was dismissed. So far the decision in P. Sarojam vs. LIC of India, AIR 1986 Kerala 201 is concerned, in the said case, the insured submitted a proposal for insurance on 20.9.1973 and died on 4.1974. It was found on the proved facts of the said case that the insured was on leave due to heart ailment even at the time of proposals were made. The insured was a case of rheumatic heart disease, mitral regurgitation, mitral stenosis, arterial fibrillation and congestive cardiac failure. They were ailments of serious nature. The Court found that there cannot be any doubt that at the time when the proposals were given, the insured was suffering from a very serious heart ailment after discussing evidence on record. He was not only on leave at the time when the proposals were made due to illness, he had to extend his leave and had to be treated in the hospitals where he died on 4.1974. The insured was fully aware that he was suffering from serious heart ailment for several years prior to the proposal and he died of the illness even before the premium for the second quarter fell due. In the circumstances of the case the Court was of opinion that medical examination by the doctor of the Corporation was cursory and the medical officers failed in their duty to make a proper examination of the proposer. In the circumstances of the case the Court was of opinion that medical examination by the doctor of the Corporation was cursory and the medical officers failed in their duty to make a proper examination of the proposer. The binding decisions of this Court and the Hon’ble Apex Court have explained the law in sufficient detail and ultimately the answer to the question about the validity of the action of repudiation of the claim depends on the answer to the question as to whether it was a fraudulent mis-representation of a material information. A travel through the evidence produced on behalf of the defendant is relevant for the purpose. DW 1 Dr. Prem Narain Sharma has issued the certificate Ex. A/1. The contents of the certificate of hospital treatment Ex A/1 show that the same was issued on 3.1979 obviously at the asking of the defendant LIC. The proposal in question was submitted to LIC on 211.1976 whereas the said certificate Ex.A/1 states that the insured Belaram was treated as outdoor patient from 210.1963 and it is specifically given out in this certificate that- “8.What was the date of discharge from hospital Treatment was completed on 23.66 9. What was his condition when he was discharged He was controlled case 10. Was he treated in the hospital on any previous occasion ? If so, please state : (a) Date of admission (b) Date of Discharge and condition on discharge. (c) Nature of ailment” The disease was controlled and his condition was O.K.” Therefore, what at the most comes out of this document is that more than 10 years prior to the proposal, the insured Belaram was treated as Outdoor patient for Pulmonary Tubercolosis commencing from 210.1963 and his treatment was completed on 23.1966 and after the treatment the disease was controlled and his condition was alright. DW 2 Dr. Prakash Karan Sharda was the Medical Examiner on the panel of the LIC who has medically examined Belaram and submitted confidential report Ex. A/2. He was merely stated that Belaram did not inform him of suffering from TB nor informed that he was diabetic. However, a look at the report Ex. A/2 divulge out a few significant facts. Apart from other examinations the said doctor has measured the chest of Belaram also and has reported the chest measurement thus :- “3. A/2. He was merely stated that Belaram did not inform him of suffering from TB nor informed that he was diabetic. However, a look at the report Ex. A/2 divulge out a few significant facts. Apart from other examinations the said doctor has measured the chest of Belaram also and has reported the chest measurement thus :- “3. Measurements and Weight : .(a) Chest (over nipples) stripped : .(b) On complete expiration (a) 94 Cms. .(c) On full inspiration 99 Cms.” DW 2 has admitted in his cross examination that a patient suffering from TB, if cured then the chest expansion could be 2 inches. His BP has also been reported with systolic at 138 mm and diastolic at 84 mm. The pulse rate has also been reported at 74 per minute. The doctor has also reported about the lungs that they were healthy in every respect. Even the sample of urine has been tested. The specific gravity has been found within the normal limits and with no traces of any sugar or albumen or any other deposit or abnormality. In column No. 12/C it has been reported thus : “12© Do you consider the life yes, first class” to be first class ? If not, state the reasons for your opinion DW 3 K.K. Shivnani has stated himself to be an LIC Agent who has filled up the proposal form Ex. A/4 and so also the personal statement Ex. A/3. This witness has sought to assert that he had explained the questions to Belaram and then filled up these forms. However, this witness was put under scrutiny about the meaning of medical terms in Ex. A/3 like “neurasthenia”, `neuralgia’, `sprue’, and `vericocele’ but has expressed ignorance about the meaning thereof . This witness has also given out that he knew Belaram personally and that his health was very good. DW 4 Narain Das has asserted himself to be a medical practitioner. Belaram deceased was his landlord. After the death of Belaram the certificate Ex. A/5 has been obtained from him by the defendant LIC. This witness has given out his qualification to be `Ayurvedaratna’ and having no qualification in Allopathy and education upto High School. He has given out that he was not keeping patient Register nor was having any prescription form of Belaram with him. After the death of Belaram the certificate Ex. A/5 has been obtained from him by the defendant LIC. This witness has given out his qualification to be `Ayurvedaratna’ and having no qualification in Allopathy and education upto High School. He has given out that he was not keeping patient Register nor was having any prescription form of Belaram with him. He was not in possession of any record by which Belaram could be shown to be a heart patient or a diabetic nor he was a medical attendant at the time of death of Belaram. This witness has admitted that he was not having any pathological laboratory and was carrying general practice, but then, has stated that Belaram got urine tested from him and consulted him for treatment. This witness has then made a self contradictory statement about urine sugar. He has been put under re-examination by the defendant and has attempted to say that he has given out the secondary cause of death to be `diabetic’ because he might have been consulted 4 & 5 days earlier. However, why he stated diabetic for 10 years could not be recollected by him. In this certificate Ex. A/5 it is significant to notice that although DW 4 has alleged himself to be treating Belaram for about 10 years, has not stated any thing relating to TB or any symptom thereof but only of the alleged diabetes and so called BP. However, in Column 9 on the question as to when and for what ailments he treated the deceased during last three years preceding his last illness, he has replied,- “Not any particulars” This certificate has also been obtained by the defendant LIC on 19.4.1979 from DW 4. However, this certificate was required to be obtained from medical attendant of the deceased in his last illness and from the statement of this witness himself it is apparent that he was not the medical attendant of the deceased at the time of his death in the hospital. DW 5 JP Bhootra has been Under Writer with LIC for 20 years. However, this witness was not the Under Writer of the proposal of Belaram and his general statements are of not of much relevance. However, he has admitted charging of extra premium in this particular case after obtaining report from the doctor as Belaram was 20% over weight. DW 5 JP Bhootra has been Under Writer with LIC for 20 years. However, this witness was not the Under Writer of the proposal of Belaram and his general statements are of not of much relevance. However, he has admitted charging of extra premium in this particular case after obtaining report from the doctor as Belaram was 20% over weight. From the evidence produced by the defendant as referred hereinabove and it is apparent that the ailments sought to be imputed upon the deceased were themselves either non-existent or immaterial. The certificate Ex. A/1 which has been put forward by the defendant LIC to say that the insured was suffering from TB itself contradicts the contentions of the defendants. Belaram was never admitted as an Indoor patient and has been treated for Pulmonary TB as Outdoor patient between 1963-66. But then after treatment he was a controlled case and his ocndition was alright. The chest expansion as reported by the Doctor of LIC also shows non existence of any signs of any effects of TB which has been treated 10 years back. The BP report of systolic 138 mm and diastolic 84 mm for Belaram aged 49 years could be said to be absolutely normal. Even the urine examination has negatived any traces of any disease. The medical examiner of LIC seem to be perfectly right in certifying his life to be first class. The answers by the other witness of LIC DW 3 K.K. Shivnani who has filled up the proposal forms in his cross examination makes it clear that he was not conversant with the medical terminology and it is rather preposterous for him to suggest that he explained the contents of the questions in vernacular. However, this very witness has deposed that he knew Belaram personally who was carrying very good health. So far DW 4 is concerned, it is rather strange that he has willingly given the certificate Ex. A/5 at the asking of LIC although he was not even medical attendant of the deceased in his last illness. Not a single evidence worth the name has been produced which could even suggest Belaram to be suffering from diabetes. So far DW 4 is concerned, it is rather strange that he has willingly given the certificate Ex. A/5 at the asking of LIC although he was not even medical attendant of the deceased in his last illness. Not a single evidence worth the name has been produced which could even suggest Belaram to be suffering from diabetes. This witness DW 4 appears to be a made up witness and he has not even named a single medicine which he prescribed for Bela Ram apart from the fact that he admittedly has no record of treatment. The statement of this witness DW 4 does not inspire any confidence and is required to be rejected from consideration. From the evidence of DW 5 it appears that the LIC charged extra premium in this particular case as Belaram was considered to be a bit over weight. Contrary to the evidence of the defendant, the plaintiff and her son have categorically deposed that Belaram was not suffering from any serious ailment and was regularly attending his work and was not on any diet restriction. From the over all evidence on record, this Court is clearly of opinion that the present case is only a case of non disclosure of the fact of TB treatment 10 years prior to the proposal and nothing beyond. The other ailents imputed upon the insured of hypertension and diabetes are not established from any convincing evidence on record. The fact which had not been disclosed was itself immaterial as the report Ex. A/1 shows that 10 years before the proposal, the treatment was alredy over and patient has reached the stage of stabilization. The LIC has not produced any evidence which could even remotely link the alleged disease with the death of Belaram. Neither it is a case of suppression of material facts nor it is a case of fraudulent suppression of facts nor it has been shown that the policy holder knew at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. A look at the Judgment by the learned Additional District Judge in this case shows that the learned Judge has proceeded in a wholly cursory manner and has assumed the naming of disease in the certificate Ex. A look at the Judgment by the learned Additional District Judge in this case shows that the learned Judge has proceeded in a wholly cursory manner and has assumed the naming of disease in the certificate Ex. A/1 to be a final answer to every question involved in the case and has not even advertd to the question of materiality of facts, fraudulent suppression with the requisite knowledge. The decision by the learned trial Judge on Issue No. 2 being squarely contrary to the facts of the case and also so the law applicable to the case deserves to be and is reversed. This Court is clearly of opinion that the defendant is not entitled to repudiate the claim of the plaintiff . In view of the aforesaid, the appeal deserves to be allowed so far the claim for the sum assured under the policy i.e. Rs. 25,000/-is concerned. However, in the circumstances of the case this Court is of opinion that the plaintiff has not been able to establish entitlement for bonus and interest as claimed in the plaint. The facts having not been disclosed to the defendant cannot be disputed. The defendant, therefore, cannot be faulted for entering into the relevant inquiry. However, admittedly, the plaintiff had been informed as back as on 29.1979 of repudiation of the claim. The unnecessary time spent thereafter by the plaintiff in making representations disentitles the plaintiff to claim any interest. Therefore, the claim of interest prior to the date of the suit is rejected. The entitlement of bonus has also not been established in evidence. Therefore, the suit deserves to be decreed for a sum of Rs. 25,000/-only with pendente lite and future interest @ 6% per annum only. As a result