Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 318 (CAL)

NILKANTA MONDAL v. UNION OF INDIA

2006-05-19

GIRISH CHANDRA GUPTA

body2006
Girish Chandra Gupta, JJ. ( 1 ) THE petitioner's case is that the Life Insurance Corporation of India (hereinafter referred to as the 'corporation') failed neglected and/or refused to pay the claim arising out of the risk covered by the Corporation concerning life of the petitioner's deceased wife Shrimati Chhaya Mondal. The writ petitioner as such has prayed for a writ in the nature of mandamus directing the Corporation to pay the sum assured amounting to Rs. 75,000/- together with compound interest. The facts of the case briefly stated are as follows: -Shrimati Chhaya Mondal took out a Life Insurance Policy bearing No. 420094448 with effect from 2nd October, 1987 for a sum of rs. 37,500/ -. She took out another policy bearing No. 420094449 with effect from 28th October, 1987 for an identical sum of Rs. 37,500/ -. The writ petitioner was the nominee. The life assured expired on 30th november, 1988. A claim was naturally made by the writ petitioner which the Corporation failed neglected and/or refused to pay on the sole ground that, as would appear from the Corporation's letter dated 1st September, 1994 :"consideration of the claim under the above polices is not being possible for non-compliance of the claim Form 'e' meant for employer's certificate. Kindly advise your client to send us the same and help to dispose of the matter". ( 2 ) THE writ petitioner had filed a suit in the 1 st Court of Munsif at Ranaghat which was registered as Title Suit No. 303 of 1994. The aforesaid suit was however allowed to be withdrawn by the writ petitioner with liberty to approach this Court in its writ jurisdiction for appropriate relief as would appear from the order dated 15th June, 1995 a copy whereof is Annexure -X to the affidavit-in-reply affirmed by the writ petitioner on 8th April, 1996. ( 3 ) THE Corporation in its affidavit-in-opposition in Paragraph-4 has alleged that according to the information, furnished in the proposal form filed by the assured, she had both business and service for her occupation. Since Form no. 'e' which is a sort of declaration from the employer has not been filed by the petitioner the claim has not been processed. In Paragraph-8 of the opposition the deponent on behalf of the Corporation has denied "that the petitioner's wife was not a Government Employee as wrongly claimed or at all". Since Form no. 'e' which is a sort of declaration from the employer has not been filed by the petitioner the claim has not been processed. In Paragraph-8 of the opposition the deponent on behalf of the Corporation has denied "that the petitioner's wife was not a Government Employee as wrongly claimed or at all". ( 4 ) WHEREAS the case of the writ petitioner is that his deceased wife was never in Government employment. In his affidavit-in-reply affirmed on 8th April, 1996 the writ petitioner has averred that a "government service holder cannot run a business in her name" which the petitioner did in fact do as would appear from the licence dated 29th December, 1986 issued in favour of the deceased by the licensing officer for running a husking machine a copy whereof is annexure-'k' to the writ petition. ( 5 ) WHEN the matter was taken up for final hearing the learned Advocate appearing for the writ petitioner submitted that the Corporation had wrongfully refused to pay the claim amount and therefore the Corporation should be directed to pay the sum assured being a sum of Rs. 75,000/- together with compound interest and cost. ( 6 ) MR. Chakraborty, the learned Advocate, appearing for the respondent/ corporation submitted that the deceased furnished wrong information. She indicated in the proposal form that she was employed by the Chief Medical officer as a nurse and she also had her business. He further, submitted that since the policy was taken on the basis of an incorrect information and since the petitioner could not furnish 'e' Form the claim of the writ petitioner could not be processed. He added that the Corporation is however yet to take a decision, as to whether the claim of the writ petitioner should be acceded to. ( 7 ) HE further submitted that this Court in exercise of writ jurisdiction should refrain from going into the disputed facts. The writ petition according to him should be dismissed and the writ petitioner should be left to seek his remedy before a Civil Court. ( 8 ) IN reply Mr. ( 7 ) HE further submitted that this Court in exercise of writ jurisdiction should refrain from going into the disputed facts. The writ petition according to him should be dismissed and the writ petitioner should be left to seek his remedy before a Civil Court. ( 8 ) IN reply Mr. Mazumdar submitted that in the case of ABL International limited v. Export Credit Gurantee Corporation I. Ltd. reported in 2004 (3) SCC 553 it has been held by the Apex Court that in an appropriate case refusal to pay can be set aside and the insurer can be directed to pay in exercise of writ jurisdiction. It was further submitted that the contention of the Corporation is altogether bad because a Government employee cannot engage himself in any business. The deceased was a business woman and she could not have been engaged in any public service as contended by the Corporation. He added that any information in that regard if furnished was the handiwork of the Agent and the Development Officer for which the petitioner or for that matter his wife was not liable. The insistence upon filing an 'e' Form was bad and illegal and therefore the Corporation should be directed to pay the sum assured together with compound interest and cost. ( 9 ) I have considered the submission made by the learned Advocates appearing for the parties. The question for determination in my view is whether "the Life Insurance Corporation of India was misled into accepting the proposal?" if this question were answered in the negative then there is no justifiable reason why the claim should not have been met. The affidavit-in-opposition contains no allegation that the Corporation was misled into accepting the proposal. It is not their case that they would not have accepted the proposal if they had information that the deceased was a business woman simpliciter. There is no such case to be found in the affidavit-in-opposition nor was any such case run by the learned Advocate appearing for the Corporation. ( 10 ) IN the case of the Life Insurance Corporation of India v. Shrimati G. M. Channabasamma, reported in 1991 (1) SCC 357 the following law was laid down. "it is well settled that a contract of insurance is contract uberrima fides and there must be complete good faith on the part of the assured. ( 10 ) IN the case of the Life Insurance Corporation of India v. Shrimati G. M. Channabasamma, reported in 1991 (1) SCC 357 the following law was laid down. "it is well settled that a contract of insurance is contract uberrima fides and there must be complete good faith on the part of the assured. The assured is thus under a solemn obligation to make full disclosure of material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not. " ( 11 ) IT is nobody's case, as I already have observed, that any deliberate fraud was perpetrated or any suppression was made or that the Corporation was misled into accepting the proposal. In such a case even assuming that the corporation entertained the belief that the deceased was both a business woman and in Government service that would not, in my opinion, furnish them with a cause of action to avoid the contract. On the top of that it is a well-known fact that a Government servant cannot engage in any business because he or she is deemed to be in service round the clock. Reference in this regard can be made to Rule 15 of the West Bengal service Rules which provides as follows: -"whole-time at the disposal of Government: unless in any case it be otherwise distinctly provided the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority, without claim for additional remuneration, whether the services required of him are such as would ordinarily be remunerated from general revenues, from a local fund or from the funds of a body corporate owned or controlled by the Government. " ( 12 ) THEREFORE, the stand taken by the Corporation is not valid at all. ( 13 ) IT is also not correct to say that the Corporation has not as yet taken any decision as to admissibility of the claim. They are deemed to have refused to pay for omission to file 'e' Form. 'e' Form the petitioner cannot file because the deceased was never a public servant. ( 14 ) FOR the aforesaid reasons this petition succeeds. The Life Insurance corporation of India is directed to pay a sum of Rs. They are deemed to have refused to pay for omission to file 'e' Form. 'e' Form the petitioner cannot file because the deceased was never a public servant. ( 14 ) FOR the aforesaid reasons this petition succeeds. The Life Insurance corporation of India is directed to pay a sum of Rs. 75,000/- together with interest at the rate of 9% per annum from 1 st December, 1988 until the date of payment as also to pay costs assessed at 300 G. Ms.