Judgment ( 1. ) BEING aggrieved by judgment and decree dated 29-9-2006 passed by 3rd additional District Judge, (Fast Track), Barwani, in Civil Suit No. 22-B/05, whereby suit filed by appellants was dismissed, present appeal has been filed. ( 2. ) SHORT facts of the case are that appellants filed a suit on 16-6-05 for realization of a sum of Rs. 1,14,000/- alleging that appellants are widow and sons of deceased Radheshyam Chouhan who died on 4-8-04 at District Hospital, barwani. It was alleged that in his life time, deceased Radheshyam got himself insured for a sum of Rs. 1,00,000 vide Policy No. 341807159, dated 28-6-2003. It was alleged that for the purpose of insurance deceased Radheshyam submitted a proposal form on 15-7-2003 and after accepting the premium of Rs. 9,295/- the policy was issued. It was alleged that policy issued by the respondents was endowment policy with benefits. Further case of the appellants was that after issuance of the policy regular premium was paid by the deceased Radheshyam in his life time. It was alleged that after his death appellants submitted the claim form along with all relevant documents. Claim submitted by appellants, was repudiated by the respondent No. 2 vide order dated 24-12-04 on the ground, that at the time of insurance, assured concealed the material facts and made some false statements regarding his health in the proposal form. It was also mentioned in the said order whereby claim was repudiated, that if the appellants are not satisfied with the decision of respondent No. 2 then appellants are free to approach respondent No. 1 for review of the order. It was alleged that thereafter appellants issued legal notice whereby appellants claimed for payment of compensation along with interest. In spite of notice the amount was not paid hence the suit was filed for a sum of Rs. 1,14,000/-, out of it Rs. 12,000/-were claimed towards interest from the date of submission of claim form along with notice charges. ( 3. ) THE suit was contested by respondents by filing written statement wherein it was not disputed that the policy was issued by respondents. However, it was alleged that the Insurance Company is not liable for payment of compensation as the deceased has not given true and correct answers to the questionnaire put to insured. ( 3. ) THE suit was contested by respondents by filing written statement wherein it was not disputed that the policy was issued by respondents. However, it was alleged that the Insurance Company is not liable for payment of compensation as the deceased has not given true and correct answers to the questionnaire put to insured. It was alleged that in the investigation, it was found that deceased Radheshyam, before submitting the proposal form for his insurance on 15th July, 2003, was on leave from June, 2000 to November, 2000 for a period about 165 days in four instalments. Out of which deceased radheshyam was on leave from 7th August to 2nd October, 2000 for about 57 days on medical leave on the ground that he was suffering from IDDMM with ihd disease. It was also alleged that again medical leave was granted to him from 3rd September, 2002 to 31 st October, 2002 for a period of about 59 days on the account that the deceased was suffering with IDDMM with IHD. It was alleged that on 15th July, 2003, when the proposal form was submitted the deceased was asked about his health which was answered by him as under:- ( 4. ) IT was alleged that in the facts and circumstances of the case since the material facts were concealed by the deceased relating to his health, therefore, the suit filed by the appellants was rightly dismissed. On the basis of the pleadings learned Court below framed the issues recorded the evidence and dismissed the suit, against which the present appeal has been filed. ( 5. ) LEARNED Counsel for appellants submits that learned Court below committed error in dismissing the suit filed by the appellants on the ground that the deceased concealed material facts in the proposal form (Exh. D-2 ). It is submitted that proposal form (Exh. D-2), was not filled in by the deceased, on the contrary, it was filled in by one Narendra Bhavsar, Insurance Agent who has been examined by appellants as P. W. 3. It is submitted that the deceased has signed the proposal form which was filled in by the agent on his own and for that deceased Radheshyam cannot be held liable. Learned Counsel further submits that before acceptance of proposal form, deceased was examined by Dr. It is submitted that the deceased has signed the proposal form which was filled in by the agent on his own and for that deceased Radheshyam cannot be held liable. Learned Counsel further submits that before acceptance of proposal form, deceased was examined by Dr. Rajesh jain (D. W. 2) who happens to be the doctor of the Insurance Company. It is also submitted that the proposal form was submitted on 15th July, 2003 and the contract was completed on 9-7-03 while the death took place on 4-8-04, i. e. , after more than a year. It is submitted that the ailment which is shown by respondents is also prior to three years from the date of submission of proposal form. Learned Counsel submits that in the facts and circumstances of the case learned court below committed error in dismissing the suit filed by appellants. For this contention learned Counsel placed reliance on a decision in the matter of Life insurance Corporation of India Vs. Asha Goel, reported in (2001) 2 SCC 160 , wherein Honble Apex Court has held that Section 45 of Insurance Act is restrictive in nature. Burden of proof lies on insurer to establish the circumstances mentioned in the Section. ( 6. ) FURTHER reliance was placed on a decision in the matter of L/c of india Vs. District Permanent Lokadalat and another, reported in 2006 ACJ 100, wherein Division Bench of Rajasthan High Court in a case where LIC contended that assured did not disclose material information regarding his health at the time of taking the policy, it was further held that LIC is duty bound to cross check the information furnished by the person intending to take the policy, failure to check information is a lapse or lacuna on the part of LIC. In this case, it was held that the LIC is liable to pay the sum assured after the death of assured. It was also observed that LIC is not permitted to raise a plea that the deceased-assured had not disclosed about his illness at the time of taking the policy. ( 7. ) FURTHER reliance was placed on a decision of Karnataka High Court in the matter of Yashoda Vs. It was also observed that LIC is not permitted to raise a plea that the deceased-assured had not disclosed about his illness at the time of taking the policy. ( 7. ) FURTHER reliance was placed on a decision of Karnataka High Court in the matter of Yashoda Vs. Director, Karnataka Government Insurance department and another, reported in 2005 ACJ 122 , wherein Karnataka High court in a claim for a death of assured after 9 months of taking the policy where assured suffered from fever and was advised rest for a month for general weakness about 3 years prior to taking the policy was not disclosed, it was held that non-mentioning of this fever by the assured is not amounting to fraudulent suppression or withholding material information which may result in non-issue of policy or altering the conditions of policy. It was also held that claim has not been repudiated on the ground of furnishing incorrect particulars at the time of taking the policy. ( 8. ) LEARNED Counsel for the appellants submits that in the facts and circumstances of the case appeal filed by the appellants be allowed and the judgment passed by the learned Trial Court be set aside. ( 9. ) MR. R. C. Chhazed, learned Counsel for respondents submits that medical certificates (Exhs. D-2 to D-5) are on record which were submitted by the deceased before his employer. It is submitted that in the certificates, which are enclosed with the application for leave it has been mentioned that the deceased was suffering from NIDDM and H/tcdm. Learned Counsel submits that respondent has examined Dr. Arun Kumar Sharma as D. W. 1 who has issued certificates (Exhs. D-1 and D-2); Dr. Rajesh Jain as D. W. 2 and Dr. P. L. Patel as D. W. 3. It is submitted that from all this evidence it has been found proved that insured has suppressed the material facts relating to his health and gave false information, therefore, no illegality has been committed by the learned Court below in dismissing the suit. ( 10. ) MR. R. C. Chhazed, learned Counsel for respondent has also placed reliance on a decision in the matter of Mithoolal Nayak Vs. ( 10. ) MR. R. C. Chhazed, learned Counsel for respondent has also placed reliance on a decision in the matter of Mithoolal Nayak Vs. Life Insurance corporation of India, reported in 1962 SC 814 (V 49 C 117), wherein it was held that the three conditions for the 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 of the first time of making the statement that it was false or that it suppressed facts which it was material to disclose. ( 11. ) LEARNED Counsel submits that following the decision of Honble apex Court in the matter of Mithulal (supra), in the matter of LIC Vs. Asha goyal, reported in 2001 SC 549, it was held by the Honble Apex Court that "the burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so there is no question of the policy being avoided on ground of mis-statement of facts. The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material must be disclosed". ( 12. ) FURTHER reliance was also placed on a decision of this Court in the matter of Smt. Munni Devi Vs. LIC, Civil Revision No. 262/06, decided on 24-7-07, wherein a deceased insured was suffering from Nephritic Syndrome for a long time in the past. In this case, it was held that Nephritic Syndrome is a disorder where the kidneys have been damaged, causing them to leak protein from the blood into the urine. It is characterized by puffiness around the eyes, characteristically in the morning, edema, and undue weight gain. The most common sign is excess fluid in the body. It is too far fetched to accept that either deceased was unaware of the illness or seriousness thereof when he took the policy". It is characterized by puffiness around the eyes, characteristically in the morning, edema, and undue weight gain. The most common sign is excess fluid in the body. It is too far fetched to accept that either deceased was unaware of the illness or seriousness thereof when he took the policy". It was further held that since in answer to the question relating to health in the proposal form, the deceased did not only fail to disclose what was material for him to disclose but he made false statement to the effect that he was not suffering from any serious ailment or disorder, therefore, no illegality has been committed by the learned Court below in dismissing the claim filed by the appellants. ( 13. ) RELIANCE was also placed on a decision of Kerala High Court in the matter of P. Sarojam Vs. LIC of India, reported in AIR 1986 Kerala 201; wherein it was held that false answers to the question in the proposal form given by the assured relating to the state of his health vitiate the contract of insurance and the corporation is entitled to repudiate the policy and decline payment thereunder. In the aforesaid case, it was held that medical officer of the Corporation had certified life assured as good is not material. ( 14. ) FROM perusal of record and statement of Dr. Rajesh Jain (D. W. 2), it is evident that the deceased was examined by him prior to insurance and the certificate about his fitness for the purpose of insurance was given by him. Deceased was working as Supervisor in Primary Health Centre at the time of death also. Dr. P. L. Patel (D. W. 3), who has issued the certificate for grant of leave has stated that in examination it was found that deceased suffering from hypertension and diabetics. This has also come in evidence that since the deceased was in need of long leave on account of construction of house, therefore, he also applied for medical leave. ( 15. ) FROM perusal of record it is evident that the date of submission of the proposal form was 15-7-03 which was accepted on 19-7-03 while the date of death is 4-8-04, i. e. , more than a year after submission and issuance of policy. ( 15. ) FROM perusal of record it is evident that the date of submission of the proposal form was 15-7-03 which was accepted on 19-7-03 while the date of death is 4-8-04, i. e. , more than a year after submission and issuance of policy. The alleged sufferings are of the year 2000, i. e. , more than two years and a half prior to the date of submission of the proposal form. Section 45 of the Insurance Act reads as under:- "45. Policy not to be called in question on ground of mis-statement after two years.-No policy life insurance effected before commencement of this Act shall, after the expiry of 10 years from the date of commencement of this Act and no policy of life insurance effected after 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 policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. " ( 16. ) KEEPING in view the settled position of law it is not enough that the statement must be on a material matter or must suppress the facts which was material to disclose, but it is also necessary to prove that suppression was made fraudulently by the policy holder and the policy holder must have known at the time of making the statement that it was false or that it suppressed the material facts. Burden of proof that the suppression was made fraudulently by the policy holder and the policy holder was knowing the fact that the statement which he was making is false on insurer. Burden of proof that the suppression was made fraudulently by the policy holder and the policy holder was knowing the fact that the statement which he was making is false on insurer. Section 45 of the Insurance Act empowers the insurer to repudiate the claim on the ground that insured in the proposal form suppressed facts which were material to disclose and that it fraudulently made by the policy holder, if the claim is made within two years from the commencement of policy. ( 17. ) IN the present case, it has come in evidence that the deceased was working in the medical department as Assistant Supervisor and also that deceased took long leave from his duty from 12th August, 2000 to last week of december, 2000 and all type of leave were availed by him. As the law laid down by Honble Apex Court in the matter of Mithulal (supra), it is not enough to repudiate the claim of insured on the ground that insured has suppressed material facts which he was supposed to disclose, it is also necessary to establish on the part of LIC that suppression was fraudulently made by the policy holder. In the present case, there is no evidence on record to show that suppression of diabetics and Non Insulin Dependent Diabetes Meuitvs (NIDDM) was fraudulent. The insured was examined by Dr. Rajesh Jain (D. W. 2) who was one of panel doctors of LIC, prior to issuance of policy and it was found that the deceased was fit for the policy and was in Government job. It is also not on record that why the information given by the deceased was not cross checked by the doctor or insurance corporation. Apart from this the information about the health is filled in the form by the agent and not by the insured who was a literate man. In the matter of Life Insurance Corporation of India Vs. Smt. Asha Goel, 2001 SC 549, Honble Apex Court has observed that- "in course of time the Corporation has grown in size and at present it is one of the largest public sector financial undertakings. The public in general and crores of policy-holders in particular look forward to prompt and efficient service from the Corporation. Smt. Asha Goel, 2001 SC 549, Honble Apex Court has observed that- "in course of time the Corporation has grown in size and at present it is one of the largest public sector financial undertakings. The public in general and crores of policy-holders in particular look forward to prompt and efficient service from the Corporation. Therefore, the authorities in- charge of management of the affairs of the Corporation should bear in mind that its credibility and reputation depend on its prompt and efficient service. Therefore, the approach of the Corporation in the matter of repudiation of a policy admittedly issued by it should be one of extreme care and caution. It should not be dealt with in a mechanical and routine manner. Repudiation of claim by corporation merely on grounds that insured who died of acute myocardial infraction and cardiac arrest had not disclosed correct information regarding his health at time of effecting insurance with corporation, is not proper. " ( 18. ) SO far as the decision of this Court in the matter of Smt. Munni Devi vs. LIC (supra), is concerned, the matter before this Court was in revision where the civil suit and first appeal filed by the claimant was dismissed and this Court was examining judgment of two Courts below while exercising revisional jurisdiction wherein the scope of this Court is limited in comparison to first appeal. Keeping in view this position of law and the fact that deceased was in government service and was examined by doctor of LIC and also looking to the disease mentioned in the certificate which were submitted for taking a long leave this Court is of the view that there was no fraudulent suppression of facts especially in the facts and circumstances of the case when the proposal form was filled in by the agent of the Life Insurance Corporation while deceased was a literate man and was in Government employment, and also was examined by doctor of LIC. In the circumstances, there was no justification in dismissing the claim of the appellants. ( 19. ) IN view of this, the appeal is allowed. Judgment and decree passed by learned Court below is set aside. Appellants shall be entitled for a sum of rs. 1,00,000/- along with interest @ 9% per annum from the date of submission of the claim form till realisation. ( 19. ) IN view of this, the appeal is allowed. Judgment and decree passed by learned Court below is set aside. Appellants shall be entitled for a sum of rs. 1,00,000/- along with interest @ 9% per annum from the date of submission of the claim form till realisation. Respondents shall also be liable for costs of both the Courts below.