JUDGMENT ( 1 ) THE present writ petition has been preferred for following reliefs: (i) For issuance of an appropriate writ, order or direction, in the nature of certiorari for, quashing the letter dated 04. 2. 2004 issued under the signature of Senior Divisional manager whereby and whereunder the said authority in utter disregard to the legal, entitlement of the petitioner to receive death claims arising out of the policies on account of death of the petitioner's husband, rejected the petitioner's claims on untenable ground (s) in a most illegal and arbitrary manner. (ii) For issuance of an appropriate direction upon the respondent authorities to forthwith release the death claims in favour of the petitioner attached with the policies bearing policy No. 551523082 and 551523083 purchased by petitioner's late husband. ( 2 ) THE facts, in brief, are set out as under: the petitioner's late husband Ram chandra Ram was a crew controller/opb (TRS)/ghd at East Central Railway, barwadih. The respondent Nos. 4 and 5 persuaded him to take two policies of L. I. C. of india. The details of the policies are as follows: Policy No. 1 (i ) Policy No. 551523082 (ii) Sum Assured-50,000/- (iii) Date of cormmencement-28. 6. 1999 (iv) Date of Maturity-28. 6. 14 (v) Installment premium-3086. 00 (vi) Mode-HLY-45 YRS (vii) Branch-55k (viii) D. O. Code-0999999 (ix) Agent Code-0043855k Policy No. 2 (i ) Policy No. 551523083 (ii) Sum Assured-50,000/- Date of commencement-15. 6. 99 Date of Maturity-15. 6. 14 (v) Installment premium-3086. 00 (vi) Mode-HLY/45 -YRS (vii) Brahch-55 K (viii) D. O. Code-0999999 (ix) Agent Code-0043855 K ( 3 ) THE Branch Manager, Jamshedpur Division of L. I. C. of India accordingly issued acceptance letter cum first premium receipts of both the policies Due to personal financial difficulties there was some default in payment of the premium of few quarters and memo dated 30. 7. 01 was issued to the petitioner's late husband for payment of premium and renewal thereof. The petitioner's late husband renewed both the policies on 1. 10. 2001 and 18. 2. 02 and paid up-to-date premiums with late fee and the renewal premium receipts were also issued to the petitioner's late husband by the respondents. Petitioner's husband died on 27. 11. 02 due to cardiac respiratory failure and accordingly a death certificate was issued. The petitioner's late husband renewed both the policies on 1. 10. 2001 and 18. 2. 02 and paid up-to-date premiums with late fee and the renewal premium receipts were also issued to the petitioner's late husband by the respondents. Petitioner's husband died on 27. 11. 02 due to cardiac respiratory failure and accordingly a death certificate was issued. The petitioner is the named nominee and after the death of her husband she applied for payment of death benefits attached with the aforesaid two policies. The respondents wrote a letter on 7. 3. 03 asking for the leave details of the petitioner's late husband from the Railway. The respondents also sought Railway Medical Certificate of petitioner's late husband for the period 01. 6. 01 to 04. 7. 01 from petitioner's son and in terms of the letter dated 28. 8. 2003 he requested the Senior Divisional Medical Officer for issuing Medical Certificate. The senior Divisional Medical Officer, East Control Railway, Barwadih on the same letter dated 28. 8. 03 certified that the petitioner's late husband was under his treatment w. e. f. 01. 6. 01 to 04. 7. 01 for P. V. O. and was issued fitness certificate on being relieved being No. F-0768014 which was communicated to the petitioner. The respondent took a decision that at the time of the revival of the policy petitioner's husband, since deceased, had withheld material information regarding his health and therefore, the revival of the policies was declared void and money paid by the deceased was to be retained by the respondent vide their letter dated 04. 02. 2004. The petitioner being constrained wrote a letter on 02. 3. 2004 to the Zonal Manager, kolkata for reconsideration of the matter and for payment of the benefits under the policy and the Zonal Manager vide its letter dated 19. 3. 2004 communicated to the petitioner that the matter is now being taken up with jamshedpur Divisional Office. However, nothing was communicated thereafter, The petitioner being constrained has preferred this writ petition for quashing the impugned letter dated 04. 2. 2004. ( 4 ) THE main contention raised by the learned counsel for the petitioner is that she being the nominee/widow of late Ram Chandra ram and was thus, entitled to receive the death claims under two Insurance policies moreso when the policies were renewed with late fee payment on making up-to-date payment. 2. 2004. ( 4 ) THE main contention raised by the learned counsel for the petitioner is that she being the nominee/widow of late Ram Chandra ram and was thus, entitled to receive the death claims under two Insurance policies moreso when the policies were renewed with late fee payment on making up-to-date payment. It has also been contended that no material information regarding health at the time of revival was concealed or withheld. He further submitted that Section 45 of the Insurance Act, 1938 clearly provides that the policy cannot be called in question after two years and in this case the policy was of 1999 which is sought to be called in question in the year 2004. ( 5 ) THE learned counsel for the respondents submits that Clause 3 of the policy provides that the revival of policy can be done during the life time of the life assured within a period of first unpaid premium and before the date of maturity. On submission of proof of continued insurability to the satisfaction of the Corporation and the payment of all the arrears of premium together with interest at such rates as may be fixed is paid and the corporation reserves the right to accept or decline the revival of discontinued policies. As per Form No. 680 the personal statement regarding health was to be given by the person whose life was assured and specific answer to specific question relating to health as quoted in Form was to be filed up. It is further submitted that while answering the question No. 2 (a) to (d) in Form No. 680 the deceased, late husband of the petitioner, had given all answers in negative and in question No. (2) (a) (ii) it was specifically asked whether the Life assured was suffering from high blood pressure or any disease of the heart and his answer was in negative. He further submits that in question No. 4 he further answered that he was of sound health and signed a declaration that his statements are true and correct and in case if it was untrue the contract shall be absolutely null and void and all monies which was supposed to be paid in respect therein to the policy holder shall stand forfeited to the Corporation. There is misstatement and material suppression and thus, under Section 45 of the Insurance Act he was not entitled to the fruits of the policy. It has further been submitted that he was on medical leave for the said ailment and thus, there was material misstatement. To support his contention he has referred to and relied upon the following judgments: (i) AIR 1959 Patna 413. (ii) AIR 1962 SC 814 (iii) AIR 1991 SC 392 (iv) AIR 2001 SC 549 . ( 6 ) I have considered the rival submissions, pleadings and case law on the issue. Before dealing with the matter on merits, it will be relevant to quote Section 45 of the Insurance act, 1938 which is quoted as under: "45. Policy not to be called in question on ground of mis-statement after two years.-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 effected 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 statement was false [or that it 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. ] ( 7 ) SECTION 45 of the Act prescribes that life insurance policy cannot be called in question on the ground of misstatement after a lapse of two years and thus postulates repudiation of insurance policy within a period of two years. There are three pre-conditions for invoking the second part of Section 45 of the Insurance act and the same are set out as under: (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. It will be evident on reading the provisions aforesaid as well as the settled law that misstatement by itself was not material for repudiation of the policy unless the same was fraudulent and material in nature and had a great bearing on the contract of the insurance. ( 8 ) LEARNED counsel for the petitioner has heavily relied upon a judgment reported in air 1959 Patna 413 (Ratan Lal v. Metropolitan Insurance Co. Ltd.) which was a case where a distinction was made between what was material and what was not material in regard to the disclosure of the facts in that case itself and it was held as under: "5. The well-settled law in the field of insurance is that contracts of insurance including the contracts of life assurance are contracts uberrima fides and every fact of materiality must be disclosed otherwise there is good ground for rescission, and this duty to disclose continues up to the conclusion of the contract and covers any material alteration in the character of the risk which may take place between proposal and acceptance. " ( 9 ) THE Hon'ble Supreme Court in AIR 1962 sc 814 held that the policy will be vitiated by reason of fraudulent suppression of material facts by the insurer/policy holder. It further held that the assignee cannot stand on better footing than insured and Contract Act was not applicable and even waiver will not apply in such cases since die policy holder was guilty of fraud and suppression of material facts when he made a statement which he must have known as deliberately false. It further held that the assignee cannot stand on better footing than insured and Contract Act was not applicable and even waiver will not apply in such cases since die policy holder was guilty of fraud and suppression of material facts when he made a statement which he must have known as deliberately false. ( 10 ) IN a similar matter the view of the madhya Pradesh High Court and Orissa High court were as under: (i) The insured was suffering from pulmonary tuberculosis before the date of filing of questionnaire for policy. The doctor had not examined to prove the fact. There is no supporting evidence for it. The claim of applicant for recovery of policy amount from insurance company was rightly decreed on its failure to discharge burden of proof. (Life insurance Corporation of India v. Ambika prasad Pandey, AIR 1999 MP 13 ). (ii) There was non-disclosure of material facts in a policy which covered the risk of life. This policy was repudiated. The assured died after two years due to cardio-respiratory arrest. It was shown from the hospital documents that the deceased was a diabetic patient for the last 15 years and this fact was not disclosed by the deceased. Even the confidential report given to the doctor, at the time of taking the policy, did not mention it. It was held that the deceased was not guilty of withholding material facts and the repudiation of policy was not proper. (Life Insurance Corporation of India v. Narmada agarwalla, AIR 1993 Ori. 103 ). ( 11 ) IN the instant case the entire basis for the respondent to repudiate the claim of the petitioner is based on the certificate given by the Medical Officer for the period on leave from 01. 6. 01 to 04. 7. 01 which is treated as material misstatement of fact to refuse the benefit of the claim of two policies. However, it will be relevant to refer the certificates itself given by the Senior Divisional medical Officer on 28. 8. 03 on the same letter written by the son of the deceased policy holder and in the certificate it clearly shows that the deceased policy holder was under treatment from 01. 6. 01 to 04. 7. However, it will be relevant to refer the certificates itself given by the Senior Divisional medical Officer on 28. 8. 03 on the same letter written by the son of the deceased policy holder and in the certificate it clearly shows that the deceased policy holder was under treatment from 01. 6. 01 to 04. 7. 01 and at the time of being relieved a fitness certificate was given and thus, it was not a case of concealment of any serious operation under gone or a fraudulent suppression of material fact instead the certificate itself says and giants the fitness certificate proving the fact that there was no serious ailment otherwise he could not have been released nor fitness certificate could have been granted. The facts in the present case are completely different and the ratio of the judgment is clearly in favour of the petitioner in all the judgments referred to hereinabove. ( 12 ) THERE is no dispute about the well settled proposition of law with regard to estoppel, acquisition or waiver when a person makes a wrong statement to the insurance company with knowledge of consequence thereof. In the matter of LIC of India v. Asha goel reported in (2001) 2 SCC 160 : AIR 2001 SC 549 whereupon reliance has been placed by the learned counsel for the respondents at para-12 it was held as under: "12. . . . The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. " ( 13 ) IN (2008) 1 SCC 321 : ( AIR 2008 SC 424 ) (P. C. Chako and another v. Chairman. Life Insurance Corporation of India and others), the Hon'ble Supreme Court while considering an identical issue with regard to claim of insurance policy on the ground of misstatement held that misstatement by itself was not a reason for rescission of the policy unless the same is material in nature. However, a deliberate wrong answer given by insured having a great bearing on contract of insurance may lead to policy being vitiated in law. It also reiterated that the policy can be repudiated if obtained with a fraudulent act. In the aforesaid case the insured has under gone an operation for adenoma thyroid prior to the policy and while answering question in the application form for obtaining the policy, he had denied that he had undergone any operation and thus, it was held that the operation being very serious in nature and there was a deliberate wrong answer which had a great bearing on the contract of the insurance and will certainly amount to obtaining policy with a fraudulent act and can be repudiated. ( 14 ) IT will be evident on consideration of the facts and circumstances of the case that the ingredients and the requirement under section 45 of the Insurance Act does not apply to the present facts of the case since the statement made was neither fraudulent nor amounts to suppression of material fact. Secondly, the policy holder cannot be said to have the knowledge at the time of making the statement that it was false or it suppressed material facts for the sole reason that the certificate clearly proved beyond doubt that he was fit and accordingly given a fitness certificate. Thus, being on medical leave by itself cannot amount to suppression of material facts nor can it by any stretch of imagination said to be fraudulent or greatly material to be disclosed. Thus, being on medical leave by itself cannot amount to suppression of material facts nor can it by any stretch of imagination said to be fraudulent or greatly material to be disclosed. There is another aspect of the matter that the prescribed period is two years as provided under Section 45 of the act for repudiation of such policies and after expiry of two years thereof the policy cannot be called in question by the insurer. In the instant case the policy was entered into in 1999 whereas the impugned letter under challenge has been issued in the year 2004. ( 15 ) CONSIDERING the aforesaid facts and circumstances of the case, this writ petition is allowed and the impugned letter dated 04. 2. 2004 issued under the signature of Senior Divisional Manager is hereby quashed. The respondents are accordingly directed to pay as per the sum assured in the policies to the petitioner, who is nominee of the deceased policy holder, within a period of two months from the date of receipt/production of a copy of this order. Petition allowed. --- *** --- .