JUDGMENT 1. This is plaintiffs' First Appeal filed under Section 96 of the Code of Civil Procedure (for short 'the C.P.C') directed against the Judgment and decree dated 31.03.1994 passed in Civil Suit No. 14-B/1989 by the 2nd' Additional District Judge, Durg. 2. Facts of the case in brief are as under : (i) Respondent No.11 Life Insurance Corporation of India (for short 'L.I.C.') floated a "Salary Savings Scheme" under which late Ku. Pushpa Lata Pachori, an employee of respondent No.2, took a insurance policy No.S/57921399 for an amount of Rs.50,000/-. The insurance policy was to commence on 26.8.1983 and monthly premium was fixed at Rs.290.80 per month. Deceased Ku. Pushpa Lata Pachori paid an amount of premium of two monthly installments as advance to respondent No.1's agent Shri S.K.Singh and obtained receipt (as per appeal memo paragraph 4). It appears that premium for next two months were neither deducted by respondent No.2 from her salary nor remitted by it 'to the L.I.C. i.e. for the months of November and December, 1983. Respondent No.2 further failed to deduct it from the salary of deceased Ku. Pushpa Lata Pachori and to remit the same to respondent No.1 for the months of December, 1984, January to March, 1985. (ii) According to the appellants, Ku. Pushpa Lata Pachori fell ill in the month of September, 1985 and died on 17.10.1995 due to chronic renal failure and, hypertension, i.e., Nephropathy. (iii) The original plaintiff - Dr. Y.B.Dewalia, who was allegedly nominee and brother-in-law of deceased Ku. Pushpa Lata Pachori preferred a claim on 30.12.1985 with the L.I.C. claiming the amount of policy with all other benefits. Respondent No.1 repudiated the claim made by the original plaintiff inter alia on two grounds, i) policy had lapsed for default in payment of premiums for the months of November and December, 1983 and also December, 1984 and January to March & July, 1985; and ii) the policy holder was guilty of fraudulent suppression of material facts relating to her death within the meaning of Section 45 of the Insurance Act. (iv) The original plaintiff filed a civil suit for recovery of amount of Rs.63,500/- against respondents inter alia on the grounds, it was the duty of respondent to deduct the amount of premiums from the salary of deceased Ku. (iv) The original plaintiff filed a civil suit for recovery of amount of Rs.63,500/- against respondents inter alia on the grounds, it was the duty of respondent to deduct the amount of premiums from the salary of deceased Ku. Pushpa Lata Pachori and to remit the same to respondent No.1 and there is no fraudulent suppression of material facts by deceased Ku. Pushpa Lata Pachori. The respondent No.2 remained ex parte. (v) By filing written statement, respondent No.1 denied the plaintiff's claim and reiterated the grounds taken by it while repudiating the claim. (vi) The trial Court framed the following issues: (vii) The trial Court, on appreciation of the evidence, documentary and oral, led by the parties, dismissed the suit finding inter alia, policy had lapsed for want of payment of premiums and the policy holder was guilty of fraudulent suppression of material facts relating to her health. Hence, this appeal. 1- D;k iz’uk/khu ikWfylh iq”iyrk dh e`R;q ds le; dkykrhr gks xbZ Fkh \ 2- D;k e`frdk iq”iyrk us LoLF;k laca/kh rkfRod fof’k”V;ksa dks fNikdj chek ikWfylh izkIr dh Fkh] ;fn gka rks izHkko \ 3- D;k nkok le;kof/k ds Hkhrj gSa \ 4- D;k oknh nkos dh dafMdk&17 ds vuqlkj mYysf[kr jkf’k 63]500@& :i;s izfroknhx.k ls ikus dk ik= gS \ 5- lgk;rk ,oa O;; \ (viii) During the pendency of the appeal, original plaintiff -Dr. Y.B.Dewalia has died and his legal representatives were brought on record. 3. Shri Rajesh Jain, learned counsel appearing for the appellants, while relying upon the judgment of Supreme Court in the case of Delhi Electric Supply Undertaking Vs. Basanti Devi and another : 1999 AIR SCW 4161, would submit: respondent No.2 was agent of respondent No.1 for the purpose of deducting the amount of premiums from the salary of deceased - Ku. Pushpa Lata Pachori and for remitting the same to respondent No.1 and the plaintiff's claim cannot be denied on the ground that the policy had lapsed due to employer's failure to deduct, the premiums from the salary of deceased - Ku. Pushpa Lata Pachori and to remit the same to respondent No.1. Pushpa Lata Pachori and for remitting the same to respondent No.1 and the plaintiff's claim cannot be denied on the ground that the policy had lapsed due to employer's failure to deduct, the premiums from the salary of deceased - Ku. Pushpa Lata Pachori and to remit the same to respondent No.1. It was further contended, the claim was not repudiated by respondent No.1 within a period of two years from the date on which the policy of insurance was effected and respondent No.1 utterly failed to prove that deceased - policy holder was guilty of fraudulent suppression of material facts relating to her health within the meaning of Sec. 45 of the Insurance Act, 1938, and therefore, the learned Court below has erred in dismissing the plaintiff's suit. 4. On the other hand, Shri V.Vijay Rao, learned counsel appearing for respondent No.1 supported the judgment and decree impugned and submitted: admittedly before taking policy, deceased - Ku. Pushpa Lata Pachori was suffering from Hypertension and cause of her death was Chronic Renal failure and Hypertension, i.e., Nephropathy; she took long sick leave of 33 days from 20.07.1982 till 21.08.1982 and of22 days from 6.9.1982 upto 27.9.1982 before signing the proposal form. She suppressed the above fact while filling up the application form for obtaining policy, she answered questions No. 18, 18(b), 20 and 21 in negative relating to her health. She stated, she never suffered from any ailment, never consulted a medical practitioner within the last 5 years for any ailments requiring treatment for more than a week and she never remained absent from the place of her work on the ground of health during the last 5 years. It was further contended, even after taking policy, she was on sick leave from 17.11.1983 upto 22.12.1983, 14.07.84 till 10.08.1984, 27.9.1984 till 29.9.1984, 27.10.1984 till 31.10.1984, 19.11.1984 till 5.1.1985, and therefore, all the above facts go to show that she was guilty of fraudulent suppression of material facts relating to her health, within the meaning of Section 45 of the Insurance Act, 1938. It was also argued by Shri V. Vijay Rao that the amount of premiums was not deducted by respondent No.2 from the salary of deceased Ku. It was also argued by Shri V. Vijay Rao that the amount of premiums was not deducted by respondent No.2 from the salary of deceased Ku. Pushpa Lata Pachori, and therefore, there is no question of remittance arise; the policy had lapsed for want of payment of premiums and on this ground also the respondent No.1 is not liable for payment of sum insured. 5. I have heard learned counsel for the parties, perused the judgment and decree including record of the trial Court. 6. The core question arises for determination of this Court is whether in the facts and circumstances of the case, the trial Court has erred in dismissing the plaintiff's claim? 7. The Supreme Court, in the case of Delhi Electric Supply Undertaking Vs. Basanti Devi and another) (supra), in which, in a case where admittedly the amount of premium was deducted by the employer from the salary of employee but was not remitted to the L.I.C. of India, after going through the Salary Savings Scheme, and exercising its power under Article 142 of the Constitution of India and also powers under Order 41 Rule 33 of the C.P.C has directed L.I.C. to pay the sum insured with interest at the rate of 150/ per annum. 8. Here in the instant case, admittedly, the amount of premium for the months of November and December, 1983 and also December, 1984 and January to March & July, 1985 has neither been deducted from the salary of deceased Ku. Pushpa Lata Pachori nor remitted the same to the L.I.C. by the employer. 9. Further, deceased - Ku. Pushpa Lata Pachori was suffering from some serious ailment before signing the proposal form is evident from long sick leave of 33 days from 20.07.1982 till 21.08.1982 and of 22 days from 6.9.1982 upto 27.9.1982 (Ex-P.6). Admittedly, she was suffering from Hypertension but she suppressed the above material facts while filling up and signing the proposal form (Ex.D.3). She answered questions No. 18, 18(b), 20 and 21 relating to her health in negative. She stated, she never suffered from any ailment, never consulted a medical practitioner within the last 5 years for any ailments requiring treatment for more than a week and she "never remained absent from the place of her work on the ground of health during the last 5 years. Ex.D.18, the. medical certificate given by Dr. She stated, she never suffered from any ailment, never consulted a medical practitioner within the last 5 years for any ailments requiring treatment for more than a week and she "never remained absent from the place of her work on the ground of health during the last 5 years. Ex.D.18, the. medical certificate given by Dr. Vishnu K. Gupta, to which, the signature of deceased Ku.Pushpa Pachori was admitted by P.W.1 late Dr. Y.B.Dewalia, goes to show, before signing the proposal form, she was under treatment of Dr. Y.K.Gupta for Hypertension and Arthritis. The above deliberate wrong and• false answers have certainly material bearing on the contract of insurance. 10. The first part of Section 45 of the Insurance Act postulates repudiation of such policy within a period of 2 years. By reason of the aforementioned provision, a period of limitation of two years had, thus, been specified and on the expiry thereof the policy was not capable of being called in question, inter alia, on the ground that the statement made in the proposal form 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; the second part of Section 45 is in the nature of proviso which creates an exception. It says in effect that if 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 that the 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, then the insurer can call in question the policy effected as a result of such inaccurate or false statement. 11. In the instant case, period of two years had already expired when the respondent insurance company repudiated the claim, and therefore, the first part of Section 45 of the Insurance Act has no application. 12. To bring the case within the second part of Section 45 of the Insurance Act, proof of following three conditions are necessary, as held by the Supreme Court in the case of Mithoolal Nayah Vs. LIC of India : AIR 1962SC814. 12. To bring the case within the second part of Section 45 of the Insurance Act, proof of following three conditions are necessary, as held by the Supreme Court in the case of Mithoolal Nayah Vs. LIC of India : AIR 1962SC814. "(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 that it was false or that it suppressed facts which it" was material to disclose." 13. The Supreme Court in the case of P. C. Chacko and another Vs. Chairman, Life Insurance Corporation of India and other, (2008) 1 SCC 321 has held "misstatement by itself was not material for repudiation of the policy unless the same is material in nature. But a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law. The purpose for taking a policy of insurance is not very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered". 14. Now reverting to the facts of the case, deliberate false answers to questions No. 18, 18(b), 20 and 21 have been given by the policy-holder while filling up of proposal form. The admitted leave certificate (Ex.P.6) goes to show that she had taken long sick leave of 33 days and of 22 days before taking the policy but knowing fully well about her serious ailment, she gave false answers to the questions regarding her health and of taking sick leave. 15. The fact of sick leave was also not denied by P.W.1 Dr. Y.B.Dewalia, who also stated that the policy-holder was to attend birth ceremony of his son and for that she obtained the sick leave. 16. When the matter is examined in the light of above broad features of the case, in my opinion, the learned Court below has not committed any error in holding the deceased as guilty of fraudulent suppression of material facts within the meaning of Section 45 of the Insurance Act, 1938 and in dismissing the plaintiff's suit. 17. 16. When the matter is examined in the light of above broad features of the case, in my opinion, the learned Court below has not committed any error in holding the deceased as guilty of fraudulent suppression of material facts within the meaning of Section 45 of the Insurance Act, 1938 and in dismissing the plaintiff's suit. 17. For the reasons mentioned hereinabove, the appeal, being devoid of merit and substance, is liable to be and is hereby dismissed. 18. No order as to costs. 19. A decree be drawn accordingly. Appeal Dismissed.