JUDGMENT : Biswanath Rath, J. This case is filed by the petitioner seeking quashing of order vide Annexure-5 passed by opposite party no.1 and thereby further issuing a writ of mandamus directing the opposite parties to make payment of Rs.1,00,000/-(rupees one lakh) towards the whole insured money as against the particular insurance policy in respect of the brother of the petitioner. 2. Fact as revealed from the case is that the brother of the petitioner undertook a Endowment Assurance Policy bearing No.584714018 amounting to Rs.1,00,000/-(rupees one lakh) through Life Insurance Corporation of India. The policy was purchased on 23.09.2002 bearing Policy No.584714018 to mature on 23.09.2018. The petitioner’s case is that his brother went on making the premium till he last breathed on 27.05.2003. His brother died suffering from fever and dysentery and on his death the petitioner claimed the amount involved under the Life Insurance Policy concerning his brother from Insurance Company which claim has been denied by the Insurance Company by a reply dated 15.03.2004 under the premises that the policy was obtained making deliberate mis-statement and withholding material information with regard to his health condition at the time of entering into the policy contract from the Insurance Company. The petitioner further contended that his father died suffering from fever and dysentery as per Medical Certificate granted by a competent Doctor on 25.05.2003. The Death Certificate clearly discloses that the policy holder died on account of fever and dysentery while remaining under consultation of one Dr. Jagannath Sarangi at Barchana. On refusal of claim of the petitioner, the petitioner submitted a representation to the Insurance Company for reconsideration of the issue and there is no response to the same by the Insurance Company. It is under these premises, the petitioner sought for quashing of the rejection order passed by the Insurance Company and also for issuing a writ of mandamus directing the insurance company for making sum assured. Learned counsel for the petitioner submits that since the Insurance Company had a test on his brother’s life condition before entering into the policy contract they are estopped from claiming now that the petitioner’s brother had suppressions on his health condition and therefore he is not entitled to the amount insured. 3. Learned counsel for the petitioner submits that since the Insurance Company had a test on his brother’s life condition before entering into the policy contract they are estopped from claiming now that the petitioner’s brother had suppressions on his health condition and therefore he is not entitled to the amount insured. 3. Per Contra, on its appearance, the opposite parties have filed a counter affidavit inter alia contending therein that the claim under the policy having resulted within eight months from the date of commencement of the policy an enquiry was conducted involving the brother of the deceased and it is at this stage revealed from him that the deceased was suffering from Kidney problems prior to the commencement of the Insurance and he was being treated at Vesaj Patel Hospital and Research Center at Rourkela and taking Haemo Dialysis starting from 30.08.2002 and continuing till 06.05.2003. The deceased submitted his proposal for insurance on 16.09.2002 during which time he was under treatment of Kidney related problems. During enquiry communication was also made by the Vesaj Patel Hospital and Research Center at Rourkela as appearing at Annexure-B addressed to the Branch Manager, LIC of India, Uditnagar Branch Office, Rourkela clearly disclosing that the deceased was taking Haemo Dialysis in this particular hospital starting from 30.08.2002 and the last dialysis was conducted on 09.05.2003. It is on these premises, the Insurance Company justified its action refusing to entertain the claim of the petitioner and submitted for dismissal of the writ petition. The opposite parties claimed that the particular claim was being considered up to the level of Zonal Claim Review Committee and a final decision was take in the matter at a very high level and, therefore, there is no scope for interfering in such matter. During course of hearing I had the occasion to go through the policy vide Annexure-1 and I find the policy is an Endowment Assurance Policy bearing No. 584714018 and the said policy was started on 23.09.2002 with quarterly premium of Rs.1607/-(rupees one thousand six hundred seven). In the 1st page of the claim form of the insured as appearing at Annexure-A discloses that the brother of the petitioner died on account of suffering from fever and the 2nd page of the claim form discloses that the claimant is the brother of the deceased. In the 1st page of the claim form of the insured as appearing at Annexure-A discloses that the brother of the petitioner died on account of suffering from fever and the 2nd page of the claim form discloses that the claimant is the brother of the deceased. In Column-5 place meant for disclosing the names of medical attendants (doctors) during the last illness indicated ‘Nil’ which means the petitioner did not choose to indicate the name of the treating doctor, if any, taken by his brother at the time of death. This claim application was filed on 21st August, 2003. 4. Now coming back to the Medical Certificate filed by the petitioner that is the brother of the deceased as appearing at Annexure-2 series to have been obtained on 25.05.2003, if the petitioner was in a possession of such medical certificate since 25.05.2003 nothing prevented the petitioner to fill the Column-5 in the claim application giving such information and copy of such certificate could have been attached therein. Further, when the medical certificate discloses that the deceased was suffering from fever and dysentery, the claim application discloses that the deceased was suffering from fever only. Therefore, it appears that the petitioner made serious attempts in arranging concocted documents but subsequently to justify his claim. Reading of both the documents make it clear that the Medical Certificate is filed at Page-16 of the writ petition was probably not existed on the date of submission of the claim statement and has been procured subsequently with deliberate intention. 5. Now coming to the other aspects involved in the matter of genuineness in the claim application from the petitioner, it appears that an enquiry was conducted by the Insurance Company to find out the genuineness in the claim and during enquiry it was revealed that the deceased insured was suffering from serious Kidney ailment. It is on the basis of such revelations on contacting the Vesaj Patel Hospital and Research Center at Rourkela the said hospital vide Annexure-B communicated the Insurance Company that the deceased is the brother of the petitioner and that the policy holder was suffering from Kidney ailment and was taking Haemo Dialysis in the particular hospital at Rourkela. The dialysis on him got started on 30.08.2002 whereas the last dialysis was given on 09.05.2003 and the brother of the petitioner died on 24.05.2003. The dialysis on him got started on 30.08.2002 whereas the last dialysis was given on 09.05.2003 and the brother of the petitioner died on 24.05.2003. Under these premises also it becomes clear that the deceased policy holder was suffering from serious ailment and there has been material suppression of information while entering into the policy contract. Perusal of the Medical Certificate vide Annexure-2 would reveal that although the issuing doctor has mentioned about the fact of his treating the insured on 20.05.2003 for fever and dysentery but has very quietly and deliberately disconnected these facts from the reason of the death of the deceased and it no where mentioned the reason of death. Further perusal of documents vide Annexure-D and from No.3816 and 3784 clearly demonstrates deliberate suppression of material facts. Petitioner’s contention in the matter of reliance of Section 45 of the Insurance Act has no application in the present case as the death of the policy holder occurred within eight months of the entering into the policy contract and that too there exist an established complain on suppression of material fact at the time of entering into the policy by the policy holder himself. Thus, I find force in the submissions of the opposite parties. There is no illegality in rejecting the claim of the petitioner in relation to the policy holder and the matter did not deserve any reconsideration. 6. From the materials available on record, it appears that there is suppression of material facts and such suppression is fraudulently made by the policy holder, deliberately made, knowing it well that such statement/disclosure is false and under the circumstance I hold that the policy holder has obtained the policy on deliberate suppression of material particular and thus the Insurance Company is entitled to the benefit of Section 45 of the Insurance Act. In my conclusion the appellant is clearly out of Court and cannot claim the benefit since the contract which has been entered into as a result of fraudulent suppression of material facts by the insured himself. While holding so, I am also of the further opinion that when the policy is vitiated by reason of a fraudulent suppression of material facts by the insured, the claimant ought to be denied with any benefit. Law as enunciated in the Case of Mithoolal Nayak vrs. While holding so, I am also of the further opinion that when the policy is vitiated by reason of a fraudulent suppression of material facts by the insured, the claimant ought to be denied with any benefit. Law as enunciated in the Case of Mithoolal Nayak vrs. Life Insurance Company of India; A.I.R. 1962 S.C. 814 categorically held that the cases in which there is a stipulation that by reason of breach of warranty by one of the parties to the contract the other party shall be discharged from the performance of his part of contract, neither Section 65 nor Section 64 of the Indian Contract Act has any application. Similarly in another decision reported in the case of (Life Insurance Corporation of India and others vrs. Asha Goel (Smt.) and another; (2001) Supreme Court Case 160 the Hon’ble Apex Court held as follows:- “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 the reasons given above and under the above settled position of law, this Court comes to conclusion that there is no merit in the writ petition, which is accordingly dismissed, however, without cost.