ORDER : The instant writ petition is directed against award no. 10(CHN)/L-24/2007-2008 of 16.07.2007 passed by the Insurance Ombudsman and the order dated 24.08.2007 passed by the Branch Manager, LIC, No.5, Dr.Sankaran Road, Namakkal District rejecting the claim of the petitioner and for further direction to the respondent Life Insurance Corporation of India Ltd, Salem, to restore the benefits applicable to the insurance policies of the petitioner covering major ailments as per the terms and conditions of the policy issued and for payment the medical expenses of the petitioner who had undergone treatment/operation for coronary artery heart disease. 2. It is the case of the petitioner that, despite having valid insurance policies the respondents have wrongfully deprived him from the insurance cover for the heart bypass surgery, which he underwent and that the petitioner is entitled for insurance coverage and the respondent's insurance company must bear the payment to be made for the bills which have been raised on him for the treatment. The facts in the brief are stated as under:- “(a) The petitioner had taken two policies under the “Asha Dep Policy” bearing policy numbers 700280675 in the year 1993 and 700492778 in the year 1995 respectively from Namakkal Brach, Life Insurance Corporation of India. As per the said policy, the petitioner would avail the following benefits :- 1. 50% of the sum assured immediately at the happening of the event. 2. 10% maintenance amount per annum till the date of the event. 3. Waiver of future premium of the policies. (b) That the petitioner was granted the said policies under “Asha Deep” scheme only after thorough medical examination by the panel doctors of the 4th respondent and the doctors had granted “A Class” to the petitioner and the petitioner was asked to pay basic premiums. (c) This petitioner had taken up four more policies bearing policy numbers 700493307, 700771798, 701267351 and 760930604 from various branches of the Life Insurance Corporation and that the petitioner had been paying premiums for the said policies too without any default. (d) The petitioner had to undergo a coronary heart surgery in the year 2006 and the petitioner had made applications to the Life Insurance corporation to grant him policy benefits under “Asha Deep” policies taken up by the petitioner based upon discharge summary dated 14.06.2006 issued by Vijaya Hospital, thereafter Frontier Lifeline Pvt. Ltd., Chennai. (d) The petitioner had to undergo a coronary heart surgery in the year 2006 and the petitioner had made applications to the Life Insurance corporation to grant him policy benefits under “Asha Deep” policies taken up by the petitioner based upon discharge summary dated 14.06.2006 issued by Vijaya Hospital, thereafter Frontier Lifeline Pvt. Ltd., Chennai. (e) The Life Insurance corporation had declined the request made by petitioner stating that the petitioner is not eligible for benefits under “Asha Deep” policies as the petitioner had failed to disclose that the petitioner had undergone a “disc prolapse” surgery in the year 1996 and further the petitioner had also failed to disclose that the petitioner was a diabetic and hypertensive." 3. The respondent would submit that, they repudiated the claim made by the petitioner on the ground of non-disclosure of having undergone a surgery in the year 1992 for disc prolapse. Further they would submit that, it is an acceptable principle that a contract of insurance is a contract based on utmost good faith and the petitioner herein is obliged to disclose the treatment undergone by him and the ailments from which he is suffering at the time of taking the policy. The discharge summary of the Vijaya Hospital and International Centre for Cardio Thoracic and Vascular diseases shows that the petitioner was diabetic for nearly 12 years, hypertensive for 15 years, a chronic smoker for 25 years, was in the habit of consuming alcohol daily for 20 years and had presented with complaints of giddiness for 8-10 years. These facts which were material at the time of taking the insurance cover had been suppressed and in the event of these facts having been brought to the notice of the respondents, the petitioner would not have been permitted to take aforesaid policies. The respondents would contend that they would have undoubtedly refused to insure the petitioner under the policies aforesaid if he had disclosed that he was a chronic diabetic and that he had habits which caused coronary heart disease and other major ailments. Apprehending that the respondents would refuse to insure him, the petitioner had suppressed the ailments from which he was suffering. The life insurance corporation would states that, it is not open to the petitioner to contend that the respondents herein cannot avoid their obligation under the policy on the ground of mis-statement of facts. 4. Apprehending that the respondents would refuse to insure him, the petitioner had suppressed the ailments from which he was suffering. The life insurance corporation would states that, it is not open to the petitioner to contend that the respondents herein cannot avoid their obligation under the policy on the ground of mis-statement of facts. 4. The material on records thus disclose that the petitioner underwent a bye pass surgery at the Vijaya Heart Foundation and International Centre for Cardio Thoracic & Vascular Diseases, Frontier Lifeline Pvt. Ltd. Chennai-600 101. The brief history of the treatment as mentioned in the discharge summary reads as under:- “45 year old gentlemen, diabetic since 12 years, hypertensive since 15 years, chronic smoker (20 cigs/day) for 25 years, consumes alcohol daily since 20 years, has presented with complains of giddiness since 8 to 10 years.Complaints of sweating and retrosternal burning sensation. He has undergone coronary angiogram outside on 15.03.2006, which revealed single vessel disease 100% LAD, he has been advised CABG with LIMA to LAD or PTCA to LAD. Echo done during December 2005, revealed moderate LV dysfunction (EF 40%) with global hypokinesia of LV with trivial MR.Mild PAH. Past history for disc prolapse surery during 1992. Now he is admitted here for CABG.” 5. The claim of the petitioner has been denied by the insurance company primarily on the ground that:- (a) He was diabetic for 12 years time (b) He has undergone disc prolapse surgery (c) Consumes alcohol since 20 years (d) The petitioner preferred a complaint which was referred to the insurance ombudsman under Rule 15(1) and 16 of the Redressal of Public Grievance Rules. The insurance ombudsman rejected the claim by the observation as under:- “On going through the above documents and considering the deliberations at the hearing on 19.06.2007 the points that emerge are:- (a). The life assured has nine policies issued from various branches of LIC of India. Of these, one had matured and the maturity claim was settled on 28.01.2007 (the policy that was taken on 28.01.1992) (b). The discharge summary of Vijaya Hospital had noted the life assured as “a hypertensive, diabetic with coronary artery disease...” The summary had also recorded his hospitalization for disc prolapse surgery, in 1992. (c). The operation notes of International Centre for Cardio Thoracic and Vascular Diseases had traced under “Risk Factors” the following Insulin Dependant Diabetes Mellitus, Hypertension and smoking. (d). The discharge summary of Vijaya Hospital had noted the life assured as “a hypertensive, diabetic with coronary artery disease...” The summary had also recorded his hospitalization for disc prolapse surgery, in 1992. (c). The operation notes of International Centre for Cardio Thoracic and Vascular Diseases had traced under “Risk Factors” the following Insulin Dependant Diabetes Mellitus, Hypertension and smoking. (d). The discharge summary of the above hospital had recorded under “Brief History” that the life assured was “diabetic since 12 years, hypertensive since 15 years, chronic smoker (20/cigs/day) for 25 years, consumes alcohol...” The past history of hospitalization for disc prolapse surgery in 1992 was also documented. (e). In the addendum that has to signed along with proposals for Asha Deep policies (signed in the year 1993 & 1996) the life assured had not mentioned his diabetic or hypertensive condition or his spinal surgery in 1992. (It is difficult to accept that he did not remember this surgery in 1993 or 1996) (f). Accordingly to the repudiation letter of the insurer the Asha Deep policies were made paid up and no further premiums would be received. The forum after deliberating on the relevant points finds that:- (a). The life assured is not eligible to get the Asha Deep benefit as he would not have been issued this policy in 1993 nor in 1996 had he mentioned his disc prolapse surgery, hypertension and diabetics mellitus in the proposals as Asha Deep is a health plan to be given to standard lives. (b). The life assured has paid premium for 14 & 13 years respectively. (c). The Insurer had settled the Maturity Claim under one policy that was taken in the year 1992. (d). The Insurer had relied on the discharge summary of two reputed hospitals, namely, Vijaya Heart Foundation and International Centre for Cardio Thoracic and Vascular Diseases to prove hypertension for 15 years or diabetics mellitus for 12 years. (e). The insurer had converted only these two policies (out of his 9 policies) as “paid-up”” 6. The order of the ombudsman and the decision of the insurance corporation rejecting the claim of the petitioner is under challenge in the instant writ petition. The learned counsel for the petitioner would submit that the petitioner had been subject the medical tests before the policy. The order of the ombudsman and the decision of the insurance corporation rejecting the claim of the petitioner is under challenge in the instant writ petition. The learned counsel for the petitioner would submit that the petitioner had been subject the medical tests before the policy. He stated that the discharge summary was made on the basis of the information given by the relatives of the petitioner at the time of admission of the petitioner at the hospital and that the period mentioned therein cannot be treated as accurate. According to him the initial policy was taken in the year 1992 and the discharge summary of the year 2006 and the information given to the doctors that the petitioner was a diabetic for past 12 years cannot be a decisive factor for deciding as to whether the insurance claim should be denied or not. It is also argued that the disc prolapse surgery is a very minor procedure and has no effect on the cardiac ailment suffered by him. 7. The counsel of the petitioner place reliance on section 45 of the Insurance Act 1938, reads as under:- “45. It is also argued that the disc prolapse surgery is a very minor procedure and has no effect on the cardiac ailment suffered by him. 7. The counsel of the petitioner place reliance on section 45 of the Insurance Act 1938, reads 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 the statement was false 2[or that it suppressed facts which it was material to disclose]: 2[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.]" 8. The petitioner would rely on LIC of India Vs Smt.Asha Goel (2001) 2 SCC 160 and in particular to the observations has been read as para under:- "12. Coming to the question of scope of repudiation of claim of the insured or nominee by the Corporation, the provisions of section 45 of the Insurance Act is of relevance in the matter. Coming to the question of scope of repudiation of claim of the insured or nominee by the Corporation, the provisions of section 45 of the Insurance Act is of relevance in the matter. The section provides, inter alia, that 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 the statement was false or that is suppressed facts which it was material to disclose. The proviso which deals with proof of age of the insured is not relevant for the purpose of the present proceeding. On a fair reading of the section it is clear that it is restrictive in nature. It lays down three conditions for applicability of the second part of the section namely : (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. Mere inaccuracy of falsity in respect of some recitals or items in the proposal is not sufficient. 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 misstatement of facts." The petitioner also rely on the following observation made in the judgment of the Honourable Supreme Court in the case of National Insurance Company Vs Swaran Singh & others, 2004 SCC 297 . "The proposition of law is no longer res integra that the person who alleges breach must prove the same. "The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability." (9) On the other hand, the learned counsel for the respondent submitted that the principle underlying the law of insurance is "utmost good faith". He would submit that by concealing material facts such as his diabetic history, therefore the petitioner is not entitled to his claim that he had undergone surgery resulted in breach of good faith. 10. Undoubtedly, insurance contract requires Uberrima fides "utmost good faith" from the insured. It is also settled that omission to inform material facts would amount to suppression and thus disentitle the assured the claim. 10. In the fact, the Honourable Supreme Court in the case of United India Insurance Company Vs MKJ Corporation 1996 (6) SCC 428 has observed that, it is a fundamental principle of insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) would he privately knows to draw the other into a bargain, from his manners ignorance of that facts and his believing the contrary. Just as the insured has a duty to disclose, similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since, obligation of good faith applies to them equally with the assured. The duty of good faith is of a continuing nature. After completion of the contract no material alteration can be made in its terms except by the mutual consent. 11. Material on record disclosure reveals that the petitioner had taken 9 policies. The insurance company has not stated as to whether it was specifically put to the petitioner that whether he was a diabetic or was suffering from hypertension or not. In any event the insurance company should have insisted on a blood test before granting the insurance cover. Without conducting a preliminary blood test which would have establish the petitioner is a diabetic. In any event the insurance company should have insisted on a blood test before granting the insurance cover. Without conducting a preliminary blood test which would have establish the petitioner is a diabetic. The insurance company cannot rely upon on the statements given by the relatives of the petitioner at the time of admission for concluding that the petitioner had suppressed the fact that he has a diabetic at the time of taking the insurance policy. It is well known that a diabetic person does even come to know as whether he has diabetic till he is actually diagnosed. The insurance company after 9 policies which has been taken by the petitioner without even insisting it on a blood test report cannot turn back from its liability. 12. A perusal of the counter would show that the insurance company is contending, had they came to know that the petitioner is a diabetic or he had undergone a surgery would not have given the insurance cover. They also point states the petitioner had a habit of consuming alcohol for the past 25 years. The issue is to whether all these are material facts or not and is the insurance company justified in taking this issue. As stated earlier, the insurance company did not even insist on a simple blood test report before granting the insurance cover to the petitioner. It was equally incumbent on the insurance company to insist on a blood test. 13. As stated by the Honourable Supreme Court in the case of United India Insurance Company Vs MKJ Corporation 1996 (6) SCC 428 , good faith applies to both insurer and insured. The facts here shows that the insurance company is not acting in good faith. It does not lie in the mouth of the insurance company to deny the insurance claim on the ground that the petitioner had not disclosed that he was a diabetic at the time when the policy was taken. The defense to deny the claim on the ground of ailment which alleged by the petitioner was suffering is a complete after thought. The defense has been taken only after seeing discharge summary. 14. The writ petition is allowed. The defense to deny the claim on the ground of ailment which alleged by the petitioner was suffering is a complete after thought. The defense has been taken only after seeing discharge summary. 14. The writ petition is allowed. The insurance company is directed to pay the petitioner amount under the insurance policy within 4 months with interest at the rate of 6% per annum from the date of the claim till the date of end. There shall be no order as to costs.