ORDER : Heard Mr. Prabhas Kumar, counsel appearing for the petitioner assisted by Mr. Tapas Kabiraj, Advocate. 2. Heard Mr. Sachin Kumar, counsel assisted by Ms. Sweta Kumari, Advocate appearing on behalf of the respondents. 3. This writ petition has been filed by the petitioner for the following reliefs:- quote (i) For quashing the communication issued vide reference No. HDO/Claims/Resp. dated 26.11.2002 issued under the signature of Divisional Manager, Life Insurance Corporation of India, Hazaribagh whereby he has been pleased to repudiate the death claim/DAB Claim Policy No. 542042932 in the name of Late Smt. Rampati Devi on the sum assured Rs. 1,25,000/- on the ground that incorrect statements were made regarding her health at the time of effecting the assurance and accordingly the respondents are not liable for any payment under the above policy and all money that have been paid in consequences thereof belong to them; (ii) For issuance of direction upon the respondents to immediately and forthwith pay to the petitioner a sum of Rs. 1,25,000/- along with interest, bonus and other admissible dues on account of death of policy holder namely Rampati Devi bearing policy no. 542042932 on account of the fact that the petitioner is the nominee for the said policy and after the death of the policy holder, he is entitled to receive the entire amount due to her death; (iii) For issuance of direction to show cause and lay-bare before this Hon’ble Court as to how and under what circumstances they have refused to make payment of the death claim on the frivolous ground of incorrect health statement made by the policy holder at the time of effecting the assurance; 4. The counsel for the petitioner submits as under:- a. A policy under Life Insurance Corporation of Jeevan Sanchay Yojna was issued in the name of wife of the petitioner on 28.02.2000 and premium was paid by the petitioner who was the nominee of his wife. b. After paying the first premium on 28.02.2000, the next premium was due on 28.02.2001, but it was not paid even after expiry of the grace period and accordingly the policy has lapsed and therefore the petitioner was required to make payment of the premium along with late fee which the petitioner duly paid on 07.03.2002. c. Thereafter the wife of the petitioner was expired on 20.06.2002 and the petitioner filed his claim under the insurance policy. c. Thereafter the wife of the petitioner was expired on 20.06.2002 and the petitioner filed his claim under the insurance policy. d. The claim of the petitioner was repudiated by the respondent vide the impugned order on the alleged ground that the insured had supressed the fact that she was suffering from brain tumour at the time of regularization of the policy issued by the Insurance Company. 5. Counsel for the petitioner has raised following four questions:- (a) Whether the respondent was justified in passing the impugned order dated 26.11.2002 without any opportunity of hearing to the petitioner? (b) Once the policy has been regularized, was it open to the insurance company to repudiate the same after expiry of two years from the initial date of policy i.e. 28.02.2000 on the ground of any material suppression as alleged by the respondents? (c) Whether the respondents could have repudiated the contract in spite of the fact that the Doctor of the respondents had examined the wife of the petitioner on 06th of March 2002 and had found her state of health absolutely normal? (d) Whether the respondent while repudiating the insurance policy has failed to take into consideration that although the wife of the petitioner had undergone operation of brain tumour on 26.02.2001, but was fully recovered and state of health was normal on 6th March 2002 as per the examination by the doctor of the Respondent and therefore there cannot be any allegation of suppression of material facts? 6. The petitioner in support of his argument has referred to the judgment passed by the Hon’ble Supreme Court reported in AIR 2001 SCC 549 wherein the provision of Section 45 of the Life Insurance Corporation Act has been considered and it has been held that mere inaccuracy or falsity in respect of some recitals of the proposal is not sufficient to repudiate the contract of insurance. 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 policy being avoided on the ground of misstatement of facts. 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 policy being avoided on the ground of misstatement of facts. He further submits that as per the provisions of Section 45 of the Insurance Act, there is a clear provision that no policy of life insurance shall, after expiry of two years from the date on which it was effected, can be called in question by an insurer on the ground that a statement made in the proposal for insurance or any report of a medical officer or any other document leading to the issuance 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. 7. Counsel also referred to paragraph no. 16 of the said judgment reported in AIR 2001 SCC 549 to say that the insurance company is a public sector organization and accordingly great responsibility is fixed on them and therefore the approach of the Corporation in the matter of repudiation of the policy should be one of the extreme care and caution it should not be dealt with in a mechanical and routine manner. 8. He further submits that by referring paragraph no. 13 of the said judgment reported in AIR 2001 SCC 549 that the judgment reported in A.I.R. 1962 SC 814 has been followed in this judgment wherein it has been held about three conditions to be satisfied for the application of second part of Section 45 of The Insurance Act,1938 :- (i) the statement must be on a material matter or must suppress facts which it was material to disclose; (ii) the suppression must be fraudulently made by the policy holder and (iii) 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; 9. Counsel for the petitioner has also relied upon the judgment passed in AIR 1973 Delhi 180, wherein above principal has been reiterated and he submits that the repudiation in the instant case is after expiry of two years from the initial date of policy i.e. 28.02.2000, therefore Section 45 of The Insurance Act,1938 will come into force. Counsel for the petitioner has also relied upon the judgment passed in AIR 1973 Delhi 180, wherein above principal has been reiterated and he submits that the repudiation in the instant case is after expiry of two years from the initial date of policy i.e. 28.02.2000, therefore Section 45 of The Insurance Act,1938 will come into force. He further refers to AIR 2007 Orissa 19 and AIR 2005 Rajasthan 65 to submit that the policy of insurance could not have been called in question after the expiry of two years of it being effected. 10. Counsel for the petitioner also submits that in case this court does not find favour with the petitioner, at least the premium amount of Rs. 38,000/- which has been paid by the petitioner should be refunded with interest. 11. Counsel for the respondent on the other hand submits that the policy which was issued in favour of wife of the petitioner is contained in Annexure-B to the supplementary counter affidavit and admittedly the premium which was due on 28.02.2001 was not paid even during the grace period. Accordingly the revival of the policy was to be governed by clause-3 of insurance policy which reads as follows:- “Revival of Discontinued or Lapsed Policies:- If the policy has lapsed, it may be revived during the Life of the Assured, but within a period of five years from the date of the first unpaid premium and before the Date of Maturity, on the 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 rate as may be fixed by the Corporation from time to time compounding half-yearly. The Corporation reserves the right to accept or decline the revival of discontinued Policy. The revival of a discontinued Policy shall take effect only after the same is approved by the Corporation and is specifically communicated to the Proposor/Life Assured.” 12. The Corporation reserves the right to accept or decline the revival of discontinued Policy. The revival of a discontinued Policy shall take effect only after the same is approved by the Corporation and is specifically communicated to the Proposor/Life Assured.” 12. He submits that so far as revival of the policy is concerned, there is condition precedent for revival of the policy i.e. “continued insurability” of the person insured has to be examined and for that purpose, a fresh statement of the insured regarding her statement and policy is required to be taken by the Insurance Company which consists of a list of questionnaire about the state of health and such statement is to be made in the presence of the Doctor appointed by the Insurance Company. The insured in this case was operated on 26.02.2001 which was the operation of brain tumour and her statement was taken by the Doctor on 06th of March 2002 wherein she did not disclose anything about the operation having been conducted on 26.02.2001 which was certainly after the date of original insurance i.e. 28.02.2000 and prior to the date on which the application for revival was to be considered. Counsel for the respondent further submits that had she disclosed the fact about the operation conducted on 26.02.2001, insurance company could have further got her examined by the Doctor so that the insurability of the deceased could have been ascertained by the respondents. He submits that the declaration not only amounted to material suppression but was also fraudulent and the policy was revived. At the time of revival of the policy also i.e. on 6th of March 2002, there is clear declaration by the insurance company declaring that every fact should be rightly stated at the time of revival and if any untrue averment is contained thereof, the contract shall be absolutely null and void and the money which has been paid in respect thereof stands forfeited by the Corporation. The counsel submits that there was incorrect and fraudulent declaration made by the deceased on 6th of March 002 therefore the claim has been repudiated. 13. The counsel submits that there was incorrect and fraudulent declaration made by the deceased on 6th of March 002 therefore the claim has been repudiated. 13. He further refers to the statement of claim as contained in Annexure-D to the supplementary counter affidavit wherein the petitioner has mentioned that immediate cause of death as “brain tumour” and also the medical attendance certificate issued by the Doctors of Rajendra Institute of Medical Sciences mentions the immediate cause of death as “brain tumour”. Accordingly, he submits that there is no dispute that cause of death was “brain tumour” for which the insured was operated on 26.02.2001. Accordingly, the claim of the petitioner that after operation on 26.02.2001, the medical condition of the insured was perfect is not correct and in fact the insured ought to have disclosed about the operation having been conducted on 26.02.2001 at the time of revival of the policy. Counsel for the respondents submits that there has been material and fraudulent suppression by the insured at the time of revival of the policy. He further submits that since the policy has been revived after their declaration, the date of two years cannot be counted from 28.02.2000 and it has to be counted from the date of declaration i.e. 06.03.2002. He further submits that even otherwise, the recourse of Section 45 of The Insurance Act,1938 as interpreted by the Hon’ble Supreme Court in the case reported in AIR 1962 814 has to be applied in case wherein it is found that there has been material and fraudulent suppression regarding the declaration in the matter of state of health. Counsel for the respondent also relied upon the judgment reported in AIR 2001 SC 549 paragraph nos. 11, 13 and 14 and submits that the said judgment is in favour of the respondents. 14. He submits that so far as the statement of the petitioner regarding the refund of the premium amount is concerned, the same is fit to be rejected in view of specific case of the insurance company that in case of material and fraudulent suppression, the contract should be treated as absolutely null and void and the money which has been paid will be forfeited by the Corporation. This contention is also supported by the judgment reported in AIR 1962 S.C. 814 wherein it has been held that if there is material and fraudulent suppression, there is no question of refund of the premium amount. 15. After hearing counsel for the parties and after going through the materials on record and the judgments relied upon by the parties, in the instant case, this court is not inclined to grant any relief to the petitioner and the writ petition is dismissed on the following facts and reasons:- (a) The issue whether the respondent was justified in passing the impugned order dated 26.11.2002 without any opportunity of hearing to the petitioner : Firstly, this court thinks it appropriate to deal with the issue as to whether the insurance company ought to have given an opportunity of hearing to the petitioner before repudiating the claim of the petitioner by issuing letter impugned letter dated 26.11.2002. This court is of the considered view that certainly at the time of repudiation of the contract, notice was required to be issued to the petitioner to explain as to why the claim be not repudiated. However in the instant case the matter has been heard at length on merits and accordingly this court instead of remitting the matter for fresh consideration on the point of violation of principles of natural justice considers is proper to decide the case on merits in order to set the controversy at rest, as all the relevant materials are already on record and the counsels for the parties have made elaborate arguments on each and every aspect of the matter. The first point raised by the petitioner is accordingly answered. (b) The 2nd point is, once the policy has been regularized, was it open to the insurance company to repudiate the same after expiry of two years from the initial date of policy i.e. 28.02.2000 on the ground of any material suppression as alleged by the respondents. So far as facts of the case is concerned, there is no dispute that the original insured premium was paid on 28.02.2000 and the next premium due was on 28.02.2001, and this premium was not paid even during the grace period and the policy had lapsed. So far as facts of the case is concerned, there is no dispute that the original insured premium was paid on 28.02.2000 and the next premium due was on 28.02.2001, and this premium was not paid even during the grace period and the policy had lapsed. There is also no dispute that the insured approached the corporation for revival of the policy in question required formalities was to be done in the light of clause-3 of the insurance company policy which enable the respondents insurance company to examine the continued insurability of the insured person. The revival of the policy was to be governed by clause-3 of insurance policy which reads as follows:- “Revival of Discontinued or Lapsed Policies:- If the policy has lapsed, it may be revived during the Life of the Assured, but within a period of five years from the date of the first unpaid premium and before the Date of Maturity, on the 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 rate as may be fixed by the Corporation from time to time compounding half-yearly. The Corporation reserves the right to accept or decline the revival of discontinued Policy. The revival of a discontinued Policy shall take effect only after the same is approved by the Corporation and is specifically communicated to the Proposar/Life Assured.” There is condition precedent for revival of the policy i.e. the “continued insurability” of the person insured and for that purpose, a fresh statement of the insured was taken. The insured in this case was operated on 26.02.2001 which was the operation of brain tumour and her statement was taken by the Doctor on 06th of March 2002 wherein she did not disclose anything about the operation having been conducted on 26.02.2001 which was certainly after the date of original insurance i.e. 28.02.2000 and prior to the date on which the application for revival was considered. On account of this suppression the insurability of the deceased could not be ascertained by the respondents in terms of the requirements at the time of revival of policy. On account of this suppression the insurability of the deceased could not be ascertained by the respondents in terms of the requirements at the time of revival of policy. Since fresh statement was given by the deceased at the time of revival of the policy the period of two years as per Section 45 of The Insurance Act, 1938 under the policy cannot be counted from the initial date of the policy i.e 28.02.2000. Further, the declaration given by the insured amounts to material and fraudulent suppression and accordingly the petitioner cannot take shelter of Section 45 to say that it was not open to the insured to question the declaration made by the insured after two years from the original date of insurance i.e. 28.02.2000. Moreover in the case of fraudulent suppression second part of Section 45 of The Insurance Act, 1938 comes into play. In the instant case at the time of revival of the policy also i.e. on 6th of March 2002, there is clear declaration by the insurance company declaring that every fact should be rightly stated at the time of revival and if any untrue averment is contained thereof, the contract shall be absolutely null and void and the money which has been paid in respect thereof stands forfeited by the Corporation. (c) Issue whether the respondents could have repudiated the contract in spite of the fact that the Doctor of the respondents had examined the wife of the petitioner on 06th of March 2002 and had found her state of health absolutely normal? And The issue whether the respondent while repudiating the insurance policy has failed to take into consideration that although the wife of the petitioner had undergone operation of brain tumour on 26.02.2001, but was fully recovered and state of health was normal on 6th March 2002 as per the examination by the doctor of the Respondent and therefore there cannot be any allegation of suppression of material facts? In the instant case at the time of revival of the policy the insured was required to fill the form no. 680 and statement regarding health of the person insured was duly given by the insured on 06.03.2002 in presence of the Doctor. However the insured did not disclose that after the grant of insurance policy in the year 2000, she had undergone operation of brain tumour. 680 and statement regarding health of the person insured was duly given by the insured on 06.03.2002 in presence of the Doctor. However the insured did not disclose that after the grant of insurance policy in the year 2000, she had undergone operation of brain tumour. This was one of the vital information which the insured should have disclose to the insurance company so that the insurance company could have examined insurability of the insured and ultimately even as per the claim form filled by the petitioner, the insured expired on 20.06.2002 and the immediate cause of death was “brain tumour”. Further the medical attendance certificate issued by the Doctors of Rajendra Institute of Medical Sciences mentions the immediate cause of death as “brain tumour”. Accordingly, there is no dispute that cause of death was “brain tumour” for which the insured was operated on 26.02.2001. Accordingly, the claim of the petitioner that after operation on 26.02.2001, the medical condition of the insured was perfect is not correct and in fact the insured ought to have disclosed about the operation having been conducted on 26.02.2001 at the time of revival of the policy. It has been held in judgment reported in AIR 2001 SCC 549 which has followed the judgment reported in A.I.R. 1962 SC 814 wherein it has been held about three conditions to be satisfied for the application of second part of Section 45 of The Insurance Act, 1938 :- (i) the statement must be on a material matter or must suppress facts which it was material to disclose; (ii) the suppression must be fraudulently made by the policy holder and (iii) 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; This court finds that all the aforesaid three conditions are satisfied in the instant case for the applicability of second part of Section 45 of The Insurance Act,1938, therefore the judgments cited by the petitioner does not help the petitioner in any manner. Rather the ratio of the judgments cited are against the petitioner when seen in the light of the facts and circumstances of the case. Rather the ratio of the judgments cited are against the petitioner when seen in the light of the facts and circumstances of the case. The suppression in the instant case is not only material but is also fraudulent as the cause of death of the insured is “brain tumour “ not only as per the doctor but also as per the petitioner himself and the very fact that the deceased had undergone operation of “brain tumour” was fraudulently supressed by the insured. This court finds that the insurance policy has been rightly repudiated by the respondents by the impugned order. This court does not find any illegality or perversity in the impugned order and the same does not call for any interference under Article 226 of the Constitution of India. (d) So far as claim of refund of the amount of premium is concerned, the issue is squarely covered by the judgment reported in AIR 1962 S.C. 814 wherein it has been held that in case of material and fraudulent suppression, there is no question of refund of the premium amount. The Hon’ble supreme court at para 11 of the said judgment has held as follows:- “This brings us to the last question, namely, whether the appellant is entitled to a refund of the money he had paid to the respondent company. Here again one of the terms of the policy was that all moneys that had been paid in consequence of the policy would belong to the company if the policy was vitiated by reason of a fraudulent suppression of material facts by the insured. We agree with the High Court that where the contract is bad on the ground of fraud, the party who has been guilty of fraud or a person who claims under him cannot ask for a refund of the money paid. It is a well-established principle that courts will not entertain an action for money had and received, where, in order to succeed, the plaintiff has to prove his own fraud. It is a well-established principle that courts will not entertain an action for money had and received, where, in order to succeed, the plaintiff has to prove his own fraud. We are further in agreement with the High Court that in cases in which there is a stipulation that by reason of a breach of warranty by one of the parties to the contract, the other party shall be discharged from the performance of his part of the contract, neither S. 65 nor S. 64 of the Indian Contract Act has any application.” 16. In view of the aforesaid facts and reasons, this writ petition is dismissed.