JUDGMENT : Ramesh Sinha and Ajit Kumar, JJ. 1. Heard Sri Aijaz Ahmad Khan, learned Counsel for the petitioner, Sri Jagdish Lal Srivastava, learned Counsel for the respondents and perused the record. 2. By means of this petition under Article 226 of the Constitution, the petitioner has challenged the order dated 17th May, 2005, whereby the claim of the petitioner for the benefit of insurance policy with the dependent 6f the deceased has come to be repudiated on the ground that there has been deliberate statement withholding the correct material information regarding health of insured, as well as the order dated 16th December, 2005, whereby the review application of the petitioner has been rejected and the order passed by the authorities dated 17th May, 2005 has been upheld. The petitioner has also challenged the order dated 9th June, 2006, whereby an award of negative has been passed by the Insurance Company. 3. Assailing the order impugned it has been argued by the learned Counsel for the petitioner that the deceased insured had died due to dengue fever as it has come to be the medical certificate issued by the Hospital, namely, Priti Hospital, where the deceased was admitted on 20th October, 2004 and died on 25th October, 2004. The death certificate issued by the Hospital states that the death is due to cardiac respiratory arrest. However, the medical history of the insured (deceased) claims that she was suffering from Dengue fever and not for any other disease. Learned Counsel for the petitioner has relied upon the judgment of the Apex Court in the, case of Sulbha Prakash Motegaonkar and others v. Life Insurance Corporation of India 2015 Law Suit (SC) 1706. 4. Per contra, the argument advanced by the learned Counsel for the respondent- Insurance Company is that the insured (deceased) insured had the problem of palpitation at the time of pregnancy in the year 2003 which has come to be admitted and since insurance policy was issued on 28th June, 2004 after May, 2003 when the deceased was pregnant, this should have been disclosed in the application for the policy and having not done so the policy was obtained on wrong information of medical history and, therefore, as per the terms and conditions of policy the dependent were not entitled benefit under claim. He has relied upon the judgment of the Apex Court in the case of Mithoolal Nayak v. Life Insurance Corporation of India AIR 1962 SC 814 . 5. Having heard learned Counsel for the parties, their arguments advanced across the Bar and having gone through the documents brought on records, pleadings raised by the respective parties in their affidavits, we find that the controversy centres around the only issue whether the insured (deceased) had obtained the life insurance policy by concealing material facts. Under the order impugned dated 17th May, 2005 which has been confirmed in appeal, the" ground taken is that three questions that were raised to be answered by insured (deceased), were answered contrary to the facts of the health issues that the deceased person had in the past i.e., prior to his application for the policy. The three questions were as follows: 11 (ka). Whether you have suffered from any such disease in the past five years that required you to undergo treatment for more than a week and did you consult any physician? 11 (gha). Whether you have been patient of any stomach, heart, lung, kidney, liver, brain disease or any disease relating to nerve system? 11 (jha). Whether your condition is generally good? 6. While two of the above questions 11(ka) and 11(gha) were answered in negative and third one 11 (jha) was answered in affirmative. 7. These three answers, it is claimed by Insurance Company, were found to be wrong declaration in the form for policy because it had come to be proved that the petitioner was suffering from disease of pain in bones and that he had consulted different physicians for the said purpose. The deceased had admittedly died on 25th October, 2004 whereas the policy was executed by the Corporation on three different dates. One is on 28th March, 2003 bearing Policy No. - 311757148 for a sum of Rs. 5,00,000/- as sum assured whereas two policy on 28th March, 2004 and 28th May, 2004 bearing No. - 311854482 and 311854472 for a sum assured of ` 2,50,000/- each. One is on 28th March, 2003 bearing Policy No. - 311757148 for a sum of Rs. 5,00,000/- as sum assured whereas two policy on 28th March, 2004 and 28th May, 2004 bearing No. - 311854482 and 311854472 for a sum assured of ` 2,50,000/- each. The issue of concealment of fact has arisen on account of one fact, as per the order impugned, that while the deceased was admitted to the hospital for past history, some ailment was stated, then the issue was, according to the respondents, got further confirmed in a written statement on 24th May, 2006 submitted by the husband of the deceased. It was clearly stated that the wife was suffering from body ache, joint pain and wrist pain and at different points of time she had suffered different type of attack and she had consulted physician also. 8. The issue of non-disclosure of these facts became crucial only on account of fact that the insured (deceased) died within four months of the issuance of the policy. Thus, the respondent held that the contract of insurance cover is based on good faith and, therefore, the insured is under obligation to make correct disclosure about the health. What we further notice on facts that the petitioner has been denied the insurance benefit only in respect of his wife as the insured had declared categorically that in respect of two diseases she had not made disclosure and had simply filled the form in negative. 9. Insofar as the question No. 11(ka) and 11(gha) are concerned, we are of the opinion that these diseases are not related to the kind of disease mentioned in the statement of the husband of the deceased while submitting claim and it is also a fact that the deceased had died only on account of the dengue fever. One may realize the pain on a day and on the other day it may vanish. The respondents have no credential evidence to establish that there was statement of fact by the claimant that the deceased had, in fact, suffered from a particular disease of the kind referred to in question 11 (ka) and 11 (gha) and yet she had failed to disclose the same. The respondents have no credential evidence to establish that there was statement of fact by the claimant that the deceased had, in fact, suffered from a particular disease of the kind referred to in question 11 (ka) and 11 (gha) and yet she had failed to disclose the same. The life insurance cover are generally granted to cover life risk unless a person is suffering from such a disease, which if it would have been disclosed, the life cover would not have been granted, but there is no such discloser of disease with which it can be said that the insured was suffering and was fatal enough to deny the insurance cover. 10. In the case of Mithoolal Nayak (supra) relied upon by the learned Counsel for the respondents we find that in the said case there was a clear report of the physician that the insured under the proposal was anemic, looked about 55 years old (though he was only 45 years old), had a dilated heart and his right lung showed indications of an old attack of pneumonia or pleurisy. The doctor further said that the general health was very much run down and he was totally physically wreck. 11. Thus, in that case the health of deceased was such that in normal circumstances he would not have been granted a risk cover at the age of 45 years because all these diseases are referable to Clauses 11(ka) and 11(gha). 12. We further find that in that case there were two reports of the same Dr. B.D. Desai. One report was submitted through the agent, which was false report whereas the other report which was in a confidential cover and which was meant for the deceased, who was suffering from ailment and it is this second report was stated to be the correct report. So, in that backdrop of facts it was held that the petitioner suffered from disease and had a report in that regard and yet he concealed that material fact. The Apex Court, accordingly, held that the policy stood vitiated vide sections 16 and 19 of the Indian Contract Act, 1872. 13. We do not find any such case on facts in connection with the case in hand and, therefore, the said judgment is quite distinguishable. 14. The Apex Court, accordingly, held that the policy stood vitiated vide sections 16 and 19 of the Indian Contract Act, 1872. 13. We do not find any such case on facts in connection with the case in hand and, therefore, the said judgment is quite distinguishable. 14. There is yet another recent judgment in the case of Life Insurance Corporation of India v. Manish Gupta AIR 2019 SC 2606 , in which the Apex Court observed that it is a solemn duty of a person seeking health insurance policy to truthfully fill up the details required by the insurer in the proposal form or on the basis of which insurer takes a decision in regard to issuance of the policy. The Apex Court held that it is duty cast upon the insured to provide material particulars on health in case there is medical examination is not mandated and since in that case the past history of rheumatic heart disease since childhood was not disclosed, the Court found it to be an ex facie breach on the part of the insured and held that by such suppression of the material facts the insured who had obtained 'Health Plus' policy was not entitled for the benefit of the policy. In the said case the 'Health Plus' policy was for certain category of diseases to be covered under the policy and there was a specific query to be answered that the proposer had ever suffered from cardiovascular disease (palpitations, heart attack, stroke and chest pain). The proposer had such disease in the past since childhood days as it came to be discovered and was the resume of history by the Department of Cardiovascular and Thoracic Surgery of the Fortis Hospital. So, it is in that background that the Court held non-disclosure was an ex facie breach on the part of the insured in suppressing the information. 15. In the present case, there is no such certificate of the hospital or otherwise any physician that the insured suffered from such disease. It was merely on the basis of the statement of the beneficiary that the insured had been under treatment for quite some time for palpitations etc. that the respondent-Insurance Company has proceeded to consider it to be a deliberate suppression of the material facts regarding health of the insured. It was merely on the basis of the statement of the beneficiary that the insured had been under treatment for quite some time for palpitations etc. that the respondent-Insurance Company has proceeded to consider it to be a deliberate suppression of the material facts regarding health of the insured. Accordingly, in our considered opinion, the decision of the Apex Court in a peculiar facts of that case would not be attracted in the present case and, therefore, on facts the judgment is distinguishable. 16. Insofar as the judgment in the case of Sulbha Prakash Motegaonkar (supra) relied upon by the learned Counsel for the petitioner is concerned, in paragraphs 7 to 9 of the judgment it has been held as under:- "7. It is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured. In fact, the clear case is that the deceased died due to ischaemic heart disease and also because of myocardial infarction. The concealment of lumbar spondylitis with PID with sciatica persuaded the respondent not to grant the insurance claim. 8. We are of the opinion that National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent. The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with this lumbar spondylitis with PID with sciatica. In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified." 9. Accordingly, we set aside the order passed by the National Commission and allow the appeal. The respondent will accept the claim made by the appellants within a period of four weeks from today and make the due payment." 17. Further in the present case also we find that the respondents have gone only on this technical aspect of the matter that the fact that deceased was suffering from body pain was not disclosed, however, there is no disease which could be said to be fatal for the purposes of insurance cover nor, do we find that any such statement of fact has been discussed that the insured had died on account of any such disease. The insured in the present case in fact died on account of dengue fever only. There is no medical resume in the present case by the hospital where the insured had died, to arrive at a definite conclusion that insured suppressed material fact of her par ailment. 18. Under the circumstances, therefore, in the absence of any material and substantial evidence to the contrary being available in the records, the findings returned in the order, therefore, cannot be sustained and it cannot be presumed that the insured suppressed any material fact in so far as the question Nos. 11(ka) and 11(gha) are concerned. Since there is no evidence to the contrary and the Insurance Policy had been granted, it will be presumed that there was a correct disclosure regarding question No. 11(jha) that the insured was having good health conditions at the time of filling up the proposal form for the policy. 19. The view taken by the Insurance Company, in our considered opinion, suffers from manifest error of law and facts and both the impugned orders passed by the respondent authorities, therefore, deserve to be set aside. 20. The writ petition, accordingly, succeeds and is allowed. The order dated 17th May, 2005, 16th December, 2005 and 9th June, 2006 are hereby quashed. 21. The respondent-Corporation is directed to release the insurance amount in favour of the claimant if he is able to establish his claim as successor/ nominee of the policy in accordance with law, within a period of three months from the date of production of certified copy of this order.