In Chamber Reserved on 17.12.2018 Delivered on 25.02.2019 Case :- SECOND APPEAL No. - 1449 of 1992 Appellant :- Smt. Kanti Devi Respondent :- L.I.C.
Counsel for Appellant :- Ravi Kant, Sudhir Dixit Counsel for Respondent :- Manish Goyal Hon'ble Raj Beer Singh,J.
1. Heard Sri Sudhir Dixit, learned counsel for the appellant and Sri Manish Goyal, learned counsel for the respondent and perused the record.
2. The present second appeal has been filed under Section 100 of the Code of Civil Procedure (hereinafter referred to as the “Code”) against the judgement and decree dated 24.03.1992 passed by the learned 5th Additional District Judge, Agra in Civil Appeal No. 71 of 1991.
3. The facts in brief of the matter are that the plaintiff-appellants have filed a civil suit, bearing number 1053 of 1988 against the defendant- respondent for recovery of insurance amount. It was averred in the plaint that the husband of plaintiff-appellant no. 1, namely, Sri Surendra Kumar Bansal has got himself insured for Rs. 50,000/- on 28.01.1979 vide insurance policy no. 26921359. Sri Surendra Kumar Bansal continued to deposit the regular premium till February, 1980 and the policy was effective up to July, 1980. Unfortunately on 10.05.1980 Sri Surendra Kumar Bansal has died. The plaintiff-appellant no. 1 was assignee in the said insurance policy, however, she along with other legal heirs of late Sri Surendra Kumar Bansal made claim for the insurance amount but the claim was rejected by the defendant-respondent vide letter dated 08.08.1981 on the ground that the insured deceased has obtained the insurance policy by concealing substantial fact regarding his health. As per the plaintiff-appellants, this allegation is false as the deceased has given all the correct details in the statement and has neither made any false fact and nor anything was concealed and the deceased was never suffering from any tuberculosis and asthma before getting the insurance policy. For the first time, the deceased has suffered light fever in October, 1979. Before accepting the insurance policy of the deceased, the defendant-respondent has got him medically examined by its competent doctor and thereafter, the insurance proposal was accepted. The defendant-respondent was accepting the premium of policy without any objection but after the death of the insured, the defendant-respondent is rejecting the claim on false and baseless allegations. On the basis of these allegations, the plaintiff-appellants have prayed for recovery of Rs. 50,000/- as insurance amount and Rs. 10,000/- as bonus along with interest.
4. The defendant-respondent contested the suit by filing the written statement, however, it was admitted that the deceased has got himself insured for Rs. 50,000/- and policy was effective up to May, 1980. It was alleged by the defendant-respondent that the deceased has made false and untrue statements while obtaining the insurance policy and deliberately concealed material facts and due to these reasons, the claim of the plaintiff-appellants was rejected. It was further alleged that the deceased has got treatment at Sri Brij Sewa Samiti, T.B. Sanatorium Vrindavan, Mathura, U.P. in April, 1980 and has remained admitted there. He was ill for the last eight years. The claim of the plaintiff-appellants for Rs. 10,000/- of bonus is false and not maintainable. The version of the plaintiff-appellants that the deceased has also got one another insurance policy of Rs. 25,000/- in November, 1975 and after decision of the learned Civil Judge, Agra, the amount of that policy was paid by the defendant- respondent while the claim of the present policy was not accepted, is barred by Order 2 Rule 2 of the 'Code'.
5. Learned trial court framed the issues and thereafter both the parties have adduced their evidence. After considering the pleadings and evidence of the parties, the suit of the plaintiff-appellants was decreed for recovery of Rs. 50,000/- along with 12% interest vide judgement and decree dated 29.03.1991 passed by 4th Additional Civil Judge, Agra.
6. Aggrieved by the above stated judgement and decree of the trial court, the defendant-respondent has filed appeal bearing civil appeal no. 71 of 1991 in the court of District Judge, Agra and the appeal was allowed and the judgement and decree of the trial court was set aside and the suit was dismissed vide impugned judgement and decree dated 24.03.1992 passed by the learned 5th Additional District Judge, Agra.
7. Being aggrieved by the judgement and decree of the appellate court, the plaintiff-appellants have preferred the present second appeal. At the time of the admission, the following three substantial questions of law were formulated :
A. Whether the finding recorded in Original Suit No. 189 of 1983 which was inter parties and wherein the Life Insurance Corporation of India repudiated the policy of Rs. 20,000/- on the same grounds and on the basis of the same documents, as in the present case, to the effect that the deceased was suffering from tuberculosis only some seven months before his death and only after the impugned policy was taken out, had the effect of res- judicata?
B. Whether the lower appellate court acted illegally in placing reliance on the documents produced on behalf of the defendant Corporation which were not at all proved and which were taken back from the file of Original Suit No. 189 of 1983 and which were not even produced by a clerk of the hospital, as has been wrongly observed by the lower appellate court?
C. Whether assuming without admitting that the aforesaid documents were at all admissible, the finding, that the deceased was suffering from tuberculosis some eight years prior to his death, is at all sustainable in law?
Substantial Question of Law No. A
8. Learned counsel for the plaintiff-appellants has argued that regarding another policy of the deceased, the Life Insurance Corporation of India (hereinafter referred to as “L.I.C.”) has repudiated the policy on the basis of the same grounds and documents and thereafter in compliance of the judgment passed in original suit no. 189 of 1983 by the court of Civil Judge, Agra, the amount of that policy was paid. The findings rendered in original suit no. 189 of 1983 have attained finality as no appeal was filed against that judgment. In view of these facts, the lower appellate court committed manifest illegality by allowing the appeal and dismissing the suit. It was argued that as the findings rendered in original suit no. 189 of 1983 have attained finality, thus, on the same documentary evidence the claim of the plaintiff-appellants cannot be rejected.
9. Learned counsel for the defendant-respondent has argued that both the matters are different and the findings or the conclusion rendered in another suit by the trial court were not binding in the present case and the first appellate court was also not bound by the same. The first appeal pertaining to present case has been decided on the basis of merits and evidence of this case.
10. The version of the plaintiff-appellants is that the deceased has obtained one more insurance policy of Rs. 25,000/- in November, 1975 and the claim under the said policy was also repudiated by the defendant- respondent and thereafter the plaintiff-appellants have filed suit no. 189 of 1983 against the defendant-respondent in the court of Civil Judge, Agra. Thereafter in pursuance of the order of Court, the insurance amount of Rs. 25,000/- of that policy was paid to the plaintiff-appellants and the claim of the present policy of Rs. 50,000/- was also decreed by the same court but it was set aside by the first appellate court. It has not been disputed that the insured was the same person in both the policies and it has also not been disputed that the findings rendered in suit no. 189 of 1983 attained finality as no appeal was filed against the judgment and decree of the trial court. However, the fact remains that the findings or conclusion given in suit no. 189 of 1983 cannot be binding in another suit despite the fact that the insured person and the insurer may are same. Every civil suit is to be decided on the basis of the specific averments, evidence and applicable law to that matter and merely because the suit of a person has been decreed by the concerned court, it does not mean that the court is legally bound to decree another suit of same nature filed by the same plaintiff- appellants particularly when the order has been reversed by the appellate court. In the present case, it may be seen that the suit of the plaintiff- appellants was decreed by the trial court and it was the first appellate court which has set aside the judgment and decree of the trial court. The first appellate court was not bound by the findings and the conclusion rendered by the trial court in another case i.e. suit no. 189 of 1983. In view of these facts, the decision of the suit no. 189 of 1983 would not constitute the effect of res-judicata.
11. As per the principles of res-judicata as enshrined in Section 11 of the Code, no court shall try any suit or issue in which the issue directly and substantially, in a former suit, between the same parties in a competent court, has been heard and finally decided by such court. One of the condition for applicability of the principle of res-judicata is that the matter must be directly and substantially same in the subsequent suit. Though as stated earlier in the present matter, the parties were the same but the matter is not directly and substantially same in the subsequent suit i.e. original suit no. 1053 of 1988 and its appeal being civil appeal no. 71 of 1991. It is clear from the averments of the parties that the suit no. 189 of 1983 was filed by the plaintiff-appellants for recovery of insurance policy of Rs. 25,000/-, which was obtained in the month of November, 1975 while the policy involved in the present case was obtained by the deceased on 28.01.1979. Here it would be pertinent to mention that the claim of the defendant-respondent is that the deceased was suffering from tuberculosis since last eight years and he was admitted in Brij Sewa Samiti, T.B.
Sanatorium Vrindavan, Mathura, U.P. in April, 1980. It is correct that in both the cases, claim of the plaintiff-appellants was repudiated by the defendant-respondent on the ground that the deceased insured has furnished false facts and has concealed material facts but nevertheless both the policies were different transactions and there was sufficient time gap between two policies obtained by the deceased. The sufficient time gap between two policies assumes importance in the matter. It is correct that after decision of the learned Civil Judge, Agra in the matter of earlier insurance policy of Rs. 25,000/-, the insurance amount was paid to the plaintiff-appellants and the suit filed regarding claim of subsequent policy of Rs. 50,000/- in the year 1989, the suit no. 153 of 1988 was also decreed by the learned Additional Civil Judge, Agra but in both the cases, the matter was not substantially same as much as both the policies were separate transactions. It is correct that there is nothing to show that the judgment and decree passed in the case no. 189 of 1983 was challenged in appeal and thus, the findings of the learned trial court have attained finality but as the matter was not substantially same in the subsequent suit no. 153 of 1988, thus those findings were not binding on the learned lower appellate court, before which the judgment and decree passed by the trial court in original suit no. 153 of 1988 was challenged. Merely because the original suit no. 153 of 1988 was also of the same nature, it would not operate as res-judicata regarding subsequent suit no. 153 of 1988. Matter of similar nature cannot be termed as substantially same matter. The principle of res-judicata rests on the principle that one should not be vexed twice for same cause and there should be finality to the litigation but it does not mean that if an issue decided by a competent court, it would be operate as res-judicata on the subsequent suit of similar nature between the same parties. In view of all these facts it could not be said that the decision of original suit no. 189 of 1983 would operate as res-judicata on the civil suit no. 153 of 1988. It would also be relevant to mention that the plaintiff-appellants have neither filed the copy of the plaint of alleged civil suit no. 189 of 1983 nor the judgement passed in that civil suit and thus, on this ground also, no conclusion can be given that the matter was directly and substantially same in both the cases.
12. In view of the above stated facts and discussions it is clear that the above stated substantial question of law has to be decided in negative and therefore, the same is decided accordingly. It is held that findings of original suit no. 189 of 1983 would not operate res-judicata regarding original suit no. 153 of 1988.
Substantial Question of Law Nos. B & C
13. As both the above stated substantial questions of law are connected with each other, thus both are being decided simultaneously.
14. The main contention of learned counsel for the plaintiff-appellants is that the documents, which were relied by the lower appellate court were not proved in accordance with law and thus, the same could not have been considered by the lower appellate court as piece of evidence. It was submitted that the learned lower appellate court has reversed the findings of the learned trial court on the basis of the documents, which were neither proved in accordance with law nor the same were having any bearing on the findings of the learned trial court. No employee of the alleged hospital was examined by the defendant-respondent. It was further argued that the documents relied by the learned lower appellate court were not admissible in evidence. It was further submitted that there was no evidence that the deceased was suffering from tuberculosis for the last eight years and thus, the findings of the learned lower appellate court are not based on evidence.
15. Learned counsel for the defendant-respondent has argued that the learned lower appellate court is the final court on the facts and the findings of the appellate court cannot be reversed in the second appeal under Section 100 of the Code by re-appreciating the evidence. It was pointed out that plaintiff-appellants have not examined any witness while the defendant-respondent has examined Shanti Swaroop Kulkesth as DW-1 and Dr. A.S. Sachan as DW-2.
16. It is well settled that the findings rendered on a question of fact by the first appellate court can not be disturbed in the second appeal by re- appreciating the evidence. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311 it was held by the Hon'ble Apex Court that “the findings reached by the first appellate court cannot be interfered with in a second appeal. There are catena of decisions, wherein it has been held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re- appreciation of evidence merely on the ground that another view was possible. In Thiagarajan v. Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762], it was held that the High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. In Commissioner, Hindu Religious Charitable Endowments v. P. Shanmugama [(2005) 9 SCC 232] it was again reiterated by the Hon'ble Apex Court that the High Court has no jurisdiction in second appeal to interfere with the finding of facts. Similar view has been expressed in the case of State of Kerala v. Mohd. Kunhi [(2005) 10 SCC 139]. In Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC 553] it was observed by the Hon'ble Supreme court that “the High Court was not justified in interfering with the concurrent findings of fact. It was stated that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. Again, in the case of Harjeet Singh v. Amrik Singh [(2005) 12 SCC 270], it was held that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In this case, the findings of the trial court and the lower appellate court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 C.P.C. The Apex court, while setting aside the judgement of the High Court, observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the courts below. It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court.
17. In view of the above stated decision of law now it is to be considered whether the findings on fact rendered by the learned lower appellate court are not based on evidence or the same are manifestly erroneous or perverse.
18. Perusal of the record shows that the appellant-plaintiff has not led any oral evidence whatsoever. On the other hand, the respondent- defendant has examined two witnesses. DW 1 Shanti Swarup Kulsherth, who was working as compounder in TB Sanatorium, has produced the record of treatment as well as the X-ray plate of the insured deceased Surender Kumar and has proved report of Medical Superintendent as 55- ga. Similarly, DW 2 Dr R.S. Sachan has stated that X-Ray 56-kha is of deceased Surender Kumar Bansal. He stated that the said patient was suffering from tuberculosis and on perusal of report 56-kha and paper No. 15/1 it emerges that the patient was suffering from tuberculosis since eight years. He further stated that at the time of the death of the patient, this illness was at quite advanced stage. However, he clarified that as the old X-Ray of the patient were not available, thus the period of illness may also be two years. The record further shows that in claimant's statement paper no. 41-A, the plaintiff herself has mentioned that the deceased died due to tuberculosis, though duration of illness was given 7 months. From this document also it is clear that the deceased was being treated at TB Sanatorium, Brindaban, where he expired on 10.05.1980. It is correct that the documents paper No. 40A and 39-A, were not proved by their authors but there appear no reasons to doubt their genuineness. No oral evidence by led by the plaintiff to controvert the evidence o DW 1 and DW 2. So far as the paper No. 41-A is concerned, it is claimant's statement and the same was not disputed by plaintiff. A document admitted by the other party is not required to be proved. In-fact this document was basis of contract of the disputed insurance policy. It is also not disputed that the proposal for insurance paper No. 37-A was signed by the deceased Surender Kumar, wherein in column 18(a), which pertains to question whether he has ever suffered or was suffering from persistent cough, asthma, bronchitis, pneumonia, pleurisy, spitting of blood, tuberculosis or any other disease of lung, the insured has answered the question as in negative. In that form the deceased has also signed a declaration that all the statements and answer are true and complete and it shall form basis of the contract of insurance. This proposal of insurance is dated 19.01.79. It could not be disputed that the deceased was admitted in hospital on 21.04.1980. The record of the hospital pertaining to the deceased was produced by DW 1 from proper custody. There are no sufficient reasons to doubt the statement of DW 1. As stated earlier on the basis of the X-ray plate report, DW 2 Dr R.S. Sachan has stated that the said patient was suffering from tuberculosis and that at the time of the death of the patient, the illness was at quite advanced stage. It is not disputed that the insured died on 10.05.1980, i.e. within the period of two years of taking the policy. The appellant has also accepted in her statement recorded under Order 10 rule 2 CPC that her husband was ill at the time of taking the policy in question. On the basis of the evidence on record, the ld Lower Appellate Court drawn conclusion that the policy holder withheld material facts relating to his health and mis-represented the fact. As stated earlier, no oral evidence was led by the plaintiff. In the case of Union of India V Ibrahim Uddin and Anr reported in 2012-4-L.W. 359, the Hon'ble Supreme Court has considered several judgments and expressed that generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. In the present case the appellant-plaintiff has failed to discharge its initial burden. The plaintiff did no lead any evidence as to when the policy holder was admitted in the hospital and since when he was under treatment or that since when he was suffering from tuberculosis. On the other hand the respondent/ defendant has led evidence by way of DW 1, who has produced record of the hospital and DW 2, who appeared as an expert witness. In view of the evidence on record, particularly that of DW 1 and DW 2, it can not be said that the first appellate court acted illegally in placing reliance on the documents produced on behalf of the respondent. Merely because the documents pertaining to the illness of the policy holder were produced by the compounder of TB Sanatorium and not by its clerk, it could not be said that the documents were not produced from proper custody. DW 1 Shanti Swarup Kulsherth, who was working as compounder in TB Sanatorium, has also stated that he has brought the letter of his Medical Superintendent, thus he was authorised to produce those documents in Court. In the absence of any oral evidence from the side of the plaintiff/ appellant, the ld lower appellate court considering the evidence of DW 1 and DW 2, was justified in drawing conclusions on the basis of these documents. The facts and material on record indicates that the insured concealed material fact that he was suffering from tuberculosis and made false information in this regard. In Satwant Kaur Sandhu Vs. New India Insurance Co. MANU/SC/1164/2009 : (2009) 8 SCC 316 , the Hon'ble Supreme Court emphasized that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. As stated earlier, the findings reached by the first appellate court cannot be interfered with, in second appeal. So far the provisions of sec 45 of the Insurance Act are concerned, it is settled position that if a policy of insurance is called in question before the expiry of two years from which it was effected, neither the first part nor the second part of sec 45 would have any application and it would be open to the insurer to repudiate the policy if any material facts contained in the form are inaccurate. Considering the facts and evidence on record it can not be said that findings of fact rendered by the lower appellate Court are not based on evidence or the same are perverse and thus this Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. In view of the above stated facts and evidence, it cannot be said that learned first appellate court committed any illegality in placing the reliance on the documents filed by the respondent/defendant. This finding that the deceased was suffering from tuberculosis at the time of obtaining the insurance policy, can also not be termed without any evidence. It is well settled that High Court in its jurisdiction under Section 100 C.P.C. can not interfere in the findings of facts.
19. In view of the above, both the substantial question of law of point B and C, are decided against the appellant/ plaintiff.
20. Considering the entire facts and the discussion made herein above, it is apparent that the impugned judgement is based on evidence and does not requires any interference. The appeal lacks merit and thus, liable to be dismissed. Accordingly, the appeal is dismissed. No order as to costs.
Order Date :- 25.02.2019 Anand