JUDGMENT M. Katju and R. S. Tripathi, JJ.
1. This writ petition has been filed for a writ of mandamus directing the opposite parties to pay Rs. 1,00,000 of amount of insurance policy with upto date interest.
2. The petitioner claims to be a nominee of Policy No. 310175506 taken by one Matapher Tiwari from the Life Insurance Corporation of India, Indira Bhawan, Civil Lines, Allahabad. According to the petitioner, Shri Matapher Tiwari was his grandfather and had nominated the petitioner for payment of the above policy. Shri Matapher Tiwari died on 15.11.1995 and the petitioner informed about his death to the authorities on 10.1.1996 but when he did not receive any information from the opposite parties till 20.3.1996, he sent a reminder to the opposite parties. The petitioner claims that on 1,6.1996 he received an acknowledgment of his letter sent to the respondents and asking him to furnish certificate of death of the deceased. In compliance of this letter, he sent the required death certificate. Thereafter on 26.6.1999 the respondents demanded a copy of the Kutumb Register which was also furnished by the petitioner. Thereafter, the respondents demanded B.H.T. from the Hospital and the petitioner also sent reply to that effect, but till this date no payment has been made by the respondents. Therefore, the petitioner had no alternative but to file this petition for issuing a direction for payment of the amount of the above policy to the tune of Rs. 1 lac along with interest to the petitioner.
3. The respondents have filed counter-affidavit wherein the insurance of Matapher Tiwari by the respondents has not been denied. According to the respondents, insurance is a contract and is founded upon good faith, and if a party fails to observe this faith, the contract may be avoided. It is also pleaded by the respondents that the material facts for insurance are to be disclosed honestly, and if there is mis-statement or suppression of material facts, the policy can be repudiated. According to the respondents, on the basis of the declaration made by the insurer, the insurance contract is undertaken by the insurer and in the event of nondisclosure of material facts, the payment can be refused. The respondents have relied on the provisions of Section 43 of the Life Insurance Corporation of India, Act, 1956 which states that certain provisions of the Insurance Act, 1938 (including Section 45) apply to the L.I.C. Section 45 of the Insurance Act, 1938 States :
"45. Policy not to be called in the 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 statements 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 it suppressed facts which it was material to disclose" :
4. In view of the above provisions coupled with the pronouncements of the Apex Court, it is contended by the respondents that the remedy of the petitioner was by way of filing a civil suit since disputed question of facts are involved, which require taking of evidence, cross-examination etc. Hence, it is alleged that a writ petition is not the appropriate remedy. It is also asserted by the respondents that several letters were written to the petitioner for supplying the information regarding the age certificate of the eldest son of the insured deceased and copy of the passbook regarding payment of first premium. In this regard its letters dated 4.12.2000, 22.6.2000, 28.2.2001, remained unreplied. The case of the respondents is that the petitioner claims to be grandson of the deceased Matapher Tiwari but the difference of age between him and the deceased is not such as to accept the details furnished by the insurered deceased Matapher Tiwari, and for that purpose the certificate of age etc. were asked for, but these were not given. Another plea of the respondent is that the insured Matapher Tiwari took the policy of Rs. 1 lac at the age of 45 years on 28.9.1995 and he died on 15.11.1995, i.e., just after a month from Gastroenteritis, therefore, under the provisions of the Insurance Act, if the death occurs within a period of two years, the Corporation has a legal right to reopen the enquiry in regard to such policy and to ascertain the facts once again, and it can repudiate the policy. The respondents have denied their liability to pay any amount, A rejoinder-affidavit has also been filed by the petitioner and we have perused the same.
5. We have heard the learned counsel for the petitioner and the learned counsel for the respondents and also have gone through the material available on record.
6. The submission from the side of the petitioner is that Shri Matapher Tiwari is admitted to have taken the policy in question from respondents for Rs. one lac and when he died after payment of the amount of first premium of the above policy, the petitioner who was nominated by Matapher Tiwari, is entitled to get the amount of rupees one lac along with interest. It is argued on behalf of the petitioner that the entire documents and information asked for by the Corporation were submitted and after completion of all the formalities, it was the duty of the Corporation to finalize the payment in favour of the petitioner. Further, it is urged that no Justified ground has been advanced on behalf of the respondents for nonpayment of the amount which is payable to the petitioners.
7. The learned counsel for the respondents has argued that the petitioner failed to furnish the information regarding the age certificate of the eldest son of the deceased and also copy of the pass book regarding payment of first premium, although the letters dated 4.12.2000, 22.6.2000 and 28.2.2001 were sent to the petitioners. In this connection the petitioner in reply to para 13 of the counter-affidavit has not stated any thing clearly to challenge the above averment of the respondents, and thus, para 13 of the counter-affidavit of the respondents has to be accepted. The learned counsel for the respondent has argued that for the adjudication of factual controversy civil suit is the proper remedy and for this he relied upon the decision of the Supreme Court in Life Insurance Corporation of India and Ors. v. Smt. Kiran Sinha, AIR 1985 SC 1265, wherein it has been held by the Apex Court that the direction for payment by the High Court in a writ petition under Article 226 of the Constitution on the ground of acceptance of premium after death of the assured, is not proper as a civil suit is the only available remedy. A similar view has been expressed in Life Insurance Corporation of India and Ors. v. Smt. Asha Goel and Anr., AIR 20O1 SC 549.
8. The averments made in the counter-affidavit go to show that the deceased Matapher Tiwari died just after one and a half month of taking the insurance policy and it has come in the form of averment of the respondents that if the death occurs within a period of two years, then the Corporation has a legal right to reopen the policy and to ascertain the facts once again and to repudiate the policy. This averment has not been controverted. The information calling for the age certificate of the eldest son of the deceased and copy of the passbook regarding the payment of first premium has been asserted by the respondent in the instant case and the petitioner failed to comply with these directions given by the respondents. The matter of difference in age of insured Matapher Tiwari and age of the petitioner has also been questioned by the respondents, but there is no proper and satisfactory reply to this also,
9. In the light of above discussions, the petition is dismissed on the ground of alternative remedy of filing a suit.