# Dr. Ruhul Amin Khan v. The Zonal Manager L.I.C. of India, Kanpur & Ors

- **Citation:** (2020) 6 ILRA 371
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-27
- **Case number:** Writ-C No. 69563 of 2009
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ruhul-amin-khan-v-the-zonal-manager-l-i-c-of-india-kanpur-ors-45836
- **Pages:** 6

## Headnote

A. Manifest error of law and facts - view
taken by Insurance Company suffers from
manifest error of law and facts - both the
impugned orders passed by the respondent
authorities - deserve to be set aside -
respondent Corporation 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. (Para-19,21)

Insured in the present case - died on account
of dengue fever only - 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.(Para-17)

HELD:- 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 - 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 that the insured was
having good health conditions at the time of
filling
up
the
proposal
form
for
the
policy.(Para-18)
372 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition allowed.(E-7)

List of cases cited:-

1.Sulbha Prakash Motegaonkar & ors. Vs L.I.C.
(2015) Law Suit SC 1706

2.Mithoolal Nayak Vs L.I.C. AIR (1962) SC 814

3.L.I.C. Vs Manish Gupta AIR (2019) SC 2606

## Text

6 All. Dr. Ruhul Amin Khan Vs. The Zonal Manager L.I.C. of India, Kanpur & Ors.
371
Rs.50,000/- paid to workman out of the
sum of Rupees One Lakh deposited by the
Employers with the Labour Court, U.P.,
NOIDA, District Gautam Budh Nagar, in
compliance with the interim order dated
09.11.2017, shall not be recovered from the
workman.
However,
the
balance
of
Rs.50,000/- lying in deposit with the
Labour Court ought to be refunded to the
Employers forthwith.

48. In the result, the writ petition
succeeds and is allowed. The impugned
award dated 02.08.2017 (published on
04.10.2017) passed by the Presiding
Officer, Labour Court, U.P., NOIDA,
Gautam Budh Nagar in Adjudication Case
no.35 of 2008 and the reference dated
08.07.1996 made by the Additional Labour
Commissioner,
Ghaziabad
are
hereby
quashed. The State Government or such
other Authority as may be competent in this
behalf shall, however, make reference
afresh appropriately framed, bearing in
mind what has been said in this judgment,
within a period of two months of the
receipt of a certified copy of this judgment.
It is further directed that out of the sum of
Rupees One Lakh deposited by the
Employers with the Labour Court, U.P.,
NOIDA, District Gautam Budh Nagar, in
compliance with the interim order dated
09.11.2017, the sum of Rs.50,000/- already
paid to the workman, shall not be recovered
from him. However, the balance sum of
Rs.50,000/- lying in deposit with the
Labour Court, shall be refunded to the
Employers forthwith.

49. There shall be no order as to costs.

----------
(2020)06ILR A371
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2020
BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ-C No. 69563 of 2009

Dr. Ruhul Amin Khan ...Petitioner
Versus
The Zonal Manager L.I.C. of India, Kanpur
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Sikandar Raza, Sri Aijaz Ahmad Khan

Counsel for the Respondents:
Sri Somil Srivastava, Sri Jagdish Lal
Srivastava

A. Manifest error of law and facts - view
taken by Insurance Company suffers from
manifest error of law and facts - both the
impugned orders passed by the respondent
authorities - deserve to be set aside -
respondent Corporation 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. (Para-19,21)

Insured in the present case - died on account
of dengue fever only - 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.(Para-17)

HELD:- 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 - 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 that the insured was
having good health conditions at the time of
filling
up
the
proposal
form
for
the
policy.(Para-18)
372 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition allowed.(E-7)

List of cases cited:-

1.Sulbha Prakash Motegaonkar & ors. Vs L.I.C.
(2015) Law Suit SC 1706

2.Mithoolal Nayak Vs L.I.C. AIR (1962) SC 814

3.L.I.C. Vs Manish Gupta AIR (2019) SC 2606

(Delivered by Hon'ble Ramesh Sinha, J. &
 Hon'ble Ajit Kumar, J.)

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 of 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 reported in 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
LawSuit (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
6 All. Dr. Ruhul Amin Khan Vs. The Zonal Manager L.I.C. of India, Kanpur & Ors.
373
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
Rs.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 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
374 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Clause 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 Sections16 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 reported in 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. Accordingly, in
our considered opinion, the decision of the
6 All. Dr. Ruhul Amin Khan Vs. The Zonal Manager L.I.C. of India, Kanpur & Ors.
375
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.
376 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
----------
(2020)06ILR A376
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-C No. 74265 of 2011

Brajpal Singh ...Petitioner
Versus
Kalyan Singh ...Respondent

Counsel for the Petitioner:
Y.S. Bohra

Counsel for the Respondents:
Sri Kapil Kumar, Sri Dinesh Pathak, Ms.
Sandhya Singh

A. Civil Law - Code of Civil Procedure
,1908 - Order 9 Rule 13 - setting aside
decree exparte against defendant - Order 43
Rule 1 (d) - First appeal from order under Rule
13 order 9 rejecting an application fom an
order to set aside a decree passed exparte -
Order5 Rule2 - copy of plaint annexed to
summons - Limitation Act, 1963 - Section 5 -
condonation of delay - Order 41 Rule 27 -
Production of additional evidence in Appellate
court - acceptability of the explanation is the
only
criteria
to
condone
the
delay
(N.
Balakrishnan Vs. M. Krishnamurthy, 1998 (89)
RD 607) - ex-parte decree should not be set
aside lightly - burden is upon the applicant to
prove that the summons or notices was never
served upon him and he got knowledge of the
ex-parte decree on a particular date(S.P.
Srivastava Vs. Prem Lata AIR 1980 All 336)-
non enclosure of copy of plaint with summons is
merely
an
irregularity
(Raghubir
Sahai
Bhatnagar Vs. Bhakt Sajjan, AIR 1978 All 139).
(Para - 30,32,36,38)
Respondent executed an agreement to sale in
favour of petitioner - sale deed to be executed
within one year - not executed - petitioner
executed suit for execution - Trial Court
proceeded ex-parte on 13.9.2005 - after 4 years
- respondent filed application - under Order 9
Rule 13 CPC for setting aside the ex-parte order
- under Section 5 of the Limitation Act, 1963 for
condonation of delay - finding of Trial Court -
cause shown not sufficient - application rejected
- Appeal under Order 43 Rule 1 (d) of CPC -
Appellate Court proceeded on the presumption -
copy of the plaint not enclosed with the
registered summons - mandatory as per order 5
Rule 2 CPC to enclose the copy of plaint with
registered summons - Appellate Court further on
the basis of affidavit filed by the respondent and
report of Amin held that the possession of the
land in dispute was delivered without beating
drums by the Ardali of the Amin - application
allowed under Section 5 of the Limitation Act,
1963 and under Order 9 Rule 13 CPC . (Para3,4,5,8,9,10,,13,14,15,)

HELD:- Appellate Court has committed manifest
illegality in allowing the appeal and setting aside
the order dated order dated 26.2.2011 passed
by the trial court rejecting the application of
respondent to set aside ex-parte judgment and
decree dated 13.9.2005.(Para - 41)

Petition allowed.(E-7)

List of cases cited:-

1.Raj Kumar Vs Jai Prakash (1987) ARC 234

2.Balwant Singh (dead) Vs Jagdish Singh & ors.
AIR (2010) SC 3043

3.Pradeep Kumar Vs Kamal Kant & ors. Writ
Petition (M/S) No. 2444 of 2019

4.Balwant Singh (dead) Vs Jagdish Singh & ors.
AIR (2010) SC 3043

5.N. Balakrishnan Vs M. Krishnamurthy (1998)
89
RD
607