1. ' This First Appeal is directed against the judgment dated 24th May, 1968 of learned Additional District Judge, Karachi, whereby suit for recovery of Rs, 20,000 payable on Life Insurance Policy tiled by respondents has been decreed with interest at 6% per annum from the date of the suit till realization alongwith costs.
2. ' Brief facts giving rise to this appeal are that deceased Haji Rasul Bux, father of minor respondents Mohammad Iqbal and Abdul Aziz, was insured for a sum of Rs, 20,000 with profits and accident cover against the Life Policy No, R-l0975 on 3rd February, 1964 effective from 30th December. 1963 by Messrs Mercantile Mutual Insurance Company now appellants before me. Respondents named above are nominees of the policy as beneficiaries. Haji Rasul Bux died on 17th April, 1964 in the clinic of Dr. Abdul Hamid A. Abbasi where he was operated upon but could not survive. The cause of death given by Dr. Abbasi is Intestinal Gangerene and Strangulated Hernia. Appellant-Company was informed of the death of the assured and necessary documents including medical certificate regarding death were produced and claim was made for payment under the Insurance Policy.
3. After some correspondence the said Company rejected the claim on the ground that the deceased had wilfully suppressed material facts with regard to his state of health at the time of signing the declaration and did not reveal that he was suffering from Tuberculosis and Kidney trouble. After exchange of legal notices, the respondents filed the suit, which was decreed as stated above.
4. I have heard the learned advocates for the parties at length. The contention raised on behalf of the Appellant Company is that claim of the respondents was repudiated and resisted before the trial Court on the ground of suppression of facts by the assured at the time of signing the declaration inasmuch as the assured was suffering from Pulmonary Tuberculosis and did not divulge it to the Medical Officer of the Company who examined him before the contract was entered into. It was further submitted that life insurance is a contract uberrima fides, which is based on utmost good faith. The asaired was under the legal duty to disclose material facts within his knowledge and if he conceals something, which he knows to be material, such concealment is fraud and the contract made on such misrepresentation stands vitiated, as in the instant case, hence the respondents are not entitled to any claim under the policy.
5. ' The controversial issue, which was contested by the parties before the trial Court, was whether Haji Rasul Bux, the insured suffered from Tuberculosis and whether he suppressed the said fact at the time of signing the declaration. On this issue evidence was led by both the parties.
6. ' Before I take up evaluation of the evidence, it would be pertinent to point out that it is a well- settled principle of insurance law as stated on page 83, Chapter 5 of Second Edition of the Law of Insurance by Sidney Preston and Roul P. Colinavaux that :- "where the assured conceals something, he knows to be material, such concealment is fraud. But in any case the effect of mere non-disclosure on an insurance contract is to some extent the same as the effect of fraud. The party aggrieved. When the matter comes to his knowledge, may choose either to carry on with the contract or not. It is voidable at the election of the aggrieved party, as opposed to that class of contract which is void by operation of law."
7. ' From the statement quoted above two things appear to be very distinct. Firstly that only that non- disclosure is actionable, which is material and concealment thereof is fraudulent. Secondly that burden of proof is on the aggrieved party. In the instant case the assertion is made by the Company that non-disclosure of material fact was fraudulent as such the policy is not binding. The burden to prove this assertion lies squarely on the Company.
8. ' Respondents who filed the suit through their mother produced insurance policy Exh. 7 which is not disputed and medical certificate dated 30th October, 1965 issued by Dr. Abdul Hamid Abbasi to the effect that Rasul Bux died on 17th April, 1964 after he was operated upon for Strangulated Hernia, during which it was discovered that Intestine was hangerenous. Respondents examined Umer Jan, Exh. 5 who knew deceased Haji Rasul Bux personally as a close neighbourer. This witness has deposed that deceased was hale and hearty and never complained that he was suffering from T.
9. B. The deceased suffered pain in his abdomen and was taken to Hyderabad where he was admitted in the clinic of Dr. Abbasi where he died. In his cross-examination this witness has stated that although there was no special relationship between him and deceased but he know deceased very well. It was further stated by him that he is the respectable man of the village and people of his village consult him in almost everything pertaining to their affaiRs, He further stated there was no hospital in the village. In the cross-examination no such question was put to this witness to show or suggest that he has given false evidence. Now since the assertion is made by the appellant Company that the assured did not disclose material facts with regard to his ailments at the time of signing the declaration of the insurance policy, the burden is upon them to prove that the non-disclosure of the fact that assured was suffering from T. B. Was fraudulent.
10. The appellants have examined Dr. Zia H. Khan, who has deposed that he had examined assured deceased Rasul Bux at the instance of the agent of the Insurance Company. He had put questions to the assured and recorded his answeRs, He has produced declaration of assured made to the Medical Examiner Exh. 25 which is signed by the doctor as well as the assured. This medical examination took place on 30th December, 1963. In this declaration there is a Column 'C' which shows a question regarding diseases including T. B. Against which his reply is No, This doctor has further admitted in his cross-examination that from his examination and medical findings, he found assured clinically all-right. On the basis of this reply to the question, the Appellant Company seeks to prove that this was intentional and fraudulent non-disclosure of the fact by the assured that ai that time he was suffering from T. B. The agent who was responsible to have assured insured has not been examined. Subsequently after the death of the assured inquiry was given to Mohammad Latif Mirza, Manager of the Insurance Company Hyderabad Branch. This witness has deposed that on receiving the inquiry from Head office, he went and net one son of Rasul Bux at his shop. That son produced some X-ray reports and one certificate and a chit of medicines. He has produced X-rays Exhs. 11 and 12, certificate Exh. 10 and a leaflet Exh. 15, which was also given by the son of Rasul Bux to him. He has further produced a certificate Exh. 16 issued by Dr. Ehsan Ali. In the cross-examination this witness has stated that he did not know personally the assured and did not know where he lived or what he was doing. He was not able to give the name of that son of Rasul Bux, who had given him the X-rays and other papeRs, It is further stated by him that the son of Rasul Bux from whom he obtained papers was Hindu and was the son of Rasul Bux's wife from her previous Hindu husband. When Rasul Bux married this woman she became Muslim. He could not give the names and particulars of the persons from Udero Lal who informed him about that son of Rasul Bux. He has admitted in cross-examination that it was possible that those people might not have given him correct information. X-ray plates Exhs. 11 and 12 were then taken to Dr. Abdus Salem Khan, who has been examined on hehalf of the appellants. This doctor has deposed that he had taken out the X-ray plates in respect of Rasul Bux and gave his, opinion vide his report Exh. 9 that the patient was suffering from T. B. Of lungs on 21st February, 1964. In cross-examination this doctor has admitted that he had not seen Rasul Bux before and did not record his parentage. Father's name of Rasul Bux is not on X-ray plates as such he could not say with certainty whether these X- ray pates were of Rasul Bux assured in this case. This doctor has further admitted that the X-ray plates can be changed also. Evidence of this doctor in the circumstances mentioned above does not connect X-ray plates with Rasul Bux assured in this case. Appellants have examined Dr. Mohammad Iqbal Yad, who has, deposed that he saw the X-ray of chest and was of the opinion that the patient, whose X-ray plates these were, was suffering from T. B. Of both lungs. Since X-ray plates cannot be connected with Rasul Bux assured as stated above, the evidence of this doctor is of no assistance. This doctor has also depossd further that he knew Dr. Bashir Ahmed Akhtar who was dead at the time when the deposition of this doctor was being recorded and identified the handwriting and signature of the late doctor in Exh.
18. Dr. Bashir Ahmed Akhtar was Medical Referee of the appellant-Company and by letter Exh. 18 he has recorded his opinion that assured Rasul Bux was suffering from T. B. The opinion is placed again on the same X-ray plates, which have nor been connected with Rasul Bux assured as mentioned above.
11. ' The next witness, examinel by the appellants, is Jalil Ahmed who has deposed that he is the secretary of the Insurance Company and referred the case to Dr. Bashir Ahmed Akhtar after the claim was made by the respondents. He further deposed that Dr. Bashir Ahmed Akhtar died in 1964.
12. The evidence of this witness also does not help the appellants for the reason that final opinion was given by Dr. Bashir Ahmed Akhtar on strength of X-ray plates which are not connected with Rasul Bux deceased; assured in this case.
13. It is on the basis of this evidence mentioned above it was contended on behalf of the appellants that this evidence was sufficient to prove that assured had fraudulently not disclosed the fact at the time of signing the declaration that he was suffering from T. B. I am afraid this evidence does not prove at all the assertion made by the appellants that the assured was suffering from T. B. X- ray plates cannot be connected with the assured. Burden of proof was on the appellants to conclusively prove that assured was suffering from T. B. And did not disclose so fraudulently at the time when he signed the declaration. For the reasons mentioned above. I have come to the conclusion that appraisal of evidence by the trial Court is proper in the circumstances and I find no reason to interfere with impugned judgment. In the result the appeal is dismissed with costs.