K.V. Kolandaswami Gounder and Others Vs The Life Insurance Corporation of India

Mohan, J.@mdashWith great respect I am unable to agree with the judgment of my learned brother, Swamikkannu, J.

2. The facts leading to the appeal have been stated by him and it is unnecessary for me to trace them once ever again.

3. The one and the only question that arises for determination in this case is, whether the first Plaintiff''s only son Muthusami died a natural death or

committed suicide.

4 The contentions of Mr. M.R. Narayanaswamy, or behalf of the Appellants, are as follows:

(i) It is not for the Appellants (Plaintiffs) to establish natural death. Unless and until the Defendant establishes suicide, the Plaintiffs are entitled to

succeed. The evidence of D.Ws. will have to be analyzed in that perspective. The inference of the evidence of D.Ws. 1, 4 and 5 is not correct.

There are very many discrepancies as to the taking of Folidal. D.W. 1 and D.W. 4 gave one version while D.W. 5 says otherwise. On the

contrary, P.W. 1 denies taking Muthuswamy in a jutka.

(ii) There is evidence in this case to show that Muthuswamy was a healthy man and was of young age, being only 28 years old, and his life was

very happy. In exhibit D-33 the Development Officer of Life Insurance Corporation of India states that the deceased Muthuswamy was producing

a good volume of business. Therefore, there was absolutely no motive for committing suicide. Therefore, looked at from that point of view, when

the claim of the Life Insurance Corporation is sought to be denied, it is the duty of the Life Insurance Corporation to establish beyond reasonable

doubt that the deceased committed suicide. The fact that the claim made by the assured is false will not relieve the L.I.C. from its liability to pay.

(iii) The evidence of D.W. 6 cannot betaken to be conclusive. Unfortunately the court below has attached undue importance to that evidence. The

said doctor does not mention about the presence of the father. There is contradiction in the written statement. Then again exhibit B-15 mentions

about the father.

(iv) The officers of the L.I.C. could not have any personal knowledge. Hence, no importance could be attached to their evidence.

5. For all these reasons, the Plaintiffs are entitled to succeed.

6. On behalf of the Respondent, Life Insurance Corporation, in meeting these arguments, the following submissions are made:

Being a case of suicide, there cannot be any direct evidence. As to what exactly is the motive can be seen from exhibit B-6. The person who made

that report was also examined as D.W. 8 and he reiterates the same. In exhibit A.13, the extract from the death register, the cause of death is

stated to be diseased in respiratory system while in exhibit B-13 it is stated that he died of heart failure. The evidence of P.W. 5, the father, has

been thoroughly inconsistent with regard to the nature of death. If it was a case of natural death why there should be such varying versions has not

been explained. It is in this context the evidence of D.Ws. will have to be approached. D.Ws. 4 and 5 corroborate each other in material

particulars. There is no enmity between P.W. 5 and D.W. 3 is also evident from the fact that exhibit B-3 surety bond was signed by D.W. 3 and

P.W. 5 Kolandaswami Gounder. Exhibit D-66 is the surety bond. That was also signed by D.W. 3 as in exhibit B-3. The evidence of D.W. 2

cannot be rejected because he is an utter stranger and he cannot be styled as an interested witness. From his evidence it can be easily found that

the deceased was brought only by him to the doctor and not by P.W. 5, Kolandaswami Gounder, the father.

7. Then again there are other circumstances. The death occurred on 24th July, 1965. The claim was made only in December, 1965. As to why this

long delay is not properly explained. In relation to the cause of death varying versions are given. In exhibit B-60 for answering the questionnaire it

is stated that the immediate cause of death was not known. The evidence of D.W. 1 is very categorical about the motive. Why should an utter

stranger like Jakria depose like this. Certainly all these evidence could not be concocted. P.W. 1 could not have done, the lumber puncture is very

clear in that he did not have the necessary equipment. With regard to the actual purchase of folidol there cannot be any direct evidence. No one

who wants to commit suicide will announce to the world and thereafter commit suicide. As correctly held by the Court below, the medical

evidence as spoken to by D.W. 6 coupled with the evidence of D.Ws. 1, 2, 3, 4 and 5, clearly establishes that Muthuswamy died only due to

consuming poison. The theory of sub-arachanoid haemorrhage as the reason was never thought of as rightly hold by the Court below till exhibit B-

54 came into existence. The dismissal of the suit is proper and no interference is called for.

8. I have already posed the question for determination. In the plaint what is stated in paragraph 5 is:

On the death of the insured the amounts due under these policies become payable to the respective nominees at Coimbatore.

9. Paragraph 6 of the plaint may be usefully quoted:

The Defendant sent the prescribed claim forms and the Plaintiffs forwarded the claims on 1st December, 1965 to the Defendant''s Divisional Office

at Coimbatore and by their letter, dated 23rd December, 1965 they wanted the original policies which the Plaintiff''s sent to them. In the meanwhile

the Defendant company started obtaining statements under police threat. The Plaintiffs therefore issued a notice of demand and suit on 22nd

December, 1965 to which the Defendant cleverly replied that the Plaintiff''s claims were under consideration and that they will not be responsible

for the costs. Again on 4th February, 1966 the Plaintiffs sent a reminder to the Defendant to which the reply dated 15th February, 1966 was that

the matter was receiving necessary attention. This was not as explicit as it could have been to the first Plaintiff''s surprise on 25th February, 1966

he was conducted to the police station at Kangayem and was subjected to interrogation and his signature also obtained to a record, the contents of

which he is yet to know. The first Plaintiff was not the only person subjected to interrogation. The enemies of the Plaintiffs have entered the field

and the Defendant is exploiting the situation to threaten the Plaintiffs out of their claims. The Plaintiffs issued the final notice of suit on 2nd March,

1966 as it was obvious the Defendant has no intention of paying but is finding ways and means to escape payment.

10. In answer to this, paragraph 5 of the written statement is relevant. That is extracted.

The vague and bare statement in paragraph IV of the plaint about the assured K.K. Muthuswami Gounder having died on 24th July, 1965 is

disingenuous. This Defendant estates that the assured Muthuswamy Gounder committed suicide; that he did not die of any natural causes or as

result of any accident; and that on the other hand his death was an act of deliberate and premeditated suicide on his part.

Again as regards motive it is stated in paragraph 6 of the written statement, thus:

The Defendant corporation have materials to the effect that for either domestic or other reasons, the assured Muthsuwami Gounder provided

himself with poison in the shape of an insecticide (evidently par mar); that on the morning of 24th July, 1965, he left his village and went to another

village (Nathakkadayur) where he evidently took the poison and was eventually found in the pial of a factory by the people of the factory in a giddy

condition; that in their presence he happened to vomit; emitting the smell of an insecticide; and that being questioned he admitted having taken

poison.

In this paragraph it is clearly stated about the deceased going to Nathakkadayur and taking poison there in the shape of an insecticide.

11. After denying the allegations and insinuations contained in paragraph 6 of the plaint it is stated in paragraph 10 of the written statement, thus.

It is also significant that none of the Plaintiffs had cared to send prompt intimation of the death of the assured (on 24th July, 1965). On the other

hand, it was the Dharapuram agent of the Defendant corporation that in the discharge of his duties intimated by his letter dated, 6th September,

1965 to the corporation the fact of the death of the assured.

In answer to this, in paragraph 2 and 3 of the reply statement it is averred as follows:

The assured Muthuswami Gounder did not commit suicide or and his death was not an act of deliberate and premeditated suicide.

III. The Plaintiffs deny that the late Muthusamy Gounder for domestic or other reasons provided himself with par mar or any other poisonous

insecticide, that he took the poison at Nathakkadayur that he vomited stuff smelling insecticide and that he admitted having taken poison. The

allegations are vague where precision and details are bound to be disclosed and set forth by the Defendants in the written statement. The reasons

are obvious and not far to seek.

12. In these state of pleadings let me analyse the evidence. V. Viswanathan, Development Officer, L.I.C. of India, Kangayam under exhibit B-42,

the original of exhibit B-32, states as under:

I came to understand that our agent Sri K.K. Muthuswamy (code No. 3669) died in his village on 24th, July 1965.

This is for your information.

As to the cause of death, the following are relevant: A-18 is the extract from the register of deaths. The registration was made 2 days after the

death, on 26th July, 1965. It was the father who was the informant. He says the disease pertaining to respiratory system. In exhibit B-13, which

was a statement made on 25th February, 1966 before the police, it is stated that the deceased Muthusamy died of heart attack. It is admitted in

the course of evidence of P.W. 5 that he gave such a statement to the police. In exhibit B-50 the state meat made on 26th November, 1965 it is

stated in answer to the quarries as follows:

Q. B. Place and date of death, duration of last illness, immediate cause of death and age at death of the life assured.

Ans. B. Place of death: Kangayam. Date of death: 24th July, 1965.

Duration of last illness: about 2 hours. Immediate cause of death: Not known. Age at death: 28.

4. Q. Had, the deceased any other assurance on his life? If so state name of issuing office, year of issuing and policy numbers.

Ans. Yes, 44222058, 44222544, 44222555, 44222781, 44222278.

1964 and 1965.

5. Q. (a) When did the deceased first complaint of being not in usual good health.

(a) Morning of 24th July, 1965.

(b) Nature of illness then complained of.

(b) Pain in Head and giddiness.

6. The names of the medical attendants during the last illness.

Dr. A.R. Srinivasan, Then Dr. R. Kalimuthu.

The same is repeated in exhibits B-51, B-52, B-53 and B-54. Then comes exhibit B-54. The following is the record made by P.W. 1 Dr.

Kalimithu in exhibit B-54:

5.(a) What was the exact cause of death:

Besides defining the disease of other cause of death in such terms as you consider appropriate, kindly add the distinctive technical name).

(a) Primary cause: Subrahamid Haemorrhage Secondary cause: Shock and Haemorrhage.

b. Was it ascertained by examination after death or inferred from symptoms and appearance daring life?

(b) Inferred from symptoms and appearance and examinations during life.

(c) How long had he been suffering from this disease before his death?

C. For about 4 hours.

(d) What were the symptoms of the illness?

(e) Coma, deep irregular breathing slow pulse pain in the head.

(e) When were they first observed by the deceased?

(e) From about 8 a.m. onwards.

(f) What was the date on which you were first consulted during the illness?

(f) 24th July, 1965.

(g) Did you attend him during the whole of its course. If so, state during what period?

(g) No. From about 11-30 to 12-00 noon.

6(a) Were his habits sober and temperate?

a. Yes as far as I know.

From the above evidence it is clear that there are varying versions as to the cause of death. Under these circumstances, in exhibit B-15 a detailed

report is made by the Branch Manager stating that he had been to Kangayam on 6th October, 1965 in connection with the investigation of the

death of Muthusamy, that he contacted several persons at Kangayam, that on enquiry he found that almost all of them were of the opinion that

Muthusamy committed suicide by taking foliodol of person. He also contacted Dr. A.R. Srinivasan (D.W. 6) and states:

I contacted Dr. A.R. Srinivasan, M.B.B.S., at Kangayam. He informed me that on 24th July, 1965 before noon, the deceased was brought in

precarious condition and on examination he was found to be having congestion of the lunge ocdema of the face and dilation pupils. He informed the

father of the deceased Sri Kolandaisami Gounder and also the partner of his cloth shop Zacharia sahib that the condition of the patient was very

bad and advised them to take him to a bigger hospital either at Erode or at Coimbatore.

13. With regard to his enquiry of P.W. 1, it is stated by him as follows:

I also enquired the other medical practitioner Dr. Kalimuthu, L.I.M. at Kangayam. He told me that he was called to give treatment to the deceased

during his last illness, but by that time, the deceased was already taken to Dr. Srinivasan for treatment. Hence he told the parties that since the

other doctor was attending, his service were not necessary.

Upon this report exhibit B-15, dated 8th October 1965, under exhibit B-84, dated 15th October, 1965 the Life Insurance Corporation of India

writes to the Circle Inspector of Police, Special Police Establishment, Coimbatore requesting him to make an enquiry into the actual cause of death

of Muthusamy. On 9th November, 1965, Inspector Ramanathan was directed to probe into the matter secretly and report, as seen from exhibit B-

5. The statement from Nagapan, the Depot Clerk in the Block Development Office at Kangayam to the effect that three tubes of Parmer were sold

to one Muthusami gounder on 23rd, July, 1965, was obtained under exhibit B-10, dated 17th December, 1965. Another statement from D.W. 3

was obtained under exhibit B-11 to the effect that Muthusamy committed suicide. Exhibit B-59 is also on identical lines. It was at this stage the

Plaintiffs issued exhibit A-11 informing the Life Insurance Corporation of India that some of the officers of the Life Insurance Corporation are

threatening very many people and are trying to obtain statements so as to deny their liability under the policy. To this, a reply under exhibit A-

3,dated 28th December, 1965 was issued by the Corporation stating that the claim was still under consideration and the decision of the

Corporation will be let known to them in due course. However, when he was referred to exhibit B-33, which is the communication sent by the

Development Officer (V. Viswanathan) who after sending exhibit B-42, dated 25th July, 1965 states as follows:

On further investigation about this death, I came to understand that he took something equivalent of Folidal and committed suicide. But there was

no police inquest or post mortem of the body. Further I came to understand that the death register was entered by the family of Mr. K.K.

Muthusami, the reason for the death as heart failure.

This is obviously wrong because I have already referred to the death register extract, exhibit A-13 which says as the disease pertaining to

respiratory system. The suspicion in relation to the death of Muthusamy and the investigation was as a result of an anonymous letter, exhibit B-46,

dated 20th September, 1965 received by the Life Insurance Corporation of India. Similarly another anonymous letter, exhibit B-2 was received by

the Corporation. The result of the enquiry done by D.W. 8, Ramanathan, can be gathered from exhibit B-6, dated 8th December, 1965. That says

as to the motive as follows:

Secret enquiries revealed that his father was in intimacy with his wife and he was practically under the thumb of his father Kolandaiswami gounder,

having been disgusted wi(sic) life, he committed suicide by taking folidol (an insecticide used in agricultural operations). But the suicide was not

reported to the police. It was made to appear that he died of heart failure, a natural death. There is no record in the police station. The body was

also cremated. The death register maintained by the V.M. shows that he died of heart failure.

14. Jakriah (D.W. 1 ) had given a statement under exhibit P-12, about his bringing the deceased from Nathakkadayur to Dr. A.R. Srinivasan at

Kangayam. Then comes, exhibit B-7 the further report of D.W. 8 stating that there was clear evidence to show that the death of Muthusamy was

only on account of suicide and he gives various reasons there under. On these materials the Superintendent of Police, Special Police Establishment,

Madras concludes that there was ample evidence to prove that this was only a case of suicide in his letter exhibit B-8, dated 29th, March 1966. I

have traced the chronology of events, which will be helpful in analyzing the oral evidence.

15. The oral evidence may now be analyzed. As to the motive for Muthusamy committing suicide though this is not a criminal trial, we have the

following evidence: D.W. 1 is Jakriah. He claims to have personal friendship with the deceased Muthusamy. He deposes that during the lifetime of

Muthusamy there were differences of opinion between Muthusamy and his father Kolandasamy gounder. Muthusamy had stated to him (Jakriah)

that he was living with a cobra. There were also quarrels between both of them. Muthusamy attempted to commit suicide. Ponnusamy gounder,

who belongs to the native place of Muthusamy, had prevented his commission of suicide. The said Ponnusamy brought Muthusamy to the shop of

Jakriah. Both of the advised him not to resort to such things. This happened two year before the death of Muthusamy. On that there has been no

serious cross examination. In cross-examination also he accepted that Muthusamy complained that the father was keeping him under terror without

giving him any freedom. He was not even free to talk to his wife. This, coupled with exhibit B-6, to which I have made a reference earlier, which is

the report of the Sub-Inspector of police, Special Police Establishment, Madras suggesting that P.W. 5 Kolandasami gounder, father of

Muthusamy, was having illicit intimacy with the wife of Muthusamy and practically Muthusamy was under the thumb of Kolandaswamy will

establish that the life of Muthusamy was far from happier.

Regarding this exhibit B-6 when the said police officer was examined he would assert that he had been so informed by a number of persons in the

village of Kuppa gounden Valasu and Kangayam also. Merely because he refused to reveal the source of information, his evidence cannot be

brushed aside. It should also be noted that Jakriah is an utter stranger. Excepting to suggest to him that he was deposing at the instance of

Govindasami (D.W. 3), which was stoutly denied, nothing material, was elicited in cross-examination. It is one thing to say that Muthusamy was

procuring a large volume of business for the Life Insurance Corporation, it is totally different thing to say that he was leading to happy life. Where

the domestic life of Muthusamy as spoken to by D.W. 1 and as revealed from exhibit B-6 and the evidence of D.W. 8, was far from happy,

certainly having regard to his previous attempt to commit suicide it has to be concluded that the deceased Muthusamy was leading an unhappy life,

besides this, exhibit B-68 shows that he was also indebted. All these factors point to the conclusion that one cannot readily assume that the life of

Muthusamy was happy.

16. Since it is argued on behalf of the Appellants that it is not the duly of the Plaintiffs to prove how he died and it is incumbent upon the Defendant

to prove suicide, I will now take up the evidence of D.Ws. to find out whether that evidence establishes suicide. D.W. 1 is Jakriah, whose

evidence I have briefly referred to earlier. He was a partner along with the first Plaintiff curing the life-time of Muthusamy and therefore nothing

could be attributed as against him. He speaks in the examination in chief as to how he got the information at about 11:15a.m. that Muthusamy was

lying in an unconscious state in the weaving factory and that he took D.W. 2 in whose taxi he reached the place and he was brought to Dr.

Srinivasan, D.W. 6 When he attempted to speak to Muthusamy he was not in a position to talk, but he made only some signs. He is categoric that

there was froth both of the mouth and the nostrils. It was from the owner of the factory he came to know that Muthusamy had consumed poison.

Then, there is the evidence of D.W. 2 who has brought the deceased Muthusamy to Dr. A.R. Srinivasan, D.W. 6. D.W. 4 is the owner of the

weaving factory at Nathakadayur When he was infirmed that on the pial a man was lying unconscious he come out along with D.W. 5 who belongs

to Kuppa goundan Valasu and when the man was asked as to why he was lying he deposed that he was feeling giddy and at that time he vomited.

When he was interrogated whether he had taken folidal, he answered in the affirmative. Then D.W. 4 came to know that the person who was lying

was Muthusamy who also belonged to the same native place as that of D.W. 5. Information was passed on through the bus about the condition of

Muthusamy. It was then D.W. 1 had come and took away Muthusamy. In cross-examination it is admitted that he did not ask the man who was

lying, as to why he was feeling giddy and that it was only by way of reply to a question. He admitted that he had taken folidal. However,

Muthusamy himself did not volunteer such an information. There was no search for the bottle of folidal.

17. Periassami himself as D.W. 5 states in chief-examination that he asked Muthusamy as to why he was lying. As he was answering he vomited

and there was smell of folidal. He asked Muthusamy as to why he had taken folidal to which Muthusamy did not reply. He informed the cleaner of

the bus to inform Jakriah. No doubt there is a discrepancy between the version of D.W. 4 and D.W. 5 as to the information furnished by

Muthusamy. While D.W. 4 would state that to a query to D.W. 5 Muthusamy admitted that he had taken folidal while D.W. 5 would depose that

Muthusamy did not answer. This is not such a material discrepancy in my considered view so as to reject the entire evidence. The incident took

place on 24th July, 1965 and it was in January 1972 this testimony was tendered. After such along lapse of time there are bound to be some

discrepancies, which only disclose the naturalness of the evidence given by innocent villagers like D.W. 5 who, with all the candor typical of a

rustic, stated that he did not know on whose behalf he had been summoned to depose. I am unable to accept that this evidence should be rejected

only on the ground that it is at the instance of D.W. 3 all these persons were deposing. I am omitting the evidence of D.W. 3 at this stage because

he comes in a later stage when Muthusamy was in the clinic of D.W. 6 A person concocting evidence is not going to bring in the theory of a bus

coming at that time and the cleaner of the bus being informed. All these, so graphically described, ring truth.

18. It is some what unfortunate that an argument was persisted as to whether it was the deceased Muthusamy who had purchased parmer or

Muthusamy gounder of Maravalalayam. I do not think that in order to avoid the liability, the Life Insurance Corporation should go to the extent of

establishing as to when the deceased Muthusamy purchased folidal or Parmer. If by and large the evidence establishes the theory of suicide there is

no justification for rejecting the same. It is in this context the evidence of D.W. 6 assumes great importance. One thing which is striking is both

P.W. 5, the father of Muthusamy and D.W. 1 are agreed that tin, deceased Muthusamy was treated by Dr A.R. Srinivasan, D.W. 6. He is positive

that it was Jakriah (D.W. 1) who brought deceased Muthusamy finding him unconscious at Nathakadayur. The condition of Muthusamy, according

to him, was serious. He was unconscious at that time. His pulse was very feeble and blood pressure was very low and he had congestion in the

lungs. After giving first aid, he advised that Muthusamy to be taken to Erode or Coimbatore.

19. There was no occasion for D.W. 6 to mention whether P.W. 5 the father of the deceased Muthusamy, also came to the clinic. Merely because

D.W. 6 does not speak to the presence of the father, that is no reason to disbelieve him. Therefore, I am unable to accept the arguments advanced

on behalf of the Appellants that because he failed to mention the same, D.W. 6''s, evidence is liable to accept the arguments advanced on behalf of

the Appellants, that because he failed to mention the same D.W. 6''s evidence is liable to be rejected.

20. D.W. 6 further deposes in his evidence that he was contacted by the authorities of the Life Insurance Corporation of India. This is borne out

by exhibit B-15, dated 8th October. 1965-wherein the Branch Manager had made a statement as follows:

I contacted Dr. A.R. Srinivasa, M.B.B.S., at Kangayam. He informed me that on the July, 1985 before noon, the deceased was brought into

precarious condition and on examination he was found to be having congestion of the lungs ocdema of the face and dilation of pupils. He informed

the father of the deceased Sri Kolandaswami gounder and also the partner of his cloth shop Zacharia Sahib that the condition of the patient was

very bad and advised them to take him to a bigger hospital either at Erode or at Coimbatore.

21. This is consistent with the testimony tendered before the Court. Why a respectable doctor like him should come forward to dipoles against the

Plaintiffs has not at all been explained.

22. As against this, we have the evidence of P.W. 5, the father, who states that on the date of death Muthusamy complained of pain on the head

and all over the body and therefore he applied eucalyptus. The pain did not decrease and got increased. He sent a letter requesting Dr. Kalimuthu

(P.W. 1) to attend. He was informed that P.W. 1 was not available. Therefore, he took the deceased Muthuswamy to D.W. 6 at Kangayam.

D.W. 6 found fault with him as to why Muthusamy not taken to the family doctor, P.W. 1 to which the reply was that P.W. 1 was not available.

23. One categoric admission by P.W. 5 at this stage requires to be noted. After examining the deceased, Dr. Srinivasan, (D.W. 6) told P.W. 5

that D.W. 6 could do nothing and that Muthusamy be taken to Coimbatore. It was thereafter he was taken to Dr. Kalimtuhu, who administered

two injections. Notwithstanding the same, Muthusamy died. This theory of applying eucalyptus oil in cross-examination is stated by Parvatham

Ammal, the daughter-in-law of P.W. 5. It is admitted that Parvatham Ammal know of all the happenings. But it was not got over by saying that

there was enemy between Parvatham Ammal and P.W. 5. As to when such an enmity arose P.W. 5 pleads forgetfulness. In this connection the

strange conduct of P.W. 5 requires to be mentioned. From the clinic of D.W. 6 Muthusamy is stated to have been taken to P.W. 12''s clinic. The

shop of P.W. 1 is on the way When D.W. 6 had informed P.W. 5 that he could do nothing for Muthusamy and that he should be taken to

Coimbatore, it is rather unnatural as to why nobody was informed about the serious condition. Then again, in examination-in-chief, P.W. 5 states

that when P.W. 1 had informed him that the blood vessel on the rear side of the head had ruptured and the condition of Muthusamy was serious

and he could not be taken to Coimbatore. Within a short while Muthusamy died there itself. However, in cross-examination he is assertive that

Mutusamy did not die in P.W''s. clinic. On the contrary, he died in his native place. This is clearly opposed to the earlier statement that it was

Muthusamy''s dead body which was taken in the cart by P.W. 5 to his house, in exhibit B-13, which was a statement given to the Special Police

Establishment, Circle Inspector, P.W. 5 states that Muthusamy died of heart failure and it was only his dead body which was taken to his native

place. Why there should be such a material discrepancy has not been explained.

24. Now let us see the evidence of P.W. 1. in exhbit B-54, to which I have made reference earlier. he gave the primary cause of death as

subarachnoid hemorrhage and secondary cause as shock and hemorrhage. As rightly held by the learned Subordinate Judge, lumber puncturing

operation is an arduous one. When P.W. 1 found that the condition of Muthusamy was sinking, it was very unlikely that such an arduous operation

could have ever been performed. The learned Subordinate Judge has taken great pains to conclude that P.W. 1 could not have dared to do lumber

puncturing on a person who was in a comate condition, in paragraphs 39 to 50 of his judgment. The appreciation of the evidence by the lower

Court is proper. The reasons given for such a conclusion are cogent and convincing and I am in entire agreement with the same. As correctly

concluded by him, as to why D.W. 13, a responsible officer should make a false statement in exhibit B-15 is not explained. I have already referred

to this statement in the earlier part of ray judgment. In cross-examination it is stated by him:

After meeting Dr. Srinivasan, I met Dr. Kalimuthu (P.W. 1). Both the doctors were family doctors of Muthusamy. I asked Dr. Kalimuthu whether

he treated Muthusamy. He said he did not treat Muthusamy. According to my enquiries. Muthusamy had no medical treatment. Dr. Kalimuthu told

me that as Dr. Srinivasan had seen Muthusamy earlier, he did not give treatment to Muthusamy.

25. This statement by D.W. 13 is also in accord with the professional etiquette.

26. Then comes the evidence of D.W. 15 Dr. Anantharaman, who is the authorised Medical Examiner for the Life Insurance Corporation. He

issued exhbit B-27 to deceased Muthusamy having been introduced by D.W. 12. Examined in the light of the evidence of D.W. 15, P.W.1''s

evidence discloses ignorance of subarachoid hemorrhage. Merely because D.W. 15 is the doctor employed by the Life Insurance Corporation,

that does not mean his evidence in relation to the nature of the disease as spoken to by P.W. 1 should not be examined from the Medical point of

view. For all these reasons, I am unable to conclude that P.W. 1 ever attended on deceased Muthusamy. The fact that deceased Muthusamy did

not have any disease is not a point on which the theory of suicide can be ruled out. Thus relying on the evidence of D.W.''s 1, 4, 5 and 6, the only

conclusion possible is that Muthusamy did commit suicide. The evidence of P.Ws. 1 and 5 will have to be rejected. P.W. 2''s evidence also does

not impress me. Likewise, the remaining evidence of P.Ws. would not throw much light to dispel the theory of suicide. The evidence of P.W. 5,

being highly interested, leave alone the contradictions, cannot be accepted.

27. Lastly for the sake of completion, I may touch upon the evidence of D.W. 8. This is not a case in which he received information that

Muthusamy had committed suicide. He states in his evidence that under exhibit B-4 he was asked to enquire into the actual cause of death. The

direction was under exhibit B-5, dated 9th November, 1965 and therefore this is not an investigation, u/s 174, Code of Criminal Procedure.

Where statements were recorded not in the course of investigation what would be the evidentiary value of the statement and whether Section 162,

Code of Criminal Procedure. Would be a bar, can well be answered with reference to the recent decision reported in Khatri and Others Vs. State

of Bihar and Others, . At page 1077 it was observed.:

Protection against the use of statement made before the police during investigation is, therefore, granted to the accused by providing that such

statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the

offence which was under investigation at the time when such statement was made. But, this protection is unnecessary in any proceeding other than

an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for

example in a civil proceeding or in a proceeding under Article 32 of 226 of the Constitution and a statement made before a police officer in the

course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act.

Again it was observed at page 1071:

It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ

petition under Article 32 provided it is relevant under the Indian Evidence Act and Section 162 cannot be urged as a bar against its production or

use. The reports submitted by Shri L.V. Singh setting forth the result of his investigation cannot, in the circumstances, be shut out from being

produced and considered in evidence u/s 162 even if they refer to any statement made before him and his associates during investigation, provided

they are otherwise relevant under some provision of the Indian Evidence Act.

28. In this connection it has to be necessarily noted that there was no police complaint whatever. The body of the deceased had been cremated on

the very day of death and it could not be expected that D.Ws. 4 and 5 to make a report to the police as D.W. 4 was least interested, D.W. 5

being a typical (sic) villager. D.W. 1 also did not do the same. It may be because of his association as a partner with P.W. 5 at that time. Therefore

it is impossible to contend that without a post mortem or examination of viscera, the theory of suicide cannot be established. If the cumulative effect

of evidence is that Muthusamy had committed suicide as spoken to by persons who are not in any way interested. There is no reason why the

court should not accept the same. As a matter of fact, D.W. 3''s evidence also points to the conclusion. However, it is stated that he and the first

plainiff are on inimical terms and he was the architect of this theory. The fact that D.W. 3 has signed the surety bonds, exhibits B-3 and B-66 will

prove that there was no enmity. Even eschewing the evidence of D.W. 3, there is a abundant, evidence in this case to upheld the finding of the

lower Court. In the light of the above discussion the following conclusions may be deduced:

(1) As to the cause of death, there are different versions. Exhibits B-50, B-51 and B-52 say that the cause of death is not known, exhibits B-13,

B-60 say that the cause of death is heart attack and exhibit A-13 the extract from the register of deaths, says the disease pertaining to respiratory

system.

(2) The evidence of D.Ws. 1, 4 and 5, coupled with the statement contained in paragraphs 5 and 6 of the written statement, proves that the

deceased Muthusamy had consumed poison at Nathakkadayur.

(3) The evidence of D.W. 6 is true and trust worthy.

(4) P.W. 5''s evidence is highly interested, and full of Material discrepancies and is therefore to be rejected. P.W. 1 could not have treated

Muthuswamy.

(5) There is evidence in the shape of D.W. 8 and the confidential report submitted by him under exhibit B-6 supporting the evidence of other

defense witnesses pointing to suicide.

A contract of insurance is contract uberrima fides and there must be utmost good faith on the part of the assured. It is because of this, law imposes

a duty and obligation on the assured to make a full disclosure of all material facts, which would affect the mind of the insurer. A false answer or

non-disclosure or concealment of a material fact will avoid the policy, even-though there is no fraud and the concealment is innocent, (vide Rohini

Nandan Goswami Vs. Ocean Accident and Guarantee Corporation Ltd., .

29. Under the policies forming part of the subject. matter of the suit; viz., exhibits B-22, 25, 28, 29 and 30 there is a specific condition that in the

event of the assured committing suicide the policies become void and the amount mentioned there under ceased to be claimable. This is an essential

part and parcel of the contract under the above policies. In view of the above, the liability of the Defendant can be validly avoided. I am also in

agreement with the finding of the lower Court that the Plaintiffs are not beneficiaries and hence the payment of the bare amount of beneficial interest

also does not arise. It is an established rule under the law of Insurance that a man cannot take advantage of his own wrong, where the assured is

deprived from recovering the policy money by his own wrong, then any person claiming through him or under any derivative title is equally barred.

The reason behind the rule is (1) that a man is not to be allowed to have recourse to a court of justice to claim a benefit from his crime, whether

under a contract or gift, as laid down in Beresford v. Royal Insurance or (2) that no person can obtain or enforce any rights resulting from his own

crime Fry Lord Justice in Cleaner v. Mutual Reserve Fund Life (1892) I.Q.B. 147 observed:

No system of jurisprudence can with reason include among the rights which it enforces rights directly resulting to the person asserting them from the

crime of such person.

However, the observation of Lord Campbell C.J., in Moore v. Woolsey (1854) 4 E.L. and B1 243 may also been seen:

Where we are called upon to nullify a contract on the grounds of public policy we must take care that we do not lay down a rule which may

interfere with the innocent and useful transactions of mankind. That the condition (in favor of a bona fide assignee for valuable consideration) may

promote evil, by leading to suicide is a very remote and improbable contingency, and it may frequently be very beneficial by rendering a life policy

a safe security in the hands of the assignee.

30. Mac Gillivray criticises this decision at page 263 of Insurance Law, fifth edition, volume I as follows:

If that case be accepted as an authority, there is nothing illegal in the insurers agreeing with the assured that if he assigns the policy bonafide for

valuable consideration and thereafter causes his own death by a criminal act, they will pay the policy money to his assignee; and if that be so, public

policy does not demand that a loss caused by the illegal act of an assured should be an absolute exception from the risk, at any rate in the case of

life policies and other policies which are not contracts of identity.

31. For all these reasons, I hold that the dismissal of the suit as done by the learned Subordinate Judge of Coimbatore is correct. The appeal is,

therefore, dismissed. However, I make no order as to costs, in the peculiar circumstances of the case.

32. Swamikkannu J.- This is an appeal against the judgment and decree, dated 12th April, 1973 in Original Suit No. 236 of 1966 on the file of the

Court of the learned First Additional Subordinate Judge, Coimbatore, dismissing the suit for a claim that the Defendant/Life Insurance Corporation

of India has to pay the first Plaintiff K.V. Kolandaswami gounder a sum of Rs. 25,950 also to pay the first Plaintiff a sum of Rs. 10,380 as

nominee guardian of minor Plaintiffs 2 and 3, K.K. Janaki and K.K. Vijaya and also for a claim that the Defendant should pay the fourth Plaintiff

K.K. Easwaramurthy gounder a sum of Rs. 10,380.

33. The case of the Plaintiff as stated in the plaint is as follows: The 1st Plaintiff''s only son was K.K. Muthusamy and he was, an authorised agent

of the Life Insurance Corporation of India the Defendant in the suit. The Plaintiffs 2 and 3 are the minor daughters of the first Plaintiff. The fourth

Plaintiff is the nephew of the first Plaintiff.

34. The deceased Muthusamy insured his life with the Defendant under five policies, policy No. 44222524, the proposal date being 18th

December, 1964 for Rs. 10,000, commencing on 28th December, 1964, Policy No. 44222781 the proposal date being 25th February, 1965 for

Rs. 10,000 commencing from 26th March, 1965, Policy No. 44222058 the proposal date being 23rd March, 1965 for Rs. 10,000 commencing

from 28th March, 1965, Policy No. 44222255, the proposal date being 23rd March, 1965 for Rs. 5,000 commencing from 28th March, 1965

and policy No. 44222923, the proposal date being 23rd March, 1965 for Rs. 10,000 commencing from 28th March, 1965. In respect of the

policy Nos. 44222058, 44222255 and 44222923, the first Plaintiff is the nominee of the insured. For policy No. 44222524, the Plaintiffs 2 and 3

are the nominees and the first Plaintiff is authorised to receive the money during the minority of the minor nominees. For policy No. 44222781, the

fourth Plaintiff is the nominee. On the death of the insured, the amount due under these polices became payable to the respective nominees at

Coimbatore.

35. The Defendant sent the prescribed claim forms and the Plaintiffs forwarded the claims on 1st December 1965, to the Defendant''s Divisional

Office at Coimbatore and by their letter, dated 23rd December, 1965, the Defendant wanted the original policies and the Plaintiffs sent the same to

them. In the meanwhile, the Defendant corporation started obtaining the statements under police threat. The Plaintiffs therefore, issued a notice of

demand and suit on 29th December, 1965 to which the Defendant sent a reply that the Plaintiff''s claims were under consideration and they would

not be responsible for the costs to any premature action. Again on 4th February 1966, the Plaintiffs sent a reminder to the Defendant to which the

Defendant sent a reply on 15th February, 1966 stating that the matter was receiving necessary attention. On 25th February, 1966, the first Plaintiff

was enquired by the police at the Kangayam Police station. He also states that others were also interrogated. So they issued a final notice of suit

on 2nd March, 1966 as by that time, it become obvious, the Defendant had no intention of paying the dues to them. So each set of the Plaintiffs,

for the amounts due to them under the said policies, are entitled to the policy amounts due to them, with interest at 6 per cent per annum for the

date of the death of the insured till payment. On the other hand, the case of the Defendant Life Insurance Corporation of India, the Respondent

herein, as contended in the written statement is that apart form the five policies mentioned in the plaint, the deceased Muthusamy had also taken

another Policy No. 4422278 for Rs. 5,000 commencing on 10th November 1964 and the nominee is his wife. The last mentioned policy had

lapsed. The said Muthusamy Gounder did not die a natural death. He committed suicide. His death was an act of deliberate and premeditated

suicide on his part. Under the policies referred to in the plaint, it is a specific condition that in the event of the assured committing suicide, the

policies became void and the amount there under ceased to be claimable. In such cases, it is laid down that the Bare amounts of beneficial interest

will alone be claimable and that too only by persons who are beneficiaries coming under the category of persons specifically provided under the

clause. The Plaintiffs do not come under the above mentioned category specified in the relevant condition of the policy. So, the claims put forth by

the Plaintiffs are untenable and they are not entitled co the policy amounts.

36. It is further contended in the written statement filed on behalf of the Defendant that the death of Muthusamy was due to suicide and the officers

of the Corporation made investigation into the matter. Intimation of the assured''s death was given by the claimants by their letter, dated 29th

September, 1965. Whereas the death of Muthusamy occurred on 24th July, 1965. Even in that intimation of the assured s death, there was no

mention of the cause of the death. So due to the circumstances at the first instance, the Defendant/Corporation, is sending the claim forms to the

Plaintiffs, took care to do so without prejudice. The Corporation had the task of finding out whether the death of Muthusamy was due to suicide. It

was under these circumstances the matter was referred by them to the District Collector of Coimbatore to be investigated by the Special Police

Branch Establishment of the Government of India. It is in that connection the police had made enquiries besides the officers of the

Defendant/corporation. So it is incorrect to attribute to the Defendant that it has no intention of paying the alleged claims due to the Plaintiffs and

was finding ways and means to escape payment. It has been established that after due enquires that the deceased Muthusamy died because he

committed suicide and so the Plaintiffs have no valid cause of action against the Defendant.

37. It was further contended in the written statement filed on behalf of the Defendant corporation that the suit is bad for mis-joinder of the

Plaintiffs'' claims and causes of action. The first Plaintiff is in no way interested in the policies in which he has not been nominated. Similarly the

Plaintiffs 2 and 3 are not interested in any way in the policies in which they have not been nominated. So also, the fourth Plaintiff is not interested in

any of the policies except the one in which he has been nominated. So the suit is bad for multifarious ness. Without prejudice to their contentions, if

at all, if any amount is found payable under each of the policies is shown by them in paragraph 18 of the written statement and these amounts alone

are payable but tat same are not payable to the Plaintiffs. So, the suit should be dismissed with its costs.

38. In the reply statement, the Plaintiffs have denied that the said Muthusamy Gounder died after committing suicide and had affirmed he died a

natural death. They also contend that the Field Officer of the Defendant corporation at Kangayant and the Defendants agent at Dharapuram knew

of the natural death of deceased Muthusamy and so, they reiterated they are entitled to the amount claimed by them under the policies mentioned in

the plaint as nominees. They further contend that the investigation had been most unfair and they are unlawful and illegal. They also contended that

the plea of multifarious ness is baseless and untenable and the Defendant''s contention that the Plaintiffs are not entitled to claim the amount

mentioned in the written statement is not tenable.

39. On the above pleadings, the following issues were framed by the, trial Court:

1. Whether the assured Muthusamy Gouder''s death was an act of suicide?

2. Whether the Plaintiffs are not entitled to the amounts due under the policies from the Defendant?

3. Whether the suit is bad for mis-joinder of parties, claims of causes of action?

4. To what relief''s, if any, are the Plaintiffs entitled?

40. On behalf of the Plaintiffs P.W. 1-Dr. Kalimuthu, P.W. 2 -Sivamalai Gounder, P.W. 3-A.P. Kumarasami, P.W. 4-Appakutti Gounder, P.W.

6-Muthusamy, P.W. 7-Doraisamy and P.W. 8-L.K. Bangarappan were examined. The Plaintiff Kolandasami Gounder examined himself as P.W.

5 On behalf of the Plaintiffs, exhibits A-1 to A-15 were filed before the trial Court. On the other hand on behalf of the Defendant/Life Insurance

Corporation of India, D.W. 1-Jakriah, D.W. 2- Ranganathan, D.W. 3-Govindasamy, D.W. 4-Nachimuthu Gounder, D.W. 5-Periasami, D.W.

6.-A.R. Srinivasan, D.W. 7-Semalaiappan D.W. 8-S. Ramanathan, D.W. 9-T. Nagappan, D.W. 10-B. Madhava Raghavan, D.W. 11-

Seetharaman, D.W. 12-Vistwanathan, D.W. 13-K. Subramaniam, D.W. 14-Sampath Kumar and D.W. 15-Dr. Anantharaman were examined.

Exibits B-1 to B-68 were flied Under issue No. 1. the trial Court held that the deceased Muthusamy''s death is an act of suicide. The trial Court

has observed that taking all the evidence and circumstances in the case and giving due weight to every one of the materials presented in this case,

the prepondence of the evidence is on the side of the Defendant to accept its case that it is only due to taking poison that the deceased Muthusamy

died. Under issue No. 2, the trial Court held that the Plaintiffs are not entitled to the amount due under the policies from the Defendant. Under issue

No. 3, that trial Court held that there is misjoinder of parties but the cause of action is the same for all the Plaintiffs on the death of Muthusamy, the

assure and therefore, though the suit is bad for mis-joinder of parties, it is not bad because the causes of action is the some for all of them. Under

issue No. 4, the trial court held that the Plaintiffs are not entitled to any claim, against the Defendant. In the result, the suit was dismissed with costs.

41. Aggrieved by the above decision of the trial Court, the Plaintiffs have come forward with the present appeal before this Court, inter alia

contending that the lower court had not properly appreciated the evidence available on record and its conclusion that the deceased died due to

successful commission of suicide is wrong since there is no material to show that it was due to poison that the deceased died and what is more the

preponderance of evidence available on record is more in favor of the claims preferred by the Plaintiffs/Appellants herein and not in favor of the

Defendants as held by the trial Court. Mr. M.R. Narayanaswamy, the learned Counsel for the Plaintiffs Appellants interalia contends that the trial

Court ought to have held that the Defendant-corporation has not established by satisfactory evidence that the deceased Muthusamy committed

suicide and therefore the Plaintiffs are not entitled to the suit claim. In other words, the learned Counsel for the Appellants, Mr. M.R.

Narayanaswamy, contends that the evidence on the Defendants/side is unnatural, improbable and incredible on the face of it. According to him, the

onus of proof heavily lies on the Defendant-Respondent herein to show that Muthusamy Gounder committed suicide successfully, and it had

miserably failed to prove the same. It is also contended by Mr. M.R. Narayanaswamy, the learned Counsel for the Appellants that the learned

judge overlooked that having regard to the set up and status of the family, there is really no motive for Muthusamy to commit suicide and the

clinching probability is that his death was due to natural causes. It is also argued on behalf of the Appellants by Mr. M.R. Narayanaswamy that the

judgment of the learned trial Judge bristles with misstatements misappropriation of evidence and further vitiated inasmuch as the learned Judge has

relied upon certain circumstances which do not satisfy the requirements of law.

42. The point of consideration in this appeal, is, whether the Defendant-Life Insurance Corporation of India, is absolved from its liability under the

contracts of insurance entered into with the deceased Muthusamy on the ground that there had been successful commission of suicide on his part

within a short time after he had insured his life under five policies.

43. The first Plaintiff K.V. Kolandaswami Gounder examined as P.W. 5 is the resident of Kuppa goudervalesu, hamlet of Alambadi village situate

about three miles to the north-west of Kangayamttu the Dharapuram taluk, Coimbatore District. Alambadi village panchayat is the part of

Kangayam panchayati under. P.W. 5-Kolandaswami Gounder is a landlord. In 1965, he was conducting a business in cloth with D.W. 1-Jakariah

as a partner under the name and style of Fancy Hall in Kangayam. P.W. 5-Kolandaswami Gounder had a son by name Muthusamy the deceased

herein, by his senior wife. In 1964, the deceased Muthusamy was about 28 years old. He was married and his wife is Parvatham. The deceased

Muthusamy was an agent of the Life Insurance Corporation is that area of Kangayam. D.W. 12-Visvanathan was the Development Officer of the

Life Insurance Corporation at Kangayam between February 1965 and July 1970. When the deceased Muthusamy had taken a policy for Rs.

5,000, under policy No. 44222278 and exhibit B-17 is the policy issued to him in that connection. The date of the policy commenced from 10th

November 1964 and in that policy he had shown his wife as the nominee. He has not paid the premium amount with respect to this policy and

hence it had lapsed.

44. On 28th December, 1964, the deceased Muthusamy had again insured his life for Rs. 10,000 under policy No. 44222524 and exhibit B-22,

dated 21st January, 1965 was also issued to him in that regard. In this policy, he had shown his two steps-sisters, Janaki and Vijaya, as the

nominees who are the minor Plaintiffs 2 and 3 in the suit. On 26th March, 1965, the deceased Muthusamy had again insured his life for Rs. 10,000

under policy No. 44222781 and exhibit B-25 dated 9th April, 1965 is the policy issued to him in that regard. Under that policy, his brother-in-law

Easwaramurthy Gounder, the fourth Plaintiff is the nominee. Again on 26th March 1965, the deceased Muthusamy had taken three policies, (1)

under policy No. 44222923 for Rs. 10,000, (2) under policy No. 44222255 for Rs. 5,000 and (3) under policy No. 44222058 for Rs. 10,000.

Exhibit B-28 to A-30 all dated 28th May, 1965 are respectively the three policies issued for the above three proposals to the said Muthusamy.

Under these three policies, the nominee is his father Kolandaswami Gounder, P.W. 5 in this suit. It is common ground Chat on 24th July, 1965, the

said Muthusamy died and as the time of his death, the last mentioned five policies were in fores. So, the Plaintiffs as nominees in the above five

claims sent the claims exhibits B-49 to B-53 claiming the amounts due under the above mentioned five policies.

45. On 24th November, 1965, the Branch Office of the Life Insurance Corporation at Erode received the petition exhibit B-2 containing the

names of seven persons as residents of Kuppa-goundanvalasu, wherein it is alleged that the deceased Muttusamy did not die a natural death and

that he committed suicide. It is relevant in this connection to note that there are clauses in the policies, exhibits B-22, B-25 and B-28 to B-30 that

if the insurer commits suicide before the expiry of one year from the date of the policy the liability of the Corporation shall be limited to the extent

of the beneficial interest proved to the satisfaction of the Corporation and in other respects the policies become void and all claims, any benefit,

advantage or interest, in the funds of the Corporation would cease and determine. On 24th July, 1965, D.W. 12-Viswanathan, the Development

Officer had intimated by writing the letter exhibit B-42 dated 25th July, 1965 to the Branch Manager, Life Insurance Corporation, Erode. This is

the original of exhibit B-32. Even before exhibit B-2 had been received at the Erode Branch of the Life Insurance Corporation, the Life Insurance

Corporation at Madras had received exhibit B-46, dated 20th September, 1965, an anonymous communication not signed by anybody in which it

is stated inter alia that the deceased Muthusamy had committed suicide. Exhibit B-46 was sent to the Divisional Officer of the Life Insurance

Corporation at Coimbatore and the said office had under exhibit B-40, dated 29th September, 1965, directed D.W. 13-Subramaniam, Branch

Manager of the Life Insurance Corporation at Erode to find out the cause of the death of the deceased Muthusamy D.W. 13 accordingly had gone

to Kuppagoundauvalasu, Kangayam and other places and enquired into the matter. After D.W. 13 started investigation into the matter, the

Divisional Office of the Life Insurance Corporation at Coimbatore had written exhibit, B-4 letter dated 15th October, 1965 to the Inspector of

Police, Special Poleis Establishment at Coimbatore regarding the death claim on the life insurance policies held by the deceased Muthusamy. On

that application under exhibit B-5, D.W. 8-Ramanathan, attached to the Central Bureau of Investigation at Madras had been directed by his

superior officers, in the Department to investigate into the matter and accordingly D.Ws. 8 and 13 examined witnesses with respect to the death of

the deceased Muthusamy and came to the conclusion that the deceased Muthusamy committed suicide by taking poison. It is on the report of their

investigation the Defendant. Life Insurance Corporation of India by virtue of the classes regarding suicide in the abovementioned policies, is

denying the right of the Plaintiffs to claim the sum under the said policies exhibits B-22, B-25 and B-28 to B-30.

46. Even at the outset, it has to be mentioned that there is ho direct evidence available on record to hold that the deceased died only due to the

successful commission of the offence of suicide on his person by taking poison. The body could not be subjected to post mortem as it had been

disposed of after death. There is no proof to show that there had been any haste or any kind of hastening of the matter relating to the disposal of

the deceased. It is only after keeping the dead body for sometime and after, a reasonable time had elapsed, it is seen that the body had been

cremated. If really the act of successful commission of suicide was there in the instant case, certainly the same could have been informed to the

nearest police station, within the time the body of the deceased Muthusamy had been cremated. Such an attempt seems to have not been

completely resorted to by the persons who are comprehensively coming and deposing about the circumstances under which, according to them the

suicide had been committed. Therefore it has become necessary for thus court to scrutinise the entire evidence relating to this aspect of the matter.

47. D.W. 7 Semalaiappan deposes that the deceased Muthusamy was not treated by P.W. 5, his father properly and the deceased was also not

allowed to do any separate business by P.W. 5. According to D.W. 7, the deceased also owed debts to him and others. The evidence of D.W.7-

Semalaiappan is not at all convincing because he categorically admits in his cross-examination that with respect to the alleged hand loan he had

given to the deceased, there is nothing in writing by way of entries in any document. Even with respect to the alleged repayment of Rs. 300 and Rs.

200 by P.W. 5, D.W. 7 admits that there is no entry. D.W. 7 could also specifically state the month or the year in which he hid given the money on

loan to the deceased. He would say that when he was talking with P.W. 5 regarding the alleged money transaction with him by the deceased

according to him, there was no one present. It is suggested to him only at the instance of Jakariah-D.W. 1 and Govindaswami D.W. 3, he had

been falsely deposing against the claimants in this case. A perusal of the evidence emanating from D.W. 7 thus shows that it cannot be relied upon

to come to the conclusion that the deceased was not enjoying affluent circumstances at the time of his death.

48. D.W. 8-Ramanathan who was Deputy Superintendent of Police at Chingleput at the time of his evidence and who was attached to the Central

Bureau of Investigation at Madras during the relevant time, had been directed by his superior officers in the Department and had investigated

regarding the matter of the death of Muthusamy. D.Ws. 8 and 13 after examining witnesses, came to the conclusion that the deceased Muthusamy

committed suicide by taking poison. It is on the report of their investigation to the Defendant/Life Insurance Corporation of India by virtue of the

clauses regarding suicide in the policies, is denying the right of the Appellant''s claim to claim the same under the said policies, exhibits B-22, B-25

and B-28 to B-30. Now it is for this Court to scrutinize the evidence emanating from these witness, D.Ws. 8 and 13, in the light of the other

evidence available on record, both oral and documentary.

49. Section 174 of the Code of Criminal Procedure (Act II of 1974) as amended up to April, 1980, provides as follows retarding the enquiry by

the police and report on suicide:

(1) When the Officer in charge of a police station or some other officer specifically empowered by the State Government in that behalf receives

information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died

under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to

the nearest Executive Magistrate empowered to hold inquests, and unless otherwise directed by any rule prescribed by the State Government or

by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is,

and there, in the presence of two or more respectable inhabitants of the neighborhood, shall make an investigation, and draw up a report of the

apparent cause of, death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and slating in what

manner, or by what weapon or instrument (if any) such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur the rein and shall be forthwith forwarded

to the District Magistrate the Sub-divisional Magistrate.

(3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall,

subject to such rules as the State Government may prescribe in this behalf, forward the body with a view to its being examined to the nearest Civil

Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its

being so forwarded without risk of such purification. on the road as would reader such examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other

Executive Magistrate specifically empowered in this behalf by the State Government of the District Magistrate.

50. In the instant case, exhibit B-58, dated 6th May, 1966 is the confidential report by the Superintendent of Police, Special Police Establishment,

Central Bureau of Investigation, Madras to the Zonal Manager, Life Insurance Corporation, Madras. Exhibit B-59, dated 17th December, 1965 is

a statement of Govindasami before the Special Police Establishment Circle Inspector of Police, Madras. Exhibi-B-60, dated 25th February, 1966

as a statement of Kolandaswami Gounder before the Special Police Establishment Circle Inspector of Police. Exhibit B-59 and exhibit B-60 are

similar to the statement recorded u/s 162 of the Code of Criminal Procedure. They cannot afford themselves as independent evidence as it is

inadmissible in evidence. Exhibit B-58 confidential report given by the Superintendent of Police on the basis of the statement recorded by him

similar to exhibits B-59 and B-60, cannot also be relied upon as substantial evidence in this case. It is seen from a perusal of the judgment under

appeal that the trial Court has been very much influenced by these documents together with these evidence relating to these documents. When the

dead body of the deceased had not been subjected to postmortem and chemical analysis had not been done with respect to the Viscera, it cannot

be successfully held that the deceased died due to consuming poison. It is also relevant in this connection to note that in the instant case the source

of the poison which the Defendant wanted to prove in this case and the evidence relating to the same have not been exhibited in the trial Court. The

trial Court has observed in paragraph 58 of its judgment that:

When a person goes to purchase highly poisonous insecticide for the purpose of using it to commit suicide, he would not give his real identity. In

that way, it is quite possible that the deceased Muthusamy gave a false description and made the purchase under exhibit B-14. It is also quite

possible that the purchaser under exhibit B-14 was not Muthusamy, son of Kolandaswami.

This observation clearly shows that the lower Court had not properly construed the contents of exhibit B-14 and the evidence relating to the same.

The evidence of D.W. 1-Jakariah or D.W. 2-Ranganathan does not help the Defendant for upholding its case that the deceased died due to

consuming poison. P.W. 5 is Kolandaswami gounder. It is rather strange that the lower Court had stated in paragraph 58 of its judgment that he

had also along with others admitted that the deceased Muthusamy had consumed poison. It is contrary to evidence. It is also relevant to note that

the examination of the witnesses in the instant case to prove the case of the Defendant that the deceased died due to successful commission of

suicide by consuming poison, has been let in 6 years after the death of the deceased Muthusamy. D.W. 5-Penasami has been examined on 16th

January, 1972. The evidence is quite unnatural. The Chief examination portion of his oral evidence shows that he is deposing falsely in that he says

that when he saw the deceased lying on the pial of the factory, he had asked him as to why he was lying down and that immediately the deceased

vomited. At that time according to D.W. 5-Periaswami, he was also to smell Folidal emanating from the vomited matter. It is his further evidence in

chief examination that he had questioned as to why he had taken folidal and that for the same no reply was given by the deceased. No attempt has

been made for taking that folidol smelling vomited matter, from the place whore the deceased had vomited and sending the same for chemical

examination. It was at about 3 p.m. according to D.W. 5-Periasamy that the deceased Muthusami died. He states in his cross-examination that on

Wednesday, the factory was not working. He was not able to give the name of the person who had informed him about the deceased lying on the

pial of the factory. He would say that the vomited matter was white in color and there was no foliodol bottle near the deceased at that time. He

was not able to give particulars relating to the bus which he asserts that he stopped and that though the cleaner of the said bus, he had sent

information to D.W. 1-Zakariah. He was not even able to give the particulars about the cycle which he had asserted in his chief-examination that

the deceased brought and in which he had himself utilized for coming to Kuppagoundavalasu at about 11-30 a.m. It is also relevant in this

connection to note that in his cross-examination he has categorically admitted that when he had met at that time P.W. 5, the first claimant herein,

who is none other than the father of the deceased, he had not informed him about the vomited matter or that he was entertaining feeling that the

deceased might have consumed folidol. He states in his cross-examination that he had only told P.W. 5 that the deceased was lying giddy and that

he could be attended to and that he had not said anything else. D.W. 5-Periasami is an illiterate. He can only put his signature in Tamil. He would

say that he had informed only Govindasamy and P.W. 5 as to the cause of death and that he had not informed any other person about the same

though he would admit that at about 3. p.m., there was number of persons gathered in the house of the deceased. A reading of the entire oral

evidence of D.W. 5 clearly shows that he is deposing falsely and that his evidence cannot be relied upon especially with respect to the vomiting and

the condition of the deceased as narrated by him. So far as the evidence of D.W. 3-Govindasamy, the Chairman of the Panchayat Union,

Kangayam is concerned it is relevant to note that be alighted from a cycle on seeing a large gather near Dr. Srinivasan''s hospital and that when he

saw the deceased, he found froth coming out from the month and nostrils of the deceased Muthusamy. It was at about 4.p.m. on the day of the

death of the deceased, the dead body of the deceased was are mated. It was not buried. According to him D.W. 5- Perissami had informed that

the deceased Muthusamy gave him a dying declaration that he had consumed folidol and that thereafter Muthusamy was unable to talk. It is

relevant to note that D.W. 5-Periasami, even in his chief-examination does not say that there was any such dying declaration given by the deceased

to him. This extra judicial confession said to have emanated from the deceased is sought to be inferred from the evidence of D.W. 5-Periasami in

that he says that he had asked the deceased as to why the deceased had consumed folidol. This vital contradiction shows that both D.W. 3 the

Charman of the Panchayat Union, Kangayam and D.W. 5-Periaswami have conspired together to weave a case of consumption of folidol we have

already seen that the receipt for purchase of the insecticides under exhibit B-14 has not been proved as one under which any insecticides at all was

purchased by the deceased. The evidence of D.W. 4 is also not helpful to the Defendant-corporation to uphold its contention that the deceased

died due to successful commission of suicide. D.W. 4 -Nachimuthu Gounder is the factory Proprietor. He also repeats parrot-like that the

deceased vomited. He would assert that he had questioned the deceased as to whether he had consumed folidal as there was a smell of folidol and

for the same, the deceased replied that he did take poison. D.W. 4 would say that he got frightened. He is aged about 50. Nothing prevented him

to inform about the same to the concerned authorities when once such a statement if at all had emanated from the deceased that he has questioned

about the physical condition of the deceased. The account given by D.W. 4-Nachimuthu Gounder relating to the stopping of the bus and that the

information given by the driver of the bus that it had incurred an accident are all details which clearly shows that no credence can be given to the

evidence of D.W. 4 -Nachimuthu Gounder also. He has also not taken care to preserve the vomited matter if it had really emitted the smell of

folidol so as to subject the same for chemical examination. He had not even reported the matter to any authority concerned. In his cross-

examination, he would not even able to give the month or the date on which the occurrence had taken place. D.W. 4-Nachimuthu Gounder says

that D.W. 5-Peraiasami did not question as to what was the deceased suffering from? On the other hand, D.W. 5 would say that he enquired

about the then physical condition of the deceased. Even on the cross-examination, nothing but repetition of his oral testimony finds place. There is

no oral evidence relating to the alleged vomiting of the deceased and its omission of smell of folidol finds repeated existence. The categorical

admission of D.W. 4 that no person who saw the deceased lying on the pial questioned as to whether he had consumed poison. He has also

admitted that neither himself nor any body searched at that place for any folidol bottle lying at that place. He would say that he got frightened soon

after the deceased vomiting. The fact that D.W. 4 got frightened at every place of his oral evidence clearly shows that he is a person whose

evidence cannot be relied upon and that he can only repeat what he had come forward to assert on oath. He had stated that within 21/2 miles from

that place there is an installation of telephone and that he had either to phone to the doctor or to report about the matter to the police station and

that he had not taken any effort. He admits that even after sometime thereafter, he did not inform the police about the occurrence on the pial of the

factory. He would admit that only about two months after the occurrence, he had been examined by the officer of the Life Insurance Corporation.

He would categorically state in his cross-examination that he does not remember whether he had given any statement to the C.I.D. inspector that

when he saw the deceased Muthsamy he had questioned as to why he was feeling giddy and that at that time the deceased informed him that he

had consumed folidol. Thus the evidence of D.W. 3-Govindasamy, D.W. 4-Nachimuthu Gounder and D.W. 5-Periasami do not help the

Defendant to uphold its case that the deceased died only due to successful commission of suicides by getting himself extinguished from the surface

of the earth by the consumption of some poisonous substance much less foldol.

51. D.W. 15-Dr. Anantharaman, Medical, Practitioner at Dharapuram, an authorised Medical Examiner for the Life Insurance Corporation had

issued exhibit B-27, the personal statement of the proper and countersigned by him. It contains also his confidential report. He examined the

height, weight and chest of the deceased. He had examined the condition of his teeth, etc. He had examined the condition of his chest and

condition of his ear, his blood pressure, and his digestive system. He has noted his findings in the report. He has certified the deceased as having a

first class life. He had examined the deceased on 30th March, 1965. He did not find anything defective in his heart. It is in evidence that Dr.

Anantharaman expressed his inability to treat the deceased at the time when he was brought to his clinic and advised his relations and friends who

were present in his clinic to take back the deceased Muthusamy, to bigger hospitals either at Erode or at Coimbatore. D.W. 13-K. Subramaniam.

Senior Branch Manager of the Defendant corporation at Erode during the relevant time, has deposed that he suggested police investigation

because he was able to get only one statement from D.W. 4-Nachimuthu Gounder and that he felt the case was a complicated one without any

inquest or postmortem, etc. He suggested to his superior officer that it was better to hand over the matter to the police.

52. P.W. 1-Dr. Kalimuthu has stated in his evidence that on 24th July, 1965 at about 11.30 a.m. P.W. 5-Kolandaswami Gounder, the first

Plaintiff herein, brought the deceased Muthusamy to his clinic in a bullock cart and that a that time the deceased was in a comatic condition that is

he was unconscious and his breathing was deep and irregular his pulse was low and was having pain in his head. The deceased was also having

stiff neck and was rolling his head which according to P.W. 1 are signs of pain. P.W. 1-Kalimuthu further says that he was informed by P.W. 5 -

Kolandaswami Gounder that the deceased Muthusamy was having severe pain in his head, pain all over the body including chest from 8 a.m. on

that day. So, P.W. 1 says that by way of treatment he gave coramine injection to the deceased Muthhsamy and made a lumber puncture for

diagnosis, purposes and got the cerebra spinal fluid from the spinal column of Muthusamy by doing the lumber puncture and he found the serebro

spinal which should be normally colorless, like water was reddish in color, showing blood had got mixed in that cerebra spinal fluid. P.W. 1 Dr.

Kalimuthu further stated that from what he saw and examined, he came to the conclusion that the deceased Muthusamy at that time was afflicted

with ailment of a sub arachnoids hemorrhage. P.W. 1 would say that 10 minutes after the lumber pincture he made on the deceased Muthusamy

the latter died and the primary cause of the death of Muthusamy was sub arachnoids hemorrhage and a secondary cause was shock and

hemorrhage. After the death of Muthusamy, his father, P.W. 5 took him away in the bullock cart. On 26th November, 1965, P.W. 1 issued the

medical certificate. It is seen from the evidence of P.Ws. 3 and 5 that after the dead body was taken to the house of P.W. 5-Kolandaswami

Gounder, all ceremonies have been done to the corpse of Muthusamy and doing that entailed removing the clothes worn by the deceased

Muthusamy and that there was no letter or anything in the pocket of the shirt worn by the deceased Muthusamy at that time. After the ceremonies

were over, the corpse was taken to about 1� furlongs from the house of P.W. 5 and it is at that place, the corpse was taken from the pyre and

put on a pile of wooden logs and the pyre was lit and the dead body of the deceased was thus reduced to ashes. Both P.Ws. 3 and 5 have denied

that either D.W. 1-Jakariah or one Kolandaswami were present at the funeral of the body of the deceased Muthusamy. P.W. 3 also corroborates

P.W. 5 regarding the happy and pious disposition of Muthusamy and that Muthusamy even told him the previous day at about 6. p.m. that on the

next day he was going with the members of his family on a pilgrimage, which is also corroborated by P.W. 5 in his evidence that on 23rd July,

1965, himself and the deceased Muthusamy had dec ded to go on the next day, i.e., on 24th July, 1965 to Rameswaram on pilgrimage. It is their

evidence that during all that was done to the dead body of Muthsami in the house of P.W. 5, and till the pyre containing the dead body of

Muthusamy was lit, the Development Officer of the Defendant-corporation, D.W. 12-Viswananathan, was also present. It is also the evidence of

P.W. 5, the first Plaintiff herein that it was one Appukutti who removed the shirt worn by Muthusamy and the said Appukutti and one village

massif, Doraiswamy, were also present during that time.

53. P.W. 4. -Appukutti Gounder states in his evidence that he was informed on 24th July, 1965 in the after-noon, about the death of Muthusamy

at the clinic of Dr. Kalimuthu on the information sent through one Sakkilian by name Kolaadasami. So he says that him-self and his wife went to

Kuppagouuuaa-valasu and attended funeral of the deceased Muthuswami. He further states in his evidence that he enquired Kolandasami the

cause of death of Muthusamy and when Kolandasami told him about the cause of death of Muthusamy, P.W. 3-Komarasami and D.W. 12-

Viswanathan were also present. He also stated that the body of Muthusami was cleaned and the said process requires removing of the shirt from

the body of the deceased and when the shirt was thus removed accordingly there were no letters in the pockets of the shirt worn on the dead

body. He also corroborated the evidence of P.Ws. 3 and 5 that the body, from the house after cleaning and the ceremonies were over, was

straightaway taken to the pyre and there, he remained till the pyre was lit. P.W. 4-Appukutti gounder also corroborates the evidence of P. Ws. 3

and 5 that during the time when the ceremonies were done, the shirt was removed and the pyre containing the body was lit, the Development

Officer, D.W. 12, was present. It is also in evidence that they did not find any stains of vomit or signs of vomiting on the dead body of the

deceased Muthusami.

54. P.W. 5-Kolandaswami Gouder states in his evidence that there was enmity between him and D.W. 1-Takariah on account of the partnership

business and there has been enmity between him and Govindasami (D.W. 3) for 25 years and on account of that both have colluded together and

had begun to get up a case against him that the deceased Muthusamy committed suicide so that the nominees under the policies could be denied

their claims because he happened to be a nominee under the policies, Exhibit B-28 to B-30, made for a total claim of Rs. 25,000 P.W. 5 has

denied that at the clinic of Dr. Srinivasan, D.W 3-Govindasami was present. According to P.W. 5, D.W-1. Jakariah came to his house two days

after the death of Muthusamy to make enquiries to condole the death of Muthusamy. P.W. 5 has denied that D.W. 3-Govindasami was present at

the funeral of the body of Muthusamy. D.W. 4-Nachimuthu gounder is the co-brother of D.W. 3-Govindasami. According to P.W. 5 D.W. 3 had

prevailed upon D.W. 4 to give false evidence. P.W. 5-Kolandaswami Gounder, the first Plaintiff herein has also denied that D.W. 5-Periasami

came and informed on the morning of 24th July, 1965 that at Nathakadayur in the factory of D.W.-4 Nachimuthu Gounder, the deceased

Muthusamy was lying in a precarious condition. P.W.5-Kolandaswami Gounder has also denied the evidence of D.W.5- Periasami that the latter

is residing in a house belonging to him at Kuppagoundavalasu. P.W. 5 has also denied that D.W. 7. Semalaiappan attended the funeral of the

deceased Muthusamy D.W. 5 has also denied the evidence of D.W. 8 -Ranganathan that he made himself scarce so as not to be questioned by

D.W. 8-Ranganathan. He as well as P.W. 4 have denied that they were contacted either by the officers of the Life Insurance Corporation or D.W.

8. P.W. 5-Kolandasami gounder specifically states that exhibit B-2 petition and the anonymous petition, exhibit B-46 must have been engineered

only by D.W. 3-Govindasami who has set up a false case that the deceased Muthusamy Gounder committed suicide, with an ulterior motive to

deprive the claimants under the policies viz., the Plaintiffs herein from getting the legitimate policy amounts from the Defendant/corporation. The

evidence emanating from this witness relating to the enmity and ill-will that had sprung up in the village against the first Plaintiff is well established

and this conclusion is arrived at on an overall analysis of the entire evidence available on record. Whatever academic approach relating to the

medical aspect may be discussed, the proved facts of this case clearly shows that the evidence available from the doctor who has seen the

deceased alive as well as the surrounding circumstances do not in any way help the Defendant/corporation to establish its case that the deceased

died due to successful commission of the offence of suicide. The vomiting may be due to many reasons. Even it is possible that a person who

enjoys normal health vomits due to the increase of acidity on account of excess secretion of bile. In the instant case, even if the case put forward by

the Defendant through its witnesses that the deceased was found lying on a pial of a factory and that on psychological moment he had vomited so

as to enable the witnesses to come forward and put forward a case that the deceased might have consumed folidol. The purchase of folidol by the

deceased had not been proved through a documentary evidence by way of a bill has been produced, the attempt on the part of the Defendant in

this regard has been utterly failed. By no stretch of imagination it can be held that the deceased had purchased folidol and that he had consumed

the same and his death had occurred only due to such consumption of poisonous substance like folidol. The discussion of evidence in this regard

by the lower Court is not satisfactory.

55. In Life Insurance contracts where, from the very necessity of the case, one party alone possesses full knowledge of all the material facts, the

law requires him to show uberrims fides. In the instant case though it is alleged on behalf of the Defendant/corporation that the deceased had been

motivated to enter into a contract of insurance with the Defendant with ulterior intention to end his life as early as possible so as to get the benefits

of the contract, that he had entered into with the Defendant in favor of the nominees, yet the Defendant has not Dean successful in proving its case.

This case of the Defendant/Respondent here''s has not been proved by acceptable evidence though voluminous evidence had been let in by the

Defendant equally appreciable quantity of evidence had been let in by the Plaintiffs claimants herein also. The existence of a police report cannot be

very much relied upon because it is after all a report which had come into existence after enquiring persons who are having some knowledge or

other either against or its favor of the claimants village and that too which had come into existence after considerable time after the death of the

deceased. When there is no immediate police report about the suspicion entertained by the concerned whatever that might emanate by them by

way of statements recorded by the investigating officer who had submitted the report in the instant case or the subsequent deposition in Court,

cannot be given much weight especially when the persons concerned have not informed about the suspicious circumstances to the neighbors in

order to take any steps to inform to the police or other authorities with whom they had any regard. Utter failure to give any information soon after

the signs of poisonous substance alleged to have been perceived by the concerned or to have found in a form of complaint to the proper authorities

the concealing of the same for justifiable reasons emanating from the concerned, justifies the rejection of their evidence. No doubt the deceased

had to make full disclosure of all the material particulars about the health especially when he enters into a life insurance contract with the Defendant

as otherwise the contract may be rescinded. In Mackender v. Feldia [1966] 3 All F.R. 847 it was held that where there is a duty to disclose, non-

disclosure makes the contract void able and not void. In the instant case, it is not established by the Defendant Respondent herein that there had

been any material suppression of any relevant fact by the deceased when he entered into the contract of life insurance which resulted in the polices

concerned. It has been established, that every contract of insurance, irrespective of its subject-matter, involves ubberrime fide and requires full

disclosure of such material facts are known to the assured. As Lord Mansfield demonstrate-in Carter v. Boehm (1766) 3 Fum 1905. 1909,

insurance is a contract upon speculation where the special facts upon which the contingent chance is to be computed lie generally in the knowledge

of the assured only so that good faith requires that he should not keep back any thing which might influence the insurer in deciding whether he

accept or reject the risk. In the instant case, there is absolutely no material available on record to show that at the time of coming into existence of

the contract of life insurance which resulted in the policies came into existence due to some suspicion of any material fact or due to keeping back

anything which might influence the Defendant/Respondent herein for deciding whether to accept or reject the risk. A fact is material if it is one that

would affect the mind of a prudent man, even though is materiality is not appreciated by the assured. It was so held by London Assurance v.

Mansel [1879] 11 Ch. D. 363. In the words of Bayley J.

I think that in all cases of insurance whether on ships, houses or lives, the under writer should be informed of every material circumstance within the

knowledge of the assured and that the proper question is, whether the party believed it to be so. The contrary doctrine would lead to frequent

suppression of information, and it would often be extremely difficulty to show that the party neglecting to give the information thought it material.

But if it be held that all material facts must be disclosed, it will be in the interests of the assured to make a full and fair disclosure of all the

information within their reach.

56. Whether the policy is taken out for a life, fire, burglary, fidelity or accidental risk, it is the duty of the assured to give full information of every

martial fact and it has been held by the court of Appeal that the definition of material contained in the Marine Insurance Act 1906, namely every

circumstance.

which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk

is applicable to all forms of insurance (Vide Locker and Woolf, Ltd. v. Western Australian Insurance Co. Ltd. [1936] 1 K.B. 408.

57. The duty of disclosure thus imposed by law so confined to facts which the assured knows or ought to know. The duty is a duty to disclose,

and one cannot disclose what he does not know. Thus if the question Have you any disease? is put to an applicant for a life assurance policy, and

he answers in the negative fully believing his health to be sound, the resulting contract cannot be rescinded upon proof that the time of his answer he

was suffering from malignant cancer. The duty however, may be enlarged by the express terms of the contract, and in fact Insurers have taken

extensive, perhaps indeed unfair, advantage of this contractual freedom, so as to raise a plea that there was suppression of material particulars at

the time of entering into a contract. In practice the insurer almost in variably require the assured to agree that the accuracy of the information

provided by him shall been condition of the validity of the policy. To this and it is common to insert a term in the proposal from providing that the

declarations of the assured shall form the basis of the contract. The legal effect of this term is that if this answer to a direct question is inaccurate, on

if he fails to disclose some material fact long forgotten or even some fact that was never within his knowledge, the contract may be avoided despite

his integrity and honesty of purpose. In the instant case, there is thing on record to show that the deceased had been suffering from any disease

much less a disease which could end his life, at any point of time or that be had any such serious ill-health such as heart attack etc. We have

already seen that the cause of death is not quite clear in the instant case and that whatever that are stated by way of evidence disclosing the cause

of death by P.W. 1-Dr. Kalimuthu, who had examined at the first instance can only be taken into account as one which give some light in that

direction. There is nothing in evidence to show that there was any incorrect statement made by the deceased Muthusamy in the application form or

in the subsequent enquiries which resulted in the issue of policies out of the concluded contract of life insurance.

58. One of the commonest questions put to a person who applies for a life insurance is Have you any disease? a matter which, even for a doctor is

often a subject of mere speculation or opinion. But the policies issued by many companies are framed so as to be invalid unless this and many other

like questions are correctly-not merely truthfully-answered, though the insurers are well aware that it is impossible for anyone to arrive at anything

more certain than an opinion about them. In the instant case, even a normal approach to the evidence available on record without clearly imposing

a strict burden of proof upon the Defendant Respondent corporation herein, if is seen that there is absolutely no proof to show that the deceased

had ever been attempted to commit suicide. The mere fact that there had been illicit intimacy alleged against P.W. 5 first Plaintiff/first Appellant

herein is concerned without any basis whatsoever cannot afford a ground for upholding the contention raised on behalf of the Respondent herein

that the deceased might have got vexed in life due to the alleged immoral connection of his wife with the father-in-law or the father-in-law with his

wife and that the circumstance which is alleged viz., that he was in needs and as such had been incurring debts have also been completely exhibited

themselves as mere allegations and as such not reliable.

59. In order to avoid claims under policies with a view to suicide, some companies exclude from the risk death by suicide occurring with in a

specified period, usually 12 or 13 months as in the instant case, A few exclude suicide whilst same at any time.

60. In England suicide was until 3rd August 1961 a crime of committed voluntarily by a person of sound mind. It is contrary to public policy that a

man should derive an advantage from his own criminal act, and it followed therefore that until the law was altered no benefit could have been taken

by the personal representatives of a person who committed the crime of suicide. It is still the law that co benefit can be taken by a person who

murders a man on whose life he holds a policy, this rule does not however apply where the murder was insane. ((sic) Battens Will Trusts [1961]

105 S.C. (sic) 529.

61. In England, the Suicides Act 1461 abolished the rule that suicide was a crime. There is no provision in the Act relating to life assurance

policies. The position therefore is that the policy moneys will become payable on the life assureds death by suicide unless payment is excluded

expressly or impliedly by the terms of the contract made between the parties. If there is no express reference to suicide in the policy then (1) it

appears from the remarks of Lord Atkin and Lord Macmillan in Beresford v. Royal Insurance Co. Ltd (1938) A.C. 586 (1938), that the life

assured''s personal representatives cannot recover if he commits suicide whilst of sound mind, this, they considered, was on the ordinary principle

of insurance law that a man cannot by his own deliberate act cause the event upon which the insurance moneys is payable; the life office cannot be

assumed to have agreed to pay on that happening; (2) this principle does not apply to suicide whilst insane and in that event the personal

representatives can recover the sum assured.

62. If the contract expressly deals with the event of suicide one most look to the words of the policy to ascertain whether the sum assured is

payable in mat event. It may provide that suicide, sane or insane, is not covered at any time, or more commonly that is not covered if it takes place

within a limited period. If the life assured commits suicide after that period has expired, the company may well, on the construction of the policy, be

liable even if lie was then of sound mind, because the express protection is limited to that period and the implication is therefore that the company

has under taken the risk after that vide lord Atkin in Beresford v. Royal Insurance Co. Ltd. (1938) A.C. 586 (1938).

63. Where the life assured commits suicide during the currency of a policy and the sum assured is not payable either because of the exception in

the policy or on general principles, the premium is not returnable, because mere has not been a total failure of consideration; the life office has been

throughout on the risk to pay the sum assured as regards death from other clauses. In the instant case, it is relevant to note that it has not been

established by acceptable evidence that the deceased had committed any successful commission of offence of suicide. The police report which

cannot be taken as a substantial evidence does not afford a ground for upholding the case put forward by the Defendant/Respondent herein.

64. The contract of life insurance being one of utmost good faith and the probable expectancy or duration of the life of the policy holder being an

important almost in it when there is a condition in the said policy to the effect that it would be void if the assured commits suicide within the year If

the existence of the policy and the assured is dead the cause of which is shown as not due to successful commission of suicide, then the irresistible

conclusion that cm be arrived at is, that the insurer has not proved its case that due to the contingency found by commission of suicide had

occurred within the specified time mentioned in the policy and that had facilitated it to rescind the contract thereby enabling it to dishonor the terms

relating to the payment of assured sum when the premium has been paid regularly on the policies issued.

65. Professional negligence cannot be attributed to the doctors to whom the deceased had been taken soon after he became ill. Ordinarily u/s 202

of the Indian Penal Code, it may be presumed that a medical practitioner should at once communicate to the policy, any information about a

criminal act that might have come to his knowledge in his professional work, but this is not always the case. He should not play the part of a

detective but use his own discretion. For instance, he should hand over to the police, a man, whom from the nature of his injury, he may suspect to

be an assailant in a murder case. If happens to treat a person who has attempted to commit suicide. he is not bound by law to report him to the

proper authorities, but he has to inform the police if he happens to die. If the friends or relatives of the suicide undertake to carry the information to

the police, he must see that they do.

66. A Medical practitioner''s task becomes very difficult in diagnosing a case of poisoning as, in order to avoid police investigation, nobody is

willing to supply him with a true and correct history of the case. However, he can, to a certain extent, diagnose a case of poisoning from the

following characters of the symptoms exhibited by the patient:

1. The onset is usually sudden in a previously healthy, individual except in chromic poisoning, where the symptoms develop gradually, and may be

easily mistaken for disease also it should be suspected if repeated similar attacks of vomiting or diarrhea occur in a person after a meal, drink or

medicine. In chromic poisoning patients habits, working conditions, daily activities, etc. must be carefully investigated.

2. The symptoms usually commence within about an hour after the poison has been taken in a particular kind of food, drink, or medicine, but the

poison will have no connection with the food, drink or medicine, if it is not ad ministered by the mouth but by some other channel, the effect then

may be committed.

Moreover, the symptoms of some diseases, such as cholera, acute pancreatitis and rupture of the stomach, may appear all of a sudden soon after

taking a meal or drink. In this connection it may be mentioned that a criminal may take the advantage of some epidemic disease occurring at the

time, and may administer a poison producing the symptoms almost similar to those of the epidemic, so that the death may be attributed to it. Modi

had seen cases in which arsenic was administered, and the death was attributed to cholera raging in the locality at the time. But post-mortem

examinations revealed the signs of irritant poisoning, and the Chemical Examiner detected arsenic in the viscera.

3. The a symptoms are uniform in character, and rapidly increase in severity followed either by death or early recovery Sometimes, remissions may

occur as in opium poisoning, and certain poisons may leave squeal of long duration. Sometimes one poison can be neutralised by the action of

another one or even the action of poison in a much smaller nontoxic dose may be increased by the potentative or synergistic action of another one,

e.g., barbiturate with alcohol.

4. Persons partaking at the same time of the same kind of food or drink containing poison suffer from similar symptoms of poisoning at or about

the same time.

5. The detection of poison in food, medicine, vomit, urine or fasces is strong proof of poisoning. Hence, in suspicious cases, these articles must be

preserved in clean glass-stoppered bottles for chemical analysis. However, poisoning is not ruled out just because it is not detected, as sometimes

it may have been vomited of destroyed in the body or the technique of detection or sending the material may have been faulty (vide Modi''s Text

hook of Medical Jurisprudence and Toxicology, twentieth edition, pages 470 and 471).

67. In the instant case, the deceased Muthusamy was taken to P.W. 1-Dr. Kalimuthu. His evidence does not show that the deceased had

exhibited signs of poisoning by any poisonous substance much less folidol or any dangerous insecticides. P.W. 1 Dr. Kalimuthu has specifically

slated that exhibit B-54 is the certificate issued by him that the deceased Muthusamy died at his clinic. Whether P.W. 1 had been conducting a

clinic or a dispensary is not at ail germane to the point at issue. The said aspect had been unnecessarily dealt with at length by the lower Court

which side treated his vision. In the same way, the discussion relating to the lumber puncture etc. and the irrelevant extracts from books such as

Savill''s System of Clinical Medicine, thirteenth edition, etc., are totally irrelevant. In the instant case we are concerned about the case that has been

put forward by the Defendant-corporation that the deceased died due to folidol poisoning. As a matter of fact the Defendant has attempted to

prove its cases by introducing a document as well as by inducting evidence to show that the deceased had purchased folidol insecticides for putting

an end to his life and that he was making such preparation. This aspect has not been proved properly though an attempt has been made. The lower

Court wants to lend support to this kind of introducing of some extraneous matters by observing that it is quite possible that the deceased might

have given a false name while purchasing folidol insecticides from the concerned shop. This aspect of discussion clearly shows that the decision

arrived at by the lower Court is far from one which would be according to the evidence available on record. It is too far fetched to assume that the

deceased might have given some other name than his name while purchasing the insecticide, when there is no satisfactory proof for the sale of any

insecticides especially when it is not proved that either vomited matter contained any poisonous substance or there was no trace of any bottle or

container in which the poisonous substance had been consumed by the deceased Muthusamy and above all when the dead body itself could not be

subjected to any medical examination it is not possible to uphold the case of the Defendant/corporation, the Respondent herein. Nothing material

has been elicited in the cross-examination of P.W. 1-Dr. Kalimuthu so as to discredit his evidence when he states that he did not find any indication

in the body of Muthusamy, symptoms of folidol poisoning and that there are no froth in the nostril or in his mouth and signs of vomiting. He says

that he has issued exhibit B-54, the Medical attendance certificate, dated 26th November, 1965 in which he has stated the primary cause of death

was sub-arabhnoid hemorrhage and secondary cause shock and hemorrhage. Merely on the ground that Dr. Kalimuthu had performed the lumber

puncture on the body of Muthusamy on 24th July, 1965 and he diagnosed that he was suffering from sub-arachnoids hemorrhage, it does not in

any way afford a ground for rejection of his evidence with reference to the opinion he had offered regarding the death of the deceased Muthusamy.

At any rate it is rather too unsafe to hold on the materials available on record by way of evidence, both oral and documentary, that the deceased

died only because of consuming folidol poison because it is that poisonous substance, it is alleged by the Defendant Respondent herein by

indicating the receipt for the purchase of insecticides. Similarly on the ground that Dr. Kalimuthu being only a licensee in Indian Medicines does not

afford an obstruction for the acceptance of his evidence as credible and also authoritative. In 1956, he was appointed as a medical officer, for the

Kangayam Panchayat Union, a regular dispensary at Nathakadayaur and he served as medical officer for four years. Merely on the ground that he

had come across only two cases of sub-arachnoid hemorrhage in his service as medical officer at Nathakadayur does not stand in the way of

accepting his evidence as credible. Merely on the ground that neither Dr. K.G. Nair nor Dr. Srinivasan, P.W. 6, who are having clinics at

Kangayam were not approached by P.W. 4, the first Plaintiff herein for treatment of his son, the deceased Muthusamy, does not mean in any way

affect the veracity of the evidence unfurled through P.W. 1-Dr. Kalimuthu. There is absolutely no reason for disbelieving Dr. Kalimuthu when he

swears that he did perform a major work as lumber puncture at his dispensary. The contents of exhibit B-54 clearly shows that the said document

is not a created one but a genuine document came into existence in the ordinary course of practice of the medical profession of P.W. 1-Dr.

Kalimuthu Dr Kalimuthu had also given carmine injunction to the deceased Muthusamy. He knew before him that Dr. Srinivasan, D.W. 6, had

attended in Muthusamy and thereafter the said Dr. Srinivasan, D.W. 6, directed him to go to the headquarters hospital at Erode or Coimbatore.

Nothing prevents a doctor to treat one who is in a dangerous condition in order to at least keep him alive till he is taken destination of a big

hospital. The reasons given by the lower Court to disbelieve the evidence of P.W. 1 Dr. Kalimuthu are all flimsy and cannot be taken as grounds

for total rejection of the evidence of a responsible medical practitioner. Whatever might be the cause of death of Muthusamy, the possibility of

himself committing suicide by consuming folidol is not all established by the Defendant/Respondent herein as the definite case of the

Defendant/Respondent is that the deceased died due to successful commission of suicide by consuming folidol poison which he bad purchased

from a depot evidenced by a receipt. This case of the Defendant is not at all proved by any satisfactory evidence. Therefore the irresistible

conclusion that can be arrived at is that the deceased died due to natural causes and the death cannot be said to be due to successful commission

of the offence of suicide by consuming insecticide de which poison according to the Defendant had been purchased by the deceased under exhibit

B-14. Merely on the ground that the first Plaintiff did not dispute that it was Dr. Srinivasan who first examined the deceased and after he became

unconscious and that Dr. Srinivasan had not observed neck stiffness, the evidence adduced through P.W. 1-Dr. Kalimuthu on behalf of the

Plaintiffs cannot be rejected as incredible or un worthy of acceptance. Similarly on the ground that D.W. 15 Dr. Anantharaman stating on oath that

even an acute attack of meaning it can cause sub arachnoids hemorrhage or poison swallowed can also cause sub arachnoids hemorrhage, it

cannot be held that the cause of the Defendant that the deceased consumed poison. Merely on the ground that D.W. 6-Dr. Srinivasan states that

Jakariah-D.W. 1 and others brought the deceased Muthusamy from Nathakadayur and the discrepancy relating to that had been very much relied

upon by the lower Court for the rejection of the case of the Plaintiffs, the approach of the lower Court in this regard is not correct. In paragraph 51

of its judgment, the trial Court had observed as follows:

Then it is the definite evidence of Dr. Srinivasan, D.W. 6, that one Jakariah and others brought Muthusamy from Nathakadayur. That takes up to

the oral evidence on the point, whether Muthusamy was brought from Nathakadayur to Kangayanvfor medical treatment or from Kuppagoundan

valasu for medical treatment.

This discrepancy available in the evidence does not in any way be held as material discrepancy so as to discredit the entire case of the Plaintiffs

especially when the case of the Defendant that the deceased had consumed folidol poison stands unproved. It cannot also be said that the

deceased had been suffering from any latent disease.

68. In Moular v. American Life Assurance Co. All U.S. 335 the Supreme Court of the United States observed as follows:

It is concluded that if the answers of the assured are to, be deemed representations only, the policy was. nevertheless forfeited, if those

representations were untrue in respect of any matters material to the risk. The argument is, that if the insured was, at the time of his application or

had been at any former period of his life, seriously or in an appreciable sense afflicted with scrofula. Asthma, or consumption, his answer, without

qualification, that he had never been so afflicted being untrue avoided the policy, without any reference to any knowledge or belief he had upon the

subject. The soundness of this proposition could not be disputed if, as assumed the knowledge or good faith of the insured, as to the existence of

such disease was under the terms of the contract in suit of no consequence whatever in determining the liability of the company. But is the

assumptions authorised by a proper interpretation of the two instrument constituting the contract? We think not. Looking into the application, upon

the faith of which the policy was issued and accepted we find much justifying the conclusion that the company did not require the insured to do

more, when applying for insurance, than to observe the utmost good faith, and deal fairly had honesty with it, in respect of all material facts about

which inquiry is made, and as to which he has or should be presumed to have knowledge or information. The applicant was required to answer yes

or no as to whether he had been afflicted with certain disease. In respect of some of those diseases .particularly consumption, and diseases of the

lungs, heart and other internal organs, common experience informs is that an individual may have them inactive form, without at the time being

conscious of the fact, and beyond the power of any one, however learned on skilful, to discover (vide Thomson v. Weems (1889) 9 A.C. 671.

Did the company expect, when requiring categorical answers as to the existence of diseases of that character that the applicant should answer with

absolute, certainty about matter him the responsibility of knowing that which, perhaps, no one, however roughly trained in the study of human

diseases, could possibly ascertain? We shall be added in the solution of these inquiries by an examination of other questions propounded to the

applicant. In that way we may ascertain, what was in the minds of the parties. Beyond doubt, the phrase, ''other known cases'', in the fourteenth

question, scores the double purpose of interpreting and qualifying all that proceeds it in the same clause or section. For instance the applicant was

not required to state all the circumstances, within his recollection, of his family history, but these only which he had personal knowledge, or of

which he had information fairly justifying a belief of their existence. If he had committed to state circumstances in his family history of which he had

no knowledge, or any information deserving attention, that omission would not avoid the policy, although it subsequently appeared that those

circumstances, if known to the company, would have shown that the proposal insurance was more than usually hazardous. Yet in the fourteenth

question, the insured, being asked as to his ''family history'' and as to hereditary predispositions''-an inquiry substantially covering some of the

specific matters referred to in the tenth question was, as we have seen, only required to state such circumstances as were known to him, of which

he had information, and which rendered an insurance upon his life more than usually hazardous. So in reference to that part of the fourteenth

question relating to the then physical condition of the applicant. Suppose, at the time of his application, he had a disease of the lungs of heart, but

was entirely, unaware that he was so affected, in such a case he would have met all the requirements of that particular question, and acted in almost

good faith, by answering ''no'' thereby implying chat he was aware of no circumstances in his then physical condition which rendered an insurance

upon his life mote than usually hazardous. And yet according to the contention of the company, if he had, at any former period of his life, been

afflicted with a disease of the heart or lungs, his positive answer to the seventh question that he had not been so afflicted, was fatal to the contract;

this, although the applicant had no knowledge or information of the existence at any time of such a disease in his system. So also, in reference to

the inquiry in the fourteenth question as to any constitutional infirmity of the insured. If, in answering that question he was required to disclose only

such constitutional infirmities as were known to him, or which he had reason to believe then existed, it would be unreasonable to infer that he was

expected, in answer to a prior question in the same policy, to guarantee absolutely, and as a condition preceded to any binding contract, that he

had never at any time, been afflicted with disease of which perhaps he never had, and could not have any knowledge whatever. The entire

argument in behalf of the company proceeds upon a too literal interpretation of those clauses in the policy and application which declare the

contract null and void if the answers of the insured to the question propounded by him, were, in any respect, untrue. What was meant by ''true''

and ''untrue'' answers? In one sense, that only is true which is conformable to the actual state of things. In that sense a statement is untrue which

does not express things exactly as they are. But, in another and broader sense, the word ''true'' is of ten used as a synonym of honest, sincere, not

fraudulent. Looking at all the clauses of the application. In connection with the policy, it is reasonably clear-certainly the contrary cannot be

confidently asserted-that what the company required of the applicant, as a condition precedent to any binding contract, was, that he would deserve

the utmost good faith towards if, and made full, direct and honest answers to all questions without evasion or fraud, and without suppression. This

representation or concealment of facts with which the company ought to be made acquainted; and that by so doing, and only by so doing would he

be deemed to have made ''fair and true answers''. If it be said that an individual could not be afflicted with the diseases specified in the application,

without being cognizant of the fact, the answer is that the jury would, in that case, have no serious difficulty in finding that he had failed to

communicate to the company what he knew or should have known as a material to the risk, and that for the want of ''fair and true answers'', the

policy was, by its terms, null and void. But, whether a disease is of such a character that its existence must have been known to the individual

afflicted with it, and, therefore, whether an answer denying its existence was or was not a fair and true answer, is a matter which should have been

submitted to the jury.

69. In two Scotch cases it was held that statements, in fact untrue, as to non-existence of latent diseases did not amount to breach of warranty.

Hutchison v. National Loan Fund C.S.C. (2nd Series) 467, Life Assurance of Scotland v. Foster II C.S.C. (3rd Series) 351. But the soundness of

the decision of these two cases was doubted by the House of Lords in Thomson v. Weems (1884) 9 A.C. 671 where Lord Bhaclburn said:

It seems to me very reasonable stipulation on the part of the insurer, and that is not at all absurd or improper on the part of the assured to assent to

such being a term in the contract. It is seldom that a derangement of one important function can have gone so far as to amount to disease without

some symptoms having developed themselves, but the insurers have a right, if they please, to take a warranty against such a disease, whether latent

or not; and it has very long been the course of business to insert a warranty to that effect.

But see Joel v. Law Union (1982) K.B. 863.

70. In the instant case there is no such complaint that there had been any incomplete answer in the applications made by the deceased for the issue

of the policies. There is also no suppression of facts proved so far as the contents of the applications are concerned. Merely on the ground that the

death in the instant case of the assured had occurred within a year after the contract, it does not in any way afford a ground for suspecting the bona

fides of the deceased in entering into the contract of life insurance with the Defendant.

71. In Cooper v. Mass Ins. Co. 102 Mass. 227 the Supreme Court of Massachusetts said:

There is no substantial difference of significance between the pharse (Dawfar v. Professional 25 Beau. 599). In Connectic Mut. Life Ins. Co. v.

Akens 150 V.S. 468, the Supreme Court of the United States said:

It was argued that the word ''self-destruction'' as here used was more comprehensive than suicide, and included and intentional, though insane,

killing of one-self Stormount v. Waterlow Life (1858) I.F. and F. 22, Wainright v. Bland (1835) IM and VR 481. But the two words are treated

as synonymous in the very clause in question a well as in the former opinions of this Court. The act, whether described by words of Saxon or Latin

origin or partly of the one and partly of the other, ''dying by his own hand'', ''self-killing'' ''self-slaughter'', ''suicide'', ''self-destruction'', without more

cannot be imputed to a man who, by reason of insanity (as is commonly said) is not himself.

It is suicide if he assured understands the physical nature of the act, even though he cannot distinguish from right and wrong Berradaile v. Hunter 5

Scott N.R. 418, White v. British Empire (1868) L.R. 7 Eqi. 394 and Dufaur v. Pofessional Life (1858) 25 Bear. 599.

72. Where one of the conditions in a policy of insurance is that the policy is to become void if the person assured causes own death before the

policy has been in existence for one year and the assured commits suicide after a period of about 18 months, a person to whom the policy has

been assigned by the assured is entitled to recover from the insurance company the amount due under the policy. (Northern India insurance

Karhaya Lal). The Court observed (at page 545).-

The principal argument addressed by the learned Counsel for the Appellant was that the Plaintiff was not entitled to and relief as the Defendants of

Mool Chand could not be allowed to benefit as a result of the crime committed by their father. Reliance was placed by the learned Counsel of

Beresford v. Royal Insurance (1937) 2 All F.I. In that case the assured person committed suicide and it was held that as suicide was a felony

under the English law, the descendants of the assured were not entitled to recover the sum assured. In our opinion the authority referred to above

is a inapplicable to the present case. In their judgment the learned Judges were careful in pointing out that under the English Common Law the

committing of suicide was a felony, and that it was clear that the assured had deliberately killed himself in order to enable his estate to collect the

insurance money. Had the assured not killed himself the policies would have automatically expired in two or three minutes as the assured had no

mean of raising the premium. The learned Judges examined a number of American cases also and observed as follows:

Whatever the position may be in the United States where each State, by Legislature or judicial action of its own, can, it seems determine the

legality of a policy which expressly or of implication provides for payment of the policy money, in whole or in part in the case of suicide, sane or

insane we cannot think consistently with the law of England as we understand it, hold, that the Respondent can successfully maintain the claim.

It was further observed that: ""It may be that both ecclesiastical and civil penalties have been mitigated or abolished, but the criminal law still

remains. Only the legislature in this country can change the law in this matter, if it should so will. While the law remains unchanged, the court must,

we think, apply the general principle that it will not allow a criminal or his representative to read, by the judgment of the court the fruits of his crime.

In India the committing of suicide is not a crime. Attempted suicide is punishable u/s 309 I.P.C., while abetment of suicide is punishable u/s 306.

The committing of suicide in itself is not and cannot be regarded as crime in India. In this respect the English Common Law is inapplicable to India

as the criminal law of India is the creation of statute. The Judges in the English case took care to point out that there may seems a hardship in

holding that the Appellant company is in law not compellable to pay the amount due on the policy, but that it was impossible to hold otherwise,

consistently with the common law as prevailing in England. The contract between the parties was embodied in the policy of insurance. According

to condition No. 8 the policy was to become void if the person assured caused his own death before the policy had been in existence for one year.

In the present case the assured killed himself after a period of about 18 months. In these circumstances there is no reason why the contract entered

into by the insurance company should not be enforced in favor of the Plaintiff.

73. In England a rule in relation to suicide was laid down in 1842 Borradaile v. Hunter 5 Scott. N.R. 418 and has ever since been adhered to. In

this case the words of the condition were that the policy should be void if the assured should die by his own hands. He threw himself from Vauxhal

Bridge into the Thames aid was drowned. The jury found that he:

voluntarily threw himself into the river, knowing at the time that he should thereby destroy his life, and intending thereby to do so, but that at the

time of committing the act he was not capable of judging between right and wrong.

Manhattan Life v. Broughton (1883) 109 U.S. 121, Mutual Life v. Lenbric (1896) 71 Fed. Rep. 843. In holding that the policy be avoided

Erskine, J., said:

In this it was replied, that the testator was insane, at the time and therefore, that the case did not fall within the tree meaning of the proviso-first

because, under such circumstances it could not properly be said to have been the act of the assured at all; and secondly because, from the contract

it was obvious that criminal act of self-destructed alone was contemplated by the parties to the contract; and that, as it would be proved that the

deceased was not in a state of mind to be morally responsible for his acts, the proviso did not apply to this case. This made it necessary for me to

decide, first whether the proviso extended to all acts of self-destruction by the assured, or only to acts resulting from a criminal intension and also in

what way the question of insanity ought, to be left to the jury. On the part of the Defendant it was contended that the terms of the proviso, in their

fair and ordinary meaning, were large enough to include, and were evidently intended to include, all acts of self-destruction, whether accompanied

by criminal purpose or not; while on the part of the Plaintiff, it was argued, that, if it could be shown that Mr. Borrodile was in such a state of mind

at the time as to be morally and legally irresponsible for his acts, the proviso would not apply to this case; and, as a test of his responsibility, the

jury were invited to consider whether, as a corner''s jury, they could have returned a verdict of felo de se; or if sitting as a petty jury on the trial of

Mr. Borrodile for the destruction of the life of another man, they could have found him guilty of felony. I thought, that as the words of the proviso,

according to their ordinary acception, were large enough to include all intentional acts of self-destruction, whether criminal or not, if the deceased

was labouring under no delusion as to the physical consequences of the act he was committing if he knew that it was water into which he was

about to throw himself, and that the consequence of his leaping from the bridge would be his death - and if he voluntarily threw himself from the

bridge into the river, intending by so doing to drown himself- the question, whether had had been thereby guilty of a crime, as felo de se, or

whether, if he had at that time destroyed the life of another instead of his own, he was in a state of mind to be morally and legally responsible for his

acts, was irrelevant to the question before the jury that the state of the mind of the assured 45454v. as only material for the purpose of destroying

his life....

It has been argued, on the part of the Plaintiff, that as the very object of a life insurance is to secure a provision for a surviving family against the

fatal consequences of decease in the assured, if the act occasioning the death can be traced as the result of deceased mind, the case comes within

the main scope a id object of the contract of insurance. This argument would have been unanswerable if the policy had been wholly silent on the

subject as in the case of the Amicable Life Insurance Co. v. Bolland 4 (sic) N.S. 19(sic) or if the proviso had been couched in terms pointed only

to acts resulting from a criminal intention: but the very object of a proviso like the present, is to take out of the operation of the general terms of the

policy, death resulting from causes which would otherwise fall within the general scope of the contract, although, exabundanti caustela, it also

includes cases which the law itself would exempt, as those of criminal suicide, and death by sentence of the law or dealing. As there is nothing,

therefore, in the words now under examination, taken in their ordinary grammatical sense, either when considered alone or with reference to the

nature and object of the contract of insurance, that requires that they should be limited to acts resulting from criminal intention, I am of opinion that

they ought not to be confined, unless from the contract it plainly appears that it Was the intention of the parties so to limit and qualify them (Dufaur

v. Professional so Life, White v. Britts Empire (1968) L.R. 7 Eq. 394, Schwambe v. Clift reversed on appeal Clift v. Schwambe 3 C.B. 437. A

policy is not rendered void by suicide of the assured while in state of insanity. Horn v. Anglo-Australian 30 L.J. Ch. 511, White v. British Empires

38 L.J. Ch. 53.

74. An insurance police provided that:

Unless it is otherwise provided in the schedule, this policy is free from all restrictions as to residence, travel and occupation and subject to enclosed

conditions is indisputable.

Clause (4) of the conditions provided:

If the life or any one of the lives assured shall die by his own hand, whether sane or insane, within one year from the commencement of the

assurance, the policy shall be void as against any person claiming the amount hereby assured or any part thereof with an exception in favor of any

bona fined interest acquired by a third party before such death. R, the holder of the policy, shot himself while insane. The policies were more than

one year old by that time and until death the premiums were regularly paid. R''s personal representatives claimed the amount due under the policies

and the main defense was that as R died by his own hand, the policies became void. Swift, J., held that while the law would not enforce a contract

entered into in contemplation of a man committing a felonious act, there was no reason ""why when a perfectly legal contract had been entered into

and had been observed by the parties for many years, one party to it should escape the liability which fell on him by alleging that the other had

terminated it in an illegal manner when he had stipulated as part of the consideration for the bargain that he would not dispute it except for the

particular reason none of which had occurred"" and there was nothing contrary to public policy in holding the insurance company should pay having

regard to all the circumstances of these policies. Held, on appeal that however absolute in terms the policy might be the court in its inherent

jurisdiction will not enforce it as it is illegal and contract to public policy, The fact that the claim is made by an administrator appointed by the court

does not make any difference, for it is a promise to pay to the assured only, and can be enforced, if at all, by the personal representation as such

and not in her own right. If the assured had taken his life insane, the fact would not be constituted a defense, as the act of an insane person is not in

law his own act. But suicide when sane in by English Law a felony Beresford v. Royal Insurance [1937] 2 K.B. 197.

75. In America it seems settled that if a sane person accidentally or by mistake, does any act which causes his death it is not with in the exception

of a proviso that the policy shall be void if the insured did by his own hands sane or insane voluntary or otherwise. In Pinfold v. Universal Life Ins.

Co. 39 Am Rep. 660, the Court of Appeals of New York said:

The ordinary clause in life policies, that the insurer shall not be liable in case the person whose life is insured shall died by his own hand or act, has

been repeatedly the subject of judicial construction and it is now will settled that it is not to be construed as comprehending every possible case in

which life is taken by the party''s acts and that an unintentional or accidental taking of one''s own life is not within the meaning of the clause. The

taking of one''s own life, not accidentally, but under the influence of insanity, has also been determined not to be a violation of the condition, but

there has been difference of opinion as to the degree or character of the insanity which exempts from the operation of the condition; some

authorities holding that it must be such a degree of insanity as to deprive the part of knowledge of the nature and probable consequences of the act

which produced the death; others, adopting the rule of the criminal law, that he must have, been so far deprived of his reason as to become

unconscious of the moral obliquity of the act and later cases holding that, although possessed of sufficient reason to comprehend the consequences

of the act and the moral wrong which it involved, yet if the patient was driven to it by an insane impulse, produced by disease, which disabled him

from controlling his own actions, and the death resulted from that cause, the act was not voluntary and the condition was not violated. The question

in all cases of this character is the proper interpretation of a contract, and the point of inquiry is, what obligation the parties must, from the language

used with relation to the subject-matter and the circumstances, be reasonably supposed to have intended to assume. The clause against suicide is

clearly intended to protect the insurance company against the fraudulent acts of the insured, whereby he may, even at the sacrifice of his own life,

secure a benefit to those whom he may desire to favor, at the expense of the insurance company. But as has already been said, it has been held

from the earliest days that a suicide committed in consequence of insanity was not within the meaning of the condition, although within its literal

terms. The decisions establishing, this doctrine were placed upon the ground that the death, though apparently caused by the act of the party, was

not so caused in contemplation of law, because his mind did not concur in the act, his mental organs having been so diseased as to cease to control

his actions, or to guide them in accordance with reasons.... The insurance was intended to cover the risk of premature death, which might result

from any of the causalities to which human life is subject-self-destruction being expected. A purely accidental act, committed by a sane person,

with no idea of injuring himself, cannot be regarded as an act of self-destruction within the meaning of such a contract.

76. If a same person deliberately takes his own life it has been contended that it is such a fraud upon the insurers as to preclude recovery on the

contract. In some cases it has been held that unless it is so stipulated in the policy, suicide is no defense (Campbell v. Supreme Conclave 66 N.L.J.

274) The question, however, has now been settled by a decision of the Supreme Court of the United States, in which the Court said;

It is contended that the court erred in say in to the jury as, in effect it did, that intentional self-destruction, the assured being of sound mind, is in

itself a defense to an action upon a life policy, even if such policy does not in express words declare that it shall be void in the event of self-

destruction when the assured is in sound mind. But is it not an implied condition of such a policy, that the assured will not purposely, when in sound

mind, take his own life, but will leave the event of his death to depend upon some cause other than a willful, deliberate self-destruction? Looking at

the nature and object of life Insurance, can it be supposed to be within the contemplation of either party to the contract that the company shall be

liable upon its promise to pay, where the assured, in sound mind, by destroying his own life intentionally participates in the event upon the

happening of which such liability was to arise? Life insurance imports a mutual agreement, whereby the insurer, in consideration, of the payment by

the assured of a named sum annually, or at certain times, stipulates to pay a larger sum at the death of the assured. The company takes into

consideration among other things, the age and health of the parents and relatives of the applicant for insurance, together with his own age, source of

life, habits and present physical condition; and the premium exacted from the assured is determined by the probable duration of his life, calculated

upon the basis of past experience in the business of insurance. The results of that experience are disclosed by standard life and annuity tables

showing at any age the probable duration of life.... If a person should apply for a policy expressly providing that the company should pay the suns

named if or in the event the assured, at anytime daring the continuance of the contract, committed self-destruction being at the time of sound mind,

it is reasonably certain that the application would be instantly rejected. It is impossible to suppose that an application of that character would be

granted. If experience justifies this view, it would follow that a policy stipulating generally for the payment of the sum named in it upon the death of

the assured, should not be interpreted as intended to cover the event of death caused directly or intentionally by self-destruction while the assured

was in sound mind, but only death occurring in the ordinary course of life.... When the policy is silent as to suicide, it is to be taken that the subject

of the insurance (that is, the life of the assured) shall not be intentional and directly with whatever motive, destroyed by him when in sound mind. To

hold otherwise is to say that the occurrence of the event upon the happening of which the company under took to pay was intended to be left to his

option. That view is against the very essence of the contract. There is another consideration supporting the contention that death intentionally

caused by the act of the assured when in sound mind-the policy being silent as to suicide-is not to be deemed to have been within the

contemplation of the parties, that is, that a different view would attribute to them a purpose to make a contract that would not be enforced without

injury to the public. A contract, the tending of which is to endanger the public interest or injuriously affect the public good, or which is subversive of

sound morality, ought never to receive the sanction of a court. If justice, or be made the foundation of its judgment. If, therefore, a policy taken out

by the person whose life is insured, and in which the sum named is made payable to himself, his executors, administrators, or assignees expressly

provided for the payment of the sum stipulated when or if the assured, is in sound mind, took his own life the contract, even if not prohibited by

statute, would be held to be against public policy, in that it tempted or encouraged the assured to commit suicide in order to make provision for

those dependant upon him, or to whom he was indebted, Is the case any different in principle if such a policy is silent as to suicide, and the event

insured against-the death of the assured-is brought about by his willful, deliberated act, when in sound mind?.... There can be no doubt that if the

facts show that the insurance was taken out with the deliberate purpose of committing suicide such a fraudulent intent may be shown and if

sustained, is a perfected defense.

77. It is contended by Mr. M.R. Narayanaswamy, the learned Counsel for the Plaintiffs/Appellants that the Plaintiffs have examined as many as

seven independent witnesses apart from the first Plaintiff examining himself as P.W. 5 and the medical evidence tendered through P.W. 1-Dr.

Kalimuthu together with the contents of exhibit A-1 to A-15 would clearly establish the case of the Plaintiffs that they are entitled to the claim

amount as a result of the policies taken by the deceased on the death of the deceased Muthusamy. Exhibit A-13, dated 9th February, 1972 is the

extract from the Register of deaths in respect of Muthusamy. Exhibit A-15 is the death register of Alambadi village for the year 1965. It is relevant

in this connection to note that P.W. 2-Sivanmalai Gounder categorically states in his evidence that he did not go to the clinic of Dr. Srinivasan at

Kanngayam on the day of the death of the deceased Muthusamy and took in the Jutka. He came to know of the death of the decreased

Muthusamy only on the next day of the death of Muthusamy in the evening. It is relevant in this connection to note that even in the chief-

examination P.W. 2 discloses the reason for D.W. 3-Govindaswami deposing against the first claimant. P.W. 5, and the other claimants in this

case. There was a Panchayat election in Kuppagoundanvalasu- A person who was related to D.W. 3 had stood against one swamiappa Gounder.

Ponnuswamy, brother-in-law of D.W. 3-Govindaswami opposed him in the election. For the said Ponnuswamy D.W.3-Govindaswami had

worked in the election. In that election for the rival candidates Swamiappa Gounder. the deceased Muthuswamy was an election agent. In the said

election, Ponnusamy Gounder won the seat. Therefore it is alleged that D.W. 3 has come forward to depose against the claimants under the

policies.

78. P.W. 3-A.P. Kumaraswamy was an insurance agent for about a year in Ardhanaripalayam. He was present during the cremation till the pyre

of the dead body of the deceased Muthusamy was lit. He deposed D.W. 12-Viswanthan, a Development Officer connected with the Defendant

was also present during the occasion. P.W. 3-Kumarasamy states that on the previous day to his death, the deceased Muthusamy met him at

about 1.30 p.m. and that he was with him till 5-30 or 6.00 p.m. During that tine he was playing cards with P.W. 3-Kumarasamy. At the time when

he left P.W. 3-Kumarasamy, the deceased was happy. Nothing incredible has been elicted in the cross-examination of P.W. 3 so as to discredit

his evidence regarding the vitai aspects of the health condition of the deceased or about his mental condition.

79. P.W. 4-Appukutti Gounder deposes that the deceased was not ill-treated by P.W. 5-Kolandaswam Gounder. He comprehensively deposes

about the various ceremonies that were performed before the dead body of the deceased was placed on the pyre and it was lit. His specific

evidence is that when the shirt was removed from the dead body of the deceased it could not be seen that there was any vomiting by the deceased

or there was any smell of folidol worn on the dead body of the deceased Merely on the ground that it is elected from the cross-examination of

P.W. 4-Appukutti Gounder that there was a case against him conducted at Thiruppur for his good conduct about four years prior to himself

deposing in the court below, his evidence cannot be rejected as unreliable or unacceptable, P.W. 5 has been accused of having some illicit intimacy

with the wife of the deceased Muthusamy. Merely on the ground that the deceased Muthusamy and his wife were also living in the same house of

P.W. 5, who is no other than the father of the deceased Muthusamy, it cannot be held that there was any illicit intimacy between the father-in-law

and the daughter-in-law as alleged on behalf of the Defendant. The specific evidence is that P.W. 1-Dr. Kalimuthu examined the deceased

Muthusamy and he gave injection in the hand and in the back of the deceased. It is relevant to note in this connection that his specific evidence that

the dead body of the deceased was only ceremated in the very same place where the dead body of the mother, father, grandfather, granddaughter

and the first wife of P.W. 5 were cremated. In other words, there was no different place was selected for cremation so as to create suspicion. The

dead body of the ancestors of the deceased were also reduced to ashes by fitting the pyre. They were not buried. P.W. 5 has specifically denied

that it was only due to the enmity, his enemies have foisted a false case against him saying that the deceased Muthusamy was taken from Natha-

kadayur by D.W. 1-Jakariah to the Hospital of Dr. Srinivasan, P.W. 5 has denied that the deceased had incurred debts by taking hand loans from

anyone. He has also specifically denied that for the purpose of cultivation done by his family at no point of time folidol was purchased. In the

strenuous cross-examination that had been done with respect to P.W. 5-Kolandaswami Gounder, it is to be stated that nothing useful for the

Defendant/Respondent herein has been elicited. Exhibit B-13 is the statement given by P.W. 5 to the police on 25th February, 1966. Exhibits B-

20 and B-21 are the proposal for insurance on his own life by the deceased Muthusamy and his personal statement respectively. Exhibit B-23 is

another proposal made by the deceased Muthusamy on 25th March, 1965. The statement given by P.W. 5 viz., Exhibit B-13 or Exhbit B-11

statement before the Special Police Establishment Circle Inspector by Govindan, Exhibit B-12 statement given before the Special Police

Establishment Circle Inspector by Jakriah on 25th February, 1966 and similarly other statement or confidential report prepared on these

statements and given by the Investigating Officer or any police report such as exhibit B-7, dated 16th March, 1966 or any opinion offered by the

Investigating Officer relating to the death of the deceased cannot be considered as substantial evidence especially when those statements recorded

by any Investigating Officer regarding the death of the deceased Muthusamy was undertaken after a long interval had been elapsed in between the

death of Muthusamy and the commencement of the police enquiry on the representation of the Officials of the Defendant/Respondent.

80. Exhibit B-2, dated 24th November, 1965 alleges that in order to obtain of Rs. 50,000 from the Defendant Respondent-corporation, P.W. 5

Kolandasami Gounder has concocted documents and created evidence. This allegation as well as other allegations made in exhibit B-2 are not

having any support in the evidence available on record. In exhibit B-13, P.W. 5, the first Plaintiff herein specifically states that the deceased died

due to heart failure. Even in his statement given to the Special Police Establishment Circle Inspector, exhibit B-60, P.W. 5 has stated that the

deceased died only due to heart failure It is only the father who can say the reason of the death of his son. Unless there is specific evidence contra

that too medical evidence available on record, this statement of P.W. 5 that the deceased died only due to heart failure cannot be brushed aside.

Exhibit A-12, P.W. 5, Kolandaswami Gounder has written to the Divisional Manager, Life Insurance Corporation, Coimbatore that it was a

matter for normal regret, that the attitude of the Divisional Manager of the Defendant/Respondent herein is not one of consideration but a planned

effort to reject his claim for which purpose, he has set in motion a force of an investigation agencies who have not hesitated to take him and others

to the Kangayam police station and obtained the signatures of statements within the walls of the police station in the presence of police officials. In

exhibit A-12, P.W. 5 has specifically alleged that the Divisional Manager of the Coimbatore Branch of the life Insurance Corporation of India

cannot stifle a civil claim by resorting to police aid and threat of criminal proceedings. In exhibit A-13 extract from the Register of Deaths of

Alambad village, Dharapuram taluk, Coimbatore district, it is mentioned that the cause of death of the deceased Muthusamy was to breathing

trouble. The statement recorded by a police officer on a petition by a complaint can only come under the purview of the statement recorded by the

provisions of Sections 161 and 162 of the Code of Criminal Procedure. They themselves cannot be taken as evidence. As a matter of fact, if the

statement u/s 161 of the Code of Criminal Procedure is signed by the person from whom the said statement had been recorded by a police

Officer, it becomes inadmissible in evidence. It is only a statement recorded by an Investigating Officer which does not bear the signature of the

person who gives the said statement so as to be used during the trial to confront the witness who goes back on the statement after treating the said

witness as hostile to prosecution by getting the permission of the Court. Therefore to contradict a witness regarding the statement given by him

earlier if he goes back on the statement given by him to an Investigating Officer, for a criminal trial, the said statements are used. In the instant case,

it is submitted that the statements taken from persons like D.W. 1 and others, were signed by the persons who gave the statement to the police

officer who made an enquiry at the request of the Officers of the Defendant/corporation.

81. D.W. 8 S. Ramanathan, Deputy Superintendent of Chingleput, who was then on deputation to the Central Buraeu of Investigation at Madias,

deposed that in 1965, he was deputed on a report sent by the Divisional Manager, Life Insurance Corporation, Coimbatore, to investigate into the

matter regarding the death claim on the life insurance policies held by the deceased Muthusamy, that exhibit B-4 is the report received in his office

and exhibit B-5, is the order deputing him for investigation into the complaint under exhibit B-4. Further it is in evidence that he went to Kangayam

and made his investigation and sent his first report, exhibit B-6 and after investigation, he sent the second report, exhibit B-7 also. He sent exhibits

B-6 and B-7 to his superior officers and on his reports, his superintendent had sent the reply, exhibit B-8 to the Life Insurance Corporation Office

at Coimbatore on 29th March 1968. Exhibit B-8 contains the signature of one Markin, who was the then Superintendent at that time, D.W. 8,

further stated that he had been to the Block Development Office in the course of his investigation. He seized exhibit B-9 receipt, dated 23rd July,

1965 for purchase of three tubes of parmar, an insecticide like folidol used for agricultural purposes issued in the name of one Muthusamy

Gounder, Maravappalayam and signed in Tamil. He took exhibit B-10 statement from the concerned clerk Nagap-pan written in his own hand for

having supplied the goods noted in exhibit P.9. He examined also one Govindasami and taken a statement from him. Exhibit B-11 is that statement.

In the course of his investigation, D.W. 8 tried to contact Kolanda-sami, the father of Muthusami and that P.W. 5 Kolandasami evaded to meet

him. D.W. 8 Ramanathan, Deputy Superintendent of Police, further deposed that one Sekar, who was another investigating Officer, and who had

come to the village had got the statements, exhibits B-12 and B-13 from Zakariahand Kolandasami respectively. Exhibits B-12 and B-13 have

been initialed by the investigating Officer, Sekar. In his cross-examination, D.W. 8 Ramanathan, the Deputy Superintendent of police, states that he

has written in exhibit B-9 that the deceased Muthusamy had committed suicide because of intimacy between his wife and his father. D.W. 8 further

states in his evidence that he cannot reveal the source of that information, that he had not taken statements from persons to that effect regarding the

illicit intimacy. His further evidence is that he was so informed by a number of persons in the village of Kuppagoundan-valasu and at Kangayam

also. This unsatisfactory evidence relating to this aspect of the case goes a long way to hold that the cause of death of the deceased Muthusamy

that it was due to successful commission of offence of suicide is untrue. In his re-examination. D.W. 8 also stated that he did not contact the wife of

the deceased. This again shows that unnecessarily the chastity of wife of the deceased put to the severe test of infame at the instance of the

interested persons with ulterior motive.

82. The evidence of D.W. 9 Nagappan does not in any way help the Defendant to hold that under exhibit B-14 receipt three tubes of Parmer

insecticide were purchased by the deceased. D.W 9 the Junior Assistant in the Block Development Office categorically admits even in the chief-

examination that he did not know the deceased. It is also relevant to note that D.W. 15-Dr. Anantharaman has certified that the deceased was

having a first class life after having examined him on 30th March, 1965. He did not find anything defective in his heart Instead of helping the

Defendant, the evidence of D.W. 15 Dr. Anantharaman is more useful to the Plaintiff in upholding the case of the Plaintiffs that the deceased died

due to natural causes and not due to unnatural death by putting an end to his life by consuming poison. Merely on the ground that in exhibit-B-15

dated 8th October, 1965, the Branch Manager of the Divisional Office of the Defendant-corporation, Coimbatore, has stated that on enquiry that

almost all of them are of the opinion that the deceased committed suicide by taking folidol or parmar, that he contacted Dr. A.R. Srinivasan, D.W.

6. and that he informed him that on 24th July 1965, before noon, the deceased was brought in precarious condition and on examination he was

found to be having congestion of the lungs, ecdema of the face and dilation pupils. This evidence cannot afford sufficient material to held that the

deceased died due to consumption of poison.

83. The evidence of D.W. 12 Viswanathan shows that a statement has been made to him on 26th July, 1965 that the went, along with

Seetharaman to attend the funeral of he deceased Muthusami at Kuppagoundanvalasu. The evidence of D.W. 13-K.V. Subramaniam, Senior

Branch Magnager of the Defendant-corporation is that he contacted the owner of the cycle shop near Alambadi and that the cycle shop owner and

others in the place told him that the deceased Muthusami had taken folidol poison. Nothing but a statement given by him which does not in any

way help the Defendant. He made on another investigation regarding the cause of death of the deceased Muthusamy during November, 1965. A

careful perusal of the evidence of all the officials of the Defendant Insurance company examined in this case does not in any way show that the

policies were obtained on any concealment of facts by the deceased or suppression of facts by the deceased in the proposal form or that there was

any infirmity which would avoid the claimants under the policies issued to the deceased by the Defendant/corporation. The voluminous evidence

available oh record on the side of the Defendant do not establish the case of the Defendant that the deceased died due to successful commission of

the offence of suicide by consuming poison. Under these circumstances, the irresistible conclusion is that the deceased died only due to natural

causes and that the case of the Defendant as put forward in the written statement is not proved. On the other hand, by cogent convincing and

trustworthy evidence, both oral and documentary, the Plaintiffs have proved their claim. Therefore the suit has to be decreed as prayed for and is

decreed as prayed for.

84. In the result, the judgment and decree of the trial Court under appeal are reversed and set aside. The appeal is allowed with costs.

85. Ramanujam J.-This appeal has come before me on a difference of opinion between Mohan and Swamikkannu, JJ. before whom this appeal

came up for hearing at the first instance. The facts leading to the above appeal have been stated in detail in the judgment of Swamikkannu J., and it

is unnecessary for me to set them out in detail once again and it will suffice if the bare facts which led to the filing of the appeal are briefly stated for

the purpose of appreciating the question that arises for consideration in the appeal.

86. The Appellant''s son, one K.K. Muthusamy had insured his life with the Life Insurance Corporation of India under five policies taken between

18th February, 1964 and 23rd March, 1965 for an aggregate amount of Rs. 45,000. The said insured died on 24th July. 1965. After the death of

the assured the amounts due under various policies became payable to the respective nominees. When the nominees made a claim, the Life

Insurance Corporation disowned liability on the ground that the deceased Muthusamy had committed suicide, that it is not a normal death, and that

therefore, under the terms of the Policies, the insured amounts are not payable. Because of the said refusal, the Plaintiffs who are the nominees in

one or the other of the five policies, filed original Suit No. 236 of 1966, on the file of the Sub-Court, Coimbatore which had been dismissed by

that Court upholding the defense taken by the Life insurance Corporation that the insured had committed suicide, and therefore, the insurance

amounts are not payable under the terms of the policies.

87. Against the dismissal of the suit by the lower Court, the present appeal has been filed. This appeal was heard by the Bench consisting of

Mohan and Swamikkannu, JJ., at the first instance. Mohan J., held that the death of the insured has been established to be one of suicide, and

therefore, the Insurance Company can avoid its liability under the terms of the policy, while Swamikkannu J., has held that the Defendant''s plea of

suicide by the insured has not been established, and therefore, the insurance amounts are payable under the terms of the policies. It is because of

this difference of opinion, this matter had been posted before me for hearing u/s 98(2) of the CPC on the question as to:

whether the deceased Muthusamy committed suicide or it is a natural death?

88. There is no dispute between the parties that if the death of the insured Muthusamy was due to suicide, then the Defendant/Life Insurance

Corporation is not liable to pay the, amounts under the terms of the policy. As a matter of fact that is the only defense taken by the Defendant in

the suit.

89. The evidence in the case admittedly discloses that Muthusamy was a healthy man and was 29 years old when he died, and that he was an

L.I.C. Agent doing a good volume of business. The evidence also discloses that the first Plaintiff, the father of deceased Muthusamy was quite

affluent and the deceased had also married in a rich and affluent family. In those circumstances, one would expect a strong and sufficient motive for

the deceased to commit suicide. The onus of proving that the deceased had committed suicide is on the Defendant/Life Insurance Corporation

which seeks to avoid the liability under the policies. If it fails to conclusively prove the defense of suicide, it cannot avoid the liability under the

policies, and it is not enough to throw some doubt that the deceased would not have had a natural death. Even if the death is unnatural, the

Defendant cannot avoid its liability unless it is shown to be a suicide. It is in the light of this position, the evidence in this case, both oral and

documentary, has to be analysed.

90. At the stage of the trial, the Defendant relied on the following facts and circumstances for establishing suicide. The death occurred on 24th July,

1965 and the claim was made only in December, 1965. A delay of five months in preferring the claim has not been properly explained by the

Plaintiffs. In relation to the cause of death, the Plaintiffs have given varying versions. In exhibit A-13, the extract from the Register of Deaths, the

cause of death is shown to be disease in respiratory system, while in exhibit B-13, the statement made by the father, the first Plaintiff, before the

police on 25th February, 1966 was that the deceased died of heart failure. In exhibit B-50, while answering the questionnaire form attached to the

claim, he has stated that the immediate cause of death was not known. If it is a case of natural death, there cannot be such variations as to the

cause and nature of death. Apart from this discrepancy as to the cause of death found in the evidence adduced on the side of the Plaintiffs, there is

proof of purchase of parmar an equally powerful poison like folidol by the deceased, a day prior to the date of death, and this will go to show that

the deceased committed suicide by taking a poisonous substance such as folidol. There is also considerable discrepancy in the evidence of the

doctors, P.W. 1, D.W. 6 and D.W. 15 who had been examined in this case, and this will show that the death may not be due to natural causes.

Even the evidence of the doctor P.W. 1 was that the symptoms found on the deceased by him are symptoms of poisoning. D.W. 1 Jakriah who

brought the deceased to the doctor D.W. 6 in an unconscious state has said that the deceased smelt of folidol and D.W. 5 who accompanied

D.W. 1 has said that the deceased vomited and there was smell of folidol. The evidence of D.W. 1 and D.W. 5 would clearly establish that the

deceased had consumed folidol which ultimately resulted in his death.

91. It is also pointed out by the Defendant that there was considerable motive for the deceased to commit suicide. The father of the deceased was

always keeping him under his thumb. The deceased was also in financial difficulties. The first Plaintiff is also shown to have had illicit intimacy with

his daughter-in-law the wife of the deceased. The evidence of D.W. 1 indicates that the deceased had attempted to commit suicide at an earlier

stage. It is also pointed out by the Defendant that the wife of the deceased who is said to have been attending on him just before his death as

spoken to by P.W. 5 has not been examined, and the non-examination of the wife of the deceased would go a long way to prove that the

deceased only committed suicide and did not have a natural death.

92. After a close analysis of the evidence adduced on behalf of the Defendant it is not possible to hold that the death of Muthusamy was due to

suicide. In this case, the evidence of P.Ws. 2 to 5 has been rejected by the lower Court on the ground that they are interested in the first Plaintiff.

P.Ws. 2 and 4 are said to be related to P.W. 5, P.W. 3 is said to be close friend of the deceased and P.W. 5 is said to be related to P.W. 1. The

evidence of these witnesses and P.W. 1 is to the effect that the deceased had a natural death and that he did not commit suicide. Even accepting

the finding of the court below that the evidence of P.Ws. 1 to 5 is interested and therefore their evidence has to be eschewed on the ground of

interestedness, still it will not go to prove the Defendant''s case that the deceased had committed suicide and did not have a natural death. This

leads to the necessity of considering the evidence adduced on the side of the Defendant. The inconsistency in the oral evidence adduced on the

side of the Plaintiff and also the documents as to the cause and natural of death will not straightaway prove the case of the Defendant that the death

was due to suicide. Even if the evidence adduced on the side of the Plaintiffs does hot establish that the deceased did not have a natural death, it

will not straightaway prove the Defendant''s case that the death was due to suicide. The Defendant, who has to establish the factum of suicide with

a view to avoid its liability under the insurance policies, has to positively establish that the death was suicidal. The evidence adduced on the since of

the Defendant in this regard relates to three aspects, (1) the motive for the deceased to commit suicide; (2) the purchase and consumption of

folidol by the deceased and (3) the poisonous symptoms found by the doctors at or about the time of his death.

93. To establish motive, the Defendant relied on four circumstances. One is that the deceased was kept under the thumb of P.W. 1 and that he

was not allowed to act independently; secondly, the deceased was under financial difficulties; thirdly the deceased found the first Plaintiff to be in

illicit intimacy with his wife; fourthly, the deceased himself had allowed the policy taken in the name of his wife to lapse showing his disaffection

towards her in view of her illicit intimacy with his father; and fifthly, there was an earlier attempt on the part of the deceased to commit suicide.

94. Assuming that the deceased was kept under P.W. 1''s thumb, that cannot be taken to be a sufficient motive for committing suicide. As a matter

of fact, the deceased was an insurance agent and he was having a considerable volume of business. Even if it is assumed that the deceased was not

given a free hand by the first Plaintiff in the family affairs; that cannot be taken to be a motive for the son to commit suicide. Even as regards the

alleged financial difficulties, it is seen that the deceased was not under such a financial difficulty as to drive him to commit suicide. No doubt, the

evidence discloses that two small amounts of less than Rs. 1,000 were said to be due to some third parties But, having regard to the fact that he

had a lucrative insurance business as an insurance agent, he could not be expected to have committed suicide because of his liability to discharge

such small amount of debts due to third parties.

95. So far as the motive based on the illicit intimacy between his wife and his father is concerned, it is said to be proved by exhibit B-6, the

confidential investigation report of the police wherein it has been said that an enquiry in the village, revea that there was illicit intimacy between the

wife of the deceased and his father. But even assuming that exhibit B-6, report submitted by the police, can be taken to be a relevant fact, it cannot

be taken to be a substantive evidence. Exhibit B-6 only represent an impression gathered by the police officer on the enquiries made by him in the

village and that cannot be taken to be conclusive evidence to prove that there was illicit intimacy between the wife of the deceased and his father.

Apart from the solitary documents exhibit B-6, there is no other evidence to show that there was actually illicit intimacy between the wife of the

deceased and his father and that it drove the deceased to such a mental state as to commit suicide.

96. Regarding the allegation of the deceased''s disaffection towards his wife, that is said to be proved by his allowing a policy taken in the name of

his wife of lapse. I do not see how the allowing of the wife''s policy to lapse will indicate that the deceased did not, like his wife because of her

alleged illicit intimacy with his father. The allowing of the policy of lapse may be due to so many factors and therefore, it is not possible to say that

there was no cordial relationship between the decease and his wife because of the alleged illicit intimacy.

97. It is no doubt true, D.W. 1 has stated that the deceased had attempted to commit suicide at an earlier date. Apart from the ipse digit of D.W.

1 there is no other convincing material to show that the deceased had attempted to commit suicide at an earlier date. Having regard to the fact that

for putting an end to one''s life there should be a very strong and compelling motive, and the motive for the deceased committing suicide suggested

by D.W. 1 does not appear to be so strong and compelling as to accept his statements that the deceased attempted to commit suicide, I find that

the various circumstances relied on by the Defendant as indicating the strong motive on the part of the deceased to commit suicide are not

acceptable.

98. On the question as to whether the deceased in fact purchased folidol from D.W. 9, D.W. 9, himself has stated that he will not be able to

identify the person who purchased it. The mere fact that D.W. 9 had sold folidol to some Muthusamy will not mean that it was the deceased who

purchased folidol. The actual bill for the purchase of folidol by the deceased has not been produced, and even the trial Court has found that the

factum of purchase of folidol has not been established in this case.

99. Then, the question is whether the alleged consumption of folidol by the deceased had been established. It is no doubt true D.W. 4, the owner

of the factory in whose premises the deceased was found lying unconscious and his employee D.W. 5 have stated that the deceased smelt folidol.

But the evidence of the said two witnesses is mutually contradictory, in that, while D.W. 4 says that when he enquired the deceased as to whether

he had consumed folidol he admitted having done so, D.W. 5 who was also said to be present with him on that occasion says that the deceased

did not answer the question of D.W. 4. Thus if there was no admission by the deceased then the opinion expressed by D.W. 4 and D.W. 5 that

the deceased smelt of folidol can be said to be based only on their impression and their evidence cannot be taken to be conclusive. The evidence

of D.W. 4 and D.W. 5 is not entitled to any weight especially when Dr. Srinivasan to whom the deceased is said to have been taken for treatment

immediately thereafter, does not say that the deceased either smelt folidol or any other poisonous substance. It is not in dispute that the evidence of

Dr. Srinivasan does not establish the Defendant''s claim that the deceased had consumed folidol. No doubt, the evidence of P.W. 1-Dr. Kalimuthu

is that he found on the deceased certain symptoms when he examined him. The Defendant claims that those symptoms are symptoms of poison,

and so, even according to the evidence of P.W. 1, the Defendant should be deemed to have consumed folidol. But, P.W. 1 does not say that the

symptoms which he found are exclusively those of poisoning. It is not, therefore, possible for me to held that P.W. 1 actually found symptoms of

poison when he examined the deceased. P.W. 1 who treated Muthusamy on 24th July, 1965 has issued a certificate exhibit B-54 stating that he

treated the deceased for an aliment called sub anchored hemorrhage. It has not been shown that the sub anchored hemorrhage was due to the

deceased consuming scpoison. It is no doubt true, P.W. 1 has stated that the symptoms found are also symptoms which are normally found in

poison cases. But, he does not say that these symptoms are exclusively found in poison cases. Therefore, the evidence of P.W. 1 cannot be taken

as conclusive to establish that the deceased had consumed folidol or any other poisonous substance.

100. It is then said that Dr. Srinivasan (D.W. 6) to whose clinic the deceased was taken by D.W. 1 has found him unconscious, pulse very feeble,

blood-pressure very low and congestion in the lungs. According to the Defendant, these are some of the symptoms found in poison consumption

cases. Merely, because these symptoms are some of those found in poison cases it cannot he taken that these symptoms such as unconsciousness,

feeble pulse low, blood-pressure and congestion in lungs will straightaway go to establish that the person concerned had consumed folidol or any

insecticide. In fact, D.W. 6 did not diagnose the case as one of consumption of poison. Having regard to the fact that the evidence adduced on the

side of the Defendant does not conclusively establish that the deceased had const used folidol, a poisonous substance, the Defendant cannot avoid

liability under the policies.

101. In this view of the matter, I have to agree with the conclusion arrived at by Swamikkannu J., and held that the Plaintiffs are entitled to succeed

in the suit. The appeal, is, therefore, allowed and the decree and judgment of the lower Court are set-aside, and the suit is decreed as prayed for

with costs against the Defendant. There will be no order as to costs in this appeal.

In view of the judgment of my learned brother Ramanujam J., in K.V. Kolandaiswami Gounder and three Ors. v. The Life Insurance Corporation

of India having its central Office at Bombay and Divisional Office at Coimbatore (Appeal No. 756 of 1977, dated 25th January, 1983) the appeal

will stand allowed. There will be no order as to costs.