Surinder Kaur vs Life Insurance Corporation Of ...
1993 Latest Caselaw 668 Del

JUDGMENT

V.B. Bansal, J.

(1) Mrs. Surinder Kaur, plaintiff has filed this suit against the Life Insurance Corporation of India for recovery of Rs. 1,28,800.00

(2) Briefly stated, averments made in the plaint are that the defendant, Life Insurance Corporation of India, was established under the Insurance Corporation Act and can sue and be sued in its name and is engaged in the business of life insurance. Mrs. Surinder Kaur is widow of late Mohan Singh. The aforesaid Mohan Singh got his life assured for a sum of Rs. 1 lakh for a term of 25 years, regarding which. Life Insurance Policy No. 50432319 was issued, which commenced on 28/3/1982 and was to mature on 28/3/2007. The premium was to be paid quarterly, payable on 28th of March, 28th of June, 28th of September and 28th of December of the each English calender month. Each Installment of premium was for Rs. 1,367.50 paise. Mrs. Surinder Kaur was appointed as a nominee in this insurance policy. The payments of the premiums used to be made by the plaintiff by way of issuing cheques from her account.

(3) Claim of the plaintiff has been that the premiums were paid as and when they became payable, i.e. on 28th of March, 1982; 28th of June, 1982; 28th of September 1982; 28th of December, 1982; 28th of March, 1983; 28th of June, 1983; 28th of September and 28th of December, 1983, for which, valid receipts had been issued by the defendant. It is claimed by the plaintiff that in the first week of January, 1984, having a glance on her saving bank account No. 1064, it was revealed that a sum. of Rs. 1,367.50 paise had not been withdrawn on the basis of a cheque, issued by her towards the payment of the premium of this policy, falling due on 28th of September, 1983. It has been claimed by the plaintiff, that no intimation was received either by her or by her husband regarding the non-encashment or dishonour of the cheque in respect of the aforesaid Installment, but another cheque bearing No. 129225, dated 15/1/1984 for Rs. 1,390.00 which included a sum of Rs. 22.50 as overdue late fee charges, was sent to the defendant, which was duly received in the office of the defendant.

(4) It is also pleaded that Shri Mohan Singh died on 5/4/1984 and the factum of death was communicated to the defendant on 16/4/1984. Further averment is made that the quarterly premium falling due on 28/3/1984 was not required to be paid since the assured died within the grace period of payment of premium. It is also claimed that the plaintiff lodged a death claim for Rs. 1 lakh besides other benefits under the policy, by way of filing the claim along with original policy bond, death certificate and photostat copy of the receipt for the payment of the premium due on 28/12/1983 with a covering note dated 24/4/1984. Further averments made in the plaint are that a letter dated 7/5/1984 was received by the plaintiff from the defendant to the effect that nothing was payable under the policy as it was lying lapsed since the cheque in payment of the premium due on 28/9/1983 bad been dishonoured and the plaintiff was advised to intimate if fresh payment had been made in lieu of the dishonoured cheque so that the matter could be examined further. It is also pleaded that another representation was sent to the defendant to which the reply was received reiterating the earlier stand of the defendant. Plaintiff has also claimed having made representations to the Finance Minister but the payment having not been made, as claimed by the plaintiff.

(5) It has also been pleaded by the plaintiff that in spite of writing many representations, the defendant has reiterated its old illegal, unjustified and false stand of policy having been lapsed as on the date of the death of the assured, and that a legal notice dated 20/9/1985 was sent to the defendant to which a reply dated 11/11/1985 has been received, in which, they have reiterated their illegal, unjustified and arbitrary stand. It has, thus, been pleaded that the plaintiff is entitled to recover a sum of Rs. 1 lakh as a sum insured, Rs. 20,000.00 as interest @ 12% p.a. from 5/4/1984 up to February, 1986 and Rs. 6,800.00 as bonus for two years, i.e. a total sum of Rs. 1,28,800.00, which amount has not been paid in spite of repeated demands and thus this suit.

(6) The suit has been contested by the defendant and written statement has been filed. It has, inter-alia, been pleaded that the factum of Mohan Singh having been assured for a sum of Rs. 1 lakh for a period of 25 years commencing from 28/3/1982, maturing on 28/3/2007 was admitted. The amount of quarterly premium to be Rs. 1,367.50 paise, payable on 28th of March, 28th of June, 28th of September and 28th of December every year was not disputed. It has, however, been claimed that the premium of Rs. 1,367.50 due on 28/9/1993 has not been paid by the assured or the plaintiff. It has further been pleaded that the plaintiff bad deposited a cheque for Rs. 1,367.50 paise, towards the premium due on 28/9/1983, with the defendant vide receipt dated 24/9/1983 in which, it was clearly mentioned that the receipt was subject to the encashment of cheque. It is further pleaded that the said cheque when presented to the bank, was dishonoured on the ground "referred to drawer". It is also claimed that though the defendant was not bound, but an intimation was given to the assured vide letter dated 20/10/1983 about the dishonouring of the cheque and that the receipt issued on 24/9/1983 stood cancelled. It is also claimed that the assured was requested to sen a fresh remittance of Rs. 1,368.50 paise on or before 24/11/1983 in lieu of the dishonoured cheque and the earlier dishonoured cheque was also returned to the assured Along with the letter dated 20/10/1983. It has.specifically been denied that the plaintiff, for the first time, came to know only in first week of January. 1984 about the dishonouring of the aforesaid cheque The defendant has denied that the plaintiff issued another cheque, dated 15/1/1984 for Rs. 1,390.00, as claimed by the plaintiff and no such cheque was received by the corporation from the deceased or from the plaintiff. It has further been pleaded that the payment of the said quarter due on 28/9/1983 having not been made, the policy stood lapsed at the time of the death of Mohan Singh and thus, nothing was payable to the plaintiff towards this policy. The receipt of the different representations has not been denied but it is claimed that the policy having already lapsed, nothing was due or payable to the plaintiff and so prayer has been made that the suit be dismissed.

(7) Plaintiff filed replication, controverting the averments in the written statement and reiterating the averments made in the plaint.

(8) Pleadings of the parties gave rise to the following issues, which were framed on 16/12/1986: 1.Was the Cheque No. 129223 for Rs. 1367.50 issued by the deceased from the account of the plaintiff not presented by the defendant to the bank and it was under these circumstances that the cheque remained unencashed? 2. Whether the defendant had informed the deceased about the alleged dishonour of the cheque in question in October, 1983 and whether the dishonoured cheque was returned to the deceased in October, 1983. 3. If the Issues Nos. (1) and (2) are decided in favor of the defendant, whether the policy stood lapsed with effect from September, 1963? 4. Did the acceptance of the premium due on 28/12/83 by the defendant bad the effect of saving the policy from being lapsed? 5. Was a notice calling upon the plaintiff to exercise his option required to be served by the defendant on the plaintiff? If so, what is the effect of the non-serving of such a notice on the plaintiff? 6. Whether the plaintiff has delivered the cheque No. 129225 dated 15/11/1984 along with the covering letter, copy of which is Annexure I to the plaint, to the defendant. If so, to what effect? 7. Relief.

(9) In support of her case, the plaintiff appeared as Public Witness 1 and examined Dharamvir Jain as Public Witness 2.Defendant has examined five witnesses namely D.W.1 Shri R.K. Maggon, D.W.2 Shri S.R. Dua, D.W.3 Shri Hari Om Aggarwal, D.W.4 Shri Dhirender Singh and D.W.5 Shri V.K. Suri.

(10) I have heard learned counsel for the parties and have also gone through the record and my conclusions are as under- issue No.1; 1.Was the Cheque No. 129223 for Rs. 1367.50 issued by the deceased from the account of the plaintiff not presented by the defendant to the bank and it was under these circumstances that the cheque remained unencashed?

(11) Learned counsel for the plaintiff has submitted that cheque No. 129223 dated 28/9/1983 for a sum of Rs. 1367.50 paise was issued from account of the plaintiff towards the premium of the policy in the name of Mohan Singh, husband of the plaintiff and that this cheque was intentionally not presented by the defendant So the bank and it was on this account that the cheque remained unencashed. It is pertinent to note that plaintiff had stated in the plaint that in the first week of January, 1984 on going to the bank and having a glance on her saving bank account, she found that an amount of Rs. 1367.50 paise had not been withdrawn against the encashment of the cheque, issued towards the Installment of the premium due on 28/9/1983. The plea taken up by the defendant, in the written statement, had been that the cheque was sent for collection, which was received back with an endorsement of "refer to drawer", meaning thereby that adequate funds were not available. It was thereafter, in the replication, that the plaintiff claimed that the cheque was not got encashed by the defendant-corporation and it was denied that the cheque towards the premium due on 28/9/1983 was dishonoured or bounced with the remarks, as alleged.

(12) In her statement as Public Witness 1, all that was claimed in the examination-in-chief was that neither she nor her husband received any information from the defendant that the cheque for the premium due on 28/9/83 was dishonoured. However, during cross- examination, she has admitted that it was possible that on 24/9/1983, the date on which she issued the aforesaid cheque, there may not have been sufficient amount in her account. She has also admitted that the aforesaid cheque dated 24/9/83, on presentation, was dishonoured by the bank for want of sufficient funds. The defendant has examined Raj Kumar Maggon, D.W.1, who brought the relevant record from the Union Bank of India, Shahdra branch, where he was posted and proved Ex.D.W.1/1, correct copy of account No. 1064 of Smt. Surinder Kaur. A perusal of this statement shows that the. balance in this account was much less than the amount of the cheque on 24/9/1983. He has also proved Ex. D.W.1/2, copy of the original book of the bank for 28/9/1983, showing that the cheque in question was sent to the bank concerned for collection and that it was returned with the remarks R/D i.e. "refer to drawer". It has also been stated by him that the memo Ex. D.W.1/3 was issued by Union Bank of India, Shahdra branch as the cheque was returned by the bank. He has also stated that when the sufficient amount is not available, the cheque is returned by writing "refer to drawer". This evidence, thus, makes it abundantly clear that the cheque in question was, in fact, presented to the bank for collection, but was returned as sufficient funds were not available. The plaintiff has, thus, not been able to prove this issue and the same is decided against the plaintiff. Issue Nos. 2, 5 and 6;

2.Whether the defendant had informed the deceased about the alleged dishonour of the cheque in question in October, 1983 and whether the dishonoured cheque was returned to the deceased in October, 1983? 5. Was a notice calling upon the plaintiff to exercise his option required to be served by the defendant on the plaintiff? If so, what is the effect of the non-serving of such a notice on the plaintiff? 6. Whether the plaintiff has delivered the cheque No. 129225 dated 15/1/1984 along with the covering letter, copy of which is Annexure I to the plaint, to the defendant. If so, to what effect?

(13) These three issues are inter-connected and thus, it would be convenient to discuss the same together.

(14) Learned counsel for the defendant has submitted that after the cheque was dishonoured and an intimation in this regard was received by the defendant, a letter was written to Mohan Singh deceased giving information about dishonour of the cheque and that he should remit the amount, mentioned in the letter and that the dishonoured cheque was also returned Along with the memo. He has also submitted that neither the letter nor the dishonoured cheque were received back by the defendant and, thus, it must be presumed that the same were delivered to the addressee. He has referred to the letter Mark-X in this regard. Learned counsel for the plaintiff has, on the other hand, submitted that no such letter was sent by the defendant to Mohan Singh, husband of the plaintiff, and the defendant has failed to prove the letter Mark X as required under the Evidence Act and this letter has been fabricated subsequently as this document shows that it was to be sent to the addressee by Registered Ad while even according to the case of the defendant, it was not sent by registered post. It would, thus, be necessary in the first instance to find out if there is sufficient evidence on record to hold that the letter Mark X has been proved. As already referred to while discussing issue No.1. cheque for sum of Rs. 1367.50 towards the premium, due on 28/9/1983 was sent to the bank for collection, however, it was returned to the defendant Along with memo Ex. D.W.1/3 with the remarks "refer to drawer" meaning thereby that sufficient funds were not available in the account of Smt. Surinder Kaur.

(15) D.W.3 Hari Om Aggarwal was working as Section Head, Accounts Department, Unit 126, 10 Darya Ganj, New Delhi office of the defendant, where the correspondence relating to the policy of Mohan Singh, husband of the plaintiff, was dealt with. He has clearly stated that after the receipt of Memo Ex. DW1/3 from the bank, letter dated 20/10/1983 was sent to the dispatch Section for onward transmission to Mohan Singh and that Mark X was the copy of that letter. He has also stated that Dhirender Singh, dispatch Clerk sent this letter by ordinary post. During cross-examination, he has denied that letter dated 20/10/1983 was not sent to Mohan Singh or that it was a forged one. He claimed having initiated the letter and so the copy Mark X. He has also denied that the cheque was not sent Along with the letter. He has also claimed that the dispatch Section was maintaining dispatch register and denied that he was making a false statement. He has also admitted that when such letters are sent to the dispatch Section, no acknowledgement was obtained from the dispatch section.

(16) DW4 Dhirender Singh has stated that he was posted as Receipt & dispatch Clerk in Unit No. 126, Darya Ganj, New Delhi office of the defendant, where receipt and dispatch register was regularly maintained. He has claimed that entries dated 22/10/1983 were correctly made by him in the said register and proved Ex. DW4/1. photocopy of said entries. He has also claimed that he was maintaining this register in the regular course of his business and that the entries in the column No.3 indicated the number of policy and that the letter mentioned at SLNo. 27 was sent by ordinary post as per the practice prevalent in those days. He has also stated that all the letters mentioned in the dispatch Register for 20/10/1983 were sent by ordinary mail. During cross-examination, he has claimed that the letters were actually sent by the Daftri under his supervision and did not remember what was sent in this letter addressed to Mohan Singh. This evidence in my view is sufficient to hold that letter, copy of which was prepared and sent to the deceased and the letter Mark X has been found on record which as such is being exhibited as Ex.DX.

(17) Learned counsel for the plaintiff has submitted that no such intimation was received by the plaintiff or her husband Mohan Singh, deceased, with regard to the cheque for a sum of Rs. 1,367.50 paise towards the premium payable on 28/9/83 hiving been dishonoured and that it was only in the month of January, 1984 .that the plaintiff bad gone to her bank and on checking up the account, found that there was an excess amount in her account and that the payment of the cheque towards the premium due on 28/9/83 has not been debited and that it was thereafter that she had sent a letter Along with a cheque towards the payment of the premium. He has, thus, submitted that in spite of the fact that there was no information by the defendant, the payment of the premium was made. Reliance in this regard has been placed upon the statement of Smt. Surinder Kaur, Public Witness 1.

(18) Learned counsel for the defendant has, on the other hand, submitted that this document is a fabricated one having not been sent to the defendant nor was it ever received by the defendant. He has also submitted that there is sufficient material available on record to prove that this document has subsequently been fabricated.

(19) Public Witness 1 Smt. Surinder Kaur, plaintiff, has stated that in January, 1984, she had gone to the Union Bank of India, Shahdra Branch to get pass-book completed, and learnt that excess amount was lying and the premium of the policy of her husband due on 28/9/1983 has not been deposited. She went on the state that she rang up Shri Dharamvir Jain, Insurance Agent, who obtained a cheque for about Rs. 1400.00 and prepared an application in duplicate on which, her signatures were obtained. She has claimed that Ex.PW1/1 was the copy of that application and its original was given by Dharamvir Jain to the defendant. She has also claimed that there is an endorsement with initials of the defendant on this application and that she had issued a cheque towards the premium due on 28/9/1983. She has admitted that the cheque was issued for sum of Rs. 1,390.00 instead of premium amount of Rs. 1367.50 as on number of occasions, cheques in lump-sum amounts are sent. She was however unable to state as to way the cheque was drawn for Rs. 1,390.00. She has claimed having gone through the contents of the letter Ex.PW1/1 before it was signed. She did not know when the letter and the cheque were deposited. She has denied that the letter along with her cheque was not deposited by Dharamvir Jain with the defendant. She was, however, unable to say if the rubber stamp on Ex.PW1/1 was not of the defendant and if it was forged one since it could be known to Dharamvir. She was unable to state if the initials appearing on Ex. Public Witness 1/1 were of any official of LIC. She claimed having learnt about the dishonour of the cheque dated 24/9/83 towards the payment of premium of Rs. 28/9/1983 only in Janrary, 1984. She has admitted having not asked for receipt for the cheque dated 25/1/1984 and denied that she was making a false statement.

(20) Dharamvir Jain, Public Witness 2 has claimed that he knew the plaintiff and her husband and that his wife was insurance agent from 1963 to 1980. He went on to state that on or about 14/1/1984 he went to the residence of the plaintiff and was told that she came to know from the bank that the cheque sent to the Lic towards the premium of her husband's policy for the quarter ending 28/9/83 as not been encashed and so she gave a cheque for Rs. 1,390.00, which included the late fee beside the premium and that he wrote letter and prepared its copy which were signed by Smt. Surinder Kaur. He went on to state that the original letter along with cheque were given by him to Dhirender Singh, Receipt Clerk of the defendant, who had put seal of the defendant and bids initials at point A on letter Ex.PW1/1. During cross-examination, he has admitted that he was working as a teacher in a corporation school and his wife Mrs. Sumitra Jain was an insurance agent. He has admitted that his son Sushil Jain is residing with him but did not know if his aforesaid son was also an insurance agent. He has admitted that he was helping his wife in her business as an agent of Lic and sometimes he used to go to the bank or to the office of the defendant to deliver cheques or letters He has admitted that in the letter Ex.PW1/1, it was mentioned that late fee should not be charged but at the same time, he had stated that the sum of Rs. 1,390.00 was inclusive of late fee charges to which, he replied that his statement made in court was not correct and whatever was mentioned in letter Ex.P.W.1/1 was correct. He has denied that this letter was not delivered by him in the office of the defendant and that the letter was not given to Dhirender Singh. He has also denied that this letter has been foraged between 30th May and 1st June, 1984. He did not know if it was necessary for revalidation of a lapsed policy to fill up challan to deposit the premium by cash. He did not know whether he bad some quarrel with Lic in 1976 and if his entry in the office of Lic was banned in that year. He did not know if agency of his wife was terminated on account of impersonation and could not give the reasons for terminating the agency of his wife by the defendant in 1980. He has admitted that after handing over the cheque Along with letter Ex.PW1/1 to the defendant, he made no enquiry as to whether cheque bad been encashed or not.

(21) Learned counsel for the plaintiff has submitted that the aforesaid evidence is sufficient to hold that no intimation was sent by the defendant about the cheque towards the premium due on 28/9/93 having been dishonoured and that the defendant has failed to account for this amount of the cheque and thus, there has not been any lapse on the part of the plaintiff while the dishonoured cheque bad not been returned to the plaintiff or her husband. Learned counsel for the defendant has, however, placed reliance on the statement of Dhirender Singh, DW4, A categorical statement has been made by Dhirender Singh that original of letter Ex. Public Witness 1/1 along with the cheque were not delivered to him and that Ex. Public Witness 1/1 does not bear his initials. During cross-examination, he has denied that a cheque was also received by him Along with the original of EX.PW1/ 1 and claimed that Ex. Public Witness 1/1 did not bear his initials. The case of the defendant from the beginning had been that the original of letter Ex. Public Witness 1/1 had not been delivered to the defendant and it did not have the initials of Dhirender Singh, Receipt Clerk. In spite of this denial, no other steps have been taken by the plaintiff to prove that the initials were of Dhirender Singh. Thus, it can not be said that this evidence would be sufficient to hold that the letter Ex. Public Witness 1/1 was delivered to the defendant in January, 1984 as claimed.

(22) The defendant has, on the other hand clearly proved that original of letter Mark X Along with the dishonoured cheque were dispatched to the plaintiff which were not received back and so a presumption can be drawn that these were delivered to the addressee Mohan Singh.

(23) The most important question for consideration is as to why this letter was signed by Surinder Kaur on 15/1/1984, the day on which her husband Mohan Singh was alive and it was a letter relating to the policy for the life of Mohan Singh. There has not been any plausible reply to this question. It is the admitted case of the parties that Mohan Singh died on 5/4/1984. An intimation in this regard was sent by the plaintiff to the branch office of Lic, Unit No. 126, New Delhi, vide letter dated 16/4/1984. The plaintiff has claimed that in continuation of letter dated 16/4/1984, she had written letter dated 24/4/1984 Ex.P-10 to the defendant staling therein that the claim form had not been issued by the defendant, but she could obtain the revised forms unofficially and submitted the same Along with all the formalities so that the amount of the policy could be paid to her. She bad also mentioned the details of the enclosures sent with the application, i.e. original policy bond, form No. 37883-3784 duly completed, original death certificate and copy of receipt for premium due in December, 1983. Letter dated 7/5/1984 Ex. P-14 was written by the defendant to the plaintiff in which it was stated that nothing was due under this policy since it was lying lapsed on account of the cheque for payment of premium due on 28/9/83 was dishonoured. The plaintiff was, however, asked to send information if fresh payment in lieu of the dishonoured cheque bad been made so that the matter could be examined further. Ex.P-15 is the letter dated 30/5/1984 sent by the plaintiff to the defendant, in which a request was made for payment of the death claim in respect of policy of her husband late Shri Mohan Singh regarding which papers had been submitted by her on 26/4/1984. It is pertinent to note that there has not been any reference in this letter to the fact about the payments of the amounts towards the premium due on 28/9/1983 regarding which letter Ex.P-14 had already been issued, receipt of which is admitted by the plaintiff. Ex.P-16 is another letter dated 1/6/1984 which is admitted by the plaintiff. It has clearly been mentioned in this letter also that nothing was due towards the policy of Mohan Singh deceased since it was lying lapsed due to the nonpayment of the premium payable on 28/9/83. It appears that it is only thereafter that letter dated 15/1/1984 is shown to have been sent to the defendant. As already referred to the defendant has denied the receipt of this letter and there is no material on record to show that this letter was actually delivered to the defendant on 16/1/1984. It is well known that man may lie but circumstances do not. If really this letter bad already been written by the plaintiff to the defendant on 15/1/1984, the natural conduct of the plaintiff would have been to make a mention about it in the letter dated 30/5/1984 Ex.P-15, when letter dated 7/5/1984 Ex.P-14 had already been received by her giving information that the policy stood lapsed on account of the non-payment of the premium due on 28/9/83. The only possible conclusion would be that this letter was not in existence and has been prepared subsequently with a view to show that the payment of this premium had been made during the life time of Mohan Singh so as to ensure that the policy gets revived. Statement of Dharam Vir Jin inspires no confidence and he cannot be relied upon. He has suppressed facts intentionally as to whether the agency of his wife was terminated on account of impersonation or on what account, it was terminated. He even did not know if his entry in the office of the defendant was banned in-1976. It appears that he came forward to help the plaintiff and in the process tried to create evidence.

(24) In view of my aforesaid discussion, I hold that the defendant had given information to Mohan Singh deceased about the dishonour of the cheque in question in October, 1983 when letter, copy of which is Ex. Dx was sent to the deceased enclosing therewith the dishonoured cheque also. The defendant has not been able to prove on record that cheque No. 129325 dated 15/1/1984 along with the covering letter, copy of which is Ex. Public Witness 1/1 was delivered to the defendant. Since it has been proved as a fact that information about the dishonour of cheque was given to the deceased, requiring him to deposit the amount along with interest, Issue No. 5 does not require any finding and in fact it does not arise. These issues are decided accordingly. Issue No.3: IF the Issues Nos. (1) and (2) are decided in favor of the defendant, whether the policy stood lapsed with effect from September, 1993?

(25) EX.P-11 is a copy of policy issued by the defendant in favor of Mohan Singh, deceased. Ex.D-1 is the original policy. This is an admitted document and so there is no controversy about the conditions and privileges referred therein which were agreed upon between the deceased and the defendant while issuing the insurance policy in favor of the deceased. Learned counsel for the defendant has submitted that the mode of payment of the premium is contained in Condition No.2, in Ex.D-1 and that the deceased having failed to pay the premium due on 28/9/83 during his life time, the policy stood lapsed. A perusal of the aforesaid condition shows that grace period of 30 days was allowed for payment of yearly, half-yearly or quarterly premium and 15 days for monthly prmium. It also contemplates that if death occurs within grace period and before the payment of the premium then due, the policy will still be valid and the sum assured paid after deduction of the said premium as also the unpaid premium, falling due before the next anniversary of the policy. Condition No. 3 deals with the revival of the discontinued policies. It contemplates that when the premium is not paid within the days of grace the policy lapses but it may be revived during th life time of the Life Assured, but within a period of 5 years from the date of the first unpaid premium together with interest at such rate as may be prevailing at the time of the payment but not exceeding 9% per annum compounding half-yearly. As held earlier, the premium due on 28/9/83 has not been paid by the deceased till his death. The policy bad lapsed after the expiry of the period of grace and was not got revived during the life time of Mohan Singh,deceased. It is, thus, clear that the policy stood lapsed after the expiry of 30 days from the due date i.e. 28/9/83. Accordingly, the issue is decided in favor of the defendant. Issue No.4: DID the acceptance of the premium due on 28/12/83 by the defendant had the effect of saving the policy from being lapsed?

(26) Learned counsel for the plaintiff has submitted that the deceased bad paid premium due on 28/12/83 regarding which, receipt Ex. P-8 was issued on 3/1/1984 and on account of acceptance of the premium due on 28/12/83, the policy of the life of the deceased was saved from being lapsed. Learned counsel for the defendant has, on the other band, submitted that the policy under the rules lapses on failure of the assured to make the payment within the period of grace period and it has to be got revived by making payments towards the premium, which remains unpaid along.with interest during the period provided in the conditions, mentioned in Ex. D-l. He has also submitted that the payment towards this premium has not been made at any time and thus, merely the fact of payment having been made for the premium which fell due on 28/12/83, cannot save the policy from being lapsed. I have carefully gone through the conditions and have no hesitation in holding that the payment of the premium due on 28/12/83 has not saved the policy from being lapsed. In fact, there was a automatically lapse of the policy in October, 1983. It is not disputed by the learned counsel for the plaintiff that the payment towards the premium due on 28/9/83 has not been made at all.

(27) Learned counsel for the plaintiff had submitted that the payment made vide receipt Ex.P-8 could be considered as the payment towards the premium due on 28/9/83. I am afraid, it was not permissible since the amount was sent by the deceased specifically towards the premium due on 28/12/83. However, even for the sake of argument, if this payment could be adjusted towards the premium due on 28/9/83 when the amount of interest was not even paid, the policy would again stand lapsed after the expiry of 30 days from 28/12/83. Considering all the facts, there can possibly be only one conclusion that the policy stood lapsed after the expiry of 30 days from 28/9/83. The issue is, thus, decided in favor of the defendant. Issue No.7;

(28) RELIEF.

(29) Learned counsel for the plaintiff has submitted that the deceased had paid seven Installments of premium each being for a sum of Rs. 1,367.50 paise and there could possibly be no justification for the defendant to retain this amount and that the plaintiff, who is the nominee of the deceased, is entitled to recover this amount Along with interest. It is not disputed that these premiums have been paid and the total amount comes to Rs. 9,572.50 paise. Reference, in this regard, can be made to the receipts Ex.P-1 to P-8. The short question for consideration is as to whether this amount could be claimed by the plaintiff. This question will have to be decided with reference to the conditions of the policy, which are specifically contained in the policy Ex.D-1 itself.

(30) Condition No.4 deals with the non-forfeiture regulations, which provides as to how much payment has to be made to the heirs/nominee of the life assured if he dies after having paid premium for at least three full years. In the instant case, Mohan Singh deceased was assured on 28/3/82 and the policy stood lapsed in September, 1983, which clearly shows that the premium had not been made for full period of three years. Condition No.5 contemplates that the policy shall be void and all money that has been paid in consequence thereof shall belong to the corporation. The only exception is the provisions contained in Section 45 of the Insurance Act, 1938. This provision is to the effect that the policy could not be called in question on ground of misstatement after two years. Provision of this condition is not attracted in this case and a combined reading of conditions 4 & 5 of the policy Ex.D-1 makes it abundantly clear that premium for full three years in respect of this policy had not been paid and there was a lapse on the part of the deceased in making the payment of the premium on account of which, it stood lapsed, and thus, the plaintiff is not entitled even to the amount, which was paid by the deceased towards this premium. It is unfortunate that the plaintiff cannot claim any amount towards the Policy Ex.D-1 on the life of her husband Mohan Singh deceased in spite of the fact that some payments were made by the deceased but no body can claim in this regard as it is on account of the contract entered into between Mohan Singh deceased and the defendant.

(31) As a result, the suit fails and is dismissed with costs.