[Cites 21, Cited by 0]
Kerala High Court
Life Insurance Corporation Of India vs Chandrika C.P on 31 January, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
WA No.2596 of 2025 1 2026:KER:7941
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
SATURDAY, THE 31ST DAY OF JANUARY 2026 / 11TH MAGHA, 1947
WA NO. 2596 OF 2025
AGAINST THE JUDGMENT DATED 23.08.2025 IN WP(C) NO.15902 OF
2025 OF HIGH COURT OF KERALA
APPELLANT(S)/RESPONDENTS 1 & 2:
1 LIFE INSURANCE CORPORATION OF INDIA
HEALTH INSURANCE DEPARTMENT,
REPRESENTED BY ITS MANAGER (HI/ CLAIMS),
DIVISIONAL OFFICE, JEEVAN PRAKASH,
KOVILAKATHUMPADAM, THRISSUR, PIN - 680022
2 THE BRANCH MANAGER
LIFE INSURANCE CORPORATION OF INDIA-77B,
AL-SULAITI TOWER, OTTUPURA,
WADAKKANCHERY BRANCH,
WADAKKANCHERY PO,
THRISSUR, PIN - 680590
BY ADV. SHRI.R.S.KALKURA
RESPONDENT(S)/PETITIONER & 3RD RESPONDENT:
1 CHANDRIKA C.P.
AGED 65 YEARS
W/O RAJAN, OLIPARAKKEL HOUSE,
P.O THOZHUPADAM, CHELAKKARA,
THRISSUR, PIN - 680586
2 INSURANCE OBMUDSMAN,
(STATES OF KERALA AND UNION TERRITORY OF (A)
LAKSHADWEEEP (B) MAHE- APART OF UNION TERRITORY OF
PUDUCHERRY) MG ROAD, ERNAKULAM,
KOCHI, PIN - 682011
WA No.2596 of 2025 2 2026:KER:7941
BY ADVS.
SHRI.SHYAM KRISHNAN
SHRI.N.B.SUNILNATH
SRI.GENS GEORGE ELAVINAMANNIL
SHRI.S.K.HARISH
OTHER PRESENT:
SRI. HARISH GOPINATH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2026,
THE COURT ON 31.01.2026 DELIVERED THE FOLLOWING:
WA No.2596 of 2025 3 2026:KER:7941
JUDGMENT "C.R."
Muralee Krishna S., J.
The respondents 1 and 2 in W.P(C)No.15902 of 2025 filed
this writ appeal under Section 5(i) of the Kerala High Court Act,
1958, challenging the judgment dated 23.08.2025 passed by the
learned Single Judge in that writ petition.
2. The 1st respondent-writ petitioner, who has been
working as an LIC agent, availed LIC Cancer Cover Policy bearing
No.317279794 for Rs.10 lakhs issued on 31.03.2022. To obtain
the aforesaid policy, she submitted Ext.R2(a) proposal form dated
31.03.2022 and in that proposal form, to the question as to
whether she had undergone any investigation in last six months,
like, Ultrasound (USG) body scan, MRI, CT scan, Cytology, Pap
smear, Mammogram, Colonoscopy, Biopsy, Blood tests,
Cancer/Tumor markers, she answered in negative. According to
the 1st respondent, she had undergone an Ultrasound Scan for
kidney stones in February 2022 at Daya General Hospital &
Speciality Surgical Centre, Thrissur, and she was under the bona
fide belief that the scan for kidney stones was not relevant for a
cancer policy, and accordingly she answered the aforesaid
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question in the negative. Ext.P2 Cancer Cover Policy was issued
to the 1st respondent with effect from 31.03.2022, along with the
covering letter dated 07.04.2022. In May 2023, she again suffered
abdominal pain and underwent a test at Daya General Hospital &
Speciality Surgical Centre, Thrissur, and on 17.05.2023, she was
diagnosed with cancer in the reproductive system, ovary.
Immediately, she was shifted to Lissie Hospital, Ernakulam, for a
second opinion and was confirmed with Carcinoma ovary-stage III
C on 19.05.2023. She was admitted in the Lissie Hospital on
31.05.2023 and had undergone chemotherapy, PARPI
maintenance therapy and surgery. After surgery, the 1 st
respondent submitted a claim under Ext.P2 policy with all previous
records, including medical records of the year 2022. But by Ext.P4
letter dated 28.07.2023, the 1st appellant informed the 1st
respondent that her claim was rejected for the reason that she
had suppressed the material facts while submitting the form, and
the money received by the Corporation under the policy stands
forfeited.
2.1. Aggrieved by Ext.P4 decision, the 1st respondent
approached the 2nd respondent Insurance Ombudsman with
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Ext.P5 complaint dated 04.10.2023. As directed by the 2nd
respondent, the 1st respondent submitted the details, such as the
written consent, the details of the policy, and also Ext.P6
certificate dated 21.10.2023 issued by Dr.Jaisankar P., a
Consultant Medical Oncologist, Lissie Hospital, Ernakulam.
However, by Ext.P7 order dated 07.06.2024, the 2nd respondent
dismissed the complaint of the 1st respondent, holding that the
decision of the 1st appellant rejecting her claim and holding the
termination of the policy as unexceptionable and therefore unable
to grant the relief sought. Being aggrieved, the 1st respondent filed
W.P.(C)No.15902 of 2025 before this Court under Article 226 of
the Constitution of India, seeking the following reliefs:
"(i) Issue a writ of certiorari or any other writ, order or
direction, calling for the records leading to, Exts.P4 and P7,
and quash Exts.P4 and P7;
(ii) Declare that the petitioner is entitled to all the benefits
under Ext.P2/policy;
(iii) Issue a writ of mandamus directing the 1st respondent
to provide all the benefits under Ext.P2/policy to the
petitioner."
3. In the writ petition, on behalf of the appellants, a
counter affidavit dated 24.04.2025 was filed opposing the reliefs
sought for and producing therewith Ext.R2(a) document. To that
WA No.2596 of 2025 6 2026:KER:7941
counter affidavit, the 1st respondent-writ petitioner filed a reply
affidavit dated 05.07.2025, producing therewith Exts.P8 to P11
documents. Thereafter, along with I.A.No.2 of 2025, the
appellants produced Ext.R2(b) document, which is the counter
statement filed by the appellants before the 2nd respondent
Insurance Ombudsman on 08.11.2023. After hearing both sides
and on appreciation of materials on record, the learned Single
Judge, by the impugned judgment dated 23.08.2025, allowed the
writ petition and directed the appellants to grant the 1st
respondent the entire benefits covered by Ext.P2 policy within one
month from the date of submission of the application in that
regard by her. Being aggrieved, the appellants are now before this
Court with the present writ appeal.
4. On 06.11.2025, when this writ appeal came up for
consideration, this Court admitted the same on file. The learned
counsel entered appearance for the 1st respondent-writ petitioner.
Service of notice on the 2nd respondent was dispensed with.
5. In the writ appeal the 1st respondent has filed I.A.No.1
of 2025 under Rule 150 of the Rules of High Court of Kerala, 1971,
seeking a direction to the Registrar General of this Court to take
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appropriate steps to file a complaint under Section 246 of
Bharatiya Nyaya Sanhita, 2023, ('BNS' for short) against the
appellants before a Magistrate of competent jurisdiction at
Ernakulam, and take all the steps necessary for prosecuting the
complaint. The 1st respondent has produced Annexure R1(b)
document by filing I.A.No.2 of 2025, quoting Rule 154 of the Rules
of High Court of Kerala, 1971.
6. Heard the appeal and the aforesaid interlocutory
applications, i.e., I.A.No.1 of 2025 and I.A.No.2 of 2025. The
learned counsel for the appellants would submit that the 1 st
respondent-writ petitioner is an insurance agent having more than
30 years of experience. In Ext.R2(a) proposal form under the
head, health details and medical information, to question No.ix,
under serial No.7, the 1st respondent answered in the negative.
Whereas, admittedly, she had undergone an ultrasound scan of
the renal system on 08.01.2022. From Ext.P11, summary of the
LIC plan 905:LIC's Cancer Cover, if the answer to question 7 (ix)
in the proposal form is 'yes', the proposal is to be referred to the
Central Office, and the decision has to be taken by the Central
Office as to whether the proposal has to be accepted or not. The
WA No.2596 of 2025 8 2026:KER:7941
LIC will conduct a detailed enquiry if the answer to any of the
aforesaid questions in serial No.7 of Ext.R2(a) is positive and
decide whether to accept the proposal or not. If the proposal is
rejected, then for submitting a fresh application, the applicant has
to wait for six months. The 1st respondent-writ petitioner
purposefully suppressed the ultrasound scan undergone by her on
08.01.2022. This suppression amounts to material suppression. In
support of his aforesaid arguments regarding the suppression of
material fact the learned counsel relied on the judgments of the
Apex Court in Reliance Life Insurance Company Ltd v.
Rekhaben Nareshbhai Rathod [(2019) 6 SCC 175], Satwant
Kaur Sandhu v. New India Assurance Company Limited
[(2009) 8 SCC 316] and Branch Manager, Bajaj Allianz Life
Insurance Company Ltd. V. Dalbir Kaur [(2021) 13 SCC
553].
7. The learned counsel for the 1st respondent would
submit that the ultrasound scan undergone by the 1 st respondent
is for the purpose of detection of kidney stone. In Ext.R2(a)
proposal form, relevant and irrelevant questions are clubbed by
the LIC. The ultrasound scan undergone by the 1st respondent for
WA No.2596 of 2025 9 2026:KER:7941
the detection of kidney stone is not at all material as far as the
proposal for cancer cover policy is concerned. How the detection
of kidney stone and cancer is connected is nowhere explained by
the appellants in its reply statement filed before the 2nd
respondent Ombudsman. It was by exercising the power under
Section 45 of the Insurance Act, 1938, the appellants rejected the
claim of the 1st respondent. However, the said Section deals with
life insurance, and whereas the policy availed by the 1 st
respondent is not a life insurance policy. Then, the provision that
can be relied on by the appellants is Section 17 of the Indian
Contract Act 1872. But to say that the non-mentioning of the
ultrasound scan undergone by the 1st respondent for kidney stone
detection as an active concealment of fact that amounts to fraud,
no sufficient pleading or material is placed by the appellants
before the learned Ombudsman or before this Court. By relying on
the explanation to Section 17 of the Indian Contract Act, 1872,
the learned counsel vehemently submitted that mere silence as to
the facts which are irrelevant, not likely to affect the willingness
of the person to enter into a contract, is not a fraud that entitles
the appellants to repudiate the contract. The 1st respondent has
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supplied all the relevant documents pertaining to the treatments
and the medical examinations previously undergone by her to the
appellants, at the time of meeting the claim.
7.1. As far as I.A.No.1 of 2025 filed by the 1st respondent is
concerned, the learned counsel further submitted that in the
counter affidavit dated 24.04.2025 filed by the appellants, it is
stated that the appellants conducted an investigation and enquiry
which revealed that the 1st respondent had previously consulted
at Daya Hospital, Thrissur, on 05.01.2022, for left upper quadrant
abdominal pain, followed by a review consultation on 08.01.2022
with Vita D3 Low. This is a false statement made by the appellants
since they have not conducted an investigation and enquiry, much
less produced any documents supporting their aforesaid claim.
Similarly, in ground X of the appeal memorandum, it is stated that
the appellants' investigation independently discovered such a
medical history of the 1st respondent, as corroborated by hospital
data. These statements made by the appellants will amount to
perjury. Similarly, the statement of the appellants in paragraph
13 of the counter affidavit that if Ext.P1 was disclosed along with
the proposal made by the 1st respondent, it would have been
WA No.2596 of 2025 11 2026:KER:7941
deferred for six months for representation thereafter, without
producing the norms applicable, is contrary to their contention
before the Ombudsman. This variance in the contentions of the
appellants is also a deliberate falsehood amounting to perjury.
Moreover, Ext.P11 summarising the underwriting norms
applicable to plan 905 does not provide for any deferral for six
months, rendering the contention of deferral also deliberately
false, amounting to perjury. The learned counsel pointed out that
to I.A.No.1 of 2025, the appellants have not filed any counter,
which will amount to acceptance of the contentions raised by the
1st respondent in the affidavit filed in support of the said
application. The learned counsel for the 1st respondent relied on
various judgments of the Apex Court such as, Mithoolal Nayak
v. Life Insurance Corporation of India [1962 KHC 520],
Rekhaben Nareshbhai Rathod [(2019) 6 SCC 175], Satwant
Kaur Sandhu [(2009) 8 SCC 316], Manmohan Nanda v.
United India Assurance Co.Ltd. [(2022) 4 SCC 582] and
James Kunjwal v. State of Uttarakhand [AIR 2024 SC 3965]
in support of his arguments.
8. In reply to the arguments of the learned counsel for
WA No.2596 of 2025 12 2026:KER:7941
the 1st respondent, the learned counsel for the appellants would
submit that Ext.P2 policy document issued by the 2 nd appellant
would show that Section 45 of the Insurance Act, 1938, was
mentioned as the provisions applicable to the policy offered to the
1st respondent and the said provisions are enclosed as Annexure
III with the policy document. Moreover, the applicability of Section
45 of the Insurance Act, 1938, is not in dispute before the
Ombudsman. In the instant case, the policy availed by the 1st
respondent is not a medical reimbursement policy, because the
sum assured is fixed amounts for minor and major cancer. The
sum assured is not the reimbursement of the cost of treatment,
but payment of a fixed amount. Therefore, the aforesaid argument
of the non-applicability of Section 45 of the Insurance Act, 1938,
advanced by the learned counsel for the 1st respondent, has no
merit. As far as the non-filing of counter to the perjury petition is
concerned, the learned counsel for the appellants submitted that
the present application i.e., I.A.No.1 of 2025 filed by the 1 st
respondent is not a petition that can be treated as a petition for
taking action for perjury, since the procedure of filing a petition
under Section 379 of Bharatiya Nagarik Suraksha Sanhitha, 2023,
WA No.2596 of 2025 13 2026:KER:7941
('BNSS' for short) which substituted Section 340 of Code of
Criminal Procedure, 1973 ('Cr.P.C' for short), is not followed. The
present petition is one filed quoting Rule 150 of the Rules of the
High Court of Kerala, 1971. To take action for perjury, the enquiry
contemplated under Section 215 of BNSS, corresponding to
Section 195 of Cr.P.C, is necessary. Therefore, the appellants did
not even file any counter to the aforesaid application, which is
liable to be dismissed in limine.
9. There are some admitted facts in this case. The 1st
respondent is an LIC agent having more than 30 years of
experience is not in dispute. She availed Ext.P2 LIC Cancer Cover
Policy from the 1st appellant on 07.04.2022 with coverage from
31.03.2022, by submitting Ext.R2(a) proposal dated 31.03.2022
is also admitted. It is also not in dispute that on 08.01.2022, the
1st respondent had undergone an ultrasound scan of the abdomen
and a blood test at Daya Hospital, Thrissur, and was issued with
Ext.P1 report of ultrasound scan-abdomen dated 08.01.2022. It is
also undisputed that in Ext.R2(a) proposal form, for question 7(ix)
regarding the investigation undergone by the 1st respondent in the
last six months, like ultrasound, etc, she answered in negative.
WA No.2596 of 2025 14 2026:KER:7941
Then the only question that remains is whether the aforesaid
answer given by the 1st respondent, contrary to the facts, will
amount to suppression of material fact that permits the appellants
to reject the claim of the 1st respondent based on Ext.P2 policy
document issued to her.
10. It is relevant to extract Section 45 of the Insurance Act,
1938, for a better appreciation of the right of the appellants to
reject the claim of the 1st respondent. The said Section reads thus:
"45. Policy not be called in question on ground of
misstatement after three years. --(1) No policy of life
insurance shall be called in question on any ground
whatsoever after the expiry of three years from the date of
the policy, i.e., from the date of issuance of the policy or the
date of commencement of risk or the date of revival of the
policy or the date of the rider to the policy, whichever is
later.
(2) A policy of life insurance may be called in question at
any time within three years from the date of issuance of the
policy or the date of commencement of risk or the date of
revival of the policy or the date of the rider to the policy,
whichever is later, on the ground of fraud:
Provided that the insurer shall have to communicate in
writing to the insured or the legal representatives or
nominees or assignees of the insured the grounds and
materials on which such decision is based.
Explanation I. --For the purposes of this sub-section, the
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expression "fraud" means any of the following acts
committed by the insured or by his agent, with intent to
deceive the insurer or to induce the insurer to issue a life
insurance policy: --
(a) the suggestion, as a fact of that which is not true and
which the insured does not believe to be true;
(b) the active concealment of a fact by the insured having
knowledge or belief of the fact;
(c) any other act fitted to deceive; and
(d) any such act or omission as the law specially declares to
be fraudulent.
Explanation II. --Mere silence as to facts likely to affect the
assessment of the risk by the insurer is not fraud, unless
the circumstances of the case are such that regard being
had to them, it is the duty of the insured or his agent
keeping silence, to speak, or unless his silence is, in itself,
equivalent to speak.
(3) Notwithstanding anything contained in sub-section (2),
no insurer shall repudiate a life insurance policy on the
ground of fraud if the insured can prove that the
misstatement of or suppression of a material fact was true
to the best of his knowledge and belief or that there was no
deliberate intention to suppress the fact or that such
misstatement of or suppression of a material fact are within
the knowledge of the insurer:
Provided that in case of fraud, the onus of disproving lies
upon the beneficiaries, in case the policyholder is not alive.
Explanation. --A person who solicits and negotiates a
contract of insurance shall be deemed for the purpose of the
WA No.2596 of 2025 16 2026:KER:7941
formation of the contract, to be the agent of the insurer.
(4) A policy of life insurance may be called in question at
any time within three years from the date of issuance of the
policy or the date of commencement of risk or the date of
revival of the policy or the date of the rider to the policy,
whichever is later, on the ground that any statement of or
suppression of a fact material to the expectancy of the life
of the insured was incorrectly made in the proposal or other
document on the basis of which the policy was issued or
revived or rider issued:
Provided that the insurer shall have to communicate in
writing to the insured or the legal representatives or
nominees or assignees of the insured the grounds and
materials on which such decision to repudiate the policy of
life insurance is based:
Provided further that in case of repudiation of the policy on
the ground of misstatement or suppression of a material
fact, and not on the ground of fraud, the premiums collected
on the policy till the date of repudiation shall be paid to the
insured or the legal representatives or nominees or
assignees of the insured within a period of ninety days from
the date of such repudiation.
Explanation. --For the purposes of this sub-section, the
misstatement of or suppression of fact shall not be
considered material unless it has a direct bearing on the risk
undertaken by the insurer, the onus is on the insurer to
show that had the insurer been aware of the said fact no life
insurance policy would have been issued to the insured.
(5) Nothing in this section shall prevent the insurer from
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calling for proof of age at any time if he is entitled to do so,
and no policy shall be deemed to be called in question
merely because the terms of the policy are adjusted on
subsequent proof that the age of the life insured was
incorrectly stated in the proposal."
(Underline supplied)
11. From Ext.P2 policy document itself, it can be gathered
that the provision applicable to the said policy issued to the 1 st
respondent is mentioned therein as Section 45 of the Insurance
Act, 1938. The current provisions of the same are enclosed as
Annexure III along with the said document. Though the learned
counsel for the 1st respondent vehemently argued that Section 45
of the Insurance Act is applicable only in the case of life insurance,
the said contention cannot be accepted in the instant case for the
simple reason that the policy issued to the 1st respondent is not a
medical reimbursement policy but it is a policy that offers a fixed
amount to her on detection of cancer. The applicability of Section
45 of the Insurance Act, 1938, which is mentioned in Ext.P2 policy
document, is not under challenge before the learned Ombudsman.
Moreover, the provision applicable to the repudiation of the
contract between the LIC and the 1st respondent is the provisions
contained in the Indian Contract Act 1872, regarding fraud, since
WA No.2596 of 2025 18 2026:KER:7941
under Section 45 of the Insurance Act, 1938, the repudiation can
be only on the ground of fraud, if the suppression from the part of
the insured is a material suppression.
12. In Rekhaben Nareshbhai Rathod [(2019) 6 SCC
175], the Apex Court considered the answer given in negative by
the insured in the proposal as to whether he was currently insured
for a cover of life insurance, critical illness or accident benefit,
when he already had such an insurance policy. While answering
the question of suppression of material fact or material
misrepresentation, the Apex Court held thus:
"26. Contracts of insurance are governed by the principle of
utmost good faith. The duty of mutual fair dealing requires
all parties to a contract to be fair and open with each other
to create and maintain trust between them. In a contract of
insurance, the insured can be expected to have information
of which she / he has knowledge. This justifies a duty of
good faith, leading to a positive duty of disclosure. The duty
of disclosure in insurance contracts was established in a
King's Bench decision in Carter v Boehm, (1766) 3 Burr
1905, where Lord Mansfield held thus:
"Insurance is a contract upon speculation. The
special facts, upon which the contingent chance
is to be computed, lie most commonly in the
knowledge of the insured only; the underwriter
trusts to his representation, and proceeds upon
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confidence that he does not keep back any
circumstance in his knowledge, to mislead the
under - writer into a belief that the circumstance
does not exist, and to induce him to estimate
the risque, as if it did not exist."
It is standard practice for the insurer to set out in the application
a series of specific questions regarding the applicant's health
history and other matters relevant to insurability. The object of
the proposal form is to gather information about a potential client,
allowing the insurer to get all information which is material to the
insurer to know in order to assess the risk and fix the premium
for each potential client. Proposal forms are a significant part of
the disclosure procedure and warrant accuracy of statements.
Utmost care must be exercised in filling the proposal form. In a
proposal form the applicant declares that she / he warrants truth.
The contractual duty so imposed is such that any suppression,
untruth or inaccuracy in the statement in the proposal form will
be considered as a breach of the duty of good faith and will render
the policy voidable by the insurer. The system of adequate
disclosure helps buyers and sellers of insurance policies to meet
at a common point and narrow down the gap of information
asymmetries. This allows the parties to serve their interests better
and understand the true extent of the contractual agreement. The
finding of a material misrepresentation or concealment in
insurance has a significant effect upon both the insured and the
insurer in the event of a dispute. The fact it would influence the
decision of a prudent insurer in deciding as to whether or not to
accept a risk is a material fact. As this Court held in Satwant
Kaur (supra) "there is a clear presumption that any information
WA No.2596 of 2025 20 2026:KER:7941
sought for in the proposal form is material for the purpose of
entering into a contract of insurance". Each representation or
statement may be material to the risk. The insurance company
may still offer insurance protection on altered terms.
27. In the present case, the insurer had sought information
with respect to previous insurance policies obtained by the
assured. The duty of full disclosure required that no
information of substance or of interest to the insurer be
omitted or concealed. Whether or not the insurer would
have issued a life insurance cover despite the earlier cover
of insurance is a decision which was required to be taken by
the insurer after duly considering all relevant facts and
circumstances. The disclosure of the earlier cover was
material to an assessment of the risk which was being
undertaken by the insurer. Prior to undertaking the risk, this
information could potentially allow the insurer to question
as to why the insured had in such a short span of time
obtained two different life insurance policies. Such a fact is
sufficient to put the insurer to enquiry."
(Underline supplied)
13. In Satwant Kaur Sandhu [(2009) 8 SCC 316], the
Apex Court, while considering the question of suppression of
material fact regarding the previous history of chronic renal
failure/diabetic nephropathy by the insured being a diabetic for
the past sixteen years, it was held thus:
"17. The term "material fact" is not defined in the Act and,
therefore, it has been understood and explained by the
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Courts in general terms to mean as any fact which would
influence the judgment of a prudent insurer in fixing the
premium or determining whether he would like to accept the
risk. Any fact which goes to the root of the Contract of
Insurance and has a bearing on the risk involved would be
"material".
18. As stated in Pollock and Mulla's Indian Contract and
Specific Relief Acts 'any fact the knowledge or ignorance of
which would materially influence an insurer in making the
contract or in estimating the degree and character of risks
in fixing the rate of premium is a material fact.'
19. In this regard, it would be apposite to make a reference
to Regulation 2(1)(d) of the Insurance Regulatory and
Development Authority (Protection of Policyholders'
Interests) Regulations, 2002, which explains the meaning of
term "material". The Regulation reads thus:
"2. Definitions.-- In these regulations, unless
the context otherwise requires,--
(a) xxxx xxxx xxxx
(b) xxxx xxxx xxxx
(c) x x xx xxxx xxxx
(d) "Proposal Form" means a form to be filled in
by the proposer for insurance, for furnishing all
material information required by the insurer in
respect of a risk, in order to enable the insurer
to decide whether to accept or decline, to
undertake the risk, and in the event of
acceptance of the risk, to determine the rates,
terms and conditions of a cover to be granted.
WA No.2596 of 2025 22 2026:KER:7941
Explanation: "Material" for the purpose of these
regulations shall mean and include all
important, essential and relevant information in
the context of underwriting the risk to be
covered by the insurer."
20. Thus, the Regulation also defines the word "material" to
mean and include all "important", "essential" and "relevant"
information in the context of guiding the insurer to decide
whether to undertake the risk or not.
21. The upshot of the entire discussion is that in a Contract
of Insurance, any fact which would influence the mind of a
prudent insurer in deciding whether to accept or not to
accept the risk is a "material fact". If the proposer has
knowledge of such fact, he is obliged to disclose it
particularly while answering questions in the proposal form.
Needless to emphasise that any inaccurate answer will
entitle the insurer to repudiate his liability because there is
clear presumption that any information sought for in the
proposal form is material for the purpose of entering into a
Contract of Insurance."
(Underline supplied)
14. In Dalbir Kaur [(2021) 13 SCC 553], the issue
before the Apex Court was that an answer given by the
proposer/insured indicating that he had not undergone any
medical treatment or hospitalisation and was not suffering from
any ailment or disease for availing a life insurance for Rs.8.50
lakhs. Whereas the insured was suffering from a stomach ailment
WA No.2596 of 2025 23 2026:KER:7941
and from vomiting of blood, and as a result of which he had been
availing of treatment at the hospital. The Apex Court in the said
judgment held thus:
"12. The decision of this Court in Sulbha Prakash
Motegaonkar vs Life Insurance Corporation of India,
which has been relied upon by the NCDRC, is clearly
distinguishable. In that case, the assured suffered a
myocardial infarction and succumbed to it. The claim was
repudiated by the insurance company on the ground that
there was a suppression of a pre - existing lumbar
spondilitis. It was in this background that this Court held
that the alleged concealment was of such a nature that
would not dis - entitle the deceased from getting his life
insured. In other words, the pre - existing ailment was
clearly unrelated to the cause of death. This Court had also
observed in its decision that the ailment concealed by the
deceased was not a life - threatening disease. This decision
must, therefore, be distinguished from the factual position
as it has emerged before this Court."
15. In Mithoolal Nayak [1962 KHC 520], the Apex Court
while considering the issues whether the policy issued in that
particular case was vitiated by fraudulent suppression of material
facts by the insured, whether the appellant therein had no
insurable interest in the life of the insured, whether the
respondent company therein had issued the policy with full
WA No.2596 of 2025 24 2026:KER:7941
knowledge of facts relating the health of the insured and also
whether in any event the appellant is entitled to refund of money
he had paid to the respondent company held as under:
"8. The three conditions for the application of the second
part of S.45 are-
(a) the statement must be on a material matter or must
suppress facts which it was material to disclose;
(b) the suppression must be fraudulently made by the policy
holder; and
(c) the policy holder must have known at the time of making
the statement that it was false or that it suppressed facts
which it was material to disclose.
The crucial question before us is whether these three
conditions were fulfilled in the present case. We think that
they were. We are unable to agree with the learned trial
Judge that the ailments for which Mahajan Deolal was
treated by Dr. Lakshmanan in September - October, 1943
were trivial or casual ailments. Nor do we think that Mahajan
Deolal was likely to forget in July, 1944 that he had been
treated by Dr. Lakshmanan for certain serious ailments only
a few months before that date. This brings us to a
consideration of the evidence of Dr. Lakshmanan. That
evidence is clear and unequivocal. Dr. Lakshmanan says
that Dr. Motilal Nayak brought the patient to him at
Jabalpur. We have already referred to the fact that Dr.
Motilal Nayak had himself made a false statement in his
friend's report dated July 17, 1944, when he said that he
had never heard that the insured had suffered from any
WA No.2596 of 2025 25 2026:KER:7941
illness. It is impossible to believe that Dr. Motilal Nayak
would not remember that he had himself taken the insured
to Jabalpur for treatment by Dr. Lakshmanan who was an
experienced consulting physician. Dr. Lakshmanan said that
when he first examined Mahajan Deolal on September 7,
1943 he found that his condition was serious as a result of
the impoverished condition of his blood, and that Mahajan
Deolal was suffering from anaemia, oedema of the feet,
diarrhoea and panting on exertion. The doctor asked for an
examination of the blood. The pathological report supported
the diagnosis that Mahajan Deolal was suffering from
secondary anaemia meaning thereby that anaemia was due
to lack of iron and malnutrition. Dr. Lakshmanan further
found that from the symptoms disclosed the disease was a
major one. Mahajan Deolal had also cardiac asthma which
was a symptom of anaemia and due to dilatation of heart.
Dr. Lakshmanan saw the patient again on September 9,
1943, and then again on September 16, 1943. On October
6, 1943, Mahajan Deolal himself went to Dr. Lakshmanan.
On that date Dr. Lakshmanan found that anaemia had very
greatly disappeared. In cross examination Dr. Lakshmanan
admitted that the anaemia, dilatation of heart and cardiac
asthma from which Mahajan Deolal was suffering
constituted a passing phase which might disappear by
treatment. He further admitted that he did not mention
cardiac asthma in his letter addressed to the respondent
company. We have given our very earnest consideration to
the evidence of Dr. Lakshmanan and we are unable to hold
that the ailments from which Mahajan Deolal was then
WA No.2596 of 2025 26 2026:KER:7941
suffering were either trivial or casual in nature. The ailments
were serious though amenable to treatment. Mahajan
Deolal's son gave evidence in the case and he said in his
evidence that though Dr. Lakshmanan prescribed some
medicine, his father did not take it. He further said that his
father was a strict vegetarian. This evidence was given by
the son with regard to what the doctor had said that he
prescribed fresh liver juice made at home according to his
directions three times a day. He also prescribed iron
sulphate in tablet form with plenty of water. The son further
said that during his stay at Jabalpur his father felt weakness,
though he used to move about freely and was never
confined to bed. The son tried to make it appear in his
evidence that his father was suffering from nothing serious.
Dr. Lakshmanan said in his evidence that his fees for visiting
a patient at Jabalpur were Rs. 16 per visit. We agree with
the High Court that if Mahajan Deolal was not suffering from
any serious ailment, he would not have been taken by his
physician, Dr. Motilal Nayak, from his village to Jabalpur nor
would he have consulted Dr. Lakshmanan, a consulting
physician of repute, for so many days on payment of Rs. 16
per visit. No doubt, Mahajan Deolal's son now tries to make
light of the illness of his father, but Dr. Lakshmanan's
evidence shows clearly enough that in September - October,
1943 Mahajan Deolal was suffering from a serious type of
anaemia for which he was treated by Dr. Lakshmanan.
Mahajan Deolal could not have forgotten in July, 1944 that
he was so treated only a few months earlier and
furthermore, Mahajan Deolal must have known that it was
WA No.2596 of 2025 27 2026:KER:7941
material to disclose this fact to the respondent company. In
his answers to the questions put to him he not only failed to
disclose what it was material for him to disclose, but he
made a false statement to the effect that he had not been
treated by any doctor for any such serious ailment as
anaemia or shortness of breath or asthma. In other words,
there was a deliberate suppression fraudulently made by
Mahajan Deolal. Fraud, according to S.17 of the Indian
Contract Act, 1872 (IX of 1872), means and includes inter
alia any of the following acts committed by a party to a
contract with intent to deceive another party or to induce
him to enter into a contract-
(1) the suggestion, as to a fact, of that which is not true by
one who does not believe it to be true; and
(2) the active concealment of a fact by one having
knowledge or belief of the fact. Judged by the standard laid
down in S.17, Mahajan Deolal was clearly guilty of a
fraudulent suppression of material facts when he made his
statements on July 16, 1944, statements which he must
have known were deliberately false. Therefore, we are in
agreement with the High Court in answering the first
question against the appellant".
16. In Rekhaben Nareshbhai Rathod [(2019) 6 SCC
175], the Apex Court, by referring to the judgment in Satwant
Kaur, held as under:
"22. In Satwant Kaur (supra) this Court considered a case
which arose from a decision of the NCDRC. The insurer had
repudiated a claim under a health insurance policy on the
WA No.2596 of 2025 28 2026:KER:7941
ground that the policy holder was suffering from chronic
diabetes and renal failure. This, according to the insurer,
was a material fact a non - disclosure of which in the
proposal form justified repudiation of the claim. S.45, which
applies to policies of life insurance, was not applicable since
the case related to a mediclaim policy. Justice D. K. Jain,
speaking for the Bench of two learned Judges, held:
"18. A mediclaim policy is a non - life insurance policy
meant to assure the policy - holder in respect of certain
expenses pertaining to injury, accidents or hospitalisations.
Nonetheless, it is a contract of insurance falling in the
category of contract uberrima fidei, meaning a contract of
utmost good faith on the part of the assured. Thus, it needs
little emphasis that when an information on a specific
aspect is asked for in the proposal form, an assured is
under a solemn obligation to make a true and full
disclosure of the information on the subject which is within
his knowledge. It is not for the proposer to determine
whether the information sought for is material for
the purpose of the policy or not. Of course, the
obligation to disclose extends only to facts which are
known to the applicant and not to what he ought to
have known. The obligation to disclose necessarily
depends upon the knowledge one possesses. His
opinion of the materiality of that knowledge is of no
moment. (See Joel v. Law Union & Crown Insurance Co.
[(1908) 2 KB 863 (CA)] )"
(Emphasis supplied)
In taking this view, the Court relied upon the earlier
decisions in United India Insurance Co Ltd v MKJ
Corporation, 1996 (6) SCC 428 and Modern Insulators
WA No.2596 of 2025 29 2026:KER:7941
Ltd. v. Oriental Insurance Co. Ltd., 2000 (2) SCC 734.
Adverting to the expression "material fact" this Court
explained it as:
"22. ... any fact which would influence the judgment of a
prudent insurer in fixing the premium or determining
whether he would like to accept the risk. Any fact which goes
to the root of the contract of insurance and has a bearing
on the risk involved would be "material".
In a situation which was not governed by S.45, this Court
applied the fundamental tenet of insurance law namely,
utmost good faith."
(Underline supplied)
17. In Manmohan Nanda [(2022) 4 SCC 582], the Apex
Court, while considering the issue as to what is material
suppression, held as under:
"32. Lord Mansfield in Carter v. Boehm, (1766) 3 Burr 1905
has summarised the principles necessitating disclosure by
the assured in the following words:
"Insurance is a contract of speculation. The special facts
upon which the contingent chance is to be computed lie
most commonly in the knowledge of the assured only; the
underwriter trusts to his representation, and proceeds upon
confidence that he does not keep back any circumstance in
his knowledge to mislead the underwriter into a belief that
the circumstance does not exist. The keeping back such
circumstance is a fraud, and therefore the policy is void.
Although the suppression should happen through mistake,
without any fraudulent intention, yet still the underwriter is
WA No.2596 of 2025 30 2026:KER:7941
deceived and the policy is void; because the risk run is really
different from the risk understood and intended to be run at
the time of the agreement. The policy would be equally void
against the underwriter if he concealed...Good faith forbids
either party, by concealing what he privately knows, to draw
the other into a bargain from his ignorance of the fact, and
his believing the contrary."
The aforesaid principles would apply having regard to the
nature of policy under consideration, as what is necessary
to be disclosed are "material facts" which phrase is not
definable as such, as the same would depend upon the
nature and extent of coverage of risk under a particular type
of policy. In simple terms, it could be understood that any
fact which has a bearing on the very foundation of the
contract of insurance and the risk to be covered under the
policy would be a "material fact".
33. Under the provisions of Insurance Regulatory and
Development Authority (Protection of Policyholders'
Interests) Regulations, 2002 the explanation to S.2(d)
defining "proposal form" throws light on what is the meaning
and content of "material." For an easy reference the
definition of "proposal form" along with the explanation
under the aforesaid Regulations has been extracted as
under:
"2. Definitions. - In these regulations, unless the context
otherwise requires -
(d) "Proposal Form" means a form to be filled in by the
proposer for insurance, for furnishing all material
information required by the insurer in respect of a risk, in
WA No.2596 of 2025 31 2026:KER:7941
order to enable the insurer to decide whether to accept or
decline, to undertake the risk, and in the event of
acceptance of the risk, to determine the rates, terms and
conditions of a cover to be granted.
Explanation. - "Material" for the purpose of these
regulations shall mean and include all important, essential
and relevant information in the context of underwriting the
risk to be covered by the insurer."
Thus, the Regulation also defines the word "material" to
mean and include all "important", "essential" and "relevant"
information in the context of guiding the insurer in deciding
whether to undertake the risk or not.
36. In relation to the duty of disclosure on the insured, any
fact which would influence the judgment of a prudent
insurer and not a particular insurer is a material fact.
The test is, whether, the circumstances in
question would influence the prudent insurer and not
whether it might influence him vide Reynolds v. Phoenix
Assurance Co. Ltd., (1978) 2 Lloyd's Rep. 440. Hence the
test is to be of a prudent insurer while issuing a policy of
insurance.
37. The basic test hinges on whether the mind of a prudent
insurer would be affected, either in deciding whether to take
the risk at all or in fixing the premium, by knowledge of a
particular fact if it had been disclosed. Therefore, the fact
must be one affecting the risk. If it has no bearing on the
risk it need not be disclosed and if it would do no more than
cause insurers to make inquiries delaying issue of the
insurance, it is not material if the result of the inquiries
WA No.2596 of 2025 32 2026:KER:7941
would have no effect on a prudent insurer.
38. Whether a fact is material will depend on the
circumstances, as proved by evidence, of the particular
case. It is for the Court to rule as a matter of law, whether,
a particular fact is capable of being material and to give
directions as to the test to be applied. Rules of universal
application are not therefore to be expected, but the
propositions set out in the following paragraphs are well
established:
(a) Any fact is material which leads to the inference, in the
circumstances of the particular case, that the subject matter
of insurance is not an ordinary risk, but is exceptionally
liable to be affected by the peril insured against. This is
referred to as the 'physical hazard".
(b) Any fact is material which leads to the inference that the
particular proposer is a person, or one of a class of persons,
whose proposal for insurance ought to be subjected at all or
accepted at a normal rate. This is usually referred to as the
'moral hazard'.
The materiality of a particular fact is determined by the
circumstances of each case and is a question of fact."
(Underline supplied)
18. In the instant case, the 1st respondent admittedly did
not disclose the ultrasound scan of the abdomen undergone by
her about two months prior to submitting Ext.R2(a) proposal form
for availing the cancer cover policy. As rightly argued by the
learned counsel for the appellants, as per Ext.P11 plan 905, if the
WA No.2596 of 2025 33 2026:KER:7941
answer to question 7(ix) in Ext.R2(a) is positive, then the decision
regarding the issuance of policy to the 1st respondent ought to
have been taken by the head office of the appellants. While going
through the judgments referred to supra, it can only be said that
the suppression made by the 1st respondent regarding the
previous medical history is a material suppression that entitles the
appellants to reject the claim by repudiating the contract of
insurance on the ground of fraud. The learned Single Judge failed
to consider these aspects in their proper perspective while
allowing the writ petition. Therefore, the impugned judgment of
the learned Single Judge is liable to be set aside.
19. Now coming to the interlocutory application, i.e.,
I.A.No.1 of 2025 filed by the 1st respondent is concerned, as
rightly pointed out during the course of arguments by the learned
counsel for the appellants that the said application is not one filed
under Section 379 of BNSS. It is relevant to extract Sections 379
and 215 of BNSS, which replaced Sections 340 and 195 of Cr.P.C.
The said Sections read thus:
"379. Procedure in cases mentioned in Section 215.-
(1) When, upon an application made to it in this behalf or
otherwise, any Court is of opinion that it is expedient in the
WA No.2596 of 2025 34 2026:KER:7941
interests of justice that an inquiry should be made into any
offence referred to in clause (b) of sub-section (1) of section
215, which appears to have been committed in or in relation
to a proceeding in that Court or, as the case may be, in
respect of a document produced or given in evidence in a
proceeding in that Court, such Court may, after such
preliminary inquiry, if any, as it thinks necessary,--
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having
jurisdiction;
(d) take sufficient security for the appearance of the
accused before such Magistrate, or if the alleged offence is
non-bailable and the Court thinks it necessary so to do, send
the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before
such Magistrate.
(2) The power conferred on a Court by sub-section (1) in
respect of an offence may, in any case where that Court has
neither made a complaint under sub-section (1) in respect
of that offence nor rejected an application for the making of
such complaint, be exercised by the Court to which such
former Court is subordinate within the meaning of sub-
section (4) of section 215.
(3) A complaint made under this section shall be signed,--
(a) where the Court making the complaint is a High Court,
by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court
or by such officer of the Court as the Court may authorise
WA No.2596 of 2025 35 2026:KER:7941
in writing in this behalf.
(4) In this section, "Court" has the same meaning as in
section 215.
215. Prosecution for contempt of lawful authority of
public servants, for offences against public justice
and for offences relating to documents given in
evidence.-(1) No Court shall take cognizance--
(a) (i) of any offence punishable under sections 206 to 223
(both inclusive but excluding section 209) of the Bhartiya
Nyaya Sanhita, 2023; or
(ii) of any abetment of, or attempt to commit, such offence,
or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate or of some other public servant
who is authorised by the concerned public servant so to do;
(b) (i) of any offence punishable under any of the following
sections of the Bhartiya Nyaya Sanhita, 2023, namely,
sections 229 to 233 (both inclusive), 236, 237, 242 to 248
(both inclusive) and 267, when such offence is alleged to
have been committed in, or in relation to, any proceeding in
any Court; or
(ii) of any offence described in sub-section (1) of section
336, or punishable under sub-section (2) of section 340 or
section 342 of the said Sanhita, when such offence is alleged
to have been committed in respect of a document produced
or given in evidence in a proceeding in any Court; or
(iii) of any criminal conspiracy to commit, or attempt to
WA No.2596 of 2025 36 2026:KER:7941
commit, or the abetment of, any offence specified in sub-
clause (i) or sub-clause (ii),
except on the complaint in writing of that Court or by such
officer of the Court as that Court may authorise in writing in
this behalf, or of some other Court to which that Court is
subordinate.
(2) Where a complaint has been made by a public servant
or by some other public servant who has been authorised to
do so by him under clause (a) of sub-section (1), any
authority to which he is administratively subordinate or who
has authorised such public servant, may, order the
withdrawal of the complaint and send a copy of such order
to the Court; and upon its receipt by the Court, no further
proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial
in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court" means
a Civil, Revenue or Criminal Court, and includes a tribunal
constituted by or under a Central or State Act if declared by
that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court
shall be deemed to be subordinate to the Court to which
appeals ordinarily lie from the appealable decrees or
sentences of such former Court, or in the case of a Civil
Court from whose decrees no appeal ordinarily lies, to the
Principal Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court is situate:
Provided that--
(a) where appeals lie to more than one Court, the Appellate
WA No.2596 of 2025 37 2026:KER:7941
Court of inferior jurisdiction shall be the Court to which such
Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court,
such Court shall be deemed to be subordinate to the Civil or
Revenue Court according to the nature of the case or
proceeding in connection with which the offence is alleged
to have been committed".
20. The above provisions in BNSS would show the
application for initiation of proceedings for perjury should be filed
under Section 379 of BNSS. On receipt of such an application, the
court has to conduct a preliminary enquiry to satisfy itself about
the commission of the offence and the necessity of making a
complaint. The Court has to record a finding to that effect before
making a complaint to the jurisdictional Magistrate.
21. In the instant case, apart from non-filing of a proper
application, on merits also we found that the contention regarding
perjury now raised by the 1st respondent is not sustainable. The
averments in the affidavit filed in support of I.A.No.1 of 2025
would show that the contention of the 1st respondent is that the
appellants have committed the offence under Section 227 of the
BNS, of giving false evidence, though the specific provision is not
quoted in the application or the affidavit. The said section
corresponds to Section 191 of the Indian Penal Code. The offence
WA No.2596 of 2025 38 2026:KER:7941
under Section 227 of Bharatiya Nyaya Sanhita, 2023 ('BNS' for
short), which is punishable under Section 229 of BNS, corresponds
to Section 193 of the Indian Penal Code.
22. Sections 227 and 229 of the BNS read thus:
"Section 227. Giving false evidence.- Whoever, being
legally bound by an oath or by an express provision of law
to state the truth, or being bound by law to make a
declaration upon any subject, makes any statement which
is false, and which he either knows or believes to be false or
does not believe to be true, is said to give false evidence.
Explanation 1.- A statement is within the meaning of
this section, whether it is made verbally or otherwise.
Explanation 2.- A false statement as to the belief of the
person attesting is within the meaning of this section, and a
person may be guilty of giving false evidence by stating that
he believes a thing which he does not believe, as well as by
stating that he knows a thing which he does not know.
Section 229. Punishment for false evidence.- (1)
Whoever intentionally gives false evidence in any stage of a
judicial proceeding, or fabricates false evidence for the
purpose of being used in any stage of a judicial proceeding,
shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also
be liable to fine which may extend to ten thousand rupees.
(2) Whoever intentionally gives or fabricates false evidence
in any case other than that referred to in sub-section (1),
shall be punished with imprisonment of either description
WA No.2596 of 2025 39 2026:KER:7941
for a term which may extend to three years, and shall also
be liable to fine which may extend to five thousand rupees.
Explanation 1.- A trial before a Court-martial is a judicial
proceeding.
Explanation 2.- An investigation directed by law preliminary
to a proceeding before a Court, is a stage of a judicial
proceeding, though that investigation may not take place
before a Court.
Illustration
A, in an enquiry before a Magistrate for the purpose of
ascertaining whether Z ought to be committed for trial,
makes on oath a statement which he knows to be false. As
this enquiry is a stage of a judicial proceeding, A has given
false evidence.
Explanation 3.- An investigation directed by a Court
according to law, and conducted under the authority of a
Court, is a stage of a judicial proceeding, though that
investigation may not take place before a Court.
Illustration
A, in an enquiry before an officer deputed by a Court to
ascertain on the spot the boundaries of land, makes on oath
a statement which he knows to be false. As this enquiry is a
stage of a judicial proceeding, A has given false evidence."
23. In James Kunjwal [AIR 2024 SC 3965], the Apex
Court, while considering the question of perjury, held thus:
"15. The three essential factors which can be said to be sine
qua non for the application of S.193 IPC as held in Bhima
Razu Prasad v. State Rep. by Deputy Supdt. of Police, CBI /
SPE / ACU - II, (2021 (19) SCC 25)are : -
WA No.2596 of 2025 40 2026:KER:7941
(1) false statement made on oath or in affidavits;
(2) that such statements be made in a judicial proceeding;
or
(3) such statement be made before an authority that has
been expressly deemed to be a 'Court'.
16. What we may conclude from a perusal of the above -
noticed judicial pronouncements is that: -
(i) The Court should be of the prima facie opinion that there
exists sufficient and reasonable ground to initiate
proceedings against the person who has allegedly made a
false statement(s);
(ii) Such proceedings should be initiated when doing the
same is "expedient in the interests of justice to punish the
delinquent" and not merely because of inaccuracy in
statements that may be innocent / immaterial;
(iii) There should be "deliberate falsehood on a matter of
substance";
(iv) The Court should be satisfied that there is a reasonable
foundation for the charge, with distinct evidence and not
mere suspicion;
(v) Proceedings should be initiated in exceptional
circumstances, for instance, when a party has perjured
themselves to beneficial orders from the Court.
17. The statement made by the appellant, that has been
deemed to be befitting the offence of giving false evidence
before the Court, which is known commonly as perjury, was
more in the nature of denial of the statements made in the
affidavits of the complainant herein.
18. We are of the view that, in the present facts, a denial
WA No.2596 of 2025 41 2026:KER:7941
simpliciter cannot meet the threshold, as described in the
judgments above, particularly when no malafide intention /
deliberate attempt can be understood from the statement
made by the appellant in the affidavit. As has already been
observed, mere suspicion or inaccurate statements do not
attract the offence under the Section. It cannot be disputed
that the statements made in the affidavit were only to state
his version of events and / or deny the version put forth by
the complainant".
(Underline supplied)
24. In Ashok Kumar Aggarwal v. Union of India [AIR
2014 SC 1020], the Apex Court held thus:
"10. In view of the above, law on the issue can be
summarised that in order to initiate prosecution for perjury,
the court must prima facie reach a conclusion after holding
preliminary inquiry that there has been a deliberate and
conscious effort to misguide the court and interfere in the
administration of justice. More so, it has to be seen whether
such a prosecution is necessary in the interest of justice.
The case is required to be decided in light of the aforesaid
settled legal proposition."
(Underline supplied)
25. It is trite that to initiate action for perjury, a false
statement should be made deliberately and intentionally. In the
instant case, the 1st respondent is alleging perjury on the part of
the appellants for the reason that the appellants stated in their
WA No.2596 of 2025 42 2026:KER:7941
reply statement that they conducted an independent investigation
regarding the previous medical history of the 1st respondent
without any material to support the same. But to say that the
appellants have given a false statement regarding the
independent investigation they claimed as conducted, there is no
material. It is only the assumptions of the 1st respondent that the
hospital authorities will not permit the appellants to view the
medical history of a patient since it will amount to a violation of
patient privacy. Similarly, the deferring of the representation of
the policy proposal for six months if the previous medical history
was disclosed by the 1st respondent, as contended by the
appellants, can only be considered as the decision of the
appellants, even without producing any supporting norms or
statutory provisions. In such circumstances, the aforesaid
statement of the appellants also cannot be termed as an
intentional giving of false evidence that comes under the offence
of perjury. Therefore, even on merits the 1st respondent has not
made out any sufficient ground to accept the contention that the
appellants have committed the offence of perjury by making some
statements in their reply statement. In such circumstances, we
WA No.2596 of 2025 43 2026:KER:7941
hold that I.A.No.1 of 2025 is also liable to be dismissed.
26. While coming to I.A.No.2 of 2025 filed by the 1 st
respondent to produce Annexure R1(b) laboratory report, the said
application is not filed under Order XLI Rule 27 of C.P.C, which is
the proper provision to produce an additional documentary
evidence in the appellate stage. Moreover, the said document is
irrelevant as far as this appeal is concerned. In such
circumstances, the said application is also liable to be dismissed.
Having considered the pleadings and materials on record and
the submissions made at the Bar as discussed above, this writ
appeal is allowed by setting aside the impugned judgment dated
23.08.2025 passed by the learned Single Judge in
W.P.(C)No.15902 of 2025 and the writ petition stands dismissed.
I.A.Nos.1 and 2 of 2025 filed by the 1st respondent stand
dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S.,JUDGE
nak
WA No.2596 of 2025 44 2026:KER:7941
APPENDIX OF WA NO. 2596 OF 2025
RESPONDENT ANNEXURES
Annexure R1(a) TRUE COPY OF THE LETTER DATED 11-11-2025 THAT
WAS FORWARDED BY EMAIL DATED 11-11-2025 BY MY
DAUGHTER TO DAYA HOSPITAL, THRISSUR
Annexure R1(b) TRUE COPY OF THE BLOOD-TEST REPORT DATED 08-
01-2022, ISSUED BY DAYA HOSPITAL, THRISSUR
