054-NLR-NLR-V-43-SUPPIAH-v.-THE-ORIENTAL-GOVERNMENT-SOCIETY-LIFE-ASSURANCE-CO.,-LTD.pdf
Suppiah v. Oriental Govt. Society Life Assurance Co., Ltd.
221
1942Present ; Howard C.J. and Hearne J.
SUPPIAH v. THE ORIENTAL GOVERNMENT SOCIETY LIFEASSURANCE CO., LTD.
88—D. C. Colombo, 11,279.
Life Insurance—Proposal Form—Untrue Statement—Policy avoided onlyif Statement designedly untrue—-Proof of age—Right of Company toinsist upon compliance with condition.
In a proposal form which formed the basis of a policy of LifeInsurance, the assured stated, inter alia, (a) that his next birthdaywas 53, (b)that he could produce neither a birth certificate nor a horoscope.To a further question as to whether he could produce other evidenceof age, no answer was returned. The final paragraph of the .proposalform declared that the statements therein were true and agreed that itshould be the basis of the contract between him and the Company andthat if any untrue averment be contained therein all moneys paid upon account of the said assurance should be forfeited and the assuranceitself should be null and void.
Held, that the policy could not be avoided unless it was establishedthat the statement in the proposal form as to age was designedly untrue.
Held, further, that the Company could insist upon compliance withthe condition of the policy that payment would be made upon proofto its satisfaction of the age of the assured,- although the Company shouldhave known from the declaration made by the assured that no betteror further proof of his age would be available after death.
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:222 HOWARD C.J.—Suppiah v. Oriental Govt. Society Life Assurance Co., Ltd.
from a judgment of the District Judge of Colombo.
H. V. Perera, K.C. (with him E. B. Wickremanayake), for the defend-ant, appellant.
E. F. N. Gratiaen (with him D. W. Fernando) for the plaintiff,respondent.
Cur. adv. vult.
February 6, 1942. Howard C.J.—
This is an appeal by the defendant from a judgment of the DistrictJudge of Colombo entering judgment for the plaintiff for the sum ofRs. 3,000 and profits payable on a policy of Life Insurance dated Decem-ber 2, 1936, together with interest thereon till date of decree and there-after till payment. The plaintiff is the administrator of the estate ofone Vellayathevar Maruthappen who died on May 17, 1938. On June13, 1936, the deceased signed 'a Proposal Form in which he stated thathis age next birthday was 53. He also stated that he could produceneither a Municipal certificate of birth nor a horoscope. To the furtherquestion as to whether he could produce other evidence of age no answerwas returned. . The deceased in the final paragraph of the proposal formdeclared that the statements therein were true and agreed that it shouldbe the basis of the contract between him and the Company and, if anyuntrue averment be contained therein, all moneys paid up on accountof the said assurance should be forfeited and the assurance itself shouldbe null and void. On the same day, that is to say June 13, 1936, thedeceased at. the instance of the defendant Company was examined byDr. Rajapakse whose report P 4 was produced in evidence. In thisreport Dr. Rajapakse states that the deceased does not look older thanihis age. To P 4 was attached a personal statement by deceased in whichthe latter declares that according to the best of his knowledge his agedoes not exceed 53 years. The policy was signed by the deceased onDecember 2, 1936. It recited that the deceased had agreed that theProposal and Declaration for Assurance should be the basis of the Assur-ance and that the Company had received the first premium. TheCompany then agreed to pay the amount of the assurance upon proofto the satisfaction of the Directors that such sum had become payable.To this liability for payment were attached, inter alia, the followingprovisos: —
That proof of age of the deceased and of the title of the persons
claiming payment shall be furnished to the satisfaction of theDirectors before payment of the sum assured:
That if it appeared that any untnie or incorrect averment .was
contained in the Proposal and Declaration the Policy should bevoid and all claim to any benefit shall cease and determine
The deceased died on May 17, 1938. The Medical Attendant’s Certifi-cate which was given by Dr. Cooray stated that the apparent age of thedeceased was about 70 years. Dr. Cooray gave evidence and producedthis certificate. He stated that he gave the deceased’s age as 70 merelyon information supplied by the Superintendent of the Estate, Mr. Veitch.In connection with the claim made by the personal representative of
HOWARD C.J.—Suppiah v. Oriental Govt. Society Life Assurance Co., Ltd. 223
the deceased, another document, D 3, a certificate of identity, wasfurnished to the Company. This document was signed by a clerk ofEheliyagoda estate and contained a statement that the approximateage of the deceased was 70 years. The Superintendent of the estate,Mr. Veitch, in consequence of an application from the defendant Company,gave a certificate D 4 in which he stated, in reply to the query “ Approxi-mate age of deceased at death, ” should say “ about 70 years ”. In givingevidence Mr. Veitch stated that the deceased was the Head Kanganyof the estate and had worked under him for 9 years. The statement inD 4 of the deceased’s age was only an estimate. He also stated that thedeceased had a serious attack of malaria in 1937. After this attack heaged very considerably and his condition deteriorated until he died. Inconnection with the evidence of Mr. Veitch, it appears that he by in-forming the Company of the death of the deceased initiated the stepswhich led to the formulation of a claim by the personal Representativeof the deceased. Counsel for the appellants has contended that the claimof the plaintiff cannot be maintained inasmuch as (1) the latter has notfurnished proof of the age of the deceased and (2) the proposal anddeclaration contained an untrue and incorrect averment, namely, thatthe age of the deceased was 53 years. In my opinion contention (2) iscovered by the cases of Fowkes v. The Manchester and London LifeAssurance & Loan Association' and Hammings v. Sceptre LifeAssociation Limited'. In Fowkes v. The Manchester & London LifeAssurance & Loan Association (supra) life policy of insurance was enteredinto with a company on the life of H. F., which was founded on awritten declaration of the assured, agreed to be the basis of the contractbetween the parties, and contained a proviso that “ if any statement inthe declaration (which declaration should be considered as much a partof that policy as if the same had been actually set forth therein) wasuntrue, or if the assurance by the policy should have been effected byor through any wilful representation, concealment or false avermentwhatsoever, or if the said H. F. should go to any place beyond the limitsof Europe, &c., the policy should be void, and all monies paid in respect(thereof should be forfeited to the said Association ”. The proposal anddeclaration contained the usual particulars, and proceeded as.follows:—■“ I do hereby declare that the above written particulars are correct and.true throughout, and I do hereby agree that this proposal and declarationshall be the basis of the' contract between me and The Manchester and'London Life Assurance Association, and if it shall hereafter appearthat any fraudulent concealment or designedly untrue statement be con-tained therein, then all the money which shall have been paid on accountof the assurance made in consequence hereof shall be forfeited, and thepolicy, granted in respect of such assurance, shall be absolutely null andvoid ”. It was held that the policy and declaration must be read together,and so reading them the policy was not avoided by an untrue statementin the declaration, unless designedly untrue. This case was followed inHemmings v. Sceptre Life Association Limited (supra) where a policy of lifeassurance was granted upon the basis of a proposal which concluded with> 122 E. It. 343.-* (1905) 1 Ch. 365.
224 HOWARD C.J.—Suppiah v. Oriental Govt. Society Life Assurance Co., Ltd.
a declaration that the answers given in the proposal were true to the bestof the proposer’s knowledge and belief, and an agreement that the pro-posal and declaration should be the basis of the contract, and that if itshould thereafter appear that the proposer had made any untrue state-ment therein the policy should be void and the premiums forfeited.In the proposal the assured made a mistake as to her age, and stated thatshe was three years younger than she was. The policy, after recitingthe declaration and the statement by the assured as to her age, evidenceof which the insurance company required to be produced, provided forthe payment by the Company of the policy moneys upon proof of thedeath of the assured, or of her having attained the age of sixty years,and it contained a proviso for avoidance of the policy andforfeiture of the premiums in the event of the policy having beenobtained by wilful misrepresentation. After discovery of themistake as to the age of the assured the Company accepted twoannual premiums. It was held (1) following Fowkes v. Manchesterand London Life Assurance and Loan Association1 that thedeclaration was to be read with the policy, and that the Com-pany were not entitled to avoid the policy and forfeit the premiumsunless the statement in the proposal was designedly untrue, althoughupon the discovery of the mistake they might have declined to continuethe policy upon returning the back premiums ; (2) that by acceptingpremiums after knowledge of the facts they must be taken to haveaffirmed the policy as it stood, and that consequently they were boundto pay the policy moneys upon the assured actually attaining the age ofsixty years and were not entitled to postpone payment until the assuredhad attained that age upon the assumption of her age at the date of theproposal having been as therein stated. It appears from these two casesthat the policy is not avoided by an untrue statement in the proposaland declaration, unless designedly untrue. It has not been establishedin this case that the statement made by the deceased with regard to hisage was designedly untrue.
The first point raised by Mr. Perera is, however, of a more substantialcharacter. The defendant Company had notice of the fact stated in theproposal and declaration made by the deceased that the only proofhe could furnish of his age was his own declaration. In thosecircumstances can the Company now come to Court and rely on the provisocontained in the policy that proof of the age of the deceased shall be'furnished to the satisfaction of the Directors ? The documents thatfound their way into the hands of the Company after the death of thedeceased do not, to my mind, in any way establish the age of the latter.On the other hand the Company must have known from the proposaland declaration made by the deceased that no better or further proofof his age would be available after his death. In these circumstancesit does not seem to be just or equitable that they should be allowed to takeadvantage of the proviso in the policy requiring proof of age. On theother hand it may be argued that the deceased entered into the contractembodied in the policy with his eyes open. He must have realized that
1 (1*63) -1 Ft. <<■ S. 017.
Delivered by LORD ATKIN—Bartleet & Co. v. I. L. M. Ebrahim Lebbe Marikar 223
his personal representatives after his death would be unable to furnish theproof required to draw the money due on the policy. It is with greajbreluctance that I have come to the conclusion that the plaintiff has notcomplied with the condition requiring proof of age. In these circum-stances the claim of the plaintiff cannot be maintained and the appealmust be allowed. In the circumstances we make no order as to costs.
Hearne J.—I agree with the proposed order.
—-o
Appeal allowed.