The question at issue in this appeal is whether the appellant the East and West Life Insurance Company Limited is liable to pay to the respondent 1, Kolla Venkayya the sum due on a life policy issued to the respondent 1's brother, Kolla Janakiramayya, in December 1935 for Rs. 15,000. The learned Subordinate Judge of Bapatla has granted a decree to respondent 1 for Rs. 12,862-13-0, after making certain deductions from the claim which do not now concern us, but has refused him costs. The company has appealed and respondent 1 has filed a memo of cross-objections on the question of costs only.

The undisputed facts of the case are these. Premiums were due on the policy every six months. The premium due on 11th June 1936 was not paid in time. The policy therefore lapsed, but under its terms could be reinstated on “evidence being furnished of good health to the satisfaction of the directors.” In September, 1936, the premium was paid and the policy reinstated. In this connection an application form Ex. D-16 printed throughout in English, was signed in Telugu by Janakiramayya, who could not read or write English. In that form were (amongst others) two declarations;

(i) That since the day of my examination for the abovementioned policy, I have had no sickness, ailment, or injury whatever except as follows:

and (ii) I have not been attended, nor prescribed for by any physician, except as follows:

Under both of these declarations the word “none” was written in English by the company's agent in Bezwada (D.W 5). According to the final clause of the application form the insured agrees that “if any of the statements or representations contained herein prove to be incomplete or untrue then this reinstatement shall be ipso facto null and void.”

Now it is admitted that the answer “none” to these two declarations is in the literal sense of the word, and subject to a question of legal interpretation to be hereafter considered, untrue. From 13th February to 19th March, 1936 Jankiramayya was treated as an in-patient at a Mission Hospital in Chirala for arsenic dermatitis.

In December, 1936 and January 1937 there was a second delay in the payment of premium, a second application form similarly filled up and signed and a second re-instatement, but the evidence and arguments in the case have centred round the facts of the first re-instatement and we need not therefore consider the later events. Janakiramayya died on 9th May 1937, the cause of death being given on the certificate under the heading “other fevers.”

The principal matter to be first considered is the circumstances in which Ex. D-16 came to be signed. The case for the company is that their agent D.W 5 explained the contents of the form correctly in Telugu to Janakiramayya and wrote the words “none” on his instructions. The case for respondent 1, as outlined in his own evidence as P.W 2, is that D.W 5 gave him Ex. D-16 at Bezwada (with the answers already filled in) and asked him to get Janakiramayya to sign it and return it by post. The learned Subordinate Judge deals with this matter in paragraph 13 of his judgment but does not come to any positive conclusion. He refers to a definite admission by D.W 5 as proof that he could not have correctly translated the first declaration into Telugu, but then goes on to point out the failure of D.W 5 to explain a discrepancy in date, from which the only reasonable inference would be to distrust D.W 5's evidence as a whole, and hold that the fact of any interview between him and Janakiramayya, in September 1936 was not proved.

Mr. Govindarajachari who appeared for respondent 1 has thrown overboard his client's case as to the facts; and in order to rely upon the law as laid down in paragraph 600 (A) of Vol. XVIII of Halsbury's Laws of England, and the case there quoted [Joel v. Law Union and Crown Insurance Co.] has asked us to hold that D.W 5 did meet Janakiramayya and intentionally misrepresented to him the meaning of the declarations. We are unable to accept this view.

We must point out in the first place that both P.W 2 and D.W 5 were giving evidence late in 1941, several years after the events of which they were speaking—it is difficult therefore to rely upon the memory of either, though in this respect it is more likely, we think that P.W 2 who was dealing in 1936 with his own and his brother's individual concerns, would retain a better recollection of what happened than D.W 5 to whom Janakiramayya's policy was only one of many to be considered in the ordinary routine of his duties. We are therefore unable to rely implicitly upon any admission by D.W 5 as being necessarily an admission of the truth.

In the second place, though we naturally speak here with some hesitation, we cannot agree with the learned Judge's own interpretation of D.W 5's evidence. The learned Judge says that D.W 5 was definitely asked how he interpreted to Janikiramayya the first declaration, and gave an answer in Telugu which excluded the possibility of his having asked him anything more than whether he was there and then in good health. That D.W 5 would make an admission thus cutting at the root of the company's case (which he had upheld in examination in chief) is in the highest degree improbable. The original record of D.W 5's evidence in the Judge's own hand is obscure and very nearly illegible, but it does establish, we think, that the question put to D.W 5 was recorded and that question could not possibly have been “how did you translate or explain the first declaration?”

Finally, in our opinion, a consideration of the documents makes it extremely probable that there was no interview between D.W 5 and Janakiramayya. The receipt, Ex. P-3 shows that the premium was paid to D.W 5 at Bezwada on 11th September. The application form was dated 19th September. It was this discrepancy that D.W 5 was unable to explain, and we are not surprised at his inability. If the parties had met in person it was surely inevitable that both these matters of business, the payment of the premium and the execution of Ex. D-16, would have been attended to simultaneously. Our view accordingly is that in all probability, P.W 2's evidence is true that there was no interview between D.W 5 and Janakiramayya and that no facts have been established to prove any positive misrepresentation by D.W 5. The burden of proving this lies upon the first respondent and in the absence of proof it cannot be held that the company is bound by anything which D.W 5 may have said. Though we cannot commend the practice of calling upon an insured person who knows only Telugu to answer questions couched in English, the duty of making himself acquainted with the contents of what he was signing undoubtedly lay upon Janakiramayya himself on the facts of this case and he must be held responsible for the statements that he had no sickness, ailment or injury since December 1935, and had not been attended upon or prescribed for by any physician. [See Biggar v. Rock Life Assurance Co. (1) and Newsholme Brothers v. Road Transport and General Insurance Company Limited (2)].

We have said that the answers to the declarations in Ex. D-16 are on the face of them untrue, but it was argued by Mr. Govindarajachari that questions and answers must be reasonably interpreted, and that, judged by this test the answers are substantially true. Much stress was laid upon the comparatively innocuous nature of arsenic dermatitis. P.W 1 for instance says that it is not a disease in the strict sense of the term, and does not affect longevity. D.W 7 quotes a text-book which gives the death-rate from dermatitis as one in 15,000 to 22,000 injected. D.W 6 says that Janakiramayya need not have stayed in the hospital at all, but was induced to enter it “for nursing care.” It is common ground that by September, 1936 (and indeed so early as in March) the dermatitis was cured.

It was therefore argued on all these facts that Janakiramayya might legitimately regard this incident in his life as of trifling importance in which no insurance company would take any interest in deciding whether to reinstate a policy or not. Reliance is placed in this connection upon the discussion in The Connecticut Mutual Life Insurance Co. of Heetford v. Kate Douglas Moore (3). We do not think this case is of much assistance to the first respondent. It is true that the expression “attendance by a doctor” is interpreted as excluding occasions when medical aid has been sought for some trifling ailment, occasions which are not likely to be present to the mind of a person filling up a proposal form, but it is noteworthy that whereas the term “serious illnesses” occurs in the judgment, the only non-serious complaints mentioned in it are a headache and a cut finger. It is impossible to consider a five weeks course of treatment for arsenic dermatitis in hospital, as on the same level as such trivial complaints, however free from danger the dermatitis may have been, and however complete its cure.

One further point must also be mentioned in this connection and that is that it cannot in our opinion be fairly said on the facts of this case that the disclosure of this illness by Janakiramayya would have had no influence on the company's decision to re-instate the policy. The dermatitis was caused by an injection of arsenic. The arsenic was injected because the hospital authorities had reason to believe that Janakiramayya might have been suffering from syphilis. There was no positive proof in this case that Janakiramayya did suffer from syphilis, and indeed there are indications to the contrary but the insurance company under the terms of its policy, and of Ex. D-16, was certainly entitled to be informed of facts which might have led it to suspect that syphilis was present. For the reasons which we have given we do not therefore think that the answer “none” to the two declarations was true on a reasonable interpretation of their terms. If it was not true and if, as we have found, it was not induced by any misrepresentation as to the meaning of the declarations, it must necessarily follow upon the terms and conditions of Ex. D-16 that the company can legally repudiate liability.

In the result this appeal must be allowed, and plaintiff's suit dismissed with the costs of the appellant throughout. The memorandum of cross-objections must also be dismissed, but without costs, as in our opinion the learned Subordinate Judge gave no valid reason for refusing costs to the first respondent on his view of the facts and law.

N.R.R