JUDGMENT : DEVASHIS BARUAH, J. Heard Mr. D. P. Borah, the learned counsel appearing on behalf of the Petitioners and Mr. S. P. Choudhury, the learned Standing counsel appearing on behalf of the Respondent Nos. 1 to 4. 2. Taking into account the issue involved, it is the opinion of the Court that the presence of the Respondent Nos.5 & 6 are not necessary for the adjudication of the present dispute. Accordingly, the names of the Respondent Nos. 5 & 6 are struck off. 3. The Petitioners herein are the legal representatives of one Krishna Kumar Borah (since deceased) and are aggrieved by the repudiation of the claim in respect to Policy No.444061449 vide the communication dated 11.03.2015 and under such circumstances, the Petitioners have approached this Court by filing the present writ petition. 4. The brief facts which led to the filing of the instant petition are that on 23.12.2010, the predecessor-in-interest of the Petitioners, namely late Krishna Kumar Borah who was serving as an Executive Engineer (Drilling) in the Oil and Natural Gas Corporation Limited, Sivasagar took a policy of the Life Insurance Corporation of India (for short ‘LICI’) being Policy No. 444061449. The commencement of the policy was from 23.12.2010 and the yearly premium to be paid was Rs.18,425/- which was to be deducted from his salary. The sum assured of the policy was Rs.20,00,000/-. 5. On 13.02.2013, late Krishna Kumar Borah suffered from a cardio problem and immediately he was admitted to the Srimanta Sankardeva Hospital and Research Institute, Dibrugarh. He expired on 14.02.2013 on account of cardiorespiratory failure. 6. The wife of late Krishna Kumar Borah submitted the claim forms before the Life Insurance Corporation of India as nominee claiming the amount of Rs.20,00,000/- which was the assured sum. The said claim was rejected vide the communication dated 11.03.2015 by the LICI on the ground that the LICI had evidence and reasons to believe that late Krishna Kumar Borah was suffering from hypertension and for which he had taken EOL and HPL prior to the date of commencement of the policy and the said aspect was not disclosed at the time when the policy form was submitted. It was also alleged that late Krishna Kumar Borah had induced the LICI to issue the policy on a false statement made by him in the Proposal Statement of the health and had he disclosed the correct information, the LICI of India would not have accepted the proposal. It is on this ground the claims of the Petitioners were rejected. 7. The wife of late Krishna Kumar Borah thereupon issued a legal notice on 11.06.2015. But as there was no step taken for redressal, the wife of late Krishna Kumar Borah filed the present writ petition in the year 2016. In the meantime, the wife of late Krishna Kumar Borah expired and the Petitioner Nos. 1.1, 1.2, and 1.3 have been substituted. 8. Pursuant to the filing of the writ petition, Respondent Nos. 1 to 4 filed their affidavit-in-opposition, wherein there is no denial of the fact that the policy had been taken by Late Krishna Kumar Borah with effect from 23.12.2010 for a sum assured of Rs.20,00,000/-, and that the wife of Late Krishna Kumar Borah was the nominee under the said policy. At Paragraph No.7 of the said affidavit-in-opposition, further details have been provided as to why the claim in respect to the Policy No. 444061449 was repudiated. It was mentioned that in Question No. 11 of the proposal statement, various questions were put and all these questions were answered by late Krishna Kumar Borah in the negative. It was also mentioned that upon the claim application being submitted and a review being conducted, it was found that the cause of death was CVA (Acute left cerebral hemorrhage with intraventricular extension with subdual collection). It was also found upon enquiry being made with the ONGC Limited that late Krishna Kumar Borah, prior to submitting the proposal statement, availed EOL and HPL on different dates many times for the period from 11.11.2010 to 30.11.2010 for self-illness. It was also found from the certificate issued by the ONGC Limited that on 11.11.2010 while drilling well GHGJ, a fatal accident occurred on Rig-E-2000-5 and it greatly affected late Krishna Kumar Borah and he went into shock and to recover from shock, he took HPL from 11.11.2010 to 30.11.2010. It was mentioned that in the certificate which was issued by the ONGC, late Krishna Kumar Borah did not receive any physical injury and only affected by the tragic condition of his colleague. It was mentioned that in the certificate which was issued by the ONGC, late Krishna Kumar Borah did not receive any physical injury and only affected by the tragic condition of his colleague. Further to that, it was mentioned that as per the history sheet of Srimanta Sankdardeva Hospital dated 13.02.2013, it revealed that late Krishna Kumar Borah was a known patient of HTN not on medication and he was admitted in the hospital on 13.02.2013 and he was referred by Neurosurgeon with a h/o fall from bed 4 days back in drunken state. 9. The records reveal that in pursuance to the said affidavit-in- opposition so filed, an affidavit-in-reply was filed by the Petitioners wherein it was categorically mentioned that the allegation of the Respondents that the father of the Petitioners suppressed material fact regarding his suffering from hypertension is totally baseless and vague allegation. The father of the Petitioners was not suffering from hypertension at the time of purchasing the policy in question. The father of the Petitioners though availed EOL and HPL, however, the same was not availed by the father of the Petitioners due to suffering from hypertension or any serious ailment. It was also mentioned that there was nothing on record to show that the father of the Petitioners was suffering from hypertension at the time of purchasing the insurance policy in question. The father of the Petitioners therefore had not suppressed any material fact in the proposal statement and as such, availing EOL and HPL did not have any correlation with the death of the father of the Petitioners. 10. In addition to that, it was mentioned that there was nothing on medical record that the father of the Petitioners had suffered from any serious disease or illness prior to the commencement of the policy in question. Merely because the father of the Petitioners did not disclose in the proposal form some minor ailments of trivial nature suffered by him temporarily on some occasions, which had no material bearing on the risk undertaken by the LICI or even any remote nexus with the ultimate cause of the death, the same cannot be construed as the fraudulent suppression of material facts so as to permit the LICI to repudiate its liabilities under the contract of insurance. 11. Mr. 11. Mr. D. P. Borah, the learned counsel appearing on behalf of the Petitioners has laid emphasis on the judgment of the learned Division Bench of the Orissa High Court in the case of Anupama Behera and Others Vs. Divisional Manager, LIC of India, Cuttack and Another reported in 2010 SCC OnLine Ori 16 and specifically referred to paragraph Nos. 15 and 16 of the said judgment. 12. This Court has heard the learned counsels appearing on behalf of the parties and perused the materials on record. 13. The materials on records show that the policy commenced from 23.12.2010 as it is the admitted stand of the Respondent LICI. Late Krishna Kumar Borah who was the insured expired on 14.02.2013. The stand so taken by the Respondents for repudiating the claim in respect to the Policy No.444061449 is on account of certain incorrect statements being made in the proposal statement form and more particularly in respect to Question No.11. This aspect could be seen not only from Paragraph No.7 of the affidavit-in-opposition filed by the Respondent Nos. 1 to 4 but also from the repudiation letter dated 11.03.2015. The questions which formed the basis for the repudiation were: 14. At the relevant time, when the policy was holding the field and further, at the time when the claim for the policy was made, Section 45 of the Insurance Act, 1938 read as follows: “ 45. 1 to 4 but also from the repudiation letter dated 11.03.2015. The questions which formed the basis for the repudiation were: 14. At the relevant time, when the policy was holding the field and further, at the time when the claim for the policy was made, Section 45 of the Insurance Act, 1938 read as follows: “ 45. Policy not to be called in question on ground of mis-statement after two years.—No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose: Provided that nothing in this section shall prevent the insurer from 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.” 15. It may be relevant to take note of that the above quoted Section 45 was substituted by the present Section 45 w.e.f. 26.12.2014. It may be relevant to take note of that the above quoted Section 45 was substituted by the present Section 45 w.e.f. 26.12.2014. From a perusal of the above quoted provisions, it would be seen that no policy of life insurance effected after the coming into force of the Insurance Act, 1938, shall after the expiry of 2 years from the date on which it was effected, be called in question by an insurer on the ground of a statement made in the proposal for insurance, or in any report of the medical officer, or referee, or friend of the insured, or in any other document leading to the issuance of the policy was incorrect, inaccurate, or false. However, there is an exception. The exception being that if the insurer shows that such statement was made on a material matter or suppressed facts which it was material to disclose and it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false, or that it suppressed facts which was material to disclose. 16. Applying the said provision to the present dispute, it would be seen that as the policy in question was issued on 23.12.2010 and the insured i.e. late Krishna Kumar Borah, expired on 14.02.2013 i.e. after 2 years, 1 month, 21 days, the insurer, i.e. the LICI, cannot question a statement made in the proposal for insurance unless the LICI shows that such statement was made on a material matter or suppressed fact which it was material to disclose and it was fraudulently made by the policy-holder and the policy-holder knew at the time of making it that the statement was false or that it suppressed fact which it was material to disclose. 17. In the previous segments of the present judgment, this Court has already quoted the relevant questions which formed the basis of the repudiation. These statements made by Late Krishna Kumar Borah in the proposal form were made more than 2 years from the date of his death. Under such circumstances, it is the responsibility of the Respondent Nos. 17. In the previous segments of the present judgment, this Court has already quoted the relevant questions which formed the basis of the repudiation. These statements made by Late Krishna Kumar Borah in the proposal form were made more than 2 years from the date of his death. Under such circumstances, it is the responsibility of the Respondent Nos. 1 to 4 to establish that such statements were on a material matter or suppressed fact which it was material to disclose and it was fraudulently made by the policy-holder and the policy-holder knew at the time of making the statement was false or that it suppressed facts which it was material to disclose. 18. In the backdrop of the above, let's see what the Respondent Nos. 1 to 4 have found in the inquiry. From a perusal of Paragraph No.7 of the affidavit-in-opposition filed by the Respondent Nos. 1 to 4, it would show that late Krishna Kumar Borah had taken EOL and HPL from 11.11.2010 to 30.11.2010. The further inquiries so made on the basis of a certificate issued by the ONGC Limited dated 10.04.2014 disclosed that late Krishna Kumar Borah was shocked on account of the accident which took place on 11.11.2010, which fatally injured his colleague. It also reveals that late Krishna Kumar Borah did not receive any physical injury but was only affected by tragic condition of his colleague. This material so placed before this Court, in the opinion of this Court would not show that there was a non-disclosure by late Krishna Kumar Borah at the time of taking of the policy of a material matter or that late Krishna Kumar Borah had suppressed facts which was material to disclose. 19. This Court at this stage finds it very relevant to take note of the judgment of the learned Division Bench of the Orissa High Court in the case of Anupama Behera (supra) wherein the learned Division Bench of the Orissa High Court had dealt with what would constitute material facts for the purpose of non-disclosure. Paragraph Nos. 15 and 16 of the said judgment being relevant are reproduced herein under: “ 15. The legal position which emerges from the aforementioned judicial pronouncements is that the test to determine materiality is whether the fact not disclosed has any bearing on the risk undertaken by the insurer. Paragraph Nos. 15 and 16 of the said judgment being relevant are reproduced herein under: “ 15. The legal position which emerges from the aforementioned judicial pronouncements is that the test to determine materiality is whether the fact not disclosed has any bearing on the risk undertaken by the insurer. If the fact has any bearing on the risk, it is a material fact. If the insured failed to disclose in the proposal form trivial ailments suffered by him temporarily on some occasions, the same cannot be construed as fraudulent suppression of material facts, so as to repudiate the contract of insurance. 16. The Insurance policy, apart from its special feature, is a contract between a person seeking to be insured and the insurer. In interpreting the terms of contract of insurance, they should receive fair, reasonable and sensible construction in the consonance with the purpose of the contract as intended by the parties. Emphasis in such cases is laid more upon a practical and reasonable, rather than, on a literal and strained construction. In interpreting the contract of insurance neither the coverage under a policy should be unnecessarily broadened, nor should the policy be rendered ineffective inconsequence of unnatural or unreasonable construction. An attempt should be to construe a contract in liberal manner so as to accomplish the purpose or the object for which it is made. In the absence of ambiguity, neither party can be favoured but where the construction is doubtful, the Courts lean strongly against the party who prepared the contract. Where there is a susceptibility of two interpretations, the one favourable to the insured is to be preferred.” 20. This Court from the materials on record is of the opinion that not only the LICI have failed to show that there was any fraud committed by late Krishna Kumar Borah in not disclosing a material fact or late Krishna Kumar Borah had suppressed the material fact but also the answers made in the proposal statement do not appear to be incorrect. The said opinion is based on the fact that late Krishna Kumar Borah expired on account of cardiorespiratory failure and the reason being essential hypertension. There is nothing on record which would show that late Krishna Kumar Borah had hypertension at the time when the policy was taken. The said opinion is based on the fact that late Krishna Kumar Borah expired on account of cardiorespiratory failure and the reason being essential hypertension. There is nothing on record which would show that late Krishna Kumar Borah had hypertension at the time when the policy was taken. There is also no report placed before this Court to show that on account of hypertension which existed for at least more than 2 years 1 month 21 days, the same was the cause of death. 21. Considering the above, it is therefore the opinion of this Court that the repudiation so made by the LICI vide the communication dated 11.03.2015 is arbitrary, illegal as well as unreasonable and therefore calls for interference. 22. Accordingly, the writ petition therefore stands disposed of with the following observations and directions. (i) The communication dated 11.03.2015 thereby repudiating the claim in respect to Policy No.444061449 stands set aside and quashed. (ii) The Respondent Nos.1 to 4 are jointly and severally directed to take appropriate steps for release of the assured sum to the Petitioners at the earliest and preferably within 3 (three) months from the date of the instant judgment. (iii) No costs.