P L D 1989 Supreme Court 244 (PLP)

The petitioner has lost throughout. The money decree‑having been passed by the trial Court was affirmed in the First Appeal and the High Court has refused to interfere in its Civil Provisional jurisdiction, by an elaborate order, against which, leave to appeal has now been sought. Learned counsel has raised, two‑ fold contention: firstly, that the concession made by him during the hearing of the appeal in the High Court has not been noticed in the impugned judgment correctly and in its entirety; and secondly, that on the merits of the case, the decision of all the learned Courts below is wrong. Amongst others, the precise argument being that Dr. Haider Ali Chowdhary, the deceased in this case, in respect of whose death the insurance claim was made from the respondent's side and repudiated by the petitioner's side, had himself by his conduct misrepresented the state of his health at the time of the offer/ acceptance of the insurance liability. On the first point the learned counsel has placed before us the exact concession which he made before the High Court during the hearing of the appeal in the form of his affidavit. It reads as follows:‑ Question (which was put by the Bench to the learned counsel). "Whether Insurance Corporation insures people if they are suffering from disease like hypertension etc?" Answer The insurance Corporation may insure persons with hypertension /high blood pressure or some other disease provided the proposes discloses it and the insurer seeks further investigation or tests and then offer policy with certain conditions by putting loader etc. Learned counsel who is senior Member of the Bar and commands respect, has confidantes stated that he never made any unconditional concession. The concession note d by the High Court is as follows: ‑‑ "When questioned learned counsel for the petitioner conceded that the petitioner Company would have insured Dr. Haider Ali Chowdhary even if he had disclosed that he was suffering or had suffered from high blood pressure." It appears from the context in the impugned judgment that the learned Judge did not consider it necessary,. in the circumstances of this case to reproduce the entire statement made by the learned counsel in' ;answer to the question put to him. It also appears that the use of the word 'would' in the, concession part in the impugned judgment, is either in the meaning of 'could' or it is a typing mistake; because the meaning in so far as the present case is concerned would not be substantially changed if the word 'could' is substituted. That being so after hearing the learned counsel in this behalf‑‑ (he has a. lot respect and regard for the learned Judge) we feel satisfied that in so far as the practical side of the concession is concerned, in the facts and circumstances of this case, the reproduction in the impugned judgment has served the purpose for rendering the decision in this case. Accordingly we hold that what the learned counsel meant and conceded is that persons like Dr. Haider Ali Chowdhary suffering from hypertension could and would be insured under certain conditions. It is not necessary to go into details. Thus the first argument raised by the learned counsel, in our view, does not involve any real controversy. The foregoing aspect, of course, has to be put in juxtaposition, to the factual controversy before the High Court,. While the petitioner's case was that late Dr. Haider Ali Chowdhary was himself responsible for some misrepresentation, it has been found that the so‑called misrepresentation was not his doing. The conclusion being that the state of 'health of Dr. Haider Ali Chowdhary, with whatever ailment he was suffering, could be presumed to be also known to the petitioner. And if they accepted him for life insurance they in their own business thought it a risk worth taking on the rate of premium and under the other relevant conditions as are specified in the contract in this case. The petitioner, therefore, with all these assumptions, could not have repudiated and avoided the liability. In this view of the matter we find no force in this petition. Leave to appeal, with the clarification and observations in respect of the concession made by the learned counsel before the High Court is refused. M.B.A./S‑255/S Leave refused