S. Muralee Krishna, J.

1. 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 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 1st 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 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 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 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 1st 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 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 1st 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 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 1st 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 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 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 the 1st respondent, the learned counsel for the appellants would submit that Ext.P2 policy document issued by the 2nd 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 1st 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, (‘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. 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 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 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 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 1st 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 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 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 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 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)      x x x x x x x x x x x x

                  (b)      x x x x x x x x x x x x

                  (c)      x x xx x x x x x x x x

                  (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.

                  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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 : -

                  (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 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 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 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 1st 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.