1. ' C.M.A. No.6652 of 2002 is an application under Order 7, rule 11, C.P.C., filed by learned counsel for the defendants, praying therein to reject the plaint of this suit on the grounds that, "the claims of the plaintiff is based on Fire Insurance Policy and as such, the suit has to be filed before the 'Claims Settlement Board', which is authorized to adjudicate upon all the disputes arising under the policies."
2. ' The facts giving rise to the filing of the said application are to the effect that the plaintiff, namely, R.R. Avari Enterprises (Pvt.) Limited, has filed the suit with prayer to:--
(A) declare that under the insurance policy, the plaintiff is entitled to compensation for the loss to the goods insured;
(B) declare that the report of the defendant No.2 dated 29-9-2001 is based on mala fide intentions to defeat the rightful claim of the plaintiff;
(C) pass a decree for a sum of Rs.725,000 against the defendant No.1 on account of loss to the goods insured with mark-up at 25% till final realization;
(D) pass a decree for a sum of rupees five million jointly and severally against the defendants on account of damages for refusing the plaintiff's claim unlawfully and with mala fide intentions; or in the alternative;
(E) pass a decree for liquidated damages in terms of section 118 of the Insurance Ordinance, 2000;
(F) costs of the suit and such other reliefs as may be deemed appropriate and necessary in the circumstances of the case."
3. ' Pleadings in the plaint thereof that the plaintiff being a private limited company, incorporated under the Companies Ordinance, 1984, and defendant No.1 being a Insurance Company formed under the Insurance Act, and while defendant No.2 is a surveyor of claims appointed by defendant No.1; an insurance policy was obtained by the plaintiff in the month of April, 2001, covering the risks of losses or damages by fire to the stocks of pesticide stored in the premises situated at Plot No.6, Sector 23, Korangi, Karachi, alongwith other receipts; it is further pleaded by the plaintiff that on 19- 9-2001, at about 1900 hours, a fire broke out in one of the sheds of the said insured premises and, despite due efforts having been put into save/secure the above-stated stocks, some losses were caused to it, which were duly covered under the said insurance policy, in consequence whereof, the plaintiff lodged its claims with the defendant No.1 for compensation against the said losses to the insured goods.
4. ' It is further pleaded that the defendant No.1 appointed defendant No.2 to report his findings regarding the circumstances of said losses, who submitted such a report dated 29-9-2001 to the effect that the fire broke out due to short circuiting of electric wiring outside the shed, which rapidly spread to the sheds, where the pesticides in finished form were stored in main product tank, which caused losses to the insured stocks, estimated to the tune of Rs.7,25,000 and under the terms of the insurance policy the plaintiff is entitled to be compensated by the defendant No.1; but even then, the defendant No.1 denied the said claims and defendant No.2 with mai?. Fide intention further reported that the policy did not cover losses/damages and the same is not indemnifiable.
5. ' The plaintiff has contested the said application (C.M.A. No.6652 of 2002) under Order 7, rule 11, C.P.C.
6. ' I have heard Mr. M. Hasan Ahmed, learned counsel for the plaintiff, Mr. Ashraf Ali, learned counsel for the defendants and have also perused R&P of the case.
7. ' Learned counsel for the defendants has placed on record, a copy of S.R.O. 919(I)/90, dated 27th August, 1999, issued by the Ministry of Commerce, Government of Pakistan, and published in the Gazette of Pakistan Extraordinary, August 29, 1990, which reads as under:-- "MINISTRY OF COMMERCE Islamabad the 27th August, 1990 "S.R.O.919(I)90---In exercise of the powers conferred by clause (b) of section 47-L of the Insurance Act, 1938 (IV of 1938), the Federal Government is pleased to authorize the Claims Settlement Board to adjudicate upon disputes arising under Insurance policies relating to the following claims to insurance business, namely:--
(a) Fire Insurance
(b) Marine Insurance
(c) t,ife Insurance
(d) Miscellaneous Insurance"
8. ' According to learned counsel for defendants, this suit could not be filed by the plaintiff, as the jurisdiction exclusively lay with the 'Claims Settlement Board', appointed/constituted under section 47-L(b) of the Insurance Act, 1938 (IX of 1938).
9. ' Contents of the said Notification discloses, do not indicate that the jurisdiction of the Civil Courts in any manner is barred to entertain the suits for the claims against the compensation to be awarded for the losses suffered by the holder of an insurance policy, pertaining to the goods got insured under such a policy so also, no details are mentioned in the said notification as to the procedure to be adopted by the concerned parties, as well as, the 'Claims Settlement Board' for the purpose of adjudication upon the dispute arising under the insurance policies of the nature as of the present suit.
10. It is a well-settled principle of law that until and unless it is shown that the ordinary jurisdiction of a civil Court is barred under the competent provisions of law to entertain the civil suits by any special enactment towards such end, such a jurisdiction of the Civil Court is to be deemed to be in existence, and further that the Civil Courts have to jealously guard their jurisdiction to entertain the claim of civil nature unless expressly or impliedly barred.
11. ' A somewhat similar decision was recorded by my learned brother Mushir Alam, .1., in a case reported in Messrs M.R. Transport Company v. National General Insurance Company Limited 2001 CLC 1618, and the relevant observation may be reproduced hereunder:-- "Bare perusal of the above-referred provision suggests that any dispute arising under insurance policy in respect of a motor vehicle or encompassing any liability of its own arising out of use of insured vehicle, any party may take up such dispute before the "Settlement Board" constituted under subsection (2) to section 47-C of the Act of 1938. Such provision cannot be read as a barring clause. Jurisdiction of the Civil Court in terms of section 9 of the Civil Procedure Code, 1908, extends to all claims of civil nature unless expressly or impliedly barred, Civil Courts jealously guard their jurisdiction. Above-referred provision only signified the existence of alternate remedy for resolution of dispute over motor insurance claim. Where there are more than one forum available for the resolution of a dispute, then generally choice of forum rest with the plaintiff.
12. "Unlike Constitutional jurisdiction mere existence of alternate remedy will not divest Civil Court of its inherent jurisdiction to adjudicate dispute of civil nature unless otherwise barred. Even otherwise, no prejudice is shown to have been caused to the defendant, who was extended full and fair opportunity to defend, which was not availed."
13. ' It was further observed in the said case at page 1623 as under:-- "Once an insurance contract is executed then on happening of any act, even or contingency compassing "risk" covered the liability of the insurer to indemnify the loss crystallizes. An insurer cannot be allowed to wriggle out or repudiate its liability on the ground not available under law, moreso alleging that due to oversight while printing the "Policy Form" particular nature of risk was not included in the General Exception Clauses; such excuse that too after expiry of the policy can hardly justify the stance taken by the defendant. Even if such be the case, then it is the insurer to suffer and not the insured. Under circumstances the second objection is also rejected. The repudiation of the claim was without any legal justification."
14. Consequently, the defendants have failed to show that this Court has got no jurisdiction to entertain this suit in its original civil jurisdiction and, therefore, this application (C.M.A. No.6652 of 2002) under Order 7, rule 11, C.P.C. Merits no consideration and is hereby dismissed.