' SYED ZAHID HUSSAIN, J.---A suit for recovery of Rs,14,00,000 instituted by the appellants i,e, the successors in interest of Malik Maqbool Ahmed deceased under Order XXXVII of the Code of Civil Procedure, 1908 was dismissed by the learned trial Court on 20-12-2000, which has given rise to this appeal.
2. The case of the appellants as set out by them was that their predecessor Malik Maqbool Ahmed deceased had obtained insurance policy on 15-7-1996 for a sum of Rs,14,00,000 who died on 4-6- 1997 and the claim pursuant to the said policy was though accepted by the respondents/defendants and two cheques dated 30-4-1998 were issued yet were not honoured by United Bank Limited, Islamabad. This was in view of instructions i,e, stopping of payment to the Bank by the State Life Insurance Corporation. Hence the suit for recovery was instituted. In that the respondents/defendants sought leave to appear and defend, which was granted by the Court. The written statement was filed alleging fraud and misrepresentation in the abstention of policy.
Following issues were framed:-- "(1) Whether the plaintiff has no cause of action and locus standi to file the instant suit? OPD
(2) Whether the defendant is entitled to special costs? OPD
(3) Whether the cheque on the basis of which the suit has been filed-was obtained by fraud? OPD
(4) If the above issue is not proved whether the plaintiff is entitled to recover Rs,14,00,000? OPP
(5) Relief.
The parties led evidence. The learned trial Court on appreciation of the evidence came to the conclusion that "Exh.D4 is the insurance policy of Malik Maqbool Ahmed deceased. His age is shown as of 51 years. This policy was issued on 5-7-1996. Exh.05 is copy of National Identity Card of Malik Maqbool Ahmed which was provided by him at the time of submitting proposal form in which his date of birth was mentioned as 8-3-1945. Exh.D6 is another letter in which Malik Maqbool Ahmed intimated on 30-6-1996 that he had no proof of age other than his Identity Card which had already been enclosed with the papers. He requested to accept the same. The defendants examined Nazir Hussain - Record Keeper of Board of Secondary Education, Lahore who brought original Register and proved copy of certificate Exh.Dl according to which the date of birth of Malik Maqbool Ahmed was entered as 8-3-1940 in the Board record. On the request of the defendants he was directed to bring the actual Gazette. He brought the Gazette on 27-4-2000 and proved the certified copy of page No,397 as Exh.Dl confirming that date of birth of Malik Maqbool Ahmed at Roll No,51026 was mentioned as 8-3-1940. He was not cross examined by the plaintiffs: The. Plaintiff Malik Muhammad Faisal has admitted that his father was Matriculate. He could not tell if year of birth of his father was entered as 1940 in the Matriculation Certificate. There is thus no rebuttal of the documentary evidence produced by the defendants that the date of birth of Malik Maqbool Ahmed was 8-3-1940 but he mentioned it in proposal form as of 1945. "In such a situation the contesting defendants were justified' in withholding payment of cheques issued to the plaintiffs as legal heirs of Malik Maqbool Ahmed regarding the policy taken by the deceased on 15-7-1996 who died on 4-6-1997 i,e, within one year of taking the said policy. Fraud was committed at the time of getting the policy and the cheques Exh.P1 and Exh.P2 were issued on the basis of said policy obtained through fraud and misrepresentation. The issue is decided in favour of the defendants in this say."
3. The learned counsel have been heard and record has been perused with their assistance.
4. The issuance of the insurance policy (Exh.D4) as also the two cheques dated 20-4-1998 (Exh.P1 and Exh.P2) covering the claim amount were not in dispute but what became the bone of contention was the age disclosed by late Malik Maqbool Ahmed while obtaining the said policy.
The date of birth he had disclosed was 8-3-1945, which eventually was found as incorrect, as his real date of birth was 8-3-1940 recorded in the School/Board of Secondary Education, Lahore records. He has appeared in the Secondary School Examination commencing 1st March 1958 under Roll No,51026 and had filled up the form (Exh.D1) disclosing his date of birth as .8-3-1940. Result Sheet (Exh.D2) also mentioned the same date of birth. Nazar Hussain Record Keeper, Board of Secondary Education, Lahore D.W.1, who had produced the record had stated that according to the Board record the date of birth of Malik Maqbool Ahmed was 8-3-1940. Exh.D5 was the copy of National Identity Card produced by the deceased at the time of issuance of policy, which showed his date of birth as 8-3-1945.He had informed the Insurance Corporation that there was no other proof of age except National Identity Card. It turned out to be a false declaration made by him at the time of issuance of the policy. Mushtaq Ahmed Alvi, Deputy Manager, State Life Insurance Corporation, Rawalpindi had appeared as D.W.3 and disclosed the background of the matter including the fact that Malik Maqbool Ahemd was Sales Manager of State Life Insurance Corporation. His medical history of ailment was also disclosed to show the state of his feeble health. There was nothing to controvert/rebut such evidence. The main reliance of the appellants was upon the date of birth as recorded in the National Identity Card and fact= of issuance of policy. Ordinarily once the policy had been issued and the claim had been processed and cheque issued, the matter would have been a fait accompli, however, his own -family members disclosed C the truth, which followed an enquiry resulting in stoppage of payment. The legal position stated in State Life Insurance Corporation v. Mst. Begum Jan PLD 1983 SC 421 gets attracted to this case as the factual background thereof was also quite relevant as in that case also at the time of ostentation of insurance policy, the age disclosed by insured was 49 years when in fact he was of 55 years of age. Though such a disclosure of age made by him was the same as mentioned in the National Identity Card yet it was observed by the Hon'ble Supreme Court that as the age disclosed by him had been proved to be materially different, it would render the contract void. In State Life Insurance Corporation v. Mamoor Khan 1993 CLC 790 it was observed that "the insurer has the legal rights to repudiate all liabilities under the policy of insurance if it is found by the insurer that the policy-holder had suppressed the material facts at the time of proposal of insurance. The policy of insurance is a contract of utmost good faith between the parties. Deliberate concealment of information in proposal form is a ground for avoiding contract of insurance as held by judgment report of Supreme Court of Pakistan 1979 SCM R 295". Even the precedents in the neighboring country as to the import of S.45 of Insurance Act, 1938 are to the same effect that suppression of material facts vitiate the policy issued on such basis. Reference in this context may be made to Mithoolal Nayak v. Life Insurance Corporation of India (AIR 1962 SC 814). In Smt. Rami Bai v. Life Insurance Corporation of India , Bhopal AIR 1981 Madhya Pradesh 69 it was observed that documentary evidence as to correct age of the insured was admissible even after issuance of Policy and if it is found that a false statement as to age had been made, the policy could not be enforced. In Smt. Saroj Agrawal v. Life Insurance Corporation of India and others AIR 2004 Jharkhand 134 it was observed that "It is well-settled that contracts of Insurance as also Contracts of Life Assurance are contracts Uberaba fides and every, material fact must be disclosed, otherwise 'there is a good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract. If there are any misstatements or suppression of material facts, the insurer certainly has the right to repudiate the claim made under a Policy which was obtained on the basis of suppression of truth". Great value and importance thus is attached to the conduct of the person concerned in such matters.
5. An ancillary question that may arise is about the worth of date of birth as recorded in National Identity Card and the one recorded in School/Board record. Ordinarily the date of birth mentioned in the National Identity Card is taken to be correct unless proved to the contrary by cogent and convincing evidence. In the instant case as mentioned above late Malik Maqbool Ahmed had in the year 1957, while filling up the form himself stated his date of birth as 8-3-1940. That was the time when he perhaps was not conscious of its future implications. It was an innocent disclosure then made by him. However, long thereafter when National Identity Card was issued it contained a different date of birth. There was a difference of five years in his age. To my estimation, in such a situation the correct and true date of birth would be the one as recorded in the School/Board record being earliest in time .In presence of such irrefutable evidence produced by the respondents the date of birth mentioned in National Identity Card cannot be taken as correct.
6. The predecessor in interest of the appellant late Malik Maqbool Ahmed was not any ordinary person or illiterate. He had been in the same business of insurance and was a Sales Manager.
Incidentally almost in less than a year before his death, he had obtained the policy for Rs,14,00,000 by giving his date of birth as 8-3-1945. Whereas his real date of birth was 8-3-1940. At this juncture, while considering the facts and circumstances of this case, I am reminded of an old adage that "the love of money is the root of all evils and that money never makes a man happy, yet, nor will it The more a man has, the more he wants". His doings could not be fruitful even to his successors. His falsity and misstatement has even landed them into this litigation, not to gain but to lose. That may be the natural corollary of human failings.
Keeping all aspects of the matter in view, we find that the suit instituted by the appellants was rightly dismissed by the trial court. The appeal is dismissed accordingly but leaving the parties to bear their own costs.