SYED HAMID ALI SHAH, J.---Deceased husband of the respondent was Policy-holder, who insured himself under Policy No,507448020-4, amounting to Rs,50,000 against a yearly premium of Rs,2,678, commencing from 15-10-1992. The premium was paid till October, 1994, whereafter, it was discontinued. The Policy-holder revived the policy on 31-12-1998, after complying with requisite formalities, A including a declaration of good health on a printed form. Insured breathed his last on 28-4-2000 and his widow being nominee, lodged the insurance claim of her husband before the appellant, which was repudiated by the appellant on account of concealment of his ailment at the time of revival of Policy. Respondent approached Wafaqi Mohtasib, lodged her complaint on 22-2- 2001. Wafaqi Mohtasib, through order dated 2-9-2001, directed agency (appellant) to pay the death claim as per terms of policy. Appellant assailed the order of the Mohtasib, through representation before the President, which was accepted vide order dated 29-7-2002, whereby the findings/directions of learned Mohtasib, were rejected. Respondent called in question the order of acceptance of representation against the direction of Ombudsman, through Writ Petition No,7177 of 2003.
2. The writ petition was disposed of, declaring the impugned order of the President against law and same was set aside. Insurer successfully assailed the judgment of this Court, in appeal before the apex Court and matter vide judgment dated 28-9-2005, was remanded to this Court for decision afresh. The Insurance Tribunal was established in the meanwhile; in view whereof, the petition was withdrawn on 25-7-2006 and application under section 121(1) of the Insurance Ordinance, 2000, was filed before Insurance Tribunal on 20-7-2006. Appellant contested application, filed written statement, wherein the assertions made in the application, were controverted and various preliminary objections were raised. Learned Tribunal, after framing seven issues, recorded the evidence of the parties and on conclusion of trial, decided the application in favour of the claimant vide judgment and order dated 29-11-2007, which order is now assailed before us in this appeal.
3. Learned counsel for the appellant has contended that the insurance policy had lapsed and was subsequently reactivated on 31-12-1998, on the request of policy holder, upon furnishing of fresh statement of good health. He was admitted in Punjab Institute of Cardiology during February, 1999, where his history of ailment in a printed form, was recorded, wherein it was mentioned that appellant was heart patient for the past three and a half years. For the reasons that the insurer concealed his disease, his insurance claim lodged by his widow was repudiated. Learned counsel has submitted that it has been held in the case of Norwich Union Life Insurance Society v. Mst.
Zainab Bibi 1981 CLC 1722, that Insurance Company is entitled to repudiate insurance policy where insured, who suffered from serious ailment at the relevant time, withheld such information and got revival of the lapsed policy. Learned counsel went on to argue that deliberate concealment of information is a good ground for avoiding the contract of insurance. Learned counsel supported his contention by referring to the case of State Life Insurance Corporation v. Mst. Sarwat Kazmi 1979 SCM R 295; State Life Insurance Corporation v. Mamoor Khan 1993 CLC 790; Messrs Burjor Ardeshir Industries Ltd. Karachi v. The Employers' Liability Assurance Corporation Ltd., Karachi and another PLD 1970 Kar. 462 and Mohsin A. Rehman v. Messrs Premier Insurance Company of Pakistan Ltd. PLD 1967 Kar.
204. Learned counsel has then submitted that an application before the Insurance Tribunal, can be filed within there years, but instant application was filed 4-1/2 years after the claim of insurance became due. The application was time-barred and no application for condonation of delay was filed. Learned Tribunal has decided the issue of limitation erroneously. Learned counsel referred to section 80 of the Insurance Ordinance, 2000 and submitted that period between reactivation of policy and death of insured was less than two years, therefore, the policy can be called in question validly, on the ground of misstatement of suppression of facts. Learned counsel has summed up his arguments, with the contention that Insurance Tribunal was not properly constituted and as such, the impugned order has no sanctity of law.
4. Learned counsel for the respondent has supported the impugned judgment and contended that the appeal is not competent as the amount of claim in dispute, being below than one hundred thousand rupees. The appeal, as envisaged in section 124 is thus not competent. Learned counsel has submitted that insurance policy was purchased in the year, 1992 and after the lapse of two years, it cannot be called in question. Learned counsel repeated his arguments, which were addressed before learned Tribunal.
5. Heard learned counsel for the parties and record perused.
6. The parties are not at variance that deceased got himself insured on 15-10-1992 and insurance policy remained operational till 15-10-1994, thereafter lapsed. The insurance policy was reactivated on 31-12-1998. Appellant repudiated the insurance claim, on the plea of suppression of material facts, as to the ailment of insured, which the policy-holder made, within two years of the revival of policy.
A Policy cannot be called in question on the ground of misstatement, after two years of its effectiveness, within the B contemplation of section 80 of Insurance Ordinance, 2000. Section 80 is reproduced hereunder:-- ' Section 80. Policy not to be called in question on the ground of misstatement after two years.--- Notwithstanding anything in section 79, no policy of life insurance effected before the commencement date of this Ordinance, shall after the expiry of two years from the commencement date of this Ordinance and no policy of life insurance effected after the commencement date 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 on the proposal for insurance or in any report of a medical officer, or referee, or friend of the policy-holder, 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 benefits payable under the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal."
7. Learned counsel for the parties, have interpreted section 80, in their own way. Learned counsel for the appellant has emphasized that period of two years, for the purposes of section 80, will run from the date of the revival of policy. Respondent's learned counsel, on the other hand, claims that period of two years, as provided in section 80 (ibid), runs from the date on which the policy was originally effected or contract of insurance came into existence. The courts in Indian jurisdiction have dealt with this issue, in the following manner:--
(i) Mithoolal Nayak v. Life Insurance Corporation of India (AIR 1962 SC 814): ' In this case the policy-holder was treated by a renowned physician for serious ailment, a few months before he submitted proposal for insurance of his life. The insured concealed the fact in his statement that he suffered from serious ailment and had been treated by his physician. The issue, which came up for consideration before the learned Court, was that according to law (section 45 of (Indian) Insurance Act, 1938), a policy cannot be called in question on the basis of fraudulent suppression of material facts, relating to the health of insured, after two years on which the policy was effected. Learned court examined the question as to whether the period of two years will be counted from the date, when the policy was originally effected or from the date of its revival.
Learned Court observed that whether or not a revival of lapsed policy constitute a new contract for other purposes but for the purposes of section 45, it is clear from the wording of the provision that period of two years has to be calculated from the date on which the policy was originally effected.
Learned Court further observed that inaccurate statement is fatal for insured only when:--
(a) The statement must be on a material matter or must suppress facts which it was material to be disclosed.
(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.
(ii) Santosh Kumar Gupta v. Indian Life Insurance Corporation AIR 2000 Rajisthan 327: ' In this case, while holding that period of two years would be counted when policy becomes effective and commences, it was held that: "Thus, according to section 45, policy cannot be called in question by the insurer, viz. The LIC on the ground of misstatement after the lapse of two years from the date on which it was effected, and that apart under first part to section 45, even if there were inaccurate or misstatements about several particulars furnished in the proposal form , an Insurer namely LIC cannot repudiate the police after the expiry of two years from the commencement of the policy. According to the principles laid down in Mithoolal's case AIR 1962 SC 814 (supra) by the Apex Court and in LIC v.
Vesasl Bharati, AIR 1989 Andh. Pra. 39, if the policy stands renewed and revived then period of two years would be counted from the date the policy becomes effective and commences. In other words, in case of revival of the policy also the date effective for the purpose of two years used in section 45, would be the date of acceptance of the original proposal from which the risk on the life of the proposer is covered under the policy i,e, original date of commencement of policy in question.
(iii) Life Insurance Corporation of India v. Suit Sosamma Punnah AIR 1945 Ker. 230: ' It was again held in this case that policy of insurance cannot be called in question due to false and fraudulent statement in proposal for insurance after two years, according to section 45 and period of two years mentioned in section 45, has to be calculated from the date on which the policy was originally effected and not from the date of revival of policy.
' A judgment from our own jurisdiction require mention.
(iv) Mst. Irshad Begum v. State Life Insurance Co. 2006 YLR 1186: ' It has been held in this case that the Insurance Company cannot repudiate a contract of insurance after stipulated period of two years of the purchase of policy. Repudiation after the lapse of prescribed period, is void and non-existent.
8. The above survey of case law, brings me to conclude that according to section 80 (ibid) an insurance policy, cannot be called in question on the grounds of misrepresentation, false statement or suppression of material facts, after two years from the date when the policy was originally effected. The period of two years, even in cases where the policy was revived and renewed, would be counted from original date of the policy in question. The application of provisions of section 80 is contingent upon fulfilment of following conditions:--
(i) The inaccurate statement pertains to a matter which is material, or the facts which are suppressed, the disclosure thereof was material.
(ii) The suppression must be fraudulent and made by policy-holder.
(iii) The policy-holder, at the time of making the statement had known that statement was false and it was material to disclose the facts suppressed.
9. We now advert to declaration itself, which is on the printed form and will examine it with other evidence, available on record. Appellant has relied on this statement, which the insured tendered at the time of revival of policy. The statement/declaration is an answer to various questions. The answers to relevant questions are as follows:-- Question No. Question Answer "7. Do you now or have you ever had small-pox, heart disease, diabetes. high blood pressure, T.B., cancer, Nervous or Psychological disorder? If so, specify with dates.
No
8. Have you ever had any other disease, injury or operation? State description, date and duration. Also state who treated you?
No
9. When did you last consult a Medical Practitioner?
(give reason and approximate date).
No
10. Are you in Good health? No
10. The other statement on which the appellant has placed its reliance is "Pre Angio Information Form". There exists an entry "Known From" against which it is mentioned "3-1/2 years". Will this entry singly prove that insured was heart patient for the past three years and half years, from the date the entry was incorporated in the form? The form was filled and completed by the doctor in routine diagnostic process. The appellant has placed on record other medical record of the policy holder i,e, a printed form of Punjab Institute of Cardiology, pertaining to the history of patient (Page 107 of the suit). It was filled and completed on 20-4-2000 and the insured answered mostly in negative about various diseases and only complained about chest pain on exertion since two years. The information provided by the insured as contained in this form, shows that he was maintaining good health or at least the insured was confident that he was feeling himself healthy. Statement of A.W.1 further establishes that insured was a healthy person. R.W.1 has stated in his statement that a certificate was issued by a hospital in Bahrain that ailment of policy-holder was old and chronic.
But no such certificate was produced. The deceased to the contrary was a heavy vehicle driver and admittedly kept performing his duties without sick leave.
11. Disclosure of material facts as to ones health, is ticklish issue. What is not material again depends upon the circumstances of each case. It has been held in the case of York v. Yorkshire Insurance (1918 1 KB 662) that good health means reasonably good health. A warranty of good health can never mean that a person has not in him the seeds of disorder. We born with seeds of mortality in us, as has been observed in the case of Willies v. Poole. A person can be ignorant about his health or about the deadly disease, which has its roots in him. A person has normally a general idea of his health. Then question arises as to when the contract of insurance becomes voidable at the option of insurer. Non-disclosure relates to the facts which are in the knowledge of the person making the statement. A person who is himself unaware of his ill-health, can make an innocent statement that he is not suffering from disease/illness. This statement cannot be used against such a person. A statement is fatal only when person making the statement deliberately and wilfully suppresses the material facts, knowing that disclosure of such facts was material and facts were fraudulently suppressed. Three conditions, discussed in the earlier part of this judgment are essential and necessary for repudiation of insurance contract or to invoke provisions of section 80 of the Insurance Ordinance XXXIX of 2000).
12. Viewing the case of the Policy-holder on the above settled principles, we are unable to agree with the appellant that the deceased had made false statement at the time of E revival of the policy and failed to disclose the factum of his heart ailment. The policy-holder performed laborious duty of a heavy duty vehicle, in extreme weather conditions, in Bahrain. He in the form pertaining to the history of patient (supra), had supplied information, which shows that deceased was confident of his good health. Appellant on the other hand had failed to adduce any cogent evidence to the effect that policy-holder was aware of his ailment and had deliberately concealed and made fraudulent misrepresentation. An entry in "Pre Angro Information Form" which had not been entered/incorporated by the deceased himself, does not establish or prove the factum of non- disclosure.
13. The appellant has also raised the question of limitation. There is no cavil with the proposition that Article 181 of the Limitation Act, 1908 applies to the case in hand. The claimant/respondent approached Wafaqi Mohtasib and then contested the order of President before this Court in its writ jurisdiction. The matter thereafter remained pending before apex Court and on remand during the pendency of writ petition, the Insurance Tribunal was constituted. The writ petition was withdrawn and matter was agitated before Insurance Tribunal. The application was moved before Insurance Tribunal, on constitution and establishment of the Tribunal. The application was within limitation as rightly held so by learned Tribunal.
14. For the foregoing, we have seen no illegality or infirmity in the impugned order/judgment of the Tribunal. This appeal has no merit and is accordingly dismissed with costs throughout.