' This appeal under section 124(2) of the Insurance Ordinance, 2000 seeks to challenge the order and judgment dated 30-4-2008 passed by Addl. District Judge, Lahore with powers of Insurance Tribunal Punjab, Lahore.
2. The appellant Azhar Iqbal and his wife Mst. Nasira Parveen purchased an Insurance. Policy No,508304966-8 for a sum of Rs,450,000 under Jevan Sathi Plan commencing from 30-11-1995. The yearly premium of the policy was settled at Rs,28,103. That policy lapsed for some time but was subsequently revived on 14-1-1998. Mst. Nasira Parveen died on 26-2-1999. The present applicant as petitioner filed his claim on 14-9-1999. However since the same was not disposed of a direction was sought from this Court through a constitutional petition whereupon the respondents/State Life Insurance Corporation of Pakistan rejected his claim on 15-9-2000.
3. The appellant as plaintiff filed a civil suit for recovery on 9-4-2002. However, since during the pendency of the civil suit the Insurance Tribunal was constituted, his plaint was returned on 17-3- 2007. The original documents submitted with the plaint were returned to him on 22-5-2007.
Thereafter, he filed a petition before Addl. District Judge, Lahore as Insurance Tribunal on 5-6-2007.
4. The respondents/State Life Insurance Corporation in their reply contested the petition and claimed that the corporation had rightly refused the claim of the petitioner.
5. On the pleadings of the parties including the preliminary objection against expiry of limitation, learned trial Court/ Insurance Tribunal framed the following issues:--
(1) Whether the applicant has no cause of action to file this application? OPR.
(2) Whether this application is barred by time? OPR.
(3) Whether this application is not maintainable ? OPR.
(4) Whether the applicant is entitled to the recovery of policy proceeds along with liquidated damages from the respondents, if so, to what extent and with what effect? OPA.
(5) Relief.
6. After hearing the parties learned trial Court found issues 1 to 3 against the appellant primarily on the ground that one of the policy-holders having died on 26-9-1999 and the petition having been filed on 5-6-2007 was clearly beyond the statutory period of three years as envisaged in Article 86(a) of the Limitation Act. The issue No,4 was again found against the present appellant mainly for the reason that the applicant and his deceased wife suppressed material facts at the time of purchasing the policy. The operative part of the impugned order of the trial Court contained in para-8 reads as under:- "Conversely, the respondent-Corporation examined Malik Muhammad Shafi, Deputy Manager, P.H.S., SLIC, Multan Zone as R.W.1 who deposed that the applicant along with his wife Mst. Nasira Parveen Bibi purchased a Jeevan Saathi Policy on 30-11-1995 and deposited first instalment of Rs,28,103 but the policy-holders did not deposit premium instalments for the years, 1996-1997. He also deposed that in the year, 1998, the policy-holders applied for the revival of the policy on 14-1- 1998. Mst. Nasira Parveen was medically examined. After the medical examination, the policy holders deposited defaulted instalments and the policy was revived. It is further deposed that during the medical examination, it came into light that Mst. Nasira Parveen was not pregnant and her pregnancy was destroyed after six months. This witness mentioned that actually at that time she was pregnant. After completion of total period of pregnancy, Mst. Nasira Parveen gave birth to a child and then she died due to excessive bleeding and other complications in the delivery process. Dr. Iffat Rashid operated the case and after operation on 26-2-1999, the said doctor referred Mst. Nasira Parveen to B.V.H. On 25-2-1999 due to her failing health. The witness also stated that at the time of renewal of their policy, the deceased Mst. Nasira Parveen and the applicant did not disclose certain material facts regarding her health including pregnancy. He next stated that due to the concealment of facts by the deceased and applicant, the policy had been rendered null and void and the applicant wants to get the illegal benefit by way of fraud, played by the deceased as well as the applicant. This application is based on mala fide and is liable to be dismissed."
7. Heard the learned counsel for the parties. Learned counsel for the appellant in support of his claim that the petition before the Insurance Tribunal was well within time places reliance upon re.
State Life Insurance Corporation v. Mst. Sadaqat Bano PLD 2008 Lah. 461, and re. State Life Insurance Corporation of Pakistan through Manager v. Arjan Ram and 2 others PLD 2003 Kar.
523. In the perspective of the facts noted above it is stated that after the death of his wife on 26-2- 1999 the appellant filed his claim on 14-9-1999 which was finally rejected on 15-9-2000 after a direction was made by Multan Bench of this Court. As the Insurance Tribunal had not yet been created by that time the appellant filed a civil suit on 9-4-2002. However, since in the meanwhile on 20-6-2006 the Insurance Tribunal had been created, his plaint was returned on 17-3-2007 while his original documents annexed with the plaint were returned on 22-5-2007 whereupon he took no time to approach the Insurance Tribunal on 5-6-2007.
8. The sequence of facts as stated by him clearly demonstrates that the appellant had always been vigilant to make his claim and that it was only on the part of the respondents/Insurance Corporation to drag his claim in order to avoid payment. The ratio settled in the aforesaid judgments relied upon at the bar being clearly attracted to the facts in hand we will hold that the learned trial Court erred in law as well as in fact by holding the claim to be beyond limitation or that after expiry of three years no cause of action remained with the appellant to approach the Tribunal.
9. On facts again we will readily agree with the learned counsel for the appellant that the respondents/Corporation repudiated the insurance contract on the basis of the facts, which were absolutely not established on record. It is admitted that after the lapse of policy for a short while which was revived on 14-1-1998, Mst. Nasira Parveen was again medically examined. The Corporation as well as learned tribunal found against the appellant on the ground that the appellant as well as his wife Mst. Nisira Parveen had failed to disclose that she was pregnant.
Further that finally on 26-2-1999 her death was caused in the labour room due to excessive bleeding. That fact along was found sufficient to hold both policyholders to be guilty of concealment of facts. However, the corporation as well as learned trial Court overlooked the basic fact that the lady dying on the table in the labour room on 26-2-1999 could not be pregnant on 14- 1-1998 on the day the policy was revived. The time gap between the revival of policy when admittedly Mst. Nasira Parveen was medically examined and the date of death i,e, 26-2-1999 is more than 12 months. Obviously no rule of contract, insurance or otherwise expects of a lady in the middle of January, 1998 to declare that she might be pregnant within the next couple of months.
10. The second important fact, which needs to be noticed is the failure on the part of the respondent/corporation to establish its case to support the repudiation of insurance contract by any cogent and relevant evidence. The gentleman who, after the death of insured Mst. Nasira Parveen collected evidence regarding cause of her death and obtained certain documents in the process was required to be produced as a witness. However, the evidence so collected by him was introduced through Muhammad Shafi, Deputy Manager P.H.S., SLIC as R.W.1. Nothing was brought on record to demonstrate that the witness who had gathered the evidence had either died or was otherwise not available keeping in mind the fact that the gentleman who carried out the alleged exercise of investigation after death of the insured was an employee of the corporation. His non- production as a witness clearly amounted to withholding of the best evidence. All inferences in that regard would, therefore, go against the respondents who were required to support the repudiation of the insurance agreement inasmuch the appellant by submitting all the relevant documents starting from the copy of the insurance policy till the death certificate of the insured had established his entitlement to recover the policy proceeds.
11. Therefore, the order and judgment of the trial Court dated 30-4-2008 is set aside and the petition filed by the appellant is allowed.