MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that husband of appellant namely Ilyas Ahmad Cheema applied for Life Insurance Policy on 23-12-1997 on which a provisional receipt was issued and on presentation of cheque amounting to Rs,12,000 on 31-12-1997 policy was finalized on the same day. Incidentally, said Ilyas Ahmad Cheema died in a road accident on 26-1-1998, for which an F.I.R. Was also lodged by the appellant on the same day. She also lodged her claim for insurance amount on 23-5-1998. This claim was repudiated on 31-7-2001, whereupon, appellant filed a complaint before the Honourable Federal Ombudsman, which was allowed and on representation by the respondents order was upset by the President vide order dated 11-10-2002.
This order of the President was assailed by the appellant through constitutional petition before this Court. Order of the President was set aside and the case was remanded to President for reconsideration. In the meanwhile, Insurance Tribunals were constituted on 20-6-2006, therefore, appellant withdrew her complaint, which was still pending consideration before the President and filed the instant application before the learned Insurance Tribunal on 8-7-2006. Claim of the appellant was contested by respondents on the ground that cheque issued by deceased on 31-12- 1997 was bogus. As a matter of fact, after his death his legal heirs in collaboration with staff of respondents managed to take away the cheque and made counter cash payment, whereupon, the policy was issued on 9-2-1998. After recording evidence of parties learned Tribunal vide order dated 19-12-2007 dismissed the application, hence, this appeal.
2. It is contended by learned counsel for appellant that appellant has been non-suited on two counts; firstly, that under Article 86-A of the Limitation Act the application was barred by time and secondly that since the matter had already been adjudicated before learned Ombudsman and this Court as well, therefore, same is hit by res judicata.
3. It is contended by learned counsel for respondents that disputed cheque was given by deceased on 31-12-1997 but after his death this cheque was removed by the claimant in collaboration with staff of respondents and payment was made in cash. It is further submitted that this matter was inquired at departmental level and officials found involved in this fraud were adequately punished. It is also added that Mark-A is a document which indicates that cheque in dispute was never encashed from the Bank.
4. We have considered arguments of learned counsel for the parties.
5. With regard to question of limitation, suffice it to say that this Court has already resolved this issue in RFA No,10 of 2008 vide judgment dated 19-5-2009 and also in a case reported as PLD 2008 Lahore 461. Both the said judgments have unanimously resolved that limitation provided under Article 86-A was with reference to the suits filed by the claimants under the plenary jurisdiction of the civil Court before establishment of Tribunals in the year 2006. In this view of the matter, it is held that application brought by the appellant was within time.
6. So far as the other question with, regard to res judicata is concerned, suffice it to observe that this Court while dealing with the writ petition filed by the appellant had not finally decided the issue involved rather it has remanded the case to President, therefore, without final adjudication by a Court of competent jurisdiction principle of res judicata cannot be made applicable.
7. Coming to contention of learned counsel for respondents and plea taken by them that payment was actually made through cash after receiving back the cheque presented by deceased on 31- 12-1997, is not borne out from the record rather Exh.R/2 and Exh.R/4 clearly indicate that the said cheque was encashed on 6-2-1998. Meaning thereby that payment made by the deceased on 31- 12-1997 through cheque, shall be deemed to have been finally paid on the said day. If the cheque had not been presented by the respondents in due time, therefore, is no fault on the part of the insured or claimant. Learned counsel for the respondents has tried to lead us to a different conclusion with reference to Mark-RA, which is letter from the Manager of UBL, Malikwal Branch, which says that disputed cheque No, 491489 was not paid by the said Branch. In support of this document it was necessary for respondents to have produced the said Manager along with his record to appear before the Court and stand the test of cross-examination. Failure on their part leads to nothing but to discard this document from consideration.
8. Apart from this respondents had held an inquiry against their own officials with regard to this case but neither the Inquiry Officer nor inquiry proceedings nor the witnesses who attended that inquiry have been brought before the Court in order to establish the fact that any fraud was committed in removal of that cheque. In this view of the matter, the defence taken up by the respondents could not be established on record. Resultantly, we allow this appeal, set aside the order passed by learned Insurance Tribunal and allow the application. No order as to costs.