' NASIR SAEED SHEIKH, J.---This R.F.A. Is directed against the judgment dated 29-11-2007 passed by the learned Insurance Tribunal Punjab Lahore whereby the claim preferred by the appellant-widow of late Muhammad Asghar Akram before the Insurance Tribunal constituted under Insurance Ordinance, 2000 was rejected.
2. Briefly stating the facts of the case are that late Muhammad Asghar Akram who died on 10-1- 1998 got himself insured with the State Life Insurance Corporation of Pakistan, respondent No,1 through Insurance Policy No,506378071-2 dated 29-6-1995 which date is reflected in the declaration annexed on the reverse page No,2 of the Insurance Policy Form exhibited as Exh.R-2.
Late Muhammad Asghar Akram got himself insured for a sum of Rs,10,00,000 (Rupees one million) .
At the time of issuing this insurance policy in favour of the said insured person the State Life Insurance Corporation of Pakistan conducted all the necessary investigation with respect of his state of health through its own agency and medical officer. Unfortunately the insured person died on 10-1-1998. The State Life Insurance Corporation did not make payment of claim according to the insurance policy resultantly the widow of the deceased insured person lodged a complaint before the Federal Ombudsman which was decided in her favour vide order dated 6-8-2002 which fact is mentioned in the impugned judgment by the learned Insurance Tribunal. On a representation made by the respondent-Corporation the order of the Federal Ombudsman was set aside on 27- 3-2003 against which order the recourse was had to this court and the order passed on the representation of the respondent was set aside by this court through the order dated 30-5-2003.
The order passed by this court was further assailed before the honourable Supreme Court of Pakistan and the case was remanded back by the apex Court to this court for decision afresh. In the meantime Insurance Tribunal was constituted and the appellant-widow of the insured person moved an application before the Tribunal for the recovery of insurance policy proceeds along with liquidated damages through the application dated 18-7-2006. This application was contested by the respondents and the Tribunal framed the following issues:-- Issues,.
(1) Whether the petition is bad in view of preliminary objections Nos.1, 4, 5, 7, 8, 9 and 10 of the written reply? OPR.
(2) Whether the petitioner has no cause of action? OPR.
(3) Whether this Tribunal lacks of jurisdiction to hear the petition? OPR.
(4) Whether the appropriate court fee has not been affixed, if so, its effect? OPR.
(5) Whether the petition is hit by principle of res judicata? OPR.
(6) Whether the petitioner is entitled to policy proceeds, along with Liquidated damages, if so, to what amount? OPP.
(7) Relief.
3. The parties produced their respective evidence. The learned Insurance Tribunal vide judgment dated 29-11-2007 dismissed the application of the appellant for' the recovery of insurance claim as prayed for in the application.
4. This judgment passed by the Insurance Tribunal Punjab Lahore has been assailed through the instant R.F.A.
5. It is contended by the learned counsel for the appellant that the insurance policy was issued by the respondent No,1 after conducting the necessary investigation through its own doctor and the repudiation of the Insurance Policy order dated 4-1-1999 Exh.R-4 passed by the respondent No,1- State Life Insurance Corporation of Pakistan is absolutely illegal as it is not based upon any reasons. It is also argued that before repudiating the insurance policy of the late husband of the appellant no show-cause-notice was issued by the State Life Insurance Corporation of Pakistan. It is further argued that the insurance policy cannot be repudiated after the expiry of period of two years from the date of its commencement as per provisions of section 80. The learned counsel elaborated that the insurance policy was issued by the respondent on 29-6-1995 Exh.R-2 and its repudiation through order dated 4-1-1999 Exh.R-4 is void ab initio and violative of the provisions of section 79 read with section 80 of the Insurance Ordinance, 2000.
6. It is further argued by the learned counsel for the appellant that in section 80 of the Insurance Ordinance, 2000 insurer State Life Insurance Corporation has been given the powers to repudiate the insurance policy if it has been obtained through suppression of material facts or on the basis of some fraudulent assertions by a policy holder but the onus to prove these facts is on the shoulders of the Insurance Corporation which onus has not been discharged in the instant case. The learned counsel for the appellant further argued that during the trial of the claim application moved before the Insurance Tribunal a report Exh.R-5 has been produced by the State Life Insurance Corporation which report is not per se admissible and the person who conducted the investigation and submitted the report R-5 was not produced so as to enable the appellant to cross examine the said executants of the report Exh.R-5. The learned counsel concluded that by non-producing the officer who prepared the report R-5, the said document cannot be treated as admissible piece of evidence against the claim of the appellant. It is further argued that the question of limitation has been illegally addressed by the Insurance Tribunal in the matter as the Insurance Tribunal was constituted on 20-6-2006 and upon constitution of the said Tribunal the application was moved which cannot be treated as barred by time. In this context learned counsel relies upon an earlier unreported judgment pronounced by this court in case R.F.A. No,16 of 2008 a copy of which has been placed on the record by the learned counsel for the appellant. The learned counsel thus prayed for setting aside of the impugned judgment on inter alia on the above mentioned grounds.
7. The learned counsel for the respondents has argued that the Insurance Ordinance was promulgated on 19-8-2000 and it does not have any retrospective effect. According to the learned counsel the provisions of Insurance Ordinance, 2000 cannot be invoked for the benefit of the appellant. The learned counsel for the respondents further argued that it is not necessary that a party seeking to invoke the provisions of the Ordinance should wait for the constitution of a Tribunal under section 170(4) of the Insurance Ordinance 2000 and that the machinery under the previous law of Insurance Act, 1938 was available to the appellants and the said remedy having not been availed of by the appellant therefore Insurance Ordinance, 2000 provisions cannot be pressed into service by the appellant and as the recovery of the claim by the appellant under the previous law had become barred by time therefore the learned Insurance Tribunal has rightly held that the application moved by the appellant for the recovery of the Insurance policy claim of the appellant is time-barred.
8. Referring to the merits of the case the learned counsel for the respondents has contended that the insurance policy was procured by the insured person from the respondent No,1 by concealment of facts and that investigation was conducted by a duly authorized person under section 79 of the Insurance Ordinance, 2000 which has been exhibited as Exh.R-5. It is further contended by the learned counsel for the respondents that the officer of the respondent who conducted investigation and prepared report R-5 had retired from the job therefore he was not produced by the respondent. It is further contended that the report of the Investigating Officer R-5 has not been challenged by the appellant at any stage, therefore, the objection of the appellant has no legal value. The learned counsel has argued that the R.W.1 who has been produced by the respondents has not been cross-examined by the appellant on this matter.
9. We have considered the arguments of the learned counsel for the parties and have perused the record with their valuable assistance.
10. As we had already announced our opinion with respect to the question of limitation of presenting a claim before the Insurance Tribunal through our judgment passed in R.F.A. No,16 of 2008 we have held that under the special law an Insurance Tribunal was constituted vide Notification dated 20-6-2006 and in paragraph No,12 of our judgment we expressed the following opinion on the point:-- "In our view, the constitution of the Tribunal under the special law vide Notification dated 20-6- 2006, gave rise an intimation to the insurance policy holders to seek enforcement of their claims from the learned insurance Tribunal constituted under the Ordinance of 2000, therefore, in our opinion the limitation for moving the Tribunal for the enforcement of insurance policy claim will commence from the date when the Tribunal was constituted for the first time on 20-6-2006. In this context, the Article 86 of the Limitation Act of 1908, will not cover the cases of those claimants who move the learned insurance Tribunal for the purposes of their insurance policies claim through constitution of the Tribunal constituted under the Ordinance, 2000. Thus the finding of the learned Tribunal of holding the claim as moved before the Insurance Tribunal to be barred by time is not sustainable."
The findings of the learned Insurance Tribunal with respect to the application moved by the appellant before the Tribunal to be barred by time is therefore not legally correct and is set aside.
11. On the merits of the case we observe that the report Exh.R-5 has not been declared as per se admissible by the provisions of Insurance of Ordinance, 2000. The contentions of the learned counsel for the respondent that the officer of the respondent who prepared the report Exh.R-5 had retired and was not produced for the said reason is not made out from the record. We had asked the learned counsel for the respondent to point out any document from where it has been established by the learned counsel for the respondent during the trial of the matter before the tribunal that said officer is not available and cannot be produced for the reasons stated by the learned counsel for the respondents before us, learned counsel admitted that no such material is available on record. The statement of facts made by the officer who prepared the report Exh.R-5 without producing him for cross-examination cannot make Exh.R-5 admissible in the eye of law and the learned Tribunal has illegally relied upon the said report in his impugned judgment. The contentions of the learned counsel for the respondents that the insurance policy obtained by the late husband of the appellant was through material suppression of facts and by making fraudulent declaration is not established by the respondents during the trial of the instant case. Admittedly at the time of issuing the insurance policy in favour of the late husband of the appellant, respondent- Insurance Corporation itself undertook the investigation through its own doctor and there was nothing found by the said doctor which does not entitle the issuing of the policy in favour of the late husband of the appellant. We have also gone through the repudiation order dated 4-1-1999 Exh. R- 4 and we do not find that this repudiation order is based upon any reasons. This repudiation order Exh.R-4 is further not stated to be based upon the report dated 15-4-1998 which has been produced as Exh.R-5 by the respondent Corporation. The repudiation order dated 4-1-1999 the operative part of which is reproduced as below:-- "Your late husband submitted the Proposal Form and the Personal Statement with the above declaration duly signed by him and it pains us to tell you that he did not disclose certain material facts. Had he disclosed them, State Life could not have Insured his life under the same terms as given in the above-mentioned policy. State Life has gathered sufficient evidences to prove the concealment, of these facts by the deceased and therefore the policy has been rendered null and void.
' We regretfully express our inability to pay the claim under the policy."
So the report R-5 is without any specification and is vague and cannot be treated to be based on any valid reasons. We had asked the learned counsel for the respondent whether any show- cause-notice was issued by the State Life Insurance Corporation against the appellant before passing the impugned order dated 4-1-1999 Exh. R-4 upon which the learned counsel for the respondent has candidly stated that no such notice was issued. We are therefore of the opinion that Exh.R-4 is not a legally sustainable order of repudiation of the insurance policy of the late husband of the appellant. The appellant successfully lodged a complaint before the Tribunal for the recovery of the amount of insurance policy and the learned Tribunal illegally declined to the appellant the relief prayed for by passing the, impugned judgment, which judgment is not legally sustainable.
11. In view of the above circumstances, the instant R.F.A. Is accepted and the impugned judgment is set aside and the application as moved by the appellant is ordered to be accepted and we direct the respondents State Life Corporation to make the payment of the claim amount to the appellant in accordance with Insurance Policy. There is no orders as to costs.