SYED MANSOOR ALI SHAH, J.--- This judgment shall decide the instant case, as well as, the cases listed in the Schedule as the question hereunder referred to the Full Bench for consideration arises out of these cases:-- "Whether mere creation of Insurance Tribunal (under Insurance Ordinance, 2000) can condone the period of limitation resulting in entertaining time-barred insurance claims under Article 86 of the Limitation Act, 1908, especially when the Insurance Ordinance, 2000 does not extend any such benefit?"
2. The above question arose because of the view taken by the Division Bench of this Court in a judgment reported as Ghulam Raza Sajid v. State Life Insurance Corporation of Pakistan and another (2010 CLD 792) wherein delay in filing the application before the Insurance Tribunal under the Insurance Ordinance, 2000 was condoned. Nasir Saeed Sheikh, J. Spoke for this Court in the following manner:-- "10. The provisions of Article 86 of the Limitation Act of 1908, are applicable to the suits instituted under the ordinary civil law before the civil courts. The claim sought to be recovered by the appellant before the learned Tribunal was raised through an application before the learned Tribunal which Tribunal was constituted for the first time through the notification dated 20-6- 2006 issued by the Government of Pakistan, Law Justice and Human Rights Division, and copy of which notification has been placed on the record of this R.F.A. Admittedly , statute on the basis of which the insurance policy of the respondent/ Insurance Corporation were to be enforced was promulgated on 19-8-2000, therefore, we are of the view that cause of action to raise a claim for the enforcement of the insurance policy before the learned Insurance Tribunal arose when the Insurance Tribunal was constituted.
Prior to the date of 20-6-2006 as there was no Tribunal constituted by the Fede ral Government, no question of raising the claim before the Tribunal with respect to the enforcement of an insurance policy arises. The provisions of Article 86 of the Limitation Act of 1908, are applicable to a suit instituted under the ordinary law, therefore, the learned Insurance Tribunal misconstrued the provisions of Article 86 of the Limitation Act of 1908, for non-suiting the appellant under the provisions of Insurance Ordinance of 2000, which envis aged moving of an application before the Tribunal for enforcement of the insurance claim by a policy holder .
11. We are also informed that a claim with respect to the recovery of insurance group policy was raised by the appellant before the Federal Ombudsman in the year, 1999, which claim was granted to the appellant by the Federal Ombudsman vide order dated 2-4-2000 against which a representation was made by respondent/Insurance Corporation before the President of Pakistan, which representation of the respondent/Insurance Corporation was dismissed as barred by time through an order dated 24-10-2000. The contention of the learned counsel for the respondent that as the right of the appella nt to institute the suit under the ordinary law has become time barred by applying the provisions of Article 86 of the Limitation Act of 1908, therefore, the application moved before the learned Insurance Tribunal was barred by time, is not entertain able by this Court as the special law was promulg ated in the year, 2000, an Ordinance No, XXXIX of 2000, and a Special Tribunal was constituted for entertaining the claims of the insurance policy holdeRs, This special law did not specifically restrict the entertainment of the insurance policy claims which might have become due after the promulgation and enforcement of the Ordinance of 2000, therefore, we cannot subscribe to the arguments addressed by the learned counsel for the resplendent that under the Insurance Ordinance of 2000 the claim of the appellant had become barred by time on account o f the death of the deceased having taken place on 10-10-1996.
12. In our view, the constitution of the Tribun al under the special law vide notification dated 20-6-2006, gave rise
(sic) 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 of 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 and is set aside."
(Emphasis supplied).
3. The above reasoning was subsequently followed in two Division Bench judgments of this Court, both authored by Nash Saeed Sheikh, J. i,e,, Mst. RiffatAsahar v. State Life Insurance Corporation of Pakistan . And others (2010 CLD 1 123) and Mst. Fatima Bequm u. State Life Insurance Corporation of Pakistan and others (2010 CLD 1 171).
4. Learned counsel for the appellant while supporting the above view has also placed reliance on State Life Insurance Cur oration v. Mst. Sadaiat Bano (PLD 2008 Lahore 461), to contend, firstly , that Article 181 of Limitation Act; 1908 applies to Applications filed before the-Insurance Tribunal under Insurance Ordinance, 2000 and, secondly , Applications can be cons idered within limitation if the claimant has been diligently agitating the matter before other forums before the constitution of the Insurance Tribunal under the repealed Insurance Act, 1938. Hamid Ali Shah J. (as he then was) Speaking on behalf of this Court in the above cited judgment held:-- "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 apply to the case in hand. The claimant/respondent approached Wafaqi Mohtisib 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." (Emphasis supplied).
5. View taken in Mst. Sadaqat Bano's case was followed in the subsequent Division Bench judgments of this Court namely:- State Life Insurance Corporation of Pakistan through Chairman and another v. Mst. Naseem Bequm (2009 CLD 1413 ), Azhar Igbal v. State Life Insurance Corporation of Pakistan through Chairman and another (2009 CLD 910), Mst. Ijaz Bequm v. State Life Insurance Corporation (2009 CLD 1317 ) and Nasreen Bequm v. State Life Insurance Corporation of Pakistan through Chairman and another (2009 CLD 1480 ).
6. In Mst. Rukia Bivi v. State Life Insurance Corporation of Pakistan through Chairma n and another (2009 CLD 1213 ) Muhammad Khalid Alvi, J. With somewhat different reasoning arrived at the same conclusion. Relevant1 2 3 extract is as under:-- "2. It is contended by the learned counsel for the appellant that even according to the Article 86(a) of the Limitation Act, the period of limitation is three years from the date of death of the ensured (sic). This type of claim used to be filed before the Civil Courts under the plenary jurisdiction before the establishment of the Insurance Tribunal in the year, 2006, therefore, the said limitation was applicable to the suits prior to the establishment of the Tribunal and thereafter now it would be applicable to the application to be filed before the Tribunal. Since the Tribunal was established in 2006 the date of limitation cannot be taken as date of death of the insured for approaching the Tribunal."
7. Learned counsel for the respondents, on the other hand, submitted that period of limitation of three years is applicable to the Applications filed before the Insurance Tribunal under the Ordinance. He further submitted that the Ordinance does not have a retrospective effect and any cause of action accrued in favour of any claimant prior to the promulgation of the Ordinance will be regulated under the repealed Insurance Act, 1938. He further submitted that mode of agitating a claim under the repealed Insurance Act, 1938 was by filing a civil suit within a period of three years, commencing from the death of the deceased/insured in accordance with the provisions of Article 86(a) of the Limitation Act, 1908.
8. Arguments heard. Relevant laws and record have been perused in detail.
9. Brief review of the insurance laws show that under section 46 of erstwhile Insurance Act, 1938 (Act No, IV of 1938) ("Act") holder of an insurance policy obtained after the commencement of the Act could sue for any relief in respect of the policy in any Court of competent jurisdiction in Pakistan. Under section 2(6) of the Act, "Court" meant the principal Civil Court of original jurisdiction in a district and included the High Court in exercise of its original jurisdiction. The period of limitation for such a suit not being provided under the Act, was three years under Article 86(a) of the Limitation Act, 1908 which states:-- Description of suit Period of limitation Time from which period begins to run 86(a) On a policy of Insurance when the sum insured is payable after proof of the death has been given to received by the insurers.Thirty days (a) The date of the death pf the deceased.
10. Insurance Ordinance, 2000 ("Ordinance") repealed the Act and provided for an Insurance Tribunal which was finally constituted under section 121 of the Ordinance on 20-6-2006 through. a notification. Section 122(3) provides that no court - other than a Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Tribunal extends under the Ordinance . Section 122(1)(a) provides that the Tribunal shall in the exercise of its civil jurisdiction in respect of a claim filed by a policy holder against an Insurance Company in respect of or arising out of a policy of insurance have powers vested in a civil court under Code of Civil Procedure.
Therefore; even though the claim is filed in the shape of an Application under the Ordinance, it is no different from a suit as Is evident from the reading of section 123(1) which provides that the Tribunal while holding "trial of an application" shall enjoy the powers of a civil court trying a suit under the C.P .C.
11. Section 115, which falls under Chapter XIV of the Ordinance provides for "Special Provisions of Law" and states that only claims arising out of insurance policies issued after the commencement of the Ordinance i.e., 19-8-2000 can be agitated before the Tribunal. Section 2(lxv) defines the Tribunal to mean the Tribunal constituted under section 121 of the Ordinance. Section 170 of the Ordinance saves all the pending contracts and proceedings commenced under the repealed Act.
12.Collective reading of the above provisions, of law shows that only the claims arising under insurance policies issued after the commencement of the Ordinance can be brought before the Insurance Tribunal while the insurance policies issued prior to the commencement of the Ordinance continue to be governed under the repealed Insurance Act. 1938 and will continue to be agitated before the court of competent jurisdiction in terms of section 2(6) of the Act.4 5 6 7 13 .In the present appeals, admittedly , the dates of issuance of insurance policies are prior to the commencement of the Ordinance as detailed hereunder :-- {{T ABLE}} Sr. No. Appeal/W .P. No. Date of Insurance of Insurance PolicyDate of Death
1. 183/2008 13-8-1995 6-12-1997
2. 183/2008 1-4-200026-5-2000
3. 183/2008 25-9-1996 16-8-1998
4. 183/2008 1-4-1994 8-8-1997
5. 183/2008 30-11-1994 30-11-19947-10-1997
6. 385/2007 26-7-1998 1-3-19969-3-1997
7. 911/201 1 29-7-1998 1-9-1999
8. 1024/201 1 19-4-1994 24-3-1997
9. W.P No.984/2009 1-1-1996 9-3-1997 The Insurance Tribunal cannot' assume jurisdiction over claims that arise out of insurance policies issued prior to the date of commencement of the Ordinance i,e,, 19-8-2000. It is for this reason that there is no legislative cover in the Ordinance for transfer of pending claims under the erstwhile repealed Act to the Insurance Tribunal or for grant of fresh lease of time to time barred claims under the repealed Act.
14. Further , under section 170 of the Ordinance. Insurance policies prior to the commencement of the ID Ordinance are to proceed under the repealed Act. Hence, the time specific jurisdictional threshold under section 115 of the Ordinance has not been considered by the above cited judgment rendering them per incuriam.
15. For the above reasons there is no need to touch the merits or the grounds of appeals/petition in these cases, when at the very outset the Insurance Tribunal had no jurisdiction to entertain the Application of the appellants.
These appeals/petition are, therefore, allowed and the impugned orders are set aside with the direction to the Insurance Tribunal to return the applications of the appellants to be filed before the court of compete tent jurisdiction.
16. Even though the question of limitation fades away in the light of the fundamenta l jurisdictional question in these cases, we are of the considered view that on the basis of statutory provisions noted above, the question of limitation settled in the afforested cases needs to be revisited. We, therefore, require it necessary to deliberate on this issue.
17. Period of limitation has not been prescribed under the Ordinance for filing of Application (claims) before the Insurance Tribunal under section 121 of the Ordinance. In the absence of a statutory provision under the Ordinance, Article 86(a) of the First Schedule to Limitation Act, 1908 applies to insurance claims and in the presence of a specific provision, the general provision under Article 181 of the Limitation Act 1908 will not apply .
18. The concept of Condonation of delay or extension of period of limitation is provided under section 5 of the Limitation Act, 1908 and can only be availed if the said provision is made applicab le to the application filed before the Tribunal through an enactment. If such a provision is available, sufficient reasons have to be furnished to satisfy the Court for not approaching it within time. As section 5 of the Act has not been extended to the Insurance Tribunal under the Ordinance, the facility of 'condonation' or 'extension of time is not available to the Applications filed before the Insurance Tribunal.
19. The concept of Computation of limitation, on the other hand, is merely a mode of calculating period of limitation by excluding time, which is permitted to be excluded under Limitation Act.8 9 1908. The above cited judgments do not differentiate between condonation and computation and have with respect erroneously applied these concepts to grant fresh lease of limitation to claims arising out of insurance policies issued under the previous Act. We understand that a fresh cause of action cannot arise by the constitution of Tribunal in the year 2006. Constitution of an Insurance Tribunal, subsequent in time may at best provide a new forum for agitating the existing cause of action, which shall be subject to the provis ion of the Insurance Ordinance, 2000 and Limitation Act, 1908.
20. It also appears that the learned Divisi on Benches of this Court in the above cited judgments were not properly assisted on the aforementioned provisions of the Ordinance, as well as, question of limitation involved in these cases. W e, therefore, dif fer with the views expressed in the above judgments.
21. The legal position that emerges is as follows:--
(i) Under section 115 of the Ordinance, only claims arising out of insurance policies issued after the commencement of the Ordinance i,e,, on or after 19-8-2000 can be entertained by the. Insurance T ribunal.
(ii) There is no provision under the Ordinance to transfer pending cases under the repealed Act to the Insurance Tribunal, hence, claims arising out of insurance policies prior to the commencement of the Ordinance shall continue under the repealed Act i,e,, Insurance Act, 1938 before the court of appropriate jurisdiction.
(iii) There is no provision in the Ordin ance that condones the period of limitation under section 5 of the Limitation Act, 1908, however , computation of limitation is permissible subject to fulfilling the requirements of clauses (i) and (ii) above.
(iv) Claims arising out of insurance policies prior to the commencement of the Ordinance may apply to the court of competent jurisdiction under the repealed Act, subject to the provisions of Limitation Act, 1908, which will be considered by the respective court on its merits in accordance with law .
22. For the above reasons, the question referred to the full Bench is answered in the above terms. The appeals are allowed and the impugned judgment dated 30-4-2008 is set aside with the direction to the Insurance Tribunal to return the Applications to the appellant for filing before the Court of competent jurisdiction.
SCHEDULE Sr. No. Appeal/W .P. No.
1. R.F.A. No.185 of 2008
2. R.F.A. No.188 of 2008
3. R.F.A. No.188 of 2008
4. R.F.A. No.188 of 2008
5. R.F.A. No.385 of 2007
6. R.F.A. No.91 1 of 201 1
7. R.F.A. No.1024 of 2011
8. W.P. No.948 of 2009 "to" Also reported as 2008 CLD 1069 2008 CLD 1069 "unsured" Insurance Act, 1938 and Insurance Ordinance. 2000 Date of Commencement: 26-2-1938 promulgated on 19-8-2000 Details of the Policies were submitted by the learned counsel for the appellant which has been placed on the record as Mark "A".1 2 3 4 5 6 7 8