' IKRAMULLAH KHAN, J.---State Life Insurance Corporation of Pakistan, through its Chairman and 5 others have impugned order dated 13-3-2012 passed by the learned Insurance Tribunal Peshawar/District Judge, Peshawar, through the instant appeal.
2. Relevant facts are that one Liaqat All (Now deceased) entered into a contract with appellants for life insurance policy in the year 2004, which was termed as "Jeven Sathi Mansoba" Both parties signed the said agreement after fulfilling all the codal formalities required for such like contract of life insurance under the requisite rules in vogue at that time. The policy holder, deceased Liaqat All was murdered by some one and in this respect an F.I.R. Was lodged (this fact is not disputed). The respondent No,1, who is widow of deceased Liaqat Ali, filed her claim with appellants to collect the sum of the policy as, according to terms and condition of this special kind of life insurance policy "Jeven Sathi Mansoba" if any partner is died, the other living partner would receive full amount of the sum insured, but she was denied by appellants to pay the amount of policy on the ground that prior to the death of deceased Liaqat Ali, while concluding the life insurance policy agreement, he had concealed the fact that he was suffering from some disease. On refusal of the claim preferred by respondent No,1, she approached the learned Insurance Tribunal for redressal of her grievance.
The learned Tribunal after recording pro and contra evidence of both parties, awarded decree in favour of respondent No,1, to the tune of Rs,5,00,000, while rest of the prayer was rejected.
Appellants have raised a number of factual as well as legal grounds in their appeal for the purpose to avoid the impugned decree.
3. The main ground of appeal as stressed with vehemence by the learned counsel for the appellants was that as the deceased had concealed his ailment, before entering into the agreement with appellant, so this concealment of fact disentitle the respondent No,1, to claim for the insured amount but, the learned Tribunal out rightly has ignored this aspect of the case and thereby erred in law while awarding decree in favour of the respondent No,l. According to the arguments of learned counsel whenever, a person conceal some material facts from the insurer at the time of entering into contract of "life insurance policies" the insurer is at liberty to avoid such contract, whenever these concealed facts comes to discloser and since the deceased Liaqat Ali had note acted with good intention and had fraudulently concealed his ailment from appellants, therefore, appellants are not bound to pay the amount of the policy purchased by deceased Liaqat Ali.
4. On the other hand, the learned counsel on behalf of respondent No,1, brought the fact before this Court that, before entering into contract of life insurance policy, the deceased was duly examined by a competent and authorized Medical Officer on the panel of the appellants, that at the time of signing the policy, deceased was not suffering from any kind of sickness or illness, while, more so the death of the deceased was not direct result of any illness, but he was murdered accidentally and since, deceased had insured his life with appellants for consideration in term of premium duly agreed upon by both the parties and as per condition of the contract, in event of death, of one of either spouses, duly insured the living one would be entitled to collect the total amount of life insurance policy and stressed that, appellants have no right to deny the insured amount to respondent No,1 and that too, after the death of the deceased, while no such objection was ever raised or communicated to the deceased in his life time. Before deciding the instant appeal, it would be convenient to give reference to the various provisions of the Insurance Ordinance 2000, which has direct impact on the controversy involved in the present appeal.
"77. Construction of ambiguities in favour of policy-holder---(1) Any ambiguity in a contract of insurance shall not be capable of being construed in a manner which is contrary to the interests of the policy-holder.
(2) An issuer or an insurance intermediary shall:
(a) when drafting policy documentation, make reasonable efforts, to use plain language; and
(b) when drafting proposal forms and claim-forms, make reasonable 'efforts to ensure that it identifies in those documents the usual information the insurer ordinarily requires to be disclosed; and that those documents are in plain language and provide instructions where necessary on how the question should be answered; and comply with the law.
(3) Failure to comply with foregoing subsection shall be an absolute bar and shall preclude an insurer from refusing payment of a claim on grounds of noncompliance or non-disclosure by the policy-holder, where it may reasonably be determined that the noncompliance or nondisclosure resulted from inadequate understanding by the policy-holder of the language of the policy, proposal or claim from as a result of such failure.
78. Exclusion of provisions of Ordinance void; an offence.---where any provision in a contract of insurance has the effect of modifying or excluding, to the prejudice of any person other than the insurer, any applicable provision of this Ordinance, any such provision shall be void and the .Insurer shall be liable to punishment for an offence under this Ordinance.
79. Remedies for non-disclosure or misrepre- sentation.---(1) This section shall apply where the person who became the policy-holder under a contract of insurance upon the contract being entered into:
(a) failed to comply with the duty of disclosure; or
(b) made a misrepresentation to the insurer before the contract was entered into.
(2) The insurer may 'not avoid a contract of insurance by reason only of the failure to comply with the duty of disclosure or the misrepresentation if:
(a) the insurer would have entered into the contract, for the same premium and on the same terms and conditions, even if the insured had not failed to comply with the duty of. Disclosure or had not made the misrepresentation before the contract was entered into: or
(b) the failure to comply with the duty of disclosure or the misrepresentation was not fraudulent: ' Provided that in circumstances to which clause (b) refers, the insurer shall be entitled to be placed, in such manner, not otherwise inconsistent with this subsection, as may be prescribed, in a position in which the insurer would have been if the failure had not occurred or the misrepresentation had not been made.
(3) Subject to subsection (2), if the failure was fraudulent or the misrepresentation was made fraudulently, the insurer may avoid the contract.
(4) Nothing in this section shall affect any right of an insurer to recover damages from any person in respect of loss suffered by the insurer as a result of a fraudulent act by that person, or any criminal liability to which any person may be subjected by reason of a fraudulent act by that person.-
80. Policy not to be called in question on ground of mis-statement 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 in the proposal for insurance or in any report of a medical officer, or referee, or friend of the policyholder, 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 policyholder 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."
6. It is evident from the record of the Tribunal available on the file, that prior to conclusion and acceptance of life insurance policy, the deceased was examined by a competent and an authorized Medical Officer, on the panel of appellants, who declared the deceased fit and healthy, recommended the policy holder to be insured and thereafter appellants concluded the contract with the deceased.
7. It is also non-rebuttable that, deceased insured himself and his wife in the year 2004, while he was murdered in the year 2007. But from the, date of insurance till his death, appellants never raised any objection as for as concealment of his ailment is concerned and as per the contract, regularly received and accepted the agreed premium from the deceased till he was alive and this fact is also not being controverted by appellants in their pleading, so are admitted facts.
8. Since, the appellants have entered into the contract after fully satisfying themselves and accepted the report of a competent Medical Officer of their own choice. So keeping in view, the provision of section 77 of the Insurance Ordinance, 2000 read with section 78 and subsection (2(a)
(b)) of section 79 on the subject, the appellants cannot repudiate or avoid the contract after lapse of three years and that too after the death of the deceased, therefore, no interference is warranted in the decree/order of the learned Insurance Tribunal. However, as the respondent No,2 is a widow and mother of minors kids, run pillar to post to get her due right, which was illegally denied to her on flimsy ground and more than six years has been elapsed, which still, too it is not certain, when she would be compensated, in spite of the fact that Pakistani rupees are devaluating day to day and on the other hand, price of house hold commodities are going on. In such situation, the original amount of decree would not proper redressal of the grievance of the respondent No,1, therefore, keeping in view the devaluation of our currency and increase of price of normal commodities, coupled with the mandatory provision of section 118 of the Insurance Ordinance, 2000, the appellants admittedly failed to pay the amount insured by policy holder within the stipulated time of ninety days, without any reasonable, plausible excuse, we have no other option but to burden the appellants/ corporation with a cost of Rs,50,000 in shape of liquidated amount to be paid without any further pretext on any ground along with the amount decreed in favour of respondent No,1, but not later than ninety days as envisaged in section 118 of the Insurance Ordinance, 2000.
The executing Court may ensure the collection of the whole amount, mentioned herewith in this order positively within the prescribed period of ninety days. Accordingly, this appeal is dismissed, with cost as mentioned above.