MAMOON RASHID SHEIKH, J.---The instant appeal under section 124 of the Insurance Ordinance, 2000 (the Ordinance), calls into question the order, dated 17.03.2014, passed by the Insurance Tribunal, Punjab, Lahore (the Tribunal), whereby the appellant's application for exclusion of time under Section 14 of the Limitation Act, 1908, read with section 151 of the C.P.C. has been dismissed and the respondents' application under Order VII, Rule 11, read with section 151 of the C.P.C., has been accepted, with the result that the appellant's insurance claim/application under Section 118 of the Ordinance for recovery of insurance policy proceeds along with liquidated damages has been rejected being barred by law.
2. The learned counsel for the appellant submits that the appellant's husband. namely Muhammad Tufail, purchased an insurance policy bearing No,50757515161-0 in the sum of Rs,75,000/- from the respondents. The commencment date of the insurance policy was 01.12.2000. The appellant's husband died on 28.09.2004. As a consequence, the appellant lodged the insurance claim with the respondents on 18.11.2004. The appellant's claim was repudiated/rejected by the respondents on 15.02.2005. At the relevant time, even though, the Ordinance had been promulgated, however, the Insurance Tribunals, as envisaged by section 121 of the Ordinance were yet to be established by the Government. As the jurisdiction of the Civil Courts in the matter was barred under the Ordinance and the Insurance Tribunals were yet to be established, the appellant was left with no option but to challenge the order of' repudiation, dated 15.02.2005, through W.P. No,16995/2005. The said petition was accepted through the order, dated 15.11.2005, and the matter was remitted to the respondents for decision afresh in the light of the said order. Further submits that the said order has been reported as "Mst. Irshad Begum v. State Life Insurance Corporation and others" (2006 YLR 1186).
3. Upon remand the respondents once again repudiated the appellant's claim through the letter, dated 15.02.2006. At that point in time also the Insurance Tribunals were yet to be established. The appellant was, therefore, constrained to file yet another writ petition' (W.P. No,1735/2006). During the pendency of the said petition the Tribunal was established through the Notification, dated 20.06.2006. Subsequent thereto the appellant withdrew W.P. No,1735/2006, on 02.04.2009, in order to pursue the appellants remedy before the Insurance Tribunal. The appellant thereafter, filed the claim before the Tribunal on 15.04.2009.
4. Further submits that along with the claim the appellant had filed an application under section 14 of the Limitation Act, 1908 (the Act), read with section 151 of the C.P.C. for exclusion of the time spent by the appellant in the afore-referred litigation. The respondents on the other hand filed an application under Order VII, Rule 11 read with section 151 of the C.P.C., for rejection of the appellant's claim. The appellant's application was dismissed whereas the respondents application was allowed and the appellants claim was rejected being barred by law through the impugned order, dated 17.03.2014, passed by the Tribunal.
5. Further submits that the impugned order, dated 17.03.2014 has been passed by the Tribunal without appreciating the facts obtaining in the case and the provisions of section 14 of the Act.
Contends that it was a fit case for condonation of delay under section 14, ibid., as at the time of death of the appellant's husband the Insurance Tribunals had not been established by the Government. The appellant was, therefore, constrained to firstly file W.P. No,16995/2005 and thereafter W.P. No,1735/2006 for redress of her grievance. The appellant diligently and under good faith pursued her case through the constitutional jurisdiction of this Court. The time, therefore, spent by the appellant in pursuing the afore-referred petitions should have been excluded by the Tribunal whilst considering the question of limitation. Further submits that the impugned order has been passed in violation of the law as laid down in the judgment reported as "Mst. Robina Bibi v.
State Life Insurance and others"(2013 CLD 477).
6. Further contends that even otherwise the Issue of limitation was a mixed question of law and facts, which could not have been determined without recording of evidence. Submits that, on 27.10.2009, Issues were framed in the matter including Issue No,1 on the question of limitation.
Submits that in view thereof the Tribunal was required under the law to determine the said Issue after recording of evidence instead of summarily rejecting the appellant's claim being barred by law. Relies on the judgment reported as "Haji Abdul Sattar and others v. Farooq Inayat and others"
(2013 SCM R 1493).
7. The learned counsel for the respondents supports the impugned order. Submits that admittedly the appellant's husband (the insured) died on 28.09.2004. Under Article 86(a) of the First Schedule to the Act, the period of limitation prescribed for bringing the claim was three (3) years from the date of the death of the insured. The appellant filed her claim before the Tribunal, on 15.04.2009, therefore, her claim was patently barred by time and was thus rejected by the Tribunal in accordance with the law. Relies on the judgment reported as "Mst. Robina Bibi v. State Life Insurance and others" (2013 CLD 477).
8. We have considered the arguments of the learned counsel for the parties and have also gone through the record with their assistance. It is an admitted position that the appellant's husband died on 28.09.2004. It is also admitted that the appellant lodged the insurance claim with the respondents, on 18.11.2004. Her claim was repudiated/rejected by the respondents, on 15.02.2005. It is a further admitted position that at that time albeit the Ordinance had been promulgated yet the Insurance Tribunals as envisaged by section 121 of the Ordinance had not been established by the Government. Moreover, the jurisdiction of the Civil Courts was expressly barred in the matter under section 122(3) of the Ordinance. We, therefore, tend to agree with the learned counsel for the appellant that in such circumstances the appellant was left with no option but to file a constitutional petition against the repudiation/rejection of her claim by the respondents. The appellant consequently filed W.P. No,16995/2005, which was accepted, on 15.11.2005, in the terms that the respondents were directed to decide the matter afresh in the light of the said order. Upon remand the respondents, however, once again repudiated the appellant's claim through the letter, dated 15.02.2006. The appellant, therefore, once again approached this Court through W.P.
No,1735/2006. In the meantime the Tribunal was established on 20.06.2006. As a consequence, the appellant withdrew W.P. No,1735/2006, on 02.04.2009 and filed her claim before the Tribunal on 15.04.2009.
9. The above facts go to show that the appellant was all along pursuing her claim with due diligence and in good faith both before the respondents and also before this Court through the afore-referred petitions. The learned counsel for the respondents has been unable to establish otherwise.
10. It is further observed that the appellant cannot be penalized due to the omission/inaction of the Government in timely establishing the Insurance Tribunals in terms of the Ordinance.
11. In view, therefore, of the peculiar facts and circumstances obtaining in the case and with a view to doing substantial justice we hold that the Tribunal erred in not excluding the time spent by the appellant in pursuing the matter through the said petitions in absence of the establishment of the Insurance Tribunals.
12. Under the circumstances the impugned order, dated 17.03.2014, passed by the Tribunal is set aside and the matter is remanded to the Tribunal for decision afresh. The claim of the appellant shall be deemed to be pending before the Tribunal and shall be decided afresh strictly in accordance with the law after recording of evidence of the parties.
13. It is further directed that the Tribunal shall endeavor to decide the appellant's claim within four months from the date of receipt of a certified copy of this order.