CH. MUHAMMAD IQBAL, J.---Through this Insurance appeal the appellant challenged the judgment dated 19.05.2016 passed by the insurance Tribunal Punjab Lahore, whereby the claim/application of the appellant under section 122 of the Insurance Ordinance, 2000 was dismissed.
2. Brief facts of the case are that the appellant's husband Muhammad Afzal purchased an investment plan/life insurance Policy No,202468/133-IP valuiig Rs,2,66,000/- for the terms of 20 years against annual premium of Rs,15,037/- from respondent No,2 commending 01.02.2008 along With additional risk cover accidental death, disability benefit and family income benefit for the terms of 10 years under which Rs,2660/- were payable per month from 30.07.2010 till 01.02.2018. The appellant being wife was appointed as nominee of the insured. That Muhammad Afzal policy holder died on 30.07.2010, his death claim along with all documents was filed, which was repudiated in terms of letter dated 25.01.2011. The appellant filed civil suit for the recovery of amount under the policy, but the said suit was withdrawn vide order dated 18.06.2012 whereafter appellant filed application before the Insurance Tribunal. The respondent filed written statement and admitted the issuance of policy but contested the claim on the ground that insured was patient of heart disease before issuance of policy; that he concealed his fatal disease while submitting his personal information to the company, therefore, the contract was not enforcible. The learned Insurance Tribunal framed the issues on 15.12.2012, recorded evidence of the parties and vide judgment/order dated 06.05.2015 accepted the application of the appellant. The respondent filed Insurance Appeal No,942 of 2015, which was accepted by this Court vide Judgment dated 17.03.2016 and the matter was remanded to the Insurance Tribunal with the direction to allow the respondents to summon the doctor or any concerned official of Parvez Ellahi Institute of Cardiology, Multan in order to substantiate document Mark-D. In post remand proceedings, the Insurance Tribunal recorded statement of Dr. Tariq Abbas, Associate Professor of Ch. Pervaiz Elahi Institute of Cardiology, Multan as. RW2 and also awarded an opportunity to the appellant to produce evidence but her counsel made statement for non-producing of any evidence in rebuttal. The learned Insurance Tribunal after hearing both the learned counsel for the parties, vide order/judgment dated 19.05.2016 dismissed the claim of the appellant, hence the present Insurance Tribunal.
3. The learned counsel for the appellant submitted that the impugned order/judgment passed by the Insurance Tribunal is against the law and facts of the case and is based on mis-reading and non-reading of oral as well as documentary evidence. He further submits that the Insurance Tribunal has illegally non-suited the appellant on presumptive assertion of pre-insurance ailment of the insured in the year 2006 and suppression of heart disease but respondent has not produced any documentary evidence in this regard. He further submits that policy was purchased on 01.02.2008 whereas insured died on 30.07.2010 nearly after about 2 years 5 months 29 days from the commencement of policy and as per Section 80 of the Insurance Ordinance, 2000 respondent company is precluded to raise objection of pre insurance ailment rather it was under obligation to prove the factum of concealment or suppression of material facts through convincing evidence but it has failed to prove any concealments as per law as such the judgment of the learned Tribunal suffers from illegality and deserves reversal.
On the other hand the leaned counsel for the respondents submits that appellant's husband concealed his ailment from the respondent company, which concealment was proved through statement of RW2 as well as oral and documentary evidence, therefore, the Insurance Tribunal rightly passed the impugned judgment/order and no illegality has been committed, as such the impugned judgment does not require any interference.
4. Heard. Record perused.
5. To decide the controversy between the parties issue No,1 is pivotal issue which is reproduced as under:- "Whether the applicant is entitled for the Insurance Claim along with liquidated damages? OPA."
Onus to prove this issue was on the appellant, who herself appeared as AW1 and stated that her husband purchased insurance policy bearing No,202468/133-IP from the respondent company amounting to Rs,266,000/- commencing from 01.02.2008 and annual premium of Rs,15,037/- was fixed; that an additional contract was also executed between the parties comprising of family benefits as well as death and disability benefits for the term of 10 years and same was also attached with the policy. Under the additional contract of "family income benefit"; an amount, of Rs,2660/- per month from 30.07.2010 till 01.02.2018 was payable. That she was appointed as nominee in the said policy. She also produced documents Mark-A to Mark-J/1-6 in her evidence.
During cross-examination she deposed that she is an illiterate woman and has furnished the documents to the company through her brother Qalb-e-Hassan because she was in Iddat. She also stated that her husband remained admitted in Ch. Pervaiz Elahi, Institute of Cardiology, Multan in the year 2010. On 11.6.2010, he was got medically examined from the said hospital; and he was not a smoker.
On the other hand Khawaja Mujeeb ur Rehman, Regional Sales Director of the respondent company appeared as RW1 and stated that Muhammad Afzal was insured in February, 2008; that the company sent proposal form to the customer of policy requiring his complete present and past health information as well as medical history who (insured) answered against all questions from item Nos,63 to 83 relating to his health in negative and reported himself to be enjoying the best of his health till the time of obtaining policy. He further stated that the company received the death claim intimation in August, 2010, which matter was referred to the investigating wing of the company to probe into the matter of death. The investigators reported back that, the policy holder was a heart patient since 2006 and had already suffered a heart attack and was a habitual smoker, whereas the insured mis-declared the said information in the proposal form and the deceased policy holder made concealment of significant facts at the time of obtaining policy.
During cross-examination he deposed that as per intimation given by the claimant, the insured died on 30.07.2010 and claim papers were lodged on 12.08.2010. He also admitted it correct that inquiry/investigation of the claim was not conducted by him and the name of the Investigating company is not known to him. That inquiry report has not been produced before this Court by him.
The name of representative is not known to him rather it is written on the proposal form. He also stated that they have not included the name of Zahid Ali Subhani, Sales Representative who approached and convinced the deceased to purchase the policy in their list of cited witnesses. He admitted that date of admission of insured in Ch. Pervaiz Elahi Institute of Cardiology, Multan was 11.06.2010. He also admitted non possessing of any other ailment record regarding the year 2006 except that of Ch. Pervaiz Elahi Institute of Cardiology, Multan, where the deceased was examined on 11.06.2010 at 1:24:04 p.m. He showed his lack of knowledge regarding the date of discharge from the hospital and also admitted that he is not the vendor of said policy. He also stated that the matter regarding smoking was also reported by the Investigating Officer who has not been produced before the Tribunal. Dr. Tariq Abbas, Associate Professor in Ch. Pervaiz Elahi Institute of Cardiology, Multan appeared as RW2 who brought the original medical record of deceased policy holder. He stated that he examined the patient Muhammad Afzal but comments on Ex. R7 were not written by him, rather the same were written by one of his junior doctors. During cross-examination, he admitted that deceased Muhammad Afzal was admitted in the hospital on 11.06.2010; that deceased Muhammad Afzal had never visited Ch. Pervaiz Elahi Institute of Cardiology Multan prior to 11.06.2010 and no ailment record is available in Ch. Pervaiz Elahi Institute of Cardiology Multan. He deposed that patient Muhammad Afzal was not known to him and he has neither examined nor treated him in the hospital before 11.06.2010; that the report starts from Ex.R7/1 to Ex.R7/3 and one time it bears his signature. He is not in possession of any ailment record of the patient since 2006.
He noted the comments given on Ex.R7/2 from the medical record produced by the patient. He also stated that test pertaining to the year 2006 were not conducted by him and he did not see the patient smoking; he inferred symptom of heart attack from the Angiography report which was not conducted by him. That all the ailment information pertaining to the year 2006 is based on the record produced by patient himself which is not in his (RW2) possession.
6. From the perusal of oral as well as documentary evidence it reveals that the appellant's husband was a policy holder who died on 30.07.2010 and his death claim is admitted by the respondent.
Respondent alleged in their reply to the claim that the insured obtained policy on the basis of concealment of material/significant information whereas the appellant (AW1) was neither questioned or suggested in this regard nor she was confronted with any report whereas investigator and scriber of the said report has not been disclosed in the evidence which bring infirmity in the deposition of RW1, who was not the author of the said report, rather he was merely a signatory of same so his evidence carries no intrinsic value. Further the investigator of the death claim was also a significant witness who remained associated with the matter and allegedly collected all the evidence and his services were hired by the respondent company but the said witness has not been produced in evidence to prove the stance taken by the company. Even Zahid All Subhani, Sales Representative who approached the deceased and convinced him to purchase the policy was not produced in evidence. Admittedly the said sales representative has arranged many sittings with deceased and was well aware of about the health condition of the insured being expert of his field but this star witness has also not been produced in evidence and non producing of both the witnesses lead to irresistible conclusion that the respondent has deliberately withheld the material evidence and it would be legally presumed had the said witness produced in witnesses box, they would have deposed against the respondent, as such presumption of withholding best evidence goes against the respondent. Reliance is placed upon the case reported as SuRhran Bib! v. Mst. Aziz Begun and 4 others. (1996 SCM R 137).
Moreover RW1 in his cross-examination admitted that neither he is investigator or inquirer nor he knew the name of the investigating company nor prepared any report of the investigation nor holding any ailment record of insured pertaining to the year 2006 other than that of Ch. Pervaiz Elahi Institute of Cardiology Multan. Similarly statement of RW2 Dr. Tariq Abbas is based on hearsay evidence as he has not scribed the said information report under the instructions of the insured rather he only relied upon a report prepared by someone else and scriber of the report was not produced, as such, the statement of the said witness is based on hearsay evidence which has no intrinsic value until and unless same has been corroborated with other evidence. Article 71 of Qanun-eShahadat Order, 1984 provides that oral evidence must be direct and hearsay evidence is not admissible. Reliance is placed on the cases reported as Abdul Qayyum v. Muhammad Sadiq (2007 SCM R 957), Gulzar Ahmad and others v. Muhammad Anwar and others (2003 SCM R 1008).
7. Admittedly policy was issued to the deceased on 01.02.2008 and the insured joined the majority on 30.07.2010 after about two years five months and 29 days and under section 80 of the Insurance Ordinance, 2000 a considerable period has been provided to company for the conduct of the exhaustive investigation with regard to health issues of the insured but the company has itself committed negligence and showed indolence in non investigating the insured and it is precluded to take advantage of its own negligence. Moreover, under section ibid no policy of life insurance can be called in question by an insurer after the lapse of B two years on the ground of a false or mis-statement made in procuring the insurance policy. For reference Section 80 of the Insurance Ordinance, 2000 is reproduced below:-
80. Policy not to be called in question on ground of misstatement 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 policy holder, 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 policy holder 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."
The learned Insurance Tribunal has committed misreading and non-reading of material facts and evidence holding that the insured made concealment of true information and has also not applied the correct law and illegally dismissed the application through the impugned judgment/order, which is liable to be set aside.
9. Upshot of the above discussion is that the instant insurance appeal is allowed, the judgment/order dated 19.05.2016 passed by the Insurance Tribunal is set aside. Resultantly the application of the appellant is allowed.