CH. MUHAMMAD IQBAL, J.---Through this appeal the appellant challenged the order dated 23.04.2014 passed by the learned Insurance Tribunal, Punjab Lahore whereby the insurance application/ claim filed by the respondent was accepted.
2. Brief facts of the case are that a life insurance policy bearing No,507867382-3 amounting Rs,500,000/- under table/term 03/20 years commencing from 01.02.2004 was purchased by the respondent from the appellant. A supplementary contract No,0038771 for Accidental Death and Indemnity Benefit (A.I.B) was also included in the said policy against additional premium of Rs,2500/-. On 13.01.2006, the respondent met with a road accident in UK and sustained serious injuries to the Cervical Spine which damaged his Spinal Cord. As per medical report the damage to the Spinal Cord was declared as a permanent nature, bounding the respondent to wheel chair for rest of his life. The respondent reported the matter to the appellant on 17.07.2006 and appellant issued claim papers to the respondent vide letter dated 03.10.2007 whereafter he lodged a claim accordingly. As per Supplementary Contract in case of permanent, total and continuous disability preventing the insured from being engaged in any occupation or employment, the annuity i,e, 10% of principal sum, becomes payable for a maximum period of ten years but the appellant only after paying Rs,130.000/- through cheque dated 31.12.2008 declined to entertain further claim. It was prayed by the respondent that the appellant be directed to pay accidental death and Indemnity Benefit (AIB) claim @ 10% of the sum assured i,e, 50,000/- per year as Annuity till the expiry of ten years uptill 31.10.2016 along with accrued bonuses and liquidated damages under Section 118 of the Insurance Ordinance, 2000.
The appellant contested the application through filing written reply and raised preliminary objection regarding maintainability of the application and requested for dismissal of the application/claim. The learned Insurance Tribunal framed issues, recorded evidence of the parties and vide order dated 23.04.2014 accepted the application/claim of the respondent and held him entitled to recover AIB claim @ 10% of the sum assured i,e, Rs,50,000/- per year as Annuity till the expiry of ten years along with accrued bonuses as well as liquidated damages under section 118 of the Insurance Ordinance and sum assured Rs,500,000/- with all benefits from the appellant after the expiry of terms of policy. Premium for further term was also waived off, hence the present appeal.
3. The learned counsel for the appellant submits that the respondent failed to prove his claim through oral as well as documentary evidence. He further submits that in response to the application of the respondent the appellant corporation rightly paid Rs,1,30,000/-. Adds that despite the fact that the respondent failed to prove his permanent disability for life, the learned Insurance Tribunal illegally granted the impugned relief which is not permissible and is liable to be set aside.
4. The learned counsel for the respondent on the other hand submits that the respondent has fully proved his claim. Further the supplementary contract is admitted by the appellant and that the doctor of State Life Insurance Corporation declared the respondent as disabled for life, as such no illegality has been committed by the learned Insurance Tribunal while passing the impugned order, thus the same does not require any interference.
5. We have heard the arguments of the learned counsel for both the parties and gone through the record with their able assistance.
6. From the divergent pleadings of the litigating parties, the entire controversy as to whether the respondent claimant was fully or partially disabled and was entitled to the benefits prayed for is centered around issue No,3 which is reproduced as under:- "Whether the applicant is entitled to accidental death and indemnity benefit (A.1.B) claim at the rate of 10% of the sum assured i,e, Rs,50,000/- per year as annuity by 31.12.2016 along with accrued bonuses and liquidated damages? OPA."
Initial onus to prove the above issue was on the respondent/claimant, who in support of his assertion in application himself appeared as AW1 and stated that he purchased Life Insurance Policy bearing No,507867928-3 amounting to Rs,5,00,000/- from the appellant on 01.02.2004 and subsequently a supplementary contract for inclusion of accidental death and indemnity benefit in existent policy was also purchased in total premium of Rs,27,705/- on yearly basis which was accordingly paid by him. That on 13.01.2006 he met with a road accident at UK and sustained serious injuries to cervical spine which damaged spinal cord. He was treated at Royal Preston Hospital UK and other medical centers in UK as well as in India. The medical report of the above institution declares damage to the spinal cord as permanent nature and he was bound to Wheel Chair for rest of his life. He reported the matter of accident to the appellant, who issued relevant paper for submission of claim, which was submitted after due completion vide acknowledge letter dated 12.08.2008. That according to the supplementary contract, he was entitled to receive the annuity @ ten percent of principal sum and it was to be continued for ten years till 2016 and the payment of due premium during disability period would also stood waived. During cross- examination AW1 deposed that the relevant record has been supplied to the appellant. He denied the suggestion that the produced documents are forged. Respondent in his documentary evidence produced copy of certificate, dated 21.02.2007 as Mark-A, copy of letter dated 12.03.2007 as Mark-B and Discharge Summary issued by Bharathirajja Specialty Hospital and Research Center Pvt. Ltd. as Ex.AW1/1 and his learned counsel produced documents Ex.A2 to Ex.A6 in evidence On the other hand the appellant in order to negate the version of the respondent has produced in evidence Muhammad Naeem, Assistant Manager as RW1, who admitted the receipt of claim as well as the grant of Rs,1,30,000/- to the applicant on compassionate ground by the company after condoning the delay and due determination of his claim. During cross-examination he deposed that it is correct that 10% of the sum insured is payable in case of permanent and total disability. He further deposed it to be correct that sum insured for this policy was Rs,500,000/- and in case of permanent total disability a sum of Rs,50,000/- per annum is payable. He further admitted it correct that the amount paid was on account of partial disability for 52 weeks as per AIB contract.
7. From the perusal of the oral as well as documentary evidence, the appellant admitted the existence of supplementary contract and also admitted that in case of disability of permanent nature under clause 10 of insurance agreement the respondent would be eligible for obtaining the benefit. Although the learned counsel for the appellant denied that their doctor examined the respondent but from perusal of the record it reveals that the appellant, itself annexed the AIB Claim Processing Sheet with its parawise reply, which shows that appellant's duly designated doctor namely Dr. Fazal, examined the respondent for the purpose of AIB Claim and declared him disabled for life, but the said original document was deliberately withheld by the appellant which cast a negative impact upon the appellant's stance in pleadings.
As regards the argument of the learned counsel for the appellant that the marked document cannot be examined while rendering the final judgment, it appears that the said document has also been produced by the appellant in its written reply, therefore, the court can take judicial notice of the same for just decision of the matter. Whereas Mark-A and Mark B clearly declare that the respondent is permanently wheel chair bounded and has permanent tetraplegia. Further mere failure of a party to get exhibited a document produced voluntarily in evidence by the adverse party formally would not make any difference and if such documents were necessary for just decision of the case, it should be summoned by the court and treated as evidence in the matter without any formalities. Reliance is placed on a judgment of Hon'ble Supreme Court of Pakistan reported as Khurshid Ali and 6 others v. Shah Nazar (PLD 1992 SC 822), wherein it is held as under:- "It is incorrect to think now under an Islamic dispensation that the Courts are only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the contesting litigants, and one who commits a mistake in procedural matters should be deprive of the right claimed; even if he is entitled to it."
As the appellant was/is holding custody of the above documents and has withheld the same malafidely which tantamount to withholding of the best evidence without any reason and it would be legally presumed that had the said document produced, it would have been used against the appellant as enunciated under Article 129(g) of Qanun-e-Sbahadat Order, 1984. Moreover from the perusal of record, it appears that no cross-examination was conducted on behalf of the appellant on the statement of the respondent (AW1) wherein he has categorically stated that he became permanently disabled for rest of his life and under the law a fact deposed in the statement which has not been cross-examined should be deemed to have been admitted. Reliance is placed on the case of Mst. Nur Jehan Begum through LRs, v. Syed Mujtaba Ali Naqvi (1991 SCM R 2300). As such the finding of the learned tribunal are quite in consonance with the available record which does not suffer from any perversity, illegality, misreading and non-reading of the material evidence calling for any interference by this Court in the impugned judgment and decree.
7. As discussed above, we do not find any merit in the present appeal, thus the same stands dismissed.