MAMOON RASHID SHEIKH, J.---The instant appeal under Section 124 of the Insurance Ordinance, 2000 (the Ordinance), is directed against the judgment, dated 14.12.2016, passed by the learned Insurance Tribunal Punjab, Lahore (the Insurance Tribunal), whereby the respondent's application for recovery of Life Insurance Policy (LIP) Proceeds, in respect of LIP bearing No,608034338-9, in the sum of Rs,500,000/- with accrued bonuses, along with liquidated damages, under section 118, of the Ordinance, has been partially accepted in the following terms:-- "In view of my findings on above issues, the claim of the applicant has been found to be proved.
Hence, the claim application of the applicant under sections 122, 123 of Insurance Ordinance for recovery of insurance claim is accepted in favour of the applicant and against the respondents amounting to Rs,5,00,000/- along with liquidated damages as provided under section 118(2) of Insurance Ordinance, 2000 from the date of death of the insured i,e, 21.03.2008 till its realization at monthly rests Q 5% higher than the prevailing base rate. The respondents will bear the costs of the case...
2. The learned counsel for the appellants has raised a number of grounds to assail the impugned judgment but for the present purposes we are only going to examine the question as to whether the case of the appellants was prejudiced when through the order, dated 02.07.2016, the Insurance Tribunal closed the right of the appellants to lead further evidence under the provisions of Order XVII, Rule 3 of the C.P.C.
3. The learned counsel for the appellants submits that the evidence of some of the appellants' witnesses, as per the appellants' list of witnesses, had been recorded. And for the remaining witnesses, included in the list, the appellants approached the Insurance Tribunal for summoning the said witnesses through process of the Court. The appellants had deposited the process fee, the necessary expenses and diet money for calling the witnesses, however, the witnesses despite being summoned/served did not appear. As a consequence, coercive measures were adopted by the Insurance Tribunal for summoning the witnesses but the witnesses failed to appear. Ultimately non-bailable warrants of arrest of the witnesses in question were issued but with the same result.
The Insurance Tribunal instead of exhausting all the means at its disposal to summon the witnesses proceeded to close the right of the appellants to lead further evidence by invoking the provisions of Order XVII, Rule 3 of the C.P.C.
4. Further submits that it is settled law that if a party files the list of witnesses within the stipulated period and also deposits the diet money and other necessary expenses within the stipulated period for summoning the witnesses named in the list, through process of the Court, then it is the duty of the Court to summon the witnesses and the party cannot be held responsible for non- service of the witnesses or the failure of the witnesses to appear and adduce evidence. In the instant, case the appellants had performed their duty as required under the law but the Insurance Tribunal in violation of the law as laid down by the superior Courts of the country proceeded to close the right of the appellants to lead evidence. Inter alia relies on the judgment reported as "Hakim Habibul Haq v. Aziz Gul and others" (2013 SCM R 200) to contend that the impugned order has been passed by illegal exercise of jurisdiction.
5. Further contends that by denying the appellants the right to lead their evidence the Insurance Tribunal has prejudiced the appellants' case.
6. The contentions of the learned counsel for the appellants on the factual plane are borne out from the record. The learned counsel for the respondent has been unable to establish otherwise.
7. We are in further agreement with the learned counsel for the appellants that it is settled law that when a party files its list of witnesses within the statutory period and thereafter regularly deposits diet money and other necessary expenses for summoning the witnesses, named in the list, through the process of the Court and files an application under Order XVI, Rule 1, of the C.P.C., for the said purpose then it is for the Court to ensure presence of the witnesses by all the means available to it including moving its coercive machinery instead of penalizing the party for non-appearance of the witnesses. Reliance in this regard is placed on "Hakim Habibul Haq's case (supra), cited at the bar by the learned counsel for the appellants and the judgments reported as "Mst. Bashir Bibi v.
Aminuddin and 9 others (PLD 1973 Supreme Court 45) and "Saleem-ud-Din and others v.
Government of the Punjab through Secretary Education and others" (2009 MID 635).
8. It is accordingly held that the Insurance Tribunal exercised its jurisdiction illegally and with material irregularity by invoking the provisions of Order XVII, Rule 3, of the C.P.C. and closing the right of the appellants to lead further evidence. The question posed in para 2 above is answered accordingly.
9. Under the circumstances, the impugned judgment, dated 14.12.2016, passed by the Insurance Tribunal is set aside. The matter is remanded to the Insurance Tribunal for decision afresh. The respondent's suit shall be deemed to be pending before the Insurance Tribunal and shall be decided after recording the appellants' evidence and the respondent's evidence in rebuttal, strictly in accordance with the law, including the judgments cited hereinabove. It is further directed that the Insurance Tribunal shall endeavor to decide the matter within four (4) months from the date of receipt of a certified copy of this order.
10. The office is directed to remit the record of the case to the Insurance Tribunal forthwith.
There is no order as to costs.