CH. MUHAMMAD IQBAL, J.---Through this Insurance appeal the appellant challenged the judgment dated 10.01.2018 passed by the Insurance Tribunal, Nankana Sahib whereby the application under section 118 of the Insurance Ordinance, 2000 filed by the respondent was accepted.
2. Brief facts of the case are that respondent's husband Sharafat Ali purchased an insurance Policy bearing No,602130222-2 amounting to Rs,5,00,000/- under table/term 03/20years against yearly premium Rs,25010/- from the appellant commenced from 01.06.2007 and respondent was appointed as nominee of the insured in the said policy. After 3 years 6 months and 4 days of issuance of the policy the insured joined majority on 05.12.2010. Respondent No,1 Abida Firdous (Widow) being nominee of the insured filed claim form, which was repudiated by the appellant vide letter dated 18.01.2013 after a period of 5 years 7 months and 17 days. It was asserted that the insured was hale and healthy at the time of purchase of policy and claim of the respondent has illegally been repudiated at the utter disregard of section 80 of the Insurance Ordinance, 2000, which resulted into filing of application under section 118 of the Insurance Ordinance, 2000. The appellant contested the said claim/application, raised preliminary as well as factual objections with the assertion that Sharafat Ali insured husband of the respondent, deliberately concealed his disease while purchasing the insurance policy as such the claim could not be granted and prayed for dismissal of the application under Order VII, Rule 11, C.P.C. Further contended that according to record of Hospital the deceased policy holder was a patient of Hepatic enelopathy, DM for the last 10 years and after thorough investigation the claim of the respondent was rightly repudiated vide letter dated 18.01.2013 by the appellant corporation. The learned Insurance Tribunal, from the divergent pleadings of the parties, framed the issues, recorded the evidence of the parties and vide judgment dated 10.01.2019 accepted the application filed by the respondent, hence the present Insurance appeal.
3. The learned counsel for the appellant contended that the impugned judgment is against the law and facts of the case and is based on mis-reading and non-reading of the evidence. The learned Insurance Tribunal has not applied his judicial mind while passing the impugned judgment as such the same is nullity in the eye of law.
The learned counsel for the respondent, on the other hand submits that the Insurance policy was purchased by the deceased insured, who was quite hale and healthy and no concealment of any disease was made by him at the time of acquiring the policy. He further submits that the respondent proved her case through sound and solid evidence, whereas the appellant has failed to rebut the claim as well as to prove the version taken in the written reply through oral as well as documentary evidence; that the statement of RW2 is merely a hearsay evidence which cannot be relied upon; that the appellant has failed to comply with the provisions of Section 80 of the Ordinance, 2000 and are precluded to raise the objection of pre insurance ailment of the insured.
4. Heard. Record perused.
5. From perusal of pleadings of the respective litigating parties the issuance of policy, receipt of premium and death of the insured are admitted facts and discard between parties is regarding the pre-insurance ailment of insured. The core controversy in this matter is centered around issues Nos,4 and 5 which are reproduced as under:- "4. Whether the deceased was known patient of CLD, Hepatitis enelopathy DM for last ten years and he had suppressed the material fact by committing fraud at the time of purchasing the policy? OPR.
5. Whether the applicant is entitled to recover amount of Rs,500,000/- along with the liquidated damages under section 118 of the Insurance Ordinance, 2000, if so to what extent? OPA."
Although the burden to prove issue No,4 was placed on the shoulder of the appellant, yet Mst.
Abida Firdous widow of Sharafat Ali, policy holder herself appeared as AW1 in support of her claim and stated that her husband purchased life insurance policy bearing No,602130222-2 amounting Rs,500,000/- from the appellant against' yearly premium Rs,25,010/-. She also stated that the policy commenced on 01.06.2007; that her husband was hale and healthy at the time of purchasing the policy and he had never taken any treatment or remained admitted in any hospital prior to purchasing the policy; she filed claim after the death of her husband on 05.12.2010, which was repudiated on 18.01.2003 copy whereof was produced as Mark-B. During cross-examination, she admitted that her husband remained admitted in Itefaq Hospital, Lahore only for six days once in his whole life. It is incorrect that her husband was suffering from any ailment, who with inter se collusiveness of the Agent of the Company as well as the designated Doctor of the corporation purchased the policy. She also stated the name of the insuring agent was Shakeel. Mehboob Alam appeared as AW2 who stated that he knew Sharafat Ali Aasi, the husband of the respondent who died in the year 2010 and remained healthy till purchasing of the policy. During cross-examination lie deposed that the deceased was having good health in 2007.
On the other hand the appellant in order to rebut the above evidence of the respondent as well as to dislodge he burden of issue No,4 produced Muhammad Munir Wattoo as RW1 who is employed as claim examiner in appellant corporation states that he was entrusted the inquiry of the instant claim. He visited village More Khunda on 02.05.2012 with regard to probe the cause of death of the insured and met with his younger brother Maratab Ali who produced ailment record of Itefaq Hospital. He also stated that a medical certificate was issued by Dr. Zahir Akhtar Malik on 21.05.2012; that according to the death certificate issued by Union Council the sickness period was mentioned as 15 days; that as per the statement of the claimant contained in form "Alaf" sickness period is shown as half an hour only. During cross-examination, RW1 deposed that it is correct that policy holder died on 05.12.2010 and at the time of his death the policy was in force; it is also correct that last premium was paid on 25.12.2009; He also admitted it correct that the policy was neither lapsed nor cancelled during the life of the deceased policy holder and the policy was issued under medical scheme and primary medical examination was conducted by Dr. Tahir Muhammad Khan, who declared the policy holder fit and according to the prescribed procedure the medical examination is to be conducted in presence of insurance agent. He also stated that he personally visited to Dr. Zahir Akhtar Malik and collected record of ailment in respect of deceased policy holder pertain to post insurance period; but he is not in possession of any ailment record prior to 01.06.2007. He admitted it correct that as per claim processing sheet net liabilities worked out amount is Rs,5,73,560/-; and he neither personally knew the insured nor acquainted with his any ailment except record of Ittefaq Hospital and the statement of the doctor. Muhammad Shoaib, RW2 only produced the ailment record of the deceased policy holder pertaining to period 23.11.2010 to 03.12.2010. Dr. Zaheer Akhtar Malik (RW3) states that on 24.11.2010, as per record, deceased Sharafat Ali Abbasi was got admitted in Ittefaq Hospital at 8:56 p.m. who (patient) remained under treatment till 03.12.2010. During cross examination RW3 admitted that that it is correct that in examination notes (Ex.R7) he has not mentioned the past history of deceased who (patient) remained under his treatment in Ittefaq Hospital from 24.11.2010 to 03.12.2010 and he has not suggested any treatment for the patient, volunteered that his role was only a supervisory one and he issued the medical certificate (Ex.R6) of deceased Sharafat Ali after his death which is usually issued to the relatives of the deceased, volunteered that the said certificate might be got issued by Insurance Corporation and he could not tell who has applied for its issuance in 2010 and he did not remember whether medical certificate (Ex.R6) was provided to claim examiner of company; it is correct that at the time of issuance of certificate (Ex.R6) the patient had died and he issued certificate (Ex.R6) keeping in view the history of the patient with respect to his ailment. He also admitted that after perusing the previous record of the patient he has mentioned in his certificate that patient was suffering from Hepatitis-C for the last ten years and also suffering from diabetes/mellitus for the last three years. He admits that the previous history of the patient has been taken by a duty doctor who has written about the ailment of the patient in the record and he
(DW) has not himself taken the history of the patient and it is not in his knowledge that ailment record of the patient was lying in the hospital. He further admitted that prior to 24.11.2010 no such ailment record of the patient was lying in their hospital and he could not say whether the patient prior to 24.11.2010 had ever approached to the hospital for his treatment; it is incorrect to suggest that he has issued the certificate on hearsay evidence. He also admitted it correct that he has issued the certificate after 17 months from the demise of the patient and injunction of hepatitis C was not given to the patient in his hospital. Dr. Muhammad Inaam Ullah Saleem appeared as RW4 and stated that the patient Sharafat Ali remained in the hospital w.e.f 24.11.2010 to 03.12.2010 and was under his treatment during aforesaid period; his junior doctors took history of the patient in the hospital; patient was suffering with de-compensated liver disease and according to the ailment history, the patient was given injection of Hepatitis-C about seven years back as he was a patient of disease for last ten years. During cross-examination he stated that he has not mentioned any past history pertaining to ailment of patient with respect to hepatitis C injections/diabetes. He admitted it correct that prior to 24.11.2010 no previous history of ailment is mentioned in the record and volunteered that his junior doctors have written the said observations.
6. From the perusal of oral as well as documentary evidence, it is admitted that the policy was purchased by the deceased policy holder from the appellant, pursuant to which the doctor of the appellant corporation medically examined the policy holder in presence of agent of the corporation and submitted his medical report (Ex.R3) regarding the fitness of the insured. The said report was never challenged by the appellant corporation rather on the basis of the said report the policy was sold to the deceased policy holder. It is admitted fact that the doctor who examined the policy holder was on the panel of the corporation but he was also not produced in evidence.
Furthermore, it is also admitted that the policy holder died on 05.12.2010 and after his death the respondent submitted claim form to the appellant, which was repudiated vide letter dated 18.01.2013 i,e, after 5 years 7 months: and 17 days from the issuance of the policy. Under Section 80 of the Insurance Ordinance no policy of life insurance can be called in question by an insurer after the lapse of two years on the ground of a false statement made in the proposal form pre-issuance of 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."
Further as it was asserted by, the appellant that the insured concealed the material information while submitting the proposal form regarding his pre-insurance ailment, the onus to prove above assertion under Articles 117 and 127 of the Qanun e-Shahadat Order, 1984 was upon the appellant to substantiate the asserted stance through trustworthy and believable evidence but the appellant failed to prove through any record that the deceased was a patient of Hepatitis C whereas statements of RW3 and 4 also have no intrinsic value as they were neither the scribers of the imparted information by the patient nor themselves prepared examination notes whereas the junior doctor who prepared the report on the basis of imparted information by the patient as well as from the alleged previous record has not been produced in evidence. Thus by not producing the material witness i,e, the Insurance Agent, Doctor of the Corporation as well as the relevant doctor of Ittefaq Hospital, the appellant is held responsible for withholding the best evidence available to it which cast a negative impact on its cause and it would be legally presumed had the said evidence produced in evidence, they would have deposed against the appellant. Reliance is placed upon the case reported as Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCM R 137).
7. From the above, it is established that the respondent proved her case through production of oral as well as documentary evidence, whereas the appellant has failed to rebut the claim. Further the appellant was under obligation to prove the pre-insurance ailment of the insured but it has not proved on record that any fraud was committed by the deceased insured before purchasing the insurance policy, as such the learned Insurance Tribunal rightly passed the order and decree dated 10.01.2018 after appreciating the oral as well as documentary evidence in salutary manners and has not committed any illegality. Further the learned counsel for the appellant has also failed to point out any illegality or material irregularity in the impugned order/decree as well as misreading and non-reading of the evidence calling for any interference through this appeal.
8. For the reasons recorded above, we do not find any merit in the present appeal, which is hereby dismissed.