This regular first appeal is filed under section 124 of the Insurance Ordinance, 2000 (the Ordinance ) to challenge judgment and decree dated 05.01.2017 passed by the Insurance Tribunal, Lahore (the Tribunal ).
2. Facts of the case briefly stated are as follows. The appellant being the proprietor of Al-Hassan Oil Mills obtained finance facility from the Bank of Punjab/respondent No,3 (the Bank). In compliance with the terms and conditions of the said facility, the petitioner obtained insurance of the pledged stocks of Canola Oil Seeds through two insurance policies in the sum of Rs,10.000 Million and Rs,2.000 Million from respondent No,1 company (the respondent company ). This insurance policy was again renewed from 16.03.2009 to 15.03.2010.
During the subsistence of the renewed insurance policy, fire broke out at the go down storing the Canola Oil Seeds which resulted in destruction of the same. The appellant accordingly lodged the claim with the respondent company for payment of the insurance amount. On account of inaction of the respondent company in finalizing the insurance claim, the appellant instituted the petition under sections 122 and 123 of the Ordinance with the Tribunal. The respondent company resisted the petition by filing its written reply controverting the claim put forward by the appellant. Out of the divergent pleadings of the parties, the following issues were framed by the Tribunal.
1. Whether the petitioner is entitled to recover Rs,10,880,000/- along with mark up and liquidated damages? OP A
2. Whether the petitioner has got no locus standi/cause of action? OPR-1 to 3.
3. Whether this petition is deficient in court fee? OPR 1-2.
4. Whether this petition is barred by premium payment clause? OP 1-2.
5. Whether there is no privy of contract between the parties? OPR 1-2.
6. Whether a sum of Rs, 1, 697 ,175/- is outstanding against the petitioner? OPR 1-3.
7. Relief.
3. After recording the evidence of the parties, the Tribunal through judgment and decree dated 05.01.2017 dismissed the petition filed by the appellant, hence this appeal.
4. It was agreed between the learned counsel for the parties that Issue No,1 was pivotal for decision on the claim preferred by the appellant. The Tribunal while rendering findings on Issue No,1 came to the conclusion that the appellant failed to prove the quantity of the Canola Oil that was pledged with the Bank and that it was in fact Mustard Oil that was stored in the godown and not Canola Oil. Issue No,1 was accordingly decided against the appellant and the petition was dismissed.
5. Learned counsel for the appellant while impugning the findings of the Tribunal submitted that the findings on Issue No,1 were based on the Surveyor's report which was never tendered in evidence. On behalf of the respondents, it was admitted before us by the learned counsel that the afore-mentioned findings of the Tribunal were indeed based on the report of the surveyors appointed by the respondent company . It was further acknowledged by him that the surveyors were not examined by the respondent company in its evidence. Learned counsel for the respondent company , however , attempted to argue that the surveyor's report was available on the record and thus could be looked at by the Tribunal even though it was not tendered in evidence.
6. It is apparent from the record that the respondent company took numerous opportunities to produce the surveyors but the needful was not done whereafter its right to produce evidence was closed. This decision of the Tribunal was upheld up to this Court.
7. The appellant himself examined as AW-1 and also examined Muhammad Rafique, Supervisor as AW-2, Both the witnesses submitted that the insurance policy at the time of breaking of fire was in respect of stocks of Wheat, Canola, Oil seed, Oil Cakes and/or Oil in tanks. AW-1 specifically stated in the examination in chief that Canola Oil Seeds were stored in the godown at the time of fire incident. It was furthermore stated by him that the Bank had appointed its Muccadam over the stocks, who used to prepare the record of the quantity of the pledged stocks on daily basis. Both the witnesses denied in cross-examination that Mustered oil seeds were stored in the godown instead of Canola oil seeds.
8. The respondent company produced in evidence Muhammad Umer Islam, Manager Claims, as RW-1 who produced in evidence photocopies of Insurance policies as Ex.R2/1-5 and Ex.R3. The respondent company also produced in evidence Zahoor Ahmad, Officer Grade-I of the Bank as RW-2 for the purposes of producing the original fire policies and premium receipts etc as Ex.R-4/1 to Ex.R-8/6. The respondent company neither produced in evidence the surveyor's report nor the surveyors. RW-1 made no meaningful statement in his examination in chief regarding the specification of the oil stored in the godown. It was simply stated by him that the insurance policy did not cover any risk of Mustard oil seeds.
9. After examining the record and the testimony of the parties, it is not clear to us as to how the Tribunal arrived at the findings that the appellant had stored Mustard Oil in the godown instead of Canola Oil except for its reliance on the Surveyor's report filed along with the reply of the respondent company .
10. The contents of a document can be proved by producing the original document itself. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. A document, therefore, can be proved by calling and examining the writer himself as has been held in the judgment reported as Siraj Din v. Mst. Jamilan and another PLD 1997 Lahore 633. The respondent company took frequent adjournments before the Tribunal to produce the surveyors and upon its persistent default the right to lead further evidence was closed, which order , upon challenge by the respondent company , was upheld by this Court. In the circumstances, the respondent company is not right to argue that the photocopy of the report of the surveyors available on the record could be looked at and considered for decision of the case. The Tribunal committed a material irregularity by taking into account the contents of the surveyor's report which was not tendered in evidence and even its authors were not produced by the respondent company to prove the contents thereof.
11. The appellant was non-suited by the Tribunal simply on the basis of the surveyo r's report. The Tribunal made no effort to ascertain the amount to which the appellant was entitled under the insurance policy . The judgment rendered by the Tribunal is also silent as to the discharge of burden of proof by the appellant in regard to Issue No,l. In fact, the insurance policies were produced in original (as Ex.R-4/1-7) Zahoor Ahmad, Officer Grade-I of the Bank who was produced in evidence as RW-2 by the respondent company . It was the appellant who was required to discharge the burden of Issue No,1 by producing all the record in respect to the goods that were burnt in fire incident. The record of the Bank i,e, stock register , stock reports etc were the most relevant documents for ascertaining the description of the oil stored in the premises of the appellant. The appellant, however , made no attempt to produce these vital documents in evidence. The judgment of the C Tribunal is conspicuous by absence of reasons with regard to failure of the appellant to produce the stock reports/stock register which was the record available with the Bank whose guards/Mu ccadam were allegedly deputed on the site as per the statements of both AW-1 and AW-2.
12. In view of the lapses by the Tribunal to render a reasoned judgment, it is liable to be set aside. We, therefore, allow this appeal and set aside the impugned judgment and decree with the result that the insurance petition filed by the appellant shall be deemed to be pending before the Tribunal, which shall render a well reasoned judgment afresh in the matter after taking into account the entire record. The needful shall be done within a period of one month from the date of appearance of the parties. The parties are directed to appear before the Tribunal on 04.02.2019.