Late Syed Eijaz Hussain Zaidi, husband of plaintiff Mst. Kausar Jehan, was insured for Rs. 10,000 with the Eastern Federal Union Insurance Company Limited predecessor in interest to appellant State Life Insurance Corporation of Pakistan, by an Insurance Policy No. 319835 dated 28th November, 1968 in which he had constituted Plaintiff-his were -as his beneficiary or nominee. The deceased was an employee in the Civil Aviation Department, and, as the premiums were to be paid from his Provident Fund contributions the Policy bad been assigned in the name of President of Pakistan.
2. Syed Eijaz Hussain died at Karachi on 10th May, 1969, of cardiac failure. The Eastern Federal Union Company Limited from March, 1970 to August, 1970 had been requesting the Accountant General Pakistan Revenue, Karachi, to send back the policy documents duly re-assigned in favour of Plaintiff Mst. Kauser Jehan. In a letter Exh. 2/6 dated 29th June, 1970, addressed to plaintiff, the Insurance Company while admitting the claim, regretted the delay in sending the cheque. They wrote to the plaintiff :-- "We regret that it has not been possible for us to wild the claim cheque in respect of the move Policy on your respected husband's life. The reason for not doing so is that inspite of our best efforts to get the Policy documents from the Accountant General Pakistan Revenue, we have not been able to have it.
However, as soon as receive the re-assigned policy documents, We shall proceed with the settlement of the claim immediately."
Ultimately after the Insurance Company received policy documents, by letter dated 15th December, 197(1; Exh. 2/9, the Insurance Company refused to admit the claim of plaintiff' saying :- "We observe from the documents received that the assured was trot keeping good health when he proposed his life insurance with us, Had he disclosed the facts regarding the impairment of his health when he was being examined for life insurance in respect of the aforesaid policy we would not have accepted the proposal for life insurance with us.
You are probably aware of the fact that any untrue statement or concealment of material facts makes the contract of life insurance absolutely null and void.
We therefore, very regretfully convey our inability in the admittance of the claim on the aforesaid policy on account of concealment of material facts by the deceased assured."
3. On 26th July, 1973, Plaintiff Mst. Kauser Jehan filed suit in forma pauperis for recovery of the claim of Rs. 10.C00 in the Civil Court Karachi which allowed her to sue in forma pauperis.
4. In the written-statement, the insurance Company averred that deceased had not disclosed material facts about his health at the time of insurance of policy hence the policy was null and void that the suit was bad for non-joinder of necessary parties as all the legal heirs of the deceased were not joined in the suit and that the suit was barred by limitation.
5. The Insurance Company defendant led no evidence, their side was closed, the Civil Court decreed the suit of Plaintiff on 30th July, 1978. The insurance Company went in appeal against the Judgment and decree of the Civil Judge to the District Court, Karachi which dismissed the same on 14th October, 1978.
5. This is a Second Appeal filed against the Judgment and decree of the District Court.
The appellant's counsel has argued the following two points for-- the purpose of this appeal-
(i) Appellant-defendant was not given opportunity to lead evidence.
(ii) Suit is barred by limitation.
6. In this case, appellant-defendant has been too negligent and indifferent to follow up their defence. They did not furnish list of documents to be proved and witnesses to be examined after the issues were framed, despite direction given by the trial Court. The defendant .Were afforded thirty four adjournments to produce their evidence which they failed. Defence was ultimately closed. Defendant went in Revision in the District Court, Karachi, against closure of their side. The District Court rejected the Revision Petition as it was found that the trial Court provided every reasonable opportunity to the defendant to lead evidence in defence but they failed to avail of it. In the Court of 1st Appeal, defendant-appellant's counsel made an application under Order XLI, rule 27, Code of Civil Procedure, 1908, for permission to file and prove some documents which the Court rejected as there were neither documents nor there was a schedule or list of the documents on- the record of the case. In these circumstances, the plea taken by the appellant that he was not given an opportunity to lead evidence, is unjustified.
7. Admittedly, case is governed by Article 86 of the Limitation Act, 1908, which provides that on a policy of insurance, when the sum insured is payable after proof of death has been given to or received by the insurers period of limitation fox filing the suit is three years from the date of the death of the deceased. Eijaz Hussain died on 10th May, 1969. Three years expired on 8th May, 1972 but the suit was filed on 25th July, 1973, that is, 14 months after the expiry of the period of limitation.
However, before the expiration of prescribed period, that is, before 9th May, 1972, appellant- defendant Insurance Company wrote a letter Exh. 2/9 on 15th December, 1970, to the Assistant Accounts Officer, reproduced in para. 2 above, in which they refused to pay the claim to plaintiff because deceased had given untrue statement with regard to hi health, when he was being examined for life insurance in respect of the life insurance Policy, which letter is an implied acknowledgement of liability refusal to pay the same falling within Explanation (a) to section 19 of the Limitation Act. In view of this letter Exh. 2/9, fresh period of limitation shall be computed from the date when the letter was signed. In case of letter Exh. 2/9 the period will start running from 16th December, 1970. It follows that suit on policy of insurance could be filed before 15th December, 1973.
Suit was filed on 25th July, 1973, and was within time.
8. In the result, appeal is dismissed with costs.