Shams Mehmood Mirza, J.--This is an appeal filed under Section 124 of the Insurance Ordinance, 2000 (the Ordinance) for calling into question order dated 30.08.2018 passed by the Insurance Tribunal whereby the petition filed by the respondent was allowed.
2. Factual background of the case may be stated as under . The respondent carried out a comprehensive insurance of its commercial vehicle (oil tanker ) from the appellant in the sum of Rs. 4,000,000/- on 08.04.2010 with expiry on 07.04.201 1. On its journey towards Kandhar , Afghanistan carrying 48000 litters of diesel, the oil tanker was attacked by unknown persons who set it on fire. An insurance claim was lodged by the respondent with the appellant and FIR No. 176 of 2010 was also lodged on 19.10.2010 with police station Shialkot, Akhtarabad, Quetta.
The appellant insurance Messrs Saddar-ud-Din Associates as surveyor to assess the loss that had occurred to the oil tanker . The said surveyor through its report Exh.R W-2/1 determined that ".... keeping in view the terms and conditions, warranties of the policy of insurance, subject vehicle is repairable and cannot be policy of insurance, subject vehicle is repairable and cannot be declared as 'Total Loss' as suck may be treated as closed." The insurance claim of the respondent was accordingly repudiated by the appellant on the ground that the insurance policy only covered total loss.
3. The respondent being dissatisfied by the repudiation of the insurance claim filed a petition under Section 118 of the Ordinance which was contested by the appellant by filing its written reply . Out of the divergent pleadings of the parties, the following issues were framed:
1. Whether the applicant is entitled to recover the insurance claim valuing Rs. 4,000,000/- along with liquidated damages as prayed for? OP A
2. Whether the suit is barred u/s 69 of the Partnership Act? OPR
3. Whether the application for recovery of insurance claim has not been filed by the authorized person? OPR
4. Whether under the policy only total loss is covered and the vehicle in question is repairable, if so its ef fect? OPR
5. Whether the applicant has not af fixed the property Court fee? OPR
6. Whether the application is not supported by an af fidavit? OPR
7. Relief.
4. For the completeness of facts, it may be stated that the respondent before framing of the issues filed an application before the Insurance Tribunal seeking appointment of fresh surveyor whereupon learned counsel for the petitioner recorded his statement showing his no objection for appointment of independent surveyor in accordance with rule 24 of Securities and Exchange Commission of Pakistan Rules. 2002 for assessing the loss caused to the oil tanker . The Insurance Tribunal accord ingly passed order dated 12.07.2013 directing both the parties to appear before the Securities and Exchange Com mission of Pakistan (SECP) for appointm ent of an independent surveyor .
According to the report furnished by SECP before the Insurance Tribunal, a hearing was granted to the parties and thereafter the appellant was directed to choose between two well reputed surveyors i.e. Messrs Joseph Lobo (Pvt.)
Limited and Messrs Nanjee & Co. (Pvt.) Limited . The appellant vide its letter dated 23.11.2013 addressed to SECP agreed to the appointment of Messrs Nanjee & Co. (Pvt.) Limited (hereinafter Naanjee & Co.). Naanjee & Co. after its appointment prepared report after inspecting the oil tanker , which report was brought on record through Abid Hussain who appeared in the witness box as CW-1 and tendered the report as Exh.CW -1/2. The appellant also filed objections on the survey report which were contested by the respondent by filing its reply . The Insurance Tribunal dismissed the objections vide order dated 07.04.2016 holding that "....at this stage the controversy in this case cannot be resolved by relying upon any report of the surveyor . If any tentative finding is given at this stage about sanctity of any report of any surveyors that will materially prejudice the case of the parties. Still issues are to be framed and evidence of the parties is to be recorded.... At final stage in light of evidence of the parties, Insurance Tribunal will be in a position to consider the relevant and admissible evidence and the worth of the evidence including the survey reports if tendered and proved or disproved in accordance with law by the parties."
5. Both the parties led their evidence, oral as well as documentary . The respondent produced in evidence Shafique ur Rehman, Deputy Director Insurance Division, SECP as AW-1 and Rehmat Khan Wardaq being its attorney as AW-2 and produced documents as Exh.A-1 to Mark-Q. The appellant examined Abdul Waheed Chaudhary , Deputy General Manager (Claims) as RW-1 and Saddar-ud-Din, the surveyor , as RW-2 who submitted in evidence Exh.R- 1, Exh.R-B and Mark-C. Abid Hussain surveyor of Nanjee & Co. was examined as Court witness, CW-1, who tendered the survey report as Exh.CW -1/2.
6. Our findings on the issues are as under .
ISSUES No. 1 & 4:
7. Both these issues being interlinked are decided together .
8. Learned counsel for the appellant submitted that conceding statement recorded by Insurance Tribunal for the appointment of a fresh surveyor was predicated upon fulfillment of the requirements of Rule 24 of the SECP Rules.
It was also the case of the learned counsel that the Insurance Tribunal by virtue of Section 122 and 123 had limited powers and could not have ordered for appointment of a fresh surveyor . It was accordingly submitted that the report filed by Nanjet & Co. ought not to have been relied upon by the Insurance Tribunal for rendering decision in favour of the respondent. It was stated that the surveyor appointed by the appellant declared the case of the respondent as not falling under the category of total loss and as such the Insurance Tribunal could not have allowed the claim of the respondent.
9. Section 85 of the Ordinance requires SECP to frame rule for appointment of an independent survey to be conducted in respect of such class or classes of insurance claim and meeting such criteria as may be prescribed.
Rule 24 authorizes SECP in terms of Section 85 of the Ordinance to direct the insurer to arrange for an independent survey of the loss through surveyors appointed by it in case it has reason to believe that an insurance surveyors has submitted a false report or has grossly over-assessed and under-assessed the loss or has made an adjustment of loss in a grossly unjust manner .
10. It is apparent from the record particularly order dated 12.07.2013 passed by the Insurance Tribunal that a categorical direction was given to SECP for appointment of a fresh surveyor to assess the loss occurred to the oil tanker of the respondent. The Insuranc e Tribunal while passing the aforement ioned order nowhere gave any directions for SECP to do the needful in terms of Rule 24, the conditional statement made by the counsel for the appellant notwithstanding. This issue was also agitated by the appellant before SECP and the plea so raised was rejected on the ground that the Insurance Tribunal did not direct SECP to exercise its powers under Rule 24 rather SECP was directed to appoint the surveyor . It may be stated the power of SECP to appoint independent surveyor for re-assessing the loss is a parallel power to be exercised upon fulfillment of condition laid down by Rule 24.
11. In terms of Section 122 of the Ordinance, the Insurance Tribunal in the exercis e of its jurisdiction in respect of the claim filed by the policy holder against the insurance company has all the necessary powers vested in the civil Court under the Code of Civil Procedure, 1908 (the Code). The Code grants necessary powers to the civil Court to appoint local commission in terms of Section 75 and Order XXVI particularly its Rules 9 and 10, inter alia, to elucidate any matter in dispute between the parties or ascertaining the value of any property . By virtue of Section 122 of the Ordinance, such powers for appointment of a local commission are also available to the Insurance Tribunal. Of course, a report by the local commission has no evidentiary value and contents thereof are to be proved like any other fact in the course of evidence to be led by the parties. The appointment, of Naanjee & Co. partakes the character of a local commission with all the powers conferred by the Code. SECP was directed to appoint the surveyor as the insurance surveyors are registered with SECP . While dismissing the objections on the report of Naanjee & Co., the Insurance Tribunal rightly held that the evidentiary value of the report shall be examined at the time of final arguments. In order to prove the contents of the survey report, Exh.CW -1/2, the surveyor of Nanjee & Co. was examined as Court witnesses and the appellant was provided opportunity to cross- examine him which it did. We are, therefore, of the opinion that the objection of the appellant on the survey report prepared by Nanjee & Co. is misplaced. The Insurance Tribunal by virtue of Section 122 of the Ordinance is not denuded of its power to itself appoint a surveyor or to direct SECP to do so independent of rule 24 to assess the loss occurred to a policy holder .
12. The Insurance policy in respect of the oil tanker is admitted between the parties. The fact that the oil tanker came under attack and was damaged on its way to Kandhar , Afghanistan is also not in dispute. The only point of divergence between the two surveyors is whether it was the case of 'Total Loss' or otherwise. Saddar-ud-Din and Associates, a surveyor appointed by the appellant, declared it to be not a case of 'Total Loss' whereas Nanjee & Co. determined otherwise.
13. Rehmat Khan Wardag, the Managing Partner of the respondent entered in the witness box as AW-2 and reiterated the contents of the petition in his statement. It was stated by him that the oil tanker was completely burnt as the assailants had put the tanker to fire and also fired bullets in its body . Nothing could be extracted from the said witness in cross-examination by the appellant.
14. The appellant produced in evidence Abdul Waheed, Deputy General Manager (Claim) as RW-1. He stated that the insurance policy was in the name of one Mr. Subhan which was on Total Loss basis. The appellant appointed the surveyor on being informed about the incident and that the survey was conducted on 19.10.2010. The surveyor recommended the loss to the vehicle as not payable as the vehicle was repairable. In cross-examination, RW-1 admitted that the insurance policy (Mark RA) reflected Mr. Subhan as keeper of M/s Shad and Company and that both are one and the same thing. It was admitted that the appellant selected Naanjee & Co. as the surveyor upon being asked by SECP . He admitted that the oil tanker was carrying 48000 liters diesel. He also admitted that "Occurrence in this case about the burning of the vehicle was duly reported in some of the newspapers and also aired on some of the T.V channels."
15. Saddar-ud-Din, Chief Executive Officer of Messrs Saddar ud Din Associates entered appearance in the witness box as RW-2 and submitted the survey report as Exh.R-1. He stated that the said report was signed by him and that he too examined the oil tanker which was found to be repairable and that the respondent was not entitled to the insurance claim as per the insurance policy . In cross-examination, RW-2 stated that he had visited workshops for preparing the estimates for repair of the vehicle and also "........obtained opinion from the market about the burnt items of the vehicle.' He, however , admitted that he could not ".... name any of the shopkeepers from where the opinion about the estimate of burned items of the vehicle was obtaine d." Most, importantly , he accepted the fact that "Before our reaching four vehicles of fire brigades had reached at the spot to extinguish the fire" He also acknowledged that the oil tanker was "... carrying on with highly inflammable fuel."
16. Abid Hussain on behalf of Naanjee & Co. appeared in the witness box as CW-1 and submitted his report as Exh.CW -1/2 together with expert report of. Hino Frontier . In response to questions put to him by the appellant, he stated that Naanjee & Co. was appointed by SECP to re-survey for the loss of the vehicle through letter dated 20.11.2013. He confirmed that Naanjee & Co. got the vehicle examined from Hino Motors. Besides this the appellant did not put any meaningful questions to this witness -to impeach the survey report prepared by Naanjee & Co.
17. After examining the testimonies of the witnesses produced by the parties and the Court witness, we have come to the conclusion that the Insurance Tribunal rightly passed the order directing the appellant to pay an amount of Rs. 4,000,000/- to the respondent along with other dues mentioned in the impugned order . Our reasons for arriving at this conclusion are based on the fact that the appellant singularly failed to prove that it was a case of "Total Loss " and that it was justified in repudiating the insurance claim put forward by the respondent. Saddar-ud-Din, RW-2, throughout his testimony referred to the oil tanker as "burnt vehicle ". It is an admitted fact that the oil tanker was carrying 48000 liters of diesel. The survey report, Exh.R-1, itself stated that fire tankers of Metropolitan Corporation Quetta extinguished the fire and according to the documents of that department combustible material of some kind was used and that the "....vehicle burnt badly as well as the contents loaded in Tanker ." RW-2 failed to mention the details of the shopkeepers from whom the estimates of the tanker were allegedly obtained. It stretches imagination beyond reasonable belief that a tanker which is carrying 48000 liters of diesel and which was put on fire and fired at would remain repairable. The photographs of the vehicle appended with Exh.R-1 show that it was completely burnt.
In short, the appellant did not tender any cogent much less independent evidence to prove that the vehicle could be repaired. There is no presumption of truth attached to the Surveyor's report under the provisions of the Ordinance and the rules framed thereunder . There can be no cavil to the proposition that a survey report for assessment of loss prepared after appreciation of evidence, with due diligence and skill and being devoid of any apparent error shall be deemed to have been given in good faith (see Rule 22 of the Insurance Rules, 2002). Such a report cannot be rejected by the Court if the contents thereof are proved in accordance with law. The survey report prepared by Saddar-ud-Din Associates, however , did not meet the afore-mentioned standards. On the other hand, Naanjee and Co. which was appointed by SECP with the free consent of the appellant surveyed the vehicle and stated in its report Exh.CW -1/2 that it was burnt completely and that it was a case of total loss. It was stated in the said report that a quotation was obtained from Messrs Hino Frontier Motors (Pvt.) Limited "....who after detailed inspection of the vehicle prepared a detailed estimate in the sum of Rs. 6,272,810/- which is more than the sum insured of the said vehicle"....... It was also stated in the said report that even after spending the afore-mentioned amount the ".... repairers were unable to give a road worthy certificate on the plea that the chassis/engine head and suspension parts had lost strength due to excessive heat and as such deemed unfit to transport such heavy cargo all over the country" As mentioned earlier , the appellant in cross-examination was unable to impeach the 'contents of Exh.CW - 1/2. It was argued by the appellant that the second survey was conducted after a number of years and was thus not reliable for ascertaining the exact loss. This plea is not acceptable. Naanjee & Co. was an independent surveyor and its report ought to carry more weight with the Court. In any event, Naanjee and Co. got the vehicle examined from Hino Frontier Motors (Pvt.) Limited and according to its expert opinion the vehicle even after extensive repairs would not become road worthy . This report coupled with the indisputable facts that the vehicle carrying huge amounts of diesel was burnt leads one to irresistible conclusion that it was a case of total loss and that Saddar-ud-Din Associates, the surveyor of the appellant, prepared a wrong and erroneous survey report, Exh.R-1, on which no reliance can be placed.
18. We accordingly hold that the respondent was able to I discharge the onus of issue No. 1 which is accordingly decided in its favour . Similarly , the appellant, in our opinion, did not discharge the onus which was placed on it under issue No. 4. It is decided against it.
19. The learned counsels for the parties did not address any arguments on the rest of the issues. The findings of the Insurance Tribunal on these issues are thus maintained.
20. In the result of our findings, we do not find any merit in this appeal which is accordingly dismissed with costs .