This appeal is filed under section 124 of the Insurance Ordinance, 2000 (the Ordin ance) calling into question order dated 15.05.2015 passed by the Insurance Tribunal.
2. Briefly stated that facts of the case are that the appellant carried out an insurance policy through Habib Bank Limited/respondent No.2 (the Bank) from respondent No.1 Company (the Insurance Company) in respect of stocks of Banola and Oil. The stocks were stored in a godown in the premises of the appellant and were under the charge of the Bank. A fire broke out in the godo wn of the appellant on 05.01.201 1 at 2.00 a.m. gutting the stocks stored therein. The appellant lodged the claim with the insurance company which appointed the surveyor for assessment of the loss. The surveyor in its report assessed the loss in the sum. of Rs.819,000/-. The insurance company , however , repudiated the insurance claim of the appellant. The appellant thereafter filed the petition before the Insurance Tribunal seeking an amount of Rs.9,500,000/- along with liquidated damages. The insurance company contested the claim of the appellant by filing its written reply . The Insurance Tribunal framed the following issues out of the pleadings of the parties:
1. Whether the application is not maintainable in view of Bank Mortgage Clause and Section 45 of the Contract Act? OPR-1.
2. Whether the applicant has no locus standi against the respondents? OPR-1
3. Whether the application is not maintainable in view of Condition No.13 of the Policy? OPR-1
4. Whether the application is not maintainable in the name of applicant? OPR-1
5. Whether the application is false, baseless and not warranted by the facts and circumstances? OPR-1
6. Whether the applicant committed, persistent and wilful default which, obliged respondent No.2 to bring a suit for recovery? OPR-2
7. Whether the applicant has no cause of action against respondent No.2 OPR-2.
8. Whether the applicant is entitled recovery of fire Insurance Claim amounting to Rs.95,00,000/- against Policy No.146/LFIR/FP/00148/2010? OP A
9. Relief.
The Insurance Tribunal after receiving the evidence of the parties, oral as well as documentary , dismissed the petition filed by the appellant on the groun d of violation of a primary condition of the insurance policy i.e. "The main power supply must be switched of f when godown is closed".
3. Learned counsel submits that insuranc e company initially granted a Temporary Fire Cover Note on 02.12.2010 covering the period from 01.08.2010 to 31.07.201 1 which did not contain any stipulation regarding switching off the main power supply of the godown. It is furthermore submitted that the insurance policy which was subsequently issued by the insurance company was never delivered to the appellant and as such he was not aware of the offending clause contained therein. It was also submitted that the insurance company did not produce in evidence the surveyor and as such the survey report Exh.R/3 was not proved in evidence.
4. Learned counsel appearing on behalf of the insurance company and the bank controverted the stance taken by the appellant and advanced arguments in support of the order of the insurance company .
5. Our findings on the issues are as follows: Issue No.8
6. This is the most relevant and all encompassing issue, the onus whereof was on the appellant.
7. The appellant in his petition relied on and mentioned only Insurance policy No.146/LHR/FP/ 00148/2010 dated 21.12.2010 (Exh.Al/1-3). He made no averments in the petition in respect of Temporary Fire Cover Note dated 02.12.2010. Similarly , the appellant did not allege anything about the offending clause of the Insurance policy in the petition. The statement of the appellant who entered the witness box as AW-I is conspicuous by the absence of any allegation regarding the Temporary Fire Cover Note or the of fending clause in the Insurance Policy .
8. The stance of the appellant that he was not aware of the Insurance policy and by extension the offending clause contained therein cannot be accepted in as much as this allegation was not mentio ned in the petition and AW-1 did not utter a single word in this regard in his examination-in-chief. The fact that AW1 himself tendered the Insurance policy in evidence also negates the stance of the appellant. Exh-A-1/1-3 is in fact a photocopy which also consists of the Temporary Fire Cover Note dated 02. t2.2010. Since the Insurance policy is admitted between the parties, the Insurance company did not raise any objections on the tender of the photocopy thereof. Although it was mentioned by AW-1 in cross-examination that Exh.A1/1-3 was provided to him by the Bank, he failed to specify whether it was handed over to him before or after the incident of fire. The appel lant thus failed to either aver or prove that the Insurance policy was not handed over to him at the time of its issuance.
9. AW-1 in cross-examination admitted that while leaving the factory premises, the power supply was not switched off. This admission of AW-1 brings his case squarely within the mischief of the offending clause of the Insurance policy . The Insurance policy was subject to the offending clause and as such the Insurance Company rightly repudiated the claim of the appellant. This issue is accordingly decided= against the appellant.
10. The appellant's counsel also urged that the surveyor appointed by the Insurance company was not examined as a witness and as such the preliminary survey report was not proved in accordance with law. This submission has no force. The survey report no doubt is a vital piece of evidence but it is not binding on the Court. In the present case, however , the oral evidence of AW-1 was suf ficient to negate the claim of the appellant.
11. The learned counsel did not address any arguments on the rest of the issues . The findings of the Insurance Tribunal on these issues are accordingly maintained.
12. In the result, this appeal fails and is accordingly dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.