Ch. Muhammad Masood Jahangir , J. This appeal has arisen out of judgment of the learned Trial Court, whereby prayer for recovery of death claim along with interest was awarded to the respondent.
2. Inessential detail apart, the appellants (insurer) after having medically probed that the respondent' s husband Syed Iqbal Hussain Rizvi (insured) just aged 46 years was a fit person, issued him life insurance policy on 29th July, 1998, who unfortunately died on 01st September , 1999, thus his widow/respondent preferred claim before insurer about three months thereafter , but repudiated on 18th September , 2000 while concluding that the proposal form was based on fraud & misrepresentation. It was matter of fact & record that the widow/respondent struggled hard to have the secured claim by approaching Wafaqi Mohtasib, President of Pakistan, Insurance Tribunal & finally concerned learned District Court by filing suit in hand on 05th April, 2014. The same was contested by insurer . The Court below while facing with divergent pleadings of the respective parties materialized certain issues.
Out of those issues No.3 & 5, being important are reproduced below:- "3. Whether benefit under Sections 14 and 19 of Limitation Act, 1908 cannot be extended to the plaintif f on the given circumstances of the case? OPD
5. Whether the plaintif f is entitled to recover the policy proceeds under the life insurance policy along with interest under Section 47-B of Insurance Act, 1938 (since repealed). If so to what extent? OPP"
After due trial, the last remedy (suit) bore the fruit having been decreed on 12th October , 2019, which being impugned herein is the subject of appeal in hand.
3. Heard, record perused.
4. There was no second thought except that the policy was a bilateral contract executed among insurer & insured under strict compliance of special law. The insurer to reprobate its said act/contract per section 79 of the Insurance Ordinance, 2000 (Ordinance) has a limited authority , which can be exercised where either the insured avoided its obligation in exposing the required particulars or he acted with fraud or misrepresentation to deceit the insurer before finalization of the contract. The next provision further confines that this option can be availed by the insurer within two years of the effectiveness of the policy . In the case in hand, admittedly policy executed on 29th July, 1998, thus the insurer at the most within two years (till 28th July, 2000) could repudiate the same, but despite that claim was submitted on 22nd November , 1999, it allegedly declined on 18th September , 2000 (Mark-D), when the provided period stood already elapsed. Thus clear that the insurer without any justification repudiated the claim beyond prescribed limitation.
Anyway , to seek benefit of Section 79, the onus probandi rested upon the insurer to prove that either the insured failed to comply with duty of disclosure or made a fraudulent misrepresentation before the contract was finalized, but it despite availing countless chances could not examine/ tender any evidence, hence such right was taken away . There left unrebutted evidence of the respondent, which fully established that insured having been medically examined by the approved Specialist of the appellants was found fit and only then the contract was materialized.
The insured breathed his last naturally in quite prime age of 47 due to heart failure, which cannot be claimed to have been managed/planned in suspicious manner just to obtain the policy amount of meager quantum.
Thereafter , act of repudiation beyond the specified limitation was not only illegal, rather deficient to any justification/evidence, thus could not be perpetuated. Therefore, findings returned by learned Court below on issue No.5 being unexceptionable & based upon unrefuted evidence are af firmed.
5. Mr. Ibrar Ahmed, worthy counsel for the insurer being aware of the fact that his client has a weak case on merit, mainly focused his emphasis to persuade that suit was barred by time and liable to be dismissed on said score. To this effect, he emphasized with great vehemence that under Article 86 (a) of the Limitation Act, 1908, the period provided for filing of suit was just three years from the date of death of the insured, but it having been instituted after 141/2 years, on the face of it, was barred by time, is not well founded. There is no denial that after the demise of insured, his widow even within her iddat period tendered the claim before the insurer . Had it been awarded at that moment, then there was no fun to approach the Authority/T ribunal or the Cour t. Indeed, it is act of repudiation, which caused accrual of limitation to the claimant, otherwise, the Insurance Companies can defeat object of the provision ibid by retaining claim for more than three years. Here as well, just some days prior to expiry of three years after the death of insured, the claim was declined. The judicial system is aimed to promote justice and when it is proved on record that the repudiation was not justified on law as well as merit, then to me in such like situation the principle of recurring cause of action fully applies, thus whenever a demand for disbursement of claim is denied, fresh cause of action accrues to the claimant to approach the Court within three years of last denial, because an illegal, without jurisdiction, unfounded & based on mala fide act has no pedestal to be perpetuated even behind the shield of limitation.
6. There is no other opinion that office of Wafaqi Mohtsib was not an entity to entertain claim of the respondent, but having felt annoyed with appellants' totally unethical attitude, the respondent being member of aggrieved family after unfortunate sudden demise of the bread winner approached the said forum for speedy remedy to agitate the rightful demand, which having been granted on 27th September , 2001 was further assailed by the insurer in that hierarchy . Thereafter , the said matter was taken up by this Court through different writ petitions including one (W.P.
No.21517/2002) on behalf of the respondent and vide order dated 20th December , 2002, the representation filed by appellants was remanded to the Secretary of Law, Justice & Human Rights Division, Islamabad for decision afresh.
In the meanwhile respondent again approached the insurer , who vide letter dated 10th September , 2003 (Exh.P4) regretted to take any action on the groun d that the matter (on behalf of the insurer) was still sub judice before the apex Court of Pakistan, which was decided on 28th September , 2005 and the case (WP No.21517 of 2002) remanded to this Court, however , it was withdrawn on 25th July, 2006. In such facts & circumstances, the respondent deserved condonation of delay in bona fide approach to the wrong forum(s).
7. There is yet another aspect that any correspondence on behalf of insurer either explaining reasons to repudiate the claim or showing indulgence to probe the matter any further is, indeed, an acknowledgment falling within the meaning of Explanation-I to section 19 of the Act ibid. The aforesaid letter (Exh.P-4) provided new cause of action and on 20th July, 2006 within three years of its communication, the respondent approached the Insurance Tribunal duly constituted in this behalf via appropriate remedy , which was accepted vide judgment dated 25.10.201 1, but this Court on 15th February , 2013 in RFA directed that the application be returned to the respondent for its presentation before the Court of competent jurisdiction. In fact, the same proceedings under the orders of this Court were reopened before the learned District Court. Now comes another moot point, whether the respondent was bound to present the earlier application returned by the then Insurance Tribunal or she could institute new one after formation of regular suit. This proposition has already been resolved by the High Court of Sindh in 'Messrs Pakistan Agro Forestry Corporation Ltd. versus T.C. Paf Pakistan (Pvt) Ltd and others' (PLD 2003 Karachi 284) while observing to the following ef fect:- "The first contention of Mr. Samiuddin Sami is that the plaintif f did not comply with the provisions of Order VII, Rule 10 CPC but filed as fresh plaint which is liable to rejection. In support of his contention, he relied on the case of Mst. Hawabai v. Abdul Shakoor and others PLD 1970 Kar.367. Mr. Mansoorul Arifin, learned counsel for the plaintif f, stated that the present suit, filed with the same pray er but with different valuation is maintainable as it is a new suit with different valuation based on the claim of the defendant No.1. The finding of the learned Single Judge in the case of Hawa Bai (supra) was reversed in appeal by a Division Bench of this Court in the case reporte d as Hawabai v. Abdul Shakoor PLD 1981 Kar. 277 and the same was upheld by the Hon'ble Supreme Court in the case Abdul Shakoor and others v. Mst. Hawabi and others 1982 SCMR 867 . Following conclusion was reached by the Division Bench of this Court.
In view of the above discussion, we have reached the conclusion that after a plaint is returned to plaintif f by Court under Order VII, Rule 10 CPC he may adopt any of the following courses:- I. He may challenge the order returning the plaint for presentation to the proper Court by filing an appeal against such order , or II. He may present the same plaint after its return to him to a Court having jurisdiction in the matter , or III. He may amend the plaint by giving up a part of the relief or by reducing the valuation, so as to make it cognizable by the Court, which returned the plaint and then present the same to the same Court or amend the plaint and present it before a Court having jurisdiction in the matter , or IV. He may file a fresh suit in the Court having jurisdiction the matter .
Therefore, in view of the law laid down by a Division Bench of this Court in the case of Hawa Bai (supra) and upheld by the Hon'ble Supreme Court in the case of Abdul Shakoor 1982 SCMR 867, I hold that the objection has no force."
Therefore, institution of new suit was perfect as per law already settled and learned lower Court was justified in answering issue No.3 against the insurer .
8. The family of the insured was forced to initiate litigation for totally unjustified act of repudiation of the insurer , which took more than two decades to decide lis in hand uptil this forum and for the foregoing discussion, this appeal having no merit stands dismissed with costs of Rs.2,00,000/- to be additionally paid to the respondent.