CH. MUHAMMAD MASOOD JAHANGIR, J. The judgment dated 24.03.2021 of the learned Trial Court, whereby prayer for recovery of death claim along with interest was awarded to the respondent is subject of this Appeal.
2. Briefly, the appellants (insurer) after conducting medical examination of the respondent's husband, Rana Liaqat Ali (insured) that he was a fit person, issued him life insurance policy on 1st October, 1999, who afterwards died on 20.12.2000. The widow/respondent promptly preferred claim before insurer, but was repudiated on the ground of concealment of facts. The record stands for that the widow/respondent approached available Forums to get the relief and lastly per decision of the Hon'ble Supreme Court, the learned Trial Court below stood final to hear such matters, thus suit in hand was instituted on 11.04.20.14, which was contested by insurer. The Court below while facing with divergent pleadings of the respective parties materialized certain issues. Out of those issues Nos.1, 2 and 2A; being important are reproduced below:-
1. Whether the plaintiff is entitled to recover the policy proceed amount Rs.10,00,000/- under policy No.5075568326-1 along with interest under section 47-B of Insurance Act, 1938? OPP
2. Whether the suit is time barred in terms of section 3 and Article 80(a) of Limitation Act, 1908?
OPD.
2-A Whether plaintiff is entitled to get the benefit under section 14 read with section 19 of Limitation Act, 1908."
The parties led evidence in pros and cons and after its appreciation the suit was decreed vide judgment cited in preceding para to the following effect:- 'As a consequence of the above discussion the claim of the present plaintiff is hereby decreed/allowed as prayed for with costs along with interest at the rate of 5% higher than the prevailing bank rate from the date of death of the insured till realization of the claim. Decree sheet be prepared.'
This caused the insurer to prefer cited Appeal.
3. Heard, record perused.
4. There was no second thought except that the policy was a bilateral contract executed among insurer and insured under strict compliance of Special Law. The insurer to reprobate its said act/contract per section 79 of the Insurance Ordinance, 2000 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 non-representation 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 01.10.1999, thus the insurer at the most, within next two years (till 30.09.2001) could repudiate the same, but despite that claim was submitted on 20.01.2001, it allegedly declined beyond provided period on 27.12.2002 (Mark-D), when the insurer had already lacked authority to that effect.
5. Admittedly, before finalization of the policy, the insured had been medically examined via Mark B on 08.09.1999 by the Medical Specialist notably hired by insurer, who per investigation conducted via concerned Laboratory, according to his experience and expertise found him to be fit/healthy person. Nonetheless, the son of late insured (PW1) made statement on oath in line with contents of the plaint, who despite being subjected to cross-examination withstood his credibility, thus onus shifted towards insurer. Although, the latter produced Muhammad Yaqoob, Deputy Manager (retired) of the State Life as DW1, yet he was not a concerned incumbent, because he himself admitted that policy was not executed by him, who further conceded that:- Although DW 1 deposed that insured had been suffering from diabetes and hepatitis, but during the cross-examination damaged case of the insurer by conceding as under:- Similarly, DW-2 also conceded during cross-examination that he did not meet any Doctor or obtain some medical record and certificate. The glimpse of statement in verbatim is reproduced here:- 'It is correct that I did not personally conduct inquiry of this death claim. It is correct that I did not took part for book of this policy, neither repudiation. I did not meet any doctor and also not obtain any medical record and certificate. '
From the same, it can easily be inferred that the insurer failed to discharge the onus shifted to him especially to the effect that the insured made concealment while obtaining policy of insurance.
The insurer, indeed, took a defence, wherein he himself stood defaulter. This defence so introduced by the insurer has already been dealt with by the apex Court in 'State Life Insurance Corporation of Pakistan v. Atta ur Rehman' (2021 SCMR 1347) to the following effect:- ****If therefore the medical examiner chosen by the insurer is negligent or the SOPs established for the examination (again, by the insurer) are so lax as to fail to result in a properly thorough examination, the burden of that fault lies on the insurer. In such a situation the insured cannot be held to account for any non-disclosure such as would enable the insurer to escape liability on the policy unless there is fraud or a fraudulent misrepresentation. In the actual facts of the present case, had the coronary condition of the insured prior to 2002 been so bad as learned counsel sought to make out before us it would certainly have been discovered by the appellant's own medical examiner. That he did not do so, and gave a report that essentially totally, belied the stance subsequently taken by the appellant in its attempt to avoid the contract effectively puts paid to that stance. It cannot, in our view, be accepted and was rightly rejected by the Tribunal and the High Court.'
The insured breathed his last naturally at the age of 50 years, which could not assume to have been managed/planned in suspicious manner just to obtain the policy amount of meager quantum and subsequently act of repudiation beyond the specified limitation was not only illegal, rather deficient to any justification/evidence. Therefore, findings returned by learned Court below on issue No.1 being unexceptionable and based upon unrefuted evidence are affirmed.
6. Mr. Ibrar Ahmed, worthy counsel for the insurer has 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 13 years and 04 months, on the face of it, was barred by time, is not well founded. There is no denial that insured died on 20.12.2000, yet his widow (even within her iddat period) submitted the claim within a month, viz on 20.01.2001 before the insurer. Had it been awarded at that moment, then there was no fun to approach the Authority/Tribunal or the Court. 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 and based on mala fide act has no pedestal to be perpetuated even behind the shield of limitation.
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 insurer after series of litigation finally declined to adjust the claim vide letter dated 28.12.2005 (Mark F), which provided new cause of action and on 20th July, 2006 within seven months of its communication, respondent approached the Insurance Tribunal duly constituted in this behalf via appropriate remedy, which was accepted vide judgment dated 25.09.2012, but this Court on 26.03.2013 in R.F.A. No.827/2012 directed that the application be returned to respondent for its presentation before the Court of competent jurisdiction. In fact, the same proceedings under the orders of this Court were reopened before 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. v. T. C. Paf Pakistan (Pvt.) Ltd and others' (PLD 2003 Karachi 284) while observing to the following effect:- "The first contention of Mr. Samiuddin Sami is that the plaintiff did not comply with the provisions of Order VII, Rule 10, C.P.C. 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 plaintiff, stated that the present suit, filed with the same prayer 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 reported 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 plaintiff by Court under Order VII, Rule 10, C.P.C. 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 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 on 11.04.2014 was perfect per law already settled and learned lower Court was justified in answering issues Nos.2 and 2-A 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.4,00,000/- to be additionally paid to the respondent(s).