JUSTICE (RETD.) ALI AKBAR QURESHI, CHAIRMAN. The Petitioner/nominee Abdul Basit, who is husband of the deceased/insured person namely, Mst. Farzana Bibi, instituted on application under the provisions of Insurance Ordinance, 2000, for the recovery of policy proceeds, amounting to Rs.
10,00,000/- (one million) along with liquidated damaged regarding Policy No. 604017582-6, purchased on 03.10.2012 from respondent No.2, under the table and terms 03/17 years, against half yearly premium commencing from 25.03.2009, on the grounds; that the aforementioned policy was purchased by the wife of the petitioner from the respondent; that the deceased/insured person undergone different medical/clinical tests i.e. full medical report (FMR), pathological Urine Report (PUR), Exercise ECG, Complete Blood Test as required by the respondent/corporation from the authorized and hired doctor of the corporation before issuing policy; that the insured person, suddenly died on 23.06.2009, due to poison of Lizard at home, whereupon the petitioner filed his claim being nominee of the deceased, and the claim of the petitioner was repudiated through letter dated 27.09.2012 by the respondent/corporation without assigning any reason.
2. That the petitioner being aggrieved of the repudiation order dated 27.09.2012, filed an insurance petition, which was vehemently contested by the respondent/corporation by filing written statement. The respondent/corporation questioned the claim of the petitioner on legal as well as on factual side and mainly submitted, that the deceased/insured person at the time of purchasing the policy did not state the true facts, therefore, the petitioner is not entitled to claim the policy proceeds.
3. Out of the divergent pleadings of the parties, the following issues were framed, which are reproduced as under:- 1) Whether the applicant is entitled to recover the policy proceeds along with liquidated damages, if so, to what extent? OPA.
2) Whether the applicant has not come to the court with clean hands? OPR.
3) Whether the instant application is not maintainable and is liable to be dismissed under Order VII, Rule 11, C.P.C.? OPR.
4) Whether the applicant is not entitled to claim the benefit of policy due to suspicious and un- natural death of life proposed by intake of poison? OPR.
5) Whether the policy was procured to defraud the insurer by suppressing the material facts OPR.
6) Whether the policy in question falls within the parameters of section 80 of Insurance Ordinance, 2000? OPR.
7) Relief.
4. Both the parties adduced their oral as well as documentary evidence in support of their versions in earlier round of the litigation, the insurance petition was allowed along with liquidated damages on 18.05.2019. The judgment passed by this Tribunal was challenged before the Hon'ble Lahore High Court, Lahore. During the proceedings, before the Hon'ble Lahore High Court, with the consent of both the learned counsel for the parties, the case was remanded to this Tribunal in the following manners:- "With the concurrence of the learned counsel for the parties, the impugned judgment dated 18.05.2019 is set aside and case is remanded to learned Insurance Tribunal with the direction to frame issues germane to limitation, record evidence, if intended to be produced and decide the case afresh in accordance with law, within a period of 03 months from the date of receipt of certified copy of order of this Court".
In compliance of the aforementioned order of the Hon'ble Lahore High Court, Lahore, the following additional issue pertaining to the limitation was framed:- 3-A Whether petition is liable to be rejected being barred by time? OP parties.
5. After framing the additional issue, the matter was fixed to record evidence of the parties for 27.10.2022 and on said date, both the learned counsel for the parties, appeared and categorically stated at the bar that they don't want to adduce any type of the oral, or documentary evidence on the issue of limitation and elected to rely upon the earlier evidence produced by them. Learned counsel for the parties on the next date of hearing, argued the matter at length on the point of limitation by referring different judgments of the Hon'ble Superior Courts. After hearing the arguments of the parties, finally, the issue pertaining to the limitation was decided in favour of the petitioner and against the respondent vide order dated 03.11.2022. Since, the judgment dated 18.05.2019 passed by this Tribunal in the earlier round of litigation was set-aside by the Hon'ble Lahore High Court, Lahore vide its judgment dated 28.06.2022, therefore, the law requires to decide the case afresh in accordance with law.
6. Heard, record perused.
7. In order to decide the case afresh, particularly the issue No.1 the oral as well as documentary evidence produced by both the parties, was perused with the assistance of the learned counsel for the parties. As per facts and evidence available on the file, it is not denied that wife of the petitioner (insured person) namely, Mst. Farzana Bibi, purchased the policy from the respondent, for a sum of Rs.10,00,000/- and paid first premium, but unfortunately, after about 03 months, she died because of poison of the Lizard at her home. The petitioner Abdul Basit reported the matter and filed the claim to recover the policy proceeds in the office of the respondent/corporation under section 118 of the Insurance Ordinance, 2000. The respondent/corporation instead of deciding the claim within the stipulated period i.e. 90 days, kept pending the same for more than 03 years and finally repudiated the same through letter dated 27.09.2012 (Ex.A.5). The letter dated 27.09.2012 is printed form in Urdu language and has simply been filled in by the official of the respondent/corporation.
The contents of the aforementioned Ex.A-5 don't disclose the cause or reason on the basis of which, the claim of the petitioner was refused. It would be appropriate to re-produce the relevant Para on the basis of which, the claim was repudiated, which is as below:- The petitioner, who is husband of the deceased/insured person appeared as AW-1 and reiterated his claim stated in the insurance petition. The AW-1, also undergone the cross-examination which was conducted by the respondents. The respondent remained unsuccessful to dismantle the claim of the petitioner.
8. On the other hand, the respondent/corporation produced 07 witnesses (RW-1 to RW-7) along with documents, but miserably failed to dislodge or disprove the claim of the petitioner. RW-1 who is the Deputy Manager, Claim Examiner of the respondent/corporation and conducted inquiry after the death of insured persons, although recorded lengthy examination in chief and faced cross- examination, has stated in clear words that inquiry is based on hearsay evidence and he had not recorded the statement of the parents of the deceased nor any of the relative. The aforesaid statement of the RW-1 is sufficient to hold, that inquiry was conducted in careless manner, while sitting in his office and needless to observe that this type of evidence (hearsay) could hardly be relied upon or made basis to decide the claim of any party. The other witnesses produced by the respondent also stated in the same manner and could not bring anything on record to dismantle or refute the claim of the petitioner. Even, witnesses appeared on behalf of the respondents could not prove the contents of the repudiation letter dated 27.09.2012 and finally, there is no hesitation to observe, that the respondent has completely failed to bring anything on record through evidence, which could disentitle the petitioner from his claim.
9. There is another important aspect of the case that before issuing the policy; the insured lady on the demand of the respondent/corporation, undergone certain medical/clinical tests mentioned in Para No.2 of the insurance petition. As per contends of the Para No. 2, the insured lady undergone the test, i.e. full medical report (FMR), pathological Urine report (PUR), Exercise ECG, Complete Blood Test by the authorized and hired medical expert of the respondents/corporation. The respondent/corporation while filing the reply of the petition has categorically admitted the contents of Para No.2 of the petition.
10. This question has dealt with in recent judgments by the Hon'ble Lahore High Court, Lahore as well as by the August Supreme Court of Pakistan in judgment 2021 SCMR 1347. The relevant para is reproduced as under:- Para No.6.
"The reason why the questions just mentioned remain is because the appellant did not merely rely on the answers given by the insured in the aforementioned "Life Proposed's Personal Statement of Health". The insured was also thoroughly medically examined by a doctor of its own choice. The doctor's report, also dated 30.07.2002, gave the insured a clean chit. In the sections relating to coronary matters (and indeed all others) the medical health/status of the insured was stated to be perfectly normal. The remarks of the examining doctor are also pertinent. He found the insured to be "fit, first class (sic)". When this medical examination and report are considered in the light of the evidence as a whole, it is clear that the appellant was induced to issue the life insurance policy not on account of the statements made by the, latter and, as presently relevant, the response given to question No.7. Rather, it was the examination by the appellant's own medical examiner and his report that was clearly the most important factor, and instrumental in inducing the appellant to go forward in the matter. Furthermore, it is a fact so well known that judicial notice can be taken of it that insurers in the life insurance business don't issue policies without a thorough medical examination of the person proposed to be insured, and unless the resultant report is found satisfactory or acceptable. This is the Industry custom and practice uniformly followed in all cases.
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 fall 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".
11. In view of the dictum laid down by the Hon'ble Supreme Court of Pakistan in the judgment supra, the respondent/corporation, who has categorically admitted the fact of conducting the medical/clinical investigation by the authorized and hired doctor of the respondent/ corporation, cannot questioned, challenged or repudiate the claim of the petition on health ground. Even otherwise, the respondent has miserably failed to prove the natural death or suicide of the insured person through any confidence inspiring evidence. Further, the respondent has also failed to prove or to bring on record any credible evidence to prove that any material fact was concealed by the insured lady at the time of purchasing the product of the respondent/corporation. The oral as well as documentary evidence produced by the respondent in fact, is self-destructive and fatal to the case of the respondent and rather supports the claim of the petitioner.
12. No other issue has been pressed at the bar.
13. In view of the above findings recorded after evaluating and appreciating the evidence Tribunal reached to the conclusion that the petitioner has succeeded to prove his case, therefore, this case is decreed for a sum of Rs.10,00,000/- along with liquidated damages from filing of the suit/petition, till realization of the payment. No order as to costs.