JUSTICE (R). ALI AKBAR QURESHI, CHAIRMAN. The petitioner, who is studying in the medical college namely, Independent Medical College/University Faisalabad, being MBBS 2nd year Student, having Roll No.035 for the sessions 2020 to 2024, instituted this insurance petition contending therein, that the respondents Nos.1 and 2 with the collaboration of respondent No.3 decided to offer an insurance plan namely, Group Family Takaful Plan for four years to cover the educational expenditure i.e. annual fee of her medical education; that the students of the college were persuaded to purchase the policies; that the petitioner also decided to purchase the insurance plan of the respondents and as per terms of the policy the premium had to the paid by the father of the student being the owner of the policy, and finally the petitioner purchased the insurance plan namely, Group Family Takaful Plan for the period of four years against a sum assured of Rs.38,00,000/-. Along with this insurance plan, it was also 'mandatory requirement of the respondent/company to purchase a policy namely, 5alamati Plan to cover the life risk of the petitioner against policy No. P300122003494 dated 25.02.2020; that the father of the petitioner paid first premium on 18.02.2020, a sum of Rs.50,000/-, out of which Rs.20,000/- for Group Family Takaful Plan and Rs.30,000/- for the Salamati Plan to the respondent/ company in the college premises.
Unfortunately, the father of the petitioner suddenly died on 21.03.2021 at the age of 52, years, who was the sole earning hand of the family and was also paying the premium and the annual fee of the petitioner. The petitioner on the death of her father filed insurance claim with respondents Nos.1 and 2, but neither any reply was made nor the insurance claim was paid and the petitioner had to approach this Tribunal.
2. The insurance petition was vehemently contested by the respondents and particularly the respondents Nos.1 and 2, who while filing the written statements mainly contended that the petitioner' or her father failed to pay the second premium within the stipulated period or on the due date, therefore, the policy was lapsed and the respondent/ company is not tinder any obligation to pay the claim.
3. Out of the divergent pleadings of the parties, the following issues were framed:-
1. Whether petitioner is entitled to recover the death claim of Rs.90,00,000/- including medical college fee and dues along with educational expenditures under Insurance Policy No. P300122003494 dated 25.02.2020, with damages of Rs.1000,000/- along with cost of the case from the respondents Nos.1 and 2? OPP.
2. Whether the aforesaid insurance policy was one year from 01.12.2019 to 30.12.2020 and at the time of death of father of the petitioner, there was no policy OPR.
3. Whether the instant petition is not maintainable in its present form and plaint is liable to be rejected under Order VII, Rule 11 of C. P.C.? OPR.
4. Whether petitioner has no cause of action and locus standi to file this petition? OPR.
5. Relief.
4. Both the parties after framing the issues filed their affidavits and produced their witnesses for cross-examination. The petitioner appeared as AW-1 and produced AW-2 and AW-3 and got exhibited documents Exh.A/1 to Exh.AW-13. In rebuttal one employee namely, Sohail Sarwar appeared as RW-1 and produced documents Exh.R147-2 to RW-9.
5. Learned counsel for the petitioner submitted while arguing the matter that the father of the petitioner purchased two policies to secure the annual college fee and life; the premium was paid well within time and the father of the petitioner during the pendency of the policy died, therefore, according to the terms of the policy the respondents Nos.1 and 2 are bound to pay the annual fee of the petitioner for the remaining period and also the proceeds of the other policy namely, Salamati Plan. Further submitted, that neither the respondents Nos.1 and 2 nor respondent No.3 gave any notice to the petitioner or to her father for the payment of the next premium, therefore, the petitioner, in fact, has been condemned un-heard and the valuable right, which is secured by law is being denied for no reason.
6. In response thereof, learned counsel for the respondents submits, that the respondent/company in fact approached to the college administration, who offered to the students to purchase the policies in question, and further it was duty of the respondent No.3 to inform or to collect the premium, therefore, no illegality or irregularity was committed by respondents Nos.1 and 2. Also submitted that the schedule of payment is very much available in the policy, documents, therefore, even otherwise there was no need to issue any notice to the college administration or father or to the petitioner for the payment of the remaining premium, therefore, the policy has already been lapsed and petitioner is not entitled for any proceeds or other benefits.
7. Heard, record perused.
8. Out of divergent pleadings of the parties, 05 issues were framed, out of which issues Nos.1 and 2 are pivotal, which shall decide the fate of the case.
9. Deeper dive into the admitted documents got exhibited by the parties to the case revealed, that in fact, it was a tripartite agreement among the petitioner and the respondents. As per the documents, the respondent No.1, approached to provide the coverage of annual fee of the students and for this purpose, an agreement dated 19th November, 2019 namely, "Service Level Agreement" was executed between the respondents/company and the respondent No.3 (Exb.RW- 4), whereby. the respondents issued a Takaful Certificate to the 150 students covering the annual fee of the medical students of the Independent Medical College. The petitioner through her father also got secured herself and in this respect a certificate namely "Certificate of Group Family Takaful Coverage" issued for the period of 04 years covering the annual fee of the petitioner, who is admittedly the student of the respondent No.3 (Exb.A-6): The issues Nos.1 and 2 are the crucial issues, which shall in fact, decided the entire case. It is not denied by the respondents, that the respondents Nos.1 and 2 with collaboration of respondent No.3 offered the Takaful Plan to the student.
10. Along with the Group Family Takaful coverage plan, it was condition precedent, that the petitioner shall also purchase the Salamati Plan, whereby the respondent/company provided the life coverage to the petitioner (Exb.A-5, Exb.A-9 and Exb.RW-3). The petitioner through her father deposited the first premium of both the policies amounting to Rs.50,000/- through receipt dated 18.02.2020, issued by respondent No.1 (Ex.A-4), Rs.20, 000/- for the Group Family Takaful Certificate and Rs.30,000/- for Salamati Plan and by this way, it comes to Rs.50,000/-. It is pertinent to mention here and not denied by the respondents that all the documentations including the execution of agreements, took place in the place of the college and the premium of the two policies was also paid in the college at the desk established by the respondent/company and by this way, the process of two policies was completed on 18.02.2020 when the consideration of the contract was paid and accepted by the respondent/ company.
11. The other aspect of the case is that the father of the petitioner died on 21.03.2021, during currency of both the policies as claimed by the petitioner. The only question, which requires the consideration and adjudication as to whether the respondent/company is liable to pay the annual educational fee of the petitioner because of the death of her father and the status of the Salamati Plan issued in the name of the petitioner by the respondent/company, particularly in the circumstances, when the petitioner is a student and the premium was to be paid by her father, who is no more. The respondent/company while filing the written statement and appearing in the witness box has claimed that that duration of the first policy i.e. Group Family Takafill Plan was from 19th December, 2019 to December 2020 (the effective period) and Salamati Plan till 25th, February, 2029, and as the petitioner has failed to pay the second premium within the time given in the policy document, therefore, both the policies have been lapsed and the petitioner is not entitled to claim any policy proceed.
12. The most important aspect in this case according to terms of the policy is the date of making the payment of first premium and due date of the second premium including the grace period provided in the rules. The documents Exh.RW-4 and Exb.A-6 (Service Level Agreement and Certificate of Group Family Takaful) are pertaining to cover the annual fee of the petitioner of the medical college. Both the documents are silent about the date of paying the first premium, whereas the documents namely, Salamati Plan, (Exh.A/7 and Exb.A-8), bear the date of paying the premium i.e. 25th February of every year. Admittedly, the 1st premium of Rs.50,000/- of both the policies was paid against receipt on 18.02.2020, in the premises of college and received by the respondent/company, therefore, it can safely be observed that the period is to be started from the aforementioned date i.e. 18.02.2020 and till 25.02.2021 as mentioned in the aforementioned exhibited agreement. It would also to beneficial to refer some clause of the exhibited documents (Exb.A-6), which states in case of claim, 'compensation amount' will be paid to the institution of annual basis, (ii) the coverage certificate will be issued by DFTL on yearly basis (subject to renewal)
(iii) coverage will automatically be ceased as and when covered person reached his/her 65th birthday and (iv) the coverage will commence after submission and acceptance of Health Questionnaire and realization of contribution payment". (Exb.A-7) which is preamble, states under the heading of condition precedent that "cover under this Certificate shall not commence until the Contribution, as stated in the Certificate Schedule, has been paid to the Takaful Operator. No payment in respect of any Contribution shall be deemed to be payment to the Takaful Operator, unless such payment is effectively received and appropriatelu acknowledged by the Takaful Operator".
13. Same is the position with the Salamati Certificate, purchased by the father to cover the fife risk of the petitioner.
14. It would be appropriate to discuss the conduct of the respondent/ company while receiving and accepting the premium of both the policies through one receipt dated 18.02.2020. Although, Exb.RW-4 and A-6 were executed in the month of December 2019. Since, no date to pay the first premium is mentioned in the aforementioned document and the Salamati Plan and the premium of both the policies were happily received without any objection by the respondent/company, therefore, the date of payment of the first premium would be considered as 18.2.2020 and the date of payment of second premium as the respondent/company itself mentioned in the Salamati Plan is 25th February of every year i.e. 25.02.2021. As regards the interpretation of the provisions of the contract (policy documents) it is well established principle of law that the same is to be construed and interpreted objectively as observed in 2011 PLC (C.S.) 1579 Sindh in case titled Muhammad Shahnawaz and 44 others v. Karachi Electric Supply Company and others, which is as under:- "Finally, the provisions of the contract are to be construed and interpreted objectively. This is absolutely fundamental. Thus, in Sirius International Insurance Co. v. FAI General Insurance Ltd.
(2004) UKKL 54; (2005) I All ER 191, it was observed as follows:- "The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language. The inquiry is objective: the question is what a reasonable person, circumstanced as the actual parties were, would have understood the parties to have meant by the specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene".
Further held at para No.27, which is reproduced as under:- "Only the clearest possible language could, if at all, achieve such a result. A contractual power of this nature should also be construed contra proferentem, i.e., any ambiguity or doubt in the scope of the power should be construed against the employer and in favour of the employee".
15. The Hon'ble Supreme Court of Pakistan while interpreting the principle of contra proferentem in PLD 2021 SC 906 titled "Universal Insurance Company and another v. Karim Gul and another" has beautifully observed. The beautiful words are reproduced as below:- "It can safely concluded that the contract (notwithstanding its typographical errors) was the creation of the appellant. It is the entity in the insurance business and can be taken to know the sense in which the term "total los" is used in the industry. Keeping the relevant background facts in mind (as emerging from the evidence led at the trial) in our view a reasonable person considering the contract objectively would conclude that the term was used in the contract in a technical sense. The appellant's case is that the sense was of "actual" total loss, i.e., the thing sold was mere wreckage. In our view, there is a certain ambiguity as to in which of the two technical senses the words were used. Now, a well-known principle of interpretation of contracts is the contra proferentem rule: "when there is a doubt about the meaning of a contract, the words will be construed against the person who put them forward" (Lewison, op. city., pg. -360). It has been held judicially, in the (UK) Court of Appeal that the rule is "a principle not only of law but of justice"
(Association of British Travel Agents Ltd., v. British Airways Pic (2000) 2 All ER (Comm) 24, (200)
2 Lloyd's LR 209), and in the Supreme Court of Canada that "whoever holds the pen creates the ambiguity and must live with the consequences" (Co-operators Life Insurance Co. v. Gibbons (2009) 3 SCR 605,'2009 SCC 59)".
16. Admittedly, all the polices documents were drafted and prepared by the respondent company and as per principle laid down by the Hon'ble Supreme Court of Pakistan in the judgment supra, it can safely be held that the respondent company happily received the premium of both the policies on 18-02-2020 while issuing one receipt (Exb.A-4). No date to pay the second premium was given in the policies covering the annual fee of the students, whereas in the Salamati Plan policy, the due date of paying the premium is 25th February of every year. The date of the premium in both the cases would be 25.02.2021. The father of the petitioner died on 21.03.2021 within the grace period i.e. 25.02.2021 to 25.03.2021 and by this way, the respondent company according to terms of the policy documents and the principle laid down in the judgment supra is responsible to pay the annual fee of the MBBS (four years) of the petitioner.
17. There is another most important aspect of the case that originally the agreement was executed between the respondent/company and the Independent Medical College to provide the coverage of the annual fee and the petitioner (the Student of the College) had not direct relation or communication with the respondent/company, thus, the respondent/company or the college administration were legally bound to inform to the student (the petitioner) through a notice about the payment of second premium. Admittedly, no such notice was given either by the college or by respondent/company in any manner whatsoever because the respondent/company has failed to bring any such document on the record and by this way, the petitioner has been condemned unheard and any action taken by the respondent/company is violative of law and not sustainable and the issues Nos.1 and 2 are decided in favour of the petitioner and against the respondents/company.
18. Issue No.3.
Since, it is an insurance claim and there is no other forum available except this Tribunal under section 122 of the Insurance Ordinance, 2000 to decide the same, therefore, this issue is also decided in favour of the petitioner and against the respondents.
18(sic.) Issue No.4.
In the light of findings of issues Nos.1, 2 and 3, this issue is also decided against the respondents and in favour of the petitioner.
19. Relief.
In view of the findings recorded while deciding the issues, this ID petition is allowed and the insurance claim of the petitioner is decreed to the extent of annual college fee of the petitioner till the completion of the medical education of the petitioner. As regards, the Salamati Plan, the petitioner may continue the same and otherwise, the premium amount of Rs.30,000/- will be refunded to the petitioner. No order as to cost.