ZAFAR IQBAL TARAR, MEMBER (LEGAL). This order is intended to dispose of an application filed by the respondent/State Life Insurance for depositing diet money of the witnesses and their summoning through court.
2. Brief facts of the case are that the respondent/insurance company took the ground of pre- insurance ailment of the deceased in the written statement. For proving the same, the SLIC has sought to summon three Doctors of Aziz Bhatti Shaheed Hospital, Gujrat and record keeper of the said hospital along with record of the deceased in the court through this petition.
3. This petition is strongly opposed by learned counsel for the petitioner with the contentions that the deceased was got insured by the respondents through a medical Insurance policy commencing from 22.09.2016 without past history of any ailment before purchasing the said policy.
He paid two premiums and thereafter died due to heart attack on 07/02/2018; that he had no past history of any ailment, but on his death, the claim of the petitioner was unjustly and illegally repudiated on the ground of pre-insurance ailment; that it has been categorically held by the august Supreme Court of Pakistan in the judgment reported as State Life Insurance Corporation v.
Atta-ur-Rehman (2021 SCMR 1347) that where the insurance company was induced to issue the life insurance policy, not on account of the declaration made by the insured, rather, it was on the complete medical conducted by the insurance company's own medical examiner and the medical report which are important factors, and made instrumental in inducing the insurance company to go forward in the matter; that in such situation, the insured could not be held responsible for any non-disclosure and the insurer is not permitted to refuse to pay the policy proceeds, unless there was fraud or a fraudulent misrepresentation, so there is no justification for the summoning of doctors and medical record regarding the death of the deceased/insured; that the other evidence of the respondent has already been recorded, which is sufficient to adjudicate the matter in issue.
Calling of the doctors as RWs would cause unnecessary delay in disposal of the case, as such, this petition of the respondent should be dismissed.
4. We have heard the arguments of learned counsel for the parties, gone through the record,
5. Admittedly, the deceased Muhammad Razzaq father of the petitioner obtained insurance policy No.604415269-3 amounting to Rs. 4,88,000/- to be commenced from 22.09.2016 and he paid two premiums and thereafter, he died on 07.02.2018 in Aziz Bhatti Shaheed Hospital, Gujrat due to cardio pulmonary arrest. As regard the conducting of medical before issue of the policy of the RW-1 produced by the respondent stated in his cross-examination as under:- Which clearly shows that the deceased was medically examined before issuance of the policy. In the medical policies, the august Supreme Court of Pakistan in the judgment reported as State Life Insurance Corporation v. Atta-Ur-Rehman (2021 SCMR 1347) held 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 notices 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, an unless the resultant report is founds 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 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 the be accepted and was rightly rejected by the Tribunal and the High Court."
In view of the law laid down by the august Supreme Court of Pakistan, when the insured was medically examined and found fit by the Doctors of the insurer before issuing the policy, subsequently, the insurer could not avoid the policy on the ground of pre-insurance ailment. In such circumstances,, summoning of the doctors along with medical record as RWs in this case would be a just futile exercise, IC hence, this application of the respondent is hereby dismissed.