MUHAMMAD ASIF, J-. This Writ Petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, carries the following prayer clause: "In the luminosity of the above, it is, therefore, respectfully prayed:
1. That the impugned order dated 08.12.2023, passed by respondent No.1 be declared illegal, null and void, for lack of jurisdiction, and as being coram non judice, devoid of any law authority and consequently, without any legal effect.
2. That pending the final adjudication of this honorable court, the operation of the impugned decision be suspended, and Respondent No.1 be restrained from issuing any further notices, making legal demands, or taking coercive measures against the petitioner.
Any other relief deemed fit, just, and equitable by this honorable court in the circumstances of the case may also be granted to the petitioner."
2. The ephemeral facts of the case are that M/s. Jubilee Life Insurance Company Limited ("the Petitioner Company") issued the respondent No.2 two insurance policies on 31.03.2017 and 28.02.2018 for sums assured of Rs. 1250,000/- and Rs. 10,00,000/- with annual premiums of Rs.250,000/- and Rs. 200,000/- each, respectively. After paying a few premiums, the respondent No.2 requested the Petitioner Company to surrender the policies due to financial constraints and for a refund of the paid premiums, but to no avail. Respondent No.2 initially approached the Small Dispute Resolution Committee ("SDRC") by filing SDMS Complaint No.161217, and by order dated 17.06.2022, the SDRC disposed of the complaint, stating that the raised offer of Rs. 1,016,000 from Rs.
916,000/- by the Petitioner Company to the respondent No.2 was reasonable. Since the grievance was not redressed to its satisfaction, the respondent No.2 filed Complaints No.2556 & 2557/2023 before the Federal Insurance Ombudsman ("FIO") Pakistan, and by order dated 04.09.2023, the FIO observed that since the complaint had already been decided by the SDRC on merits, as such, cognizance cannot be taken in view of limitation under the provisions of Section 127(1)(b) of the Insurance Ordinance,2000 ("the Ordinance"). The respondent No.2 filed a representation dated 02.10.2023 before the President of Pakistan/respondent No.1 seeking a recall of the FIO's order. The respondent No.1, by order dated 08.12.2023 ("the impugned order") set aside the FIO's order and directed the Petitioner Company to refund an amount of Rs. 1,650,000/- to the respondent No.2 within 30 days. Hence, this petition.
3. Learned counsel for the Petitioner Company contended that once the FIO declined to entertain the complaint under Section 127(1)(b) of the Ordinance due to prior adjudication by the SDRC, the matter had attained finality. As such, respondent No.1 had no jurisdiction to decide the representation filed against the FIO's order. It was further contended that the premium cannot be ordered to be returned; however, only where there is a surrender of the policy, the cash value or surrendered value is to be returned under section 90 of the Insurance Ordinance 2000. Per learned counsel, the order of respondent No.1 contravenes the provisions of the Insurance Ordinance 2000, which prescribe a specific procedure for the resolution of disputes between insurers and insured parties.
4. Inversely, the learned AAG and counsel for Respondent No.2 contended that the SDRC is not a judicial body but an alternative dispute resolution forum; thus, its findings are not binding in the sense contemplated under Section 127(1)(b). It was further argued that the policies were sold to the respondent No.2 fraudulently, as such, the respondent No.1 rightly exercised his powers under Section 14 of the Act.
5. I have heard the learned counsel for the parties at full length and perused the available record.
6. The pivotal question for determination is whether respondent No.1 had the jurisdiction to entertain and decide a representation against the FIO's order declining jurisdiction under Section 127(1)(b) of the Insurance Ordinance, 2000. The question of jurisdiction is a pure question of law and is almost a fundamental issue that needs to be addressed first. There is no cavil with the proposition that no authority should exercise any jurisdiction in any manner brought before it until and unless such jurisdiction has been conferred upon it by the Constitution itself or under any law.
Where there is an abuse of process and an absence of lawful authority, the High Court has jurisdiction to set aside the same. My view is fortified by the case of "S.M. Waseem Ashraf versus Federation of Pakistan through Secretary, M/O Housing and Works, Islamabad and others"
7. The representation was filed before the President/respondent No.1 under Section 14 of the Federal Ombudsmen Institutional Reforms Act, 2013 ("the Act"). The powers of the respondent No.1 under Section 14 of the Federal Ombudsmen Institutional Reforms Act, 2013 are expansive and allow review of the "decision, order, findings or recommendations" of an Ombudsman. Any person or party aggrieved by such actions can file a representation to the President within 30 days. For convenience's sake, Section 14 of the Act, inter alia reads as follows: "14. Representation (1) Any person or party aggrieved by a decision, order, findings or recommendations of an Ombudsman may file representation to the President within thirty days of the decision, order, findings or recommendations.
(Underline added for emphasis.)
8. Section 24 of the Act gives the said enactment primacy over competing provisions of the law and the overriding effect is enunciated as follows: "24. Overriding effect.---(1) The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.
(2) In case there is a conflict between the provisions of this Act and the relevant legislation, the provisions of this Act to the extent of the inconsistency, shall prevail."
The term "relevant legislation", employed in the verbiage of section 24(2) supra, is defined in section 2(c) of the Act, as follows: "relevant legislation" means, the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O. No.1 of 1983), Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 (XXXV of 2000), the Insurance Ordinance, 2000 (Ordinance No.XXXIX of 2000), the Banking Companies Ordinance, 1962 (LVII of 1962), and the Protection against Harassment of Women at the Workplace act, 2010 (IV of 2010)."
9. After examining the above provisions, it can be safely concluded that the forum outlined, vide the Act for deciding representation against the FIO's order was the President of Pakistan/respondent No.1.
10. The respondent No.2 approached the respondent No.1, challenging the FIO's order, whereby his complaint filed against the SDRC decision was not entertained. The FIO in his order dated 04.09.2023 in paragraphs 4 and 5 held as under: "4. The parties reiterated the averments of their written and oral submissions. The representative of Respondent Company informed that the matter has already been decided in Small Dispute Resolution Committee (SDRC) in SECP and submitted a decision of the SDRC in his Complaint No: 161217 which is placed on record. The Complainant was therefore, told that his complaint could not be entertained by this Forum as it has already been decided by SECP on merits and his grievance redressed.
(Underline added for emphasis.)
5. In view of the aforesaid limitation under the provisions of Section 127(1)(b) of the Ordinance, the complaint is closed at this end being already decided by the SECP.
(Underline added for emphasis.)
11. Before proceeding further, it would be expedient to reproduce Section 127(1)(b) of the Ordinance, which is as under:- "127. Jurisdiction, functions and powers of Insurance Ombudsman.-
(1) The Insurance Ombudsman may on a complaint by any aggrieved person undertake any investigation into any allegation of mal-administration on the part of any insurance company:- Provided that the Insurance Ombudsman shall not have any jurisdiction to investigate or inquire into any matters which -
(b) are sub-judice before a court of competent jurisdiction or tribunal or board in Pakistan on the date of the receipt of a complaint, reference or motion by him.
(Underline added for emphasis.)
12. From the plain reading of the above provision, it is clear that the bar applies only where the matter is sub judice or has been adjudicated by a court of competent jurisdiction.
13. The FIO declined jurisdiction on the misconceived assumption that the SDRC's recommendation constituted a binding decision.
14. It is a settled principle of law that jurisdiction cannot be assumed or denied based on conjecture but must flow from express statutory authority. Section 127(1)(b) of the Insurance Ordinance, 2000 imposes a specific bar on the jurisdiction of the Insurance Ombudsman only where the subject matter of the complaint is sub judice before a court of competent jurisdiction, tribunal, or board.
The Small Dispute Resolution Committee (SDRC), operating under the auspices of the SECP, is not a judicial forum, tribunal, or board vested with adjudicatory powers. Its mandate is limited to facilitating amicable settlements and offering non-binding recommendations. Its proceedings do not partake the character of a trial nor result in enforceable judgments unless voluntarily acted upon by the parties.
15. The Federal Insurance Ombudsman, therefore, erred in treating the SDRC's recommendation as a binding adjudication and in declining to entertain the complaint due to a misapplication of Section 127(1)(b). This misunderstanding of the law constitutes a jurisdictional defect, and the President of Pakistan, acting under Section 14 of the Act ibid, rightly exercised supervisory jurisdiction to correct the matter.
16. As stated above, Section 14 of the Act explicitly permits a party aggrieved by a "decision, order, findings or recommendations" of an Ombudsman to file a representation before the President. The term is broad and inclusive and is not confined to decisions on merits alone. Moreover, the overriding effect of the 2013 Act under Section 24 ensures that, to the extent of inconsistency, its provisions prevail over those of the Insurance Ordinance, 2000.
17. As regards the learned counsel for the petitioner's contention that the refund of insurance premiums is not legally permissible and only the surrender value may be returned under Section 90 of the Ordinance, it must be observed that this argument presumes the validity and continuity of the insurance contracts in question. However, where allegations of fraud/mis-selling are raised, such as in this case, the matter transcends mere contractual obligations and enters the realm of maladministration. In such cases, equitable relief may be granted under the jurisdiction of the Ombudsman and, on representation, by the President.
18. Given the above, this Court finds no legal infirmity in the impugned order dated 08.12.2023 passed by respondent No.1. The respondent No.1 acted well within the bounds of the law, and no case for this Court's interference has been made out. Consequently, the instant petition stands dismissed.