1. ' This civil revision has been filed challenging the concurrent findings of the two Courts below. The facts briefly are that the respondent had got his motor-car bearing registration No,BN-135, a Toyota Corona of 1969 Model, insured comprehensively with the Applicants Insurance Co. On 27-5- 1976 under the Policy No,62400005 for a sum of Rs,40,000 only. The cover note No,003 was issued by the Insurance Co. On 27-5-1976, the signed copy of the cover note has been filed with this revision application as Annexure 'C' at page 63. According to the respondent/Insured the premium was also paid on the said date 27-5-1976 and the receipt therefor was also issued on that date. The receipt (copy) is also produced in the present revision application being No,0154 dated 27-5-1976 as Annexure 'D' at page 65. This receipt is in acknowledgement of the receipt of the amount of Rs,1,503 being the premium received on 27-5-1976 towards the Comprehensive Insurance of the said motor-car and also refers to the cover note No,003. There is further mention of Demand Draft No,703052/8 dated 27-5-1976 showing the mode of payment. However, with this revision application another photostat copy of the same receipt No,0154 has been submitted as Annexure 'E' at page 67 which shows the date of the demand draft to be 31-5-1976. Both these photostat copies of the receipts Annexures 'D' and 'E' are attested by the learned counsel for applicant. The said motor-car of the respondent was stolen on the night between 28th and 29th of May, 1976.
2. Such report was lodged with the police and consequently intimation was also sent to the applicant who sent the claim form to the respondent which was also returned duly filled in. However, on 1-2- 1977 the present applicants wrote a letter to the respondent ref tsing to settle his claim on the grounds that the Insurance policy was obtained by him through fraud and misrepresentation. The respondent thereafter filed the F.C. Suit No,71 of 1179 which was decreed by the learned Senior Civil Judge, Sukkur. An appeal being Civil Appeal No,60 of 1985 was filed by the present applicants which was dismissed by the learned 1st Additional District Judge, Sukkur. Being aggrieved the applicants have filed the present revision application after the lapse of more than 2-1/2 years.
3. ' I have heard Mr.Bhajandas Tajwani, the learned counsel for the applicants. He has submitted that the two Courts below have misread the evidence as according to him the payment of premium was made by the respondent on 31-5-1976 (after his car was stolen) and therefore, the liability of the applicants, if any, would be from 31-5-1976 and not from 27-5-1976 as held by the two Courts below. In support of his submission he has placed reliance on the second photostat copy of the receipt No,0154 (Annexure 'E') which shows the date of the demand draft to be 31-5-1976. He has also submitted the demand draft contained the date 27-5-1976 but its counterfoil is dated 31-5- 1976 and therefore, it is this date on which the payment of premium would be presumed to have been made. He has referred to section 3-C(4) of the Insurance Act, 1938 and has also placed reliance on the case of Trans Ocean Asia v. Alpha Insurance Co. Ltd.1981 CLC 1028 wherein a Division Bench of this Court has held: "It is admitted position that open cover No,6506-A dated 1st February, 1967 was issued without the premium being paid or even the usual Bank guarantee for such payment being furnished. It is well- established practice which in this country is requirement of law that payment of premium is made a condition precedent of liability under a contract of insurance. Reference has been made to paragraph 464 at page 255 of Halsbury's Laws of England (4th Edition) which reads as under:- "464. Payment as a condition precedent.-- In practice, payment of premium in advance is usually made a condition precedent to liability, not only in the case of the first premium but also of the renewal premium. The assured is then precluded from recovering for a loss which happens before the premium is paid unless the circumstances are such that insurers are estopped from denying that they have received payment, or have by their conduct waived the condition. There may, for example, be a waiver by agreement to give credit or by giving of an ante-dated receipt, but there is no waiver where an insurance agent accepts premiums in arrear unless he has authority from the insurers to do so."
4. ' Reference has also been made to paragraph 661, Chapter 5, section 7 of Mac Gillivray on Insurance Law which reads as under: "661. Held covered.-- In an English case a thirty days' cover note had been issued on a proposal for fire insurance, and before its expiration the company intimated to the proposer that a policy would be sent on receipt of the first premium, but that no insurance would be in force until the first premium was paid. The words 'held covered' were written on the margin of the letter of intimation, but it was held that they referred only to the cover note and that there is no completed insurance until the first premium was paid and that the duty to disclose continued up to that time."
5. ' The open cover note mentions as under:- "No insurer shall assume in Pakistan any risk in respect of any insurance business unless and until the premium is received or is guaranteed to be paid by such person in such manner and within such time as may be prescribed.
6. ' It is reproduction of subsection (4) of section 3-C of the Insurance Act, 1938 inserted by the Insurance (Amendment) Act, 1958 (XXVII of 1958). In view of the aforesaid clause in the open cover note since there was no payment of premium and no guarantee of such payment there was no contract as the precondition remained unfulfilled. Any agreement violative of the provisions of aforesaid section 3-C of the Insurance Act, would not be enforceable."
7. ' I have perused the documents referred to by the learned counsel and the case-law cited by him.
8. It will be observed that in the above case before the learned Division Bench it was the admitted position that the premium had not been paid but in the present case the position is that premium had been paid but the dispute is as to on what date it was paid or guaranteed. The two Photostat copies of the receipts placed on record as Annexures D and E have been examined by me minutely. Both the documents are supposed to be the photo copy of the receipt being No,0154 and show the date of issue to be 27-5-1976 acknowledging the payment of premium through bank draft. The copy Annexure D shows the signature of the executant of the receipt to have been made on the revenue stamp and over the same the seal of the applicant company is affixed while in the other copy Annexure 'E' there is neither the revenue stamp nor the ' seal of the company, this receipt shows the date of demand draft to be 31-5-1976. Even the signature on Annexue E seems to be copied down and differs in minute details, specially the words 'm' and 'o' and the line below the signature. However, this is a finding of fact and the two Courts below have held that the payment of premium was made on 27-5-1976. It will be advantageous to refer to the finding of the learned lower appellate Court on this point wherein it has been held that "there is no ambiguity in the said receipt nor there is any interpolation. The counterfoil of the demand draft remains with the applicants and they can make any change therein". From the above discussion I am of the view that the findings of the two Courts below on the point of payment of premium having been made on 27-5-1976 is based on sound reasoning and there is no misreading of evidence. The principles of law laid down in the above case cited by the learned counsel would not be applicable to the present case. In the present case the cover note is issued on 27-5-1976 on payment of premium through the bank draft of the same date and therefore liability of the Insurer commences from the said date and any loss suffered by the Insured during currency of the cover note issued on payment of premium is to be compensated by the Insurer irrespective of the fact that the insurance policy is issued subsequently. Reliance is placed on the case reported in (1960) 1 Llyd's Report 420 and the judgment given by this Court on 20-12-1989 in the case of A.Razzak Bawany v. Standard Insurance Co. (Suit No,518/74).
9. ' The second point urged by the learned counsel for applicant is that the policy was obtained by the respondent through fraud. Suffice it to say that in case of Insurance the Insured has only to show that he has suffered the loss during the period he was insured and for such reasons for which he was insured. The burden to prove the fraud shifts heavily on the party alleging such fraud as held in the cases reported in PLD 1969 SC 167 and (1962) 1 AER 525. In the present case there is no such evidence brought on record by the present applicants.
10. ' Lastly it may be observed that the appeal of the present applicant (CA. 60 of 1985) was dismissed on 30-4-1987 and the certified copies of the judgment and decree were received by the applicant on 21-6-1987 while the present revision application is presented in this Court on 3-12-1989, after a period of about 2-1/2 years and suffers from laches and is also liable to be dismissed on this account.
11. ' From the above discussion I find no merits in the present revision application which is dismissed in limine.
12. ' Above are the reasons for the short order announced in Court on 24-1-1990.