AMIR ALAM KHAN, J.- This regular second appeal is directed against the judgment and decree dated 20-7-1972 passed by the learned District Judge Lyallpur whereby the appeal of the appellant was dismissed and the judgment and decree dated 2-12-1971 passed by learned Civil Judge, Lyallpur was affirmed, resultantly, the suit of the respondent for the recovery of Rs. 5,000/- being the amount of insurance policy was decreed in his favour and against the appellant.
2. The relevant facts as can be gathered from the plaint in the suit filed by the respondent are to the effect that Muhammad Saleem, the son of the plaintiff/respondent purchased a life insurance policy for Rs. 5,000/- (non-medical scheme) and paid the first premium of Rs. 70/- for the said life insurance policy on 10-6-1996. According to the plaintiff/respondent it was assured by the agent of the appellant company that the risk as 1 to the life of the insured was covered from the day that 'the fest premium was paid. It -so happened t-hat the -insured died on 13-6-1966 with the result that the matter was reported to the appellant company and a claim was also lodged thereby demanding that the sum insured be paid to the plaintiff/respondent, who was also the nominee of the insured. The appellant company,/however, s continued to put Offenbach matter in spite of the fact that various letters were written in that behalf and ultimately denied their liability with the result that the respondent filed a suit for the recovery of Rs. 5,000/- i.e. The amount of insurance.
The suit was filed in forma pauperis and it would be relevant to mention here that the plaintiff/respondent was allowed to sue as a pauper. The appellant contested the suit and in the written statement filed in the case it was maintained that the insured was suffering from T.B. Which had reached the advance stage but this fact was concealed at the time of entering into contract of insurance and since the same was obtained fraudulently therefore, the appellant was not liable to pay the amount of insurance. The appellant specifically relied on doctor's certificate to support their plea that the insured was suffering from advance stage of T.B. The plaintiff/respondent, however, denied the averments of the written statement and reiterated that of the plaint by way of replication available on the record. The controversy between the parties was reduced to following issues:
(1) Whether Muhammad Saleem deceased got insurance policy by exercising misrepresentation and fraud? OPD.
(2) Whether Muhammad Saleem died of T.B.? If so, with what effect? OPD
(3) Is the plaintiff entitled to recover the suit amount as insurance claim from the defendant? OPP
(4) Relief.
3. It appears that the relevant documents pertaining to the insurance policy and incidental thereto such as receipt for payment of first premium etc. Were admitted by the appellant with the result that they were received in evidence as follows:
(i) Letter of acceptance dated 15-6-1966 (Ex.PL).
(ii) First premium receipt (Ex. P2).
(i.e) Letter dated 21-6-1966 (Ex. P3).
(iv) Letter dated 4-7-1966 (Ex. P4).
(v) Letter dated 8-7-1966 (Ex. P5).
(vi) Letter dated 15-11-1966 (Ex. P6). And
(vii) Letter dated 18-11-1966 (Ex. P7).
The respondent/plaintiff examined two witnesses while he himself appear as PW 3. The defendant/appellant examined only one witness i.e. Dr. Muhammad Kabiruddin while rest of the evidence of the defendant/appellant was closed under Order XVII Rule 3 as they failed to produce their witnesses despite many opportunities given in that behalf. The defendant/appellant produced only one document in their evidence i.e. Ex. Dl a certificate issued by DW.
1. The gist of the evidence produced by the respondent/plaintiff was to the effect that the insured was hale and hearty and was not at all a patient of T.B. It was stated by the witnesses produced that he used to run a canteen and that he purchased the policy of life insurance on the persuasion of the agent and that the said agent assured that his risk as to life would be covered from the day that the first premium is paid. The said evidence of the two witnesses has been further supported by the respondent/plaintiff who reiterated his stand taken in the plinth. As against this evidence the appellant examined Dr. Muhammad Kabiruddin who produced his certificate wherein it was certified that he had examined Muhammad Saleem son of Khurshid Muhammad and found that he was a case of Pulmonary Tuberculosis (advance). This certificate was received in evidence as Ex. Dl.
4. The two Courts below having appraised the evidence on the record particularly documentary evidence, did positively conclude that the risk as to the life of the insured was covered from the day when the first premium was paid and since it was not established on the record that the insured was suffering from any T.B. And that too of advance stage, therefore, the appellant was liable to pay the amount of insurance. Consequent upon the findings referred to above the suit of the respondent was decreed with costs.
5. To resolve the controversy between the parties it would be relevant to refer to only two documents on the record i.e. Medical certificate Ex. D1 and first premium receipt Ex. P2. All other documents produced in the case are incidental and would be referred wherever required. I say so because the learned counsel for the appellant vehement^ argued that since the very contract was procured by fraud and misrepresentation, therefore, the same was void and could not be held to be binding on the appellant. Learned counsel for the appellant while referring to the medical certificate Ex.D-1 on the record argued that the insured was suffering from advance stage T.B. And according to the statement of DW 1 he could die at any moment ( I . ^ * 1 |-'Vr* ). This argument of the learned counsel for the appellant is not supported by the record inasmuch as it has not been established as to whether it was the insured who was examined by the said doctor. The doctor had not brought the original record and was not in a position to tell if the insured was Railway employee. Even otherwise this certificate was issued on 10-11-1966 i.e. At a time when the insured had already died and the argument that the said certificate might have been procured is not without force particularly for, the reason that it has been admitted by the said doctor that the agent of the appellant visited him some time after the death of the insured when he issued the said certificate. This statement of the doctor can hardly be believed to hold that it was insured who was suffering from advance stage T.B. Or that he was remained by the said doctor, therefore, the two Courts below have rightly not relied on the testimony of the said doctor.
6. Coming to the question that the risk as to life was not covered from the day when the first premium was paid i.e. 10- 6-1966, it was argued by the learned counsel for the appellant that the letter of acceptance was issued on 15-6-1966 and the death of the insured having occurred before that, the said letter of acceptance could not be successfully relied by the respondent to maintain that the risk was covered from the date when the first premium Was paid. This argument of the learned counsel is belied by the first premium receipt issued by, the appellant wherein the date of risk is mentioned as 10-6- 1966. The endorsement made on the said receipt may be reproduced as under: "Received' the marginally noted amount being the first premium payable as per our letter of acceptance dated 15-6-1966. The Company's risk commences , from the date given below. The policy is in course of : preparation and will be sent to you in due course.
Date of collection: 10-6-1966 Date of risk: 10-6-1966 Date of issue: 21-6-1966."
Obviously, the receipt referred to above contains a recital that the risk as to the life of insured was covered on the from 10-6- 1966 and that being so, it could not at all be argued that risk was not covered by the company till the date of death of the insured. The only other argument raised by the learned counsel was to the effect that the assurance, if any, by the agent .Of the appellant that the risk as to the life of insured would commence from the date of payment of first premium is not recognised by law or for that matter even the Zonal Manager of the appellant company could not give a binding undertaking that the risk would be covered on and from 10-6- 1966. This argument of the learned counsel for the appellant is. Also not well based. A bare perusal of the first premium receipt would show that the same has been signed by Roshan Ali Bhim Jt, Managing Director, of the appellant company and is counter-signed by Manger/Superintend. Accountant of the said Company. In short this first premium receipt clinches the whole controversy between the parties.
The appellant having itself admitted through this receipt that the date of risk would be 10-6-1966, no room is left for the argument that the risk as to the life of the insured was not covered till the date of his death i.e. 13-6-1966. In the circumstances no exception can be taken to the judgments rendered by the two Courts below. The learned counsel for the appellant having failed to demonstrate that the judgments of the two Courts below suffer from any legal infirmity this second appeal is dismissed with costs.