RANA BHAGWAN DAS, J.---The petitioner, widow of deceased Muhammad Miskeen seeks a declaration that she being nominee and beneficiary of Life Insurance Policy No.502091138-9 is entitled to the assured amount of Rs.1,00,000 on account of the policy with interest at 14 % alongwith other benefits and a direction for payment thereof by the respondent-Corporation.
2. The deceased obtained a Life Insurance Policy from the respondent Corporation on or about 6- 8-1989 w.e.f. 30-6-1989 in the sum of Rs.1,00,000. He paid first premium at Rs.5,708 to the respondent-Corporation on or about 29-6-1989 by way of a cheque but in the Proposal Form in connection with the state of his health he did not disclose any ailment at the time of submission of his proposal. He was, however, admitted to Jinnah Post Graduate Medical Centre, Karachi on 14-9- 1989 where he expired on 28-9-1989 on account of Cardio respiratory failure and leukaemia as certified by the Medical Officer as well as Professor S.H. Manzoor Zaidi of Radiotherapy Department, J.P.M.C. Karachi. As the petitioner was nominated to receive the assured sum in the event of his death she approached the respondent-Corporation with her claim but the respondent did not accede to it hence this petition.
3. In the counter-affidavit respondent-Corporation resisted the prayer and took the stand that the petitioner's claim was repudiated and rejected on account of suppression of true facts and non- disclosure about the serious and fatal disease from which the deceased was suffering at the time of obtaining the policy. Referring to the extract from the Register of Deaths and Births Annexure A/5 to the petition respondent stated that the deceased died on account of cancer which was further supported by the evidence collected from J.P.M.C., Karachi. Relying upon the medical certificate Annexure R/ I to the counter-affidavit signed by Prof. S.H. Manzoor Zaidi of J.P.M.C., Karachi, respondents pleaded that this certificate tends to show that the deceased was suffering from this fatal disease not only at the time of obtaining policy but even five months prior to that. According to the respondent non-disclosure of actual disease and suppression of true facts about his health disentitled the deceased as well as his nominee to the benefit of the insurance policy which is rendered null and void under the conditions of declaration on page 2 of the proposal form submitted by the deceased.
4. We have heard learned counsel for the parties at quite some length and carefully gone through the material placed on record.
5. It is not disputed that the deceased was insured with the respondent Corporation in respect of his life and he had been issued an insurance policy. It is also not controverted that he did not disclose the ailment from which he was suffering on the date of submitting his proposal form i.e. 21-6-1989 as well as the date of issuance of policy i.e. 6-8-1989. No doubt the deceased paid the first premium which is a prerequisite to the issuance of a policy document. It is evident from the pleadings as well as the documents on record that he deliberately suppressed the true facts involving ill-state of his health culminating in his death after about three months of the submission of proposal form and after about six weeks of the issuance of policy consequent upon the payment of first premium. It may not be out of context to observe that the claim of the petitioner was repudiated and rejected vide respondent's letter dated 30-1-1991 whereas the present petition was filed on 30-4-1992 without actually accounting for the delay of 15 months. In order to overcome the laches on the part of the petitioner, learned counsel has moved M.A No.147/1992 seeking the condonation of laches in filing the petition.
6. In support of his case, learned counsel for the petitioner cited following cases:--
(1) State Life Insurance Corporation v. Mst. Aziz Anjum Haider (PLD 1989 SC 244).
(2) Messrs Pakistan Tobacco Company Ltd. v. State Life Insurance Corporation (1981 PLC 244).
(3) Mrs. Shreen G. Kandawala and others v. Federation of Pakistan (PLD 1989 Kar. 471) and
(4) M.H. Abidi v. The State Life Insurance Corporation (1990 M LD 563).
Conversely learned counsel for the respondent-Corporation referred to the cases of State Life Insurance Corporation v. Mst. Sarwat Kazmi (1979 SCM R 295) and Norwich Union Life Insurance Society v. Mst Zainab Bibi (1981 CLC 1722).
7. In the case at Serial No.1, Supreme Court dealing with a Civil Petition for Leave to Appeal from an order passed by the Lahore High Court in a Civil Revision observed that the state of health of insured, with whatever ailment he was suffering, could be presumed to be also known to the insurers and if they accepted him for life insurance they in their own business thought it a risk worth taking on the rate of premium and under the other relevant conditions specified in the contract. In the facts of the case it was held that with all these assumptions insurers could not repudiate and avoid the liability. It may be observed that the aforesaid case arose out of an insurance claim in connection with the life insurance policy obtained by Dr. Haider A.I Chowdhary a prominent Specialist practising at Lahore in which the High Court recorded the concession note of the learned counsel appearing for the Insurance Corporation as under:---- "When questioned learned counsel for the petitioner conceded that the petitioner- Company would have insured Dr. Haider A.I Chowdhary even if he had disclosed that he was suffering or had suffered from high blood pressure."
8. It was in this context that the High Court held that the Insurance Corporation was in full knowledge of the state of health of the insured and if they accepted ho for life insurance in their own business they thought it a risk worth taking on the rate of premium and under the other relevant conditions. In the present case, there is nothing on record to indicate that the respondent Corporation was aware of the ailment of the deceased who though examined by an authorised Medical Officer of the Corporation at Hyderabad possibly could not detect this serious and fatal disease from which the deceased was suffering and in good faith believed the statements made by the deceased on page 3 of the proposal form Annexure R/1 to the counter-affidavit.
9. In Pakistan Tobacco Company Limited a Division Bench of this Court held that functions of State Life Insurance Corporation, as prescribed by Legislature, to carry on life insurance business and to exercise its powers to secure that such business is developed to best advantage of community do not pertain to contractual rights and can be enforced through writ jurisdiction.
10. In the case at Serial No. 3 which is a case under Economic Reforms Order, it was held that Constitutional petition under Article 199 cannot be dismissed on the ground of laches, without examining dictates of justice in claim of each party in addition to examination of law and jurisdictional points involved in the case as held by the Supreme Court in the case of Pakistan Post Office v. Settlement Commissioner and others reported in 1987 SCM R 1119.
There can be hardly any cavil with the proposition of law laid down in the aforesaid case and we are not unmindful of the facts forming the backgrounds of this petition and the points in controversy between the parties.
11. Learned counsel also relied on another observation in this judgment to the effect that the technical objection which may non-suit 'a petitioner is to be raised by a respondent at the earliest opportunity so that the petitioner may .Rectify the technical defect either by amending the petition or if necessary by filing some other competent proceedings after withdrawing the petition. The Bench consisting of Ajmal Mian and Abdul Rahim Kazi, JJ. Further observed that the Court will be reluctant to entertain a technical objection to the maintainability of the petition at a late stage. We may point out here that the respondents have not raised any technical objection to the maintainability of the petition and resistance is based on actual facts of the case in which the deceased deliberately suppressed true facts at the time of obtaining Life Insurance Policy. It may further be made clear that the counter-affidavit was filed by the respondents at the stage of pre- admission notice and without any delay which touches the root of the petition rather than a technical objection. At any rate neither we are dismissing the petition on technical grounds nor can it be said that the objection was not raised at the earliest stage of the proceedings. The observation is thus of no avail to the petitioner.
12. In M.H. Abidi's case another Division Bench of this Court observed that contractual rights/obligations emanating from statute are justiciable in writ jurisdiction. While dealing with the case arising out of a claim of Group Insurance the Bench observed as under:-- "Likewise, the element of a contract being prior or subsequent to July, 1973 when direct contracts with Government or autonomous bodies were precluded would have no bearing, for then the relevant circumstances would only be whether in actuality the contract was concluded directly and not through agency. But these all are questions of fact and controversial at that. Neither of the parties has produced any of the Group Insurance Contracts, not even the one in dispute here. We can neither enter into disputed questions of fact involving minute details nor can we decide facts of which no foundation is laid. These are the limitations of Constitutional jurisdiction."
13. We have the least difference of opinion with the view expressed in earlier D.B. Judgment of this Court and following the principle of law laid down therein we are of the view that contractual rights/obligations between the parties arising out of Insurance Policy can be adjudicated in the exercise of writ jurisdiction with a reservation however that in case the facts pleaded in a petition are in controversy and require factual investigation this Court will not enter into such exercise while sitting in writ jurisdiction.
14. In Mst. Sarwat Kazmi's case reported in 1979 SCM R 295 Hon'ble Supreme Court quoted a passage from Houseman's Law of Life Assurance, 8th Edition, page 35 as under: "An important exception to the general rule applies however to all contracts of insurance. Here the party seeking to cover the risk has information as to the nature of the risk with which the insurer is not and cannot be acquainted unless it is disclosed. The law will not allow the proposer, by non- disclosure of material information, to lead the insurer to make a bargain which the insurer would not entertain in the light of fuller knowledge of the risk. Each contracting party must, therefore, observe the utmost good faith. There must on both sides be what is known as uberrima fides."
Dismissing the petition for leave to appeal Supreme Court took the view that deliberate concealment of information would in a given case be a ground for avoiding a contract.
15. In the second case cited on behalf of the respondents Ajmal Mian, J. (as his Lordship then was) expressed the following view:-- "In this view of the matter the appellants were entitled to obtain good health declaration as a condition precedent to the reviving of the two lapsed insurance policies. Since the above two insurance policies were revived inter alia on the basis of the health declarations given by the deceased insured, which proved to be false according to the finding of the learned Civil Judge quoted hereinabove, in my view the appellants were entitled to repudiate the two insurance policies on the above ground. "
His lordship further observed that the contracts of insurance including that of life are of 'uberrima fides' i.e. Of the utmost good faith. The special facts upon which the risk is to be estimated by an insurance company are normally within the knowledge of the insured only. He is required to disclose all information facts, which may persuade or dissuade an insurance company from accepting or not accepting the risk involved in the contract of insurance. Non--disclosure or suppression of such information/facts will constitute fraud rendering the insurance policy as void or entitling the insurance company to repudiate its liability. In a life insurance contract, the state of the insured health is a very material fact. No insurance company will enter into a contract of life insurance if it is told that the proposed insured is suffering from a serious ailment.
16. Similar view was expressed in Burjor Ardeshir Industries v. Employers' Liability Assurance Corporation (PLD 1970 Karachi 642) and State Life Insurance Corporation v. Mamoor Khan (1993 CLC 790) (Peshawar).
17. Judged in the light of aforesaid case-law on the subject, the contract of insurance between the parties and the fact that the deceased did not disclose his ailment at the time of obtaining the policy law and equity disentitles him as well as his nominee to the benefits of the policy. The petitioner, therefore, is not entitled to the discretionary relief in the exercise of writ jurisdiction.
Needless to observe that since we are dismissing the petition on merits, we do not find called upon to deal with the aspect of laches on the part of the petitioner. The petition is accordingly dismissed alongwith two C.M.L.As.
A.A./S-50/K Petition d