1. Plaintiff has filed instant suit for the recovery of insurance claim in respect of Mitsubishi Pajero Jeep Model 1993, Registration No.BC-3275. Said vehicle was comprehensively insured under the Insurance Policy No.KR-A-063/1193 in the sum of Rs.8,00,000 from me defendant insurance company, covering risk mentioned therein, for a period from 24-11-1993 to 23-11-1994 in accordance with the terms as set insurance policy Exh.P.1/3.
2. Briefly stating facts are that on 24-8-1994 subject vehicle was snatched on gunpoint from the plaintiff. F.I.R. No.494 of 1994 of the incident was lodged with the Police Station Gulshan-e-Iqbal on the same date.
3. Plaintiff lodged the claim with the defendant insurance company. Survey was carried out and all codel formalities as required by the defendant before settling the claim were carried out but, the defendant through their letter, dated 1-10-1995, repudiated the claim of the plaintiff, consequently instant suit was filed.
4. Record shows that the defendant was served. However, the written statement was not filed within the time prescribed. Defendant was debarred from filing written statement on 24-4-1996. Even the application filed by the defendant under Order 9, Rule 13, C.P.C. was dismissed on merits. Defendant was ordered to be proceeded ex parte.
5. Case came up for final disposal plaintiff evidence was recorded on 12-9-2000, such evidence had gone unrebutted as the counsel for the defendant again chose not to appear and cross-examine the plaintiff, though chance was given.
6. It is contended by Mr. Akhtar Ali Mehmood, learned counsel for the plaintiff that plaintiff had lodged his claim within lime, but the defendant without any just cause, one year after expiry of the Insurance Policy, rejected the claim. Insurance policy expired on 23-11-1994, incident which formed the basis of claim took place on 24-8-1994. The defendant through letter, dated 1-10-1995 (Exh.P.1/8) unjustly repudiated the claim. It was further contended that the insurance policy provided for the indemnity against loss in terms of section 1 of the said policy, whereunder, the defendant insurer undertook to indemnify the insured against loss or damages to the insured vehicle on happening of the eventuality mentioned therein. It is also pointed out that the said incident does not find mention in the General Exceptional Clause, of the Insurance Policy. Under the circumstances the claim of the plaintiff had gone unrebutted and he is entitled for the same.
7. The plaintiff has claimed judgment and decree in the sum of Rs.8,00,000 being value of the subject vehicle and has also claimed interest at the rate of 5% above prevailing bank rate with monthly rest w.e.f. 29-10-1994, till realization.
8. It was further contended by the learned counsel that the claim of interest is made pursuant to subsection (2) to section 47-B of the Insurance Act, 1938 (hereinafter referred as "Act").
9. Mr. S.M. Shuja learned counsel for the defendant strenuously contended firstly that, the claim of the plaintiff is barred by law. In the first instance the plaintiff ought to have taken the dispute to the "Claims Settlement Board" as constituted under subsection (2) to section 47-C of the Insurance Act, 1938. Secondly the policy does not cover the risk as notified in letter, dated 10-8-1995. I have heard both the learned counsel and perused the record.
10. I deem appropriate to deal with the legal objections as urged by the learned counsel for the defendant. In order to appreciate his 1st objection section 47-C(1) of the Act is reproduced as under: "Where any dispute arises under a policy insuring a motor vehicle or covering any liability of its owner arising out of the use of the vehicle, any party to the dispute may make an application for adjudication to the 'Claims Settlement Board' constituted under subsection (2)."
11. Bare perusal of the above-referred provision suggests that any dispute arising under insurance policy in respect of a motor vehicle or encompassing any liability of its owner arising out of use of insured vehicle, any party may take up such dispute before the "Settlement Board" constituted under subsection (2) to section 47-C of the Act of 1938. Such provision cannot be read as a barring clause. Jurisdiction of the Civil Court in terms of section 9 of Civil Procedure Code, 1908 extends to all claims of civil nature unless expressly or impliedly barred. Civil Courts jealousy guard their jurisdiction. Above-referred provision only signifies the existence of alternate remedy for resolution of dispute over motor insurance claim. Where there are more than one forum available for the resolution of a dispute, then generally choice of forum rest with the plaintiff.
12. Unlike Constitutional jurisdiction mere existence of alternate remedy will not divest Civil Court of its inherent jurisdiction to adjudicate dispute of civil nature unless otherwise barred. Even otherwise, no prejudice is shown to have been caused to the defendant, who was extended full and fair opportunity to defend, which was not availed.
13. Only provision I could lay hand under the Act, that apparently creates a conditional bar to invoke jurisdiction of Civil Court is section 107 of the Act, which too, stipulates previous sanction of Advocate-General for invoking jurisdiction of Civil Court against persons mentioned therein, who offers or induces directly or indirectly to take out, continue or renew a policy, any rebate in his commission or premium in terms of section 41(1) of the Act. Admittedly claim in suit is not hit by this provision. First objection, therefore, is not sustainable and is accordingly rejected.
14. Now adverting to second limb of the arguments of learned counsel for the defendant that, subject claim is not covered under the policy. As stated above comprehensive insurance coverage was provided under section 1 of the policy, which runs as follows:-- "Section 1. Loss or damage.--- The company will indemnify the insured against loss of or damage to the motor car and/or its accessories whilst thereon-- (a)by accidental external means; (b)by fire external explosion, self-ignition or lightening or frost or burglary or house-breaking or theft; (c)by malicious act; (d)whilst in transity by road, rail, inland, waterway, lift or elevator.
15. Even the General Exception Clause does not find mention of the incident forming basis of plaintiff's claim. Very fact that, the defendant while rufting the claim of the plaintiff for the first time came up with following justification through letter, dated 1-10-1995: "We have to state that our letter of 9-4-1995 was in the light of conditions etc. contained in the current Motor Tariff wherein loss/damage due to act of terrorism, is excluded under head General Exceptions' . Due to oversight while printing the Policy Forms, concerned clause remained unchanged causing inconvenience to you, for which we regret very much. (Emphases added).
16. Above repudiation shows that the incident/theft depriving the plaintiff of his vehicle was not excluded under the General Exception Clause.
17. By issuance of insurance policy against agreed premium, the insurer assumes the responsibility to indemnify the insured against possible loss, damage or injury that may be sustained or occasion on account of any contingency, hazard, danger or on happening of any act/event, commonly known as "Risk" covered that may occur or take place at a future date, but during the currency of the policy. Once the insured proves that the loss, damages or injury on account of "Risk" covered has been sustained. Then the heavy burden lays upon the insurer to dislodge and repudiate such claim by establishing any of the factors namely:-- (i)Risk was not covered.
18. (ii)Risk was excluded by exception clause.
19. (iii)Policy was obtained by (a) suppression of material fact, (b) misrepresentation, (c) fraud by the insured.
20. (iv)Breach of material term/condition on which policy was issued.
21. In the instant case plaintiff's claim was repudiated by the defendant through letter, dated 1-10-1995 on the ground that the risk or loss/damage due to act of terrorism "due to oversight while printing the policy form was not included in the exception clause.
22. Subject policy was issued on 24-11-1993, loss occasioned on account of theft on 24:8-1994, during the subsistence of the policy. Repudiation was made after more than one year from the date of reporting loss and expiry of policy. The reason assigned for the repudiation was not attributable to the insured admittedly loss was sustained by the plaintiff on account of "theft" as specified in sub- clause (b) to section 1 reproduced above. Burglary, house-breaking and theft are all acts of terrorism, and such "risk" are covered under the policy. Defendant cannot be allowed to wriggle out of its contractual .obligation to indemnify the insured by assigning restricted or any of the several shades of meaning to a particular risk agreed to be covered. A word used in a contract or specifically speaking in case of a insurance contract a particular "risk" covered are understood to mean and include with all its incidents, concomitant, and shades of meaning which may be attributable to such word or "risk" in common parlance, unless a particular or restricted meaning is agreed to be assigned by the parties to a contract. After a contract is executed then a party cannot be unilaterally allowed to apply or assign any restricted or particular shade of meaning to a "word" or the "risk" covered to avoid or repudiate the contract and avoid its obligation and/or liability arising thereunder.
23. Once an insurance contract is executed then on happening of any act event or contingency compassing "risk" covered the liability of the insurer to indemnify the loss crystallizes. An insurer cannot be allowed to wriggle out or repudiate its liability on the ground not available under law, moreso alleging that due to oversight while printing the "Policy Form" particular nature of risk was not included in the General Exception Clause such excuse that too after expiry of the policy can hardly justify the stance taken by the defendant. Even if such be the case, then it is the insurer to suffer and not the insured. Under circumstances the second objection is also rejected. The repudiation of the claim was without any legal justification.
24. Adverting to merit of the claim, defendant failed to lead any evidence to- rebut the claim. The policy is admitted.
25. There is no dispute that the policy was taken out in the sum of Rs.8,00,000. The defendants were obliged to indemnify the plaintiff for any eventual losses on account of happening of the contingence or "risk covered" therein. That the plaintiff was deprived of his vehicle on gunpoint.
26. Plaintiff successfully established the claim. Questions as to whether plaintiff is also entitled to interest at the rate of 5% higher than the prevailing bank rate, is concerned. Answer to this question is provided by section 47-B of the Act which stipulated that whenever claim under the policy issued by the insurer matures and becomes due and the beneficiary thereto has complied with the coddle formalities then within 90 days from the date when the claim becomes due and payable or from the date when the formalities are complied with, the insurer is obliged to settle such claims, otherwise insurer is saddled to bear to pay interest at the rate of 5% higher than the prevailing bank rate on such claim. Section 47-B of the Act has been grafted by the Legislature apparently with an object to ensure that claims are settled and paid promptly and without delay. In event of unjustified delay the insured may be adequately compensated and at the same time is the deterrent for the insurer not to deprive insured of his due and legitimate claim without any legitimate excuse.
27. Foundation of all commercial contracts including insurance contract is based on trust, if the foundation of contract is allowed to be defeated, then no more sanctity could be attached to any contract. Insurance companies play vital role in commercial world they are expected to be even more beneficial not only in their outlook but must practise beneficial and generously attitude while settling claims of insured rather than finding lame excuses like the one in instant case to refute and dislodge the claim at any cost, such tendency which is rampant, need to be changed.
28. In the instant case as has been held above the repudiation of the claim of the defendant was unfounded, therefore, I have no option but to decree the suit as prayed with cost.