PLJ 2010
[Dera Ismail Khan, Bench]
Present:
Attaullah Khan, J.
CHAIRMAN,
STATE LIFE INSURANCE CORPORATION OF
versus
UMAR
ZAD SHAH BUKHARI, ADVOCATE--Respondent
C.R.
No. 304 of 2004, decided on 26.4.2010.
Insurance
Ordinance, 2000--
----S.
122(3)--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Suit for
specific performance of contract in respect of insurance--Policy alongwith business partner--Civil Court has no
jurisdiction--Tribunal has got exclusive jurisdiction--Validity--Under S.
122(3) of Insurance Ordinance, tribunal is vested with exclusive jurisdiction
to be constituted by Federal Government--Tribunal was not constituted by Federal
Government--In absence of tribunal, S. 122(3) of Insurance Ordinance cannot be
pressed into service--In such eventualities, Civil Court has jurisdiction to
entertain and adjudicate upon the matter in dispute--Revision was dismissed. [P. 145] A
Insurance
Ordinance, 2000--
----S.
72--Non-impleadment of legal heirs of
deceased--Reference might be made wherein the details regarding nominee are
given--Policy was matured for payment--Nominated person in the policy shall be
paid in the events of his death--Partnership deal--Validity--During the course
of joint business, they secured a joint insurance policy for Rs. 4,00,000/- from the petitioners and same was sanctioned
after completion of required codal formalities and a
sum of specific amount was deposited and first premium receipt was also
issued--After the sudden death of the partner the insurance claim was submitted
but after its refusal, the matter was referred to Mohtasib's
Aala Office who accepted it. [P. 145] B
Civil
Procedure Code, 1908 (V of 1908)--
----S.
115--Insurance Ordinance, 2000, Ss. 122 & 123--Jurisdiction to entertain
and decide the suit--Suit for specific performance of contract alongwith business partner--Divergent pleadings of the
parties--Inquiry by Doctor--Insurance claim was not paid--During inquiry it
transpired that deceased was sick person--Validity--State Life conduct medical
examination for policy holders through its own Doctor--Holding of enquiry
regarding health of deceased was complete having been mitiated
by the petitioner before the issuance of required policy--Subsequent enquiry
was not believable because he was employee of petitioner and was interested--No
independent evidence in support of the claim that deceased was seriously
ill--Deceased was declared medically fit by Doctor of State Life--No other
ground was proved to justify interference in the impugned concurrent findings
of the Courts below--Revision was dismissed. [Pp.
145 & 146] C & D
2000
SCMR 146, PLD 1994 SC 291 & PLD 2002 SC 293, rel.
Mr.
Muhammad Kamran Niazi,
Advocate for Petitioner.
Respondent
present in person.
Date
of hearing: 26.4.2010.
Judgment
Chairman,
State Life Insurance Corporation of Pakistan and seven others under his
subordination, petitioners herein, have filed the instant revision petition
under Section 115 CPC against the judgment and decree dated 7/7/2004 passed by
the learned Additional District Judge-I Bannu,
whereby their appeal against the judgment and decree dated 11/7/2003 passed by
the Civil Judge-III Bannu was dismissed.
Facts
of the case are that Umer Zad
Shah plaintiff filed a suit for specific performance
of contract dated
3. I have perused the written arguments filed by
the parties.
4. The contentions raised by the petitioners are
that the Civil Court has no jurisdiction to entertain and decide the suit
because under Sections 122 and 123 of the Insurance Ordinance 2000, only the
Tribunal has got the exclusive jurisdiction; that the legal heirs of the
deceased partners Nezam Khan have not been impleaded and that the evidence of the Claim Manager, Dr.Muhammad Ishaq (DW-1) has not
been appreciated correctly.
5. On the other hand, the written arguments of
the plaintiff/respondent discloses that there was no need of impleadment of legal
heirs of the
deceased Nezam Khan,
because the respondent
is nominee of the deceased and as the Life Policy was joint one,
therefore, the respondent could claim it. Regarding the point of jurisdiction,
the stand of the respondent is that at the relevant time, Insurance Tribunal
was not constituted and that is why the suit was adjudicated upon by the civil
Courts.
6. As far as the jurisdiction point is
concerned, no doubt under sub-section (3) of Section 122 of the Insurance
Ordinance 2000, the Tribunal is vested with exclusive jurisdiction to be
constituted by the Federal Government under Section 121 thereof. The record
reveals that at the relevant time, such Tribunal was not constituted by the
Federal Government. In the absence of such Tribunal, sub-section (3) of Section
122 of the Ordinance ibid cannot be pressed into service. In such
eventualities, the
7. With regard to the non-impleadment
of legal heirs of the deceased Nezam Khan, reference
may be made to Section 72 of the Insurance Ordinance 2000, wherein the details
regarding nominee are given. According to it, before the Policy is matured for
payment, the person/persons who are nominated in the Policy shall be paid in
the events of his death. In The First Policy Schedule, the respondent is
mentioned as Nominee which is Ex.PW.2/1. The record further reveals that there
was partnership deal between Nezam Khan and the
respondent and during the course of joint business, they secured a joint
Insurance Policy for rupees four lacs from the
petitioners and the same was sanctioned on 30/7/1998 after completion of
required codal formalities and a sum of Rs. 29,068 was deposited and first Premium receipt was also
issued. After the sudden death of Nezam Khan partner, the Insurance claim was submitted but after its
refusal, the matter was referred to Mohtasib's Aala Office who accepted it on
8. As far as the subsequent inquiry by Doctor
Muhammad Ishaq is concerned, the petitioners impugned
the said judgment and did not pay the Insurance claim of the respondent. The
main reason prevailed with them was that Nezam Khan
at the time of obtaining policy was seriously ill and this fact was concealed.
They produced Dr. Muhammad Ishaq as DW-I who had
conducted inquiry after receipt of death claim. According to him, during
inquiry it transpired that the deceased Nezam Khan
was a sick person but his cross-examination is not in line with the case of the
petitioners. He has made so many admissions, for example, he admitted that the
State Life conduct medical examination for Policy Holders through its own
Doctor. This means that the holding of enquiry regarding health of Nezam Khan was complete having been initiated by the
petitioners before the issuance of the required policy.
9. As far as the subsequent inquiry by Doctor Ishaq is concerned, it is not believable because he was
employee of the petitioner and was interested. There is no independent evidence
in support of the claim that Nezam was seriously ill.
This Nezam was declared medically fit by the Doctor
of State Life and, thereafter, the policy was issued. No other ground has been
proved to justify interference in the impugned concurrent findings of the
Courts below.
10. The concurrent findings on facts recorded by
the learned two Courts below cannot be set at naught unless it is proved that
the same are either perverse, fanciful or erroneous in view of the dicta handed
down in the cases of Abdur Rahim
and another Vs. Mst. Janatay
Bibi and others (2000 SCMR 146), Haji
Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994
Supreme Court 291) and Muhammad Rashid Ahmad vs. Muhammad Siddique
(PLD 2002 Supreme Court 293).
11. Consequently I find no substance in this
revision petition which is accordingly dismissed with no order as to costs.
(R.A.) Petition
dismissed.