--Ss. 118 & 124--Specific Relief Act, (I of 1877), S. 42--Suit for declaration--Concurrent findings--Obtaining of insurance on nonmedical basis--Insurance of deceased husband of respondent-

 PLJ 2022 Lahore 396 (DB)

Insurance Ordinance, 2000 (XXXIX of 2000)--

----Ss. 118 & 124--Specific Relief Act, (I of 1877), S. 42--Suit for declaration--Concurrent findings--Obtaining of insurance on nonmedical basis--Insurance of deceased husband of respondent--Respondent was nominee of her husband--Instalments of insurance policy were paid regularly--Death of respondent's husband--Filing of death claim--Refusal of claim--Submission of death certificate--Prescription was never confronted by appellant during cross-examination--Inquiry report--Question of whether deceased committed any fraud or misrepresentation while purchasing  policy--Appellant was failed to prove mis-declaration--Appellant was required to prove fraud or misrepresentation on part of Deceased--Prescription along with inquiry report relied upon by appellant was its best evidence and no reasons have been specified as to non-production of Inquiry Officer or author of prescription--No effort was made on part of appellant to get post mortem of Deceased and in absence of same, there is no reason to discard death certificate which is public document and to which presumption of truth is attached--Appellant failed to prove mis-declaration--Death occurred within short period of time after purchase of policy is not per se a suspicious circumstance to deny relief to beneficiary--Claim of respondent has been denied and lingered by appellant without any just cause, as a result of which nominee of Deceased, who is of approximately six years of age, has suffered a lot, we are inclined to award cost of Rs. 200,000/-to be additionally paid to respondent side--Appeal dismissed.     [Pp. 400, 402 & 403] A, C, E, F, G & H

PLD 1973 SC 160, 2012 SCMR 1106, 1999 CLC 1166 Lahore,
2012 CLC 246 Lahore 1997 (1) MPLJ 203 ref.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 78--Producing of document--Once a document is produced as a piece of evidence, it has to undergo crucible of objective scrutiny in terms of Article 78 of Qanoon-e-Shahadat Order, 1984.            [P. 400] B

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 129(g)--Adverse presumption--An adverse presumption is to be drawn against party which withholds best evidence.                                                                          [P. 401] D

Barrister Malik Sohail Ashiq Shujra, Advocate for Appellant.

Sardar Muhammad Rashid Khan Baloch, Advocate for Respondent.

Date of hearing: 27.9.2021.

 PLJ 2022 Lahore 396 (DB)
[Multan Bench Multan]
Present: Ch. Muhammad Masood Jahangir and Anwaar Hussain, JJ.
STATE LIFE INSURANCE CORPORATION--Appellant
versus
Mst. BIBI REEMA--Respondent
Insurance Appeal No. 178 of 2021, heard on 27.9.2021.

Judgment

Anwaar Hussain, J.--This appeal under Section 124 of the Insurance Ordinance, 2000 (“the Ordinance”) impugns judgment and decree of the Insurance Tribunal, Muzaffargarh dated 23.06.2021 whereby the suit of the respondent for recovery of insurance claim under Section 118 of the Ordinance was allowed in the sum of Rs. 300,000/-.

2. Succinctly, the respondent instituted a suit for declaration with the averments that her deceased husband, namely, Muhammad Ilyas s/o Abdul Razzaq (“the Deceased”), was insured by the appellant, vide Insurance Policy No. 607565139-0 wherein the respondent was appointed as guardian/nominee by her husband; the Deceased paid monthly instalments of insurance policy regularly and after payment of fourth instalment, he died; she filed death claim with the appellant on account of insurance policy of the Deceased, which was refused by the appellant and the respondent was constrained to institute the suit.

3. The appellant controverted the suit by filing written statement while raising legal as well as factual grounds and out of divergent pleadings of the parties, following issues were framed:

1.       Whether the deceased Muhammad Ilyas purchased a Policy No. 607565139-0 for Rs. 3,00,000/-by nominating the plaintiff/guardian, hence she is entitled to get the decree as prayed for? OPP

2.       Whether the suit of the plaintiff/petitioner is not maintainable in view of preliminary Objections No. 1 & 2? OPD

3.       Relief.”

The parties led their respective evidence which was duly recorded by learned Tribunal and after hearing both sides, the suit of the respondent was decreed as prayed for, vide impugned judgment and decree.

4. Learned Counsel for the appellant argues that the policy was on non-medical basis and purchased initially on 27.10.2016; however, the Deceased did not pay the annual premium and same was cancelled and was later revived on 07.06.2018 where after, the Deceased only paid three instalments and died on 10.11.2019, which was after one year, five months and three days of the revival of the policy and upon inquiry, sufficient evidence surfaced which indicates that the Deceased was an addicted person and a known patient of Asthma and was under treatment of mental disease at the time when the policy was revived and evidence thereof has been ignored by learned Tribunal below. Learned Counsel argues that learned Tribunal misread the evidence, incorrectly applied the provisions of law and based its findings on inadmissible evidence and without appreciating that the claim based on a life insurance policy was obtained by the Deceased through fraud, misrepresentation and by concealment of pre-insurance illness, qua his health condition that was sheer violation of doctrine of utmost good faith, which is basis of the insurance contract. Insurance contract, as such, was unenforceable and the appellant is entitled to avoid the same in terms of Section 79 of the Ordinance, which contemplates that an insurer can avoid a contract if the person insured has fraudulently concealed material information from the insurer.

5. Conversely, learned Counsel for the respondent refuting the above arguments submits that the assertions of misrepresentation and bad faith were not supported by any record and that the findings of learned Tribunal are based on correct analysis of the evidence on record.

6. Arguments heard and record perused.

7. We have heard learned Counsel for parties and examined the record. Admittedly the Deceased obtained insurance on non-medical basis while nominating his daughter Anum Bibi as beneficiary. Non-medical life insurance assumes no medical test while issuing a policy as opposed to a traditional policy where medical tests are required (e.g., blood test, blood pressure, etc.) and are executed while relying upon the declaration, which the insured makes at the time of making of the contract of insurance. In the present case, the Deceased also made such a declaration. Insurance contracts belong to that limited category of contracts, which are regarded as one falling under doctrine of uberrimae fidei, i.e., of the utmost good faith and hence, any concealment may lead to cancellation thereof. The Deceased gave the declaration which was relied upon and the contract was revived. Instalments were admittedly paid by the Deceased. The case of the appellant is that said declaration was wrong and fraudulent as evident from the prescription handed over to the Inquiry Officer of the appellant who investigated the claim before whom the relatives of the Deceased recorded their statements that the Deceased was an addict and the early death of the Deceased after revival of policy corroborates the stance of the appellant.

8. Perusal of record reveals that the respondent discharged the burden of proving the issuance of the policy and payment of the premium by the Deceased before he died and the controversy only relates to whether the Deceased committed any fraud or misrepresentation while purchasing the policy. Death certificate (Ex.P.1) shows that the Deceased suffered natural death, therefore, in order to obtain benefit of Section 79 of the Ordinance and to repudiate the contract, the appellant was required to prove fraud or misrepresentation on part of the Deceased. In support of his stance, learned Counsel for the appellant places reliance on the medical prescription dated 18.05.2017 issued under the hand of one Dr. Azhar Hussain, Specialist of mental disease and addiction treatment along with inquiry report of the appellant’s official and statement of relatives of the Deceased (Ex.D.6). Though it is stated by the respondent in her statement that said prescription by Dr. Azhar Hussain was handed over to the Inquiry Officer of the appellant by brother of the Deceased, however, the respondent was never confronted with the said prescription while being cross-examined. By now, it is well-coalesced and deeply-embedded position of law that production of documents and their admissibility as well as the proof and probative value carried by such documents are entirely two different things and should never be used or construed interchangeably. For proving veracity of a document, the person who authored it must depose before the Court in support of the contents, otherwise such document can merely be taken into consideration for the purpose of showing that such a document was issued but whether the contents of the same are correct or not, such facts cannot go into the evidence unless the author of the document deposes before the Court and faces cross-examination. Once a document is produced as a piece of evidence, it has to undergo the crucible of objective scrutiny in terms of Article 78 of the Qanun-e-Shahadat Order, 1984 (“QSO”). Mere production of a document neither lends any credence nor confers any probative value to it. Guidance in this regard may also be sought from Pakistan Engineering Consultants through Managing Partner v. Pakistan International Airlines Corporation through Managing Director and another (PLD 2006 Karachi 511) and Messrs United Ethanol Industries Limited v. Messrs JDW Sugar Mills Ltd. (2015 YLR 1429 Lahore). In the instant case, the prescription of the doctor as well as the inquiry report has been produced in the evidence as Ex.D.6; however, astonishingly enough, neither the Inquiry Officer, namely, Muhammad Akram has been produced as a witness nor any justification as to withholding the evidence of Inquiry Officer has been advanced. Similarly, the doctor whose prescription has been presented has not been produced as a witness to prove the genuineness of the prescription sans which the same is merely a piece of paper without embodying any probative value. Hence, it was not proved that the prescription (part of Ex.D.6) was the same document, which was handed over to the Inquiry Officer. The appellant has tried to knit its case primarily around the mis-declaration implying that the concealed disease and illness of the Deceased has resulted in his death, which disentitles him from the amount claimed. It has been tried to put probative and evidentiary weight on the said stance mainly through the prescription of doctor appended with the inquiry report produced in evidence, which is a photocopy of the prescription and not the original. The probative value of the prescription, apart from the reasons given above, also evaporates in the thin air on the ground that the said prescription is a private document, hence, the genuineness of the same has not been proved in terms of Article 72 read with Articles 78 and 117 of the QSO. Said prescription is not a public document and cannot be received in evidence without proof of signatures of its author and hence, could not be tendered on bare statement of the Counsel for the appellant before learned Tribunal. Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160) and Muhammad Ashraf v. Shah Noor Khan and another (1996 MLD 1819 Lahore) are referred. Even otherwise, prescription along with other affidavits relied upon by the appellant could not be even marked as exhibit without proving those documents in accordance with the provisions of QSO and therefore, reliance on the same by the appellant is misconceived. Similarly, no one out of the relatives of the Deceased appeared in support of their statements made before the Inquiry Officer deputed by the appellant to investigate the claim of the respondent. In Muhammad Zakria and 3 others v. Bashir Ahmad (2001 CLC 595 Lahore), this Court has held that “the documents, which are not copies of the judicial record, should not be received in evidence, without the proof of the signatures and handwriting of the person alleged to have signed or written the instrument, even if, such documents are brought on record, are accepted without objection.”

9. There is yet another angle from which the case can be examined. Prescription along with the inquiry report relied upon by the appellant was its best evidence and no reasons have been specified as to non-production of the Inquiry Officer or the author of the prescription which brings the case of the appellant within the clutches of illustration (g) to Article 129 of QSO that contemplates that an adverse presumption is to be drawn against the party which withholds the best evidence. We are fortified by the dicta laid down by the Hon’ble Supreme Court in Dilshad Begum v. Nisar Akhtar (2012 SCMR 1106). Even otherwise, the same is mere prescription and not diagnosis or opinion of an expert regarding the health of the Deceased.

10. Admittedly, no effort was made on part of the appellant to get post mortem of the Deceased and in the absence of the same, there is no reason to discard the death certificate (Ex.P.1), which is public document and to which presumption of truth is attached. The said death certificate has neither been objected to nor its validity has been challenged or its presumption rebutted. Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan (1989 SCMR 704), Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand (1999 CLC 1166 Lahore) and Fateh Ullah v. Noor Ahmad (2012 CLC 246 Lahore) are referred in this regard.

11. While it is correct that non-disclosure or wrong declaration of any material information can entitle the appellant to invoke Section 79 of the Ordinance to repudiate the contract of insurance, however, the said provision has to be interpreted in a reasonable manner. In present case, it has nowhere been asserted that the Deceased was unwell or had any symptoms from any ailment at the time of taking the Policy or its revival or before his death. In Indian Jurisdiction, Section 45 of the Insurance Act, 1956 is in pari materia with Section 79 of the Ordinance, and while interpreting the scope thereof, in Life Insurance Corporation of India and others. v. Asha Goel and others (2001) 2 SCC 160), the Indian Supreme Court held that on a fair reading of Section 45 it is clear that it is restrictive in nature and the burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so, there is no question of the policy being avoided on ground of misstatement of facts and repudiation of a policy should be done with extreme care and caution and not in a mechanical and routine manner. In the instant case, the appellant failed to prove the mis-declaration.

12. Much emphasis has been laid by learned Counsel for the appellant that the early death of the Deceased within one year, five months and three days of the revival of the policy, prima facie indicates that the declaration given by the Deceased was fraudulent and hence, Section 79 of the Ordinance was applicable in the instant case. Mere fact that the death occurred within short period of time after the purchase of the policy is not per se a suspicious circumstance to deny the relief to the beneficiary. Life Insurance Corporation of India v. Smt. Parkash Kaur and others (1997(1) MPLJ 203) is referred in this regard where death of the insured person therein took place within 06 months from the date of taking insurance policy and this aspect has not been given any weightage by the Court.

13. Since the claim of the respondent has been denied and lingered by the appellant without any just cause, as a result of which the nominee of the Deceased, who is of approximately six years of age,

has suffered a lot, we are inclined to award cost of Rs. 200,000/- to be additionally paid to the respondent side.

14. In the light of what has been stated above, this appeal being bereft of any merit is hereby dismissed with cost of Rs. 200,000/-to be paid to the respondent.

(Y.A.)  Appeal dismissed