2015 PLP 1208 (CLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Muhammad Altaf, the husband of the appellant was insured against two policies commencing from 6-10-2009 and 29-10-2009 by the respondents, who took his last breathe on 18-3-2010 and claim forms were filed by the appellant before respondent No.2, but the same were repudiated by the respondent No.2 vide letter dated 7-5-2012. Thereafter the appellant by filing an application under section 122 of the Insurance Ordinance, 2000 for the recovery of death claim amounting to Rs.1,08,30,000 along with liquidated damages under section 118 of Insurance Ordinance, 2000 before the Insurance Tribunal, Punjab Lahore-respondent No.3 on 12-10-2013, who vide impugned order dated 28-1-2014 after hearing preliminary arguments rejected the claim of the appellant while declaring the same being time barred. Hence the instant appeal.

2. The learned counsel for the appellant has argued that issue of limitation is a mixed question of law and fact and could not be decided without recording of evidence of the parties, but the learned Tribunal without adverting to the said aspect has erred in law and non-suited the appellant on the point of limitation while omitting to consider that the claim was initially entertained before the Insurance Company within the stipulated period, who repudiated the said claim in an arbitrary manner without affording opportunity of hearing to the appellant to prove her claim and the period consumed by the said company is liable to be excluded, but the said question having not been discussed in the verdict of Full Bench of this Court reported as Mst. Robina Bibi v. State Life Insurance Corporation of Pakistan (2013 CLC 477), the same is not applicable to the facts and circumstances of the present case and moreover the cases called in question therein were decided after full fledged trial whereas the appellant has been technically knocked out without affording him opportunity to prove her version by leading evidence. He has lastly prayed for acceptance of the instant, appeal and setting aside of the impugned order.

3. Conversely, the learned counsel for the respondent No.2 has argued that under Article 86A of the Limitation Act, 1908 only a period of three years was available to the appellant commencing from the death of the policy holder, but the instant claim was filed before the learned Tribunal beyond limitation, who while keeping in mind the verdict of Full Court of this Court rendered in Mst. Robina's case (supra) has rightly rejected the claim of the appellant. He has lastly prayed for dismissal of the instant appeal.

4. Arguments heard and-record perused.

5. Admittedly the insurer died on 18-3-2010 whereas the insurance claim of appellant was repudiated on 7-5-2012 by the respondent No. 2 and thereafter the appellant filed the application for the recovery of death claim before the learned Tribunal on 12-10-2013. We are fully in agreement with the learned counsel for the appellant that the limitation is a mixed question of facts and law and the same cannot be adjudged without recording of evidence. Moreover, the learned Tribunal failed to consider the applicability of sections 14 and 19 of the Limitation Act, 1908 and the application filed by the appellant could not be summarily rejected while applying Article 86(a) of the Limitation Act, which provides a limitation of three years from the date of death of the insurer. To our mind Article 86(a) ibid would be applicable, if his claim was payable, whereas in the present case the claim of the appellant was repudiated by the Insurance Company (respondent No.2), but this aspect has been totally ignored by the learned Tribunal while passing the impugned order. The case-law cited by the learned counsel for the parties is not applicable to the facts and circumstances of the instant case as said verdict was given in the cases of final adjudication and applicability of sections 14 and 19 of the Limitation Act, 1908 was also not discussed.

6. Consequently the instant appeal is allowed, the impugned order is set aside and the application filed by the appellant will be deemed to be pending before the learned Tribunal, who will decide the same afresh in the terms noted above. The parties are directed to appear before the learned Tribunal on 9-2-2015. KMZ/A-11/L Case remande