2015 PLP 679 (CLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Akhtar Hussain the husband of the appellant was insured against a policy commencing from 1-11-2006 by the respondents who took his last breathe on 23-8-2007 and claim forms were filed by the appellant before the respondent No.2 on 17-9-2008, but the same were repudiated by the respondent No.2 vide letter dated 13-8-2009. Then the appellant moved a complaint before the Federal Ombudsman on 28-4-2010 and respondent No.2 vide his letter dated 28-6-2012 required certain documents from the appellant, but the said complaint was also decided against the appellant on 12-4-2013. Thereafter the appellant filed an application under section 122 of the Insurance Ordinance, 2000 for recovery of Policy Proceeds under Policy No.507895184-0 along with liquidated damages under section 118 ibid before the Insurance Tribunal, Punjab Lahore/respondent No.3 on 14-9-2013 and the learned Insurance Tribunal vide impugned order dated 20-9-2013 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 CLD 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 further contended that the concept of computation of limitation is merely a mode of calculating period of limitation by excluding time which is permitted to be excluded under Limitation Act and without affording any opportunity to explain bona fide delay on the part of the appellant due to his complaint filed before the Ombudsman the learned Tribunal erred in law while rejecting the claim. He has lastly prayed for acceptance of the instant appeal, setting aside of the impugned order and the matter may be remanded to the Tribunal for decision afresh on merits.

3. On the other hand, the learned counsel for the respondent No.2 has resisted this appeal while contending that under Article 86(a) of the Limitation Act 1908 only a period of three years was available to the appellant commencing from the death of the policy holder to file a claim before the Tribunal, 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 23-8-2007 and the claim of appellant was repudiated on 13.8.2009 by the respondent No.2. Feeling aggrieved the appellant filed a complaint before the Federal Ombudsman on 28-4-2010 before whom vide letter dated 28-6-2012 issued by respondent No.2 an acknowledgment of liability in respect of such right had been made in writing by requiring certain documents from the appellant. A fresh period of limitation was to be computed from the time when the acknowledgment was so signed. In this regard section 19 of the Limitation Act is fully applicable in the instant case. For ready reference the said provision is reproduced hereunder:-- "

19. Effect of acknowledgment in writing.

(1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but, subject to the provision of the Evidence, Act, 1872, oral evidence of its contents shall not be received. Explanation L For the purposes of this section an acknowledgement may be sufficient through it, umits to spec; the exact nature of the property or right, or avers that the time for payment, delivery performance or enjoyment has not yet-come, or is accompanied by a refusal to pay, deliver, deform or permit to enjoy, or is coupled with a claim a to set-off or is addressed to a person other than the person entitled to the property or might. Explanation IL For the purposes of this section, "signed" means signed either personally or by an agent duly authorized in this behalf. Explanation III. For the purposes of this section an application for the execution of a decree or order is an application in respect of a right." The appellant specifically pleaded for taking the benefit of aforesaid provision in para-9 of his application, which reads as under:-- "

9. That this honourable Tribunal has the exclusive jurisdiction in terms of section 122(3) of the Insurance Ordinance to adjudicate upon the matter. Instant application is not barred by limitation in terms of section 19 of Limitation Act, 1908." However, the learned Tribunal/respondent No.3 omitted to take into consideration the said aspect of the case. 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. The learned Tribunal failed to consider the applicability of section 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.

7. 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/S-15/L Appeal allowed.