2015 PLP 1543 (CLD)

ARSHAD MAHMOOD TABASSUM, J.

This petition under section 115, C.P.C., calls in question, judgment and decree dated 12-9-2007, passed by a learned Additional District Judge, Sargodha, whereby he accepted respondents' appeal filed against judgment and decree dated 15-6-2006, passed by a learned Civil Judge, Sargodha, whereby the respondents' suit for recovery of Rs.1,25,000, on account of claim of insurance was dismissed.

2. Briefly, facts of the case are that the respondents' predecessor-in-interest, namely late Muhammad Latif, got insurance policy No.50-9823620-7 from the petitioner (State Life Insurance Corporation of Pakistan), on 31-12-1996, for a sum assured of Rs.60,000, with supplementary contract of Accidental Death Benefit. The term of policy was 20 years and Muhammad Latif late, was to pay premium in yearly instalment on 31st December each year. The petitioner Corporation issued the insurance policy in question on receipt of first yearly premium. The late insured Muhammad Latif, failed to pay second premium by the target date i.e. 31-12-1997, and even he failed to pay the same within the grace period of 31 days. Resultantly, the policy stood lapsed. Subsequently, on 3-7-1998, late Muhammad Latif's Declaration of Good Health dated 30-6-1998, along with premium for revival of the policy was submitted to the petitioner Corporation, which was accepted. Subsequently, respondent No.1, being nominee for the said insurance policy submitted claim to the petitioner Corporation for the death of her late insured husband Muhammad Latif showing that his death had taken place on 3-7-1998. Since the revival date of lapsed policy and date of death of the insured Muhammad Latif, was the same i.e. 3-7-1998, the petitioner Corporation got the matter investigated as per claim of the petitioner. During investigation it revealed that the insurance policy had fraudulently been got revived after death of the said Muhammad Latif insured, therefore, the claim was declined. 2(sic.) The above circumstances, necessitated institution of suit by the legal heirs of the insured which they instituted on 11-7-2000, in forma pauperis. The suit was contested by the petitioner Corporation through filing its written statement. Both the parties produced their pro and contra evidence and ultimately the same was dismissed by the learned Civil Judge, Sargodha, vide judgment and decree dated 15-6-2006. An appeal was preferred by the respondents/defendants against the said decree. During pendency of the said appeal, learned Additional District Judge, Sargodha, vide order dated 9-2-2007, sent back the case to the learned trial Court after framing the following additional issue:- "Whether the insured Muhammad Latif husband of appellant/plaintiff had not died on 3-7-1998 and had died on 2-7-1998? OPD" The learned trial Court was directed to proceed further under Order XLI, rule 25, C.P.C., to take additional evidence and then to return the evidence to the Appellate Court together with its findings thereon. The learned trial Court after doing the needful returned the record to the learned first appellate Court on 22-3-2007, deciding the additional issue against the respondents/plaintiffs concluding that the said Muhammad Latif, died on 2-7-1998. Ultimately the learned first appellate Court vide judgment and decree dated 12-9-2007, allowed the appeal and decreed the suit. Being dissatisfied with the said judgment and decree passed by the learned first Court the petitioner Corporation has preferred the instant petition under section 115, C.P.C.

3. Learned counsel for the petitioner Corporation has argued that the respondents/plaintiffs had miserably failed to prove that Muhammad Latif, insured died on 3-7-1998; that they also failed to establish that his death was accidental and that the evidence produced by them was discrepant and contradictory, hence, their suit was rightly dismissed by the learned trial Court, but the learned first appellate Court has mis-read and mis construed the evidence available on record and thereby erroneously decreed the suit, hence, the impugned judgment and decree merit setting aside.

4. Conversely, learned counsel for the respondent No.1 has fully supported the impugned judgment and decree.

5. I have heard the learned counsel for the parties and have myself perused the record with their able assistance.

6. There is no denial of the fact that the instalment regarding premium was deposited on 3-7-1998, and the same was received by the petitioner Corporation readily without raising any objection, as such the insurance policy was alive and valid as on 3-7-1998. Now the question which is of paramount importance is as to whether Muhammad Latif, died on 2-7-1998, or on 3-7-1998. In this regard Mst. Shahnaz Akhtar, plaintiff appeared as P. W.1, and categorically stated that her husband died on 3-7-1998. She further stated during cross-examination:- She remained consistent in her depositions on this point and her testimony could not be shaken. Likewise, Muhammad Mukhtar Hussain, Imam of the local Masjid, while appearing as P. W.2, has categorically stated that he received information about death of the said Muhammad Latif, on 3-7-1998, at 11-00 a.m. on Friday and that in this regard he made announcement in the loudspeaker of the Masjid. He also maintained that he had led the funeral prayer of the deceased. Yet another P. W, namely Abdul Nabi Dogar, Assistant Manager State Life, Sargodha, while appearing as P.W.3, stated that the death claim preferred by Mst. Shahnaz Akhtar, wife of the insured was attested by Manzoor Hussain Qureshi, Manager Sales and Development. He further stated that according to his record the receipt regarding payment of the second instalment was available there accompanied by Good Health Declaration and that the plaintiff was entitled to receive the claim of her husband's death.

7. The above resume of the plaintiff's evidence suggests that all the P.Ws. remained consistent on the point that the deceased died on 3-7-1998.

8. The claim of the petitioners/defendants that the deceased died on 2-7-1998, is mainly based upon inquiry conducted by Corporation itself, however, the persons whose statements have been referred to in inquiry were not produced before the learned trial Court. Muhammad Nawaz Malik (D.W.1), is an official witness who had no personal knowledge about the date of death of the deceased. Another witness namely Sanaullah produced as D.W.2, produced by the petitioners/defendants during cross-examination states as under:- Similarly, D.W.3, also did not support claim of the petitioners/defendants and the petitioners got him declared hostile and cross-examined him. During cross-examination he further states that regarding death of the deceased announcement was made by Maulvi Mukhtar Ahmed (P.W.2). Muhammad Ramzan (D.W.4), categorically stated that Muhammad Latif, died on Friday, in the following words:- He also stated:-

9. In the light of the above resume of the evidence of the parties two points stand established, firstly that the premium was deposited on 3-7-1998, and secondly Muhammad Latif, deceased also died on 3-7-1998. There is not an iota of evidence to assume that he died on 2-7-1998.

10. As regards the claim of the petitioner Corporation that no death certificate of the deceased was produced nor the cause of death was established, it is observed that it is in the evidence that the deceased died before reaching hospital, hence, in the ordinary course his post-mortem was not required nor any death certificate could be issued. Therefore, the policy being alive and the deceased having died during subsistent of his insurance policy period, his legal heirs were entitled to Accidental Death Claim of the deceased. The learned first appellate Court, therefore, rightly concluded so to which no exception can be taken. No illegality or irregularity has been detected in the impugned judgment calling for interference by this Court in its revisional jurisdiction. This petition, therefore, has no merit, which fails and the same is hereby dismissed with no order as to costs. SL/S-85/L Petition dismissed.