2010 PLP 845 (CLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this Constitutional petition, the petitioner has assailed the A order dated 12-1-2009 passed by the Insurance Tribunal, whereby an application of the petitioner under Order XVI C.P.C. was dismissed.

2. The said order was firstly assailed through a regular First Appeal (R.F.A.) but it was withdrawn as the same was not maintainable under section 124(2) of the Insurance Ordinance, 2000. After withdrawing the said R.F.A. the present writ petition has been filed.

3. Learned counsel for the petitioner submits that the learned Insurance Tribunal is not a civil court and as such Civil Procedure Code (C.P.C.) is not applicable in proceedings before him. He further submits that the Tribunal, respondent No.1 has wrongly assumed that the C.P.C. is applicable on the proceedings before him and held that petitioner was bound to file the list of witnesses within seven days after framing of issues. Learned counsel for the petitioner adds that technical knock out is exceptional and not a rule, all judicial proceedings should be for advancement of justice and for resolving the real controversy between the parties.

4. Learned counsel for the respondent No.2 supports the impugned order.

5. Heard. Record perused.

6. The Insurance Tribunal is constituted under section 124(2) of the Insurance Ordinance, 2000 a special law and as such the Civil Procedure Code is not strictly applicable to the proceedings pending before him. The matter pending before the learned Tribunal is that a claim under insurance policy is payable or not? Specially when the insurer is claiming that the insured has committed fraud with them when he purchased life Insurance Policy he has not disclosed the true facts regarding his health. For establishing the said fact, the Medical Officer of Gulab Devi Hospital is necessary to be examined under whose supervision the deceased insured remain admitted in Hospital. The petitioner in his application under Order XVI (1), C.P.C. has specifically averred that list of witnesses was filed within seven days as provided in C.P.C., however due to some mis?understanding and clerical mistake the name of Medical Officer from Gulab Devi Hospital was not included, however the pleading of the petitioner find mention the name of said witness who is the most relevant witness for the resolution of controversy between the parties. The witness will bring the record of the disease insured as well as his treatment. The said witness will be helpful for both the parties as he is the only person who can produce the record about the disease of insured. The learned Tribunal for digging out the truth is bound to collect the best evidence. His statement will enable the Tribunal to decide the only controversy between the parties which is the only cause for non-payment of Insurance claim to the legal heirs of deceased/insured. Further it is the intention of law that all disputes between the parties should be decided on merits and this is the principle of administration of justice. The witness, required to be summoned, is not included in the list of witnesses but the Tribunal has to consider the sufficient cause for non-inclusion of name of said witness. The petitioner has based his claim on the allegation of fraud, for the success of petitioner's claim the statement and record of the Doctor from the Hospital of deceased is necessary. It is not imaginable that the petitioner has failed to include the name of the witness intentionally.

7. The other aspect of the case is that in case the learned Tribunal was of the view that the petitioner is intentionally delaying the proceedings he can summon the witness as court witness. In these circumstances it was not justified to dismiss the application for summoning the witness.

8. The dismissal was not warranted in the circumstances of the case.

9. In view of the above, I set aside the impugned order and accept the application of the petitioner. The learned Insurance Tribunal will summon the witness from Gulab Devi Hospital, Ferozpur Road, Lahore and will allow opportunity to the parties to cross-examine the same in accordance with law. M.U.Y./S-92/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.