2015 PLP 786 (CLD)

M. SOHAIL IQBAL BHATTI, J.

The question raised through this Insurance appeal is that as to whether the Insurance Tribunal constituted under Section 121 of the Insurance Ordinance, 2000 is to draw a decree sheet after giving the decision upon an application filed before it, and without preparing a decree sheet; as to whether the Insurance Tribunal can get its decision executed/implemented under the provisions of Order XXI of Civil Procedure Code, 1908.

2. Facts of the case are that the respondent No.1 being a sole proprietorship of Muhammad Waseem purchased Hino Truck bearing registration No.LES-7459 through respondent No.2. The said truck was comprehensively insured for an amount of Rs.32,05,000 through Insurance Policy No.CSI/MC 14399, dated 23-7-2009. The said truck was stolen on 22-10-2009 while parked at hotel/tea-stall in Liaqat Pur, District Rahim Yar Khan and an FIR No.970/2009 was registered. The insurance claim was filed with the appellant insurance company by respondent No.2 (Orix Leasing Pakistan Limited) which was denied/turned down by the appellant insurance company and resultantly the respondents filed a claim through an application under section 123 of the Insurance Ordinance, 2000 before the Insurance Tribunal on 19-7-2010. The appellant filed a written reply and after framing of issues, the insurance tribunal through its decision dated 21-3-2013 accepted the claim in the following terms; "In view of my findings, the application of the applicant Al-Rehman Traders is accepted in favour of the applicant and against the respondent. The applicant is entitled to receive the assured amount along with liquidated damages as provided under section 118(2) of Insurance Ordinance, 2000 at monthly rests @ 5% higher than the prevailing base rate its till realization. File be consigned to the record room after its due completion".

3. The appellant did not challenge the original decision dated 21-3-2013 made by the Insurance Tribunal in appeal under section 124 of the Insurance Ordinance, 2000.

4. The respondent No.1 filed an application to execute the decision made by the Insurance Tribunal on 20-5-2013; and during the course of these proceedings before the Insurance Tribunal an objection was raised by the appellant through an application dated 10-9-2013 that since the decree sheet has not been drawn/prepared by the Insurance Tribunal therefore the decision made by the Insurance Tribunal is not capable of being executed, while exercising powers under Order XXI of Civil Procedure Code, 1908. Upon filing of this application, the respondent No.1 also filed an application before the Insurance Tribunal to prepare the decree sheet. Both the applications were dismissed by the Insurance Tribunal through order dated 19-3-2014 and this order passed by the Insurance Tribunal was not challenged by the appellant-Insurance company; thus attained finality.

5. The Insurance Tribunal gave ample opportunities to the appellant for making payment of the amount to the respondent No.1; during the course of proceedings, the counsel appeared on behalf of the appellant-insurance company/judgment-debtor and requested to adjourn the case on the ground that the appellant-insurance company has written a letter to its Head Office for making payment to the respondent No.1 and the case was adjourned to 6-6-2014. Again on 6-6-2014 the case was adjourned to 9-6-2014, but as the lawyers were observing strike, the case was adjourned to 10-6-2014. On 10-6-2014, no one appeared on behalf of the appellant insurance company/judgment-debtor and at 3-15 p.m., the Insurance Tribunal passed an order to issue the warrant of attachment of the property of the judgment-debtor and the case was adjourned to 26-6-2014. However, it appears that during these proceedings, the appellant appeared before the Insurance Tribunal through its counsel and sought some time to settle the matter with the respondent No. 1, but the Insurance Tribunal through order dated 20-6-2014 did not accede to the request of the appellant-insurance company. Despite issuance of repeated warrants for attachment of the movable property of the appellant, the decision passed by Insurance Tribunal has not been implemented and therefore again the warrants for attachment of the movable property were issued for 27-6-2014 and the concerned SHO was directed to provide necessary assistance to the Bailiff in this regard, hence the present appeal.

6. The main stay of the arguments advanced by the learned counsel for the appellant is that the powers under Order XXI of Civil Procedure Code could not have been exercised by the Insurance Tribunal and the orders dated 10-6-2014 and 20-6-2014 regarding issuance of warrants of attachment of the movable properties of the appellant were without jurisdiction as no decree sheet has been prepared. The learned counsel for the appellant relied upon Zahur Din v. Anjuman Himayat-I-Islam (1989 MLD 480), Muhammad Muzaffar v. Maqsood-ul-Hassan (2006 SCMR 1157) and State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal (2011 SCMR 1013).

7. The learned counsel for the respondents while advancing his arguments argued that the original decision dated 21-3-2013 made by the Insurance Tribunal has not been challenged under the relevant provisions of the Insurance Ordinance, 2000 i.e. section 124(2) of the Insurance Ordinance, 2000. The learned counsel for the respondents further argued that the appellant had filed an objection petition on 10-9-2013 raising the similar question and the application filed by the appellant was dismissed on 19-3-2014 and again this order was not challenged through appropriate proceedings and this appeal has been filed by the appellant is an attempt to escape from its liability which has become absolute as no appeal was filed against the decision dated 21-3-2013 which has attained finality.

8. We have considered the arguments advanced by the learned counsel for the parties and have also examined the documents attached with this appeal.

9. The question which would require resolution by this Court is as to whether the Insurance Tribunal after giving its decision under section 123 of the Insurance Ordinance, 2000 is under an obligation to draw a decree and without there being a formal decree the decision of the Insurance Tribunal cannot be implemented as the Insurance Tribunal under section 122 of the Insurance Ordinance, 2000 exercises the powers vested in a Civil Court under the Civil Procedure Code, 1908.

10. Section 122 of the Insurance Ordinance, 2000 deals with the powers of the Tribunal, which is reproduced below:- "

122. Power of the Tribunal.

(1) A Tribunal shall: (a) in exercise of its civil jurisdiction have in respect of a claim filed by a policy holder against an insurance company in respect of, or arising out of a policy of insurance, all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908). (b) in the exercise of its criminal jurisdiction, tried the offences punishable under this Ordinance and shall, for this purpose, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); (c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it, by or under this Ordinance; (d) in all matters with respect to which procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908) or the Code of Criminal Procedure, 1898 (Act V of 1898) as the case may be. (2) ________________________________________ (3) No Court other than a Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a tribunal extends under this Ordinance

".

11. The word "Tribunal" has not been defined in the Insurance Ordinance, 2000; section 2(LXV) defines tribunal as a tribunal constituted under Section 121 of the Insurance Ordinance, 2000. For clarity, the dictionary meanings of the "Tribunal" are reproduced. According to the Chambers Dictionary 12th Edition, the word "Tribunal" is defined as under:- "Tribunal"

A Court of justice or Arbitration; a body appointed to adjudicate in some matter or to inquire into some disputed questions; a seat or bench in a Court from which judgment is pronounced, a judgment-seat; a confessional". Similarly, according to the Blacks Law Dictionary 8th Edition the word "Tribunal" is defined as under:- "Tribunal"

1. A Court or other adjudicatory body.

2. The seat, bench or place where a judge sits". The above definitions of the word "Tribunal' clarify the position that Insurance Tribunal is an adjudicatory forum within the framework of the Insurance Ordinance, 2000.

12. There are other Legislations like the Punjab Rented Premises Act (VII of 2009) which provide for the constitution of Rent Tribunal and also deals with the powers of the Rent Tribunal. Section 26 of the Punjab Rented Premises Act (VII of 2009) provides that a rent tribunal can exercise powers of a Civil Court, and similarly section 31 of the Punjab Rented Premises Act (VII of 2009) provides that a rent tribunal shall execute an order passed under the Act by a Rent Tribunal or a District Judge or an Additional District Judge as a decree of a Civil Court and for this purpose, the Rent Tribunal may exercise any or all the powers of a Civil Court; although no formal decree is drawn by the Rent Tribunal. Similarly, the Consumer Court constituted under Punjab Consumer Protection Act, 2005 upon receipt of the claim by the consumer passes an order under section 31 of the Punjab Consumer Protection Act, 2005 and section 30(3) of the Punjab Consumer Protection Act, 2005 provides that the Consumer Court shall have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908. In cases of Consumer Protection Act no formal decree is drawn by the Consumer Court. In above referred Legislative Instruments, no formal decree is drawn or prepared but the order as well as decision is executed as a decree of a Civil Court in exercise of the powers conferred upon the Rent Tribunal established under Punjab Rented Premises Act, 2009 or the Consumer Court established under Punjab Consumer Protection Act, 2005.

13. Section 123 of the Insurance Ordinance, 2000 relates to the procedure of the tribunal and it provides that a tribunal for the purposes of a trial of an application follow such procedure as may be prescribed and have the same powers as are vested in the Civil Court trying a suit under the Code of Civil Procedure, 1908. Thus it becomes an established position that an Application is filed before the Insurance Tribunal and it gives its decision after following the procedure given in Civil Procedure Code. The intention of legislature has never been that the tribunal which is a "persona designata" has become a civil court; the provisions of section 122(1)(a) and (d) of the Insurance Ordinance, 2000 are meant to facilitate the Insurance Tribunal to get its Decision/Mandate implemented by adopting the coercive mechanism provided in Civil Procedure Code. Section 124 of the Insurance Ordinance, 2000 refers to a decision made by the tribunal. It would be useful to reproduce section 124(2) of the Insurance Ordinance, 2000 which reads as under:- "124 (2) ."Any party aggrieved by a decision of the tribunal may, if the amount of the claim in dispute or the penalty prescribed, as the case may be, is not less than 100,000 rupees, prefer an appeal to the High Court within a period of 30 days from the date of such decision". The above provision refers to the decision made by the tribunal. The word "decision" according to the Blacks Law Dictionary 8th Edition is as under;- "decision"

a judicial or agency determination after consideration of the facts and the law; esp., a ruling, order or judgment pronounced by a Court when considering or disposing of a case". From the above definition of the word "decision" it becomes explicit that an order made after adjudication also falls within the definition of a decision. At this stage, it would also be useful to refer to the dictionary meanings of the term "decree". "The term "decree" is traditionally a judicial decision in a Court of equity, admiralty, divorce or probate. The term "decree" is synonym to a Court order". At this stage, we would refer to term "order" as given in section 2(14) of the Civil Procedure Code, 1908. "Order" means the formal expression of any decision of a Civil Court which is not a decree." Similarly, the term "decree" according to section 2 of the Civil Procedure Code, 1908 means a formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regards to all or any of the matters in controversy in the suit. In our opinion, the decision given by the Court/Tribunal must be formally expressed and be in a precise and deliberate language so as to facilitate its execution. We are not in agreement with the arguments advanced by the learned counsel for the appellant that since the Insurance Tribunal exercises powers vested in a Civil Court under Code of Civil Procedure, 1908; therefore, a decree has to be drawn for implementation of its decision, as the term "decision" as defined in the Blacks Law Dictionary also includes the "order". The power under section 122 (1)(a) and (d) are to arm the Tribunal with the powers to get its decision implemented. At this stage, it would be useful to refer to section 36 of the Civil Procedure Code, 1908 which is reproduced below;- Section 36

Application to orders. "The provisions of this Code relating to execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders. Section 36 of the Civil Procedure Code is based on the principles that a Court has inherent power to get its orders carried out."

14. In the present case, the Insurance Tribunal constituted under the Insurance Ordinance, 2000 has got the inherent powers under the provisions of section 122(1)(d) to get its decisions, which are basically formal adjudication upon the rights of the parties, implemented/executed as a decision of a civil court. We are of the considered opinion that there is a specific intention of the legislature incorporating section 122(1)(d) as no specific procedure has been provided in the Insurance Ordinance, 2000; meaning thereby that inherent powers have been given to the Insurance tribunal to get its decisions implemented and executed to adopt all measures provided in Civil Procedure Code even if no formal decree has been drawn. In this regard, we are guided by the law laid down in a case titled Ranjit Singh Hazari and others v. Juman Meah and another (PLD 1961 Dacca 842) wherein the Division Bench held as under:- "Section 36 of the Code of Civil Procedure in express terms makes all the provisions "relating to the execution of decrees" applicable to the execution of orders". The identical question came up for hearing before this Court where a suit for rendition of accounts filed by a party ended into a compromise and the suit was disposed of in the terms of a compromise without drawing a formal decree. The execution proceedings filed by the beneficiary of the compromise was dismissed by the Executing Court taking the view that there existed no decree, therefore, execution proceedings were incompetent. The order was challenged in appeal and the Additional District Judge while setting aside the order of the Executing Court, remanded the case to proceed with the execution proceedings in accordance with law. The judgment of the first appellate court was challenged in the revision petition before this Court and this Court upheld the judgment of the first appellate court while observing that under section 36 of Civil Procedure Code, 1908 the provisions of the Code relating to execution of decree are also applicable to orders and even if there was no decree in existence, an order disposing of the suit was capable of being executed in the same manner as the decree. Reliance is placed on Khaavir Saeed Raza v. Wajahat Iqbal (2003 CLC 1306 (Lahore).

15. As far the reliance of the learned counsel for the appellant upon judgments reported in Zahur Din v. Anjuman Himayat-i-Islam (1989 MLD 480) and Muhammad Muzaffar v. Maqsood-ul-Hassan (2006 SCMR 1157), it is observed with due deference that these judgments are not applicable to the present case in the cases referred to drawing up of a decree is a mandate of law and there was a failure on part of the civil court to prepare a decree as mandated by law. But the present case relates to the proposition as to whether the Insurance Tribunal constituted is required to draw the decree to get its decisions implemented.

16. We are of the considered view that in case the Insurance Tribunal cannot get its decision implemented or executed it would lead to ridiculous results and would render the relevant provisions of the Insurance Ordinance, 2000 redundant which has never been the intention of the legislature as is evident from the preamble of the Insurance Ordinance, 2000 which reads as under:- "An ordinance to regulate the business of insurance industry to ensure the protection of the interests of the insurance policy holders and to promote sound development of the insurance industry and for matters connected therewith and incidental thereto."

17. For what has been discussed above, we are of the view that although the Insurance Tribunal is vested with the powers of a Civil Court under section 122 of the Insurance Ordinance, 2000 but the decision made by the Insurance Tribunal is capable of being executed without there being a formal decree drawn by the insurance tribunal.

18. At this stage, it would also be beneficial to refer to the fact that the original decision dated 21-3-2013 passed by the Insurance Tribunal was not challenged in appeal under section 124(2) of the Insurance Ordinance, 2000 which had attained finality and similarly an objection petition filed by the appellant company to the effect that no execution proceedings can be carried out without there being a formal decree had also been dismissed on 19-3-2014 which had also not been challenged. After the order dated 19-3-2014 the appellant-company had been appearing before the Insurance Tribunal and seeking time to adjust the claim of the respondent; but no positive step whatsoever was taken to satisfy the claim of the respondent leaving the Insurance Tribunal with no other option but to resort to coercive mechanism provided in Civil Procedure Code in exercise of powers conferred upon it under section 122(1)(a) and (d) of the Insurance Ordinance, 2000. Apparently filing of this appeal is again an attempt by the appellant-company to wriggle out of its liability in pursuance to the decision made by the Insurance Tribunal on 21-3-2013 which has attained finality as the same has not been challenged in terms of section 124(2) of the Insurance Ordinance, 2000. Resultantly, this Insurance Appeal is dismissed. MH/C-21/L Appeal dismissed.