2007 PLP 1237 (CLC)

Mrs. QAISER IQBAL, J.

Master Agha Jan Ahmed and Master Agha Ali Ahmed minors represented through their natural guardian and mother, sons of late Agha Noor Ahmed has filed suit for recovery of Rs.94,50,000 against defendants. Succinctly the facts leading to the case are that plaintiffs predecessor-in-interest Agha Noor Ahmed expired on 24-12-2001, during his lifetime he had entered into a contract for life insurance and acquired two policies from the defendant bearing No.46060158 and 46060159 effective from 15th August, 2001 till August 15, 2003 being the maturity date, the plaintiffs were added as beneficiaries in the policy. Upon the death of the plaintiffs father the mother of the plaintiffs surrendered the original policies to the defendant to process the claim. The defendant in response to the plaintiffs claim sought various documents which were submitted. The defendant without assigning any reason deferred settlement of the policies for about eight to ten months. On 21st May, 2003 introduced a company with the name of Business Resources Group, plaintiff dispatched all the documents, the Chairman of the defendant assured vide letter dated 10th July, 2003 that the payment will be forthcoming on receipt of succession certificate. Subsequently, defendant rejected the claim on the premises that police had reported that by virtue of judicial inquiry of IIIrd Judicial Magistrate Shikarpur deceased father of the plaintiffs had committed suicide it was not accidental death. The plaintiffs have therefore, sought a decree towards the benefit accrued under the policies and liquidated damages in terms of section 118 of the Insurance Ordinance, 2000. The defendant in the written statement raised preliminary issues that the death of the plaintiffs' father was solely based on suicide which is expressly covered by the terms of Insurance only the premium was required to be paid. It is pleaded the policies acquired by insured contained a clause enumerated as under:-- "If the insured commits suicide, while sane or insane, within two years from the date of issue or date of any reinstatement of the policy, the insurance under this contract shall be equal to the sum equal to the premiums paid less any indebtedness under the policy, and less any partial surrenders and no more." The allegations in the plaint are denied having no knowledge as to what was the basis of plaintiffs' claim settled with State Life Corporation of Pakistan. In routine defendant employed and specialized agency such as Business Resources Group for scrutiny of claim according to the prevailing practice in business upon investigation it transpired that the plaintiffs predecessor-in-interest met suicidal death. Upon the pleadings of the parties following issues were framed by the Court: (1) Whether the .plaintiffs are entitled to the insurance claim amounting to the Rs.94,50,000 and 20% liquidated damages in terms of Insurance Ordinance, 2000 from the date of maturity of insurance claim till its realization? (2) Whether the delay in settling the insurance claim by the defendant (24-5-2002 to 14-7-2003) is violative of express provisions of Insurance Ordinance, 2000. (3) Whether the defendant is estopped from raising any plea for refusing to entertain the claim of the plaintiffs after the statutory period for settlement of claim? (4) Whether the defendant has malafidely, illegally and with ulterior motives refused to entertain the claim of the plaintiffs in terms of Insurance Policies bearing No.46060158 and 46060159 which were matured on 24-12-2001 on the death of Agha Noor Muhammad? (5) Whether the plaintiffs' claim is maintainable under the terms of the insurance policy? (6) Whether the insurer Agha Noor Muhammad has committed a suicide, if yes, its effect? (7) Whether the defendant Company or its agency Director ever gave assurances to the plaintiffs that their claim would be settled? (8) Whether the defendant Company is liable to pay merely because the other Insurance companies settled the plaintiffs' claim? (9) Whether the plaintiffs are entitled to any relief, if so, in what amount should the decree be? (10) Whether the Judicial Magistrate Shikarpur conducted an inquiry/ inquest regarding the death of the deceased and if so, its effect? I have heard Messrs Habibur Rehman and Khalid Rehman learned counsel appearing for the parties and my finding On the above issues are as follows: On 24th December, 2001 Agha Noor Ahmed expired during his lifetime he had procured insurance polices from the defendant soon afterwards wife of the deceased being natural guardian of the beneficiaries approached the insurance company preferred claim based upon the policies but the defendants through letter Exh.P.27 repudiated the liabilities under the contract, on account of deliberate suicide. Certain policies were obtained by Agha Noor Ahmed from State Life Insurance Corporation, the claim of the plaintiff was accepted under Policy No.502318915-9 amounting to Rs.1,44,00,000 was paid. The question arises for interpretation of the' covenants of the policy and the assurance of the risk of deceased by suicide was in fact covered by terms consequently, if the conditions of the policy covered such a risk the contract to that extent is against public policy not enforceable under the law. Mr. Habibur Rehman learned counsel for plaintiff has contended that insurance policies Exhs.P.3, P.4 were acquired by Agha Noor Ahmed at the age of 46 years which were payable on the date of maturity. It is urged that point 'requires consideration is whether the word death includes on account of sucide. The insurance policies are outcome of the companies demand must be interpreted more strictly against the author. In this context letter of the defendant Exh.P.16 is of much significance. It is urged by the learned counsel appearing for plaintiff that the defendant after filing the claim, guardianship certificate by the mother of the beneficiaries deferred settlement of policy for an abnormal period on 21st May, 2003 introduced a firm to hold inquiry in the claim, ultimately ALIC addressed a letter dated 14th July, 2003 to the plaintiff incorporating the clause regarding the commission of the suicide by the assured pointed out that the effective date of the policy was August 15, 2000, deceased expired on December 24, 2000 in accordance with the provisions of the policy defendant No.1 shall pay a sum equal to the premium paid by the late assured less in indebtedness on the policy. On August, 2003 defence witness Arif Sultan Chairman of defendant in response to the plaintiff's claim letter overruled accidental death to suicide on the basis of disposal of inquest report by IIIrd Judicial Magistrate Shikarpur vide order, dated 12th April, 2002. Mr. Habibur Rehman referring the cases from Indian and English jurisdiction has drawn distinction. In case of Scottish Union and National Insurance v. N. Roushan Jahan Begum AIR (32) 1945 Oudh 152, the principle laid down is that suicide in India under certain circumstances is not a crime. It. was conceived that in a country like Japan suicide is considered to be highly meritorious in circumstances. The learned Judges were of the opinion that in India sucide is against public policy as exhibited by the normal conception of society or as conceived by its laws. Relying on the case of 65 I.A. 66, their Lordships of the Privy Council were of the view that the charter of George I, did not intend to render the goods and chattels of a felo de se liable to be forfeited to the Crown even in the case of a British subject. But even if it did so it is wholly improbable that such a law should have been intended to apply to Muhammdans and Hindoos, even if the Crown had the power at that time to make a law binding upon them, which is disputed by Lord Brougham. At that time there was no law in India by which property was forfeited by suicide. By the Muhammedan Law suicide was not an offence and did not cause any forfeiture of property. Even wilful homicide was justified if committed at the request of the person killed. Nor should it be forgotten that at that time suttee, though not enjoyed by the religion of the Hindoos, had not been declared to be a crime; and that the ignorant and denuded votaries of Juggernauth were under the belief that eternal happiness was obtained by self-sacrifice under the wheel of the Idol's car. In the case of Northern India Insurance Co. Ltd. v. Kanhaya Lal AIR 1938 Lah. 561, dealing with the point in issue the learned Judges speaking for the bench, reported one of the conditions in a policy of insurance is that the policy is to become void if the person assured uses his own death before the policy has been in existence for one year and the assured commits suicide after a period of about 18 months, a person to whom the policy has been assigned by the assured is entitled to recover from the Insurance Company the amount due under the policy. In India the committing of sucide in itself is not a crime, which would disentitle the assignee from making a claim under the policy as would be the case in England. Mr. Habibur Rehman has contended that English common law is inapplicable to India as the criminal law of India is the creation of statute acid has referred to the case of Cleaver and others v. Mutual Reserve Fund Life Association from the Court of Peace CA 1891 and Berfsford v. Royal Insurance Co. Ltd., All England Law Reports 1936 page 602, Lord Atkin observed that, by an insurance policy issued in 1925, it was provided that, "If the life assured shall die by his own hand, whether sane or insane, within one year from the commencement of the insurance, the policy shall be void as against any person claiming the amount hereby assured or any part thereof". It was held that although the condition in policy necessarily implied a positive undertaking by the company to pay if the assured died by his own hand, sane or insane, after the expiry of a year from the commencement of the insurance, it was contrary to public policy that either a person who had committed a crime or his personal representative should be allowed to benefit by that crime. In the circumstances, therefore, the contract was unenforceable. At page 611 of the above report Lord Macmillan referring to the decision of the Supreme Court of the United State in Northwestern Mutual Life Insurance Co. v. Johnson (7) observed, where payment was enforced in the case of a suicide under policy containing a clause practically the same as the present clause, and the view that it was contrary to public policy to do so was negatived, a decision all the more striking in that it was contrary to the view previously entertained by that eminent Court. Review in the case from the prospect of penal law of the country section 40 of Pakistan Penal Code provides that word "offence" denotes a thing made punishable by this Court, or under any special or local law applicable only to a particular part of the territory comprised in Pakistan. Suicide is not punishable and cannot be recorded as an offence within the meaning of section 40 abetment to suicide and attempt to suicide are made offence in Pakistan Penal Code. Section 84 of the Pakistan Penal Code is intensive in nature specifically refers to insane suicide whereby nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. The same offence as provided is described under section 325 of Pakistan Penal Code an attempt to commit suicide any act done towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. Upon the analysis of the criminal law of this country I am convinced that suicide is not an offence in Pakistan. I will not proceed to consider the veracity of Exh.X-11. The disposal of the inquiry report in respect of the deceased Noor Ahmed alias Agha Bakhshal Khan by IIIrd Judicial Magistrate Shikarpur which is significantly based upon final report of S.H.O. Police Station Sultan Kot Exh.P.21 refers to disposal of the accident case. Initially the version of Agha Ameer Ahmed Khan son of the deceased was that his father committed suicide subsequently he along with other witnesses changed their statement that the death was accidental therefore, local police after thorough investigation duly approved by the high officials submitted report under section 174, Cr.P.C. before Magistrate that death was accidental and not suicide, whereas the Judicial Magistrate on the basis of the statement of Agha Ameer' Ahmed Pathan and Agha Gul Ahmed deposed that the death of their father, Exh.X-4, Exh.X-5 was not as a result of an accident but it was a suicide. Whereas local police including S.H.O. and other witnesses deposed, otherwise. In any view of the matter, an administrative order could be reopened in revision, no action was taken in this context, it was too late when the defendants apprised the plaintiff about the finding of the Judicial Magistrate resulted in the refusal of the claim of the plaintiff. P.W. Zaheer Khan a (Retd.) District and Sessions Judge, opined that on account of the conflicting statements of Agha Ameer Ahmed Pathan and Agha Gul Ahmed both sons of deceased Noor Ahmed alias Agha Bakhshal Khan had given conflicting statements including their servants Gul Sher and Naik Muhammad which has resulted to the conclusion that deceased met an accidental death. His report Exh.61 exceptional on the issue. Findings of the Judicial Magistrate are based upon the statement of the interested person recorded during the inquiry, cannot be termed as substantive piece of evidence, cannot be relied upon to reach at final conclusion, Mashirnama of dead body and post-mortem report did not indicate that it was a case of suicide. The finger prints on the weapon were not secured by local police. Conversely Sultan Mufti Chief Executive/Chairman of the defendant set up the case that the plaintiff's claim was not settled and defendant had engaged Business 'Resources Group and on the basis of 174, Cr.P.C. disposal report by the Judicial Magistrate declined the plaintiff's claim in respect of the investigation of Business Resources Group executed by the defendant, it is specifically stated by the defendant solitary witness that its representative did not visit the place of incident situated at Sultan Kot nor anyone on behalf of the Business Resources Group was examined on account of contractual obligation. The defendant's witness has also admitted that the sons of the deceased has quarrelled before his departure from Karachi to Sukkur. Admittedly plaintiff's mother Mst. Kauser Noor was the second wife of the deceased and natural guardian of the plaintiff. There appears a serious dispute between her and the deceased sons from the first wife as suggested by Mr. Habibur Rehman learned counsel for Plaintiff the testimony of Agha Gul Ahmed Khan and Agha Ameer Ahmed Khan Pathan Exhs.X-4 and X-5 are of interested witnesses, they had proceeded to exclude the plaintiffs from legal right by way of inheritance in 300 acres of land left by the deceased. So much so that they knew and were interested that the plaintiffs be deprived of their right in the insurance policies obtained by their deceased father. It is well-settled law that criminal and civil cases are decided on the basis of their own strength. Finding of a criminal Court is not binding or even relevant for adjudicator of a civil suit which is to be decided on the basis 'of preponderance of evidence. In this connection reliance is placed in the case of Ghulam Rasool v. Muhammad Waris Bismil 1995 SCMR 500 even otherwise on the basis of the above analogy an administrative order of Judicial Magistrate is not binding upon this Court. Under Article 78 of Qanun-e-Shahadat 10 of 1984 after the insured proved the factum that the loss on account of the risk covered by the insurance policy the burden is on the insurance company to prove that the case was covered under exceptions provided by the insurance policy or the condition on the part of the insured to disentitle the claim of the beneficiary under the insurance policy. In the present case the burden to prove was on the defendant about the factum of death of Agha Noor Ahmed. The entire case is based upon the testimony of interested witnesses as well as 174, Cr.P.C. disposal report of the Magistrate which cannot be relied upon in the absence of cogent evidence. Onus of proof rested upon the defendant was not discharged to arrive at specific conclusion that the plaintiffs are not entitled to the benefits from insurance company. In this context reliance is placed in the case of Messrs Foremost Trading Company v. Messrs Caledonian Insurance Company Limited and 2 others PLD 1988 Kar.

131. The defendant's solitary witness namely Arif Sultan Mufti did not deny the existing policies nor the death of the insurance policy-holder and has also failed to prove an exception provided in the insurance policies through independent evidence, merely reliance is placed on the finding of the Judicial Magistrate based on administrative order, which is not a substantive proof therefore, cannot be relied in the absence of the independent evidence. Mr. Habibur Rehman learned counsel for plaintiffs did not press the claim of liquidated damages which otherwise cannot be granted in the pecuniary facts and circumstances of the case. For the foregoing reasons the plaintiffs' suit is decreed in the sum of Rs.70,00,000 against the defendant. Parties are left to bear their own cost. M.B.A./J-5/K Suit decreed.