2015 PLP 1184 (CLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Muhammad Shafi the husband of the appellant was insured against a policy No. 604004994-9 commencing from 31-8-2007 by the respondents, who took his last breathe on 27-12-2007 and the claim was paid on 25-5-2012, but the liquidated damages were not paid. Then the appellant filed an application for recovery of liquidated damages regarding the said policy amounting to Rs.3,00,000 under section 118 of the Insurance Ordinance, 2000 on 18-9-2012 till realization against respondents Nos.1 and

2. The said application was resisted by respondents Nos.1 and 2, issues were framed and the parties were invited to lead their evidence. In the meanwhile, the respondents Nos.1 and 2 filed an application under Order VII, rule 11, C.P.C. for rejection of the main application filed by the appellant. The learned Tribunal/respondent No.3 vide order dated 17-3-2014 has allowed the said application and rejected the main insurance application being hopelessly time barred.

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 cause of action accrued to the appellant on 25-5-2012 when the original claim was paid without liquidated damages, which was the implied term of the contract in lieu of section 118 of the Insurance Ordinance, 2000. It is further contended that in the present case section 19 of the Limitation Act, 1908 is applicable as fresh period of limitation was to be commuted from the date of acknowledgment i.e. 23-2-2009, which expired on 22-2-2012, but thereafter claim amounting to Rs.3,15,000 was paid without liquidated damages on 25-5-2012, which amounted to acknowledgment of liability with the result that fresh period of limitation started from the said date, therefore, the application filed by the appellant was still within time, but the appellant has been technically knocked out by the learned trial court while omitting to take into consideration the said aspect of the case, which has rendered the impugned order wholly illegal and without jurisdiction. Also contends that verdict of Full Bench of this Court reported as Mst. Robina Bibi v. State Life Insurance Corporation of Pakistan (2013 CLD 477), relied upon by the learned Tribunal in the impugned order is not applicable to the facts and circumstances of the present case as the cases called in question therein were decided after full fledged trial whereas the appellant has been technically knocked out without affording her opportunity to prove her version by leading evidence. He has next 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 the learned Tribunal erred in law while rejecting the claim. He has lastly prayed that while allowing this appeal, the impugned order be set aside and the matter be remanded to the learned Tribunal for decision on merits.

3. On the other hand, the learned counsel for the respondent No.2 has resisted this appeal and supported the impugned order.

4. Arguments heard and record perused.

5. There is no denial that the Insurance Policy commenced on 31-8-2007 whereas the insurer died on 27-12-2007 and the claim of appellant was repudiated on 25-11-2008 by the respondent No.2. Feeling aggrieved the appellant filed a complaint before the Federal Ombudsman on 3-2-2009 and the said proceedings were concluded on 6-2-2010 in compliance whereof the claim amounting to Rs.3,15,000 was paid to the appellant by respondents Nos.1 and 2 on 25-5-2012. We are in agreement with the learned counsel for the appellant that fresh period of limitation was to be computed from 25-5-2012 when claim amounting to Rs.3,15,000 was paid without liquidated damages on 25-5-2012 as the same amounted to acknowledgment of liability and section 19 of the Limitation Act, 1908 was applicable. 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 I. 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 to a set-off or is addressed to a person other than the person entitled to the property or right. Explanation II. 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." However, the learned Tribunal/respondent No.3 omitted to take into consideration the said aspect of the case. Even otherwise, 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 relied upon by the Tribunal while passing the impugned order 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.

6. 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-14/L Case remanded.