2013 PLP 2149 (CLD)

ABDUS SATTAR ASGHAR, J.

This Civil Revision under section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 15-3-2002 passed by learned Additional District Judge Lahore whereby appeal lodged by the respondent was accepted setting aside the judgment and decree dated 4-11-2000 passed by learned Civil Judge Lahore and petitioner's suit for recovery of Rs.75,000, as refund of paid up death claim of an insurance policy, was dismissed.

2. It is argued by learned counsel for the petitioners that the impugned judgment and decree dated, 15-3-2002 passed by learned first appellate court is against law and facts, based on non-reading and misreading of evidence, outcome of surmises and conjectures; untenable and liable to set aside that terms and conditions of the contract of insurance and the declaration made/signed by the insured deceased husband of the respondent have not been properly and legally interpreted and construed by the learned first appellate court; that the impugned insurance policy was obtained without any medical examination; that Muhammad Munir Ahmad deceased husband of the respondent died on 3-7-1984 and on submission of relevant documents, petitioners accepted the declaration of the deceased in good faith and paid the amount of impugned insurance claim to the respondent as wife of the deceased/insured person; that thereafter an inquiry was got conducted regarding respondent's claim of another insurance policy amounting to Rs.25,000 when it revealed that deceased at the time of purchasing the insurance policy had concealed his chronic ailment i.e. cancer and liver disease in the declaration therefore he was not competent to obtain any policy; that the respondent was liable to refund Rs.75,000 i.e. amount of the insurance policy.

3. It is resisted by learned counsel for the respondent with the contentions that the investigation report (Exh.P-10) with regard to cause of death of Muhammad Munir Ahmad deceased produced by Babu Khan (P.W.1) was not worth consideration for the simple reason that alleged sources of the report i.e. Dr. Muhammad Hanif and Abdul Majeed were not produced in the witness box; that the photocopies of some documents relating to Businessmen Hospital Trust Lahore were also not duly proved in terms of Article 78 of Qanun-e-Shahadat Order 1984; that Muhammad Munir Ahmad being an employee of the petitioners had been performing his routine duty regularly while attending the office of the Area Manager to deposit the premium and proposals for various other insurance policies before his death which reveals that the deceased was hale and hearty and vas not suffering from any serious disease like cancer; that terms and conditions and declaration of the impugned insurance policy were duly verified by the Area Sales Officer and the amount of the insurance policy was paid to the respondent after the death of her husband/insured person, therefore petitioners cannot claim refund of such amount without having any reliable and valid proof of any misstatement regarding the health of the deceased/policy holder; that the learned first appellate court while appreciating the ocular and documentary evidence available on the record allowed the appeal setting aside the judgment and decree dated 4-11-2000 passed by learned trial Court and dismissed petitioners suit on merits in accordance with law; that the impugned judgment and decree do not suffer from any jurisdictional error, factual or legal infirmity or perversity therefore petitioners have no case to invoke the revisional jurisdiction of this Court; that revision petition lodged by the petitioners without any merit is liable to be dismissed.

4. Arguments heard. Record perused.

5. Perusal of the record transpires that Insurance Policy No.503063680 worth Rs.75,000 in favour of Muhammad Munir Ahmad deceased husband of the respondent was not denied by the petitioners at the time of its payment to the respondent. Life Insurance Proposal (Exh.P-1) of the said policy manifests that wife of the insured deceased namely Maqsoodan Bibi/respondent was a nominee under section 39 of the Insurance Act, 1938. In column No.7 of the Personal Statement of Health (Exh.P-2), Muhammad Munir Ahmad declared that he did not suffer from any serious disease like cancer etc. The declaration made by him was verified by the Area Sales Officer through his confidential report. At the time of submission of second claim of another insurance policy worth Rs.25,000 petitioners got conducted an inquiry by Babu Khan (P.W.1) who submitted his report of investigation (Exh.P.W.1/1) contending that late Muhammad Munir Ahmad was suffering from blood cancer and liver disease for the last 10 years. He based his investigation report on the statement of one Abdul Majeed/real brother of the deceased, Dr. Muhammad Hanif MBBS and photo copies of the treatment chart of the deceased obtained from Businessmen Hospital Trust Lahore. Admittedly no inquiry was conducted with regard to respondent's claim of Rs.75,000 as against Insurance Policy No.503063680. On the other hand respondent's case is that her husband Muhammad Munir Ahmad died because of heart attack on 3-7-1984 and in this regard furnished copy of Death Certificate issued by Lahore Municipal Corporation. Babu Khan (P.W.1), the investigator as well as scribe of investigation report (Exh.P-10) while appearing in the witness box during cross-examination admitted that he did not conduct the inquiry with regard to the claim of insurance policy amounting to Rs.75,

000. He also admitted that Abdul Majeed did not accompany him at the time of his visit to the house of the deceased. He did not remember that who had met him and whose statement he had recorded at the house of the deceased.

6. It is pertinent to note that petitioners have miserably failed to produce the original record of the hospital before the trial Court to prove the photostat copies of certain documents attached with the investigation report. The scribe of the said documents is also not examined by the petitioners. Dr. Muhammad Hanif and Abdul Majeed brother of the deceased who allegedly made statements before the Investigating Officer with regard to the alleged disease of the deceased are not produced in the witness box by the petitioners. Needless to say that copies of the documents other than the judicial record could not be received in evidence without proof of signature and handwriting of person alleged to have signed or written them as required Article 78 of Qanun-e-Shahadat Order, 1984 therefore investigation report (Exh.P-10) made by Babu Khan (P.W.1) cannot be termed as a valid, reliable or conclusive proof of the alleged fact that Muhammad Munir Ahmad was suffering from blood cancer or liver disease at the time of purchase of insurance policy worth Rs.75,000.

7. At this juncture it may be expedient to reproduce the provisions of section 45 of the Insurance Act, 1938 which reads below:-- "

45. Policy not to be called in question on ground of misstatement after two years.

No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. Provided that nothing in this section shall prevent the insurer from allying for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal."

8. Bare reading of provisions of section 45 (supra) makes it crystal clear that petitioners are debarred from making the investigation after expiry of two years from the date on which it was effected on the ground of misstatement of health unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.

9. In this case Insurance Policy No.503063680 was effected on 13-4-1981. Muhammad Munir Ahmad policy-holder died on 3-7-1984. Payment of death claim of Rs.75,000 was made by Cheque No.211762 on 2-8-1984 to the respondent. Investigations were made and the report was submitted on 21-4-1985 i.e. after about four years of issuance of the policy and beyond the stipulated period of two years. Ocular and documentary evidence produced by the parties on the record makes it crystal clear that petitioners have miserably failed to establish any false or fraudulent statement on the part of Muhammad Munir Ahmad deceased policy-holder at the time of purchase of the insurance policy worth Rs.75,000 therefore petitioners were not competent to claim refund of the same after its payment. Learned trial Court fell in grave error while decreeing the petitioners' suit for recovery of Rs.75,

000. Learned first appellate court vide judgment and decree dated 15-3-2002 while scrutinizing the parties' ocular and documentary evidence in salutary manner has rightly accepted the appeal setting aside the judgment and decree passed by the learned trial Court and dismissed the petitioners' suit in accordance with law.

10. There is yet another dimension of this case. It is on the record that during the pendency of the civil revision Maqsoodan Bibi respondent died on 28-5-2005. This revision petition therefore stands abated for the simple reason that legal representatives of deceased are not liable to any financial liability of their predecessor Maqsoodan Bibi respondent. Provisions of Order XXII, Rule 4 of the Code of Civil Procedure, 1908 are not applicable to the revision petitions rather the same are applicable to the suits and appeals only. Reliance is made upon: Dr. Syed Ali Sajjad Bukhari and 6 others v. Sabir Ali Shah and 4 others (1987 CLC 229 Peshawar), Pordil and others v. Barkat and others (PLD 1953 Peshawar 14). It is also pertinent to mention here that legal representatives of the deceased have no personal obligations towards the petitioners. At the most they could be liable to the extent of the estate which was devolved upon them as a result of death of Maqsoodan Bibi. There is nothing on the record from the petitioners' side to show that any estate of Maqsoodan Bibi respondent was devolved upon her legal heirs therefore this revision petitioner cannot proceed against her legal representatives. Reliance is made upon: Agricultural Development Bank of Pakistan v. Sana Ullah Khan and others (PLD 1988 SC 67).

11. For the above reasons this Civil Revision having no merit and being not proceedable stands abated and is disposed of accordingly. AG/S-67/L Order accordingly.