2017 PLP 1575 (CLD)

MUHAMMAD ALI, J.

Through this writ petition the petitioner has challenged the order dated 03.12.2016 passed by the learned Additional District Judge, Gujranwala and the order dated 12.04.2016 passed by the learned Civil Judge, Gujranwala, whereby appeal filed by the petitioner was dismissed which was filed against the decision of trial Court dismissing application for rejection of plaint, in a suit filed by respondent No. 2.

2. Brief facts of the case are that respondent No.2 obtained a Life Insurance Policy No.511526/201-ACS from the petitioner on 01.05.2013. The policy was cancelled on 28.7.2014 by the company. The cancellation of Insurance Policy was challenged by respondent No.2-plaintiff (hereinafter referred as the "respondent") by filing a civil suit before Senior Civil Judge, Gujranwala. The petitioner-defendant filed an application under Order VII, Rule 11, Code of Civil Procedure, 1908 ("C.P.C.") for rejection of plaint on the ground that civil Court has no jurisdiction in the matter and it is only the Insurance Tribunal constituted under the Insurance Ordinance, 2000 (hereinafter referred as the "Ordinance of 2000") that could adjudicate the matter. The application was dismissed vide order dated 12.4.2016. The petitioner assailed the order by filing civil revision which was dismissed from the Court of Additional District Judge on 3.12.2016.

3. Learned counsel for the petitioner contends that both the Courts have misapplied section 122 of the "Ordinance of 2000", The cancellation of policy by the Insurance Company does not deprive the Insurance Tribunal from its statutory jurisdiction. The provision of section 122(3) of the "Ordinance of 2000" is mandatory, it bars the jurisdiction of any other forum.

4. Learned counsel for the respondent on the other hand has supported the findings of lower Courts and submits that since the respondent is no more a policy holder, therefore, jurisdiction of Insurance Tribunal could not be invoked and matter has to be decided by the civil Court.

5. Arguments heard. Record perused.

6. The prayer made in the suit filed by the respondent is very important. The respondent is seeking a declaration that his Insurance Policy is still intact and that the petitioner be directed to pay the proceeds under the terms of Insurance Policy. The ultimate relief sought in the suit is payment under the insurance policy. The Courts in this perspective have not examined section 122 of the "Ordinance of 2000". The term 'Policy-Holder' as defined in section 122 as well as in section 2(xlvi) does not exclude a person whose policy has been cancelled by the Insurance Company. The cancellation of policy does not destitute the Insurance Tribunal from its statutory jurisdiction. The relevant provisions reads as under: Section 2(xlvi) "policy holder" means the person to whom a policy is issued or, in the case of a policy of life insurance, the person to whom the whole of the interest of the policy holder in the policy is assigned once and for all, but does not include an assignee thereof whose interest in the policy is defensible or is for the time being subject to any condition; Section 122 Powers of Tribunal.- (1) A Tribunal shall: (a) in the 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) ............... (c) ............... (d) ............... (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, including a decision as to the territorial limits and the execution of a decree, order or judgment passed by a Tribunal: Provided that for the purposes of this section a Small Claims Settlement Committee established under section 117 shall not be deemed to be a Court. (Emphasis supplied)

7. The Insurance Tribunal alone has the power to determine the maintainability of the claims brought before the Tribunal. The definition of 'policy holder' clearly stipulates that a policy holder is a person who has been issued a policy regardless of the fact that policy has been cancelled or subsists. Even if policy is cancelled, it does not debar the policy holder to approach the Tribunal to have such cancellation declared null and void. The Civil Court after creation of Insurance Tribunals has no jurisdiction to adjudicate matters regarding insurance policy. Section 122(3) of the Ordinance expressly bars the jurisdiction of civil Court regarding any claim of an insurance policy, including the question, whether the claimant is a policy-holder or not.

8. The Courts below have ignored the fact that in a suit filed by the respondent, a direction is sought against the petitioner to proceeds under the terms of Insurance Policy, the prayer made in the suit clearly falls in the exclusive jurisdiction of the Insurance Tribunal. Section 122(a) confers upon the Insurance Tribunal the power to entertain two kinds of cases (i) claims filed by the policy holder against insurance company arising out of the insurance policy and (ii) claims filed by the policy holder in respect of the insurance policy. The Courts while dismissing the matter have ignored this aspect of the case and wrongly assumed jurisdiction.

9. The reference regarding ouster of jurisdiction of civil Court regarding insurance claims could be made to the cases of Abdul Qayoom v. State Life Insurance Corporation through Chairman and 3 others (2011 CLD 1157), Messrs East-West Insurance Company Ltd. through Chairman and another v. Messrs Muhammad Shafi and Company through Managing Partner and 2 others (2009 CLD 960) and Haji Muhammad Hanif v. State Life Insurance Corporation of Pakistan through Chairman (2007 CLD 490). In the above state of affairs, the impugned orders are found to be unlawful, the Civil Court committed illegality to assume jurisdiction in a matter which was specifically barred. The order passed by Revisional Court is passed in violation of law and needs interference of this Court in exercise of constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Reference in this behalf could be made to the case of Muhammad Anwar v. Ilyas Begum and others (PLD 2013 SC 255). For the reason stated above, this writ petition is allowed and the order dated 03.012.2016 passed by the learned Additional District Judge, Gujranwala and the order dated 12.04.2016 passed by the learned Civil Judge, Gujranwala, respectively, are declared as illegal and are set aside. The plaint in a suit filed by the respondent is ordered to be returned, so that it could be presented to a competent forum. KMZ/E-2/L Petition allowed.