2010 PLP 798 (CLD)

ATTAULLAH KHAN, J.

Chairman, State Life Insurance Corporation of Pakistan and seven others under his subordination, petitioners herein, have filed the instant revision petition under section 115, C.P.C. against the judgment and decree dated 7-7-2004 passed by the learned Additional District Judge-I Bannu, whereby their appeal against the judgment and decree dated 11-7-2003 passed by the Civil Judge-III Bannu was dismissed.

2. Facts of the case are that Umer Zad Shah plaintiff filed a suit for specific performance of contract dated 30-7-1998 in respect of Insurance Policy which he along with his business partner, namely, Nezam Khan had taken from the petitioners on the grounds detailed in the plaint. The defendants/petitioners contested the suit by filing written statement and the divergent pleadings of the parties gave birth to the framing of eleven issues. The learned trial Judge after recording evidence pro and contra and hearing arguments decreed the suit of the plaintiff/respondent whereagainst appeal of the defendants/ petitioners was dismissed as mentioned above, hence this revision petition.

3. I have perused the written arguments filed by the parties.

4. The contentions raised by the petitioners are that the civil court has no jurisdiction to entertain and decide the suit because under sections 122 and 123 of the Insurance Ordinance, 2000, only the Tribunal has got the exclusive jurisdiction; that the legal heirs of the deceased partners Nezam Khan have not been impleaded and that the evidence of the Claim Manager, Dr. Muhammad Ishaq (D.W.1) has not been appreciated correctly.

5. On the other hand, the written arguments of the plaintiff/respondent discloses that there was no need of impleadment of legal heirs of the deceased Nezam Khan, because the respondent is nominee of the deceased and as the Life Policy was joint one, therefore, the respondent could claim it. Regarding the point of jurisdiction, the stand of the respondent is that at the relevant time, Insurance Tribunal was not constituted and that is why the suit was adjudicated upon by the civil courts.

6. As far as the jurisdiction point is concerned, no doubt under subsection (3) of section 122 of the Insurance Ordinance, 2000, the Tribunal is vested with exclusive jurisdiction to be constituted by the Federal Government under section 121 thereof. The record reveals that at the relevant time, such Tribunal was not constituted by the Federal Government. In the absence of such Tribunal, subsection (3) of section 122 of the Ordinance ibid cannot be pressed into service. In such eventualities, the civil court has jurisdiction to entertain and adjudicate upon the matter in dispute.

7. With regard to the non-impleadment of legal heirs of the deceased Nezam Khan, reference may be made to section 72 of the Insurance Ordinance, 2000, wherein the details regarding nominee are given. According to it, before the policy is matured for payment, the person/persons who are nominated in the policy shall be paid in the events of his death. In the First Policy Schedule, the respondent is mentioned as Nominee which is Exh.P.W.2/

1. The record further reveals that there was partnership deal between Nezam Khan and the respondent and during the course of joint business, they secured a joint Insurance Policy for rupees four lacs from the petitioners and the same was sanctioned on 30-7-1998 after completion of required codal formalities and a sum of Rs.29,068 was deposited and first Premium receipt was also issued. After the sudden death of Nezam Khan partner, the Insurance claim was submitted but after its refusal, the matter was referred to Mohtasib's Aala Office who. accepted it on 10-7-2000.

8. As far as the subsequent inquiry by Doctor Muhammad Ishaq is concerned, the petitioners impugned the said judgment and did not pay the Insurance claim of the respondent. The main reason prevailed with them was that Nezam Khan at the time of obtaining policy was seriously ill and this fact was concealed. They produced. Dr. Muhammad Ishaq as D.W. 1 who had conducted inquiry after receipt of death claim. According to him, during inquiry it transpired that the deceased Nezam Khan was a sick person but his cross-examination is not in line with the case of the petitioners. He has made so many admissions, for example, he admitted that the State Life conduct medical examination for Policy Holders through its own Doctor. This means that the holding of enquiry regarding health of Nezam Khan was complete having been initiated by the petitioners before the issuance of the required policy.

9. As far as the subsequent inquiry by Doctor Ishaq is concerned, it is not believable because he was employee of the petitioner and was interested. Here is no independent evidence in support of the claim that Nezam was seriously ill. This Nezam was declared medically fit by the Doctor of State Life and, thereafter, the policy was issued. No other ground has been proved to justify interference in the impugned concurrent findings of the Courts below.

10. The concurrent findings on facts recorded by the learned two Courts below cannot be set at naught unless it is proved c that the same are either perverse, fanciful or erroneous in view of the dicta handed down in the cases of Abdur Rahim and another v. Mst Janatay Bibi and others 2000 SCMR 146, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293.

11. Consequently I find no substance in this revision petition which is accordingly dismissed with no order as to costs. H.B.T./168/P Petition dismissed.