2013 PLP 1313 (CLD)

MUSHIR ALAM, C.J.

This is an appeal arises out of an order passed by Vth Additional District and Sessions Judge (East) Karachi dated 31-8-2008, whereby dismissed the revision directed against the order dated 15-8-2008 passed by the learned IX Senior Civil Judge (East) Karachi on an application under Order VII, Rule 11, C.P.C. filed in Suit No.1336 of 2006 treating it as an application under Order VII, Rule 10, C.P.C. has been pleased to return the plaint to the present appellant/plaintiff for want of jurisdiction and for presentation of the same before the Insurance Tribunal.

2. Briefly stating the facts appear to be that the appellant Messrs EFU General Insurance Limited filed a suit for recovery of the unpaid premium against the respondent, Duty Free Shops, detail of the same are available at pages 37 to 53 of the file.

3. Learned trial Court relying on section 122(1)(a) and Sub-Clause (3) of section 122 of the Insurance Ordinance 2000 considered it expedient to return the plaint to be filed before the Insurance Tribunal constituted through a Notification dated 20-6-2006, available at page 77 of the file.

4. Learned counsel for the appellant has raised three-fold arguments; firstly that suit filed is protected under a saving clause contained in section 170(4) of Insurance Ordinance 2000, which reads as follows:-- "170(4)

Until the establishment of a Tribunal or Tribunals under this Ordinance, sections 47C to 47L both inclusive and section 110 of the repealed Act shall continue to have effect in relation to the cases already filed or pending before the Claims Settlement Board or Insurance Appellate Tribunal and shall be determined and decided in accordance with the law in force immediately before the commencement date."

5. According to him, since the case was instituted prior to the issuance of the Notification establishing Insurance Tribunal, therefore, the proceedings are saved and should have been continued, secondly; the Jurisdiction of the Insurance Tribunal constituted under section 122 of the Insurance Act 2000 could only be invoked by the policy holders against the Insurance Company and not vice versa and; thirdly, in terms of Clause 21 of the Insurance Policy, which inter alia provides; "This insurance is subject to the laws of the Islamic Republic of Pakistan and the exclusive jurisdiction of the Courts in Karachi." It was urged that where more than one Court have the jurisdiction any contract by and between the parties electing one of the Court to be competent for determination of their disputes is not opposed to public policy in terms of section 28 of the Contract Act. To support such view reliance was placed on 1987 SCMR 393, State Life Insurance Corporation v. Rana Muhammad Saleem (1997 CLC 1441) and Messrs EFU General Insurance Limited v. Fahim-ul-Haq (2001 Pakistan Supreme Court Cases page 233).

6. I have heard the arguments and perused the record.

7. The respondents were served through publication in "The News" Lahore on 11-4-2011, service was held 'Good' on 21-4-2011. Case was called, none is in attendance. It is noted that before the Court below also the respondent/defendant filed the written reply and thereafter failed to follow up proceedings. The Court heard the petitioner and held that it is Insurance Tribunal which has the jurisdiction in the matter and not the Civil Court. The plaint was ordered to be returned under Order VII, Rule 10, C.P.C.

8. I would attend to first contention that the suit is saved under section 170 of the Insurance Ordinance 2000, to appreciate the contention it would be beneficial to reproduce the subsection (4) of section 170 of Insurance Ordinance 2000 which runs as follows:-- "170(4)

Until the establishment of a Tribunal or Tribunals under this Ordinance, sections 47C to 47L both inclusive and section 110 of the repealed Act shall continue to have effect in relation to the cases already filed or pending before the Claims Settlement Board or Insurance Appellate Tribunal and shall be determined and decided in accordance with the law in force immediately before the commencement date."

9. On perusal of above, it is clear that indeed cases already filed or pending before the establishment of a Claim Settlement Board or Insurance Appellate Tribunal are saved and be continued. In order to ascertain whether subject suit filed is saved under section 170(4) of the Insurance Ordinance 2000 or otherwise, presentation date is relevant.

10. From the record it appears that plaint in suit was sworn on 19-10-2006 as reflected from page 33 of the file. Thus it could safely be said that subject suit was filed after establishment of the Insurance Tribunal therefore saving clause will not come to rescue of the petitioner, but this issue will not determine whether the Insurance Tribunal has the jurisdiction in the subject suit.

11. Coming to the third contention of the learned counsel that in terms of clause 21 of the Insurance Policy as reproduced above, where two or more Courts have jurisdiction then a contract between the parties electing one of the Court is not opposed to the public policy. There may be no cavil to the proposition expounded and it is so held by the apex Court in the case of "State Life Corporation" reported as 1987 SCMR 393 at age 395 in the following terms:-- "But in a situation where two or more Courts have jurisdiction to try a suit under the Code of Civil Procedure, then an agreement between the parties that any dispute arising between them shall be tried only by one of such Courts could not be considered contrary to public policy as it would neither contravene the provisions laid down in section 28 of the Contract Act nor would it violate in any manner the provisions of section 9 or section 20 of the Code of Civil Procedure."

12. Similar is the view in the other cases referred by the learned counsel. It may be observed that the proposition as recorded above holds good in cases where two Courts having concurrent jurisdiction on the subject matter of controversy and parties by agreement may agree to invoke jurisdiction of one of such Courts in case of a dispute. Such proposition is not attracted where the jurisdiction is conferred exclusively with Special Court or Tribunal created under the special enactment. In the instant case Insurance Tribunal has been established by virtue of section 22 of the Insurance Ordinance 2000. No doubt the Insurance Tribunal would become operational, and assume jurisdiction the moment it is created or established in terms of subsection (4) of section 170 of the Ordinance, 2000 as reproduced above. Insurance Tribunal was established through a Notification dated 20-6-2006. The moment Insurance Tribunal is established under subsection (1) of section 122 ibid, it is vested with jurisdiction in respect of all matters covered under the Insurance Ordinance and under subsection (3) of section 122 ibid, the Civil Court ceased to have jurisdiction to try such cases.

13. The jurisdiction of the Insurance Tribunal is attracted in respect of matter enumerated under section 122(1)(a) and subsection (3) of section 122 of the Ordinance 2000, which reads as follows:-- 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); (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:"

14. On reading subsection (1) referred to above, it is manifest that civil jurisdiction of a Tribunal would extend "in respect of a claim filed by a policy holder against Insurance Company in respect of, or arising out of a policy of insurance". Under Article 175(2) of the Constitution of Pakistan 1973 no Court shall have jurisdiction unless conferred on it by the Constitution or by or under any law. It is settled proposition that parties could neither take away nor confer any jurisdiction even by consent and/or by agreement.

15. Insurance Tribunal in terms of section 122(1)(a) of the Insurance Ordinance 2000 as reproduced in para-12 above, has been created to adjudicate upon claim as may be invoked by the policy holder against an insurance company in respect of or arising out of policy of insurance including a decision as to the territorial limit and the execution of a decree, order or judgment passed by a Tribunal. Admittedly the controversy has been raised by EFU General Insurance Limited, against the policy holder, section 122(1)(a) ibid does not permits Insurance Company to invoke the jurisdiction of Insurance Tribunal in respect of matters arising out of insurance policies.

16. Observation of trial Court that "according to the Notification referred to above the insurance matters are exclusively triable by Insurance Tribunal and District and Sessions Judge Karachi (Central) has been conferred power to try these type of cases for whole Province of Sindh, therefore, as per Notification this Court has no jurisdiction to deal with the cases instituted after issuance of this Notification". Consequently "plaint was returned under Order VII, Rule 10, C.P.C. to re-present the same before the Court having jurisdiction", which order was maintained by the Revisional Court.

17. It may be observed that both the trial Court as well as Revisional Court fell into error, while arriving at such conclusion. Both the Courts below failed to take note of the fact that jurisdiction of Insurance Tribunal in terms of section 122(1)(a) of the Ordinance 2000 could only be invoked by the "Policy Holder" and not by the Insurance Company. Present suit was filed by the EFU Insurance Limited against its policy holders, therefore, the law as it stands today remedy to an Insurance Company against a Policy Holder could only be availed of by filing suit before a Civil Court in terms of section 9, C.P.C.

18. Accordingly the impugned order dated 15-9-2008 passed by learned IXth Senior Civil Judge (East) and order dated 31-8-2010 passed by the V Additional District and Sessions Judge (East) Karachi are set aside. Suit No.1336 of 2006 is remanded back to the learned IXth Senior Civil Judge (East) to decide the same on merits. Since the matter pertains to year 2006 it is expected that learned Court below will take all the measures to decide controversy at earliest. Appeal stands allowed. KMZ/E-5/K Appeal allowed.