2011 CLD 860 (PLP)

MIAN SAQIB NISAR, J.

Mst. Naseem Akhtar Chaudhri, wife of the respondent (Javaid Iqbal), obtained two life insurance policies from the petitioners i.e. dated 22-7-1998 and 1-8-2002 for an amount of Rs.1,25,000 and Rs.2,25,000 respectively. She demised on 3-4-2005. The respondent being the legal heir of the lady and also the nominee of the insurance policies, filed a suit for recovery of the insured amount, along with the liquidated damages as permissible under the provisions of section 118 of the Insurance Ordinance, 2000. The suit was contested by the petitioner and after framing of the issues and recording of the evidence, it has been allowed vide judgment and decree dated 18-11-2008 by the Insurance Tribunal; the appeal of the petitioners before the Lahore High Court has failed. There is concurrent finding of fact, recorded by the two courts below, that the insurance policies were validly procured by the lady and on account of her death the nominee/beneficiary thereof is entitled to recover the insured amount; that the policies did not lapse, rather had revived on account of the premium paid by the insured and received by the Insurance Company.

2. Learned counsel for the petitioners contends that both the courts have misread the evidence on the record. In this context, he states that the insurance contract is founded upon principle of Uberrima fides i.e. the utmost good faith; the lady was seriously indisposed when she obtained and subsequently got revived the policies, but this fact was concealed/suppressed tantamounting to fraud and is in breach of the above rule therefore, the policies stand vitiated. It is also argued that during the course of trial, the petitioners moved an application for seeking the examination of the doctor, who had issued the certificate contemplating that the lady was indisposed for the last six years before her death, but the request was illegally turned down. Lastly, he submitted that no case was made out for the liquidated damages within the mischief of the aforesaid section, which has been erroneously and extraneously awarded by the courts below.

3. Heard. We are not convinced that in the instant case there is any proof on the record produced by the petitioners that the rule of Uberrima fides (the utmost good faith) has been breached or is attracted. No concealment/suppression of facts about the health of the lady has been so established; the only witness, appearing for the petitioner in the matter, has not made a testimony in the above context. As regards the production of the doctor as a witness through additional evidence is concerned, suffice it to say that his name did not appear in the list of witnesses; through him the petitioner wanted to prove the same certificate, but such document has neither been filed along with the written statement in terms of Order XIII, Rule 1, C.P.C. as required under the law when it is not shown to be not in possession and power of the petitioner at the time the written statement was filed, nor had relied upon as per Order VII, Rule 14, C.P.C., therefore, until a case establishing a sufficient cause for non-filing and non-reliance was made out, the lapse and lacuna could not be filled up vide the additional evidence by simply asking for the examination of the doctor as a witness, therefore, the application had been rightly dismissed by the learned Insurance Tribunal. We are not convinced that, such document, which has not been produced and proved in evidence but only "marked", I can be taken into account by the Courts as a legal evidence of a fact. As regards the question for the grant of liquidated damages is concerned, we are of the considered view that, after the death of the assured, the petitioner (company) was obliged to pay the amount covered by the policies, which was withheld without any reasonable excuse and cause. In the circumstance, the case of the respondent was duly covered by the aforesaid provisions of law and the liquidated damages have therefore, been rightly granted.

4. In the light of what has been stated above, no case is made out for interference. This petition has no merits and is, hereby, dismissed. Leave to appeal declined. S.A.K./S-14/SC Leave refused.