NASREEN BEGUM vs STATE LIFE INSURANCE CORPORATION OF PAKISTAN

ORDER

' The claim for the recovery of insurance money along with liquidated damages filed by the appellant before the learned Insurance Tribunal was dismissed on the ground that the application was filed beyond the period of limitation of three years provided in the Insurance Ordinance, 2000.

It is explained by the learned counsel for the appellant that in the first instance relief had been sought by the appellant from the Federal Ombudsnian because the Insurance Tribunal had not been constituted until the notification thereof on 20-6-2006. Thereafter, once the Tribunal stood constituted the appellant approached the learned Tribunal for relief.

2. The only question arising for our determination is whether the time elapsed from the date of the appellant's cause of action in 2000 until the date she approached the learned Insurance Tribunal in 2006 is to be counted against her for the purpose of calculating limitation. On this question the learned counsel has placed on record a copy of the judgment of this Court in State Life Insurance Corporation v. Nasim Begum R.F.A. No,104 of 2008 dated 21-5-2009, wherein on similar facts a claimant had approached the Wafaqi Mothasib and thereafter upon the constitution of the Insurance Tribunal in the year, 2006 had immediately filed a claim before the Tribunal. The facts of the present case are identical in that respect. On that question the learned Division Bench has observed to the following effect:-- "In an identical situation, a Division Bench of this Court has held that an application filed upon the constitution of the Tribunal would not be barred by limitation where the applicant had been agitating the matter before the Wafaqi Mohteshib. Such is the dictum laid down in the case reported as State Life Insurance Corporation v. Mst. Sadaqat Bano "2008 CLD 1069". In view of the above, the contention of the 'learned counsel for the appellants is without any force."

2A. The objection by the learned counsel for the respondents that the insurer died on 6-2-2000 prior to the enforcement of the Insurance Ordinance, 2000 whereas the Tribunal was constituted in 2006 does not take account of the fact that the statutory remedy created by the Ordinance in year 2000 was not made available until the constitution of the Tribunal in 2006. During this period the appellant did not have available to him the special remedy provided by law. Accordingly, following the t tile laid down in the afore noted judgment limitation for the purpose of invoking the statutory remedy before the learned Tribunal commences to run from the date of constitution of the Tribunal.

3. The foregoing point also forms the basis of the impugned judgment given by the learned Insurance Tribunal in the two connected cases namely, R.F.As. Nos.54 and 70 of 2008. In R.F.A. No,71 of 2008, however; an additional point has also been noted by the learned Tribunal to decline relief.

It is observed therein that the appellant had filed a writ petition against the order of the President dated 9-2-2002 passed in his capacity as the Appellate Authority over the Federal Ombudsman.

This order directed the appellant to approach a Court of law for obtaining relief in respect of his insurance claim. The appellant had filed Writ Petition No,7807 of 2002 `against the said order. On 9- 5-2002 the writ petition was dismissed in limine on merits. The learned Tribunal has in its impugned judgment treated that order dated 9-5-2002 passed in the writ petition to constitute res judicata upon the appellants insurance claim before the learned Tribunal. A perusal of the judgment of the learned single Judge shows that the appellant's challenge to the President's order directing him to approach a Court of law for determination of his insurance claim has been rejected. The claim of the appellant on its merits has not been touched by the said order. Consequently, the essential ingredients of issue estoppel or for that matter of res judicata do not arise in the present case.

4. The learned counsel for the respondent is not in a position to controvert the foregoing view about the order dated 9-5-2002 passed by the learned single Judge. Accordingly, on that ground as well the learned Insurance Tribunal has erred in finding against the appellant.

5.The upshot of the foregoing discussion is that these appeals are allowed. The matters are remanded to the learned Insurance Tribunal for consideration of the respective appellant's claim on their merits as disclosed by the record of their cases. The objection based on limitation and res judicata are reversed, consequently, the appellant's cram is deemed to be pending before the learned Insurance Tribunal to be disposed of the same in accordance with law and on merits within three months from the date of receipt of a certified copy of this order. Appeals allowed.