STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Attorney vs Mst.

' ALI BAQAR NAJAFI, J.---Through this regular first appeal the judgment and decree dated 22-11- 2012 is challenged whereby the claim of the respondent was accepted along with liquidated damages under section 118(2) of the Insurance Ordinance, 2000 at monthly rate of 5% higher than the prevailing base rate.

2. The main argument of the learned counsel for the appellant is regarding maintainability of the application for recovery of the policy proceeds and payment of the liquidated damages under section 118 of the Insurance Ordinance, 2000 on the ground that in the judgment titled Mst. Robina Bibi v. State Life Insurance and others (2013 CLD 477) where in para 21 it has been held that the Insurance Policy issued after the commencement of the Ordinance, 2000 i.e. 19-8-2000 can be entertained by the Insurance Tribunal which judgment has been upheld by' the apex Court on 4- 2=2014, therefore, the insurance policy dated 1-7-2000 was issued prior to the commencement of the said Ordinance, thus should have been decided by the civil court.

3. Conversely, learned counsel for the respondent submits that under section 115 of the Ordinance since the claim has arisen out of the Insurance Policy after the commencement of the Ordinance on 19-8-2000 and upon the death of Muhammad Anwar on 7-6-2003, therefore, the Tribunal has rightly proceeded and passed the impugned judgment.

4. Arguments heard. Record perused.

5. It is appropriate to reproduce 115 of the Ordinance, which reads as under:-- "115. Application of Pakistan Law to policies issued in Pakistan.---The holder of a policy insurance issued by an insurer in respect of insurance business transacted in Pakistan after the commencement of this Ordinance shall have the right, notwithstanding anything to the contrary contained in the policy or in any agreement relating thereto, to receive payment in Pakistan of any sum secured thereby and to sue far any relief in respect of the policy in any Tribunal; and if the suit is brought in Pakistan any question of law arising in connecting with any such policy shall be determined according to the law in force in Pakistan: ' Provided that nothing in this section shall apply to a policy of marine insurance."

' Now it is equally important to reproduce para 21(1) of the judgment reported as Mst. Robina's case (2013 CLD 477):-- "Under section 115 of the Ordinance, only claims arising out of insurance policies issued after the commencement of the Ordinance i.e., on or after 19-8-2000 can be entertained by the Insurance Tribunal."

' The above referred reported judgment of this Court was upheld by the apex Court on 4-2-2014 in Civil Appeals Nos.449-L of 2009, 284 to 286, 283-L, 586-L to 591-L, 609-L to 613-L, 637-L to 640-L and 767-L of 2013, 817 and 818 of 2010, 56-L and 63-L of 2011, 623-L to 628-L, 723-L, 726-L to 731-L, of 2013 and Civil Petition No.1253-L of 2011 and 1516-L to 1521-L, of 2013, reported as 2014 SCM R 655 = 2014 CLD 506, where in paragraph 3 it is observed as follows:- "3. According to the learned counsel, this section despite its clear wording to the contrary, will also extend to the policies issued before the date of commencement of the Ordinance and consequently the Tribunals set up under the said Ordinance will have jurisdiction to adjudicate matters. The contention is not only misconceived but is also frivolous as it flies in the face of the express wording of the provision reproduced above."

6. The overall interpretation of the statutory provisions, the judgment of this Court as well as the apex Court is that section 118 will not extend to the policies issued before the commencement of the Ordinance and, therefore, the Tribunal set up under the Ordinance will not have jurisdiction to adjudicate upon me master. This will leave us with only one option that is to allow this appeal and permit the respondent to go to the civil court under clause (iv) of the reported judgment (supra), which is reproduced as under:-- "(iv) Claims arising out of insurance policies prior to the commencement of the Ordinance may apply to the court of competent jurisdiction under the repealed Act, subject to the provisions of Limitation Act, 1908, which will be considered by the respective court on its merits in accordance with law."

7. For the foregoing reasons, this appeal is allowed with the observation that the respondent may approach the civil court to claim the liquidated relief.