STATE LIFE INSURANCE CORPORATION OF PAKISTAN Versus Mst. RIFFAT ASGHAR
ORDER
JUSTICE (RETD.) MUHAMMAD KHALID ALVI, CHAIRPERSON.--- Brief facts of the case are that husband of respondent Muhammad Asghar Akram got himself insured with the petitioner for a sum of Rs.01-Million on 29.06.1995, unfortunately respondent's husband died on 10.01.1998. Respondent filed claim for the recovery of insurance amount, which was refused by the petitioners. Whereupon respondent filed a complaint before the Federal Ombudsman which was allowed vide order dated 06.08.2002. Petitioner filed a representation before the President of Pakistan which was accepted vide order dated 27.03.2003. Respondent challenged this order through a writ petition before the Hon'ble High Court which was accepted vide order dated 30.5.2013, this order was assailed by the petitioners before the Hon'ble Supreme Court from where the case was remanded back to Hon'ble High Court for decision afresh. In the meanwhile, Insurance Tribunals were constituted, therefore, respondent filed a petition before the Insurance Tribunal for the recovery of insurance claim amount. After the trial the learned Tribunal dismissed the application vide order dated 29.11.2007. Respondent filed R.F.A. No. 443/07 which was accepted by the Hon'ble High Court vide order dated 07.07.2010 and claim amount of the respondent was decreed (2010 CLD 1123). In execution respondent received a cheque of Rs. 47,35,236/- on 30.07.2010.
2. After laps of more than 03-years petitioner filed an application under section 144 of C.P.C. for the restitution of the claim amount paid to the respondent in the execution before Tribunal on the basis of a judgment passed by Hon'ble full bench of Lahore High Court reported as 2013 CLD 477. Learned Insurance Tribunal vide order dated 12.08.2017 dismissed this application. This order was challenged by the petitioners before the Hon'ble High Court through Insurance Appeal No. 67395 of 2017. This appeal was allowed and the case was remanded to the Tribunal for decision afresh.
3. Learned counsel for the petitioner with reference to the case Mst. Robina Bibi v. State Life Insurance reported as 2013 CLD 477 contends that all the judgments passed by the division benches of Hon'ble High Court were declared to be per-incuriam in which the insurance policies were issued prior to the promulgation of Insurance Ordinance, which was promulgated on 19.08.2000. Since policy in this case was issued on 29.06.1995, therefore, this judgment is applicable and thus the judgment passed by the division bench of Hon'ble High Court in R.F.A. No. 443/07 is also per-incuriam. It is further submitted that appeal filed by the petitioner against the order of the High Court before the Hon'ble Supreme Court was also allowed in Civil Appeal No.817/10 vide order dated 04.02.2014 and the judgment of Hon'ble High Court in this case was set aside. On the basis of above submission it is prayed that the claim amount received by the respondent is liable to be refunded to the petitioner.
4. On the other hand learned counsel for the respondent contends that order of the Hon'ble Supreme Court dated 04.02.2014 was a consolidated order in a number of cases of identical nature in which the Hon'ble Supreme Court relying on Mst. Robina Bibi's case (supra) passed the said order. It is further submitted that merits of the cases were not considered by the Hon'ble Supreme Court.
5. It is further argued that there is no denying the fact that husband of respondent got himself insured with the petitioners in the year 1995 and unfortunately passed away in the year 1998. She is leading a widow life for the last 25-years and a lady in advanced age. She had already consumed the claim amount for her day to day life. It is also argued that she had been pursuing her right over a period of decades before the different judicial forums. Division bench of Hon'ble High Court having examined the merits of the case allowed her the insurance claim. It is further submitted that at the time when order of the Hon bie High Court was passed in this case on 07.07.2010, Mst. Robina Bibi's case was not in the field, which was decided on 15.02.2013.
6. In support of his contentions learned counsel for the respondent has relied on the judgment reported as PLD 2013 Supreme Court 829.
7. In this judgment five Hon'ble Judges of the Supreme Court held that the judgment passed by the Hon'ble Supreme Court reported as PLD 2008 Supreme Court 522 Account General Sindh v. Ahmed Ali U Qureshi is per-incuriam. This was a three member bench which had held that retired Hon'ble Judges of High Court are entitled to pension, irrespective of their length of service. So far as question of refund of the amount received by the learned retired Hon'ble Judges came up for consideration, two members were of the view that the same should be returned, while three members held that the judgment canot be given retrospective effect and the amount received by retired Hon'ble Judges cannot be recovered.
8. Learned counsel for the respondent has also referred to a case reported as 2021 CLD 686 by division bench of Lahore High Court. The relevant portion is reproduced:-
However, we are not inclined to direct the respondent to return the amount she had already drawn and consumed to meet with her everyday problems of living and now she being widow is not in a position to return the same, whatever she had drawn from the appellants either during the pendency of the execution proceedings or during pendency of this appeal before this Court, same shall not be recovered from her nevertheless the amount which is deposited by the present appellants in pursuance of order of this Court pending with the Deputy Registrar (Judl.) of this Court, shall be returned to the appellants.
9. We have considered the contentions raised by the learned counsel for the parties.
10. Judgment reported as PLD 2013 Supreme Court 829 is fully applicable to the instant case. Judgment of the Hon'ble Supreme Court in question PLD 2008 SC 522 was unanimously held by the five member bench as per-incuriam. So far as question of refund of amounts already received by the Hon'ble retired judges on the basis of earlier judgment of three member bench of Supreme Court came for consideration, which was decided by a majority of 3 to 2 that the amount should not be recovered from the Hon'ble retired Judges.
11. In the present case also the judgment passed by the Hon'ble High Court in favour of the respondent was no doubt declared to be per-incurimn but respondent had already received the claim amount much before the Mst. Robina Bibi's case. The other judgments cited by the learned counsel for the respondent is also a case arising out of insurance claim and Hon'ble division bench held that amount already received by the widow should not be recovered from her as is evident from the paragraph reproduced above.
12. In the light of above discussion it is evident that respondent's husband was insured by the petitioner. Respondent as nominee was entitled to his death claim for which she suffered riggers of litigation over decades. Merits of her case were also held to be in her favour by the Hon'ble High Court. It was only a technical question which resulted for the said judgment to be per-incuriam. No mala fide or fraud can be attributed to the respondent.
13. For what has been stated above we find no merit in this petition, the same is accordingly dismissed. File be consigned to record room after its due completion.
MQ/11/IT-Lah. Appeal dismissed.