CONTROLLER OF INSURANCE Versus S.M. ALAM KAZMI

This appeal is directed against the judgment, dated 23‑9‑1986 passed by the learned Appellate Insurance Tribunal, Karachi in Appeal No. 4 of 1986 allowing the same and directing the present appellant/ respondent in the application to renew the Certificate of the respondent as an Insurance Surveyor. The appellant being aggrieved by the above order has filed the above certificated appeal in terms of section 110(12) of the Insurance Act, 1938 (hereinafter referred to as the Act).

2. The brief facts leading to the filing of the above appeal are that the respondent had applied for Surveyor licence for fire, marine and motor insurance for the year 1973. He was granted licence in respect of motor surveyor but was declined his request in respect of other two items. However, in 1974 he was granted a composite surveyor licence of fire, marine and‑ motor. It seems that in terms of subsection (6) of section 44‑A of the Act read with Rule 26, the licence was renewed upon the respondent's application from year to year. However, his request for the renewal contained in his application, dated 11‑11‑1985 for the year 1986‑87 was denied as he was directed to appear before the authorised representative of the appellant for satisfying that he fulfilled the conditions for renewal. It seems that the respondent was asked to appear in written examination on the basis of the result of the examination, his request was turned down by order, dated 15‑5‑1985. Against the above order he filed the aforesaid appeal under section 110(12) before the learned Appellate Insurance Tribunal which was allowed in the above terms. The appellant being aggrieved by the above order has filed the present appeal.

3. In support of the above appeal Mr. Ikram Ahmed Ansari, learned counsel for the appellant has urged that the learned Appellate Insurance Tribunal has overlooked the provision of subsection (6) of section 44‑A of the Act and solely relied upon rule 26 which could not have modified the provisions of the Act. It has been further submitted that in view of the above provision of the Act the appellant was entitled to ask the respondent to appear before his authorised representative and to turn down the respondent's request on the assessment of the above authorised representative.

4. On the other hand, Mr. Riazul Hasan, learned counsel for the respondent has submitted that the provisions of subsection (4) of section 44‑A are intended for the purpose of grant of fresh surveyor licence and not for renewal. It has been further submitted that in any case under subsection (4) of section 44‑A of the Act the appellant had no power to authorise a representative to take written examination.

5. Adverting to the first submission of the learned counsel for the parties, it may be pertinent to reproduce subsections (4) and (6) of section 44‑A which read as follows:‑

"(4) The Controller of Insurance or any person authorised by him in this behalf may on receipt of an application under this section, call for such information or explanation as he may deem fit, or ask the applicant to appear before him in person, and on being satisfied that the applicant. fulfils requirements as may be prescribed and is fit to hold the Certificate applied for, grant such Certificate."

(6) A Certificate issued under this section shall remain in force for a period of one year only from the date of issue, but shall on application made in this behalf, be renewed from year to year, if : ‑

(i) an application in the prescribed form for renewal of the Certificate reaches the issuing authority before the Certificate ceased to remain in force;

(ii) the applicant has paid the prescribed fee which shall not be more than fifty rupees;

(iii) the applicant fulfils the requirements prescribed under subsection (1); and ,

(iv) in the case of an individual, the applicant or, in the case of a company or firm, any of its directors or partners, does not suffer from any of the disqualifications mentioned in clause (b), (c) or (d) of subsection (4) of section 42:

Provided that an application for renewal of the Certificate which does not reach the issuing authority before the Certificate ceases to remain in force shall be entertained if the applicant has submitted an application within twelve months from the date the Certificate ceased to remain in force and has paid an additional fee of the prescribed amount not exceeding fifteen rupees by way of penalty."

6. A perusal of the above‑quoted subsections indicates that under subsection (4) the Controller of Insurance or any person authorized by him in this behalf upon receipt of an application for issuance of a Surveyor Certificate can call the applicant for such information or explanation as he may deem fit or ask the applicant to appear before him in person and upon being satisfied to issue the requisite certificate. It may, however, be noticed that under subsection (6) renewal of licence after the expiry of one year can be obtained from year to year in terms of sub‑clauses (i) to (iv) of the above subsection (6) which, inter alia, includes the fulfilment of the requirement prescribed under subsection (4) reproduced hereinabove. It is, therefore, evident that even at the stage of renewal the above subsection (4) can be pressed into service.

7. Adverting to the above second submission of the learned counsel for the parties, it may be pointed out that there is no provision under subsection (4) of section 44‑A for holding any written test. According to the learned counsel for the respondent factually written test was held inasmuch as the question papers were given, whereas according to the learned counsel for the appellant no written test was held, only certain questions were asked from the respondent by the appellant's representative and replies thereto were noted down by the representative in his hand. The above factual position is controverted by Mr. Riazul Hasan and he has referred to Annexure 'L‑1' of the original Court record at pages 83 to 99 which comprised a question paper and the answers of the above question paper. The above answers have been examined by the appellant's representative. It seems that at page 99 he has given 211 marks for the written test and 14 marks for viva and on the basis of the same he has held not fit. The learned Appellate Insurance Tribunal though has not considered the provisions of subsection (6) of section 44‑A of the Act but in my view, has rightly concluded that after the expiry of nearly 16 years from the date of the issuance of the certificate the refusal to renew the applicant's licence was not justified. The written examination is not provided for either under subsection (4) of section 44‑A or in any rules framed thereunder and, therefore, on the basis of which the renewal was refused was not warranted by law.

8. I would, therefore, maintain the order of the Appellate Insurance Tribunal and would dismiss the above appeal. However, there will be no order as to costs.

H . B. T. /C‑52/‑K Appeal dismissed.