Mian ATTIQUE-UR-REHMAN Versus EFU LIFE ASSURANCE LIMITED
JUSTICE (RETD.) CH. MUHAMMAD TARIQ, (CHAIRMAN).--- Re-facts of the case as mentioned in this petition are that the late Miss Noureen Shehzadi daughter of Mian Hafeez-ur-Rehman, real sister of applicants, purchased Insurance Policy No.763326 on 22.12.2016 from the respondents and paid 1st year premium of Rs.10,00,000/-to the respondents on 16.12.2016. The first premium of above-said policy was paid before the due date. It is worth mentioning here that the applicants are the only legal heirs of deceased sister Miss Noureen Shahzadi and there are no other legal heirs except the applicants. Prior to enter in the insurance agreement the late sister of the applicants fulfilled all the legal as well as other formalities upon the instructions of the respondents and got medically examined by the doctor referred by the respondents who declared the sister of the applicants as healthy, perfect and fit lady and thus the policy documents were signed and payment of first premium was made to the respondents, on demand within the stipulated period as per rules. The sister of the applicants disclosed provided all the facts relating to the age, income, physical, medical and other information to the respondents were correct to the best of her knowledge and belief, in good faith and nothing was concealed. That the sister of the applicants paid up to date premium of the policy to respondents as a law abiding citizen but unfortunately, the sister of the applicant namely, Noureen Shahzadi along with her sister namely Ayesha Bibi were murdered on 12.01.2017 at 04:00 pm at their home by some unknown persons. The applicant No.2 registered an FIR No.87/2017 offence under section 302, P.P.C. at Police Station Baghbanpura, Lahore against the unknown persons. The claim of the petitioners were repudiated by the respondents vide letter dated 15.01.2018 and refused to pay the death claim. The claim of the petitioners may kindly be accepted.
2. The respondent contested the averments made in the petition and contended that (late) Noureen Shehzadi (hereinafter referred to as "Deceased") submitted a proposal form dated 16.12.2016 ("Proposal Form") through bancassurance channel of Untied Bank Limited in order to obtain a life insurance policy from the Respondent Company. It is pertinent to mention here that the Proposal Form provides a series of questions, among the others, in relation to profession/occupation, annual income and present and past enmity (if any) as the same are vital for risk assessment, fixation of premium and sum assured which are underwritten. It is also pertinent to mention that at the time of filling out and signing the Proposal Form. On 21.04.2017, the Respondent Company received a Death Claim Intimation Form dated 20.04.2017 intimating therein that the Deceased had been murdered on 12.01.2017 (within 18 days from commencement of the Policy i.e. 01.01.2017). Since, it was an early death claim, just within 18 days from Policy issuance, the Deceased was murdered, it raised some serious questions on truthfulness of information provided by the Deceased in the Proposal Form regarding her previous and present enmity. Therefore, the Respondent Company in order to process the death claim and as a matter of statutory right to confirm the veracity of information provided by the life assured within two years from policy issuance, started to verify the information provided by the Deceased at the time of obtaining the Policy. While processing the death claim certain crucial documents came on record including the FIR bearing No. 87/17, registered on 12.01.2017 by Mr. Shakeel- Ur- Rehman Applicant No. 2, at Police Station Baghbanpura against unknown person for commission of murder of Noreen Bibi and Ayesha Bibi, under section 302, P.P.C. but later through subsequent application, he implicated his brother Mr. Aqeel Ur Rehman, Applicant No. 3 and two others for committing murder of the Deceased. However, the Investigating Officer arrested the Applicants Nos. 3 and 2 other accused on 14.03.2017, and recovered pistol 30 bore from Applicant No. 3 and sent them Jail with the charge of offence under section 302/34 P.P. C and submitted report under section 173, Cr.P.C for trial of the case accordingly. It is pertinent to mention here that death claim of the Deceased under the Policy was filed through death claim Intimation Form dated 20.04.2017. Before that, the Applicant No. 2, lodged an FIR on 12.01.2017 against Applicant No. 3 on which Session case was registered bearing No. 37/2017 in the Court of Muhammad Irfan Basra, ADDL. Session Judge, Lahore which was pending for final adjudication. Since, the Applicant No. 3 was behind the bar and Applicants Nos. 1 and 2 were under trial in criminal case proceedings of the Deceased therefore, documentary requirements for processing the death claim were pending on the part of the Applicants. The Applicant No. 3 was acquitted by the Court vide order dated 13.10.2017 on the Application for acquittal under section 265-K, Cr.P.C. filed by the Applicant No. 3. However, after acquittal of the Applicant No. 3, the Respondent Company was provided with some documents including written statement of Applicant No. 3 which established that the Deceased provided false information to the Respondent Company at the time of filling out the Proposal Form in order to obtain the Policy. The applicant No.3, further disclosed in his written statement that she had a relation with some person two months before her death, when she came to know that he was already married. After that, he started to blackmail her therefore, she shared the said fact with the Applicants upon which, the Applicants looked for him but did not find.
3. Out of the divergent pleading of the parties, following issues were framed on 13.04.2023:-
1. Whether this Tribunal has no jurisdiction to try this insurance petition? OPR.
2. Whether the petitioner has not approached this Tribunal with clean hands? OPR
3. Whether this petition is misconceived, false, frivolous and vexatious and respondents are entitled to receive special costs under section 35-A of C.P.C.? (OPR).
4. Whether the petitioner is entitled to recover Insurance claim of Rs.5,000,0000? OPP.
5. Whether the petitioner is entitled to recover liquidated damages as prayed for? (OPP)
6. Relief?
4. After framing the issues, both the parties were directed to produce their respective evidence, whereupon, the applicant No.1 appeared as AW-1 and submitted his affidavit Exh.AW-1/1 and also the death certificate of Noreen Shehzadi/policy holder as Exh.AW-1/2.
5. On the direction of this Tribunal, the applicant No.2 Aqeel ur Rehman also appeared as AW-2 and made his statement. He levelled allegations against her deceased sister.
6. In rebuttal Malik Muhammad Rafi, Senior Manager of General Administration Department EFU Insurance Company Lahore appeared as RW-1 and made statement in rebuttal and prayed that the petition is not maintainable it be dismissed. RW-1 also produced the following documentary evidence.
"I produced Affidavit Exh.RW-1/1 as examination in chief. I further produced copy of Board Resolution dated 10.07.2023 Exh.RW-1/2, General power of attorney dated 10.07.2023 Exh.RW-1/3, authority letter dated 30.11.2023 Exh.RW-114, insurance policy No.7633261226-UBR Exh.RW-1/5 (09 pages), proposal form Exh.RW-1/6 (04 pages), copy of FIR dated 20.12.2017 Exh.RW-1/7, death claim intimation form Exh.RW-1/8, certified copy of order of Additional Sessions Judge, Lahore dated 13.10.2017 Exh.RW-1/9 (04 pages) and letter of repudiation dated 15.01.2018 Exh.RW1/10".
7. We have minutely gone through the written arguments submitted by the parties and perused the record.
8. Brief facts narrated in this application are that Noureen Shahzadi, Daughter of Mian Hafeez-Ur-Rehman (real sister of the Petitioners), maintained an account in United Bank Limited (UBL) obtained the policy bearing No. 763326/226-UBR, through Bancassurance channel of United Bank Limited. Unfortunately, on 12-01-2017, some unknown persons murdered the said Mst. Noureen Shahzadi and Mst. Ayesha (both real sisters of the Petitioners). Initially First Information Report was lodged by one of the Petitioners/brothers namely Mian Shakeel-ur-Rehman against unknown persons. However, subsequently nominated Mian Aqeel-Ur-Rehman (one of the Petitioner/real brother). It is Worth mentioning here that said Mian Ageel-Ur-Rehman was acquitted from the charge vide order dated 13-10-2017, passed by Mr. Irfan Basra learned Additional Sessions Judge, Lahore by accepting the application filet by the said Mian Aqeel-Ur-Rehman, under section 265-K of the Code of Criminal Procedure, 1898.
9. The claim of applicants was resisted by the respondents who raised multiple preliminary objections including the objections of maintainability of application and jurisdiction of Tribunal etc, and contended that the applicants are not entitled to claim amount of insurance policy because the deceased did not disclose relevant information to the respondents at the time of submission of forms. Further contended that the information furnished to the respondents regarding the age, income, physical and medical were false and incorrect. It was further stated that the deceased did not run any beauty-parlor and boutique as she was a house lady and used to receive her pocket money for her daily necessities. It was further stated that except the nominee, other applicants are not entitled to claim the death compensation of deceased Noureen Shehzadi.
10. The respondents side in their written arguments alleged that since the nominee committed murder of policy holder, therefore, he is also not entitled to claim the compensation. In the written reply, it was alleged from the respondents side that applicant No.3 disclose in his written statement that deceased Noureen Shehzadi (the policy holder), had relations with some unknown person and almost two months before her death, she came to know that he was already married, as a result, the unknown person started blackmailing her and this fact was shared by the deceased with the applicants.
11. The respondents also objected that the amount of claim cannot be inherited amongst the applicants as it does not fall in the definition of Tarka and prayed that application be dismissed with costs.
12. Perusal of contents of application highlight that in para No.1 of the application, it has been mentioned that late Noureen Shehzadi (the policy holder), who is real sister of applicants purchased insurance policy No.763326 on 22.12.2016 and paid first year premium of Rs.10,00,000/-(one Million).
13. In reply to this assertion, the respondents in para No.4 of their written reply conceded that respondent company issued a Life Insurance Policy bearing No. 763326/226-UBR to the deceased titled 'better life and retired plan with a sum assured amount of Rs.50,00,000/- (five Million) in consideration of annual premium of Rs.10,00,000/- commencing from 01.01.2017. It was further admitted that on 21.04.2017, the Respondent Company received a Death Claim Intimation Form dated 20.04.2017 intimating therein that the Deceased had been murdered on 12.01.2017 (within 18 days from commencement of the Policy i.e. 01.01.2017). Since. it was an early death claim, just within 18 days from Policy issuance, the Deceased was murdered, it raised some serious questions on truthfulness of information provided by the Deceased in the Proposal Form regarding her previous and present enmity, Therefore, the Respondent Company in order to process the death claim and as a matter of statutory right to confirm the veracity of information provided by the life assured within two years from policy issuance, started to verify the information provided by the Deceased at the time of obtaining the Policy. While processing the death claim certain crucial documents came on record including the FIR bearing No. 87/17, registered on 12.01.2017 by Mr. Shakeel-Ur-Rehman Applicant No.2, at Police Station Baghbanpura against unknown person for commission of murder of Noureen Bibi and Ayesha Bibi, under section 302, P.P.C. but later through subsequent application, he implicated his brother Mr. Aqeel Ur Rehman. Applicant No. 3 and two others for committing murder of the Deceased. However, the Investigating Officer arrested the Applicants Nos. 3 and 2 other accused on 14.03.2017, and recovered pistol 30 bore from Applicant No. 3 and sent them Jail with the charge of offence under section 302/34 P.P.0 and submitted report under section 173, Cr.P.C for trial of the case accordingly. It is pertinent to mention here that death claim of the Deceased under the Policy was filed through death claim Intimation Form dated 20.04.2017. Before that, the Applicant No.2, lodged an FIR on 12.01.2017 against Applicant No. 3 on which Session case was registered bearing No. 37/2017 in the Court of Muhammad Irfan Basra, Addl. Session Judge. Lahore and on 13.10.2017 Applicant No.3 was acquitted by the court on an application filed under section 265-K, Cr.P.C.
14. The respondents produced Malik Muhammad Rafi, Senior Manager of General Administration Department, EFU Insurance Company Lahore as RW-1. During cross-examination RW-1 frankly conceded that "It is correct that the deceased/insured Noureen Shehzadi got insurance policy from UBL. We issued her policy after accepting her proposal form".
15. As far as preliminary objections are concerned, this Tribunal framed as many as six issues including the issue of relief. Respondents were obliged to produce evidence in favour of issues Nos.1 to 3, as onus of proof was upon the respondents, but they failed to produce even an iota of evidence in support of their version/objection and allegations levelled against the deceased/policy holder, thus, these issues are decided in negative.
16. The contentions of respondents that nominee is not entitled to claim death compensation on the ground that there is allegation of murder of policy holder levelled against applicant No.3, which is not tenable. No doubt, Article-58 of Muhammadan Law as well as Section 317 of Pakistan Penal Code, debars from succession a person committing murder, but in case in hand, the situation is entirely different because on 12.01.2017, the policy holder Noureen Shehzadi was murdered. On the same day, a criminal complaint under section 302, P.P.C. was registered vide FIR No.87/17 with Police Station, Baghbanpura Lahore against unknown persons. Later on, in a supplementary statement, petitioner No.3 was arrested but on 13.10.2017, the complainant of the criminal case resiled from his earlier statement, as a result, the Applicant No. 3/the accused filed an application under section 265-K, Cr.P.C. before the learned ASJ, Lahore, who after hearing both sides on 13.10.2017, acquitted the accused from the charge of murder of policy holder and her sister. This order was never challenged before any higher forum, hence, attained finality.
17. In the circumstances, neither Article-58 of Muhammadan Law nor Section 317 of P.P.C. are attracting against the Applicant No.3.
18. So far as the other allegations levelled by the respondents side are concerned, they were not proved because the respondents were obliged to prove their allegations by convincing evidence. We minutely observed the statement of RW-1, who during cross-examination vehemently admitted that his examination in chief/the affidavit Exh.RW-1/1 was sent from Head Office. He read, signed the same and submitted as Exh.RW-1/1. He further admitted that the affidavit was drafted in the Head Office. We observed that RW-1 never remained associated with this policy matter and the person, who drafted Exh.RW-1/1 neither appeared before this Tribunal nor placed on the record that in which capacity, he drafted the affidavit. Therefore. Exh.RW-1/1 cannot be relied upon because it is settled law that the person who levels allegations is bound to prove the same. Relied on law reported as PLD 2023 Supreme Court 628.
19. Next the important proposition in this case is, the interpretation of nominee. There are Plethora of Judgments by the Superior Courts that a nominee is mere a trustee. Nomination doesn't means a gift or a permanent dedication. Making of a nominee could not give right to a nominator at his choice to change the law of succession which otherwise is applicable in case of death of a policy holder. Death claim tiled by the applicants with regard to deceased sister falls in the ambit of Tarka which will be inherited amongst the applicants as the policy holder has survived by his brothers/the applicants. The Hon'ble Lahore High Court, Lahore in its judgment reported as 2015 MLD 420 has also interpreted the word nominee as well as Tarka and it has been held that the nominee is a mere trustee and was duty bound to receive money and distribute it amongst the legal heirs of deceased in accordance with their respective shares. Further, law relied upon by this Tribunal is 2004 SCMR 1219, 2006 YLR 3236 and 2015 MLD 420.
20. This Tribunal is of the view that Tarka means what a deceased left at the firm of his death in the shape of moveable and immoveable properties. Since, the claim money shall be distributed amongst the legal heirs of deceased/policy holder, therefore, it falls in the definition of Tarka.
21. This Tribunal further distinct a group insurance and individual insurance. The group insurance is a type of insurance coverage provided by a group of people in a single contract typically issued by the employer, organization or association at a low cost of that individual insured while insurance policy is a legal contract between an insurer and the policy holder. The policy clearly states the terms, conditions. coverage, premium amounts and duration of the insurance agreement but in both the cases may be it is a group insurance or individual insurance, the amount of insured money will be distributed according to the Muhammadan Law of Inheritance amongst the legal heirs of deceased. Law relied upon by the learned counsel for the respondents is distinguishable and is not applicable in this case.
22. This Tribunal further observed that Mr. Liaqat Ali Butt learned Advocate Supreme Court was appointed as Amicus Curiae with the request to guide this Tribunal, who in compliance of the direction of this Tribunal submitted written submission, gave the following findings:-
"In the present case, the deceased policy holder only left three real brothers as her legal heirs. The one brother is allegedly murderer of her which has debarred from her succession and other two are mentally retarted/unsound mind. In my humble opinion, if this Hon ble Tribunal may reach the conclusion with the acceptance of claim in hand and may order to pay the claim amount to the real brother (other than alleged murderer), then they have to follow the procedure contained in Order XXXII of Code of Civil Procedure. 1908 read with Mental Health Ordinance, 2001".
23. In view of above discussion, this Tribunal is of the considered view that the aspect of policy of deceased Noreen Shahzadi has been frankly admitted from the respondents side, who had received Rs.10,00,000/- (one million) on account of first premium, therefore, issues Nos.4 and 5 are decided in favour of the petitioners.
Relief
24. Law referred herein above is also in support of the applicants, who are real brothers of policy holder (deceased Noreen Shahzadi), the policy holder survive by her three brothers (the applicants) who are entitled to inherit from the insurance claim of policy holder according to their respective shares because respondents failed to produce evidence in support of their assertions. The respondents failed to produce any convincing evidence in support of their stance, hence, the applicants are entitled to receive the death claim. The application is decreed to the tune of Rs.50,00,000/- in favour of the applicants with costs and against the respondents. The applicants are also entitled to the liquidated damages as provided under Section 118 of the Insurance Ordinance, 2000, after three months from the date of occurrence/death till realization of the decretal amount. Copy of this judgment be furnished to the parties. The judgement debtors are directed to pay the decreetal amount within two weeks from today. This Tribunal is also thankful to Mr. Liaqat Ali Butt, learned Advocate Supreme Court of Pakistan (AMICUS-CURIAE) for his valuable assistance.
MQ/1/IT(Lah.) Petition allowed.