16/05/2025, 12:08 2023 C L D 912

2023 C L D 912
[Lahore (Multan Bench)]
Before Ch. Muhammad Masood Jahangir and Anwaar Hussain, JJ
STATE LIFE INSURANCE CORPORATION OF PAKISTAN (SLIC) through
duly authorized Officer/Attorney---Appellant
Versus
Mst. Bibi REEMA---Respondent
Insurance Appeal No. 178 of 2021, decided on 27th September, 2021.
(a) Insurance Ordinance (XXXIX of 2000)---

----Ss. 118 & 79---Qanun-e-Shahadat (10 of 1984), Arts. 129(g), 72, 78 & 117---
Insurance claim---Non-disclosure or misrepresentation---Withholding best
evidence---Proof of contents of documents---Post-mortem report, evidentiary value
of---Scope--- Appellant impugned judgment and decree passed by the Insurance
Tribunal whereby the suit of respondent for recovery of life insurance claim was
allowed---Appellant in order to obtain benefit of S. 79 of the Insurance Ordinance,
2000 and to repudiate the contract placed reliance on a medical prescription issued
by a specialist of mental disease and addiction treatment certificate along with
inquiry report of the appellant's official---Validity---Neither inquiry officer of the
appellant nor the doctor whose prescription had been presented was produced as
witnesses---Prescription appended with the inquiry report was a photocopy and not
the original---Probative value of the prescription evaporated in the thin air on the
ground that it was a private document, hence, the genuineness of the same was
required to be proved in terms of Art. 72 read with Arts. 78 & 117 of the Qanun-e-
Shahadat, 1984---None of the relatives of the deceased had appeared in support of
their statements made before the Inquiry Officer---No effort was made on the part
of the appellant to get post mortem of the deceased conducted and in absence of the
same, there was no reason to discard the death certificate, which was a public
document and to which presumption of truth was attached---Mere fact that the
death had occurred within short period of time after the purchase of the policy was
not per se a suspicious circumstance to deny the relief to the beneficiary---Since the
appellant had denied and lingered the claim of the respondent without any just
cause, therefore, High Court awarded an additional cost to the appellant---Appeal
was dismissed.

Muhammad Zakria and 3 others v. Bashir Ahmad 2001

CLC 595 rel.

Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others PLD 1973 SC
160; Muhammad Ashraf v. Shah Noor Khan and another 1996 MLD 1819;
Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan 1989
SCMR 704; Board of Intermediate and Secondary Education, Lahore through

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Secretary v. Mst. Sobia Chand 1999 CLC 1166; Fateh Ullah v. Noor Ahmad 2012
CLC 246 and Life Insurance Corporation of India v. Smt. Parkash Kaur and others
1997 (1) MPLJ 203 ref.

(b) Insurance Ordinance (XXXIX of 2000)---

----S. 79---Non-disclosure or misrepresentation---Scope---Insurance contracts
belong to that limited category of contracts, which are regarded as ones falling
under doctrine of uberrimae fidei i.e., of the utmost good faith and hence any
concealment may lead to cancellation thereof.
(c) Insurance Ordinance (XXXIX of 2000)---
----S. 79--- Non-disclosure or misrepresentation--- Scope--- Non-disclosure or
wrong declaration of any material information can entitle an insurer to invoke S. 79
of the Insurance Ordinance, 2000, to repudiate the contract of insurance.
Life Insurance Corporation of India and others v. Asha Goel and others (2001) 2
SCC 160 rel.
(d) Insurance---
----Non-medical life insurance---Scope---Non-medical life insurance assumes a no
medical test while issuing a policy, as opposed to a traditional policy where
medical tests are required and are executed while relying upon the declaration,
which the insured makes at the time of making of the contract of insurance.
(e) Qanun-e-Shahadat (10 of 1984)---
----Art. 72 & 78---Proof of contents of documents---Proof of signature and
handwriting of person alleged to have signed or written document produced---
Scope---Production of documents and their admissibility as well as the proof and
probative value carried by such documents are entirely two different things and
should never be used or construed interchangeably---For proving veracity of a
document, the person who authored it must depose before the court in support of
the contents, otherwise such document can merely be taken into consideration for
the purpose of showing that such a document was issued but whether the contents
of the same are correct or not, such facts cannot go into the evidence unless the
author of the document deposes before the court and faces cross-examination---
Once a document is produced as a piece of evidence, it has to undergo the crucible
of objective scrutiny in terms of Art. 78 of the Qanun-e-Shahadat, 1984---Mere
production of a document neither lends any credence nor confers any probative
value to it.
Pakistan Engineering Consultants through Managing Partner v. Pakistan
International Airlines Corporation through Managing Director and another PLD
2006 Kar. 511 and Messrs United Ethanol Industries Limited v. Messrs JDW Sugar
Mills Ltd. 2015 YLR 1429 ref.
(f) Qanun-e-Shahadat (10 of 1984)---
----Art. 129(g)--- Withholding best evidence--- Scope--- An adverse presumption is
to be drawn against the party which withholds the best evidence.

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Dilshad Begum v. Nisar Akhtar 2012 SCMR 1106 ref.

Barrister Malik Sohail Ashiq Shujra for Appellant.
Sardar Muhammad Rashid Khan Baloch for Respondent.
Date of hearing: 27th September, 2021.
JUDGMENT
ANWAAR HUSSAIN, J.---This appeal under section 124 of the Insurance
Ordinance, 2000 ("the Ordinance") impugns judgment and decree of the Insurance
Tribunal, Muzaffargarh dated 23.06.2021 whereby the suit of the respondent for
recovery of insurance claim under Section 118 of the Ordinance was allowed in the
sum of Rs.300,000/-.
2. Succinctly, the respondent instituted a suit for declaration with the averments
that her deceased husband, namely, Muhammad Ilyas son of Abdul Razzaq ("the
Deceased"), was insured by the appellant, vide Insurance Policy No.607565139-0
wherein the respondent was appointed as guardian/nominee by her husband; the
Deceased paid monthly installments of insurance policy regularly and after
payment of fourth installment, he died; she filed death claim with the appellant on
account of insurance policy of the Deceased, which was refused by the appellant
and the respondent was constrained to institute the suit.
3. The appellant controverted the suit by filing written statement while raising
legal as well as factual grounds and out of divergent pleadings of the parties,
following issues were framed:
1. Whether the deceased Muhammad Ilyas purchased a policy No.607565139-0
for Rs.3,00,000/- by nominating the plaintiff/ guardian, hence she is entitled
to get the decree as prayed for? OPP
2. Whether the suit of the plaintiff/petitioner is not maintainable in view of
preliminary objections Nos.1 and 2? OPD
3. Relief."
The parties led their respective evidence which was duly recorded by learned
Tribunal and after hearing both sides, the suit of the respondent was decreed as
prayed for, vide impugned judgment and decree.
4. Learned Counsel for the appellant argues that the policy was on non-medical
basis and purchased initially on 27.10.2016; however, the Deceased did not pay the
annual premium and same was cancelled and was later revived on 07.06.2018
where after, the Deceased only paid three installments and died on 10.11.2019,
which was after one year, five months and three days of the revival of the policy
and upon inquiry, sufficient evidence surfaced which indicates that the Deceased
was an addicted person and a known patient of Asthma and was under treatment of
mental disease at the time when the policy was revived and evidence thereof has
been ignored by learned Tribunal below. Learned Counsel argues that learned
Tribunal misread the evidence, incorrectly applied the provisions of law and based
its findings on inadmissible evidence and without appreciating that the claim based

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on a life insurance policy was obtained by the Deceased through fraud,

misrepresentation and by concealment of pre-insurance illness, qua his health
condition that was sheer violation of doctrine of utmost good faith, which is basis
of the insurance contract. Insurance contract, as such, was unenforceable and the
appellant is entitled to avoid the same in terms of section 79 of the Ordinance,
which contemplates that an insurer can avoid a contract if the person insured has
fraudulently concealed material information from the insurer.
5. Conversely, learned Counsel for the respondent refuting the above arguments
submits that the assertions of misrepresentation and bad faith were not supported
by any record and that the findings of learned Tribunal are based on correct
analysis of the evidence on record.
6. Arguments heard and record perused.
7. We have heard learned Counsel for parties and examined the record.
Admittedly the Deceased obtained insurance on non-medical basis while
nominating his daughter Anum Bibi as beneficiary. Non-medical life insurance
assumes no medical test while issuing a policy as opposed to a traditional policy
where medical tests are required (e.g., blood test, blood pressure, etc.) and are
executed while relying upon the declaration, which the insured makes at the time of
making of the contract of insurance. In the present case, the Deceased also made
such a declaration. Insurance contracts belong to that limited category of contracts,
which are regarded as one falling under doctrine of uberrimae fidei, i.e., of the
utmost good faith and hence, any concealment may lead to cancellation thereof.
The Deceased gave the declaration which was relied upon and the contract was
revived. Installments were admittedly paid by the Deceased. The case of the
appellant is that said declaration was wrong and fraudulent as evident from the
prescription handed over to the Inquiry Officer of the appellant who investigated
the claim before whom the relatives of the Deceased recorded their statements that
the Deceased was an addict and the early death of the Deceased after revival of
policy corroborates the stance of the appellant.
8. Perusal of record reveals that the respondent discharged the burden of proving
the issuance of the policy and payment of the premium by the Deceased before he
died and the controversy only relates to whether the Deceased committed any fraud
or misrepresentation while purchasing the policy. Death certificate (Ex.P.1) shows
that the Deceased suffered natural death, therefore, in order to obtain benefit of
section 79 of the Ordinance and to repudiate the contract, the appellant was
required to prove fraud or misrepresentation on part of the Deceased. In support of
his stance, learned Counsel for the appellant places reliance on the medical
prescription dated 18.05.2017 issued under the hand of one Dr. Azhar Hussain,
Specialist of mental disease and addiction treatment along with inquiry report of
the appellant's official and statement of relatives of the Deceased (Ex.D.6). Though
it is stated by the respondent in her statement that said prescription by Dr. Azhar
Hussain was handed over to the Inquiry Officer of the appellant by brother of the
Deceased, however, the respondent was never confronted with the said prescription
while being cross-examined. By now, it is well-coalesced and deeply-embedded
position of law that production of documents and their admissibility as well as the

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proof and probative value carried by such documents are entirely two different
things and should never be used or construed interchangeably. For proving veracity
of a document, the person who authored it must depose before the court in support
of the contents, otherwise such document can merely be taken into consideration
for the purpose of showing that such a document was issued but whether the
contents of the same are correct or not, such facts cannot go into the evidence
unless the author of the document deposes before the court and faces cross-
examination. Once a document is produced as a piece of evidence, it has to undergo
the crucible of objective scrutiny in terms of Article 78 of the Qanun-e-Shahadat
Order, 1984 ("QSO"). Mere production of a document neither lends any credence
nor confers any probative value to it. Guidance in this regard may also be sought
from Pakistan Engineering Consultants through Managing Partner v. Pakistan
International Airlines Corporation through Managing Director and another (PLD
2006 Karachi 511) and Messrs United Ethanol Industries Limited v. Messrs JDW
Sugar Mills Ltd. (2015 YLR 1429 Lahore). In the instant case, the prescription of
the doctor as well as the inquiry report has been produced in the evidence as
Ex.D.6; however, astonishingly enough, neither the Inquiry Officer, namely,
Muhammad Akram has been produced as a witness nor any justification as to
withholding the evidence of Inquiry Officer has been advanced. Similarly, the
doctor whose prescription has been presented has not been produced as a witness to
prove the genuineness of the prescription sans which the same is merely a piece of
paper without embodying any probative value. Hence, it was not proved that the
prescription (part of Ex.D.6) was the same document, which was handed over to the
Inquiry Officer. The appellant has tried to knit its case primarily around the mis-
declaration implying that the concealed disease and illness of the Deceased has
resulted in his death, which disentitles him from the amount claimed. It has been
tried to put probative and evidentiary weight on the said stance mainly through the
prescription of doctor appended with the inquiry report produced in evidence,
which is a photocopy of the prescription and not the original. The probative value
of the prescription, apart from the reasons given above, also evaporates in the thin
air on the ground that the said prescription is a private document, hence, the
genuineness of the same has not been proved in terms of Article 72 read with
Articles 78 and 117 of the QSO. Said prescription is not a public document and
cannot be received in evidence without proof of signatures of its author and hence,
could not be tendered on bare statement of the Counsel for the appellant before
learned Tribunal. Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others
(PLD 1973 SC 160) and Muhammad Ashraf v. Shah Noor Khan and another (1996
MLD 1819 Lahore) are referred. Even otherwise, prescription along with other
affidavits relied upon by the appellant could not be even marked as exhibit without
proving those documents in accordance with the provisions of QSO and therefore,
reliance on the same by the appellant is misconceived. Similarly, no one out of the
relatives of the Deceased appeared in support of their statements made before the
Inquiry Officer deputed by the appellant to investigate the claim of the respondent.
In Muhammad Zakria and 3 others v. Bashir Ahmad (2001 CLC 595 Lahore), this
Court has held that "the documents, which are not copies of the judicial record,
should not be received in evidence, without the proof of the signatures and
handwriting of the person alleged to have signed or written the instrument, even if,
such documents are brought on record, are accepted without objection."

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9. There is yet another angle from which the case can be examined. Prescription
along with the inquiry report relied upon by the appellant was its best evidence and
no reasons have been specified as to non-production of the Inquiry Officer or the
author of the prescription which brings the case of the appellant within the clutches
of illustration (g) to Article 129 of QSO that contemplates that an adverse
presumption is to be drawn against the party which withholds the best evidence. We
are fortified by the dicta laid down by the Hon'ble Supreme Court in Dilshad
Begum v. Nisar Akhtar (2012 SCMR 1106). Even otherwise, the same is mere
prescription and not diagnosis or opinion of an expert regarding the health of the
Deceased.
10. Admittedly, no effort was made on part of the appellant to get post mortem
of the Deceased and in the absence of the same, there is no reason to discard the
death certificate (Ex.P.1), which is public document and to which presumption of
truth is attached. The said death certificate has neither been objected to nor its
validity has been challenged or its presumption rebutted. Muhammad Aslam and
another v. Mst. Sardar Begum alias Noor Nishan (1989 SCMR 704), Board of
Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia
Chand (1999 CLC 1166 Lahore) and Fateh Ullah v. Noor Ahmad (2012 CLC 246
Lahore) are referred in this regard.
11. While it is correct that non-disclosure or wrong declaration of any material
information can entitle the appellant to invoke section 79 of the Ordinance to
repudiate the contract of insurance, however, the said provision has to be
interpreted in a reasonable manner. In present case, it has nowhere been asserted
that the Deceased was unwell or had any symptoms from any ailment at the time of
taking the Policy or its revival or before his death. In Indian Jurisdiction, section 45
of the Insurance Act, 1956 is in pari materia with section 79 of the Ordinance, and
while interpreting the scope thereof, in Life Insurance Corporation of India and
others v. Asha Goel and others (2001) 2 SCC 160), the Indian Supreme Court held
that on a fair reading of section 45 it is clear that it is restrictive in nature and the
burden of proof is on the insurer to establish these circumstances and unless the
insurer is able to do so, there is no question of the policy being avoided on ground
of misstatement of facts and repudiation of a policy should be done with extreme
care and caution and not in a mechanical and routine manner. In the instant case,
the appellant failed to prove the mis-declaration.

12. Much emphasis has been laid by learned Counsel for the appellant that the
early death of the Deceased within one year, five months and three days of the
revival of the policy, prima facie indicates that the declaration given by the
Deceased was fraudulent and hence, Section 79 of the Ordinance was applicable in
the instant case. Mere fact that the death occurred within short period of time after
the purchase of the policy is not per se a suspicious circumstance to deny the relief
to the beneficiary. Life Insurance Corporation of India v. Smt. Parkash Kaur and
others (1997(1) MPLJ 203) is referred in this regard where death of the insured
person therein took place within 06 months from the date of taking insurance policy
and this aspect has not been given any weightage by the court.

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13. Since the claim of the respondent has been denied and lingered by the
appellant without any just cause, as a result of which the nominee of the Deceased,
who is of approximately six years of age, has suffered a lot, we are inclined to
award cost of Rs.200,000/- to be additionally paid to the respondent side.
14. In the light of what has been stated above, this appeal being bereft of any
merit is hereby dismissed with cost of Rs.200,000/- to be paid to the respondent.
SA/S-28/L Appeal dismissed.

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