Muhammad Tufail Thakar Vs Asia Insurance Company Ltd etc

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JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

JUDGMENT

C.O.S (Insurance) No.41188/2023

Muhammad Tufail Thakur VS. Asia Insurance Company Limited

Date of hearing 21.04.2025 Petitioner by Muhammad Tufail Khokhar, Advocate Respondent by Mr. Gulzar Ahmad Khan, Advocate Amicus Curiae Mr. Ahmad Farooq, Advocate Ch. Muhammad Iqbal, J:- Brief facts of the case are that petitioner/Muhammad Tufail Thakur filed an insurance claim against respondent/Asia Insurance Company and others. The respondent filed contesting written reply thereto. Out of the divergent pleadings of the parties, the Insurance Tribunal, Multan framed issues and thereafter, sent instant Reference under Order XLVI Rule 1 C.P.C seeking guidelines qua certain points which are mentioned hereunder:-

1.Whether in the absence of a definition of "agency" in the Insurance Ordinance, 2000 can insurance companies be treated as agency?

2.Whether President of Pakistan being head of the federation can be called upon to resolve litigation between private parties?

3.Whether vested right of appeal provided by a special Law can be taken away through a subsequent legislation, without amendment in the special Law?

4.Whether in the absence of a provision (definition of "agency") in the Insurance Ordinance, 2000. There can be a conflict of provisions under section 24(2) of the Act of 2013.

5.Whether Section 14 and 18 of Act of 2013 are inconsistent?

6.Whether against the Order of Insurance Ombudsman a representation before the President under section 14 of the Act of 2013 will be competent or an appeal under section 130(2) of the Insurance Ordinance, 2000 will be competent?

2.This Court vide order dated 12.03.2025 appointed Mr. Ahmad Farooq, Advocate as amicus curiae and also directed learned counsel for the parties to assist this Court on the points formulated by the Insurance Tribunal. Today, learned amicus curiae has categorically argued that the instant Reference is not maintainable and learned counsel for the parties also showed their concurrence with the opinion of the learned amicus curiae.

3.Arguments heard. Record perused.

4.Reference is made to this Court under order XLVI Rule 1 CPC which provision is as under:-

1.Reference of question to High Court.– Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court Perusal of the above provision shows that where before or on hearing of a suit or appeal certain material question of law, usage having force of law arises or points embosomed significant doubts in which “decree is not subject to appeal”, the Court trying the lis drawing up a statement of facts along with its own opinion may send a Reference to this Court and absence of above traits which are condition precedent shatter the very maintainability of the Reference. Here in this case, the claim has been filed under Insurance Ordinance, 2000 before the learned Insurance Tribunal

and against any decision / decree likely to be render by the Tribunal a manifest remedy of appeal is provided under Section 124(2) of the Ordinance ibid as such instant Reference wear no sanction of law. For ready reference, Section 124(2) of the Ordinance ibid is reproduced as under:

“124. Appeals.— (2) Any party aggrieved by a decision of the Tribunal may, if the amount of the claim in dispute or the penalty prescribed, as the case may be, is not less than one hundred thousand rupees, prefer an appeal to the High Court within a period of thirty days from the date of such decision.” Thus, from the conjoint reading of Order XLVI Rule 1 CPC & Section 124(2) of the Insurance Ordinance, 2000 it evinces that the very Reference is not maintainable. Reliance is placed on judgments titled as Barju Biswal Vs. Kanja Behari Mahapatra (A.I.R. 1931 Patna 353) and Mukanda Vs. Birdychand (A.I.R. 1953 Hyd. 271).

5.In view of above, instant Reference under Order XLVI Rule 1 C.P.C is held as not maintainable, as such there is no need to answer the points raised therein. Resultantly, instant Reference is returned to the Insurance Tribunal, Multan for further proceeding as per law.

(Malik Waqar Haider Awan) (Ch. Muhammad Iqbal) Judge Judge

Approved for Reporting.

Judge Judge Abdul Hafeez