MUHAMMAD ASHRAF VS STATE LIFE INSURANCE CORPORATION OF PAKISTAN, 2016 PTD-LAHORE-HIGH-COURT-LAHORE 1899 (2016)

Insurance Ordinance (XXXIX of 2000)---

----S. 118(2)---Insurance claim---Execution of decree---Decretal amount, calculation of---Insurance Tribunal decreed claim directing insurance company to pay group claims along with liquidated damages---Insurance company, pending appeal, deposited decretal amount as security for suspension of execution of decree---Plea raised by decree holder was that in terms of decree, insurance company was liable to pay decretal amount along with 5% liquidated damages on monthly rests basis---Validity---Insurance company had deposited a sum of Rs.4,427,403 but that amount was not payable to decree holder and decree was not realized on deposit of amount with the Court---Executing Court had erred in law while holding that insurance company had deposited amount of decree in Court and as such, decree stood satisfied---Decree was to be satisfied on payment of entire decretal amount as ordered by Trial Court---Insurance company objected the calculation/amount payable in terms of decree---High Court directed Executing Court to calculate decretal amount as per terms of decree by remanding the matter with direction to insurance company to pay the amount of decree on date fixed by Court---High Court allowed Executing Court to adjust already paid amount to decree holder while calculating decretal amount and to decide objections of insurance company about calculation of decretal amount---Appeal was allowed accordingly.

Liaqat Ali Butt for Appellant.

Abrar Ahmad for Respondents.

Date of hearing: 5th April, 2016.

JUDGMENT

MUHAMMAD KHALID MEHMOOD KHAN, J.---Through this appeal the appellant has assailed the order dated 20.05.2015 passed by the learned executing court. Whereby the learned executing court has dismissed the execution application declaring that the decretal amount has been paid.

2.The appellant filed a claim before the learned Insurance Tribunal, the learned Insurance Tribunal vide judgment dated 28.11.2012 decreed the appellant's claim in the following terms:--

"In view of my issue wise findings, the application is accepted in favour of the applicant and against the respondents, directing the respondents to pay the Group Claims as prayed for along with liquidated damages as provided under section 118(2) of Insurance Ordinance, 2000 from date of death of deceased i.e. 10.01.2002 till its realization at monthly rests at the rate 5% higher than the prevailing base rate".

The judgment debtors/respondents filed appeal against the judgment of learned Insurance Tribunal. The respondents/judgment debtors' appeal was finally dismissed by the learned Division Bench of this Court on 12.2.2014. The respondents/judgment debtors during the pendency of appeal deposited a sum of Rs.44,27,403/- being the security for the suspension of the execution of the decree. The learned Division Bench of this Court while passing the order dated 30.01.2013 directed the Deputy Registrar (Judicial) of this Court to deposit Rs.44,27,403/- in profit bearing account for securing the rights of the parties. After dismissal of appeal the appellant/decree holder filed an execution petition and calculated the decretal amount as Rs.57,71,848.714/- up to 26.03.2014. The appellant/decree holder received Rs.46,84,052/- which were available in profit bearing account as per orders of learned Division Bench, the appellant requested the executing court for ordering the payment of balance amount in terms of decree. The respondents/ judgment debtors objected the execution of decree on the ground that after receipt of amount of Rs.4,684,052/- the decree stand satisfied, learned executing court while accepting the respondents/judgment debtors' objection held that the claim of decree holder stand fully satisfied as he has received the amount deposited with the High Court along with accrued profit. Hence, the present appeal.

3.Learned counsel for appellant submits that the terms of decree are that respondents are liable to pay the decretal amount along with 5% liquidated damages on monthly rests basis above the base rate and as such till the final payment to the decree holder the judgment debtors are liable to pay liquidated damages in terms of decree passed against the judgment debtors. Learned counsel further submits that the, learned executing court cannot go beyond the decree, the amount deposited under the orders of learned appellate court was for the benefit of both the parties and not for the satisfaction of decretal amount as the appellant was unable to receive the said amount unless the appeal is finally decided.

4.Learned counsel for respondents supports the impugned order and submits that the judgment debtors on 30.01.2013 deposited the decretal amount under the orders of the learned appellate court and as such the decree stand satisfied, the appellant is maximum entitled to recover the interest/profit accrued on the amount deposited with the High Court in terms of order dated 30.01.2013. Learned counsel for respondents submits that the respondents have serious objection against the calculation of the decretal amount submitted by the appellant.

5.Heard. Record perused.

6.Admittedly on 28.11.2012 a decree for recovery of insurance claim was passed against the judgment debtors/respondents. The judgment debtors/respondents assailed the judgment dated 28.11.2012 through regular first appeal and the learned Division Bench of this Court on 30.01.2013 passed the following order:--

"The learned counsel for the appellants states that the decretal amount comes to Rs.44,27,403/- and the appellants are ready to deposit the said amount in cash with the Deputy Registrar (Judicial) of this Court within a period of seven days and the operation of the impugned judgment and decree may be suspended.

2. The request is allowed. The appellants are directed to comply with the undertaking given by the learned counsel and deposit the amount of Rs.44,27,403/- in cash with the Deputy Registrar (Judicial) of this Court who shall invest the deposited amount in some national savings scheme immediately so that the rights of the parties are secured. Subject to the deposit of the amount of Rs.44,27,403/- the operation of the impugned judgment and decree shall remain stayed. C.M is allowed and disposed of."

The respondent's appeal was finally dismissed on 12.02.2014, after dismissal of the appeal the appellant/decree holder filed execution of decree and submitted the calculation of the decretal amount as Rs.57,71,848/-, the respondents/judgment debtors raised objection against the payment of decretal amount as calculated by the appellant on the ground that the judgment debtors have deposited the decretal amount in Court under the orders of learned Division Bench of this Court and as such decree on their part stand satisfied. The terms of decree are as under:--

"In view of my issue wise findings, the application is accepted in favour of the applicant and against the respondents, directing the respondents to pay the Group Claims as prayed for along with liquidated damages as provided under section 118(2) of Insurance Ordinance, 2000 from date of death of deceased i.e. 10.01.2002 till its realization at monthly rests at the rate 5% higher than the prevailing base rate".

The decree shows that the judgment debtors/respondents are liable to pay Group Claims along with liquidated damages under section 118(2) of the Insurance Ordinance, 2000 from the date of death of deceased i.e. 10.01.2002 till its realization at monthly rests at the rate 5% higher than the prevailing base rate. The learned Insurance Tribunal while passing the decree has specifically directed that the decretal amount will be payable along with liquidated damages from 10.01.2002 till realization of the decree. No doubt the respondents have deposited the amount of Rs.4,427,403/- with the Deputy Registrar (Judicial) of this Court in terms of orders of learned appeal Court, the learned appeal Court while directing the respondents/judgment debtors to deposit a sum of Rs.44,27,403/- with the Deputy Registrar (Judicial) of this Court, has specifically ordered that the Deputy Registrar (Judicial) of this Court shall invest the amount in some National Saving Scheme immediately so that the rights of the parties are secured. The order of learned appeal court is clear and unambiguous which shows that the amount deposited with the Deputy Registrar (Judicial) of this Court was for the benefit of both the parties. In case of dismissal of appeal the amount was payable to the decree holder along with accrued markup and in case the appeal is allowed the amount was returnable to respondents/judgment debtors. The decree provides that decreed amount is payable with 5% liquidated damages above the base rate from 10.01.2002 till realization. The learned trial court has fixed the date from which date the decree will be payable and the liquidated damages will continue with liquidated damages till realization. The word realization denotes that the amount of decree stand paid or realized. No doubt the respondents deposited a sum of Rs.4,427,403/- but the said amount was not payable to decree holder as such it could not be said that decree stand realized on deposit of amount with the Court. The learned executing court thus has erred in law while holding that the respondents have deposited the amount of decree in court and as such the decree stand satisfied. The decree will be satisfied on payment of entire decretal amount as ordered by the learned trial court. As the respondents/judgment debtors are objecting the calculation/amount payable in terms of decree, hence we accept the appeal and remand the case to learned executing court with the direction that the learned executing court will calculate the decretal amount as per terms of the decree and will direct the respondents to pay the amount of decree on the date fixed by the court, however the executing court while calculating the decretal amount will allow adjustment of already paid amount to decree holder. The executing court will also decide the respondents' objection about the calculation of decretal amount.

MH/M-93/LCase remanded.