Singh v New India Assurance Company Ltd [1997] FJHC 94; Hba0003d.97s (24 July 1997)

Fiji Islands - Singh v New India Assurance Company Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CIVIL APPEAL NO. 0003 OF 1997

BETWEEN:

HEMANT KUMAR SINGH
s/o Abhimanu Singh
Appellant

AND:

1. NEW INDIA ASSURANCE COMPANY LIMITED
2. SHIU NARAYAN
s/o Ram Prasad
Respondents

Mr. A. Narayan for the Appellant
Mr. V. Kapadi 1st Respondent

REASONS FOR DECISION

On the 12th of May, 1997 this Court set aside the Ruling of the resident Magistrate, Nausori and referred the case back for a rehearing before a different magistrate, in an 'extempore' decision delivered shortly after hearing extensive arguments from counsels both for the appellant and the respondent.

This was an appeal against the Ruling of the Nausori Magistrate Court striking out the plaintiff's claim against the first-named defendant insurance company on the basis "... that New India Assurance Company Limited, the 1st Defendant, are not liable to a contract of indemnity".

The Ruling was delivered before any evidence had been called in the case and was prompted by an oral submission made by defence counsel based on a Motor Vehicle Insurance Policy ('Policy document') of the defendant insurer and a Schedule detailing the plaintiff's particulars of insurance with the defendant insurance company.

Defence Counsel's brief submission to the trial magistrate based upon various wordings in the 'Policy document' was to the effect that the plaintiff's policy with the defendant insurance company "... does not apply if the vehicle is undergoing repairs".

In particular counsel referred to and read paragraph 9 of the Statement of Defence; the paragraph entitled 'Accident' in Section 1 of the 'Policy document'; and the exclusion entitled 'Unsafe Conditions' in para.3 of the 'Policy document'.

The trial magistrate in his 5 page typed Ruling first sets out verbatim the opposing pleadings of the parties as contained in paragraphs 9 of the Statement of Claim and the Statement of Defence. Thereafter various random extracts are reproduced from paragraphs 733, 734, 735 & 737 of Halsbury's Laws of England (4th edn.), without any reference to a volume number and without any serious attempt to relate them to the case before him.

This is followed by an observation that "... the plaintiff did not put forward under his claim, that the policy which he held is 'fully comprehensive' nor he held a 'Fire Insurance'", and thereafter the ruling briefly discusses the nature of a policy of fire insurance.

If I may say so this latter observation of the trial magistrate quite plainly ignores or overlooks the contents of paragraph 1 of the Statement of Defence which positively "... stated that a full insurance policy was issued to the Plaintiff on the 21st September, 1994 being policy No: 92262331040 26491". Furthermore the 'Policy document' produced to the trial magistrate during the course of defence counsel's submissions and entitled Motor Vehicle Insurance Policy quite plainly excluded any liability under a Third Party Policy (See: Proviso (1) to Section 2) and therefore could not itself have been a Third Party Policy. It was without a doubt and adopting the trial magistrate's description, a 'fully comprehensive' policy of motor vehicle insurance.

If I may say so the trial of this action went 'astray' from the moment the trial magistrate agreed to hear defence counsel's preliminary submissions. The trial magistrate's Ruling is testimony to this insofar as there is not a single reference to the terms and conditions of the 'Policy document' and Schedule produced to him by defence counsel as one would have expected and whatever citations and general observations there were, were all utterances made in a vacuum and largely irrelevant.

One is tempted to ask how could the trial magistrate have formed 'the opinion' that the defendant insurance company was not liable under its insurance contract with the plaintiff, without so much as a single reference to the contracts terms, conditions and exclusions.

Furthermore, even if, as defence counsel submits, liability might be excluded in terms of the 'Unsafe Condition' clause in the 'Policy document', in the absence of any evidence or a statement of 'agreed facts', how could the trial magistrate have been satisfied of the precondition in the Clause that the plaintiff's vehicle, whilst garaged in the second defendant's workshop awaiting repairs, "is being used in an unsafe condition or without proper Certificate of Fitness"? Commonsense if nothing else, dictates that in such a state the vehicle was not 'being used' and I emphasise the tense implicit in the phrase.

Clearly this case cannot be disposed of by an isolated discourse however interesting it may be, on the general principles applicable to vehicle insurance policies without any reference to the actual contractual 'Policy document' applicable in the case and/or without relevant 'findings of facts' based on admissible evidence produced at a trial of the action.

The appeal was accordingly upheld and the trial magistrate's Ruling set aside with the consequential orders earlier mentioned.

D.V. Fatiaki
JUDGE

At Suva,
24th July, 1997.

Hba0003d.97s