Singh v Sun Insurance Company Ltd [2001] FJHC 120; Hbc0382j.2000s (24 July 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 382 OF 2000S

Between:

SURESH KUMAR SINGH
Plaintiff

and

SUN INSURANCE COMPANY LIMITED
Defendant

G.P. Lala for the Plaintiff
A. Tikaram for the Defendant

JUDGMENT

The Plaintiff is the owner of premises in Central Suva known as Union Plaza. These premises were severely damaged by fire on 19 May 2000.

The Plaintiff’s premises was covered by a Fire and Extraneous Perils Insurance Policy issued by the Defendant. A copy of the Policy and Schedule is Exhibit A to the supporting affidavit. Although the exhibited document is marked “specimen” it was agreed by Counsel that the terms set out in this document were identical to the terms of the policy issued to the Plaintiff.

Judged by the standards of clarity and comprehensibility the policy and schedule, like many others of their kind issued in Fiji are very poor documents indeed however I find their relevant effects in this case to be as follows.

Provision 1 of the policy is an agreement by the insurer to indemnify the insured against damage to his premises caused by fire except where the fire “was occasioned by or happened through” riot, civil commotion, rebellion, revolution, insurrection or usurped power.

Following the 3 Provisions there are 12 Conditions. Following the Conditions there is a heading: “Extraneous Perils” which precedes the following proviso:

“Provided always that the Provisions and Conditions of the Policy shall apply as if they have been incorporated herein and for the purpose hereof any destruction or damage as aforesaid shall be deemed destruction or damage by fire.”

The 5^th Extraneous Peril is headed “Riots, Strikes, Malicious Damage” followed by the words:

“Directly caused by the Acts of:

5.1 Persons taking part in riots or civil commotions ... or malicious person (sic) acting on behalf or in connection with any political organisation ...”.

The schedule to the policy contains a number of conditions. These read:

“the Policy is subject to the following warranties, endorsements, clauses and additional perils as printed on the policy or added thereto. Including the risk of earthquake, explosion, aircraft, impact, riots, strikes, civil commotion, malicious damage and cyclone on item No. 1".

The Plaintiff’s case is that the damage to Union Plaza was caused by the acts of persons taking part in a riot or civil commotion and that therefore he is entitled to be indemnified. He seeks the Court’s declaration to that effect.

On 2 February 2001 Counsel for the Defendant filed a written submission entitled “Reply on behalf of the Defendant”. Paragraph 13 of this document reads:

“It is not in issue that the insured property was damaged by fire. The issue is whether the fire was occasioned by or happened through riot or civil commotion in which event Plaintiff is entitled to be indemnified or whether the fire was caused by civil war, rebellion, revolution, insurrection or usurped power in which event Plaintiff is not entitled to be indemnified.”

In paragraph 21 of a second document also filed on behalf of the Defendants on 2 February Counsel stated:

“It is clear that when considering the terms, riot, civil commotion, insurrection and rebellion that one is dealing with ascending stages of civil conflict which in the latter stages also acquire a political element as part of the final breakdown of or assault on the existing order.”

I agree. What this means is that if the damage to the Plaintiff’s premises was the result not merely of a riot or civil commotion but was the result of civil war, rebellion, revolution or insurrection then the Plaintiff must fail.

Two questions arise. The first is the burden of proof and the second is the meaning of the words under consideration.

As to burden I accept that the correct approach is that set out in Munroe Brice & Company v. War Risks Association [1918] 1 KB 78. Since it is not disputed that the Plaintiff is prima facie within the terms of the promise embodied in the first provision of the policy as extended by paragraph 5.1 of the extraneous perils provision I am of the view that the Defendant has the burden of establishing that the damage to the Plaintiff’s premises resulted not merely from riots or civil commotion but from war, rebellion, revolution or insurrection.

As to the meaning of the words in question and particularly “riot and civil commotion” these words should, I am satisfied be given their ordinary and natural meaning. This not only accords with precedent (see London and Lancashire Fire Insurance Co. v. Bolands Ltd [1924] AC 836, 845 but is also, more importantly the approach now laid down by statute. Section 29 (e) of the Insurance Law Reform Act 9/1996 requires that:

“Words shall be construed in their plain, ordinary, popular, commonsense and natural meaning except that terms of art or technical words shall be understood in their strict technical and proper sense unless the context controls or alters the meaning.”

What then is the evidence that the looting and destruction of shops in Suva including the Plaintiff’s on May 19 2000 was caused not merely by rioting or civil disorder but was caused by rebellion, revolution or insurrection?

The Defendants rely on two affidavits filed by Ahmad Zabidi, the Defendants General Manager. In paragraph 5 of his first affidavit filed on 16 October 2000 Mr. Zabidi referred to the march through Suva on 19 May by Fijian Nationalists. The march had been planned to end at Albert Park but instead made its way to the gates of Government House to present a petition to the President. While the petition was being presented it became known that George Speight and his gang had just taken over Parliament.

According to paragraph 5 (d):

“As the news of the armed takeover reached the marchers at the gates of Government House a number of marchers ran toward Parliament House and on the way they started to throw stones and break shops along Ratu Sukuna Road. The breaking of shops along Ratu Sukuna Road in Nasese happened around 11.15 a.m. to 11.30 a.m.”.

He goes on to state in paragraph 5 (e) that:

“News of the armed takeover spread like wildfire and shops and businesses in Suva City became a free for all; wide spread looting took place and the Plaintiffs building was destroyed in a fire.”

In his second affidavit filed on 5 February 2001 Mr. Sabidi states in paragraphs 5 and 6 that:

“The events which commenced with a march on the morning of 19 May 2000 was, as appeared from the declared intentions of the parties which I personally heard, aimed at the overthrow of the existing order and the installation of a new government and a new Constitution.

The fire which damaged the insured premises formed part of the events described above.”

So the central question of fact to be answered is whether the looting which took place in Suva was “part of” Speight’s attempted coup, whether in the words of paragraph 18 of Counsel’s written reply the attempted the coup and the looting were “inextricably intertwined”.

In my view the Defendants have failed to place any evidence before me that the looting which damaged the Plaintiff’s premises was “part of” an attempted coup. In particular, there is nothing to show that the looting was planned or orchestrated by Speight or any of his lieutenants. While doubtless some of the looters may have sympathised with Speight the looting was directed not at the organs of the State such as government offices or agencies but was directed at private businesses. The main object of the looting as was obvious from the television footage was to steal as much as possible as quickly as possible whether what was stolen was gold watches or frozen chickens. Some of the businesses looted were Indian owned but some were not.

I agree with Mr. Sabidi when he describes what happened as a “free for all”. While this free for all might have been prompted by Speight’s takeover I do not find that it was part of it or that it was motivated by revolutionary ideals.

In another very recent case Yatulau Co. Ltd v. Sun Insurance Co Ltd (HBC 380/2000-2 July 00) Mr. Justice Byrne on almost identical facts had no hesitation in finding that the insured’s premises were destroyed on 19 May as a result of rioting and civil commotion. In this case I have no hesitation in arriving at the same conclusion.

I grant the declaration sought.

M.D. Scott
Judge

24 July 01