Lata v Speedy Investment (Fiji) Ltd C. O. No.18033 [2015] FJHC 928; HBC35.2014 (28 October 2015)

IN THE HIGH COURT OF FIJI AT SUVA
Civil Jurisdiction

Civil Action No. HBC 35 of 2014

Between:

Swaran Lata
Plaintiff

And:

Speedy Investments (Fiji) Limited C. O. No. 18033
1st Defendant

And:

Ramesh Prasad
2nd Defendant

And:

Amit Kumar Prasad
3rd Defendant

And:

Han Mati
4th Defendant

Appearances: Mr W.Tabuya for the plaintiff
Mr Tuitoga for BSP Life (Fiji) Ltd, the proposed fifth defendant
Date of hearing: 28 October, 2014

Judgment

1. This is an application by the plaintiff for leave to join BSP Life (Fiji) Ltd, as the fifth defendant in these proceedings.
   
2. The originating summons had in the first instance, named the "BANK OF SOUTH PACIFIC" as the fifth defendant. Consequent to a notice of motion to strike out that party, Mr Tabuya, counsel for the plaintiff had conceded that the Bank was mistakenly added and consented to strike it out.
   
3. The originating summons, inso far as relevant to this application, seeks the following relief:
   

Whether or not the Bula Scholar Policy No. 9108644 subscribed to and owned by Nathan Amitesh Prasad was correct when it was paid out by the 5th defendant to the 3rd defendant, according to the Succession, Probate and Administration Act (Cap 60), or in the alternative, the Fiji Public Trustee be appointed?

4. In her affidavit in supportof her originating summons, the plaintiff states that:
   
   • That..unknown to the plaintiff, the Deceased (her husband) had signed up with the Bank of South Pacific... for a BSP Life policy No,8108644("Bula Life policy")
     
   • The Deceased had appointed Aaron as the 100% Beneficiary and the Third Defendant as Trustee for the BSP Life policy holding it in trust for their child, Aaron, until he is of legal/major age...
     
   • I do not understand why someone else is holding a monetary sum of $24,000.00 in trust for Aaron when I am in urgent need of funds as a single mother who is raising, paying for and looking after Aaron by myself with little to no financial assistance from my in-laws.(emphasis added)
     
5. The third defendant, in the affidavit in reply filed on his behalf and the first, second and fourth defendants states that the deceased appointed him as trustee of the Life Insurance Policy No. 8108644 on 21st August,2010. He did not appoint the plaintiff as a beneficiary or trustee, since they were having trouble in their marriage.
   
6. Mr Tuitoga, counsel for BSP Life(Fiji) Ltd, in his written submissions has drawn my attention to section 152 of the Insurance Act. The section reads:
   
   1. The owner of a policy of insurance on his own life ("the owner") may, when affecting the policy or at any time before the policy matures for payment nominate a person or persons to whom the payment secured by the policy is to be paid in the event of his death ("the nominee").
      
   2. A nominee may be a minor, in which case the owner of the policy may, in the prescribed manner, appoint a person to receive the payment secured by the policy in the event of the owner's death during the minority of the nominee.
      
   3. .....
      
   4. ..
      
   5. Unless written notice of a cancellation or change has been given by the owner to the insurer, the insurer is not liable for any payment under the policy made to a nominee mentioned in the text of the policy or in the Insurer's register of policies..(emphasis added)
      
7. The plaintiff, in her affidavit acknowledges that her late husband had appointed the third defendant as trustee for the BSP Life Policy holding it in trust for their child, Aaron, until he is of legal/major age.BSP Life (Fiji) Ltd has complied with its obligations under the policy and the Insurance Act, 1998, and paid out the benefits to the trustee, the third defendant
   
8. I need hardly add, as Mr Tuitoga submits, that BSP Life (Fiji) Ltd has no control over a customer's nomination of beneficiaries to their policy and appointment of trustees. It is for this reason that section 152 (5) provides that the insurer is not liable "for any payment under the policy made to a nominee mentioned in the ..policy".
   
9. In my judgment, the application to add BSP Life (Fiji) Ltd is misconceived.
   
10. Orders
    
    • (a) The application of the plaintiff to add BSP Life (Fiji) Ltd, as the fifth defendantis declined.
      
    • (b) The plaintiff shall pay BSP Life (Fiji) Ltd $750 as costs summarily assessed within 14 days of this judgment.
      

24th November, 2015

A.L.B.Brito-Mutunayagam
Judge