IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISON AT NADI
[CIVIL JURISDICTION]

NADI CIVIL ACTION NO. 149 OF 2011

BETWEEN:

REENA KRISHNA NAIDU of Nadi.
PLAINTIFF

AND :

DOMINION INSURANCE LIMTIED
a limited liability company having its registered office at Level 2, 231 waimanu Road, Suva.
DEFENDANT

JUDGMENT

1.	On 15th February, 2011 Plaintiff filed statement of claim seeking the following relief:

(1)	SPECIAL DAMAGES in the sum of $12,000.00.

(2)	GENERAL DAMAGES not exceeding the jurisdiction of this Court.

(3)	INTEREST on all judgement components and as awarded by the Court limited to jurisdiction of the Court.

(4)	COSTS of this action on a solicitor and client full and complete indemnity basis not exceeding the jurisdiction of this Court.

(5)	SUCH further and/or other relief as this Court deems fit, just, expedient or necessary in the circumstances provided however that the same is within the jurisdiction of this Court.

2.	The Defendant filed statement of defence on 2nd June, 2011 and prayed that the Plaintiff's claim be dismissed with cost. The Defendant further stated that the Plaintiff, her husband and the Defendant entered into a Hire Purchase Agreement ("the agreement") on 8th February, 2008 in respect of vehicle registered number FJ 551 ("the vehicle"). The Defendant further stated that it will rely on the full terms of the agreement at the hearing of the matter.

3.	On 23rd August, 2011 the Plaintiff filed reply to statement of defence and stated inter alia that the Plaintiff accepts the partial admission contained in paragraph 11 of the Statement of Defence that the Plaintiff has notified the Defendant of it's claim but the Defendant has refused and/or neglected to pay the same and the Plaintiff denies the rest of the contain in paragraph 11 and puts the Defendants to strict proof the same.

4.	The facts of the case may be gleamed from the pleadings as follows:

4.1	This action has been brought by the Plaintiff against the Defendant on a Comprehensive Motor Vehicle Insurance Policy. The claim arises out of a burglary/theft of the Plaintiff's vehicle, registration number FJ 551, on 10th October, 2009. The vehicle was stripped of a number of parts, and then subsequently set on fire. The said policy extended cover to include theft and burglary, subject to the installation of a burglar alarm in the vehicle.

4.2	The vehicle was purchased for $27,000.00 of which $7,000.00 was paid as deposit. The Plaintiff obtained finance for the remaining sum from Dominion Finance Limited (herein "the financier") through the Hire Purchase agreement on 8th February, 2008 (exhibit "D- 5").

4.3	The financier, as a condition of its Hire Purchase Agreement, required a valid Motor 	Vehicle Insurance Policy. Hence, a proposal was made by the Plaintiff to the Defendant for a Comprehensive Motor Vehicle cover. The proposal was accepted on 22nd of January, 2008 by the Defendant which provided a cover of the Plaintiff's vehicle for the period 22nd January, 2008 to 31st March, 2009. The insured sum was $25,000.00 ( exhibit "D-6" policy number 225096).

4.4	In February, 2009 the Defendant issued an Expiry Notice whereby a further 12 month 	cover was offered on the same terms for an insurance premium of $1,062.50 (exhibit "D-8"). The Plaintiff was issued a receipt (see exhibit "D-4") and a new Motor Vehicle Policy Schedule issued for the period 31st March, 2009 to 31st March 2010 (exhibit "D-2").

4.5	On 10th October, 2009 the Plaintiff's vehicle was stolen and set fire. The Plaintiff made a claim with Defendant (exhibit "P-9"). On 16th October, 2009 the Defendant declined the claim under the policy on the grounds of breach of a policy condition which provided that the "Burglary/Theft cover is subject to Alarm installed in vehicle" ( policy Schedule exhibit "D-2").

4.6	By way of "ex-gratia" payment, the Defendant paid the financier, the outstanding sum of the Hire Purchase Agreement, that being $12,000.00. The Plaintiff claims this payment was made without their knowledge, and was rightfully entitled to the remaining insured sum of $13,000.00 under the policy of insurance with the Defendant.

5.	The issues that have to be decided by the Court are that:

(i)	 Whether if the Plaintiff was not aware of the condition that an alarm had to be installed in the vehicle, would she be entitled under the policy.

(ii)	Whether the Plaintiff would be entitled to anything as she had neither pleaded nor proved her loss/damage.

6.	Reena Krishna Naidu, the Plaintiff (PW1) gave oral evidence and produced following exhibits:

(1)	P1-LTA search.
(2)	P2-Contract statement of Dominion Insurance.
(3)	P3-Dominion Insurance Debit Note.
(4)	P4-Dominion Insurance Motor Vehicle Policy Schedule.
(5)	P5-Dominion Insurance client Receipt.
(6)	P6- Dominion Insurance client Receipt.
(7)	P7-Dominion Insurance Motor Vehicle Policy.
(8)	P8- Dominion Insurance Motor Vehicle Policy Schedule.
(9)	P9-Motor Vehicle accident claim form.
(10)	 P10-Notification of declining the claim.
(11)	 P11-Letter written to claims office.
(12)	 P12-Letter from Dominion Insurance.

7.	Mr Sharan Kumar gave oral evidence on behalf of the Defendant and the following exhibits were produced:

(1)	D1-Expiry notice.
(2)	D2-Motor Vehicle Policy Schedule.
(3)	D3-Client receipt.
(4)	D4-Client receipt.
(5)	D5-Dominion Insurance Policy.
(6)	D6-Motor Vehicle Schedule dated 19/02/2008.
(7)	 D7-Extract from register.
(8)	D8-Dominion Insurance expiry notice.
(9)	D9-Extract from register.
(10)	 D10-Letter from Dominion Insurance dated 21/12/09.

8.	A summary of the Plaintiff's evidence is as follows:

(a)	She owned a car rental company and also owned the insured vehicle as a private car.

(b)	She insured the vehicle with Dominion Insurance recommended by Bhima Swami but was never advised about the car alarm.

(c)	The car was stolen on 10/10/09. Her sister was using the car at that time. The car was lost from the Prince Charles Park. She reported the matter to the Police. The car was later found in Lautoka burned. Her sister made the claim.

(d)	She made the claim but her claim was declined. She made an appeal against it. The Appeal also was declined. 

9.	Under cross examination the Plaintiff admitted the reading the Motor Vehicle Policy Schedule and Motor Vehicle Policy (exhibit "P4" and "P7" respectively) around the time the flood occurred in January 2009. She further admitted that after reading those documents she was happy with the conditions and that she didn't require contacting the Defendant. She had no objection to policy wordings and conditions. She also told that she would've received P7 and P4 together. She confirmed the Financial Agreement (D5). She also admitted that the Defendant had as an ex-gratia payment, paid the financier $12,000.00 and admitted she now understood the financier could act in her interest. She was now satisfied as to the "ex-gratia" payment and happy that her loan has been paid off.

10.	The Defendant witness who is an insurance underwriter with the Defendant confirmed that exhibit P4 and P7 were sent to the Plaintiff together as that is the normal procedure. She further explained that the documents are "time-locked", hence if a document was to be printed out today it would show today's date on it. If a document shows the date 19th February 2008 that would be the date the document was printed. She also explained that the payment made to the financier was made "ex-gratia" and that these payments are common. These are made on a commercial relationship basis and are usually made in favour of the financier and that the insured/customer is not required to be informed. She also informed that the Defendant Company and the financier are both separate legal entities.

11.	The Plaintiff's claim from the Defendant a sum of $12,000.00, being the amount the Defendant paid out to the Dominion Finance. Basically, the Plaintiff's claim arises out of an insurance claim. In January 2008 the Plaintiff purchased a motor vehicle registration number FJ551 which was financed by Dominion Finance Ltd (DF Ltd) for the sum of $21,000.00 which was repayable with interest for the sum of $30,450.00.

12.	The Plaintiff insured the vehicle with the Defendant for the sum of $25,000.00. The Insurance Policy number 225096 issued by the Defendant was effective and valid from 22 January 2008 till 31 March 2009 and renewed from 1 April 2009 till 31 March 2010.

13.	On 10 October 2009 the Plaintiff's vehicle was stolen from Prince Charles Park in Nadi Town, whilst the Plaintiff's sister was using it. On 13 October 2009, the Plaintiff made a claim under the insurance policy. The Defendant declined the claim on the basis that the Plaintiff failed to install the alarm system that was a requirement for the burglary/theft cover. However, the Defendant paid out to the DF Ltd, being the financier of the vehicle, the sum of $12,000.00 under said policy. The Plaintiff contended that the said sum was paid out to the DF Ltd without her knowledge and she was not informed of the condition that the vehicle must be installed with an Alarm system in order to obtain a cover for Burglary/Theft. Nevertheless, the Plaintiff admitted that she did not pay the outstanding balance $12,000.00, payable under the Hire Purchase Agreement with the DF Ltd.

14.	The Defendant stated that they paid out to the DF Ltd the sum of $12,000.00 as an ex-gratia payment.

15.	The Motor Vehicle Policy wordings ("P7") states clearly in the first paragraph:

"The Dominion Insurance will indemnify you in respect of any loss or damage (as defined) to the vehicle(s) described in the policy schedule and/or in respect of any legal liability (as defined) which occurs during the period of insurance within Fiji and subject to the Terms and Conditions of this policy. The Dominion's liability for each Section shall not exceed the sum insured for each Section".

16.	The Policy Schedule ("D2") expressly states:

"Burglar/Theft cover is subject to Alarm being installed in the vehicle"

17.	The Plaintiff initially disputed that she did not receive the policy schedule at the time of the renewal of the policy. Under cross examination however admitted that she received the policy schedule before the renewal for the year in which the loss occurred namely 2009.

18.	Under the policy the Plaintiff had option to cancel or vary the policy she had with the Defendant. Condition number 4 of the policy states:

"Cancellation and Variations:

(a)	The insured may cancel this policy at any time in which case Dominion will refund 80% of unused basic premium.

(b)	The Dominion may cancel this policy or amend the terms, exclusions and limitations after 4.00pm on the 14th day following dispatch or written notice to the insured's last known address. The insured shall be entitled to a return of premium proportionate to the unexpired period of the cancelled policy".

19.	There is no evidence before court that the Plaintiff attempted to exercise her right to cancel the initial cover at any time even after she received the policy schedule. The Plaintiff cannot now say that she did not know that the cover was subject to installation of Alarm System in the vehicle. The Plaintiff's evidence that she was unaware of the terms of the policy condition as to the requirement for a burglar alarm to be fitted in the vehicle cannot be accepted.

20.	The Plaintiff did not pay to the DF Ltd the outstanding balance of $12,000.00 under the Hire Purchase Agreement. This amount has been paid out by the Defendant to the DF Ltd as an ex-gratia payment. There is no legal requirement that the Plaintiff should have been notified before such payment was made. The Plaintiff neither pleaded nor proved a breach of the policy by the Defendant. Instead she had breached the condition of the policy by not installing an Alarm system in the vehicle. Further, the Plaintiff also failed to prove that she suffered any loss/damage. The Plaintiff must prove what the value of the vehicle was at the time of her claim. The Plaintiff did not call evidence of valuation. 

21.	The Plaintiff sought special and general damages. No particulars of these damages were given by the Plaintiff. These damages were not proved in court by way of evidence. 

22.	For the foregoing reason I must decide that the Plaintiff's claim is bound to be dismissed with cost to the Defendant. 

23.	The Defendant seeks costs on full indemnity basis. The Defendant submitted that it has had to endure a Hearing which, prima facia was not required. The Plaintiff herself admitted in Court all she required was an understanding, and now having been cross examined, she understood all the clauses. She had no valid grounds for proceeding with this action.

24.	The Defendant further submitted that the Plaintiff said she was now satisfied as to the "ex-gratia" payment and she is happy that her loan has been paid off. It is clear admission by the Plaintiff that this was a frivolous and vexatious.

25.	Indemnity costs are awarded where a party's conduct is found to be oppressive or vexatious or reprehensible. Reprehensible conduct was found by Lyon, J. in CHINSAMY GOUNDAR V THE NATIONAL INSURANCE CO. LTD (Civil Action No. HBC 0337.94L) where his Lordship said at page 21:

"I consider it must be behaviour of such a reprehensible nature that it inevitably causes their opponent to be drawn litigation which the unsuccessful party well knew at the commencement thereof (if the truth had been told) would not be in fact be successful. There must be, I think a deliberate and persistent withholding of that truth by the unsuccessful party".

26.	In my opinion the Plaintiff has brought this action without probable ground hence the Defendant is entitled to full indemnity costs as a successful party.

27.	I therefore struck out and dismiss the plaintiff's claim with the costs to be agreed, if not assessed/taxed and payable to the Defendant.

28.	Orders accordingly.

Dated at Nadi this 29th day of January 2013.

...........................................
M H Mohamed Ajmeer
Resident Magistrate

Messrs Patel & Sharma, Barristers and Solicitors for the Plaintiff.
Messrs AK Lawyers for the Defendant.