Herman v The New India Assurance Company
| Jurisdiction | Trinidad & Tobago |
| Judge | Smith, J. |
| Judgment Date | 08 March 1999 |
| Neutral Citation | TT 1999 HC 23 |
| Docket Number | HCA No. 1790 of 1993 |
| Court | High Court (Trinidad and Tobago) |
| Date | 08 March 1999 |
High Court
Smith, J.
HCA No. 1790 of 1993
Mr. G. Benjamin for the plaintiff.
Mr. F. Hosein for the defendant.
Insurance law - Fire insurance policy — Defendant claim that at the time of loss the plaintiff's house had become and remained unoccupied for more than 30 days before the loss without sanction by the defendant, contrary to clause 8(b) of the policy of insurance —, Court found that the plaintiff did not breach clause 8(b) of the policy — Judgment in favour of plaintiff.
This is a claim for a loss under a fire insurance policy. The plaintiffs case is that the defendant agreed to insure her dwelling house situated at Caroni Private Road, Edinburgh Village, Chaguanas against loss or damage by fire in the sum of $190,000.00. On the 24th October, 1992, during the currency of the policy, the said dwelling house was destroyed by fire and despite due notification of the loss the defendant refused to indemnify the plaintiff. The defendant's case in essence is that at the time of the loss, the plaintiffs said house had become and remained unoccupied for mare than 30 days before the loss without the sanction of the defendant, contrary to clause 8(b) of the policy of insurance. At the trial the defendant also submitted that the plaintiff failed to prove her loss.
The Facts:
Certain documents were, by consent of the parties, put in evidence, one of which was the policy of insurance along with the relevant indorsements.
The plaintiff testified that she was the owner of the house and land in question but that she been living in the United States of America since 1983 and that she had left her sister and niece in charge of the premises. In 1992, her niece, one Indra Singh, was in charge of the premises. The plaintiff became aware of the fire soon after its occurrence and made a claim on the defendant but to date has not been paid on it. Cross-examination of the plaintiff revealed her faulty memory with respect to matters concerning the occupation of the house, which is not surprising considering her earlier testimony that she left her sister and her niece in charge of the house.
Indra Singh next testified on behalf of the plaintiff, she gave evidence as to the occupation of the premises by various tenants, by the plaintiffs son and by her brother. As was admitted by both counsel, the relevant period of occupation was the 30th March, 1992 to 30th March 1993, being the last period for which the policy was renewed. During the relevant period, the premises had been occupied by one Mr. Ramesar between January up to the end of May or early June 1992 and thereafter, Mrs. Singh's brother, one Jewan Mahadeo began to occupy the premises only at nighttime from Thursday to Saturday, every weekend except the weekend of the fire, which was Divali week-end. In cross-examination, this witness stuck to her story and added that in May, 1992 the water and electricity supply to the premises had been disconnected, further, there were no insured items of furniture on the premises, she stated that she may only have gone into the house once during the period when her brother was in occupation of the same and she remembers that there were cupboards and space savers in the house.
Jewan Mahadeo next testified for the plaintiff. He stated that from about 1 week after the tenant had moved out of the premises, he began to occupy the same on every weekend except the weekend of the fire in question which was Divali weekend. His reason for occupying the premises was due to the fact that the house was close to a bar owned by his family in Chaguanas, where he started work on evenings after his regular job from about 6.00 p.m. till about 10.00 p.m. during week nights or 12.30 a.m. to 2.00 a.m. on week-ends; after work he was responsible for closing the business, at that time of the morning he would have to travel by public taxis to his home in Freeport with a lot of money on himself and he felt at risk of being robbed. He would hide any money which he carried in a pillow at the premises in question. At about 6.00 to 6.15 a.m. he would leave the said premises. At the house, he kept about 3 – 4 pieces of underclothing, a short pants, 3 jerseys, 2 dress pants and dress shirts, a sheet, a pillow, a pillow case, a foam mattress, a wooden chair and a coffee table and sundry toiletries. He testified that during his occupation there was never any unauthorised entry into the house, through he did notice items of food and an old bag outside in the yard which suggested that there had been same unauthorised entry an the outside of the premises. He kept a flashlight an the premises and there was a water-tank connected to the guttering of the house which gave a supply of rain water to the same. Mr. Mahadeo testified that he stayed in the house up to the Sunday before the fire, and that the fire occurred on the following week-end which was Divali week-end, during which period the family bar was closed. During the time he stayed on the premises, the same was in good condition and there was burglar proofing inside the building. There was also a built in buffet which separated the living room from the dining room and kitchen cupboards and a kitchen sink along with bathroom and toilet facilities with a face basin. The yard was bushy and only a pathway was cut up to the house.
For the defendant, Harold Bridgelal testified that on the 24th October, 1992, he was the Fire sub-Officer attached to the Chaguanas Fire Station and that he went to the plaintiff(s premises with 3 junior fire officers at about 5.30 a.m. There, he saw the building already engulfed in flames. The blaze was contained within 5 to 6 minutes and then dampening operations commenced. In his opinion, the fire commenced in the roof. After the fire was contained, he entered the building through the front door which he did not have to break down. There was absolutely no furniture or household articles in the building nor were there any accelerants to indicate the exact cause of the fire. He added that if there were any items of household furniture in the house such as a bed or sponge foam mattress, he would have found them. There was bush and grass right up to the external walls of the house, in fact the bushes were about window height (some 1 1/2 metres high) and were an to the house. The building was completely destroyed by the fire. He did not recall seeing any wooden built-in wardrobes or built-in cupboards in the kitchen nor could he remember whether there was any burglar proofing. In cross-examination he indicated specifically that he could not remember if there were any buildings close enough to be at threat from the fire, but in re-examination he stated categorically that no surrounding buildings were at threat from the fire.
By consent, leave was granted to use a statement attached to a hearsay notice filed on the 24th November, 1998. In this statement dated 27th January 1993, one Veena Ackbar, a neighbour, stated as far as it is relevant, that the plaintiffs house was unoccupied for at least 4 years prior to the fire, the last person in occupation being “a Guyanese man and his family.”
Other documents included a letter to the defendant from the officer in charge of the fire prevention section of the Central Divisional Fire Headquarters, Arima Fire Station, which added nothing new to the testimony given, and letters between the parties stating their position on the matter.
On the evidence, the main contest was as between the testimony of Jewan Mahadeo as to the occupation of the premises and that of Harold Bridgelal. In this regard, I found that Mr. Mahadeo's testimony was consistent and unshaken by cross-examination and his story as presented seemed very plausible. On the other hand, Officer Bridgelal(s evidence tended to be rather generalised and when tested on details revealed certain flaws and inconsistencies, so for instance, as was stated above, while in cross-examination he could not remember if any surrounding buildings were at threat from the fire, in re-examination he volunteered quite categorically that none of the surrounding buildings were at threat from the fire; while he could recall that he did not any items of furniture in the house, he could not recall if there were other items such as built in cupboards, wardrobes and even burglar proofing; while in chief he stated that he went through the front door and that it was not locked, in cross-examination the could not recall what he observed about any doors remaining on the premises. In the circumstances, I found that his recollection of the events was faulty and I preferred the evidence of Jewan Mahadeo to his own wherever the same conflicted. In any event, it is also possible that Officer Bridgelal did not observe any of the scant items of “furniture” and the personal effects of Mr. Mahadeo at the premises because they were so relatively minor and were all consumed by the fire which completely destroyed the building.
As for the statement of Veena Ackbar, I found it unsafe to place any great weight on the same since it was not tested by cross-examination. It was also vague in material particulars such as in giving the identity of the last occupants of the premises, who could only be described generally as a “Guyanese man and his family” and did not give important details such as the length of his occupation in fact, I wondered about the accuracy of the observations of...
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