Ditta v Eagle Star and British Dominions Insurance Co. Ltd (C.C. 120/1933.) [1933] EACA 14 (1 January 1933)

## ORIGINAL CIVIL.

## Before LANE, Ag. J.

## BHAGAT RAM S/O GURAN DITTA (Plaintiff)

# EAGLE STAR AND BRITISH DOMINIONS INSURANCE: CO., LTD. (Defendants).

## C. C. $120/1933$ .

Insurance (motor car)—Material facts—Untrue statements— Knowledge of agent of insurance company.

Held (14-10-33).—That where a proposer signs a proposal form which has been filled in at the proposer's request by the agent of the insurance company, in purported conformity with information supplied by the propo

Held Further.-That where a person signs without reading a proposal of insurance which another person has filled in, and wherein the declarer solemnly binds himself that its contents are true, he must be held to have adopted it.

Phadke for Plaintiff.

Figgis, $K. C.$ , for Defendants.

The defendants' agent filled in the proposal form for the plaintiff (the insured), who thereupon signed it. The form contained untrue answers to questions; the plaintiff alleged that he dictated true answers, and that the defendants' agent wrote down untrue ones; that he signed the form without reading it or having it read to him.

It was found as a fact that plaintiff did not disclose the truefacts to the agent.

Phadke.—The agent was the agent of the company. His knowledge of the untrue answers was the company's knowledge. Referred to Keeling v. Pearl Assurance Company, 129 L. T. R. 573.

Figgis.—In any event, plaintiff is bound by the form which he signed; agent was agent of insured not of insurer. Referred to Biggar v. Rock Life Assurance Company (1902), I K. B. D. 516; Newsholme Brothers v. Road Transport and General Insurance Co., Ltd. (1929), 2 K. B. D. 356.

The facts appear from the judgment.

JUDGMENT.—The plaintiff is seeking to recover Sh. 3,000 from the defendants on a contract of insurance by which he insured his motor car with the defendant company for Sh. 3,000 against loss or damage from accident.

The car was insured in May, 1932, and entirely burnt in March. 1933.

The defendant company repudiate liability, saying that the contract is void owing to certain statements in the proposal form being false and inaccurate; they allege that the fire which wrecked the car was not accidental but deliberate. They accordingly refused payment. Their main argument is that the replies to questions in the proposal form (notably replies in questions Nos. 8 and 14) were deliberately false, and were made to get a special rate of premium; that the form was signed by the plaintiff, and that, apart from the question whether the plaintiff's replies were deliberately false or not, he is in any event bound by the contents of the forms, that it was his absolute duty to read and study it, and that the false replies constituted misrepresentations such as caused them to accept plaintiff's proposal for insurance, and entitle them to avoid the contract.

The plaintiff admits that two of the replies to questions were incorrect. viz. No. $8-Q$ . "Has any motor car or cycle owned by vou suffered damage? " A. " No."—and No. 14—Q. " Has any company declined or cancelled a policy of yours? " $A$ . "No."

The plaintiff admits that the same car was insured with unother company which cancelled the policy on account of several accidents for which claims were made.

The plaintiff's case is that he gave true answers to the questions verbally, that he being illiterate and not knowing English, the proposal form was written out for him by one Thanawalla a clerk and agent of the defendant company, that the misstatements were inserted by Thanawalla without plaintiff's knowledge. that plaintiff signed the form without knowing its contents, that he is not responsible for the falsity of the replies, that Thanawalla was acting as defendants' agent in doing so, and that defendants are therefore liable on the contract, in spite of the inaccuracy of the written replies.

The form was in fact filled in by Thanawalla, and signed by plaintiff with his mark. As to whether Thanawalla did this at the plaintiff's request or of his own volition, there is a conflict of evidence; as also as to whether the answers were dictated by plaintiff and read over to him before he signed the form. There is also a conflict of evidence as to whether plaintiff had explained to Thanawalla, before the form was filled in, about the previous insurance policy, the claims thereon, and the cancellation.

The plaintiff's evidence is that he explained all this, and dictated the true answers to the questions, and that Thanawalla wrote something down on the forms; what it was, plaintiff did not know; and that when Thanawalla told him it was all right he put his mark to the form.

Plaintiff cannot read or write in any language apparently, and knows no English. He took one Inder Singh with him to the defendant company's office, to protect his interests and help him. as Inder Singh speaks and writes English well. Inder Singh's evidence is to the effect that plaintiff did explain to Thanawalla about the previous policy, the claims thereon, and the cancellation; that plaintiff asked Thanawalla to fill in the form; that Thanawalla put the questions to plaintiff, who replied to all of them; that to questions 8 and 14 plaintiff gave true answers: that plaintiff signed the form without its being read over to either of them or handed to himself to read over. The evidence therefore of the plaintiff and this witness is that true answers to questions 8 and 14 were in fact given by plaintiff, but that Thanawalla for some reason deliberately wrote down false ones. in spite of the fact that Inder Singh, who could read English, and was sitting close by, might easily have asked to see the replies, and had in fact been taken there expressly to assist and protect the plaintiff.

Thanawalla says that he translated the questions to plaintiff in Hindustani, and wrote down his answers, and that the written answers represent the plaintiff's words to him; his evidence agrees with Inder Singh's on the point that plaintiff asked him to fill in the form. His evidence then is that plaintiff deliberately misrepresented the facts in replying to questions 8 and 14. There is the evidence also of the statement taken by Mr. Hamilton after the accident from the plaintiff, wherein he repeats the same denial of previous insurance policies and claims for accidents. These then are the facts before the Court. In deciding as to the truth of the facts and the degree of probability of the plaintiff's evidence as against Thanawalla's, it is necessary to bear in mind that the plaintiff had insured for Sh. 3,000 the car, an old one which cost him Sh. 1,000, and which had obviously deteriorated since; that the car was wrecked by fire in somewhat suspicious circumstances; and that plaintiff's demeanour and statements in the witness-box were not altogether satisfactory; for instance, he said that he knew no Swahili, although he had traded here for 32 years. There were also certain discrepancies between his version of the story and Inder Singh's. As against this, there is the possibility that Thanawalla may have been actuated with a desire to secure an insurance regardless of the truth of the declaration, and have been lying in the witness-box to save himself from trouble with his employers.

On the question of law, the plaintiff relies on the case of Bawden v. London, Edinburgh and Glasgow Life (1892), 2 Q. B. D. 584. In this case, the agent of the defendant company filled in the proposal form, which contained a false statement. It was held that the insured was entitled to recover on the ground that the knowledge of the agent in respect of the false statement was the knowledge of the company. The insured was one-eyed, and the declaration form stated that he had no physical infirmity; the agent knew that he was one-eyed, yet he made the false declaration, which the insured signed. The agent was held to be the agent of the insurer in this instance and not of the insured.

In this connexion, I consider that it is proved that Thanawalla was not aware of the falsity of plaintiff's replies to questions 8 and 14, so that Bawden's case is not on all fours with the present one.

The defendants rely on the decision in Biggar v. Rock Life Assurance Co. (1902), 1 K. B. D. 516, where the company's agent in filling in the form was held to be the agent of the insured, and where the decision in the American case of New York Life Insurance Company v. Fletcher was followed to the effect that if a person signs a declaration which another person has filled in without reading it, he must be held to have adopted it. The defendants here say that, even assuming the plaintiff's evidence to be true, the plaintiff can on the ground of this decision have no claim. The proposal form is the basis of the contract, and the declarer solemnly binds himself that its contents are true: the truth of the statements therein are expressly stated to be a condition precedent of the contract. The law requires the utmost good faith in insurance contracts.

The decision in Biggar's case was upheld in the more recent case of Newsholme Brothers v. Road Transport and General Insurance Company by the Court of Appeal in 1929, where it was held that the company's agent in filling in the proposal form was merely the amanuensis of the proposer, that the knowledge of the true facts by the agent could not be imputed to the insurance company, and the latter was entitled to repudiate liability because of the untrue statements in the proposal form.

The remarks of Scrutton, L. J., in that case appear particularly applicable here: "The decision in Bawden's case is not applicable to a case where the agent, at the request of the proposer, fills up the amount in purported conformity with information supplied by the proposer. If the answers are untrue, and he knows it, he is committing a fraud which prevents his knowledge of the insurance company. If the answers are untrue, and he does not know it, he has no knowledge which can be imputed to the insurance company. In any case, a man who has signed without reading it a document which he knows to be a proposal of insurance and which contains statements in fact untrue and a promise that they are true and are to be the basis of the contract, cannot escape from the consequences of his negligence by saving that the person he asked to fill it up for him was the agent of the insurance company."

With respect I would say that these remarks entirely cover the position here.

On fact, I consider that plaintiff is lying when he says that he disclosed the true facts to Thanawalla, and in law, even if he had not been lying, he would not have been entitled to recover for the reasons so admirably and clearly explained in Lord Justice Scrutton's judgment.

I entirely associate myself with Mr. Figgis when he says that plaintiff's is a most impudent and fraudulent claim, and that it is of great importance that such claims should be discouraged. 1 dismiss the plaintiff's claim with costs.