Khan v Prime Insurance Company Limited (Civil Cause 2447 of 1998) [2001] MWHC 129 (26 January 2001)

a ~CORAM: HON. JUSTICE F. E. KAPANDA Ly ¥ A oS Ng OX sy poy ¥ 28S *, INTHE HIGH COURT OF MALAWI = 2 &EF ah f S S Ee SIE E Fe . os vy of ee ~~ PRINCIPAL REGISTRY S > & / x 3 nS xe © ty ae SSE” ©» CIVIL CAUSE NO. 2447 OF 1998 7 see Jp KHAN Looe cece ccccccecceccecccecceeeeebeeee bee beesceceec. PLAINTIFF and PRIME INSURANCE COMPANY LIMITED beceeees DEFENDANT Mr Msungama, of Counsel for the Plaintiff Mrs Mulele, of Counsel for the Defendant Mr Balakasi, Official Interpreter Mrs Chingana, Recording Officer Kapanda, J. Introduction By a writ of summons issued on 7th August 1998, to which there was attached a full statement of claim, the Plaintiff commenced legal proceedings against the Defendant. In the action 2 commenced the Plaintiff's claim is for the sum of K1,360,000.00 plus interest at 1% above the prevailing bank lending late up to the date of payment and costs of the action. This sum of K1,360,000.00, according to the statement of claim, represents what the Plaintiff alleged ts the loss and damage that he suffered as a result of the Defendant’s denial in settling his insurance claim arising from a road accident. The Defendant denied being liable to pay the said loss and damage allegedly suffered by the Plaintiff. As a consequence of this denial the parties joined issues on the law suit commenced by the Plaintiff. | Pleadings The Plaintiff made the following allegations of fact in his statement of claim attached to the said writ of summons issued on the said 7th of August 1998:- “1. By a policy of insurance: which became effective on the 31st day of December 1996 and was valid for a period of 12 months made by the defendant, in consideration of a premium paid and to be paid to them by the Plaintiff, the Defendant insured the Plaintiff against loss or damage to the Plaintiff's truck HO1isé rePisivation number MII 1071 aid trailer registration number SA 409 for the sum of i 1,600,000.00. 2. Atall material times the Plaintiff was interested in the said truck horse and trailer to the extent of the amount so insured thereon. 3 3. On the 26th day of March, 1997 both the truck horse and the trailer were involved in an accident which resulted in extensive damage (being) done to the same by reason whereof the Plaintiff has suffered loss and damage. Particulars Value of truck horse and tratler KK 1,600,000.00 Less amount of Excess kK. 240,000.00 Total loss and damage K1,360,000.00 4. The Plaintiff duly notified the Defendant of the said loss and damage, but the Defendant has not paid to the Plaintiff the said sum of K1,360,000.00 or any part.” The Defendant, on the other hand, denied all the averments in the Plaintiff's statement of claim and proceeded to make its own allegations of tact. The apposite facts of the Defendant’s statement of defence, as amended, are as follows:- eG Amended Defence 1. The Plaintiff signed and delivered to the Defendant proposal in writing dated 3rd January 1997 which ine Plamiiffl ayreed should ve ihe basis of thie contents of insurance. 2. In reliance upon the Statement contained in the proposal the Defendant granted the policy on which the Plaintiff was insured against loss or damage to the Plaintiffs truck and horse registration number 4 MH 1071 and trailer registration number SA 409 for the sum of K1,600.000.00 for the period of one year from 31st December 1996. The Plaintiff and the Defendant agreed that in the case of an accident the Plaintiff was to bear the first amount payable of K240,000.00. To this extent a Commercial Policy Schedule was signed and a certificate was issued to the Plaintiff who was also given a copy of the Commercial Vehicle Policy. The proposal submitted by the insured (Plaintiff) was not true in every aspect and contained false statements and or misrepresentations. Particulars The Plaintiff declared to the Defendant that the value of the vehicle was K.1,600,000.00 while the actual value of the truck and horse declared to government was K233,426.00 and that the trailer was K 4,176.00. The Defendant, at the time of the alleged accident, Was ii0t COVeled under ie policy. Particulars The Plaintiff had not paid to the Defendant the premiums amounting to K174,374.37. 3 7. Inthe premises the Defendant dentes that they are liable to pay the Plaintiff the sum of K1,360,000.00. 8. And the Defendant prays to this Honourable court that the Plaintiff's claim be dismissed with costs. 9. Save as herein before specifically admitted every allegation of fact is denied as if the same were herein set forth and traversed seriatim.” In view of the Defendant’s statement of amended defence the parties joined issues on the action. It therefore became necessary for the parties to call evidence in support of their respective allegations of fact. Evidence It is on record that both the Plaintiff and the Defendant called witnesses to testify in their respective behalf. The Plaintiff testified on his own behalf while the Defendant called three witnesses to give evidence on its behalf. I will now proceed to review, in a narrative form, the evidence that is on record. Starting with the Plaintiff, it was his evidence that he is a transporter. It was further testified by him that he bought a horse tractor and trailer from a Mr Nathanie at the price of RATT 1 COD ODN OA 4c6kd teed li hee Glew, eet A been lee 252) Tene Ben hee IVEIN £,VUU,UUYU. UU ALIU Wdl NO dU WIC SdaIU LLAIIOL ALLU LLOLSO LLACLUOL insured at a total value of MK 1,600,000.00. The Plaintiff continued to state that he had the horse tractor and the trailer insured through M/s Pagat Insurance Agency who made him fill a proposal form which was tendered in evidence and has been marked as Exh. P2. It was his further sworn statement that G he indicated, in the said proposal form, the sum of MK I ,600,000.00 as the estimated value of the horse tractor and trailer because that was the price he actually paid for same. It must be noted, though, that the Plaintiff did not produce a receipt showing payment of this sum. But, as shall be seen later in this judgment, his failure to produce the receipt is no reason to disbelieve his evidence concerning the value of the horse tractor and trailer. Further, in cross examination, he told this court that he could not produce an agreement showing that he bought the said horse tractor and trailer at a total value of K1,600,000.00. It was, however, his sworn statement that the documents relating to the purchase of the said horse tractor and trailer and also some other documentation relating to same could not be produced for the court’s inspection because they had all been passed on to late Mr Mandoloma and could not be traced. It was further given in evidence by the Plaintiff that upon indicating in the proposal form that his said horse tractor and trailer were valued at MK1,600,000.00 he was advised that the premium payable on the insurance that was to be effected was_ the MK199,285.20. The Plaintiff further testified that he agreed with M/s Pagat Insurance Agency that he should pay MK115,000.00 immediately leaving a balance of MK84,085.20 and that the balance was payable at the end of March 1997. Regarding this balance the Plaintiff offered as his evidence a letter from Pagat Insurance Agency dated January 1999 which has been marked as Exh. PS. I wish tO observe that in the said Ictter the balance is actually indicated as MK 84,285.20. It is in the sworn evidence of the Plaintiff that upon payment of the said sum of MK115,000.00 he was, on 31st December 1996 issued with two separate certificates of insurance being certificate No. 15983 for the horse tractor and certificate No. 15984 for the trailer. The said certificates indicate that commencement of cover in respect of both the horse and the 7 / trailer was on 31st December 1996 and the date of expiry was shown as 30th December 1997. The Plaintiff tendered in evidence the said certificates and they have been marked as Exh. P3A and 3B respectively. It 1s also in the testimony of the Plaintiff that the Defendant issued a commercial vehicle policy in his favour in respect of the said horse tractor and trailer. He presented in his evidence the said policy and it has been marked as Exh. P4. The Plaintiff further told this court that the insurance was taken in his name and that of a Mr Nathanie because he bought the vehicle from Mr Nathanie on hire purchase. It was his further testimony that Mr Nathanie wanted the insurance policy in the joint names of the Plaintiff and Mr Nathanie because the latter had not fully handed over the vehicle to the Plaintiff, The Plaintiff further testified that after insuring the said horse and trailer they were put on the road until the 26th of March 1997 when they were both extensively damaged in a road accident whereupon he immediately lodged a claim with the Defendant. It was ‘his further evidence that he had several meetings with the Defendant, in connection with his insurance claim, but the Defendant refused to honour his claim. He continued to tell this court that he was told by the Defendant that his claim would not be entertained because the horse tractor and trailer were overvalued. The Plaintiff further told this court that the horse and the trailer have not been repaired to date because the Defendant rejected his claim. It was also the Plaintiff's evidence that the horse and trailer were daiiaged EVO ECOnGiIC fepair. The Piaintifl’s Swor testiinony to the effect that the horse tractor and trailer were damaged beyond economic repair has not been contradicted or disputed by any other evidence. As mentioned earlier in this judgment the Defendant called three (3) witnesses to testify on its behalf. The first witness to be 8 called was Mr Gerald Mkondambiri Mhone, PW1, the Claims Manager for the Defendant. It was his testimony that the Plaintiff and a Mr Nathanie insured a horse and trailer, the subject matters of this action, through Pagat Insurance Agency. DW 1 further testified that Pagat Insurance Agency were agents of the Defendant who were transacting insurance business on behalf of the Defendant. It was further given in evidence by DWI that the said subject matters of this action, viz the horse tractor and trailer, were insured at the value of MK1,600,000.00 at a premium of MK199,285.80. DWI further told this court that on 2nd April 1997 at the Defendant’s offices he received an insurance claim from the Plaintiff and a Mr Nathanie but that the claim was not accepted because of non-payment of premiums. He told this court that at the time he received the insurance claim the premium paid was less than MK25,000.00. DW1 said that he does not have a receipt to show that only MK25,000.00 was paid but that he got this figure from a letter, dated 19th January 1998, which their agent M/s Pagat Insurance Agency wrote the Accountant of the Defendant company. The letter was tendered and accepted in evidence and it was marked as Exh. D1. The contents of the letter are basically that the insured is unwilling to pay the premium thus his premium has been skipped. It is observed that this letter is in respect of an insured by the name of M. A. M. F. Nathanie and not the Plaintiff. Further, I am of the view that it is possible the said M. A. M. F. Nathanie had his own separate insurance with the Defendant. It is not even known whether E Reh N11 haa ants an atin with tha Waean andA tha teavla whether Exh. DI has any connection with the horse and trailer the subject matter of this action. I find this letter of 19th January 1998 to be ambiguous. Furthermore, and in any event, it was superceded by the letter of January 1999 which specifically mentions the subject matters of this action and in it the Defendant’s agent conceded that the balance that the Plaintiff did not pay was MK84,285.80. To all intents and purposes the said letter of January 1999, Exh. PS, is G conveying the message that there was partial payment of the premium. DW 1 further testified that at the time the Plaintiff's horse tractor and trailer were involved in a road accident the policy of insurance had not been cancelled. It was his further testimony that the said policy was valid and good at the time of the said accident. DW 1 further said that there was no condition in the said policy of insurance that the policy would terminate for non-payment of premiums. Mr Disto Katenga Kaunda, DW2, was the second witness to be called by the Defendant. It was his testimony that he ts the Technical Manager at the Defendant Company. DW2 further testified that the Plaintiff's claim was rejected because the whole premium which the Plaintiff ought to have paid on the insurance taken out on the horse and trailer was not paid. This testimony is in direct conflict with the testimony of DW1, the Claim Manager, who told this court that the Plaintiff made a partial payment of the premium payable. DW2 further told this court that the policy of insurance that the Defendant issued in favour of the Plaintiff was cancelled due to non-payment of the premium and that the cancellation was done at the time the Defendant heard that the premium had not been paid. However, it was conceded by DW2 that at the time of the accident, involving the insured’s horse and fale’, OCCUTTEd the policy OF iSUraiicE isSUcd DY the Defendant was still valid and good. Regarding the conflict in the testimony of ~DWI and DW2, with respect to the payment of the premium, | prefer the evidence of DWI in view of the totality of the evidence in this case. 10 The third, and last witness, to be called by the Defendant was Mr Nil Denja Banda, DW3, the General Manager for ND Insurance Assessors. It was his testimony that ND Insurance Assessors ts in the business of investigating losses and accidents on behalf of insurance companies. He further testified that the Defendant engaged ND Insurance Assessors to investigate the Plaintiff's claim. It was further given in evidence by DW3 that the investigation revealed that the value of the horse tractor and trailer declared to customs at importation was K 233,426.99 and K4,176.00 respectively. The testimony of DW3 is, however, silent as to when the said horse tractor and trailer were imported. In essence it was DW3's testimony that the declared value at importation was lower than that for which the said horse tractor and trailer were insured viz MK1,600,000.00. It was his further testimony that ND Insurance Assessors failed to establish the actual pre accident value of the vehicle and trailer. Further, it was the sworn evidence of DW3 that the Plaintiff was not the importer of the truck or the trailer thus in all fairness the Plaintiff would not know the declared value of same at importation. Issues For Determination In my considered opinion, after looking at the pleadings that have been exchanged between the parties herein, the facts in issue thant wAnnsviian hia AAs: 2m Aadpwswsi ow bias. eam a ES sewers Litat LEYULLY LULILLO VVUULE DO UOCLUOLILIITIGALLULL ALU AD LULILUW9.7 (a) whether or not there was non-disclosure or misrepresentation of a material fact, or material facts, by the insured that render the contract of insurance between the Plaintiff and the Defendant void or; alternatively. 11 (b) whether or not the Plaintiff submitted an insurance proposal form which contained false statements and misrepresentations that entitled the Defendant to repudiate the Plaintiff's claim of indemnity. (c) whether or not non-payment of premiums, tf there was any non-payment, invalidated the policy of insurance that was issued by the Defendant entitling it to repudiate the Plaintiffs said claim of indemnity. I wish to observe that I will decide on the issues enumerated above on the basis not of sympathy for either of the parties but on the evidence on record and also the relevant law. Before proceeding to decide on the said issues it is vital that each of the parties’ arguments in support of their case be put in this judgment. Contentions Plaintiff's Arguments It is contended by the Plaintiff that he did not import the vehicle and trailer into Malawi but rather he bought same after importation. Thus he was not aware of the values of the horse tractor and trailer declared to the customs authorities. The Plaintiff further submits that in view of the fact that he was not the importer of the said lioise ttacior aud irailer be cannot be accused of non- disclosure of a material fact regarding the values of same at the time he filled the insurance proposal form. He further contends that the values of the horse tractor and trailer were based on the price paid on same at the time they were bought by him. 12 Regarding the issue of premiums the Plaintiff's contention ts that he agreed with the Defendant’s agents to pay the premiums by two installments. It is further argued by the Plaintiff that he paid the sum of MK.115,000.00 as a first instalment and that the balance was payable end of March 1997. The Plaintiff has further contended that although at the time of the accident the balance was still due the Defendant was still liable to make good the Plaintiff's claim. It ts also urged on the part of the Plaintiff that the policy the Defendant issued to the Plaintiff does not contain a clause to the effect that non-payment or partial payment of premium will automatically cancel the policy thus, itis argued by the Plaintiff, the policy and or cover was still valid notwithstanding non-payment or partial payment of the premium. It is therefore submitted by the Plaintiff that although part of the premium was still outstanding same does not affect the validity of cover hence the Plaintiff will have to be indemnified for the loss suffered as a result of the accident. Defendant’s Arguments The Defendant’s argument is basically two fold viz that there was non-disclosure of material facts by the Plaintiff and that the Plaintiff did not pay any premium on the policy issued in his favour. On the question of non-disclosure of material facts it is contended by the Defendant that the insurance proposal submitted by the Plaintiff, and a Mr Nathanie, contained a false statement to iti respect of the value of the turse wacior aud irailer in ihat ihe value was indicated as MK 1,600,000.00 when the value declared to the Department of Customs was MK 233,426.09 and MK4,176.00 respectively. It is the further argument of the Defendant that it is inconceivable that the value of the said horse tractor and trailer would have gone up in its value, in particular to MK 1,600,000.00 at the time the Plaintiff was purchasing it from a Mr Nathanie whom 13 the Defendant contends imported the horse into Maiawi. Pausing here | wish to observe that there is no evidence on record to prove that Mr Nathanie was the importer of the vehicle. If anything the only person mentioned was Pamodzi Transport who it ts alleged imported the trailer. In any event there are no importation documents in evidence to show the importer of cither the said horse tractor or trailer. [| will comment upon this in detail later in this judgment. Now I turn again to the Defendant’s other argument. It is contended by the Defendant that although there was no condition in the insurance policy that non-payment of premium would render the contract void it is an undeniable fact that the Plaintiff did not give any consideration for the transferring of risk in the horse and trailer. To this end it is the Defendant’s argument that it is not liable to indemnify the Plaintiff for the loss he incurred. I wish to note that both Counsel cited authorities in support of their respective arguments. I must praise both Counsel for their most comprehensive and lucid submissions on the law which they have invited me to apply to this case. I will now proceed to make my findings, on the issues for determination, based on the relevant law on the issues that are to be ruled upon in the case before me. But before proceeding to decide on the said issues I want to point it out that I have reminded myself that it is a settled principle balance of probabilities. Further, I am mindful of the well know principle of law that he who alleges must prove what he is alleging. I will bear in mind these principles when determining the issues set out above. Law And Findings It is trite law that in contracts of insurance non-disclosure of a material fact in a proposal form for an insurance contract renders the said contract of insurance void. In this regard reference may be made to what Fletcher Moulton, L. J. stated in the case of Joel -vs- Law Union and Crown Insurance Company (1908)2 K. B. 863 at page 884:- “The disclosure must be of all you ought to have realised to be material not of that only which you did in fact realise to be so. But in my opinion there is a point which often 1s not kept in mind. The duty isa duty to disclose, and you can not disclose what you do not know. The obligation to disclose, therefore, necessarily depends on_ the knowledge you possess--” This reasoning represents the position at law and I see no reason why I should depart from it. Now applying this approach to the instant case I find that there is no evidence to prove that the Plaintiff had knowledge of the value of the horse tractor and trailer at importation. In point of fact the Defendant, in its defence testimony, conceded that since the Plaintiff was not the actual importer he could not be expected to have known the values of same at importation. Further, it is my finding that the Defendant has not disproved the sworn testimony of the Plaintiff to the effect that he bought the said horse tractor and trailer at MK.1,600,000.00 or that same were {5 valued at MK1,600,000.00. In actual fact, as shall also be commented upon later, the Defendant accepted this value at the time it issued the insurance policy. It has been contended by the Defendant that a Mr Nathanie and the Plaintiff jointly insured the horse tractor and trailer. To this end it was put in argument, by the Defendant, that since the said Mr Nathanie allegedly imported the horse into Malawi then his alleged knowledge of the value of the horse at importation should be imputed on the Plaintiff as well thus non-disclosure by the said Mr Nathanie of the said value, on the proposal form, which is a material fact, should entitle the Defendant to reject the Plaintiffs claim. Learned Counsel for the Defendant cited the case of General Accident Fire and Life Insurance Corporation Ltd. -vs- Midland Bank Ltd (1940)2 KB 388 in support of her latter argument. Unfortunately the case cited does not support the proposition by learned Counsel. In any event, in my view, the case authority is neither relevant nor to the point. Furthermore, I find that there is no evidence on record to prove that the vehicle was imported by the said Mr Nathanie. No importation documents were tendered in evidence to show that the said vehicle was imported by the said Mr Nathanie. Further, there is no evidence on record to prove that the Plaintiff knew the declared value of the trailer at the time of its importation. The failure by the Defendant to call in evidence to prove that Mr Nathanie imported the horse tractor or that the Plaintiff knew the value of the trailer at importation has weakened the Defendant’s contention concerning the importation of the said horse tractor by Mr Nathanie. Further, in view of the fact that there is no evidence to prove that the Plaintiff knew of the declared customs value of the trailer, the Defendant’s averment that the Plaintiff over valued the trailer must fail. The Defendant made this allegation of fact and it 16 ought to have called cogent evidence to support the allegation. It has not been established or indeed attempted to be proved that the horse tractor was imported by the said Mr Nathanie so that his alleged knowledge of the value of same at importation should be imputed on the Plaintiff. | accordingly find that there was no misrepresentation or non-disclosure in the proposal form, of the value of the horse tractor or trailer by the Plaintiff. I] have observed that in the proposal form the Plaintiff indicated the year of make of the horse as 1984. The Defendant chose not to make enquiries as to the value of the horse, that was manufactured in 1984, before it issued the policy of insurance. Having chosen not to enquire about the value of a 1984 horse, and by accepting the Plaintiff's proposal, the Defendant should be deemed to have accepted the value of the truck and the risk attaching to the said truck - West African Examination Council -vs- State Insurance Corporation (Ghana)(1977)2 A. L. R. Comm. 282. In the premises the question regarding whether there was non- disclosure or misrepresentation of a material fact or material facts in the insurance proposal form rendering the contract void has been answered in the negative. In essence the Plaintiff disclosed everything that was within his knowledge. Thus his claim could not be rejected on the ground of non-disclosure of a material fact. I will now move to make a determination on the remaining issuc in this matter viz whether or not non-payment of nremium, if there was any such non-payment, invalidated the policy of insurance that was issued by the Defendant thereby entitling the latter to repudiate the Plaintiff's claim. | It is a settled principle of law that a contract of insurance is validly made and complete even though the premium of insurance 17 is not paid. In the case of Jammal Transport -vs- African Insurance Company (Lagos S. Nigeria) (1971)2 ALR Comm.145 Kassim, J. had the following to say, at pages 161-162, which is very instructive and illuminating on the issue that remains to be determined here:- “I now consider the question of non-payment of full premium or pre-payment of premium as a condition precedent. As soon as the contract is agreed, the assured becomes liable to pay, but his failure to pay does not absolve the insurers from liability which has been undertaken under the contract unless there is provision in the contract to this effect or the failure to pay amounts in the circumstances to a repudiation of the contract. In the event therefore of a loss happening before payment, the insurers must pay the amount due under the contract unless the contract otherwise provides.” Support for what Kassam, J. said in the foregoing quoted passage is also to be found in the language used by Lord Esher in the case of Roberts -vs- Security Co. (1895-99)All ER 1177. Lord Esher had this to say, at page 1179 which is very pertinent:- ““_. it is proposed to show that the premium there stated to have been paid has in fact not been paid. In the first place it seems to me that the company (is) not at liberty ta chau that aacainat thair own deed. Thax, cannot rely upon the fact of the premium not having been paid if they have treated it as paid, and they have waved any payment--- The best way of dealing with this case is to say that if the company are (is) estopped from saying that the premium had not been paid, they have waved its prepayment. The company could ask for it at anytime 18 and then it must be paid. If there is a loss it is a common practice amongst insurers to deduct from the sum payable to the assured any premiums that happen to remain unpaid at the time. | am clearly of the opinion that the company cannot get out of the liability imposed upon them by the policy merely on the ground that the premiums had not been paid by the Plaintiff---" If one reads this passage it will be noticed that the insured could claim payment of his loss but he would then have to tender payment of the premium or the insurer could deduct it from the amount of loss payable. I am in complete agreement with the views of Lord Esher and I adopt them in this case. In point of fact in the letter of January 1999, Exh. P5, written by the Defendant’s agent, there appears to have been a suggestion to the effect that the premium that remained unpaid could be deducted from the amount of loss payable to the Plaintiff. ‘It is an undeniable fact that there was a policy of insurance issued by the Defendant. The said policy was actually issued on Ist May 1997. This was well after the accident. It is noted that regarding the premium the policy says, inter alia, that the insured has paid or agreed to pay the premium as consideration for such insurance. There is no clause in the said policy providing that the policy would not be effective until the whole premium is paid. Indeed in the instant case the insurance policy does not provide an«ruirhara that nan naumant uranld ahenlwa tha Nefandant af Ussy VV AAW CLACLE MLUAL Pee? SLAW ELE Vy Wu ayvuvirwy caaye BY VAWAAVUHEAL Wa liability. In view of the observation made above the Defendant’s argument that it was not liable to make good the Plaintiff’s claim because of non-payment must also fail. This is so because it ts clear that in the contract of insurance the Defendant treated the premium 19 as paid or to be paid in future and the Defendant proceeded to issue the policy. The Defendant can not be allowed to turn around now and start denying the Plaintiff's claim on the ground of non-payment of the premium. The Plaintiff's claim was a perfectly good claim and one which ought not have been denied on the premise of non- payment of a premium. Due regard being had to the observations which | have made above I find as a fact that non-payment of the premium, did not invalidate the policy of insurance that was issued herein. ‘The Defendant was not entitled to repudiate the Plaintiffs claim for the alleged non-payment of premium in view of the fact that the policy did not provide that non-payment of a premium would invalidate the contract of insurance entered into between the Plaintiff and the Defendant. What the Defendant ought to have done was to entertain the claim but either demand that the premium be paid before it performed its obligation under the contract or pay the for the loss incurred by the Plaintiff less the premium that remained unpaid - Roberts -vs- Security Company (1895-1899) All ER 1177. In the instant case there is evidence, and I so find as a fact, that the Plaintiff insured the horse tractor and trailer at the value of MK1,600,000.00. Further, I find that there is evidence to prove that the Plaintiff paid part of the premium and a balance in the sum of MK 84,285.80 remained outstanding. This finding is premised on Exh. PS5 in which the Defendant’s agent conceded that the premium that freinaiied uiipaid of invivr vehicic reyisiiation imuimber MH1071/SA709 was MK 84,285.80. Thus the Defendant ought to have deducted the said outstanding premium amounting to K84,285.80 which remained unpaid according to the letter from Defendant’s agent dated January 1999. This would have meant that the money payable to the Plaintiff, excluding the insurance excess, 20 would have been MK1,515,714.20. If the insurance excess 1s deducted from the amount payable the balance due to the Plaintiff would be MK1,275,714.20. This is the amount that the Plaintiff should have been indemnified for the loss he suffered as a result of the accident. To make a long story short, having found that there was no misrepresentation or non-disclosure of a material fact by the Plaintiff and that the non-payment of the premium was not a ground rendering the insurance void or invalid, | find that the Plaintiff was entitled to be indemnified by the Defendant under the policy. In the premises the Plaintiff is entitled to be paid the sum of MK1,275,714.20 as an indemnity for the loss and damage suffered as a result of the accident and I so order. It is noted that the Plaintiff's claim includes a prayer that he be awarded interest on the sum that is found due to him at the rate of 1% above the prevailing bank lending rate up to the time of payment. I have observed that this the claim for interest is not pleaded in the body of the pleadings. Further, the Plaintiff has not identified precisely the ground or the basis upon which he is claiming the said interest at 1% above the bank lending rate. But the rate of interest is higher than the one obtaining in judgment debts pursuant to Section 65 of the Courts Act. This is clearly in breach of the rules regarding pleadings which require that a claim At interest m must be pleaded in the body of the pleading, and not OMrwerlanw 10/0/00 (VIN Dewlann af thea GQumneama Onawwet 1995 ed. Sweet and Maxwell. In view of these shortcomings in the _ Plaintiff's pleadings I reject the Plaintiff's claim for interest. In any event the plaintiffs claim for interest does not relate to a debt. Thus the claim would also fail on that ground since the award made to him is in respect of damages for breach of a contract of insurance. Thus it is my order that the Plaintiff's claim for interest must fail - 24 A. S. Suleman -vs- National Insurance Co. Ltd C. C. No. 1086 of 1995 (unreported). Costs The Plaintiff has substantially succeeded on his claim against the Defendant. I therefore award the costs of this action to the Plaintiff. The costs are to be taxed by the Registrar if not agreed. Pronounced in open Court this 26th day of January 2001 at the Principal Registry, Blantyre. F al anda JUDGE