Premji v Singh (C.C. 430/1931.) [1932] EACA 44 (1 January 1932)

#### $\rm ORIGINAL$ CIVIL.

## Before LUCIE-SMITH, J.

### REHEMTULLA & PREMJI

## BISHEN SINGH.

# C. C. $430/1931$ .

## Fire insurance—Subrogation.

$Held$ (27-5-32): That the doctrine of subrogation applies to fire insurance in the same way as to marine insurance and that not-<br>withstanding that the plaintiffs had already been indemnified by the insurers the action was properly brought by them under the doctrine of subrogation.

Hogan for Plaintiffs.

Amin for Defendant.

As the action was originally brought the insurers claimed from the defendant the amount of the damages assessed and paid to the owners of the goods, but the plaint was subsequently amended, by leave, substituting the owners of the goods as plaintiffs, on the ground that the owner of the goods is entitled to the advantage of every right to recover on behalf of the insurers notwithstanding that the owner of the goods has already been indemnified by the insurers.

Amin.—Liability of carrier for reward as against liability of common carrier. Question for Court as to competence of plaintiffs to sue. No negligence by defendant: Low rate of freight charged as the carrier (defendant) was aware that the goods were insured. Brind v. Dale (1837), 8 C. & P. 211. 1918, 1 K. B. D. $210.$

Hogan, in reply.—The defendant was a common carrier; 4 Halsbury, p. 2. Even if not a common carrier still responsible for negligence of his servants. As to measure of damages, 17 Halsbury, p. 519, Artcile 1024.

JUDGMENT.—This is an action to recover damages for negligence. The facts shortly are these. The plaintiffs are merchants carrying on business at Mombasa, Nairobi and Mbale. In the ordinary course of their business they entered into a contract with the defendant to convey certain goods by motor lorry from Mombasa to Mbale. It is common ground that the agreed charges were very much lower than those of the Kenya and Uganda Railway. Having come to an agreement as regards transport the plaintiffs then proceeded to insure the goods against transit risks, such insurance being effected through the local agents of Messrs. Muir, Beddell & Co., Ltd., of London.

On arrival of the defendant's lorry at Nakuru, loaded with the goods it was found necessary in the small hours of the morning to refill the petrol tank before continuing the journey. This

$v$ .

the defendant or his servants proceeded to do with the assistance of a hurricane lamp. If the defendant was not actually refilling the tank he was undoubtedly present supervising the operation.

The juxtaposition of the hurricane lamp and the petrol led to the inevitable explosion and subsequent fire in which the lorry and part of the plaintiff's goods were destroyed.

The defendant informed the plaintiffs of the fire and they in turn claimed against the insurers, who, after the usual Lloyds' Survey, paid the assured the sum of Sh. 2,480 in full settlement. of all claims under the policy.

There can be no doubt that the doctrine of subrogation applies to fire insurance in the same way as it does to marine insurance. According to this principle of subrogation the insurer who has agreed to indemnify the assured will, on making good the loss, be entitled to succeed to all the ways and means by which the latter might have protected himself against, or reimbursed himself for the loss: Simpson v. Thomson (1877), 3 App. Cases 279, at p. 284; see also Castellain v. Preston (1883), 11 Q. B. D. 380 C. A.

In this case the plaintiffs submit that they might reimburse themselves for the loss by an action for damages for negligence. The amount of such damages is claimed to be Sh. 2,480, the amount paid by the insurers under their policy.

It was further laid down in Simpson $v$ . Thomson that insurers cannot by reason of their right to subrogation sue in their own name; they must sue in the name of the assured and cannot recover from the third party unless the assured would himself. be entitled so to do.

From the above then it would appear that this action is properly brought by the plaintiffs and not by the insurers.

There was some argument as to whether the defendant was a common carrier or merely a private carrier for reward, but in view of my further finding there appears to be no need to decide this point. See Brind v. Dale (1837), 8 C. & P. 211, and Steinman & Co. v. Angier Line (1891), 1 Q. B. 623.

The only question then remaining for me to decide is "Was" the defendant guilty of negligence and were the goods of the plaintiffs destroyed as a result of such negligence?" To my mind any person who in the year 1931 brings unguarded petrol into proximity with a lighted hurricane lamp is guilty of very gross negligence.

I therefore find that the defendant was guilty of gross negligence and is liable in damages to the plaintiffs.

I further find that the measure of damages is as claimed and give judgment for the plaintiffs as claimed in paragraphs $(a)$ , (b) and (c) of the amended plaint.