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Devi v Dominion Insurance Ltd [2005] FJHC 353; HBC0127.1999 (16 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0127 OF 1999

BETWEEN:

UMA DEVI
PLAINTIFF

AND:

DOMINION INSURANCE LTD
DEFENDANT

Messrs Babu Singh & Associates for the Plaintiff
Messrs A.K. Lawyers for the Defendant

Date Hearing: 24 June 2005
Dates of Submissions: 15 July, 5 August and 12 August 2005
Date of Ruling: 16 September 2005

INTERLOCUTORY RULING OF FINNIGAN J

The Defendant has applied to strike out the Plaintiff’s action for want of prosecution. In the alternative its seeks an Order that the Plaintiff supply for inspection the contract of insurance and renewal certificate upon which she basis the action.

I have read the file, particularly the affidavits and the submissions filed by Counsel in relation this interlocutory motion. The motion itself was filed on 8 February 2005. Counsel for the Plaintiff in his submissions sets out the 11 major steps taken by the parties between the issue of the writ on 15 April 1999 and the issue of a Notice calling for a pre-trial conference which occurred on 21 November 2001. From the Plaintiff’s affidavit in opposition it appears that the parties have negotiated since then particularly between September 2003 and December 2003 over the draft pre-trial conference minutes.

The submissions of Counsel for both parties have been full and helpful. I will not refer to them in detail. The Plaintiff has been less than aggressive in pursuing this claim. From the documents which she discovered by affidavit on 22 December 2000 it appears she does not have the insurance policy. She has a copy of a renewal certificate. On the other hand, the totality of her claim is merely the replacement cost of a vehicle which she hopes to prove was worth $14,000.00. The vehicle was lost in the same accident which cost her husband’s life. It has to be seen in perspective.

I am not at all persuaded by the submissions that this claim should struck out. On the contrary I strongly feel that Counsel should bring their documents and settlement instructions to the conference table and bring this drawn out proceeding to a rapid end. Both the Defendant’s applications ate refused.

If the Plaintiff does not have the policy nothing will be gained from hiding that fact either now or at a hearing. The Defendant should clearly know from the documents which it discovered in its affidavit filed on 10 September 2000 the details of the Plaintiff’s cover. If the Defendant claims the cover was voided by intoxication of the deceased then it should be in a position to reveal that.

I make the following orders:

1. Dismissing the Defendant’s application to strike out the Plaintiff’s claim.
   
2. Dismissing the Defendant’s application for inspection of the insurance documents.
   
3. Granting costs on this application to the Plaintiff in the sum of $300.00.
   
4. Listing this action in the callover on 25 November 2005 to fix a hearing date if the matter is not previously settled.
   

D.D. Finnigan
JUDGE

At Lautoka
16 September 2005