Awtar Singh A/L Puran Singh v Etiqa Insurance Berhad (A-02(NCVC)(W)-55-01/2018)

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DALAM MAHKAMAH RAYUAN MALAYSIA 5 (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. A-02(NCvC)(W)-55-01/2018 ANTARA 10 AWTAR SINGH A/L PURAN SINGH … PERAYU (yang telah pada semua masa berkenaan Beramal di bawah nama dan gelaran 15 A.S Saini & Associates) DAN ETIQA INSURANCE BERHAD … RESPONDENT 20 [Dalam Perkara Mengenai Mahkamah Tinggi Malaya Di Taiping Negeri Perak Malaysia Guaman Sivil No: AB 22NCvC-04-02/2017] 25 ANTARA 30 AWTAR SINGH A/L PURAN SINGH … PLAINTIF DAN 35 ETIQA INSURANCE BERHAD … DEFENDAN 40 CORAM HAMID SULTAN ABU BACKER, JCA HANIPAH FARIKULLAH, JCA KAMALUDIN MD SAID, JCA 45 2 GROUNDS OF JUDGMENT 5 Introduction [1] The Appellant appealed against the decision by the High Court in Taiping which has dismissed the Appellant’s claim for specific 10 performance of the mandatory insurance policy for the Respondent to indemnify the Appellant in respect of the Judgment obtained against the Appellant in the sum of RM 353,061.83. The High Court had also dismissed the Appellant’s claim for General Damages against the Respondent. 15 [2] We heard the appeal and the submissions from the Appellant acting in person and counsel for the Respondent. We have also read the written submissions filed herein including further specific submission filed by the Appellant on our direction. We later 20 adjourned the appeal to a date to be fixed for our decision. Factual background [3]

Preamble

Pursuant to Section 78A Legal Profession Act 1976, all 25 advocates and solicitors in West Malaysia, including the Appellant, are insured under a Professional Indemnity Insurance Scheme (“Pll Scheme”) with the same mandatory limit and with option to top up. 30 3 [4] The Appellant was insured with the Respondent for the period 5 between 1.7.1997 to 30.6.1998 with mandatory limit in the sum of RM 50,000.00 via Certificate No. M97/01811 (“1997 Policy”) and top-up insurance in the sum of RM1.25 million. For Certificate No. 2001/MY/0026 (“2001 Policy”), the Appellant was insured with the Respondent for the period between 1.1.2001 to 31.12.2001 with 10 mandatory limit in the sum, of RM250,000.00 and top-up insurance in the sum, of RM10 million. [5] At the High Court, the Appellant’s claim against the Respondent for specific performance of the mandatory insurance contract/top 15 up policy for the Respondent to indemnify the Appellant in respect of the Judgment obtained by Nirwant Singh a/l Puran Singh against him (together with costs) in the sum of RM353,061.83 and general damages. 20 [6] The salient facts of the case related to the Appellant’s claim can be summarized as follows: - Dates Events/Proceeding

Subsection

(2011) 9 MLJ 723 that the rule that parties are bound by their pleadings is both elementary and mandatory in our system of civil litigation. Aside from allowing parties to know exactly what are the matters in dispute so that they know what facts they gave to marshal to prove at trial and thus avoid any element of surprise in 15 civil litigation, the rule also places on record the precise issues presented to the court for adjudication so that the trial can proceed in an orderly and organized manner and avoid the situation where a matter not pleaded may be relitigated in another forum by the parties. 20 [22] The Record of Appeal Part C, Vol. 2E, at pages 807 to 813 is the Appellant’s duly completed proposal Form for insurance dated 31.5.1997. The Appellant had stated in the said form of 3 possible claims which may derived from Guaman Sivil (GS) 1985, GS 25 1986 and GS 1996. The cover letter for submission of the duly completed proposal from Messrs A.S. Saini & Associates to Antah Sedgwick Insurance Brokers Sdn. Bhd dated 5.6.1997 at page 806 stated that the duly completed proposal form is for the renewal for the 1997/98 policy year. At pages 815 and 816 are 30 16 the Certificate No. M97/01811 (“1997 Policy”), for the period 5 between 1.7.1997 to 30.6.1998 with mandatory limit in the sum of RM250,000.00 with insurance premium of RM594.27 inclusive of service tax. The top-up insurance for 1997 Policy is in the sum of RM1.25 million with the insurance premium of RM915.06 inclusive of service tax. It is also stated that the insurance is subject to the 10 terms, exception and conditions of the Master Policy DPI- 439000246-04. [23] The Record of Appeal at pages 817, 818, 819 and 825 are the Certificate No. 2001/MY/0026 (“2001 Policy”), for the period 15 between 1.1.2001 to 31.12.2001 with mandatory limit in the sum of RM250,000.00 with insurance premium of RM982.00. The top-up insurance is in the sum of RM10 million with the insurance premium stated as RM7,689.00 inclusive of service tax. It is also stated that the insurance is subject to the terms, exception and 20 conditions of the Master Policy DPI-43900246457-C5. [24] The Appellant’s pleaded case in the Amended Statement of Claim at pages 22 to 31 of the Record of Appeal Part A, Vol.1, paragraph 11 stated that the Appellant bought mandatory 25 insurance and top-up insurance for his loss to be indemnified by the Respondent. At paragraph 15, the Appellant pleaded that from the period of 1.3.2001 to 31.12.2001, the Appellant bought the top-up insurance premium RM7,6789.00 for insurance coverage of RM10 million. At paragraph 16, the Appellant pleaded that the 30 17 purpose and direction to purchase the top-up policy was for joint 5 and/or separate insurance coverage for other legal firms which had acted for the representative in the civil suits. At paragraph 45, it was stated that within the period of coverage of mandatory and top up insurance, the Appellant had served the Writ SG 2001, “the claim” received from Nirwant Singh and 5 other Plaintiffs to 10 the Respondent. Finally, the Appellant stated in his prayer at paragraph 59 for the Court to order specific performance against the Respondent under the mandatory and/or top-up contract of insurance to indemnify the judgment sum of RM 353,061.83 and costs of RM20,000.00 entered against him by Nirwant Singh. 15 [25] It was not disputed that there were two insurance policies bought by the Appellant to protect his Professional practice. The learned JC had made a finding of fact that the policy which is applicable is the policy at the time notice was given. His decision in our opinion 20 is correct since the Respondent was informed of potential claim under 1997 policy therefore, the said policy is applicable and not 2001 policy. In fact, by letter dated 11.10.2002 (page 1292, Additional Record of Appeal II), the Appellant was informed that his potential claim was made at the time of the notification in the 25 year 1996 and a claim only materialized in the year 2001 and by virtue of clause 5.1.3, the policy year that should respond to the claim is the policy for the year in which the notification was given which is the year 1996. 30 18 [26] Clause 5.1.3 says as follows - 5 “Any claim arising from any matter, event or circumstances of which Notice has been given in accordance with General Condition 5.1.1 or 5.1.2 shall be regarded as a claim first made during the Period of Insurance in which such Notice 10 was given” [27] SD-1 in her Witness Statement had clearly explained that the 1997 Policy would respond to the Appellant’s claim: - 15 “A11: The 1997/1998 and 2001/2002 Policy are both “claims made” policies. A “claims made” policy means a policy providing coverage that is triggered when a claim is first made against the Insured during the policy period, regardless if when the wrongful act the gave rise to the claim took place. 20 Based on the Proposal/Form dated 31.5.1997 and the Plaintiff’s letter to the Brokers on 5.6.1997, notice of the potential claim were given to the Brokers on 5.6.1997. Clause 5.1.3 Certificate of Insurance (“COI”) for year 1997/1998 and 2001/2002 stipulates that any notice given 25 under Clause 5.1 of the COI is deemed as a claim first made during the Period of Insurance which the notice was given. Under Clause 5.1.2 COI for year 1997/1998 and 2001/2002, notice must be given to the Brokers as soon as the insured 19 becomes aware of facts that could give rise to a claim 5 against him. As the Plaintiff notified the Brokers of the potential claim arising out of his conduct for Civil Suit No. 22-26.86 in 1997, the Policy in year 1997/1998 would respond to the Plaintiff’s 10 claim”. [28] It is not disputed that the Proposal Form at pages 808 of the Record of Appeal Part C, Vol. 2E was the notification of potential claims pursuant to Clause 5.1.2 of the Insurance Policy dated 15 5.6.1997 which includes the handling of the GS 1986. The Appellant admitted this fact as found at paragraph 42 of the Amended Statement of Claim. [29] Clause 5.1.2 says as follows - 20 “Notice shall also be given of any matter event of circumstance of which the Insured shall become aware during the Period of Insurance and which may reasonably be expected to give rise to a claim against the Insured”. 25 [30] We agreed with the Respondent that pursuant to Clause 5.1.3 of the Insurance Policy, since the Appellant has notified the Respondent of the GS 2001 pursuant to Clause 5.1.2 on 5.6.1997, the 1997 Policy would respond for this claim. In other 30 20 words, the notice given is a claim first made during the Period of 5 Insurance. [31] Clause 4.1 of the Policy also states that the Insurers shall indemnify the Insured against any Claim first made against any or all of them during the Period of Insurance in respect of any civil 10 liability incurred in the course of the conduct of the Profession by the Practice. [32] The author W.E.B Enright in his book “Professional Indemnity Insurance Law” at pages 86 and 87 says that the core of a 15 “claim made” policy is that it is a promise by the insurer to the insured that it will indemnify the insured for any claim that is made by a third party that is made against the insured within the duration of the policy, no matter when the defined event affecting the third party occurred. 20 [33] What is meant by the words 'claim made policy' in a professional indemnity policy was explained in the English Court of Appeal case (involving a professional indemnity insurance scheme), HLB Kidsons (a firm) v Lloyds Underwriters subscribing to 25 Lloyd's Policy No 621/PK1000101 [2008] All ER (D) 40 Lord Justice Rix's said: “The essence of a 'claims made' policy is that it provides cover for a claim first brought against the assured during the 30 21 policy year. As is common with such policies, however, it 5 extends cover to claim first brought against the assured after the policy year provided such claims arise out of circumstances previously notified to the insurers of which the assured became aware during the policy year. The rationale of such policies has been described in J Rothschild 10 Assurance plc v Collyear [1999] 1 Lloyd's Rep IR 6 at p 22 and in Friends Provident Life and Pensions Ltd v Sirius International Insurance Corporation [2005] Lloyd's Rep IR 135 at p 142”. 15 [34] In Quinn Direct Insurance Ltd v Law Society of England and Wales [2010] EWCA Civ 805, the English Court of Appeal applied HLB Kidsons (also involving a professional indemnity insurance scheme), described the meaning of a 'claims made' policy as follows - 20 Both are a type of insurance known as a 'claims made' policy, that is to say that the risk insured is that for which a claim is made in the period of insurance whenever the damage or its cause arose as explained by Rix J in J Rothschild Assurance 25 plc v Collyear [1999] 1 Lloyd's Rep IR 6 and Rix LJ in HLB Kidsons & Ors v Lloyds Underwriters Subscribing to Policy 621/PKID 001001 and others [2009] 1 Lloyds LR 8. Thus, both at the inception of the policy and in the period of its operation, the firm must notify the insurer of relevant 30 22 circumstances, the extent of which may vary according to the 5 terms of the policy. There is no exception to the obligation of disclosure in the case of information subject to a privilege enjoyed by the firm as opposed to its client (see March Cabaret Club & Casino Ltd v The London Assurance [1975] 2 Ll LR 169, 177). 10 [35] The correct principle of a claims made policy means, a policy providing coverage that is triggered when a claim is made against the insured during the policy period, regardless of when the wrongful act that gave rise to the claim took place. A retroactive 15 date is applicable to a claims made policy. In such instances, the wrongful act that gave rise to the claim must have taken place on or after the retroactive date. These claims made policy is a type of coverage trigger that obligates an insurer to defend a claim on an insured's behalf during the period in which the policy is in force. 20 The term 'made' means notification to an insured that a demand for money or services is being requested. It is settled law that a professional indemnity policy with a 'claims made' basis clause, notice of an actual claim by the third party to the plaintiff would then trigger the defendant's liability and put the defendant at risk. 25 [36] The Appellant’s pleaded that the Respondent cannot avoid liability to indemnify the Appellant under Clause 7.2 because it is not an exclusion clause. 30 23 [37] Clause 7.2 of the Master Policy provides as follows - 5 “7.2 BREACH OF CONDITIONS OF THIS INSURANCE “Save in the case of non-payment of the premium but subject to General Conditions 5.3 and 5.10, Insurers will not seek to 10 resile from this contract to avoid any claim on the grounds of breach of non-compliance with the terms and conditions of this insurance. PROVIDED THAT 15

Subsection

(1868) 12 NBR (1 Han) 311). … [33] Whether any particular claim is tainted with fraudulent 30 intent is a question of fact to be inferred from the surrounding 32 circumstances. Making a false statement in the belief that it 5 is true constitutes misrepresentation. However, making a false statement with the knowledge that it is false or not believing it to be true and the intention to deceive amounts to fraudulent misrepresentation. The test of fraudulent misrepresentation as enunciated by the Privy Council in 10 Baron Akerhielm v. Rolf De Mare [1959] AC 789 PC is follows: The question was not whether the defendant in any given case honestly believed the representation to be true in the 15 sense assigned to it by the Court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense which he understood it albeit erroneously, when it was made. 20 …. [40] On the totality of the evidence, we do not agree with the findings of the learned JC which is against the weight of the evidence. We have perused the appeal record and are 25 unable to find any evidence to rebut the presumption that the plaintiff is not acting in good faith. On the contrary SP1 admitted under cross-examination that there were a number of vehicles which did not sustain any damage but were nevertheless declared as damaged. Whilst exaggeration in 30 itself is not automatically fraud, but that in many cases a 33 fraudulent intent can properly be inferred from the 5 presentation of deliberately inflated claim (Royal Boskalis Westminster NV and other vv. Mountain and others [1997] 2 All ER 929; [1997] LRLR 523 at p 593; Pole v Chapman [19870) 22 LT 30-6 at p 307; Transthene Packaging Co Ltd v Royal Insurance (UK) Ltd [1996] LRLR 32 at p 44; 10 Superwood Holdings plc, Superwood International Ltd and Superwood (UK) Ltd v Sun Alliance and London Insurance plc trading as Sun Alliance Insurance Group, Prudential Assurance Co Ltd, Church & General Insurance Co Ltd and Raymond P Mc Govern [1995] 3 IR 303; Danepoint Ltd v 15 Allied Underwriting Insurance Ltd [2006] Lloyd’s Rep IR 429 at para 56). We are, therefore, constrained to hold that the plaintiff had made a false statement in the claims lists with the knowledge that it is false. 20 [41] In the light of our findings, the entire claim is liable to be defeated on the ground that the plaintiff failed to exercise good faith in its dealings with the defendant. It must follow that since the plaintiff made a total claim knowing it to be a false claim, the plaintiff cannot later recover for a partial loss 25 even if the policy applies to the loss that has happened (Dome Mining Corpn Ltd v Drysdale (1931) 41 Li L Rep 1009; Carr). Accordingly, it will not avail the plaintiff to argue that its claim on the figure of RM237,451.11 advised by the adjusters should be allowed”. 30 34 [49] Further, in Nsubuga v Commercial Union Assurance Co Plc 5 [1998] Lexis Citation 3243; [1998] 2 QBS 682, which decision was referred by His Lordship Prasad Abraham in the case of Modern Universal Sdn Bhd v MSIG Insurance (M) Bhd (formerly known as Hong Leong Assurance Bhd) [2014] 11 MLJ 186, it was held if there is fraud in relation to a claim, then 10 that clause operates not merely in relation to the section of the policy in respect of which the fraud has occurred but to all sections of the policy. Mr Justice Thomas went on further to list down the provisions of the common law relating to the effect of fraudulent claims: 15 “There can be little argument about the meaning of general condition 6. A very similar clause was considered by Mance J in Insurance Corporation of Channel Islands Ltd v McHugh and a Royal Hotel Ltd [1997] LRLR 94, where Mance J said, 20 at page 135: “In my judgment, the making of a fraudulent claim or use of fraudulent means or devices operates under [the condition in that policy] to forfeit the whole of 25 an insured’s benefit under the policy, from whatever date the forfeiture operates, it relates to the whole policy, and not just to any particular section to which the fraud may have related”. 30 35 I agree with what Mance J says: if there is fraud in relation to 5 a claim, then that clause operates not merely in relation to the section of the Policy in respect of which the fraud has occurred but to all sections of the policy. Apart from the specific terms of the policy, however, there are 10 important provisions of the common law. If I had formed the view that the term had not been incorporated, the common law would have provided a regime between the parties much to the same effect. The position at common law can be summarised as follows:

Subsection

(1) A person who has made fraudulent claim would not be permitted to recover at all. That principle was set out in the judgment of ‘Willes J to which I have already referred, and re-affirmed recently in the decision of the 20 Court of Appeal in Orakpo v Barclays Insurance Services [1995] LRLR 443.

Subsection

(2) If a claim is fraudulently inflated so that the claim is made in an amount which the plaintiff clearly knows 25 he has not suffered, that will amount to a fraudulent claim and will have the same effect. That seems to me to be established by the decision in Orakpo v Barclays Insurance and in particular in the judgment of Sir Roger Parker at page 452. However, it is important 30 36 to stress that in connection with this way of putting the 5 claim it is my view that very clear evidence of fraud would be required because one has to accept as a matter of commercial reality that people will often put forward a claim that is more than they believe that they will recover. That is because they expect to engage in 10 some form of ‘horse trading’ or other negotiation. It would not generally in those circumstances be right to conclude readily that someone had behaved fraudulently merely because he put forward an amount greater than that which he reasonably believed he would recover. He 15 would have to put forward a claim that was so far exaggerated that he knew that in respect of a material part of it, there was no basis whatsoever for the claim.

Subsection

(3) If a matter that is directly material to the claim 20 advanced is fraudulently concealed, then that too can amount to fraud in the making of the claim. That is established by the judgment of Hirst J in Black King Shipping Corporation and Wayang (Panama) SA v Mark Ranald Massie “The Litsion Pride” [1985] 1 Lloyd’s Rep 25 437, at pages 512-513, but read in the light of the decision of the Court of Appeal in The Star Sea [1997] 1 Ll0yd’s Rep 361, and in particular the passage at page 371. 30 37 Those principles I do not regard as being in dispute”. 5 [50] In Modern Universal Sdn Bhd v MSIG Insurance (M) Bhd (Formerly known as Hong Leong Assurance Bhd) [2014] 11 MLJ 186. His Lordship Prasad Abraham held as follows: 10 “It is settled law that a contract of insurance is one, where the parties to the contract are under duty to exercise the utmost good faith in matters relating to the said contract. Consequently, where the party to the contract of insurance acts mala fide then, the innocent party, the Defendant in the 15 present case, is entitled in law to be discharged from the obligations under the contract. In the present case, the Plaintiff has made a grossly exaggerated claim which is fraudulent in nature to defraud the Defendant. On the facts and the surrounding circumstances of the present case, the 20 Plaintiffs entire claim is liable to be defeated as there has been, inter alia, failure to act in good faith. As stated a contract of insurance is based upon good faith, and if the utmost good faith is not observed by either party, the contract may be avoided by the other party. 25 …. [30] Where a claimant inflates the amount of his claim there is a prima facie presumption that he is not acting in good faith and it is for the claimant to rebut the presumption if he is to succeed in its claim. In our 30 38 present case I find the plaintiff has failed to rebut that 5 presumption and therefore the plaintiff was not acting in good faith when making this claim and the claim should be dismissed, It is clear from the cases that in making a claim the insured i.e., the plaintiff must exercise the utmost good faith and must avoid any attempt to exaggerate his claim. If 10 an insured is unsure of his figures he should say so in order to avoid any allegation of fraud. I find as a fact having reviewed the evidence and the documents, there has been exaggeration of the plaintiffs claim in particular reference to invoices (see bundle B at pp 99 214)”. 15 [51] His Lordship Prasad Abraham went on to further hold that the insurer can decline liability even due to subsequent fraudulent conduct of the insured i.e. after commencement of legal proceedings against insured. 20 “[27] Furthermore, in the case of Baghbadrani v Commercial Union Assurance Co Plc [2002] Lloyds Rep IR 94 (Tab 14 of the DBOA); it was decided, inter alia, by Judge Gibbs QC that an insureds duty to act in good faith continued even 25 after the commencement of legal proceedings against an insured in that the insured was to abstain from making a fraudulent claim. The plaintiff operated a private Islamic college. The college premises were insured against material damage. The plaintiff was also covered under a business 30 39 interruption policy for loss of profits. After a fire by unknown 5 persons, the insurers indicated to the insureds solicitors that they were not denying liability under the policy and they duly appointed loss adjusters to negotiate the claim. In the meantime, the insurers appointed solicitors to look into the insureds claim to see if there were grounds for repudiating 10 liability. The solicitors discovered that there were grounds to avoid the material damage policy because fraudulent invoices had been submitted by the insured. Subsequently, the solicitors informed the insured that the insurers were repudiating liability under the business interruption policy on 15 the grounds of fraud., The insured contended that insurers could not raise these defences because they had entered into a binding compromise agreement and that the insurers had also elected to treat the claim as valid and thereby waived any breach of duty by the insured, It was decided by 20 judge Gibbs QC that there was no binding settlement between the parties even if there was such a settlement, it was voidable owing to the fraudulent conduct of the insured, Judge Gibbs QC held in particular at p 122 that: 25 For example, fraudulently making a claim or fraudulently misleading the insurer. The duty to abstain from such fraudulent conduct does in my view survive the commencement of proceedings. 30 40 …. 5 [29] It is submitted that the effect of the insured submitting or utilising fraudulent devices or documents in support of its insurance claims are far-reaching. In Baghbadrani, (case referred to) the insured only submitted fraudulent documents 10 in relation to the business interruption claim (and not the fire material damage claim) and the fire was found to have been caused by some unknown third party (and not the insured) but the court eventually dismissed the insureds claim under both policies due to the subsequent fraudulent 15 conduct of the insured. [52] The Appellant relied heavily on the authority of the High Court case Shan & Gooi (suing as a firm of advocate & solicitors) v Capital Insurance Berhad (10393-D), Willis (Malaysia Sdn 20 Bhd, Malaysia National Insurance Berhad (9557-T), Antah Sedgwick Insurance Brokers Sdn Bhd [2011] MLJU 440. In the said case, the insurer attempted to avoid liability by claiming that the notification made orally by the insured was a breach of the policy term and alleged that the notification ought to have been in 25 writing. However, the High Court relying on clause 7.2 of the Professional Indemnity Insurance Policy, which is pari materia with Clause 7.2 in the present case, held that mere breaches of the terms and conditions of the policy other than non-payment 41 of premium and subject to clause 5.3 and 5.10, cannot be 5 relied on by the insurer to resile from the contract or avoid liability. [53] The learned judge made his decision that the 3rd Defendant in that case cannot avoid liability by merely claiming that the oral notification in 1999 is a breach of Clause 5.2 because oral 10 notification given in 1999 had not caused any prejudice to the 3rd Defendant. As stated in the proviso to Clause 7.2 it is incumbent on the 3rd Defendant to prove by evidence that as a result of the misconduct on the part of the Plaintiff material prejudice to the investigation had been occasioned by the oral notification. 15 However, the 3rd Defendant did not adduce any evidence in this regard. [54] Our view is that the above case referred to by the Appellant is not relevant because the facts are different. There was no issue of 20 filing notice to act in person in the above case. In the present case, the Respondent is not seeking to deny liability based on oral notification, but based on the grounds of breach of or non-compliance with the terms and conditions of the insurance of which proviso 2 to Clause 7.2 applies. In this case, the breach or 25 non-compliance has resulted in material prejudice to the defence of the claim. [55] From the evidence led in Court it is clear that the Appellant has caused material prejudice to the Respondent in the conduct of the 30 42 defence in GS 2001 when the Appellant informed the Court and 5 Messrs R&Y that he had no intention to object to Enclosure 183 (i.e. the application to reinstate GS 2001 Suit) and consequently, the 2012 Order (striking out order) was set aside and GS 2011 was reinstated and proceeded with full trial. The Appellant further caused material prejudice to the Respondent in the conduct of the 10 defence in GS 2001 when he informed Messrs R&Y that he has intention to admit that he was negligent as alleged by the plaintiffs in GS 2001. [56] The Appellant has also caused material prejudice to the 15 Respondent when took over conduct of the defence by filing the Notice of Intention to Act in Person and supported the application to reinstate GS 2001. As a result of the Appellant’s conduct, the Respondent was denied the rights of handling the defence of GS 2001 in accordance with the Respondent’s strategy. The 20 Appellant’s action has resulted in material prejudice to the Respondent and therefore the Appellant is responsible for any loss he suffered. [57] We were also of the view that although there exist a Judgment 25 dated 10.9.2014 against the Appellant, the Appellant has the burden to prove that there was no breach of the terms in the Policy that was attributable by misconduct as stated in proviso 1 to Clause 7.2 of the Insurance Policy, which was relied by the Appellant in paragraph 29 of the Reply to Defence. The Appellant 30 43 had failed to establish on a reasonable balance of probability that 5 the breach was not attributable to misconduct on his part. [58] We noted that in the Appellant’s written submission, the Appellant admitted that it was an impulsive thing to do. The Appellant was in fear of incurring costs towards all his siblings and himself, if both 10 matters were not subjected to retrial, and dismissed. The Appellant made mitigation in his submission as follows -