DAWSONS BANK LIMITED Vs. VULCAN INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This is an appeal from the High Court at Rangoon sitting in appeal, which reversed the decision of the trial Judge in a claim brought by the appellants upon a policy of insurance against fire.

(2.) The premises were situated at Moulmeingyun in Burma. The appellants were the mortgagees of the premises, who, in accordance with the terms of the mortgage, had taken out a policy of insurance upon the mortgaged property. The particular policy was taken out with the respondents, the Vulcan Insurance Company, Limited. The premises had apparently at one time been insured in the Northern Assurance Company, but they had ceased to carry the risk. It was said that they had withdrawn from fire business in Rangoon ; whether that is so or not their Lordships do not know. At any rate, in 1929, the policy was taken out with the Vulcan Insurance Company, having originally been written by the Northern Assurance Company. The risk and description of the property was, it is said, taken from the original policy with the Northern Assurance Company. It is described as being "Three buildings, the property of the insured, situated at the corner ofStrand Road and Ferry, Moulmeingyun, Myaungmya District. Said buildings are constructed of brick walls and cement flooring in the ground storey, timber walls and flooring in the upper storey with shingled roof. Used as retail shop for hazardous and non-hazardous goods in the ground floor and above as dwellings."

(3.) There was a fire by which the premises were totally destroyed in March, 1931, and on a claim being made, after some delay in making up their minds, the insurance company finally resisted the claim on the footing that there had been a material misdescription of the property. It is admitted that there was, in fact, a misdescription of the property, and the only question is whether the misdescription was a material misdescription, by which one would ordinarily mean a misdescription such as would affect the mind of a reasonable insurer either as to accepting the risk or as to the premium which he would place upon the risk. Whether a misdescription is material or is not, is partly a question of evidence, and also partly a question of law.