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EN BANC

G.R. No. L-14373 January 30, 1960

GENERAL INSURANCE AND SURETY CORPORATION, Petitioner, vs. NG HUA, Respondent.

Jose P. Bengzon, Guido Advincula and Potenciano Villegas, Jr., petitioner.

Crispin D. Baizas for respondent.

BENGZON, J.: chanrobles virtual law library

Suit to recover on a fire insurance policy. The insurer presented several defenses in the Manila court of first instance. After trial, it was required to pay.chanroblesvirtualawlibrary chanrobles virtual law library

On appeal to the Courts of Appeal, the judgment was affirmed.chanroblesvirtualawlibrary chanrobles virtual law library

This is now a revision on certiorari, upon the insurer's insistence on two of its main defenses: prescription and breach of warranty.chanroblesvirtualawlibrary chanrobles virtual law library

The principal of facts on which adjudication may rest are these:chanrobles virtual law library

On April 15, 1952, the defendant General Insurance and Surety Corporation issued its insurance Policy No. 471, insuring against fire, for one year, the stock in trade of the Central Pomade Factory owned by Ng Hua, the court insured. The next day, the Pomade factory building burned, resulting in destruction by fire of the insured properties. Ng Hua claimed indemnity from the insurer. The policy covered damages up to P10,000.00; but after some negotiations and upon suggestion of the Manila Adjustment Company, he reduced the claim of P5,000.00. Nevertheless, the defendant insurer refused to pay for various reasons, namely (a) action was not filed in time; (b) violation of warranty; (c) submission of fraudulent claim; and (f) failure to pay the premium.chanroblesvirtualawlibrary chanrobles virtual law library

The aforesaid Policy No. 471 contains this stipulation on the back thereof;.

3. The insured shall give notice to the company of any insurance or insurances already affected, or which may subsequently be effected, covering any of the property hereby insured, and unless such notice be given and the particulars of such insurance or insurances be stated in or endorsed on this Policy by or on behalf of the Company before the occurrence of any loss or damage, all benefits under the policy shall be forfeited. (Emphasis ours.)

The face of the policy bore the annotation: "Co-Insurance Declared - NIL"chanrobles virtual law library

It is undenied that Ng Hua had obtained fire insurance on the same goods, for the same period of time, in the amount of P20,000.00 from General Indemnity Co. However, the Court of Appeals referring to the annotation and overruling the defense, held that there was no violation of the above clause, inasmuch as "co-insurance exists when a condition of the policy requires the insured to bear ratable proportion of the loss when the value of the insured property exceeds the face value of the policy," hence there is no co-insurance here.chanroblesvirtualawlibrary chanrobles virtual law library

Discussion - Undoubtedly, co-insurance exists under the condition described by the appellate court. But that is one kind of co-insurance. It is not the only situation where co-insurance exists. Other insurers of the same property against the same hazard are sometimes referred as co-insurers and the ensuing combination as co-insurance. ¹ And considering the terms of the policy which required the insured to declare other insurances, the statement in question must be deemed to be a statement (warranty) binding on both insurer and insured, that there were no other insurance on the property. Remember it runs "Co-Insurance declared"; emphasis on the last word. If "Co-Insurance" means that the Court of Appeals says, the annotation served no purpose. It would even be contrary to the policy itself, which in its clause No. 17 made the insured a co-insurer for the excess of the value of the property over the amount of the policy.chanroblesvirtualawlibrary chanrobles virtual law library

The annotation then, must be deemed to be a warranty that the property was not insured by any other policy. Violation thereof entitles the insurer to rescind. (Sec. 69. Insurance Act) Such misrepresentation is fatal in the light of our views in Santa Ana vs. Commercial Union Assurance Company, Ltd., 55 Phil., 329. The materiality of non-disclosure of other insurance policies is not open to doubt.chanroblesvirtualawlibrary chanrobles virtual law library

Furthermore, even if the annotations were overlooked, the defendant insurer would still be free from liability because there is no question that the policy issued by General Indemnity had not been stated in nor endorsed on Policy No. 471 of defendant. And as stipulated in the above-quoted provisions of such policy "all benefit under this policy shall be forfeited." ² chanrobles virtual law library

To avoid the dissastrous effect of the misrepresentation or concealment of the other insurance policy, Ng Hua alleges "actual knowledge" on the part of General insurance of the fact that he had taken out additional insurance with General Indemnity. He does not say when such knowledge was acquired or imparted. If General Insurance know before issuing its policy or before the fire, such knowledge might overcome the insurer's defense. ³ However, the Court of Appeals found no evidence of such knowledge. We have read the pages of the stenographic notes cited by Ng Hua and we all gather is evidence of the existence of the Insurance General Indemnity Company. As to knowledge of General Insurance before issuance of its policy or the fire, there was none.chanroblesvirtualawlibrary chanrobles virtual law library

Indeed, this concealment and violation was expressly set up as a special defense in the answer. Yet plaintiff did not, in avoidance, reply nor assert such knowledge. And it is doubtful whether the evidence on the point would be admissible under the pleadings. (See Rule 11, sec. 1.)chanrobles virtual law library

All the above considerations lead to the conclusion that the defendant insurer successfully established its defense of warranty breach or concealment of the other insurance and/or violation of the provision of the policy above-mentioned.chanroblesvirtualawlibrary chanrobles virtual law library

Having reached the conclusion, we deem it unnecessary to discuss the other defenses.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, the judgment under review will be revoked, and the defendant insurer (herein petitioner) acquitted from all the liability under the policy. Costs against respondent. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Paras, C.J., Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion Reyes, J.B.L., Endencia, and Barrera, JJ., concur.