Precedent No. 37/2020/AL

Precedent No. 37/2020/AL on the validity of a property insurance contract in cases where the insurance buyer pays the insurance premium after the end of the premium payment period was approved by the Council of Judges of the Supreme People's Court on February 5, 2020 and promulgated under Decision No. 50/QD-CA dated February 25, 2020 of the Chief Justice of the Supreme People's Court.

 

Source of case law:

Final judgment No. 28/2018/KDTM-GDT dated June 26, 2018 of the High People's Court in Ho Chi Minh City on the commercial business case "Insurance contract dispute" in Dong Nai province between the plaintiff, Limited Liability Company N, and the defendant, Joint Stock Insurance Corporation P; the persons with related rights and obligations include Insurance Company P1, Joint Stock Commercial Bank V, and Paper Joint Stock Company S.

Location of case law:

Paragraphs 4 and 5 of the “Court's Opinion” section.

Overview of case law:

- Case law:

After the end of the insurance premium payment period as agreed in the property insurance contract, the policyholder pays the insurance premium to the insurance company. The insurance company does not comment, does not send a written notice to the policyholder about the termination of the contract, but still receives the insurance premium, issues a value-added tax invoice and reports the tax on the insurance premium payment. Then, the insurance event occurs.

- Legal solutions:

In this case, the insurance contract is valid and the insurance company is responsible for compensating the insured for damages.

Legal provisions relating to precedents:

- Articles 285, 287 of the 2005 Civil Code (corresponding to Articles 278, 354 of the 2015 Civil Code);

- Articles 15 and 23 of the Law on Insurance Business 2000 (amended and supplemented in 2010).

CASE CONTENT

According to the petition, the plaintiff's authorized representative stated:

N Limited Liability Company (hereinafter referred to as N Company) was established and operated under Business Registration Certificate No. 3600686844 dated July 29, 2004 of the Department of Planning and Investment of Dong Nai province, registered for the 6th change on September 4, 2015.

Company N is the insured party and Insurance Company P1 (referred to as P1 Insurance) is the insurer, jointly signing 07 boiler insurance contracts and public liability insurance contracts as follows:

1. Boiler insurance contract No. P-15/DNI/XCG/3201/0005 dated March 24, 2015, the contract content includes: Insurance certificate - boiler insurance No. P-15/DNI/XCG/3201/0005 dated March 24, 2015; Fee collection notice dated March 24, 2015; Additional terms; Boiler insurance rules, according to which Company N is insured by P1 Insurance:

– Regarding material damage: Biomass drying kiln (commonly known as HOA VIET KILN) with insurance amount of 6,500,000,000 VND.

– Regarding liability to third parties: Liability limit of VND 1,100,000,000/incident and throughout the insurance period, including:

– About people

+ For each person: 20,000,000 VND/person/each incident.

+ For total number of people: 200,000,000 VND/incident and during the insurance period.

– Regarding property: 2,000,000,000 VND/incident and throughout the insurance period.

Insured location: H Joint Stock Company (hereinafter referred to as H Company); address: Quarter 8, Ward L, City B, Dong Nai Province. Insurance beneficiary: V Commercial Joint Stock Bank – Branch B (V Bank – Branch B). Insurance period from April 1, 2015 to March 31, 2016. (Hereinafter referred to as Contract No. 0005).

2. Public liability insurance contract No. P-15/DNI/XCG/3303/0009, dated March 24, 2015. The contract contents include: Public liability insurance certificate No. P-15/DNI/XCG/3303/0009; dated March 24, 2015; Public liability insurance contract No. P-15/DNI/XCG/3303/0009, dated March 24, 2015; Fee collection notice dated March 24, 2015; Public liability insurance rules; Amendments and supplements to public liability insurance, according to which Company N is insured by P1 Insurance for an amount of VND 21,000,000,000 for each loss and for the entire year (Limit on people: Not exceeding VND 20 million/person/incident). Scope of insurance: P1 insurance compensates for personal injuries or material damage occurring during the insurance period due to an incident within the geographical limits related to the business activities of Company N. Insured location: At Company H; address: Quarter 8, Ward L, City B, Dong Nai Province. Geographical scope: Vietnam. Beneficiaries of insurance benefits: Bank V - Branch B (Beneficiary 1), Company N (Beneficiary 2). Insurance period from April 1, 2015 to March 31, 2016. (Hereinafter referred to as contract No. 0009).
3. Boiler insurance contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015. Contract contents include: Insurance certificate - boiler insurance No. P-15/DNI/XCG/3201/0006 dated March 26, 2015; Fee collection notice dated March 26, 2015; Additional terms; Boiler insurance rules, according to which Company N is insured by P1 Insurance:

– Regarding material damage: Biomass Drying Kiln No. 03 (Commonly known as Boiler No. 3), with an insurance amount of 13,000,000,000 VND.

– Regarding liability to third parties: Liability limit of VND 1,000,000,000/incident and throughout the insurance period, including:

– About people:

+ For each person 20,000,000 VND/person/each incident.

+ For total number of people: 200,000,000 VND/incident and during the insurance period.

– Regarding property: 2,000,000,000 VND/incident and throughout the insurance period.

Insured location: At S Paper One Member Limited Liability Company, now S Paper Joint Stock Company (abbreviated as S Paper Company); address: M Industrial Park, T District, Ba Ria - Vung Tau Province. Insurance beneficiary: V Bank - Branch B. Participation and insurance period from April 1, 2015 to March 31, 2016. (Hereinafter referred to as contract No. 0006).

4. Public liability insurance contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015. The contract content includes: Public liability insurance certificate No. P-15/DNI/XCG/3303/0010; dated March 26, 2015; Public liability insurance contract No. P-15/DNI/XCG/3303/0010, dated March 26, 2015; Fee collection notice dated March 26, 2015; Public liability insurance rules; Amendments and supplements to public liability insurance, according to which Company N is insured by P1 Insurance for an amount of VND 21,000,000,000 for each loss and for the entire year (Limit on people: Not exceeding VND 20 million/person/incident). Scope of insurance: P1 insurance compensates for bodily injury or property damage to third parties that Company N is legally responsible for paying during the insurance period due to incidents related to Company N's business activities. Insured location: At Paper Company S; address: Industrial Park M, District T, Ba Ria - Vung Tau Province. Geographical scope: Vietnam. Beneficiaries of insurance benefits: Bank V - Branch B (Beneficiary 1), Company N (Beneficiary 2). Insurance participation period from April 1, 2015 to March 31, 2016. (Hereinafter referred to as Contract No. 0010).
5. Boiler insurance contract No. P-15/DNI/XCG/3201/0007 dated September 30, 2015. The contract content includes: Insurance certificate - boiler insurance No. P-15/DNI/XCG/3201/0007 dated September 30, 2015; Fee collection notice, September 30, 2015; Additional terms; Boiler insurance rules, according to which Company N is insured by P1 Insurance:

– Regarding material damage: Biomass drying kiln No. 01 (Commonly known as boiler No. 1), with insurance amount of 9,300,000,000 VND.

– Regarding liability to third parties: Liability limit of VND 1,000,000,000/incident and throughout the insurance period, including:

– About people:

+ For each person: 20,000,000 VND/person/each incident.

+ For total number of people: 200,000,000 VND/incident and during the insurance period.

– Regarding assets: 800,000,000 VND/incident and throughout the insurance period.

Insured location: At S Paper Company; address: M Industrial Park, T District, Ba Ria - Vung Tau Province. Insurance beneficiary: V Bank - Branch B. Insurance participation period from October 1, 2015 to October 1, 2016. (Hereinafter referred to as Contract No. 0007).

6. Boiler insurance contract No. P-15/DNI/XCG/3201/0008 dated September 30, 2015. The contract content includes: Insurance certificate - boiler insurance No. P-15/DNI/XCG/3201/0008, dated September 30, 2015; Fee collection notice, dated September 30, 2015; Additional terms; Boiler insurance rules, according to which Company N is insured by P1 Insurance:

– Regarding material damage: Biomass drying kiln No. 02 (Commonly known as boiler No. 2), with insurance amount of 5,400,000,000 VND.

– Regarding liability to third parties: Liability limit of VND 1,000,000,000/incident and throughout the insurance period, including:

– About people:

+ For each person: 20,000,000 VND/person/each incident.

+ For total number of people: 200,000,000 VND/incident and during the insurance period.

– Regarding assets: 800,000,000 VND/incident and throughout the insurance period.

Insured location: At S Paper Company; address: M Industrial Park, T District, Ba Ria - Vung Tau Province. Insurance beneficiary: V Bank - Branch B. Insurance participation period from October 1, 2015 to October 1, 2016. (Hereinafter referred to as Contract No. 0008).

7. Public liability insurance contract No. P-15/DNI/XCG/3303/0057, dated September 30, 2015. The contract content includes: Public liability insurance certificate No. P-15/DNI/XCG/3303/0057 dated September 30, 2015; Insurance premium collection notice, dated September 30, 2015; Public liability insurance contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015; Amendments and supplements to public liability insurance; Public liability insurance rules, according to which Company N is insured by P1 Insurance for an amount of VND 21,000,000,000 for each loss and for the entire year (Limit on people: Not exceeding VND 20 million/person/incident). Scope of insurance: P1 insurance compensates for bodily injury or property damage to third parties that Company N is legally responsible for paying during the insurance period due to incidents related to the business activities of Company N. Insured location: At Paper Company S; address: Industrial Park M, District T, Ba Ria - Vung Tau Province. Geographical scope: Vietnam. Beneficiaries of insurance benefits: Bank V - Branch B (Beneficiary 1), Company N (Beneficiary 2). Insurance period from October 1, 2015 to October 1, 2016. (Hereinafter referred to as Contract No. 0057).

At approximately 00:30 on November 13, 2015, at S Paper Company, there was an explosion in boiler No. 3, leading to:

1. Regarding material damage to boiler No. 3: The entire boiler system No. 3 was destroyed. Regarding property damage to third parties: Firefighting costs, property damage, construction costs, damage due to machine downtime... of S. Paper Company.
2. Human damage: 02 workers on duty operating Boiler No. 3, Mr. Nguyen Van C and Mr. Nguyen Thanh L, died.
3. Costs incurred for cleaning up the scene: Dismantling, cleaning, transporting and storing assets at the scene after the explosion of boiler No. 3.
4. Affecting and partially damaging Boiler No. 2 of Company N.

At 10:00 a.m. on November 13, 2015, P Insurance and N Company made a record of the scene/work. The Investigation Police Agency - Ba Ria - Vung Tau Provincial Police requested an appraisal of the cause of the incident. By January 13, 2016, there was a Conclusion of the appraisal No. 3548/C54B of the Criminal Science Sub-Institute (C54B) - Ministry of Public Security, shown in 03 documents of the Investigation Police Agency - Ba Ria - Vung Tau Provincial Police on the same day of January 26, 2016, including: Notice No. 02/TB-PC44, on not prosecuting a criminal case; Conclusion of verification of crime report No. 02/KL-PC44 (D3); Notice of results of handling crime report No. 02/TB-PC44; Official dispatch No. 100/VKS-P2, dated January 26, 2016 of the People's Procuracy of Ba Ria - Vung Tau province on the conclusion of the verification of the criminal complaint, concluded that the cause of the explosion of boiler No. 3 was due to a technical error, boiler No. 3 was still within the inspection period (issued by the Industrial Inspection Center II, Ministry of Industry and Trade, the next inspection date is December 17, 2016), so the explosion of boiler No. 3 on November 13, 2015 showed no signs of a crime.

P1 Insurance appointed B Appraisal Joint Stock Company, address: 2.5 P, Ward B, District P, Ho Chi Minh City, to conduct an appraisal of the loss of the explosion of boiler No. 3. The appraisal was carried out on November 17, 18, 19, 20 and 28, 2015, as shown by the minutes of the scene and determined the damage including: Boiler No. 3; boiler house No. 1, No. 2; equipment used in common between boilers No. 1, No. 2 and No. 3; mechanical and electrical damages of boiler No. 2; assets of the third party, Paper Company S; and actual cleaning of the scene.

Company N has compiled and sent data requesting compensation from P Insurance Joint Stock Corporation and P1 Insurance, based on the following legal basis:

1. Regarding physical damage to boiler No. 3: Company N based on boiler insurance contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015, the explosion of boiler No. 3 is within the scope of insurance liability of P Insurance, including:

– Boiler system No. 3: VND 13,886,965,686;

– Boiler house No. 3: VND 1,298,476,400;

– Equipment and supplies (Increasing the ability to use fuels): VND 2,519,308,592;

– Costs incurred for cleaning up the scene: Company N, based on Clause 25 of the Site Cleaning Clause (Limited to US$ 100,000) of the Additional Terms of Contract No. 0006, the costs incurred for cleaning up the scene due to the explosion of boiler No. 3 are within the scope of insurance liability of Insurance P with actual damage:

+ Cost of dismantling and lifting boiler No. 3: 140,000,000 VND;

+ Transportation fee (Large trailer): 20,000,000 VND;

+ Small cleaning and transportation costs: 200,000,000 VND;

+ Boiler warehouse rental fee No. 3: 120,000,000 VND.

Total: 18,184,750,678 VND.

2. Regarding human damage: Company N based on Contract No. 0009; Contract No. 0010; Contract No. 0057, the boiler explosion No. 3 caused human damage (2 deaths) occurred within the geographical scope: Vietnam, within the scope of public insurance liability of Insurance P with actual damage:

– For Mr. Nguyen Van C: 300,000,000 VND;

– For Mr. Nguyen Thanh L: 333,000,000 VND.

Total: 633,000,000 VND;

3. Regarding property damage to third parties: Company N based on Contract No. 0009; Contract No. 0010; Contract No. 0057, the boiler explosion No. 3 caused property damage to the third party, Paper Joint Stock Company S, occurred within the geographical scope: Vietnam, within the scope of public insurance liability of Insurance P with total actual damage:

– Property damage, construction costs: VND 90,804,880;

– Fire fighting costs: VND 24,943,000;

– Damage due to production interruption: VND 332,010,000;

– Compensate S Paper Joint Stock Company for the cost difference in replacement gas price in November 2015 due to the explosion of boiler No. 3: VND 1,063,032,472.

Total: 1,510,790,352 VND.

4. Material damage to boiler No. 2: Company N based on Contract No. 0008, damage to boiler No. 2 is within the scope of insurance liability of P Insurance with the damage amount:

– Mechanical damage: 200,000,000 VND;

– Electrical damage: 300,000,000 VND.

Total: 500,000,000 VND.

On the part of P Insurance:

1. Disagree to compensate for material liability for boiler No. 3 and public insurance liability for third-party people and property for Company N because of denying the validity of Contract No. 0006 and Contract No. 0010, as shown in Official Dispatch No. 130/P-DNI-CV, dated November 24, 2015 of P1 Insurance; further denying the validity of Contract No. 0005 and Contract No. 0009 through Official Dispatch No. 136/P-DNI-CV, dated December 1, 2015. On November 26, 2015, Company N sent Official Dispatch No. 01/2015/PHTT-NTN-PHCO DN to P Insurance in response to not accepting the content of P Insurance's denial of insurance liability and requesting to compensate for all damages that occurred. P Insurance continued to refuse compensation by Official Letter No. 135/P-DNI-CV, dated December 1, 2015, explaining: Company N had to pay the insurance premium before May 1, 2015, but on May 7, 2015, P1 Insurance only received the insurance premium, based on the Payment Terms in these Contracts that had expired on May 1, 2015, before the loss occurred on November 13, 2015, so it was not under P Insurance's insurance responsibility. Disagreeing with P Insurance's refusal of insurance responsibility, on December 2, 2015, N Company sent a complaint to P Insurance.

Insurance P refused to pay compensation for the above reason which was completely baseless.

91. i) Regarding the effective date of the Contract: According to the provisions of Article 405 of the Civil Code, "A legally concluded contract shall be effective from the time of conclusion, unless otherwise agreed or otherwise provided by law", regarding the time of conclusion of the Contract, "at the time the proposing party receives the response accepting the conclusion" (Clause 1, Article 404) or "at the time the last party signs the document" (Clause 4, Article 404). In fact, P Insurance has issued insurance certificates for Contract No. 0005, dated March 24, 2015; Contract No. 0009, dated March 24, 2015; Contract No. 0006, dated March 26, 2015; Contract No. 0010, dated March 26, 2015 and issued a value-added invoice to Company N, received the insurance premium on May 7, 2015 with the total insurance premium of the Contracts being VND 91,179,000. The parties have no other agreement on the effective date of the Contract. P Insurance shall be responsible for compensating for losses to Company N according to the provisions of Clause 1, Clause 3, Article 15 on the time of arising of insurance liability of the Law amending and supplementing a number of articles of the Law on Insurance Business 2010.
92. ii) Regarding the termination of the contract: According to Clause 2, Article 23 of the Law on Insurance Business, the insurance contract terminates when "The insurance buyer does not pay the full insurance premium or does not pay the insurance premium within the agreed time in the insurance contract, except in cases where the parties have an agreement".

According to the agreement of the two parties in the payment terms of the boiler insurance contracts: contract number 0005, number 0006, the parties have agreed:

“In case the insured fails to pay the full insurance premium or fails to pay the insurance premium according to the payment terms of the insurance contract”. According to the payment terms of boiler insurance contracts, “The insurance premium will be paid to the insurer by bank transfer in one lump sum”. Company N has paid the insurance premium by bank transfer in one lump sum with a total amount of VND 91,179,000 and P1 Insurance has received the full amount.

“or other payment arrangements agreed upon in writing by both parties, the validity of the Insurance Contract shall automatically terminate on the next day the insured must pay the premium as agreed upon in the Insurance Contract or the amendments/additional appendices (if any)”. Pursuant to Article 23, the insurance premium payment commitment clause is an additional clause purchased by Company N, which shall only be applied when and only when it is more beneficial to Company N than the payment clause agreed upon in the insurance contract “(but without prejudice to the rights of the parties under this application)”. According to the explanation, the citation to deny the validity of the insurance contract and not be liable for compensation by P Insurance is not beneficial to Company N, so the additional clause on payment is invalid. On the other hand, the additional terms are part of contract No. 15/DN/XCG/3201/0005, not part of contract No. 0005 (No. P-15/DNI/XCG/3201/0005); of contract No. 15/DNI/XCG/3201/0006, not part of contract No. 0006 (No. P-15/DNI/XCG/3201/0006).

According to the public liability insurance contracts: contract No. 0009, No. 0010, P Insurance cited Article 5 as the provision on the commitment to pay insurance premiums (15 days) to deny the validity of the contract, not being responsible for compensating for insurance incidents for Company N, which is unfounded, because it is not related to contract No. 0009, No. 0010 and is disadvantageous to Company N when applying the additional provisions (if any):

– The amended terms of public liability insurance are part of Contract No. 15/DNI/XCG/3303/0009, not part of Contract No. 0009 (No. P-15DNI/XCG/3303/0009); are part of Contract No. 15/DNI/XCG/3303/0010, not part of Contract No. 0010 (No. P-15/DNI/XCG/3303/0010);

– The terms on insurance premium payment commitment (15 days) are additional terms that only apply when more beneficial than other terms agreed in contracts No. 0009 and No. 0010, but these contracts do not stipulate contract termination due to late payment of insurance premium.

2. Regarding the damage to boiler No. 2: P Insurance deliberately avoided performing its responsibility to compensate for losses under Contract No. 0008 as committed in the conclusion of Part III of Official Dispatch No. 130/P-DNI-CV dated November 24, 2015.

For the above reasons, the authorized representative of Company N still maintains the lawsuit request, but on September 29, 2016 and at the first instance trial, the authorized representative of the plaintiff requested to withdraw part of the lawsuit request as follows:

– Recognizing the validity of Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015 between Insurance Party P1 and the insured party Company N; P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages when an insured incident occurs.

– Recognizing the validity of Public Liability Insurance Contract No. P-1 5/DNI/XCG/3303/0009, dated March 24, 2015 between insurer P1 and insured party N; P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages when an insured incident occurs.

– Compensate Company N for public liability insurance for people of 633,000,000 VND according to Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015.

– Do not calculate the 150% overdue penalty interest in the claim for damages due to P Insurance Joint Stock Company's delay in performing its insurance compensation obligation.

– Partially withdraw the claim to compensate Company N for the entire loss of the Biomass fluidized bed boiler explosion No. 3 under Boiler Insurance Contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015, which is: VND 18,184,750,678, only requesting VND 13,000,000,000 and VND 200,000,000 for cleaning the scene.

The authorized representative of Company N still maintains the remaining lawsuit requests and respectfully requests the Court to resolve and force P Insurance Joint Stock Corporation (P Insurance Joint Stock Company):

1. Recognizing the validity of Boiler Insurance Contract No. P-15/DNI/XCG/3201/0006, dated March 26, 2015, between insurer P1 and insured N; P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages.
2. Recognizing the validity of Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015, between insurer P1 and insured N; P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages.
3. Compensate Company N for all losses caused by the explosion of the Biomass fluidized bed boiler No. 3 under boiler insurance contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015: VND 13,000,000,000.
4. Crime scene cleanup 200,000,000 VND.
5. Compensate Company N for public liability insurance on third party property due to the explosion of boiler No. 3 with the amount of: VND 1,510,790,352 according to Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015.
6. Compensate Company N for the entire loss of Biomass fluidized bed boiler No. 2: VND 500,000,000 according to boiler insurance contract No. P-15/DNI/XCG/320L/0008 dated September 30, 2015.
7. Compensation for damages due to late performance of insurance compensation obligations after 15 days from November 19, 2015 until the date of receiving sufficient valid compensation claims (Recorded by P1 Insurance in Official Dispatch No. 130/P-DNI-CV, dated January 24, 2015), meaning from December 4, 2015 until the date of first instance trial on October 11, 2016 at the basic interest rate issued by the State Bank: VND 15,210,790,352 x 10 months and 7 days x 9%/year = VND 1,167,428,159.

Total (3)+(4)+(5)+(6)+(7): 16,378,218,511 VND.

Additional information for the Court to consider and resolve:

1. According to public liability insurance contracts No. 0009, No. 0010, No. 0057, the authority to resolve disputes is the People's Court with the authority to resolve as prescribed in Clause 2.3 of the contracts.
2. Regarding the boiler insurance contracts, Company N, pursuant to Article 17 of the Commercial Arbitration Law No. 54/2010/QH12, dated June 17, 2010; Clause 5, Article 4 of Resolution No. 01/2014/NQ-HDTP dated March 20, 2014 of the Council of Judges of the Supreme People's Court, since the Boiler Insurance Rules are stamped on the Boiler Insurance Contracts between the insurance service provider P1 and the insured party Company N and are prepared by the insurance service provider P1 with an arbitration agreement, Company N has the right to choose Arbitration or Court to resolve the dispute. Company N chooses the Court to resolve the dispute.

The authorized representative of the plaintiff agrees with the Valuation Certificate No. 2003/TĐG-CT dated August 22, 2016 of the D Valuation Joint Stock Company and has no other comments. The authorized representative of the plaintiff has heard the Court explain to Mr. Chu Thanh T that if Mr. T does not agree with the above valuation certificate, Mr. T has the right to request the Court to re-evaluate the valuation, but Mr. T has no comments and requests the Court to resolve according to the provisions of law.

No other requirements.

The defendant's authorized representative presented:

1. Opinions on the contents of the lawsuit request, including content number 1 to content number 7 of Company N according to the lawsuit petition dated May 17, 2016, are as follows:
2. Boiler insurance certificate No. P-15/DNI/XCG/3201/0006 was jointly agreed upon and signed by P1 Insurance and Company N on March 26, 2015 in accordance with the provisions of law (Insurance contract includes: Insurance certificate, Insurance premium collection notice, Insurance rules, Additional terms stamped by P Insurance). However, during the implementation of the contract, Company N did not fully fulfill the commitments in the contract, resulting in the contract expiring before the loss occurred, specifically as follows:

According to the payment terms on the insurance certificate and additional clause No. 23, the payment period is stipulated as follows:

1) According to the term stated on the Insurance Certificate:

“Payment deadline: Within 15 days from March 26, 2015.

Payment terms stated in the Contract: Insurance premiums will be paid to the insurer in cash, check or bank transfer in one lump sum. Specifically, as follows:

In case the insured fails to pay the full insurance premium or fails to pay the insurance premium according to the payment terms of the Insurance Contract or other payment agreements agreed upon by both parties in writing, the validity of the Insurance Contract shall automatically terminate on the next day. The insured shall pay the premium according to the agreement of the Insurance Contract or the amendments/additional appendices attached thereto (if any)”.

Thus, according to this fee payment deadline, Company N must pay the insurance premium to Insurance P before April 10, 2015 (this is also clearly stated by Insurance P in the fee collection notice sent to Company N on March 26, 2015).

2. According to Additional Clause No. 23: Insurance premium payment commitment clause (30 days):

“1) It is agreed and acknowledged that, notwithstanding anything to the contrary contained in this policy, and subject to condition 2 below (but without prejudice to the rights of the parties hereto), it is a condition precedent to the liability of P Insurance under the policy, renewal certificate, endorsement or certificate of insurance that the insured shall pay in full any calculated premium and that P Insurance, the broker or agent who issued or arranged this policy shall receive such premium within the following time limits:

(a) If the period of insurance is 30 days or more, payment must be made within 30 days of:

(i) The effective date of the policy, renewal certificate, or temporary certificate of insurance.

(ii) The effective date specified in each additional term (if any) issued under the insurance policy, insurance renewal certificate, temporary insurance certificate if the effective date of such declared insurance is on or after the date of issuance of the additional term.

(iii) The date of issue of each endorsement (if any) issued under the policy, renewal certificate or temporary certificate of insurance if the effective date specified in the endorsement occurs before the date of issue.

Or

1. b) If the insurance period is less than 60 days, within the insurance period stated in the insurance policy, insurance renewal certificate, additional terms, or temporary insurance certificate.

2) In case the above mentioned premium has not been fully paid to P Insurance, broker, agent as declared in the nature and time specified above (premium payment guarantee period), the insurance effect under the insurance policy, insurance renewal certificate, additional term, or temporary insurance certificate shall be deemed to have terminated from the date of expiry of the premium payment guarantee period and P Insurance shall be discharged from all liability from then on and in this case, P Insurance shall be entitled to the insurance premium calculated according to the rate for the days the insurance policy has been in effect but not less than 20 USD.”

Thus, according to this fee payment deadline, Company N must pay the insurance premium to P before May 1, 2015.

Based on the above payment agreements, no later than May 1, 2015, Company N must pay the insurance premium according to the boiler insurance certificate No. P-15/DNI/XCG/3201/0006 to P Insurance, but by May 7, 2015, P had just received the insurance premium from Company N (7 days later than the provisions of supplementary clause No. 23, 26 days later than the payment terms in the insurance certificate).

Therefore, based on the payment terms on the insurance certificate and additional clause No. 23; Based on item a, clause 2, Article 18 and clause 2, Article 23 of the Law on Insurance Business; Clause 4, Article 2 of Circular No. 194/2014/TT-BTG dated December 17, 2014, effective February 1, 2015 of the Ministry of Finance, the explosion loss of the Biomass fluidized bed boiler No. 3 with a capacity of 30 tons/hour according to the boiler insurance certificate No. P-15/DNI/XCG/3201/0006 occurred on November 13, 2015 of Company N at S Paper Company Limited - M Industrial Park, T District, Ba Ria - Vung Tau Province is not covered by P Insurance because the insurance contract No. P-15/DNH/XCG/3201/0006 had expired on May 1, 2015, before the loss occurred on November 13, 2015.

1. Public liability insurance contract No. P-15/DNI/XCG/3303/0010 was agreed upon and signed by P1 Insurance and Company N on March 26, 2015 (The contract includes: Insurance contract, Insurance rules, Additional terms stamped on both sides). However, during the implementation of the contract, Company N did not fully fulfill the commitments in the contract, resulting in the contract expiring before the loss occurred, specifically as follows:

According to the insurance certificate and additional terms, the payment period is specified as follows:

1. According to the deadline stated on the insurance certificate: “Payment deadline: Within 15 days from the date of certificate issuance”.

Thus, according to this fee payment deadline, Company N must pay the insurance premium to Insurance P before April 10, 2015 (this is also clearly stated by Insurance P in the fee collection notice dated March 26, 2015 sent to Company N).

2. According to Additional Clause 23: Premium Payment Undertaking Clause: “Notwithstanding anything to the contrary contained herein and subject only to and without prejudice to Clause 2 set forth below, the parties declare and agree that it is a condition precedent to liability under this policy, renewal certificate, endorsement or temporary certificate that any premium due shall be paid and received in full by the Insurer, its brokers or agents registered in the business of:

(a) If the insurance period is 30 days or more, within 30 days from:

(i) The date of receipt of insurance under the policy, renewal certificate or temporary certificate of insurance, or

(ii) The effective date of coverage specified in each endorsement, if any, issued under the policy, renewal certificate or temporary certificate of coverage where the effective date of coverage specified in such endorsement is on or after the date of issuance of such endorsement, or

(iii) The date of issue of each endorsement, if any, issued under the policy, renewal certificate or temporary certificate of insurance where the effective date of insurance stated on such endorsement is prior to the date of issue.

(b) If the insurance period is shorter than 7 days, within the insurance period stated in the insurance policy, insurance renewal certificate or temporary insurance certificate.

Where any premium referred to above is not paid in full to the Insurer, Broker or Registered Agent as described above, in the manner and within the time specified herein (“Premium Payment Period”), the insurance under this policy, renewal certificate or temporary certificate shall be automatically terminated from the effective date of the contract and the Insurer shall be discharged from all liability from that date”.

Thus, according to this fee payment deadline, Company N must pay the insurance premium to Insurance P before May 1, 2015.

Based on the above payment agreements, no later than May 1, 2015, Company N must pay the insurance premium under the public liability insurance contract No. P-15/DNI/XCG/3303/0010 to P Insurance. However, it was not until May 7, 2015 that P Insurance received the insurance premium from Company N (7 days later than the provisions of Additional Clause No. 23, 26 days later than the payment terms in the insurance contract).

Therefore, based on the payment terms in the Insurance Contract; Pursuant to item a, clause 2, Article 18 and clause 2, Article 23 of the Law on Insurance Business, clause 4, Article 2 of Circular No. 194/2014/TT-BTC dated December 17, 2014, effective February 1, 2015 of the Ministry of Finance, P1 Insurance Company is not responsible for compensating for the legal responsibilities of Company N to third parties related to the loss caused by the explosion of Biomass fluidized bed boiler No. 3, capacity of 30 tons/hour, according to the Public Liability Insurance Contract No.: P-15/DNI/XCG/3 303/0010, occurring on November 13, 2015 at S Paper Company Limited - M Industrial Park, T District, Ba Ria - Vung Tau Province because this insurance contract has expired since May 1, 2015, before the date of loss. November 13, 2015.

III. Boiler insurance certificate No. P-15/DNI/XCG/3201/0008 was agreed upon and signed by P1 Insurance and Company N on September 30, 2015 (The Contract includes: Insurance certificate, insurance rules, additional terms, all of these documents are stamped by P Insurance). Based on these documents, P Insurance would like to inform as follows:

Contract P-15/DNI/XCG/3201/0008, insurance for Biomass boiler No. 2 has been fully performed by Company N under the Contract, therefore P Insurance will consider and resolve compensation according to regulations, this has been mentioned by P Insurance in Official Dispatch 130/P-DNI-CV dated November 24, 2015. Currently, the appraisal company has been agreed by the parties to appraise the Biomass boiler No. 2 and is carrying out its work. When the results are available, P Insurance will proceed with compensation according to regulations.

Regarding the loss of boiler No. 2, P Insurance did not evade responsibility as the plaintiff stated, but P1 Insurance Company is coordinating with N Company and B Appraisal Joint Stock Company to determine the value of the damage, on that basis, P1 Insurance Company will compensate according to regulations. Currently, the case is in the process of being resolved, so we request that the Court consider not accepting this content.

1. Public liability insurance contract No. P-15/DNI/XCG/3303/0009 was agreed upon and signed by P1 Insurance and Company N on March 24, 2015 in accordance with the provisions of law (The Contract includes: Insurance Certificate, Premium Collection Notice, Insurance Rules, Additional Terms stamped by P Insurance).

According to this Insurance Contract, the insured location is at Company H, not related to the loss occurring at Paper Company S.

Therefore, we request that the Court not consider this content.

1. Regarding the claim for compensation for personal injury of Company N under the Public Liability Insurance Contracts No. P-15/DNI/XCG/3303/0009 dated March 24, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015 and Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015, the Court is requested to dismiss because the public liability insurance contracts do not cover employees or workers for the insured.
2. Regarding the loss related to third party liability under the application P-15/DNI/XCG/3303/0057, P1 Insurance Company is coordinating with Company N and B Appraisal Joint Stock Company to determine the value of the damage, on that basis, P1 Insurance Company will compensate according to regulations. Currently, the case is in the process of being resolved, so we request that the Court consider not accepting this content.
3. Opinion on the content of the lawsuit request No. 9 of Company N according to the lawsuit petition dated May 17, 2016, as follows:

The calculation of interest due to late payment of compensation for all lawsuit items is unfounded for the following reasons:

1) Boiler insurance certificate No. P-15/DNI/XCG/3201/0006 and public liability insurance contract No. P-15/DNI/XCG/3303/0010 were terminated on May 1, 2015, before the loss occurred on November 13, 2015 as stated in the opinion in Sections I and II, Part A. This means that the calculation of interest due to late payment of compensation is unfounded.

2. Boiler Insurance Certificate No.: P-15/DNI/XCG/3201/0008, Public Liability Insurance Contract No.: P-15/DNI/XCG/3303/0057.

On November 24, 2015, P1 Insurance Company issued Official Letter No. 130/P-DNI-CV informing that: "Your Company has fulfilled its obligation to pay premiums in accordance with regulations. P Insurance will coordinate/guide your Company on the next steps to review the scope and insurance liability of the loss item according to this insurance certificate".

After the loss occurred, P Insurance hired B Appraisal Joint Stock Company to coordinate/instruct N Company to collect documents to determine the cause and extent of the loss to have a basis for considering compensation for the losses under this Insurance Contract (the hiring of an independent appraisal unit B Appraisal Joint Stock Company has been confirmed and agreed upon by P Insurance and N Company). However, up to now, N Company has not provided sufficient documents to prove the loss according to the request letter and instructions through many meetings of B Appraisal Joint Stock Company. P Insurance is responsible for compensation within 15 days from the date of receiving complete and valid documents according to the provisions of the Law on Insurance Business, insurance rules and effective insurance contract. In this case, N Company has not provided sufficient documents according to the regulations, therefore P has not been able to compensate for the damage to Biomass boiler No. 2, so it cannot be said that P Insurance is slow to perform its obligations according to N Company's lawsuit.

3. Regarding the time frame for calculating complaints about delayed performance of compensation obligations:

The loss occurred on November 13, 2015, while Company N complained about the delay in performing its compensation obligation from January 19, 2015. The time that Company N mentioned to calculate interest has nothing to do with the time of loss, nor is it related to Official Letter 130/PHCO-DNI-CV dated November 24, 2015 that P1 Insurance sent to Company N.

4. Provisions on compensation for late payment obligations:

According to the provisions of the Law on Insurance Business and insurance rules, the Insurance Company is responsible for compensating the insured person within 15 days from the date of receiving complete and valid documents as prescribed.

Insurance Company P has fully performed its responsibilities in accordance with the terms and conditions agreed upon by the parties in the contracts and insurance certificates No. P-15/DNI/XCG/3201/0006; P-15/DNI/XCG/3303/0010 and P-15/DNI/XCG/3303/0009. The refusal to compensate for these Contracts/certificates is in accordance with the commitments in the Contracts and in accordance with the provisions of the Law on Insurance Business; Circular No. 194/2014/TT-BTC dated December 17, 2014, effective February 1, 2015 of the Ministry of Finance. Based on the above issues, we request that the Court dismiss the entire lawsuit of the plaintiff.

Regarding the Valuation Certificate No. 2003/TĐG-CT dated August 22, 2016 of Valuation Joint Stock Company D, P Insurance expressed its disagreement with the above valuation certificate because the valuation was inappropriate and not in accordance with the law. The Court explained that the defendant had the right to request a re-valuation, but the defendant sent an opinion to the Court that using the valuation certificate as the basis for insurance compensation was not in accordance with the provisions of the law on insurance compensation. The Court was requested to resolve the case in accordance with the law.

The person with related rights and obligations, P1 Insurance Company, represented by Mr. Chu Thanh T, presented:

Agree with the defendant's opinion in the self-declaration dated June 27, 2016, the minutes of conciliation and have no other opinion. The opinions of P Insurance Corporation (P Insurance) sent to the Court are also your opinions as the legal representative of the person with rights and obligations related to P1 Insurance Company.

The person with rights and obligations related to Joint Stock Commercial Bank V, represented by Ms. Ha Thi Thanh H under authorization, presented.

– On May 8, 2013, Company N (hereinafter referred to as: customer) mortgaged assets to Joint Stock Commercial Bank V – Branch B (hereinafter referred to as the Bank) which is the boiler system installed at Joint Stock Company H, according to the asset mortgage contract No. 069/13/VCB.BH dated May 8, 2013. The boiler system installed at Joint Stock Company H was insured by the customer as follows:

+ Boiler insurance contract No. P-15/DNI/XCG/3201/0005, dated March 24, 2015 with the first beneficiary being Joint Stock Commercial Bank V - Branch B, the insurance amount is 6,500,000,000 VND, insurance period from April 1, 2015 - March 31, 2016.

+ Public liability insurance contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015 with the first beneficiary being V Commercial Joint Stock Bank - Branch B, the insurance amount is 21,000,000,000 VND, insurance period from April 1, 2015 - March 31, 2016.

– On October 1, 2014, Company N mortgaged the boiler system installed at S Paper Company Limited (Boiler 2) to the Bank, according to Mortgage Contract No. 207/14/VCB.BH dated October 1, 2014. Boiler system No. 2 located at S Paper Company was insured by the customer as follows:

+ Boiler insurance contract No. P-15/DNI/XCG/3201/0008 dated September 30, 2015 with the first beneficiary being Joint Stock Commercial Bank V - Branch B, the insurance amount is 5,400,000,000 VND, insurance period from October 1, 2015 - October 1, 2016.

+ Public liability insurance contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015 with the first beneficiary being Joint Stock Commercial Bank V - Branch B, with the insurance amount of VND 21,000,000,000, insurance term from October 1, 2015 to October 1, 2016.

– On February 6, 2015, Company N mortgaged the property to the Bank, which is the Boiler System installed at S Paper Company Limited (Boiler 3), according to the Property Mortgage Contract No. 055/15/VCB.BH, dated February 6, 2015. The Boiler System No. 3 at S Paper Company was insured by the customer as follows:

+ Boiler insurance contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015 with the first beneficiary being Joint Stock Commercial Bank V - Branch B, the insurance amount is 13,000,000,000 VND, insurance period from April 1, 2015 to March 31, 2016.

+ Public liability insurance contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015 with the first beneficiary being Joint Stock Commercial Bank V - Branch B, the insurance amount is 21,000,000,000 VND, insurance period from April 1, 2015 to March 31, 2016.

The above assets are used to secure loans of Company N at Joint Stock Commercial Bank V - Branch B under the Credit Contracts with the following detailed contents:

STT	Contract number	Loan purpose	Loan amount (million VND)	Loan term (months)	Current interest rate	Outstanding debt to date (million VND)
1	0061.15/48.05-HMTD dated February 6, 2015; Appendix No. 01/0061.15/48.05- HMTD dated June 15, 2015 and Appendix No. 01/0061.15/48.05- HMTD dated December 16, 2015	Supplement working capital to serve production and business	8,000	12	7.30%	8,991
2	0050.14/48.05-DTDA dated March 11, 2014	Payment for purchase of 100% new Thaco Auman truck.	425	36	10.00%	157
3	0425.14/48.05-DTDA dated October 1, 2014	Payment for the purchase of machinery, equipment, materials, and other costs related to the investment in the construction of a boiler equipment system	4,500	48	10.00%	3,226
4	0033.15/48.TN-XE dated April 16, 2015	Payment for purchase of 100% new Thaco Auman truck.	561	36	10.00%	358
5	0136.15/48.TN-XE dated June 8, 2015	Payment for buying 100% new Thaco Auman truck	564	36	10.00%	392
6	0146.15/48.TN-XE dated June 16, 2015	Payment for purchase of 100% new Thaco Aurnan truck.	319	36	10.00%	221
7	0382.15/15.BL- DTDA dated November 12, 2015	Payment for the purchase of machinery, equipment, materials and other costs related to the investment in the construction of boiler equipment systems	6,000	48	10.00%	5,950

– According to the report on the boiler explosion of Company N sent to Joint Stock Commercial Bank V – Branch B on November 16, 2015, at about 00:30 on November 13, 2015, at Paper Company S, address: Industrial Park M, District T, Ba Ria – Vung Tau Province, there was an explosion of boiler No. 3 of the customer. The above incident caused total damage to the property mortgaged at the Bank under Mortgage Contract No. 055/15/VCB.BH dated February 6, 2015, the estimated damage value is about 13,000,000,000 VND.

– On November 16, 2015, the Bank went to the actual scene of the incident and worked with Company N (details according to the Minutes of the meeting dated November 16, 2015). The Bank requested the customer to provide details of the mortgaged property status, and actively worked with P1 Insurance Company to be compensated for damages caused by the above incident.

According to the Notice of Acceptance of Case No. 72/2016/TB-KDTM dated June 2, 2016 of Bien Hoa City People's Court on "Insurance Contract Dispute", Company N requests the Court to resolve the following specific issues:

1. Recognizing the validity of boiler insurance contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015 between Insurance Party P1 and Insured Party N; P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages stated below.
2. Recognizing the validity of boiler insurance contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015 between Insurance party P1 and insured party N; P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages stated below.
3. Recognizing the validity of boiler insurance contract No. P-15/DNI/XCG/3201/0005 dated March 24, 2015 between Insurance party P1 and insured party N; P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages when an insured incident occurs.
4. Recognizing the validity of boiler insurance contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015 between insurer P1 and insured party N; P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages listed below and other damages when an insured incident occurs.
5. Compensate Company N for all losses caused by the explosion of the Biomass fluidized bed boiler No. 3 according to Boiler Insurance Contract No. P-15/DNI/XCG/32đ1/0đ06 dated March 26, 2015 with the amount of VND 18,184,750,678.
6. Compensation for Company N for public liability insurance on people is 633,000,000 VND according to public liability insurance contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015; Public liability insurance contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015; Public liability insurance contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015.
7. Compensate Company N for public liability insurance on third party property, due to the incident of boiler No. 3 with the amount of VND 1,510,790,352 according to Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015.
8. Compensate Company N for the entire loss of the explosion of the Biomass fluidized bed boiler No. 2 of VND 500,000,000 according to boiler insurance contract No. P-15/DNI/XCG/3201/0008 dated September 30, 2015.
9. Compensation for damages due to late performance of insurance compensation obligations after 15 days from January 19, 2015 (recorded by P1 Insurance in Official Dispatch No. 130/P-DNI-CV, dated November 24, 2015) until the date of first instance trial, according to the average overdue debt interest rate on the market: VND 20,828,541,030 x 15 months (provisionally calculated from February 4, 2015 to May 4, 2016) x 9%/year x 150% = VND 3,514,816,298.

Total (5)+(6)+(7)+(8)+(9): 24,343,357,328 VND.

Regarding the contents of Company N's lawsuit against P Insurance Joint Stock Corporation (P Insurance Joint Stock Corporation) in the petition as well as at the trial, V Commercial Joint Stock Bank requests the Court to consider the case according to the provisions of law.

Regarding Valuation Certificate No. 2003/TĐG-CT dated August 22, 2016 of Valuation Joint Stock Company D, the Bank has no comments and requests the Court to resolve according to the provisions of law.

Accept the lawsuit of Company N.

Compel P Insurance Joint Stock Corporation (P Insurance Joint Stock Corporation):

1. Recognizing the validity of Boiler Insurance Contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015 between insurer P1 and insured party N and P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages.
2. Recognizing the validity of Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015 between insurer P1 and insured party N and P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages.
3. Compensate Company N for all losses of the explosion of the Biomass Fluidized Bed Boiler No. 3 according to the boiler insurance contract No. P-15/DNI/XCG/3201/0006, dated March 26, 2015, which is: VND 13,000,000,000;
4. Crime scene cleanup 200,000,000 VND.
5. Compensate N Company Limited for public liability insurance on third party property due to the explosion of boiler No. 3 with the amount of: VND 1,510,790,352, according to public liability insurance contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015; Public liability insurance contract No. P-15/DNVXCG/3303/0057 dated September 30, 2015.
6. Compensate Company N for all losses of Biomass Fluidized Bed Boiler No. 2: VND 500,000,000, according to boiler insurance contract No. P-15/DNI/XCG/3201/0008 dated September 30, 2015.
7. Compensation for damages due to late performance of insurance compensation obligations after 15 days from November 19, 2015, receipt of full valid compensation claims (recorded by P1 Insurance in Official Dispatch No. 130/P-DNI-CV dated January 24, 2015), i.e. December 4, 2015, until the first instance trial date October 11, 2016, according to the basic interest rate issued by the State Bank: VND 15,210,790,352 x 10 months and 7 days x 9%/year = VND 1,167,428,159.

Total (3)+(4)+(5)+(6)+(7): 16,378,218,511 VND.

Suspend the withdrawn part of the claim of Company N, including:

– Recognizing the validity of the Public Liability Insurance Contract No. P-15/DNI/XCG/33 03/0009 dated March 24, 2015 between the insurer P1 and the insured N and the P Insurance Joint Stock Corporation (P Insurance Joint Stock Corporation) must be responsible for compensating N for all damages when an insured incident occurs.

– Recognizing the validity of Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015 between insurer P1 and insured party N and P Insurance Joint Stock Corporation (P Insurance Joint Stock Corporation) must be responsible for compensating N for all damages when an insured incident occurs.

– Compensate Company Cy N for public liability insurance for people of 633,000,000 VND, according to Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015.

– Do not calculate the 150% overdue penalty interest in the claim for damages due to P Insurance Joint Stock Company's delay in fulfilling its insurance compensation obligation.

– Part of the claim to compensate Company Cy N for the entire loss of the explosion of the Biomass fluidized bed boiler No. 3 under Boiler Insurance Contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015 is: VND 4,984,750,678.

P Insurance Joint Stock Company (P Insurance Joint Stock Company) must reimburse N Insurance Joint Stock Company for the public valuation cost: VND 134,000,000.

In addition, the Court of First Instance also decides on the responsibility for late execution of judgment, court fees and the right to appeal of the parties.

On October 20, 2016, the defendant P Insurance Joint Stock Corporation filed an appeal against the entire First Instance Commercial Judgment.

In the Commercial Appeal Judgment No. 01/2017/KDTM-PT dated March 6, 2017, the People's Court of Dong Nai province decided:

Reject all appeal requests of P Insurance Joint Stock Company (P Insurance Joint Stock Company), uphold the first instance judgment.

Accept the petition of Cong Cy N.

Compel P Insurance Joint Stock Corporation (P Insurance Joint Stock Corporation):

1. Recognizing the validity of boiler insurance contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015 between insurer P1 and insured party N and P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages.
2. Recognizing the validity of public liability insurance contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015 between insurer P1 and insured party N and P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages.
3. Compensate Company N for all losses caused by the explosion of the Biomass fluidized bed boiler No. 3 under boiler insurance contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015: VND 13,000,000,000.
4. Crime scene cleanup 200,000,000 VND.
5. Compensate Company N for public liability insurance on third party property due to the explosion of boiler No. 3 with the amount of: 1,510,790,352 VND, according to public liability insurance contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015; Public liability insurance contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015.
6. Compensate Company N for all losses of Biomass Fluidized Bed Boiler No. 2: VND 500,000,000, according to boiler insurance contract No. P-15/DNI/XCG/3201/0008 dated September 30, 2015.
7. Compensation for damages due to late performance of insurance compensation obligations after 15 days from November 19, 2015, receipt of full valid compensation claims (Recorded by P1 Insurance in Official Dispatch No. 130/P-DNI-CV dated January 24, 2015) i.e. December 4, 2015 until the first instance trial date October 11, 2016, according to the basic interest rate issued by the State Bank: VND 15,210,790,352 x 10 months and 7 days x 9%/year = VND 1,167,428,159.

In total (3)+(4)+(5)+(6)+(7), P Insurance Joint Stock Corporation (P Insurance Joint Stock Corporation) must be responsible for compensating Company N: VND 16,378,218,511.

Suspend the part of the lawsuit claim that Company N has withdrawn, including:

– Recognizing the validity of Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0009 dated March 24, 2015 between insurer P1 and insured party N and P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages when an insured incident occurs.

– Recognizing the validity of Public Liability Insurance Contract No. P-15/DNI/XCG/3 303/0009 dated March 24, 2015 between insurer P1 and insured party N and P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for compensating Company N for all damages when an insured incident occurs.

– Compensation for Company N for public liability insurance on people is 633,000,000 VND, according to Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0009, dated March 24, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015; Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015.

– Do not calculate the 150% overdue penalty interest in the claim for damages due to P Insurance Joint Stock Company's delay in performing its insurance compensation obligation.

– Part of the claim to compensate Company N for the entire loss of the explosion of the Biomass fluidized bed boiler No. 3 according to Boiler Insurance Contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015 is: VND 4,984,750,678.

– Regarding litigation costs: P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must bear the valuation cost of VND 134,000,000, so P Insurance Joint Stock Corporation (P Insurance Joint Stock Company) must be responsible for refunding Company N the amount of VND 134,000,000.

From the date the plaintiff files a request for enforcement of the judgment, if the defendant fails to pay the above amount and the valuation fee, it shall bear late payment interest at the basic interest rate prescribed by the State Bank corresponding to the amount of late payment at the time of payment.

In addition, the Court of Appeal also decides on court costs.

After the appeal trial, P Insurance Joint Stock Corporation submitted a request for review of the above-mentioned Appellate Judgment according to the cassation procedure.

In Decision No. 45/QDKNGDT-VC3-KDTM dated February 8, 2018, the Chief Prosecutor of the High People's Procuracy in Ho Chi Minh City protested the above-mentioned appellate judgment, requesting the Judicial Committee of the High People's Court in Ho Chi Minh City to review the case and annul the above-mentioned appellate commercial judgment and annul the entire first-instance commercial judgment No. 50/2016/KDTM-ST dated October 11, 2016 of the People's Court of Bien Hoa City, Dong Nai Province; and transfer the case file to the People's Court of Bien Hoa City, Dong Nai Province for a retrial in accordance with legal provisions.

At today's court session, the representative of the High People's Procuracy in Ho Chi Minh City requested the Judicial Committee of the High People's Court in Ho Chi Minh City to accept the appeal of the Chief Prosecutor of the High People's Procuracy in Ho Chi Minh City.

JUDGMENT OF THE COURT

[1] According to the documents and evidence in the case file:

[2] Company N supplies, installs and operates 03 boilers at Industrial Park M, District T, Ba Ria - Vung Tau Province for Paper Joint Stock Company S (Paper Company). At the same time, Company N and Insurance Company P1 (P1 Insurance) signed 05 Boiler Insurance and Public Liability Insurance Contracts, specifically: Boiler Insurance Contract No. P-15/DNI/XCG/3201/0006 dated March 26, 2015 (Contract No. 06); Public Liability Insurance Contract No. P-15/DNI/XCG/3303/0010 dated March 26, 2015 (Contract No. 10); Boiler Insurance Contract No. P-15/DNI/XCG/3201/0007 dated September 30, 2015 (Contract No. 07); Boiler insurance contract No. P-15/DNLXCG/3201/0008 dated September 30, 2015 (Contract No. 08); Public liability insurance contract No. P-15/DNI/XCG/3303/0057 dated September 30, 2015 (Contract No. 57).

[3] At approximately 00:30 on November 13, 2015, at the Paper Company, there was an explosion of boiler No. 3. The Investigation Police Agency - Ba Ria - Vung Tau Provincial Police requested an appraisal of the cause of the incident and concluded that the cause of the explosion of boiler No. 3 was due to a technical error, with no signs of crime. The boiler explosion not only caused damage to the assets of Company N but also affected the assets of the Paper Company. The damaged assets at the Paper Company were within the scope of insurance according to the Insurance Certificate, so Company N was compensated for the value of the damage according to the provisions of law.

[4] However, P1 Insurance believes that Company N is late in paying the insurance premium, so Contract No. 06 and Contract No. 10 are invalid because: The last day to pay the insurance premium is May 1, 2015, but it was not until May 7, 2015 that Company N transferred the insurance premium to P1 Insurance. After receiving the insurance premium from Company N, P Insurance Corporation and P1 Insurance did not have any comments and did not issue a written notice about the late payment of the insurance premium, so the two above Contracts were no longer valid from May 1, 2015, but P1 Insurance still received, issued value-added invoices and reported taxes on these two insurance premiums from Company N, so it is assumed that P Insurance Corporation and P1 Insurance acknowledged the late payment of the insurance premium by Company N and acknowledged the validity of the two above insurance contracts.

[5] Therefore, when an insurance event occurs, P Insurance Joint Stock Corporation must be responsible for compensation according to the Contract signed between the two parties.

[6] Regarding loss and compensation, it is found that: Pursuant to Article 48 of the Law on Insurance Business, it is required to conduct a loss assessment to determine the cause and extent of the loss. From there, there is a basis to determine the amount of compensation that P Insurance Corporation must pay. However, the Court of First Instance and the Court of Appeal only decided to appraise the value of the assets to take the basis to force P Insurance Corporation to pay compensation, which is unfounded because according to the provisions of Clause 15, Article 4 of the Law on Prices, it is stipulated that: Valuation is the act of an agency or organization with the function of valuation to determine the monetary value of assets according to the provisions of the Civil Code in accordance with the market price at a certain location and time, serving a certain purpose according to valuation standards.

[7] On the other hand, according to the provisions of Insurance Contract No. 06, the deductible is stipulated as follows: The deductible is the amount that the insured person must bear in case of loss, the deductible in this Contract is 5% of the minimum loss value of VND 10,000,000/each loss. However, the Court of First Instance and the Court of Appeal did not consider this agreement in the Contract but forced P Insurance Corporation to compensate for all damages, which was not in accordance with the agreement of the Contract, causing damage to the interests of P Insurance Corporation.

[8] Regarding Insurance Contract No. 08: After the incident occurred, the two parties agreed to let Appraisal Joint Stock Company B conduct the appraisal. However, Appraisal Joint Stock Company B has not completed the appraisal of the loss because Company N has not provided sufficient documents. The Court of First Instance and the Court of Appeal did not consider this issue but forced P Insurance Joint Stock Corporation to compensate Company N when there was insufficient evidence, which is unfounded.

[9] Company N has not provided evidence to prove that it has compensated for material damage to a third party, but the Court of First Instance and the Court of Appeal both forced P Insurance Corporation to compensate for public liability under Contract No. 10 and Contract No. 57 in the amount of VND 1,510,790,352, which is unfounded.

[10] In addition, the technical inspection certificate of the Industrial Inspection Center II determined: The previous inspection was in October 2013, but the insurance contract and valuation certificate determined that the BIOMASS Drying Oven was manufactured in 2014, but the Court of First Instance and the Court of Appeal have not clarified this issue, but the decision to force P Insurance Joint Stock Corporation to compensate Company N is not sufficient basis.

For the above reasons;

DECISION

Pursuant to Articles 337, 343 and 349 of the Civil Procedure Code.

1. Accept Protest No. 45/QDKNGDT-VC3-KDTM dated February 8, 2018 of the Chief Prosecutor of the High People's Procuracy in Ho Chi Minh City.
2. Annul the entire Commercial Appellate Judgment No. 01/2017/KDTM-PT dated March 6, 2017 of the People's Court of Dong Nai Province and annul the entire Commercial First Instance Judgment No. 50/2016/KDTM-ST dated October 11, 2016 of the People's Court of Bien Hoa City, Dong Nai Province between the Plaintiff, Company N, and the Defendant, Joint Stock Insurance Corporation P; transfer the case file to the People's Court of Bien Hoa City, Dong Nai Province for retrial in accordance with the provisions of law.
3. The decision of the court of cassation shall take legal effect from the date of the decision.

CONTENT OF PRECEDENT

“[4]… After receiving the insurance premium from Company N, P Insurance Corporation  and  P1 Insurance had no comments and no written notice regarding the late payment of insurance premium, so the two above Contracts were no longer valid from May 1, 2015, but P1 Insurance still received, issued value-added invoices and reported taxes on these two insurance premiums of Company N, so P Insurance Corporation and P1 Insurance implicitly acknowledged the late payment of insurance premium by Company N and acknowledged the validity of the two above insurance contracts.

[5] Therefore, when an insurance event occurs, P Insurance Joint Stock Corporation must be responsible for compensation according to the Contract signed between the two parties. ”

 

Major