Malicious Damage - splitting the anatomy of this peril in Insurance parlance

Insurance  policies covering Motor provide indemnity for loss or damage caused by malicious act.  In Standard Fire & Special perils policy, malicious damage is a named peril. What would be construed as “malicious damage’ leading to a tenable claim is not amply explained and is not crystal clear.

Here are some thoughts on a phrase which is quite often used in Insurance circles but not many would have clarity on this.

The dictionary meaning of the noun ‘malicious damage’ is : the deliberate and international harming of property; damaged caused due to personal grouse or ill will.  It is further defined that all acts of commission are covered and Acts of omission are not covered. Eg: During strike employees may cause physical damage. This is an act of commission-  This is covered;  Failure to switch off fan and consequential damage caused due to this is not covered. This Is an act of omission and is not covered.;  Prevention of access is also  not covered.

Could not find the exact word or punishment for ‘malicious damage’ in Indian Penal code.  However, there is  Sec. 425 of IPC,  which is “Mischief”.  This section reads :    425. Mischief.--Whoever  with intent to cause, or knowing that he is likely  to cause,  wrongful loss  or damage to the public or to any person, causes  the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".

As is explained in the various other sections, here also it is not essential  to  the offence  of mischief that the  offender should  intend to cause loss or damage to the owner of the  property injured  or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any  person by  injuring any  property, whether  it belongs to that person or not. 

It is better defined under English law.  There, causing criminal damage was originally a common law offence. The offence was largely concerned with the protection of dwellings and the food supply, and few sanctions were imposed for damaging personal property.  Liability was originally restricted to the payment of damages by way of compensation.  Over a period of time when specific laws were introduced to deal with particular sections, along with other acts came the Malicious Damage Act 1861, which was an Act to consolidating the earlier common law.

By common law definition, damage to tangible property of others was a civil matter providing a right to damages in trespass or nuisance.  In olden days, the rights of personal property were liable to two types – the carrying away of the property (amotion) or deprivation of that possession and abuse or damage to that property.  These were private wrongs and the dispute was inter partes, the State had no role in punishing the offender. At that time, the criminal law only intervened the case of arson, which was defined as wilful and malicious burning of house.  Traditionally arson attracted death penalty. 

The criminal damage act defined application as to any tangible property stating that ‘ a person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.,  Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section.

Interestingly, it is only the intention or display  of malice which is punishable and it need not be the malice against the owner of the property so damaged which is more described in Sec 58 of the Statute.   The MD Act 1861 under its various sections specify the punishment  in respect of Injuries by fire to buildings and goods therein,  by explosive of gun powder and otherwise, by rioting,  injuries to buildings by tenants, destroying or damaging trees, plants, fruits, garden, fences, seas, river banks, works on rivers, canals, ponds, bridges, viaducts, railways, electric or magnetic telegraphs, works of art, cattle & more.

The punishment (though varying depending on the Section)  is  servitude for various terms or imprisonment for term with or without hard labour and with or without solitary confinement, with or without whipping !!

Sec 43 makes an interesting reading as it speaks of ‘whosoever shall unlawfully & maliciously set fire to or cast away or in anyway destroy any ship or vessel with intent thereby to prejudice any owner or part owner of such ship or vessel or any goods on board the same, or any person that has underwritten or shall underwrite any Policy of Insurance upon sush shil, freight or goods shall be guilty of felony and be convicted’

-  Not many a times one would hear of a penal punishment for an act committed against an Insurer !!!

Coming back to  our original query of  ‘what is malicious damage’ is still not fully answered though the foregoing broadly details what damages would be construed.

It is the property versus the intentions.    The Law Commission of UK states that  "intent to do the forbidden act or recklessness in relation to its foreseen consequences" as the "essential mental element in the existing malicious damage offences".

According to Law Commission, the words malicious needs to be replaced by willful or reckless so that that intention or recklessness would be the guiding factors.   Thus in some ways, what is malicious is implicitly the intention or recklessness in offences of damage to property.

As India was under British rule, large number of  British statutes were applicable to India and for sometime the Malicious Damage Act 1861 was also in vogue. 

Historically, the British administration had made differentiation in jurisdiction and legislation between the three Presidency towns and the rest of India, as the East India Co’s settlements were principally in Bengal, Madras and Bombay.   The constitutional principle of British parliament was that its statutes passed after 1726 were applicable to all its colonies.  India, strictly was never a colony and had its own laws; there were many British statutes expressly extended to India.

Upon Indian Independence Act 1947, India became a dominion with sovereign legislative power to affect or repeal all existing laws.  Thus came the British Statutes (Application to India) Repeal Act 1960 which in a single stroke annulled many statutes specified in the schedule and that included Malicious Damage Act 1861.

The law commission stated that this statute in so far as it applies to India, penalizes the act of maliciously setting fire to, or casting away or otherwise destroying a ship or vessel.  Such a provision is necessary for India and in fact  forms subject matter of illustration (e) and (f) of Sec 425 of IPC.  There is no reason why a section should not be inserted in IPC embodying all the above acts, so that the English statute may be dispensed with.

The act stands renounced – whether the necessary provisions stand incorporated, only the legal luminaries would tell. 

Hope this has given you some clarity or something to think upon – look forward to your views and a clearer definition of what would constitute the ‘malicious damge’ as intended by the Insurers.

Regards – S. Sampathkumar

6^th Aug 2010.