Loubon v B and L Insurance Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Maharaj, J. |
| Judgment Date | 22 June 1994 |
| Neutral Citation | TT 1994 HC 69 |
| Docket Number | No. 848 of 1985 |
| Court | High Court (Trinidad and Tobago) |
| Date | 22 June 1994 |
High Court
Maharaj, J.
No. 848 of 1985
Dr. F.H.W. Ramsahoye and Mr. Kemrajh Harrikissoon for the plaintiff
Mr. E.K. Roopnarine for the defendant.
Insurance - Motor insurance — Indemnity clause — Defendant agreed to indemnify plaintiff against sums to which plaintiff should become liable in respect of any claim by a person caused by or in connection with use of his motor vehicle — Default judgment entered as no appearance was filed by defendant — Defendant ordered to indemnify plaintiff $7,496.50 with interest.
FIRST ACTION
In H.C.A. No: 202 of 1984 one Lucien Lemo, as plaintiff, filed his Writ of Summons dated the 27 th day of January 1984 against Sinkiah Loubon, the present plaintiff, and who was the defendant, in the first action, for damages and consequential loss suffered to Lemo's motorcar registration number PAD 1872 by the negligence of Sinkiah Loubon (the present plaintiff) and or his servant or agent in the driving, management or control of motor vehicle PM 3687 owned by Loubon along the Moruga Road, Moruga on the 2 nd day of December 1983.
The proceedings in H.C.A. No: 202 of 1984 were admitted into evidence by consent and marked “C.E.1” (hereinafter referred to as “the first action”)
The Writ of Summons in the first action was served on Loubon on the 18 th day of February 1984, by an Investigator, one Winston Cyril Lewis, who swore to an affidavit of service on the 12 th day of March 1984.
A perusal of the first action shows that judgment was taken up in default of appearance on the 12 th day of March 1984.
By notice dated the 12 th day of March 1984 Lemo's Solicitor; Mr. Rampersad issued a notice to assess the damages pursuant to 0. 37 R.1 of the Rules of the Supreme Court. This was listed to be heard on the 30 th April 1984. The notice was addressed to Loubon at 9 1/2 Cachipe Moruga Road. On the 30 th April 1984 the Assistant Registrar, Mr. Me Nicolls (as he then was) adjourned the matter and ordered that the defendant Loubon, be notified by registered mail.
The Assessment came before me on the 2 nd July 1984 while I was a Master of the High Court of Justice. On this latter date, Lemo's Solicitor informed the court that the assessment of damages was settled and leave was granted to withdraw the notice.
For ease of exposition I would refer to Sinkiah Loubon hereinafter in my judgment as “the plaintiff” and I would refer to B and L Insurance Co., as “the defendant”.
According to the plaintiff, on the 5 th day of December 1984, that is, about 3 days or thereabouts after the accident, he went to the defendant's office situate at Cipero Street in San Fernando and he reported the accident between PM-3687 and PAD–1872 which occurred on the date above. The plaintiff was advised by the defendant's servant or agent that he had to pay an excess in the sum of $750.00. As a result he complied. Exhibit “S.L.1” was admitted into evidence and this supported the plaintiff's version. This also showed that the plaintiff's insurance was in force when the accident occurred as above; and that the expiry date was the 20 th February 1984.
Thereafter, the first action was brought against the plaintiff. Upon receiving the Writ of Summons in the first action, the plaintiff on the 20 th day of February 1984 took same to the defendant's office at Cipero Street above. Here the person in charge of the defendant's office took the writ and advised the plaintiff that the defendant would take care of the matter and that he should have no fear.
According to the plaintiff he got in March 1984 a notice from Mr. Rampersad. This he took to the defendant's branch office above in San Fernando. Here he was advised by the defendant's clerk that the defendant's Port of Spain Office was looking after the case and all the papers were with the defendant's solicitors.
I understood the plaintiff to be referring to the Notice of Assessment, which was listed to be heard on the 30 th day of April 1984.
It appears that the plaintiff was afraid that his property would be levied upon the assessment notice dated 12 th March 1984, clearly embodied the words “… that the assessment of damages pursuant to the judgment herein dated the 12 th day of March 1984 be tried by a judge alone…”
The plaintiff by virtue of the words in the Notice of Assessment had every reason to be put on guard. Default judgment was taken up on the 12 th day of March 1984. The notice for the assessment carried the very date.
The plaintiff at the trial was 60 years of age. He works as a Public Servant with the Ministry of Works with 26 years service in the Government department. He is still employed and would be retiring early.
The plaintiff testified that Lemo or his Solicitor did not get the chance to levy on his property. In essence he was saying that he is not a man of straw and he wanted to protect himself from any execution most likely on his personal property.
It was in these circumstances that the plaintiff went to see Mr. Lemo's Solicitor, Mr. Dipnarine Rampersad.
On the 11 th day of May 1984 in order to effect a settlement the plaintiff paid Mr. Rampersad the sum of $9,396.50 in full payment of judgment debt and costs in H.C.A. 202 of 1984. Exhibit “S.L.2” sets this out fully. It is important to note the quantum of damages had not been assessed by the High Court of Justice or a Master thereof.
The plaintiff said that after he paid Mr. Rampersad the above sum, he again went to the defendant's San Fernando office and informed the defendant's officer about the payment which he had made to Lemo's Solicitors.
The plaintiff received from the defendant, a letter requesting him to come to their Port of Spain office. This the plaintiff did but for the entire day he was not able to see Mr. Lutchmedial although the plaintiff was told to wait. Despite the plaintiff's long wait, Mr. Lutchmedial never showed up that day. As such the plaintiff never returned to the defendant's office.
Mr. E.K. Roopnarine cross-examined the plaintiff briefly. The plaintiff admitted that he knew of the judgment because Mr. D. Rampersad had written to him a letter. The plaintiff admitted he paid Mr. Rampersad the above sums.
The plaintiff's amended Statement of Claim seeks the following reliefs against the defendant:
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(a) A declaration that by virtue of the provision of the said Policy he is entitled to be indemnified by the defendant in the sum of $9,396.50.
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(b) Payment by the defendant of the said amount.
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(c) Interest on the amount due to the plaintiff at such rate and for such period as this Honourable court shall think fit.
In essence the plaintiff in his amended statement of claim sets out the Policy of Insurance No: BLS–6463 dated the 19 th of August 1983 in respect to his motor car PM 3687 and issued by the defendant whereby the defendant in consideration of the premium of $167.77 then paid to them agreed to indemnify the plaintiff against all sums which the plaintiff should become legally liable to pay in respect of any claim by any person caused by, through or in connection with the use of his motor vehicle PM 3687 and in addition the legal costs payable in connection with such claim when incurred with the consent of the defendant.
As I understood it the plaintiff's claim against his Insurer was for an indemnity in respect to the money he paid to Mr. D. Rampersad above.
In so far as to the defence as pleaded there was no issue that the above Policy of Insurance was not issued to the plaintiff; or at the date of the accident the plaintiff's motor car PM–3687 was not lawfully insured with the defendant. In fact, paragraph 1 of the plaintiff's Statement of Claim was admitted. The accident with the plaintiff's car and that of Lemo's above was also admitted.
In so far as exhibit “SL1” was concerned, that is the payment of the excess on the 5 th day of December 1983 of the sum of $750.00 by virtue of the terms of the Policy of Insurance above, and the facts as pleaded in paragraph 3 of the Statement of Claim, the defendant did not admit the plaintiff's allegations of fact.
The defendant pleaded that it was a stranger to the matters set out in paragraphs 4, 5 and 6 of the original Statement of Claim.
The defendant did not amend its defence to the amended Statement of Claim despite the fact that the matter was adjourned on the 17 th May 1994 on the application of the defence Attorney to amend its defence on or before the 24 th May 1994. The case was also adjourned to the 27 th day of May 1994. The defence had at least 7 days to amend its defence but did not do so or at all.
The defendant called no evidence in this case.
I have carefully perused paragraph 4 of the defendant's defence . It reads as follows: “(4) The defendant is a stranger to the statement contained in paragraphs 4, 5 and 6 of the Statement of Claim”.
In Odger's Principle o Pleading and Practice 21 edit, at page 133 the authors state:
“It is the power of the party either to admit or to deny each allegation in his opponent's plea, as he thinks fit. If he decides to deny it, he must do...
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