Ramnath v Motor and General Insurance Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Maharaj, J. |
| Judgment Date | 14 July 1994 |
| Neutral Citation | TT 1994 HC 84 |
| Docket Number | 2181 of 1984 |
| Court | High Court (Trinidad and Tobago) |
| Date | 14 July 1994 |
High Court
Maharaj, J.
2181 of 1984
Mr. Prakash Deonarine holding for Mr. Peter Jamadar for the plaintiff.
Mr. Lennox Sanguinette for the defendant
Insurance - Motor insurance — Third party risks — Liability of insurance company to pay judgment debt — Company has not discharged onus of proving that driver was not an authorized driver — Driver under 25 years of age — Provisos in policy covered property damage as well as personal injuries.
The plaintiff's claim against the defendant was grounded as follows for:–
-
1. The amount of a judgment for $77207.50 with interest thereon at the rate of 3% per annum from the 16th day of June, 1982 to the 10th day of January, 1984 and costs of $3,156.75 which the defendant is legally liable to pay by virtue of s.10 of the Motor Vehicles Insurance (Third Party) Risks Act Chapter 48 No:51 full particulars whereof are set out in the Statement of Claim.
-
2. Costs
-
3. Interest on the said sum of $7,207.50 with interest thereon at the rate of 6% per annum from the 16th day of January, 1984 to date of payment.
-
4. Such further or other relief.
The plaintiff's Writ of Summons was filed on the 14th day of November, 1984 and a Statement of Claim accompanied the Writ.
In a nutshell, the defendant (hereinafter called “the Insurer”) had insured one Wesley Chan in respect to his motor car registration number PR-996 and the insurer undertook by a Policy of Insurance issued to Wesley Chan (hereinafter called “the insured”) to indemnify him (the insured) in respect of any liability at law for compensation, cost and expense which might be incurred by the insured in respect of the death of or bodily injury to or damage to any person or property caused by or arising out of the use on a road in Trinidad and Tobago of the insured's motor vehicle aforesaid.
The Policy of Insurance was admitted by consent and marked “W.R.1”. The proposal form filled out by the insured in order to obtain the above insurance for PR-996 was admitted and marked “W.R.2”. The Certificate of Insurance for the insured's vehicle was also by consent admitted and marked “W.R.3” in a bundle.
Insurance for PR-996 was taken out by the insured on the 27th day of November, 1981 for a period of six months and this expired on the 26th May, 1982. It was a full third party coverage.
After the accident the insurance on PR-996 was suspended as it appears the insured's car was under repairs. The suspension occurred on the 29th day of January, 1982. This was done by the agreement between the Insurer and the insured. Thereafter, it was reinstated for the period 4th day of March, 1982 to the 29th day of June, 1982. See exhibits annexed in the bundle and marked “W.R.3”. The latter period is shown in “W.R.4.”
The plaintiff by H.C.A. No:678 of 1982 instituted High Court Proceedings on the 18th June, 1982 for damages done to his motor vehicle PAF-2600 and for consequential loss occasioned through the negligence of the insured, his servant or agent in the driving managing and or control of motor vehicle PR-996 along the Gunapo Southern Main Road in the Island of Trinidad on the 19 th January, 1982. A Statement of Claim accompanied the first Writ of Summons.
No appearance was entered by the insured or the insurer on the insured's behalf. On the 27th September, 1982 it was adjudged that the plaintiff do recover against the insured damages to be assessed and costs to be taxed.
On the 10th January, 1984 Master Gopeesingh, (as he then was) assessed damages in favour of the plaintiff in the sum of $7,207.50 with interest at the rate of 3% per annum from the 18 th day of June, 1982 to the 10th day of January, 1984 with costs to be taxed and paid by the defendant (i.e. the insured) to the plaintiff and certified fit for the plaintiff's counsel.
It is this assessment and the statutory interest thereon that is the subject matter of the present action. See section 13 of the Remedies of Creditors Act Chapter 8:09 Trinidad and Tobago.
Neither the insured nor the insurer has set aside the judgment obtained or the subsequent proceedings in respect to the assessment supra. See Bhagwandeen v. Collins 11 W.I.R. (1967) P.340Windsor v. Chalcraft [1938] 2 All E.R. 751 C.A.
In the present action the insurer (the defendant) is contending that it is not liable to the plaintiff as the insurer cannot indemnify the insured in respect to the present claim since the driver of PR-996 at the material time did not fall in the category of an authorised driver within the terms and meaning of the said Policy of Insurance. The insurer also relied on condition 10 of “W.R.1.”
The defence made it plain to this court that he was relying on Lord Lowry's judgment in Motor and General Insurance Company Ltd v. John Pavy No:31 of 1992 given on the 15th December, 1993.
In essence, as Eddison Chan, the driver of PR-996 was under the age of 25 years when the accident occurred, the driver is not a risk covered under the terms of the policy.
Further sections 4 and 10 of the Motor Vehicles Insurance (Third Party Risks) Act Chapter 48:51 (hereinafter called “the Act”) do not apply to the insured. The relevant sections are 8 and 12 of the Act.
Mr. Sanguinette conceded that the plaintiff's reply pleaded that on the date of the accident the driver was the insured and so by inference Eddison Chan on the pleading was not the driver. As such evidence from the parties had to be heard and that a preliminary point could not succeed at this stage. See the learning of Lord Wilberforce in Tilling v. Whiteman (1980) Law Report A.C. Part 1 January, 1980 at pp.17 and 18 and the caveat placed on a judge to entertain a preliminary point of law.
Mr. Deonarine submitted that the insured was the driver and owner on the date of the accident so that Lord Lowry's judgment aforesaid does not apply.
Even if Eddison Chan was the driver the insurer was duty bound to indemnify the insured or to pay the sums claimed in these proceedings as the driver drove with the authority of the insured and the Policy of Insurance of the insurer permitted this.
Wilfred Ramnath, the plaintiff, testified he was the owner of PAF-2600 on the 19th January, 1982. That on that day he had parked his vehicle off the Gunapo Southern Main Road facing a southern direction. This road runs from North to South.
That before the accident in question he was the owner of PR-996 which he had sold to his cousin who subsequently sold it to the insured.
On the date of the accident (19–1–82) the insured was the owner of PR-996.
According to the plaintiff he had gone to a house about 100 feet away from where his vehicle was parked. He heard a loud noise and a hit, a bang. He immediately went to the scene of the accident. He observed both vehicles damaged and his car had hit a tree. The insured's vehicle was blocking the road. He observed the insured got into his car and cleared the road. Ramnath had known the insured before the date of the accident.
The plaintiff testified that he spoke to the insured and he (the insured) told him that he was taking his brother to the Sangre Grande hospital as he had sustained a chop. The insured according to Ramnath was rushing the brother to the hospital.
The plaintiff had seen the brother lying down in the rear seat of PR-996. He was bleeding from his belly.
In consequence of what occurred the plaintiff reported the accident to the police. He, Ramnath, also said that there was only two persons in PR-996. That is, Wesley Chan, and his brother.
The plaintiff denied in cross-examination that 3 persons were in PR-996. He admitted that he did not see the accident.
The plaintiff said that his vehicle was insured with Capital Insurance. The police did not come on the day of the accident but the next day.
He denied that he spoke to the insured on Friday last, but he did so about 2 years ago. The Defence galled four witnesses namely:–
-
(a) Victor Jacobs
-
(b) Joseph Sonowar
-
(c) Eddison Chan
-
(d) Hardeo Hardath.
This witness at one time worked with the defendant as it's Assistant Claims Manager. At the trial he was no longer employed. His duties involved :–
-
(a) Assisting the Manager and
-
(b) Taking accident reports.
-
(c) He gave in evidence that on the 20th January, 19B2 he took a statement or report on the defendant's report form from Eddison Chan the driver of PR-996. It was witnessed by him and signed by Eddison Chan.
The defence Attorney tried to get into evidence this report or statement but the plaintiff's attorney objected.
I heard the arguments by both attorneys and I adjourned for the attorneys to submit legal authorities. After Mr. Deonarine addressed this court on his legal authorities, Mr. Sanguinette conceded that the statement of Eddison Chan was hearsay. This he did on the 1st June, 1994.
On the 1st June, 1994 the defence Instructing attorney filed a notice to give in evidence the statement of Eddison Chan above. Particulars...
To continue reading
Request your trial