Ali v Lal [2011] FJHC 78; Civil Action 149.2010 (21 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 149 of 2010

BETWEEN:

AYESHA ALI father's name Rauf Khan and SHAFIA ALI father's name Nasir Ali both of 8922 141A Street, Surrey, B.C. V3V – TT3 597-9749, Canada, Domestic Domestic Duties ad Student respectively
Plaintiffs

AND:

LALIN SANJEET LAL father's name Ravend of Cuvu, Sigatoka, Driver.
1st Defendant

AND:

CORAL SUN LIMITED a limited liability company having its registered office in Suva and carrying on business elsewhere in Fiji.
2nd Defendant

AND:

SUN INSURANCE COMPANY LIMITED a limited liability company having its registered office in Suva and carrying on business elsewhere in Fiji.
3rd Party

Before: Master Anare Tuilevuka
Solicitors: Messrs Vijay Naidu & Associates for the Plaintiff
: Messrs Faiz Khan Lawyers for the 1st & 2nd Defendants
: Messrs Suresh Maharaj & Associates for the 3rd Party

Date of Ruling: 21st February 2011

RULING

[1]. The plaintiffs were passengers in vehicle registration number EQ 552 on 4th August 2007 and travelling along the Queens Road at Olosara in Sigatoka when it collided with LH 277. They are suing the driver (1st defendant) and the registered owner (2nd defendant) of LH 277. The writ was filed on 04th August 2010 and the defence on 07th September 2010. On the same day (i.e. 07th October 2007), a Third Party Notice was issued for the 2nd defendant against its insurers - Sun Insurance Company Limited ("SICL").
[2]. Before me is a summons application by Messrs Suresh Maharaj and Associates dated 01 November 2010 seeking the following orders:

• (i) that the Third Party Notice issued by the defendants against the Third Party be struck out and dismissed,
  
• (ii) a declaration:
  
  • (a) that SICL is not liable to indemnify the 1st and 2nd defendants in respect of the claim by the plaintiff under SICL Policy number 307599 because the Notice of the bringing of the proceeding was not given within seven (7) days to SICL pursuant to section 11 (2)(a) of the Motor Vehicle (Third Party Insurer) Act, Cap 177.
    
  • (b) that SICL is not liable to satisfy any judgment that may be entered against the 1st and 2nd defendants arising out of the Motor Vehicle collision on the 2nd day of August, 2007 involving motor vehicle registration No. LH 277 and BQ 552, being the subject of the plaintiff's claims in Lautoka High Court Civil Action No. HBC 140 of 2010 and any further action that may be issued relating to the same collision involving motor vehicle registration numbers BQ 552 and LH 277.
    
• (iii) that prayers (i) and (ii) above be determined as a preliminary point before any further steps is taken in the matter by the plaintiff and the defendant.
  

[3]. The application is supported by the affidavit of Jo Mesake Nacola sworn on 28th October 2010. Nacola is the Claim Services Officer in SICL. According to Nacola, on 13th August, 2010, SICL received a letter dated 12th August 2010 from Coral Sun Limited ("CSL")the 2nd defendant together with a copy of the writ of summons issued in the within action. That upon receipt of this letter and the writ of summons, SICL then searched its records to see whether either of the vehicles involved in the accident is insured by it. Its searches revealed that that LH 277 owned by CSL was issued with Third Party policy No. 370599.

[4]. SICL then examined the statement of claim and found that the cause of action arose on 4th August 2007. The writ was issued on the 3rd August, 2010 but was only received and served on SICL on the 13th of August 2010 - i.e. some 10 (ten) days from the date of issue. This, according to Nacola, is in breach of section 11(2)(a) of the Motor Vehicle (Third Part Insurance) Act Cap 177 which section mandates that the Notice of the bringing of the proceeding has to be given to SICL within seven (7) days of the commencement of the proceedings. Hence, in this case, the Notice was served 3 days late. The effect of this lateness is to absolve SICL from any liability under LH 227's Third Party Policy. SICL informed CSL by letter dated 27th August 2010 of its position as such.

[5]. Nacola also deposes that SICL has not been served with any Notice of the intended claim prior to the commencement of the proceeding.

[6]. All of the above, according to Nacola, meant that SICL has unnecessarily, unlawfully and illegally been joined as a Third Party in these proceedings.

[7]. The affidavit of Nisar Ali Shah sworn on 7th December 2010 is filed herein on behalf of the 2nd defendant in opposition to the application. Shah says that he did send the 12th August 2010 letter (see paragraph 2 above) to SICL on behalf of CSL. That letter was sent as soon as practicable after the accident or claim came to CSL's attention in accordance with CSL policy.

[8]. Shah deposes on legal advice that SICL's contention is misconceived. He was informed by an agent of SICL on one occasion when he inquired by phone that SCIL keeps no record of the information CSL gave of the accident. Nor does CSL even open any related file nor create a diary entry.

[9]. Shah further swears that on 25th November 2010, he and his solicitors again called up SICL's agent to confirm SICL's policy on notification of accident. He was advised if there was a claim and when he answered in the negative – he was advised not to worry and to just bring the notice to the effect once a claim instituted. Shah says that CSL has given all appropriate notices to SICL as soon as practicable.

[10]. The issue raised in these proceedings is whether section 11 (2)(a) of the Motor Vehicle (Third Party Insurance) Act Cap 177 is mandatory in its provision and if so, whether the failure to comply with it is fatal to the 3rd party proceedings.

[11]. I have had the benefit only of receiving written submissions from Faiaz Khan Lawyers. Suresh Maharaj & Associates have not filed any written submission. But the following theory emerges clearly from Mr. Maharaj's oral submissions in court.

• (i) section 11(2) of the Act is mandatory.
  
• (ii) it was not complied with. The writ was not served in 7 days as required.
  
• (iii) therefore, the effect of non-compliance is that SICL cannot be liable to indemnify CSL.
  

[12]. Mr. Khan's submission concedes that CSL served the writ on SICL three days out of time. He also appears to concede that section 11(2) is mandatory. Mr. Khan however distinguishes SICL's statutory liability under section 11(1) of the Act on the one hand and SICL's contractual liability. This distinction was made in the oft cited Fiji Supreme Court case of Dominion Insurance Ltd v Bamforth [2003] FJSC 3; CBV 0005.2002S as follows:

Section 11(1) of the Act imposes a statutory liability on the Insurer to pay the sum of a relevant judgement against a person insured to the person in whose favour the judgement has been awarded. That liability is extra-contractual although necessarily conditioned upon the existence of a policy of insurance. It is important therefore, when looking to the provisions of s.11(2) to bear in mind that the section is concerned with the imposition and the conditions of the imposition of a special statutory liability. It is not concerned with the plaintiff's cause of action against the insured person which arises at common law. Nor is it concerned with an insured person's right of indemnity under the policy.

....................

........the liability created by section 11(1) is between the insurer and the injured party who was not a party to the policy or covered by it.

[13]. Mr. Khan emphasizes that in this case – it is not the plaintiff that is trying to invoke its right to SICL's statutory liability pursuant to section 11(1). Rather, it is CSL that is trying to enforce its right of indemnity under the contractual policy of insurance with SICL.

[14]. Mr. Khan submits that – as regards to an insured's contractual right of indemnity, SICL cannot rely on section 11 as a route to escape its responsibilities. Although, as is evident from the last paragraph of the above cited passage, section 11(1) is relevant between the insurer (SICL) and the injured party (e.g. the plaintiff in this case).

While construction by reference to contrasting provisions of the same statute is not always a reliable technique there is significant contrast to be drawn between the structure and language of section 11 and that of section 16. Section 16 imposes a duty of notification upon the owner and the driver of a vehicle involved in an accident. The notice must be given "forthwith after the accident", a term which does allow some room for movement by reference to criteria such as reasonableness and practicality. It does not define a condition precedent to the contractual right of indemnity against the insurer. But it gives the insurer a right to recover, from the insured, where notice has not been given, any amount paid by the insurer in respect of a claim in relation to the matter. This is a provision that operates upon the contractual relationship between the insurer and the insured. It does not condition a freestanding statutory liability imposed on the insurer by the Act as it is the case with section 11(2)(a).

[15]. I have read Dominion Insurance Ltd v Bamforth and agree with the submissions of Mr. Khan. I do not think I should add anything more. The application is dismissed with costs to the 2nd defendant which I summarily assess at $450 -00 (four hundred and fifty dollars) to be paid in 21 days. This case is adjourned to 14th March 2011 for mention.

Anare Tuilevuka
Master

At Lautoka
21st of February 2011.