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Qaqanaqele v Sakil [2013] FJHC 300; Civil Action 48.2009 (18 June 2013)

THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION


Civil Action No. 48 of 2009


BETWEEN:


MOSESE QAQANAQELE
as Administrator in the Estate of Varisili Talei Tukoro.
PLAINTIFF


AND:


ABDUL SAKIL
of Korotolutolu, Seaqaqa, Labasa, Driver.
1ST DEFENDANT


AND:


ALI IMDAD
of Korotolutolu, Seaqaqa, Farmer
2ND DEFENDANT


AND:


SUN INSURANCE COMPANY LIMITED
a limited liability company having its registered office at Level G & 1 Kaunikuila House, Laucala Bay Road, Suva.
3RD PARTY


COUNSELS : Mr Kohli of Messrs Kohli & Singh Solicitors for the Plaintiff
Mr Amrit Sen of Maqbool and Company Solicitors for the 2nd Defendant

Mr Adrian Ram of Messrs Gibson & Company, Solicitors for the Third Party
1st Defendant, Unrepresented


DATE OF JUDGMENT: 18th June, 2013


JUDGMENT


  1. The writ of Summons and the Statement of Claim was filed on 18th October 2009 and the Plaintiff sought the following reliefs:
  2. The Plaintiff in the Statement of Claim pleaded:
  3. Acknowledgement of Service by the 2nd Defendant was filed on 3rd December 2009 and the Statement of Defence was filed on 11th February 2010 and the 2nd Defendant pleaded:
  4. Reply to the Statement of Defence was filed by the Plaintiff on 2nd June 2010. The 1st Defendant had not filed Statement of Defence, neither participated in this proceedings..
  5. Summons for Directions was filed on 21st September 2010. In pursuant to the Order of the court made on 9th November 2010, substituted service of summons was effected on the 1st Defendant by publishing an Advertisement in the Sun newspaper on the 12th of November 2010.
  6. The Affidavit dated 21st February 2011 verifying the Plaintiff's list of documents was filed on 24th February 2011.
  7. Ex-parte Notice of Summons was filed on 6th of July 2011 by the 2nd Defendant and made an application to add the third party Insurer namely, Sun Insurance Company Limited as the 3rd Party and leave was granted by the court on 18th of July 2011 to issue third party notice against the Sun Insurance Company Limited.
  8. Acknowledgement of Service of third party notice was filed by the Sun Insurance Company Limited on 17th August 2011.
  9. Affidavit of Peter Osborne, Insurance Consultant on the 3rd party, 24th August was filed on 29/8/2011 interalia alleging that the Plaintiff did not comply with Section 11(2) of the Motor Vehicle (Third Party Insurance) Act and as such the Third Party is not required to pay any Judgment of this case. Along with the Affidavit Notice of Motion was filed by the 3rd Party sought leave to issue 3rd party proceedings to be set aside and summons issued in the action to be struck out. Ruling on the summons was delivered by Hon. Justice Hettiarachchi dismissing the 3rd Party's motion.
  10. The 3rd Party had filed the Statement of Defence on 20th July 2012 and pleaded inter-alia.
  11. In reply to third party defence was filed by the 2nd Defendant and stated 2nd Defendant and stated that the policy of Insurance was between him and the Third Party and further any action or inactions by the Plaintiff does not affect same and he was indemnified under the Policy of Insurance.
  12. Trial was taken up on 6th March 2013 and as per minutes of the Pre Trial Conference it was agreed between the parties that:
  13. Having agreed on the above facts, this court had to decide on the following issues:

Laisani Naseubuli


  1. The Plaintiff's counsel called Laisani Naseubuli mother of the deceased child as a witness who gave evidence, she in her evidence stated: (Evidence given in Fijian language and translated by the clerk)

Ali Imdad


  1. The second Defendant Ali Imdad gave evidence and stated:
  2. Witness was cross examined by the counsel for the 3rd Party and the 2nd Defendant stated:

Thomas Naua


  1. Thomas Naua Claims Manager of the 3rd Party Sun Insurance Company Limited gave evidence and stated:

Received from Krishna – Kohli Singh

Received by – Rupert J Boultan

Dated Received: 29/10/09.


The writ would have been received within 7 days from the date of issuance i.e. on 23rd October 2009 in fact it was received on 29/10/2009. Writ of Summons was marked as 3D1. The company wrote a letter on 10/11/2011 to the Solicitor of the Plaintiff stating that the company does not have a Third Party Policy (3D2). The following day 11th November 2009, the 3rd Party Company wrote to the Solicitor for the Plaintiff confirming they held a Third Party Policy covering the said vehicle at the time of the accident. They also informed since the Writ of Summons was served after seven days, the Sun Insurance (3D3) is not required to satisfy the Judgment.


17.2 Witness tendered letter dated 26th November 2009 by Maqbool and Company Solicitors enclosing the Writ of Summons and stated unless the company indemnify the Defendants, the Defendant will compelled to join the Third Party to the proceedings (3D4). The witness stated the Third Party replied the Solicitors by letter dated 8th December 2009 informed the 2nd Defendant Writ was not served during the required time period and as 3rd Party Insurer will not be required to satisfy any Judgment obtained thereafter. (3D5) copy of the same letter was sent to Maqbool and Company with a covering letter dated 8th December 2009 (marked as 3D6).

17.3 In cross examination by the Plaintiff's counsel and 2nd Defendant's counsel, the witness stated:

Analysis and Conclusion


  1. The court had to first decide whether the 1st Defendant and 2nd Defendants are liable for damages, if so as to whether the Third Party is liable to indemnify the Defendants for such damages.
  2. Having concluded that the 1st Defendant was negligent and caused the death of the child, 1st and 2nd Defendants are liable for damages. The Plaintiff had claimed the damages in pursuant to compensation to Relatives Act (Cap 29).

"In order to fix liability on the owner of a car for the negligence of its driver, it was necessary to show either that the driver was the owner's servant or agent that, at the material time, the driver was acting on the owner's behalf as his agent. To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner's request; express or implied, or on his instructions, and was doing so in performance of the task or duty thereby delegated to him by the owners. .........".


As I stated there was no evidence to substantiate that 1st Defendant drove the vehicle without authority and no evidence adduced for the denial of vicarious liability and the submissions of the Third Party fails and I conclude that the 2nd Defendant is vicariously liable for the negligence of the First Defendant. I further conclude that the negligence in breach of duty of care is established to the satisfaction of the court, in balance of probability and the 1st and 2nd Defendants are liable to pay damages.


  1. Having concluded the 1st and 2nd Defendants are liable for the negligence and liable to pay damages to the Plaintiff, it is now to arrive at a conclusion as to whether the Defendants have the right to be indemnified by the Third Party Sun Insurance Company under the Insurance Policy No. 2426603 (2D1).

The 2nd Defendant stated in his evidence the only person he dealt with in regard to his insurance was Mr Vinod in Labasa. Sun Insurance Company didn't have an office in Labasa, all its dealings were done by Vinod and Policy was given to him by Vinod. The issuance of the insurance was done on the same day and there was no evidence before this Court, that the Policy was issued and delivered from Sun Insurance Company in Suva. The Third Party witness admitted in his evidence that the insurance was issued by Vinod. The insurance premium was collected by him. The Sun Insurance stamp was affixed in the Policy. It is evident as far as the Labasa customers are concerned; Vinod was acting and carrying full authority for Sun Insurance in all aspects with regard issuance of the Insurance. The evidence of the 2nd Defendant establish that the people in Labasa were only dealing with Vinod on behalf of Sun Insurance and the witness for the Third Party never denied neither stated Sun Insurance had any direct operation in Labasa which corroborate the evidence of the 2nd Defendant. The 1st Defendant in his evidence stated that he informed Mr Vinod about the accident on the same day. The witness was very firm when he gave his evidence and I accept his credibility. Although Vinod was the person who acted for Sun Insurance he was not called as a witness to rebut the evidence of the 2nd Defendant. Further, it was observed in the Insurance Policy that it did not state whom to inform with regard to an accident. See Section 16 of the Motor Vehicle (Third Party Insurance) Act; Section 16(1) states:


"On the happening of any accident affecting a motor vehicle and resulting in the death of or personal injury to any person, it shall be the duty of the owner forthwith after such accident or, if the owner was not using the motor vehicle at the time of the accident, it shall be the duty of the person who was using the vehicle, forthwith after the accident, and of the owner, forthwith after he first becomes aware of the accident, to notify the Insurance Company of the fact of such accident, with particulars as to the date, nature and circumstances thereof, and thereafter to give all such other information and to take all such steps as the Insurance Company reasonably require in relation thereto, whether or not any claims have actually been made against the owner or such other person on account of such accident".


I conclude by informing the fully authorized Agent of the Third Party (by telephone and personally) the 2nd Defendant had fulfilled his obligation conferred on him by Section 16(1) of the Motor Vehicle (Third Party Insurance Act).


20.3 It is my considered conclusion that the 2nd Defendant cannot take any responsibility of not serving the Writ of Summons since it was the responsibility of the Plaintiff as already decided by the Hon. Justice:Hettiarachchi in this case. Having concluded, the proper notice was given.

Observations


20.4 It was stated that the 2nd Defendant did not advise the Third Party of the issue of the Writ in this action at any time prior to his solicitor's letter of 26th November 2009. This was explained by the 2nd Defendant in his evidence stating in the cross examination. I reproduce same:

"Q. When did you receive the summons?

  1. I received the summons on 3rd November 2009.

Q. Your lawyer sent the letter on 26th November 2009.

A. Yes

Q. The Insurer received the letter on 2nd December 2009?

A. I don't know. Papers were handed to Mr Adrian Ram (The counsel/solicitor for the 3rd Party who crossed examined the witness) and he kept the papers for 2 weeks and he wanted to contact third party (Insurance company) and vehicle was not in the system of their Head Office. When I collected the 3rd Party papers from Mr Adrian Ram he informed me he act for the Sun Insurance Company and he cannot defend my case. I did not know Mr Ram was the Insurance Company lawyer. I went to see him to get advice that was reason which took time.

Court: Q. How long papers were with Mr Ram?

  1. On 3/11/2009 and got back the papers on 17th. I told him the Insurance was with Sun Insurance Company on 3rd November 2009".

This is ample evidence to establish even if there was a delay in informing the Insurance Company by the 2nd Defendant it was caused because of Mr Ram. Once he got back the papers from Mr Ram on 17th November 2009 he had consulted another solicitor and letter was sent on 26th November 2009. The witness was cross examined by Mr Ram and the 2nd Defendant divulged all the above information without any reservation and very firmly. I do not have any hesitation to accept 2nd Defendant as a credible witness. It is rather surprising and dismay that a senior counsel accepted the papers from a client very well knowing he was acting for the Sun Insurance Company, there was prima facie case of conflict of interest. The question arises how ethical to accept the papers by the counsel knowingly that he had conflict of interest. Even if there was a delay until 26th November 2009, it infers the Company's counsel knew about the case on 3rd November 2009 the day Writ of Summons was served on the 2nd Defendant. However, my findings in the preceding paragraph 20.2, I concluded that the notice given to Vinod satisfies the requirement under Section 16(1) and there was no necessity for the Second Defendant to give further Notice to the Third Party Insurance Company.


20.5 In the said circumstance, the Third Party Sun Insurance Company's liability to indemnify the 2nd Defendant is well established.
  1. The Third Party submitted in pursuant to Section 11(2) of Motor Vehicle (3rd Party Insurance Act) the Third Party was not given Notice as required.

21.1. This said section 11 reads as follows:


"11(1) If, after a Certificate of Insurance has been delivered under the provisions of subsection (4) of Section 6 to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by the policy under the provisions of paragraph (b) of Section 6, being a liability covered by the policy, is obtained against any person insured by the policy then not withstanding that the insurance company may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurance company shall subject to provisions of this section, pay to the persons entitled to the benefit of such judgment any sum payable there under in respect of the liability, including any amount payable in respect of costs and any sum payable by virtue of any written law in respect of interest on that sum.


11(2) No sum shall be payable by an approved insurance company under the Provisions of Subsection (1):


(a) In respect of any Judgment unless before, or with 7 days after the commencement of the proceedings in which the judgment was given, the insurance company has notice of the proceedings; or

(b) In respect of any judgment so long as execution thereon is pending an appeal..........."

21.2 It is my duty to analyze how the Section 11(2) Notice is relevant in this case. By letter dated 8th of December 2009 (2D2), the claims consultant had informed the Second Defendant that the Plaintiff's solicitors failed to serve the summons on the Third Party within the required period of timeframe and the Third Party is not required to satisfy any judgment obtained thereafter. Admittedly, Writ of Summons filed on 16th October 2009 (3D1) was received by the Third Party on 29/10/2009. The Third Party's counsel argued that the Writ of Summons was not served within 7 days as required by Section (11) 2 and cited several authorities relation to the issue. In this case the circumstances are different. Writ of Summons was filed against the 1st and Second Defendants and Claim was made against them. The Third Party denied the claim by its letter dated 8th December 2009. At this stage there was no Writ of Summons filed against the Third Party. In such event there was no requirement by the Plaintiff to comply with Section 11(2) of the Motor Vehicle (Third Party Insurance) Act. The letter dated 8th December 2009 was issued to the 2nd Defendant. He filed ex-parte Notice of Motion to add the 3rd Party to the proceedings claiming inter alia that 2nd Defendant is entitled to be indemnified by the Third Party.

21.3 The Learned Master made Order to issue Third Party Notice to Sun Insurance Company. Third Party filed a Notice of Motion dated 27th August 2011 and sought the following Orders:

21.4 Having heard the parties, Ruling was made by Hon. Justice Hettiarachchi as follows:

"18. Upon consideration of the above, I see no reason to intervene with the ex-parte order made by the Master Labasa.


19. Therefore, I dismiss the 3rd Party's motion. Action shall take its normal cause.


20. Costs shall be in the cause".


21.5 Thereafter the Third Party filed its Statement of Defence on 27th July 2012.

21.6 It is evident that Third Party was added to these proceedings on the application made by the 2nd Defendant. Writ of Summons was filed against the 1st and 2nd Defendants by the Plaintiff. Therefore, my considered conclusion is that there was no requirement arisen for the Plaintiff to issue Writ of Summons on the Third Party under Section 11(2) of the Act and the Third Party was added on the application made by the 2nd Defendant. As such submission made by the counsel for the Third Party on the requirement under Section 11(2) is of no avail and need not to be considered by this court and conclude that Third Party had no basis to seek cover under Section 11(2) to avoid the liability to indemnify the Defendant's liability for damages.
  1. It is also submitted by the counsel for the 3nd Party that the accident took place on 18th October 2006 and Writ of Summons was served on the 3rd Party on 29th October 2009 and stated Writ of Summons is statute barred by the provisions of Section 4 of the Limitation Act. This position is incorrect. Limitation period was to expire on 17th October 2009 and the Writ of Summons filed on 16th October 2009 within the time period. The 3rd Party fails in its submission.

Further Observations


  1. The 3rd Party's counsel submitted that the decision in this case will be test case having far reaching impact. He also submitted that he had been unable to locate a similar case where a similar issue had arisen and the decision in this case will have far reaching impact on the whole of the Insurance Industry. What does this mean if Judgment is given against the Third Party Insurance industry would be affected? Is he suggesting to protect the industry or to do justice? In my view the court is obliged to do justice in fairness to all parties after considering the evidence and law. I agree it is a test case; no authority is available on the issue. My conclusions are on merits of the case and to do justice. Further my conclusions are not to correct deficiencies of the Act; which is a function of the Legislature.
  2. I would now summarise my conclusions:
  3. Accordingly, I make the following Orders:

Delivered at Labasa on this 18th day of June, 2013.


........................................
C. KOTIGALAGE
JUDGE

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