Bhai v Q.B.E. Insurance Limited [1979] FJSC 76; Action 114 of 1978 (16 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 114 of 1978

BETWEEN

RAOJI BHAI f/n Parag
(Plaintiff)

AND

Q.B.E. INSURANCE LIMITED
(Defendant)

Mr. J. Punja, Counsel for the Plaintiff
Mr. M. Tappoo for Sahu Khan, Counsel for the Defendant

JUDGEMENT

The plaintiff seeks damages from the defendant in respect of an accident to the plaintiff's lorry AV 142.

The plaintiff claimed that the vehicle was a write-off but the evidence produced before the court refutes this and the plaintiff has in fact only proved damages to the extent of $3480 so that in any event his claim must be limited to the amount.

The vehicle in question was insured with the defendant company for $7,500 but the defendant company disclaims liability on the grounds of an exclusion clause in the policy providing that the policy does not cover –

"Loss damage liability and/or compensation for damage and/or injury caused whilst the motor vehicle –

(c) Is conveying any load in excess of that for which it is constructed

(d) Is being used whilst in an unsafe condition."

With regard to exclusion clause (d) the pleadings make it clear that the defendant had in mind the state of the tyres on the vehicle at the time of the accident, but in view of the evidence given in court that ground is not a valid one, so that in effect this court is concerned only with the question of overloading.

The plaintiff argued that it is necessary for the defendant to prove that the overloading was the main cause of the accident or at least contributed to it, and that the evidence fell short of that. As to that, an excess load of about a ton, on the road as it was at that time, and on a hill, must in all probability have made the accident more likely if not inevitable in the circumstances, but in any case the plaintiff produced no authority for his proposition, and in fact all the cases cited before the court refute any such proposition. In not one of those cases was that particular proposition raised.

I think counsel has become confused with the cases which are concerned with whether overloading causes a vehicle to be in an unsafe condition in the conditions prevailing at the time.

In fact most of the cases cited are concerned with the question of whether the overloading caused the vehicle to be in an unsafe condition, and most of the argument in them was concentrated on this point. This applied to Clarke v National Insurance and Guarantee Corporation Limited [1963] 3 AER 375, and New Zealand Insurance Company Limited v Pihema [1967] NZLR 285. Only in the case of Houghton v Trafalgar Insurance Company Limited [1953] 2 AER 1409 was there an exclusion clause excluding liability when the vehicle was overloaded.

In that case the vehicle in question was a car and the overloading alleged was an extra passenger and the Court of Appeal reversing the trial judge held that this did not amount to overloading for the purposes for the exclusion clause. What Somervell L.J. said was that the words in the clause "clearly cover cases only where there is a weight specified in respect of the load of the vehicle be it lorry or van", and Lord Denning said "It is applicable only to cases where there is a specified load weight which must not be exceeded, as in the case of lorries." Clearly it was recognised that the overloading of a lorry was a serious matter, but the Court of Appeal was reluctant to extent the exclusion clause to private motor vehicles without much more specific wording.

In this case what this Court has to consider is whether there was a specified weight which should not be exceeded and whether it was in fact exceeded.

The truck in question is a Toyota truck and whether it was called a Model DA 116 or a Toyota 6000 truck is really immaterial. According to the evidence given they are one and the same thing, Model DA116 being the old classification and Toyota 6000 (referring to the capacity of its 6 cylinder diesel engine) being the new.

The only expert evidence before the court, and it was virtually unchallenged, was that of Mr. Hiscox, a Loss Assessor who has been in the motor business for over 30 years.

He said it was a 7 ton truck, the manufacturers' specifications being that it was capable of carrying loads up to 7 tons. This evidence is in line with the evidence of the plaintiff himself who agreed that it was a 7 ton truck, although he claims he was told by the salesman that it would carry up to 8 tons. No doubt it would and did carry 8 tons, but that does not mean that 8 tons was the proper load carrying capacity.

The vehicle is registered in Fiji as a lorry, and the particulars in the registered to carry 7 tons. Mr. Hiscox was of the opinion that this was if anything an over-statement since the manufactures' specifications were without the carrying tray fitted whereas the registered weights included the carrying tray fitted (so that the load on the axles would exceed 7 tons).

This evidence is also in line with the description of the vehicle in the proposal form which, it is accepted, forms the basis of the agreement between the parties together with the policy of insurance. The proposal form describes the vehicle as a Toyota 7 ton truck 6000. Counsel for the plaintiff argued that the words "7 ton" were but in the column specifically provided on the form for the carrying capacity of the vehicle and that therefore the proposal form was not properly filled in.

I cannot accept that. I do not consider that there can be any mistakes or doubt as to the real meaning of the words in the proposal form, nor can I believe that anyone could really doubt that "7 ton truck" means a truck of which the carrying capacity is 7 tons.

The plaintiff argued that he only signed the proposal form but that the details were filled in by the salesman who sold him the truck. That argument cannot affect the position. The salesman was acting as his agent and there is no reason in any case to believe that the plaintiff would have or could have described the vehicle in any other way – or that the defendant company would have accepted any other description.

There can be no doubt that the vehicle was insured so long as it was not carrying in excess of 7 tons.

It was accepted that at the time of the accident the vehicle was carrying a load of 8 tons – as Mr. Hiscox said a quite substantial overload. In fact the evidence was that it had been used to carry loads of about 8 tons for sometime, a practise which must have led progressively to excessive strain on the vehicle. On this occasioned, whether the overloading cause the accident or not, it could well have proved to be the occasion when the overload was critical, the sort of situation which justifies the exclusion clause.

In the event the vehicle was being used in an overloaded condition, bringing it fairly and squarely within the terms of the exclusion clause. Accordingly the plaintiff is not entitled to claim against the insurers and the plaintiff is not entitled to claim against the insurers and the plaintiff's claim is dismissed with costs.

(sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
16th July, 1979

c.c. Messrs. J Punja & Co., Lautoka for the plaintiff
Messrs. Sahu Khan & Sahu Khan, Solicitor, Ba for the defendant.

Date of hearing: 25th June, 1979.