QhJana Shakthi Insurance Co. LTd., vs299
Dasanayake Manike and others (Wimalachandra J.,)
JANA SHAKTHI INSURANCE CO. LTD.,VSDASANAYAKE MANIKE AND OTHERSCOURT OF APPEALWIMALACHANDRA,J
A. 2583/2004 (REV)
C. KANDY No., 30115/MRJANUARY 28,2005
Motor Traffic Act, sections 105 and 106 – Accident – Ex paite trial ■ Writ ofexecution against defendants and on the Insurer – Insurer seeks dismissal ofapplication – No section 106 notice served on insurer ■ Should the insurerpurge his default first on the basis that notice under section 106 was notreceived?
Liability under section 105 does not arise only if the plaintiff has notgiven notice of action in terms of section 106.
If the petitioner (insurer) says he did not receive the notice in termsof section 106 he must make an application to the original court toabsolve his liability by establishing that he did not receive the notice.He must first purge his default.
Per Wimalachandra J.,
“It is settled law that a party effected by an order of which he had no noticemust apply in the first instance to the court which made the order and initiate
300Sri Lanka Law Reports(2005) 1 Sri L R.
an Inquiry into the allegations made by him; after such Inquiry if the petitioneris dissatified with the order by the District Court he can thereafter revise thematter in the Court of Appeal."
If the petitioner (Insurer) is not legally bound to satisfy the decree onestablishing that no notice under section 106 had been given to him. courtcan make order to execute the decree against the other defendants.
APPLICATION to revise the order of the Additional District Judge of Kandy.
Cases referred to :
Fernando vs De Silva – 20003 Sri LR 29
Abdul Majeed vs Gunasekara, Secretary Ministry of Justice and others -' (2003) – 3 Sri LR 237
S. Piyasena for petitioner.
Cur. adv. vult.
April 27, 2005WIMALACHANDRAJ.,
This is an application in revision filed by the. petitioner from the judgmentof the learned District judge of Kandy dated 29.09.2003.
The plaintiff-respondent (plaintiff) filed this action bearing No.30115/MRin the District Court of Kandy to recover damages sustained by her as aresult of a lorry bearing the registered number 226-1280 driven by the 1 stdefendant negligently, causing the death of Indika Udaya Bandara, theson of the plaintiff. The 2nd defendant was the owner of the said lorry atthe time of the accident.
The 1 st defendent-respondent (1 st defendant) had a third party insurancecover against liabilities to a third party. The Insurance Company (petitioner)was not a party in the District Court.
The accident referred to in the plaint occurred on 28.03.2001 .Upon theservice of summons, the defendants appeared in Court on the summonsreturnable date and obtained a date to file answer. According to the journalentry dated 05.02.2003, which was the 2nd date given by the Court to thedefendants to file answer, on that day they were absent and answer was
CAJanashakthi Insurance Co. LTd., vs301
Dasanayake Manike and others (Wimalachandra J.,)
not filed. The attorney – at – law of the defendants said that he had noinstructions and as such he was not appearing for them. The Court fixedthe matter for ex-parte trial. On a subsequent date the ex-parte trial washeld and the court entered the judgment in favour of the plaintiff in a sum ofRs. 500,000 and ex-parte decree was entered accordingly. The defendants,upon the decree being served on them, moved court to set aside thedecree. After an inquiry the Court dismissed the application of thedefendants and directed the fiscal to issue a writ of execution against thedefendants and also ordered to issue notice of the wrjt of execution on theinsurer (petitioner) upon an application made by the attorney – at – law forthe same.
Thereafter the petitioner filed an undated petition (marked ‘X16’) in theDistrict Court seeking the dismissal of the application for the writ of executionof the decree.
The main ground of objection to the application made by the plaintiff fora writ of execution of the decree is that the petitioner’s liability (insurer’sliability) under section 105 does not arise as the plaintiff had not givennotice of action to the insurer in terms of section 106 of the Motor TrafficAct.
It was held in the case of Fernando l/s de Siivd") that the words “Shall”,in the expression in S. 105 of.the Motor Traffic Act /. e. ‘the insurer shallpay to the person entitled to the benefit of the decree the sum payablethereunder’ denotes an absolute obligation.
In the case of Abdul Majeed Vs. Gunasekara, Secretary Ministry ofJustice and others2 Justice Amaratunga, observed:
“The Insurer’s Liability under Section 105 of the Motor Traffic Act doesnot arise if the plaintiff has not given notice of action to the insurer eitherbefore or within seven days of the filing of the action.”
In the instant case it appears from the documents marked oj 21 andej 2) qf produced at the trial that the notice of action had been given to theinsurer.
The document marked “P21” is the notice of action sent by the plaintiffto the insurer on 07.02.2002. The document marked ‘P21g’ is the registeredpostal article receipt. The action has been filed on 31.01.2002.
302Sri Lanka Law Reports(2005) 1 Sri L R.
The petitioner (insurer) has made this application in revision seeking toset aside the judgment delivered on 29.09.2003. It is the petitioner's positionthat no notice under Section 106 of the Motor Traffic Act has been issuedto him. The liability under Section 105 of the Motor Traffic Act does notarise, only if the plaintiff has not given notice of action in terms of section106 of the Motor Traffic Act. The notice given to the petitioner was inconsequence of a requirement of section 106. For whatever reason thepetitioner did not appear in Court.
The petitioner has filed a petition in the District Court seeking to setaside the application for a writ of execution of the decree filed by theplaintiff. That application had not been inquired into by the Court. In myview, the petitioner’s primary duty is to purge his default before the DistrictCourt. Therefore the correct procedure that should have been adopted bythe petitioner would have been to have his default purged In the originalCourt on the basis that he did not receive the notice under section 106 ofthe Motor Traffic Act. In this case it appears that propert notice has beengiven by the plaintiff (vide ‘P21’ and ’P21 ’) under section 106 of the MotorTraffic Act. In the Circumstances the insurer is legally bound to satisfy thedecree. However if the petitioner says he did not receive the notice interms of section 106 of the Motor Traffic Act, he must make an applicationto the original District Court to absolve his liability by establishing that hedid not receive the notice.
If the petitoner establishes that he did not receive the notice undersection 106 of the Motor Traffic Act his obligation to satisfy the decree willnot arise. On the other hand if it is established that the plaintiff had givennotice either before or within seven days of the filing of the action thepetitioner is legally bound to satisfy the decree. In either case the Courtneed not set aside the judgment. If the petitioner is not legally bound tosatisfy the decree on establishing that no notice had been given to him interms of section 106 of the Motor Traffic Act by the plaintiff, the Court canorder to execute the decree against the 1 st and 2nd defendants.
If the petitioner had taken proper steps to absolve his liability on thebasis that he did not receive the notice of the action an inquiry would havebeen held by the District Court. The District Court would be in a postitionto consider the allegations made by the petitioner and to evaluate thestatements and averments made by him when the petitioner is subjectedto cross- examination. When such procedure is not adopted the Court ofAppeal is not in a position to make an order on the matter before it.
CARatnayake and others vs303
Kumarihamy and others
It is settled law that a party effected by an order of which he had nonotice must apply in the first instance to the Court which made the order.The petitioner must first file the necessary papers in the original Court andinitiate an inquiry into the allegations made by him. After such inquiry, ifthe petitioner is dissatsfied with the order made by the District Court, hecan thereafter raise the matter before the Court of Appeal. The Court ofAppeal then would be in a position to make an order on the issues aftertaking into consideration the order made by the District Court.
The relief prayed for by the petitioner in this application in revision is toreview and set aside the judgment delivered by the learned District Judgeon 29.09.2003 and/or to revise the said judgment.
The fact that the petitioner has merely filed an undated petition againstthe writ of execution of the decree without initiating an inquiry in the DistrictCourt into the allegation that he did not receive notice under section 106 ofthe Motor Traffic Act does not give this Court the power to set aside orrevise the judgment of the District Court. In any event that application hadnot been inquired into by the District Court and there is no material to saythat the District court has made an order on that application.
For these reasons I am of the view that this is not a fit case to issuenotice and the petitioner’s application in revision is dismissed.
JANASHAKTHI INSURANCE CO. LTD , vs. DASANAYAKE MANIKE AND OTHERS