117-NLR-NLR-V-70-EMJAY-INSURANCE-CO.-LTD.-Appellant-and-P.-S.-WILLIAM-and-another-Respodnents.pdf
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Emjay Insurance Co. Ltd. v. William
m •
Present: Sri Skanda Rajah, J., and Siva Supramaniam, J.EMJAY INSURANCE CO. LTD., Appellant, and P. S. WILLIAMand another, RespondentsS. C. 393/65—D. G. Colombo, 56178jM.
Motor Traffic Act (Cap. 'JO-3)—-Sections 102 (4) and 109—Insurance, policy covering3rd party risks—“ Excluded drivers ”—Action by insurer for declaration ofnon-liability for breach of condition-—Quantum of evidence.
An insurer is entitled to obtain a declaration of nondiability under section109 of the Motor Traffic Act if he establishes that the accident in question wascaused by the motor vehicle when it was being driven by the owner (theinsured) in breach of a specific condition in the policy of insurance that itshould not be driven by any person who is not the holder of a driving licence.In such a case, the inclusion of another condition in the policy that the vehicle^should not be driven by any person other than the insured is not material.
f (1948) 49 2V* L. R. 225.* (1933) 35 N. L. ft. at 351.
3 (1965) 67 N.L. R. 131.
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SIVA SUPRAMANLAM, J.—Emjay Insurance Co. Ltd. v. William
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-ApPEAL from a judgment of the District Court, Colombo.
E. B. Wikramanayake, Q.C., with N. C. J. Rustomjee, for the plaintiff-appellant.
J.A. L. Cooray, for the 2nd defendant-respondent.
Cur. adv. milt.
November 22, 1966. Siva Supramantam, J.—
This is an action by an insurer for a declaration of non-liability unctersection 109 of the Motor Traffic Act (Cap. 203). The 1st defendant wasat all material times the owner of a motor car No. 2 Sri 1290 in respect ofwhich the plaintiff company issued a policy of insurance covering, interalia, 3rd party risks. While the policy was in force the 1st defendantdrove the said car on the public highway and collided with the 2nddefendant who was riding a bicycle and caused him injuries. It feestablished that the 1st defendant was not the holder of a driving licenceon the date of the accident. The 2nd defendant has been awarded asum of Rs. 5,000 as damages by the District Court of Colombo in caseNo. 55878 filed by him against the 1st defendant. After that action wasfiled, the plaintiff company instituted the present suit for a declarationof non-liability. It is admitted that the 2nd defendant received duenotice in terms of the Proviso to S. 109 of the Act.
It was a condition of the policy that the plaintiff company should notbe liable in respect of any claim arising out of any accident while the
vehicle was “being driven byan excluded driver”. The term
“ excluded driver ” was defined in the schedule to the policy as :
“ Any person other than the insured or a person driving with theinsured’s express or implied permission.
Any person who is not the holder of a driving licence unless he hasheld and is not disqualified from obtaining such a licence.”
S. 102 (4) of the Act provides, inter alia, as follows :—
“ Nothing in sub-section (1) shall apply in the case of any condition
in a policy of insurance, being a condition which—
(«)
(6) provides that the motor vehicle shall not be driven by a personother than—
(i) the insured or any person driving with his express or impliedpermission.
•?••••
568
Moulin Nona v.^Routhledge
provides that the motor vehicle shall not be driven bjr—
any person who is not the holder of a driving licence.
”
It will be seen that the condition specified in the policy was one thatwas permitted by S. 102 (4) of the Act and that the two categories of“ excluded drivers ” correspond to the classes dealt with in S. 102 (4)(6) (i) and S. 102 (4) (c) (ii) respectively.
It was argued by learned Counsel for the respondent that the classreferred to in S. 102 (4) (c) (ii), viz : “ Any person who is not the holder of adriving licence ” will not include the “ insured ” as under sub-section (4)(6) (i) the “ insured ” has been specifically excepted from the definitionof “ excluded driver ”. The argument, however, is untenable as thetwo sub-sections refer to separate and distinct categories. LearnedCounsel’s submission amounts, in effect, to a request that we shouldinterpolate the words “ other than the insured ” after the words “ anyperson ” in S. 102 (4) (c) (ii). We have no power to do so. In our viewthere was a breach of an essential condition of the policy and the plaintiffcompany is discharged from liability and is entitled to the declarationpra}red for in the plaint.
We set aside the judgment and decree appealed from and enterjudgment for the plaintiff as against the 2nd defendant as prayed forwith costs in both courts. The plaint includes a prayer against the 1stdefendant as well. The 1st defendant did not file answer or contest theaction and was absent at the trial. The District Judge will enter, in thefirst instance, a decree nisi for default against the 1st defendant.
Sri Skanda Rajah, J.—I agree.
Appeal allowed.