007-NLR-NLR-V-62-H.-W.-MENDIS-SILVA-Appellant-and-THE-CEYLON-INSURANCE-CO.LTD-Respondent.pdf
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SAINS ONI, J.—.Mendis Silva v. Ceylon Insurance Co., Ltd.
Present / Weerasooriya, J., and Sansoni, J.W. MENDIS SILVA, Appellant, and THE CEYLON INSURANCE
CO., LTD., Respondent
S.C. 114—D. C. Colombo, 34320fM
Insurance—-Motor vehicle—Proposal form—Statements therein—Interpretation—
Evidence of un-roadworthiness—“ Judicial notice
A lorry, which had been insured by the plaintiff with the defendant Company,ran off the road by accident when the steering rod gave way when it was beingdriven by the plaintiff’s driver. In a claim made by the plaintiff for the costof repairing the lorry plus the towing charges-—-
Held, (i) that the accident was caused by “ accidental, external means
that the weight stated by the plaintiff in the proposal form as the“ maximum carrying capacity of the vehicle ” ought not to be regarded asincorrect merely because it exceeded the authorised payload specified in thelicence as the maximum load which could be carried on the lorry, undersection 36 of the Motor Traffic Act No. 14 of 1957.
that it coold not be contended that the plaintiff committed a breach ofthe condition to “ maintain in efficient condition ” the insured lorry merely byproving that of the six tyres on the lorry (for it had six wheels) the three on theoff side were worn smooth. A Court should not take judicial notice of thefact that if there are any smooth tyres on a motor vehicle, the vehicle is un-roadworthy.
Appeal from a judgment of the District Court, Colombo.
E. F, N. Gratiaen, Q.C., with S. O. E. Rodrigo and John de Saram,or the Plaintiff-Appellant.
B. WHeramanayalee, Q.C., with H. Wanigatunga, for the Defendant-Respondent.
Cur. adv. vult
February 18, 195S. ■ Sansoni, J.—
The plaintiff insured his Chevrolet lorry bearing No. CY 4144 with the-defendant company upon a Policy of Insurance dated 26th May, 1954.When the lorry was being driven to Trincomalee on 8th August, 1954
SANSCXNI, J.—Mendis Silva v. Ceylon Insurance Co., hid.
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by the plaintiff’s driver it ran off the road and was seriously damaged.The lorry was thereafter towed to Colombo, and the cost of repairing itwas estimated by Rowlands Ltd. at Rs. 5,093*73.
The plaintiff brought this action to recover Rs. 9,000, further damagesat Rs. 10 a day from 8th September, 1954=, and a sum of Rs. 150 as towingcharges. The defendant company, after negotiations with the plaintiff,denied its liability in any sum whatsoever. After trial the learned Dis-trict Judge dismissed, the plaintiff’s .action, upholding the defence onthree grounds : they were (1) because the damage to the lorrj' was notcaused by “ accidental, external means”, (2) because the plaintiff hadgiven a false answer in the proposal by stating that the “ maximumcarrying capacity of the vehicle ” was 3£ tons and not 2 tons, (3) becausethe plaintiff failed to “ take all reasonable precautions to safeguardfrom loss or damage and to maintain in efficient condition ” the insuredlorry, in breach of condition 5 of the Policy.
At the hearing of the appeal, Mr. Gratiaen who appeared for theplaintiff-appellant limited his claim to Rs. 5,243.73 being the estimatedcost of repairing the lorry plus the towing charges. Mr. Wikramanayakewho appeared for the defendant-respondent did not attempt to support•the learned Judge’s finding on the first ground which I have set out.It is clear from the evidence that the lorry ran off the road by accidentwhen the steering rod gave way, and was damaged when it collided witha log ; the case therefore fell within the plirase “ accidental, externalmeans”. If the attention of the learned Judge had been drawn to suchcases as Winspear v. Accidental Insurance Companyx, and Lawrence v.Accidental Insurance Company2, his decision on this point would havebeen different.
With regard to the second ground, Mr. Gratiaen conceded that since theproposal was the basis of the contract, the statements in the proposalhad to be true if the contract was not to be avoided. It was submitted,however, that upon a fair and reasonable construction the answer “ 3^tons ” was the true answer to the question “ maximum carrying capacityof vehicle or that, at the lowest, the question was ambiguous andshould therefore be construed against the insurers. The learned Judge’sview was that the maximum carrying capacity of a vehicle is neither morenor less than the payload of 2 tons which the licensing authority hadspecified in the licence as the maximum load wltich may be carried onthe lorry, under Section 3G of the Motor Traffic Act No. 14 of 1957. Ifthe question in the proposal can and does in fact mean only what thelearned Judge thought it meant, there is no doubt as to the falsity of theanswer given by the plaintiff. Rut the evidence of the witnesses Nelsonand Wettasinghe, called by the plaintiff and the defendant companyrespectively, shows that the authorised pay-load mentioned in the licenceis sometimes, at the discretion of the Commissioner of Motor Transport,fixed at a lower figure than the. total weight of the goods which thevehicle is capable of carrying ; and that a lorry such as this, with a“ wheel base of 161 ” can carry 3-^ tons of goods. Their evidence is notvery clear on some matters, but it was for the defendant company to
1 (1880) 6 Q. B. D. 42.
* (1881) 7 Q. B. T>. 216.
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SANS ONI, J.—Mendis Silva v. Ceylon Insurance Co., Ltd.
show that the particular answer was false. If the information which the-insurers were seeking to obtain by the particular question in the proposalwas in regard to the pay-load, I find it difficult to understand why thequestion was not asked in those plain terms. Even if the question asframed does not refer only to the maximum load that the vehicle wasbuilt to carry, it can well bear that meaning also. I do not thereforeconsider that the answer given to the question was shown to be false.
I come now to the third ground on which the learned Judge heldagainst the plaintiff. Condition 5 of the Policy which I have setout requires the plaintiff to maintain the vehicle in efficient condition :this means that the plaintiff had to take reasonable precautions “ to makethe vehicle or keep the vehicle road-worthy—that is, in an efficientcondition for the purpose for which it was going to be used, namely, torun upon the roads ”—see Brown v. Zurich General Accident and LiabilityJnsurance Ltd1.
In order to show that there had been a breach of this condition, thedefendant company relied on the evidence of its representative Zahir whohad inspected the lorry at the scene of the accident on 12th August, 1954.This witness stated that he then found that of the six tyres on the lorry(for it had six wheels) the three on the off side were worn smooth and twoof them were in a worse condition than the third. As the learned trialJudge has accepted the evidence of this witness as to the condition ofthese three tyres I shall consider the case on that footing. I do not,however, see that the necessary or proper conclusion to be drawn fromthis finding of fact is that this lorry was not in aq_efficient condition. Itis significant that although the plaintiff called the witness Nelson whohad been an engineer of Rowlands Ltd. for about 30 years, and the de-fendant company called the witness Wettasinghe who had been anExaminer of motor vehicles for 25 years, neither of these witnesses wasasked for his opinion as to whether the three tyres of this lorr}7 renderedit un-road-worth}7. Even the witness Zahir does not express such anopinion.
Can it be said that the Court should take judicial notice of the factthat if there are any smooth tyres on a motor vehicle the vehicle is un-road-worthy ? I do not think so. Perhaps in an extreme case, whereall the tyres of a vehicle are smooth, the answer may be easier to give.But what if, of the six tyres, only one or two or three tyres are smooth"?Is the vehicle to be considered un-road-worthy in all these instances tAnd if not in all, then in how many ? The particular clause of the policydoes not, of course, require the vehicle to be maintained in perfectcondition but only in an efficient condition.
In considering the question whether the Court can take judicial noticeof this matter, I would refer to the following observations in Wigmore onEvidence (3rd edition) Vol. 9 at section 2580 :—
“ Judicial notice is a judicial short cut, a doing away, in the caseof evidence, with the formal necessit}7 for evidence, because there isno real necessity for it. So far as matters of common knowledge are
1 (1954) 2 LI. L. Rep. 243.
SANSONI, J.—Mendis Silva v. Ceylon Insurance Co., Ltd.
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concerned, it is saying there is no need of formally offering evidenceof those things, because practically everyone knows them in advance,and there can be no question about them. The rule in this respectis well stated on 15 R.CJL». 1057 as follows : “ It may be statedgenerally with regard to the question of what matters are properly ofjudicial cognizance that, while the power of judicial notice is to heexercised with caution, Courts should take notice of whatever is orought to be generally known within the limits of their jurisdiction, forjustice does not require that Courts profess to be more ignorant thanthe rest of mankind. This rule enumerates three material requi-sites : (1) The matter of which the Court will take judicial noticemust be a matter of common and general knowledge. The fact thatthe belief is not universal, however, is not controlling, for there isscarcely any belief that is accepted by everyone. Coxirts take judicialnotice of those things which are common knowledge to the majorityof mankind, or to those persons familiar with the particular matterin question. But matters of which Courts have judicial knowledgeare uniform and fixed, and do not depend upon an uncertain testi-mony ; as soon as circumstances become disputable, it ceases to fallunder the head of common knowledge, and so will not be judiciallyrecognised, (2) A matter properly a subject of judicial notice must be“ known that is, well established and authoritatively settled, notdoubtful or uncertain. In every instance the test is whether sufficientnotoriety attaches to the fact involved as to make it safe and properto assume its existence without proof. ^ In harmony with that view ithas been said that Courts must *' judicially recognise whatever has therequisite certainty and notoriety in every field of knowledge, in everywalk of practical life ” …. (I need not quote the third requisite becaiiseit is not material in this case).
“ The test, therefore, in any particular case where it is sought toavoid or excuse the production of evidence because the fact to beproven is one of general knowledge and notoriety, is : (1) Is the factone of common, everyday knowledge in that jurisdiction, whicheveryone of average intelligence and knowledge of things about himcan be presumed to know 1 and (2) is it certain and indisputable %If it is, it is a proper case for dispensing with evidence, for its productioncannot add or aid. On the other hand, we may well repeat, if thereis any reasonable question whatever as to either point, proof shouldbe required. Only so can the danger involved in dispensing withproof be avoided. Even if the matter be one of judicial cognizance,there is still no error or impropriety in requiring evidence.”
Mr. Wikramanayake submitted that the conclusion of the learnedJudge, drawn from the condition of the three worn tyres, that the lorrywas un-road-worthy, is a question of fact which Should not be interferedwith in appeal. I have already said that I accept the learned Judge’sfinding of fact that three tyres on this lorry were smooth, but the questionthat now arises is the proper inference to be drawn from that fact. Thedifference, as pointed out in Benmax v. Austin Motor Co. Lid.,1 is between
i (1955) A. C. 370.
2$
Eddie Per era v. Yapas, Ltd.
the perception of facts and the evaluation of facts, and I think this Cour^is in a position to judge whether the inference of the lorry being in anun-road-worthy condition was the proper inference to be drawn from thespecific fact found by the learned Judge. I do not think the learnedJudge could take judicial notice of the fact that a lorry with three suchtyres was not in an efficient condition. It seems to me to be a matter tobe established by the evidence of an expert speaking to the facts of theparticular case, for the subject-matter of inquiry is such thatinexperienced persons are unlikely to prove capable of forming a correctjudgment upon it without such assistance.
The learned Judge has also found that the defects in the steeringmechanism of the lorry showed that the lorry was not maintained inefficient condition. Here again there is a total, absence of any evidence,expert or otherwise, as to the condition of the steering mechanism at orbefore the time of the accident. I think it is dangerous to infer that 'the mechanism had not been in efficient condition merely becauseit failed to function just before the accident occurred. It is true thatno major repairs had been done to the lorry since the plaintiff purchasedit second-hand in 194:6, but what was the need for them if the lorry wasworking satisfactorily V Minor repairs were effected when required,and *he lorry was serviced from time to time, and I do not see thatthe plaintiff failed to observe conditioil 5 by failing to look for defectswhich were not apparent.
For these reasons I would set aside the judgment appealed from andgive judgment for the plaintiff in a sum of Us. 5,243-73 and costs in bothCourts.
We'erasooe.iya, J.—I agree.
Judgment set aside.