ME. L. M. D. DE SILVA—The Ceylon Motor Insurance
Association Ltd. v. Thambugala
Present: Lord Porter, Lord Tucker, Lord Asquith of Bishopstone,The Chief Justice of Canada (Mr. T. Rinfret) and Mr. L. M. D. de SilvaTHE CEYLON MOTOR INSURANCE ASSOCIATION LTD.,Appellant, and P. P. THAMBUGALA, Respondent
Privy Council Appeal No. 33 op 1952
S. C. 57—D. C. Colombo, 22,799
Motor Car Ordinance, No. 45 of 1938—Insurance against third party risks—Noticeof action to insurer by third party—Particulars which should be furnished—Sections 133, 134, 136, 137.
Where notice of action was given to an insurer setting out the name and addressof the proposed plaintiff, the name of the owner and number of the car whichcaused injuries, the date of the accident and the sum which was being claimedfrom the owner as damages—
Held, that there was a sufficient notice of action under section 134 of theMotor Car Ordinance.
.^^.PPEAL from a judgment of the Supreme Court reported in (1952)53 N. L. R. 511.
Geoffrey Cross, Q.C., with R. K. Handoo, for the defendant appellant.Stephen Chapman, for the plaintiff respondent.
Cur. adv. vvlt.
July 21, 1953. [Delivered by Mr. L. M. D. de Silva.]—
This is an appeal from a decree of the Supreme Court of Ceylon datedthe 20th May, 1952, dismissing an appeal from a decree of the DistrictCourt of Colombo dated the 24th October, 1950, in favour of therespondent.
The respondent had been injured by a car belonging to one K. StephenPerera who had been duly insured against third party risks with theappellant company in accordance with the requirements of the Motor GarOrdinance No. 45 of 1938. In an earlier action in the District Court ofColombo the respondent obtained a decree against Perera for Rs. .10,000with legal interest and costs. The amount due on that decree on the 5thApril, 1950, was Rs. 13,881 -22. The respondent, availing himself of theprovisions of sec. 133 of the Motor Car Ordinance, brought this action onthat day for the recovery of the said sum from the appellant company.
2J. N. B 27972-1,590 <7/53}
MR. L. M. D. BE SILVA—The Ceylon Motor Insurance
Association Ltd. v. Thambugala
Section 133 of the Ordinance says :—
“ 133—(1) If after a certificate of insurance has been issued undersection 128 (4) to the persons by whom a policy has been effected,a decree in respect of any such liability as is required by section 128(1) (6) to be recovered by a policy of insurance (beins^ a liabilitycovered by the terms of the policy) is obtained againse any personinsured by the policy, then notwithstanding that the inb.urer may beentitled to avoid or cancel, or may have avoided or cancelled, thepolicy, the insurer shall, subject to the provisions of sections 134 to137, pay to the persons entitled to the benefit of the decree anysum payable thereunder in respect of that liability, including anyamount payable in respect of costs and any sum payable in respectof interest on that sum under such decree.
In this section, ‘ liability covered by the terms of the policy ’means a liability which is covered by the policy or which would beso covered but for the fact that the insurer is entitled to avoid orcancel, or has avoided or cancelled, the policy. ”
Section 134 is to the following effect :—
“ 134. No sum shall be payable by an insurer under the provisionsof section 133—
(а)in respect of any decree, unless before or within seven daysafter the commencement of the action in which the decree wasentered, notice of the action had been given to the insurer by aparty to the action ; or
(б)in respect of any decree, so long as execution thereof isstayed pending appeal. ”
It will be seen that no sum is payable by the appellant unless therespondent has given the notice of action provided for by section 134.The only ground upon which the appellant seeks to avoid liability is thatnotice under the section has not been duly given. Sections 136 and 137of the Ordinance enable the insurer to obtain a declaration of non-liability on certain grounds in legal proceedings instituted for the purposeprovided that they are instituted before the expiration of a specifiedperiod and provided, in certain circumstances, notice is given of theproceedings by the insurer to the inj ured party within a prescribed time.Their Lordships are of the opinion that one of the objects, but not thesole object, of the notice of action required by section 134 is to enablethe insurer to institute within time proceedings under sections 136 and137.
On the 21st May, 1946, the respondent’s proctors wrote the followingletter to the appellant company:—t-
“ Re Car No. X 4851.
“ We are instructed by Mr. P. P. Thambugala of … to file an
action for tt^e recovery of Rs. 15,000 against Mr. KodituwakkuAratchige Stephen Perera of … being damage sustained by our
MR. Xi. M. D. EE SELVA—The Ceylon Motor Insurance27
Association Ltd. v. Thambugdla
client ap a result of the above car knocking down our client on the1st September, 1945, by reason of the negligent and careless drivingon the part of his driver.
“ We are given to understand that the above car has been insuredwith your Company.
“ Our c) art is still under treatment and unless our client’s claimis settled on or before the 31st instant, we are instructed to file actionagainst the owner of the car. ”
The only question for decision by their Lordships is whether this letter isa sufficient notice of action under section 134 of the Ordinance.
The Motor Car Ordinance No. 45 of 1938 follows to a large extent theEnglish legislation on the subject of the liability of an insurer to a thirdparty. Section 134 (a) bears a resemblance to section 10 (2) (a) of theEnglish Road Traffic Act which reads :—
“ No sum shall be payable by an insurer under the foregoing pro-visions of this section in respect of any judgment, unless before orwithin seven days after the commencement of the proceedings in whichjudgment was given, the insurer had notice of the bringing of theproceedings. ”
In the case of Weldrich v. Essex & Suffolk Equitable Insurance SocietyLtd,.,1 the question arose as to whether a notice in the following terms wasa sufficient compliance with its provisions :—
“ We understand your Society has repudiated liability, and weshall be grateful to have your confirmation thereof in writing, becauseyou will appreciate we will have to take proceedings as againstMohamed, and also against the owner of the other vehicle and atthe same time give notice to the Motor Insurers Bureau of yourrepudiation of liability. ”
It was held that it was not. But their Lordships are of the viewthat this decision does not help the appellant. They agree with the learnedDistrict Judge “ that the main purport of this letter was to obtain con-firmation of an alleged repudiation of liability ” and that it was notpossible to say that it was a proper notice complying with the provisionsof section 10 (2) (a) of the Road Traffic Act. Other English cases have beencited to their Lordships which are distinguishable from the present caseon a variety of grounds. They involve the interpretation of the word“notice of action ” in various statutes and their Lordships would observeabout them generally that the interpretation of such a set of words in aparticular statute does not always greatly assist the interpretation of thesame words in another. Their Lordships think it necessary to refer toonly one-fA these cases, namely Lewis v. Smith,2. In that case an act of
1 83 Lloyd's List Law Reports, page 91.2 Holts Nisi Prius C. P. 1815, page 27.
MR. L. M. I>. DE SILVA—The Ceylon Motor Insurance
Association Ltd. v. Thambugala
Parliament incorporating the West India Pock Company was ynder con-sideration. It enacted that no action could be brought against the Com-pany unless fourteen days’ notice of such action had been given. A letterupon which the plaintiff in that case relied as giving notice bears in somerespects a resemblance to the letter under consideration by their Lordshipsbut was thought by Gibbs C.J. to leave “it open to con/ecture whatlegal proceedings were in contemplation and against whom tf.ey were to bebrought.” He held that the letter under consideration in that case was. not a proper notice of action under the Act. The letter sent by the res-pondent to the appellant however in the present case says that the pro-ceedings were to be for the recovery of damages and that they were to bebrought against Perera the owner of the car. It was consequently freefrom the defects referred to by Gibbs C.J.
It has been argued that the letter which is challenged should havecontained the name of the Court in which it was proposed to file action.An action cannot be specified with precision without reference to itsnumber and to the name of the Court in which it is filed. It is to benoticed however that section 134 contemplates the possibility of givingnotice before the action is filed. In that event no number could be given.It follows that the section contemplates something containing less thana precise specification of the action. The name of the Court could nodoubt be given but their Lordships do not think that the section requiresthat this should be done. It does not do so expressly and there is nothingfrom which it can be said to do so by implication. Then it was saidthat the words “ unless our client’s claim is settled ” reduced the noticeto one which was conditional and insufficient for the purposes of sec-tion 134. Their Lordships agree with the view of the Supreme Courtthat the words must be taken to mean “ settled by you ”, namely bythe appellant company. But they are of opinion that even if they meant“ settled by you or someone else ” the words do not vitiate the notice.A notice of action without such words necessarily carries with it theimplication that action will be filed only if the claim is not settled, andthe addition of the express statement does not alter its meaning or itseffect.
The notice which has been sent in this case sets out the name andaddress of the proposed plaintiff, the name of the owner and number ofthe car which caused injuries, the date of the accident and the sum whichwas being claimed from the owner as damages. Their Lordships are ofthe opinion that these elements taken together constitute a sufficientnotice of action under section 134 and that there- are no elements init which in any way reduce it to something less than a sufficient notice.
For these reasons their Lordships will humbly advise Her' Majesty thatthe appeal should be dismissed. The appellant will pay the respondent’scosts of appeal.