106-NLR-NLR-V-59-THE-UNITED-INDIA-FIRE-AND-GENERAL-INSURANCE-CO.-LTD.-Appellant-and-WEINMAN-.pdf
WEE R ASOORIYA, J.—The United India Fire and tiencrat J. n sura nee nao
•Co., Ltd. v. Weintnan
– 1958Present :Weerasooriya, J., and Sansoni, J.
THE UNITED INDIA .EIRE AND GENERAL INSURANCE.CO., LTD., Appellant, and WE INMAN, Respondent
S. C. 75—D. C. {Inly.) Colombo, 3,7015/31
Addition of parlies—Policy of insurance in respect of third parlies—Bight of insurerto be added as parly in a collision case—Motor Traffic Act, No. 14 of 1951,s. 105 (1)—Civil Procedure Code, s. IS (1).
An insurer in respect of third parly risks under tho Motor Traffic Act is notentitled to be added'as a party under section IS of t-lio Civil Procedure Code inon action for damages resulting from a collision with a motor car unless be canshow that his legal rights would bo prejudiced if judgment wero to bo enteredagainst the party or parties on the record.
^^^PPEAL from an order of the District Court, Colombo.
Walter Jayawardene, with Neville Wijeralne, for the parfcy-infcervenient-appellant.
V. A. Kandiah, with D. J. Tampoe, for the plaintiff-respondent.
No appearance for the 1st and 2nd defendants-respondents.
_ –Cur. adv. vult.
Hlarch 12, 1958. Weerasooriya, J.—
The plaintiff-respondent filed this action against the 1st defendant-respondent,’ Mrs. Z. Ahamat, and the 2nd defendant-respondent for the *recovery of a sum of Rs. 20,000. This sum is claimed as damages sus-tained by the plaintiff, by reason of a collision which took place on the27th November, 1953, between a motor cycle ridden by the plaintiffand a motor car bearing registration number C. L. 5975 belonging to the
49G
WEERASOOR1YA, J.—The United India Fire and General Insurance .
Co., Ltd. v. Weinman■■
1st defendant and driven in a rash and negligent manner by the 2nd-defendant while acting within the scope and in the course of his^employ-ment under the 1st defendant. The 1st defendant filed answer speciallydenying that she was the owner of the motor car and generally denyingcertain other averments (including those relating to the employment ofthe 2nd defendant and his rash and negligent driving of the car). As^personal service of summons could not be effected on the 2nd defendantthe Court ordered substituted service. He was absent on.the dayappointed in the summons so served for his appearance in Court, norhas he taken any step up to date to indicate that (if he is aware of theseproceedings) lie is in any way interested in them. The case now standsfixed for trial.-
In the meantime the intervenicnt-appellant, the United Indian Hireand General Insurance Company, Limited, applied by way of motionsupported by affidavit to be added as a party defendant-. The plaintiffopposed this motion and the District Judge after inquiry made orderdisallowing it. The present ajupeal is from that order..
Mr. Jayawnrdene for the appellant referred us to section 18(1) of theCivil Procedure Code as the only provision under which the appellantcould be brought into the action and as empowering the Court in itsdiscretion, infer alia, to join ns a party any person whose presence beforethe Court may be necessary to enable the Court effectually and completelyto adjudicate upon and settle all questions involved in the action. Iconclude from the observations of the'learned Judge in disallowing theappellant’s motion that he did not consider that the appellant’s presenceis necessary for the purpose stated in section IS (I). If his view is correcthe had no jurisdiction to add the appellant as a party and no questionof discretion arises.
■*
Mr. Jayawa-rdene submitted, however, that the appellant is, by reason-of the interest which lie has in the subject matter of the action, a necessaryparty and should be added as a defendant.
The main ground urged in the affidavit of the Branch Manager of theappellant company for the intervention of the appellant is that at thedate of the collision there was in force a comprehensive policy of insurancein respect of motor ear G. L. 0075 issued by the company in favour ofone Mr. Hajrcem Aharnat and that “ in accordance with law and theterms of the said policy the company might become liable to satisfyany decree that might be entered ….. in the plaintiff’s favouragainst the 2nd defendant ”. Apparently the appellant is indifferentas regards the outcome of the action against the 1st defendant. Therelationship between the 1st defendant and the party insured is not inevidence. As regards the action against the 2nd defendant, it is a matterfor speculation how a decree for damages entered against him " might ”in accordance with the terms of the said policy render the appellantlia.ble to satisfy it since the appellant has not thought it proper to dis-close the particular terms of the policy which, by operation of the appro-priate law, would bring about such a liability. At any rate, under the
49 T
■VEERASOORIYA, J.—The United India Fire and General Insurance
‘ •Co., Ltd. v. Weinman
appropriate law which, it is common ground, is contained in the provisionsof sect Jon 105 (1) of the Motor Traffic Act, Ko. 14 of 1951, it is clearthat the appellant would not bo liable except under a decree that hasbeen entered against the person insured by the policy, who in the presentcase is shown to be Mr. ffajreem Ahamat. '
In the case of Appuhamy v. Loku Hamy 1 the plaintiff claiming to beentitled to an undivided half share of certain allotments of land sued thedefendant in ejectment. The defendant failed to file answer and thematter had been fixed for ex parte trial when certain third persons claimed■ title to the entirety of the land and applied to be" added as parties.Despite the objection of the plaintiff the District Judge allowed the appli-cation blit in appeal this Court reversed the order, on the ground, as appearsfrom the judgment of Lawric, J., that a judgment against the defendantdeclaring the plaintiff entitled to, and ordering him to be placed in pos-session of, half of the lands in suit could not prejudice the rights of theintervenients since they were not in possession of any of the lands.According to this ruling it is not sufficient for a party seeking to comeinto an action to show that he has an interest in the subject matter of thelitigation by virtue of some legal right which he asserts, but lie must alsoshow that sueh right would he prejudiced if judgment were to be givenagainst the party or parties on the record. In Ibrahim Saibo v. Mansoorcl al. 2 a decree had been obtained in ejectment by the plaintiff againsthis tenant, and the question arose whether in the execution of the decreea sub-tenant in occupation who was not a party to the action could beforcibly removed by the Fiscal or his officer acting under section 324 (1)of the Civil Procedure Code. This was answered in the negative by aBench of five Judges who also' expressed the view that while there wouldhave been a misjoinder of parties had the plaintiff filed the action againstthe sub-tenant also as a defendant, it was open to the plaintiff, afteraction had. been filed, to move the Court under section IS of the CivilProcedure Code to add the sub-tenant as a party and that; such an appli-cation should normally be allowed. Although the specific ground orgrounds on which the application should normally be allowed are notstated, the ratio decidendi would seem to be that a decree for ejectmentagainst the tenant also affects the legal rights of the sub-tenant, though'he is not a, party to the action, inasmuch as the constructive delivery ofpossession that is made to the judgment creditor in the execution of thedecree under the proviso to section 324 (1) (in lieu of vacant possessionby removal of the sub-tenant) effectively terminates the sub-tenant’s rightto possession, as held in the same case, though he is still left.with his .remedy under section 327 of the Civil Procedure Code against summary '[ejectment without a hearing at a stage subsequent to' that contemplatedin section 324 (1)…-ty; .' – !.*i
Under English law the provision corresponding (although not inidentical terms) to section 18 (l)vof the Civil Procedure Code.is Order- 16,rule 11.- In Amon v. Raphael Tuck <£• Sons, Ltd. 3 the"defendants on the
(1S92) 2 Ceylon Lata Reports 57.'
3 (I95G) 2 WiL, R. 372.
3 (1953) 54 2I. i?.'R. 217.Xi
si 2.
49S
RIaheswary v. Ponnudurai
record applied under that rule to have a certain party joined in the actionagainst the 'will of the plaintiff, and it was held that the test to be appliedis : “ would the order for which the plaintiff was asking in the actiondirectly affect the intervener, not in his commercial interests, but in theenjoyment of his legal rights ? ”
I am unable to take the view that the test applied in the above casesis satisfied by the vague statement that in the circumstances relating tothe issue of the policy of insurance in respect of the motor car involvedin the collision the appellant “ might ” become liable to satisfy a decreeentered against the 2nd defendant. But, as already shown by me, even' the remote possibility of such a liability is negatived on the expressterms of section 105 (1) of the Motor Traffic Act, which is the onlyprovision under which the liability of the appellant was said to arise.
Mr. Kandiah, who appeared for the plaintiff-respondent, went furtherand submitted that even if the appellant’s liability to satisfy a decreethat may be entered against the 2nd defendant directly arises undersection 105 (1), no ground has been made out for the appellant being addedas a party defendant because of certain other provisions of the MotorTraffic Act, particularly sections 107, 10S and 109. In the view whichI have taken it becomes unnecessary to deal with this submission.
The appeal is dismissed with costs payable to the plaintiff-respondent.Sansoni, J.—I agree.
Appeal dismissed.