THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. 48 of 2009

BETWEEN:

MOSESE QAQANAQELE 
as Administrator in the Estate of Varisili Talei Tukoro.
PLAINTIFF

AND:

ABDUL SAKIL 
of Korotolutolu, Seaqaqa, Labasa, Driver.
1ST DEFENDANT

AND:

ALI IMDAD 
of Korotolutolu, Seaqaqa, Farmer
2ND DEFENDANT

AND:

SUN INSURANCE COMPANY LIMITED 
a limited liability company having its registered office at Level G & 1 Kaunikuila House, Laucala Bay Road, Suva.
3RD PARTY

COUNSELS : Mr Kohli of Messrs Kohli & Singh Solicitors for the Plaintiff
Mr Amrit Sen of Maqbool and Company Solicitors for the 2nd Defendant
Mr Adrian Ram of Messrs Gibson & Company, Solicitors for the Third Party
1st Defendant, Unrepresented

DATE OF JUDGMENT: 18th June, 2013

JUDGMENT

1.	The writ of Summons and the Statement of Claim was filed on 18th October 2009 and the Plaintiff sought the following reliefs:

(a)	Special damages of $4799.00;

(b)	Damages under Law Reform (Miscellaneous Provisions) (Death and Interest) Act;

(c)	Damages under Compensation to Relatives Act;

(d)	Interest;

(e)	Costs of this Action;

(f)	Such further and/or other relief as this court may deem just and or expedient;

2.	The Plaintiff in the Statement of Claim pleaded:

2.1	The Plaintiff is the Administrator in the Estate of his late daughter Varisila Talei Tukoro aka Variskila Talei Qaqanaqele who died on 18th October 2006.

2.2	The First Defendant was at all material time the driver of Motor Vehicle No. DP677;

2.3	The Second Defendant was all material time the owner of motor vehicle registered No. DP677.

2.4	At all material time the 1st Defendant was driving the motor vehicle registered number DP677 as the servant and or agent of the Second Defendant and as such the Second Defendant is vicariously liable for the acts or omissions of the 1st Defendant.

2.5	On the 18th of December 2006, being the material time the 1st Defendant so negligently drove the motor vehicle number DP677 on Korotolutolu Road that it struck one Varisila Talei knocking her down and subsequently caused her death.

2.6	Particulars of the negligence:

(a)	failing to keep any or any proper lookout;

(b)	driving his motor vehicle at a speed which was excessive in the circumstances;
(c)	failing to sound any warning of the approach of his said motor vehicle;

(d)	failing to keep his motor vehicle under any or any proper control;

(e)	failing to apply brakes on his said motor vehicle in time to avoid the collision or at all;

(f)	failing to steer or control his said motor vehicle so as to avoid the collision.

2.7	By reason of the negligence above mentioned the deceased suffered injuries and suddenly died at the age of 5.

2.8	That the particulars pursuant to compensation to Relatives Act are as follows:

(a)	The person for whose benefit this action is brought are Mosese Qaqanaqele and Laisani Nasaubuli the parents of the deceased.

2.9	That the nature of claim in respect of which the damages were sought:

(a)	The deceased immediately prior to her death was a young and healthy person of 4 years of age;

(b)	She lived happily, wholesome and active life.

2.10	The deceased had normal expectations of life.

2.11	Her estate had suffered loss and damage;

2.12	The Plaintiff will reply upon the doctrine of res ipsa loquitur on the fact that the motor vehicle was under the control of the 1st Defendant who caused the collision.

2.13	The Plaintiff claimed damages mentioned in paragraph 1 of this Judgment.

3.	Acknowledgement of Service by the 2nd Defendant was filed on 3rd December 2009 and the Statement of Defence was filed on 11th February 2010 and the 2nd Defendant pleaded:

3.1	The Defendant neither deny nor admit that 1st Defendant was all material times the driver of the motor vehicle no. DP677 as pleaded in the 2nd paragraph of the Statement of Claim.

3.2	The First Defendant admitted paragraph 3 of the claims all material times he was the registered owner of motor vehicle no. DP677.

3.3	The 1st Defendant denied the paragraph 4 of the Statement of Claim; the 1st Defendant is vicariously liable for the acts and omissions of the 1st Defendant.

3.4	The second Defendant denied paragraph 5 of the Statement of Claim and stated that the accident was caused solely through the negligence of the deceased and particulars of the negligence of the Plaintiff and the deceased were stated:

(a)	Failure to supervise a young child on the roadside;

(b)	Crossing the road when it was not safe to do so;

(c)	Running in front of any on-coming vehicle.

3.5	Alternatively stated that the deceased substantially contributed towards the accident.

3.6	Replying to paragraph 6 and 7 of the Statement of Claim denied his liability.

3.7	The application of res ipsa loquitur was denied by the 2nd Defendant under the circumstances.

3.8	Further the 2nd Defendant had stated in the alternative that at the time of the accident that there was a valid third party policy issued by Sun Insurance Company Limited indemnifying him for personal injuries sustained to 3rd parties through use of the vehicle registration no. DP677.

3.9	The 2nd Defendant further stated he had informed the accident to his insurers and in the event any Judgment entered against him has to be recovered from the said Insurance Company and prayed the claim should be struck off.

4.	Reply to the Statement of Defence was filed by the Plaintiff on 2nd June 2010. The 1st Defendant had not filed Statement of Defence, neither participated in this proceedings..

5.	Summons for Directions was filed on 21st September 2010. In pursuant to the Order of the court made on 9th November 2010, substituted service of summons was effected on the 1st Defendant by publishing an Advertisement in the Sun newspaper on the 12th of November 2010.

6.	The Affidavit dated 21st February 2011 verifying the Plaintiff's list of documents was filed on 24th February 2011.

7.	Ex-parte Notice of Summons was filed on 6th of July 2011 by the 2nd Defendant and made an application to add the third party Insurer namely, Sun Insurance Company Limited as the 3rd Party and leave was granted by the court on 18th of July 2011 to issue third party notice against the Sun Insurance Company Limited.

8.	Acknowledgement of Service of third party notice was filed by the Sun Insurance Company Limited on 17th August 2011.

9.	Affidavit of Peter Osborne, Insurance Consultant on the 3rd party, 24th August was filed on 29/8/2011 interalia alleging that the Plaintiff did not comply with Section 11(2) of the Motor Vehicle (Third Party Insurance) Act and as such the Third Party is not required to pay any Judgment of this case. Along with the Affidavit Notice of Motion was filed by the 3rd Party sought leave to issue 3rd party proceedings to be set aside and summons issued in the action to be struck out. Ruling on the summons was delivered by Hon. Justice Hettiarachchi dismissing the 3rd Party's motion.

10.	The 3rd Party had filed the Statement of Defence on 20th July 2012 and pleaded inter-alia.

10.1	Writ of Summons was served on the 3rd Party on 29th October 2009 and as such the Writ of Summons was statute barred by provisions of Section 4 of the Limitation Act.

10.2	Referring to the Section 11(2) of the Motor Vehicle 3rd Party Act the 3rd Party had denied the liability.

11.	In reply to third party defence was filed by the 2nd Defendant and stated 2nd Defendant and stated that the policy of Insurance was between him and the Third Party and further any action or inactions by the Plaintiff does not affect same and he was indemnified under the Policy of Insurance.

11.1	Minutes of the Pre Trial Conference were filed on 27th February 2013 and the Third Party had filed summons on 4th March 2013 and sought leave to file an amended Statement of Defence. The case was to taken up for hearing on 6th March 2013.

11.2	Before proceeding to the trial, the hearing of the summons of the Third Party was taken up and Ruling was made by me and the amendment to the Third Party Statement of Defence was refused and the matter was taken up for trial.

12.	Trial was taken up on 6th March 2013 and as per minutes of the Pre Trial Conference it was agreed between the parties that:

12.1	The 2nd Defendant was the owner of the Motor Vehicle No. DP677 and the 1st Defendant was driving the said motor vehicle on 18th October 2006 as servant and as agent of the 2nd Defendant.

12.2	Third party to these proceedings issued the Third Party Policy No. 2426603 over the said motor vehicle no. DP677 covering the period 21st September 2006 to 7th October 2007.

12.3	On the 18th of October 2006, the said vehicle collided with one Varisila Talei on Korotolutolu Road.

12.4	As a result of the said collision, Varisila Talei died on the same day.

13.	Having agreed on the above facts, this court had to decide on the following issues:

13.1	As to whether the collision of the said vehicle caused by the negligence of the 1st Defendant and the said collision caused or contributed by the negligence of Varisila Talei Tukoro?

13.2	As to whether the Defendants liable for the damages to the Plaintiff?

13.3	As to whether if the Defendants are liable for damages as to whether Third Party is liable to pay such damages?

13.4	Is the claim statute barred by Section 4 of the Limitation Act?

13.5	As to whether Section 11(2) of the Motor Vehicle Third Party Act applicable and the notice under the said provision was given within the time period?

13.6	As to whether notice under Section 11(2) is a condition of liability for the Third Party?

Laisani Naseubuli

14.	The Plaintiff's counsel called Laisani Naseubuli mother of the deceased child as a witness who gave evidence, she in her evidence stated: (Evidence given in Fijian language and translated by the clerk)

14.1	Incident occurred on 18th October 2006. She proceeded the birth certificate marked P1 and stated the deceased child was born on 30th November 2002 (P1).

14.2	Accident occurred at 4.30pm in afternoon. Her son and daughter (victim) were playing in the play ground and Kelepi the elder son kicked the ball to the other side of the road. Kelepi ran after the ball and sister had followed him. By the time the accident happened, daughter was in the middle of the road. The motor vehicle was coming down the hill. It was travelling from Seaqaqa to Navidanice. By the sound, she thought the van was travelling fast. (witness show the distance where the son was standing around 100 meters from the playground) She stated vehicle was running fast, horn was not tooted and she saw the daughter was hit by the van and daughter died and post mortem report tendered marked P2. (The Post Mortem Report states cause or condition directly leading to death as Multiple Fracture of Skull with brain damage).

14.3	The Third Party objected for tendering of the Police Sketch Plans through this witness and police sketch plans were not tendered in the proceedings even through any other witness.

14.4	Witness stated where the accident took place the road was clear.

14.5	Witness tendered the letter of Administration granted (No. 46469) to the Plaintiff marked as P3.

14.6	The witness further stated deceased was the first daughter in the family and she was shocked to lose her daughter. If she was alive now, she would have been in Class 4. They spent funeral expenses around $4,000.00 as stated in the Statement of Claim including 100 nights mourning period and claims other damages detailed in the Statement of Claim.

14.7	In reply to the cross-examination by the 2nd Defendant's counsel witness stated:

(a)	She was living by the side of the Road where the accident had occurred. Her husband and some other people were having tea in the garden and the children were playing around 3 to 4 meters away. She showed the distance to the road was from the witness box to the main road which could be about 50 meters. Playground was from the witness box to the corridor of the court house. In my view, around 10 meters. When the collision occurred the son was on the other side of the road and had advised the sister not to cross. Witness admitted that she had a responsibility to prevent the child from crossing the road and she didn't supervise the child.

(b)	In reply to cross examination by the 3rd party, Plaintiff stated at the time they were having the tea, they were sitting in a row and facing the road and they could see the road there was no trees blocking the view, no gate or fence was there. They couldn't take any evasive action because everything happened suddenly. She should have been around 100 meters away (from court house to BSP Bank) the van was coming when the child crossed the road. Witness was not aware whether the Police charged the driver. The witness stated the van was travelling fast. Burial took place after 6 days of the death. No re-examination by the Plaintiff's counsel and closed the Plaintiff's case.

Ali Imdad

15.	The second Defendant Ali Imdad gave evidence and stated:

15.1	When the incident took place he was the registered owner of the vehicle number DP677 and the 1st Defendant was the driver. The vehicle had valid fitness and a 3rd Party policy in force (tendered the Policy No. 2426603 marked 2P1). The Insurance was obtained from one Vinod agent for the Sun Insurance Company. He was informed of the accident by the driver. He immediately went to the deceased child's home at that time she was dead. He inquired about groceries needed or any funeral expenses and he is willing to give. Police came to the place where the accident took place and the witness informed on the same day about the accident to Vinod of Sun Insurance Company over the telephone. The following day, witness met Mr Vinod personally and informed him about the accident. Vinod told the witness if any papers were given to him to handover to him. When the witness received the summons on the same day summons was given to Vinod and he photocopied and informed the witness not to worry the Insurance Company will pay on 3rd Party insurance. However, Insurance Company didn't pay or gave a lawyer to defend him by letter dated 8th of December 2009 tendered marked 2D2, it was informed that the solicitors for the Plaintiff failed to serve the writ of summons within the required time frame and as such as the insurer, Third Party Sun Insurance will not be required to satisfy any Judgment obtained thereafter and refused to defend the witness and the 1st Defendant driver and they had to seek their own legal advice.

16.	Witness was cross examined by the counsel for the 3rd Party and the 2nd Defendant stated:

16.1	It was stated by the witness Vinod was the Sun Insurance Company representative. He was not aware that Vinod was the Agent for Sun Insurance and Third Party Insurance Premium was paid to him. In Labasa he acted as the Sun Insurance Company. Police didn't charge the driver since the deceased child was at fault. For the letter marked 2D2, his counsel replied Mr Sen, counsel for the 2nd Defendant by the letter dated 26th November 2009 and admitted the letter was sent to Sun Insurance Suva Office. This was after the court action was commenced. Writ of summons was received by him on 3rd November 2009 at 9.15am and his lawyer sent the letter on 26/11/2009. He doesn't know when the letter by Mr Sen was received by the 3rd Party Company.

16.2	The 2nd Defendant stated under cross-examination that when he received the Writ of Summons on 3rd November 2009, he went and gave the papers to Mr Adrian Ram (who appeared as the counsel for the 3rd Party) and answering the question raised by this court, he the 2nd Defendant stated on 3rd November 2009 when he handed the papers to him, he informed Mr Ram that Insurance was with the Sun Insurance Company the 3rd Party. He stated that he consulted Mr Ram to get advice.

16.3	The 2nd Defendant stated in his re-examination he was informed by Mr Ram of Gibson and Company Solicitors that he was acting for Sun Insurance when he returned the papers on 17th November 2009. Mr Ram stated that (at the time of returning the papers) that my vehicle was not in the system of Sun Insurance. Mr Ram had told the witness, summons was not received at the correct time. Mr Vinod had never told the witness that he will not deal with him.

Thomas Naua

17.	Thomas Naua Claims Manager of the 3rd Party Sun Insurance Company Limited gave evidence and stated:

17.1	He admitted Vinod was the Insurance Agent of the Company in Labasa and Insurance Policy on DP677 was issued by the Company for the period 21/9/2006 to 7/10/2007 (2D1). The company came to know about the accident when the summons was received. They were not aware of the accident at the time of the accident occurred. Driver of the Insurer didn't inform the company. Writ of summons received by the company. The document, the following endorsements were there:

(a)	27th October 2009 was cut of and it reads as 16th October 2009. (High Court Stamp);

(b)	Sun Insurance seal reads – 

Received from Krishna – Kohli Singh
Received by – Rupert J Boultan
Dated Received: 29/10/09.

The writ would have been received within 7 days from the date of issuance i.e. on 23rd October 2009 in fact it was received on 29/10/2009. Writ of Summons was marked as 3D1. The company wrote a letter on 10/11/2011 to the Solicitor of the Plaintiff stating that the company does not have a Third Party Policy (3D2). The following day 11th November 2009, the 3rd Party Company wrote to the Solicitor for the Plaintiff confirming they held a Third Party Policy covering the said vehicle at the time of the accident. They also informed since the Writ of Summons was served after seven days, the Sun Insurance (3D3) is not required to satisfy the Judgment.

17.2	Witness tendered letter dated 26th November 2009 by Maqbool and Company Solicitors enclosing the Writ of Summons and stated unless the company indemnify the Defendants, the Defendant will compelled to join the Third Party to the proceedings (3D4). The witness stated the Third Party replied the Solicitors by letter dated 8th December 2009 informed the 2nd Defendant Writ was not served during the required time period and as 3rd Party Insurer will not be required to satisfy any Judgment obtained thereafter. (3D5) copy of the same letter was sent to Maqbool and Company with a covering letter dated 8th December 2009 (marked as 3D6).

17.3	In cross examination by the Plaintiff's counsel and 2nd Defendant's counsel, the witness stated:

(a)	When the letter was sent on 10th November 2009 denying there was a policy it was not properly checked. Later it was corrected. Vinod was the Insurance agent and he cannot assure that he was the company.

(b)	The witness stated the 2nd Defendant would have gone to Vinod and he would have issued the policy on behalf of the Company. Policy doesn't say all communication to be addressed to head office, however, it carries head office address. Third Party Policy was issued to the 2nd Defendant by Vinod Agent of the Third Party. The second Defendant came to know about the Writ when he received the Writ of Summons. Witness admitted the 2nd Defendant didn't know about the claim until he received Writ of Summons. Witness further stated that the 2nd Defendant won't be indemnified since the Plaintiff did not inform the Third Party within the time period stipulated.

Analysis and Conclusion

18.	The court had to first decide whether the 1st Defendant and 2nd Defendants are liable for damages, if so as to whether the Third Party is liable to indemnify the Defendants for such damages.

18.1	The 2nd Defendant denied that the accident was as a result of negligence of the 1st Defendant. The second Defendant contention was that the Plaintiff failed to establish negligence on balance of probability specifically the second Defendant submitted that the deceased child was unsupervised. The question arises in such a situation of the deceased child was not supervised whether the Defendants do not owe the Duty of Care. My answer to the question is NO. Duty of care by the 1st Defendant was not fulfilled. The motor vehicle no. DP677 was about 100 meters away when the child was trying to cross the road. There was no evidence to the contrary and the witness confidently gave evidence. Evidence before court was even the 1st Defendant failed to toot the horn. The vehicle was passing through a village. The 1st Defendant should have expressed care when he was driving the vehicle. I hold that the 1st Defendant owned a reasonable expectation and duty of care to the victim in this particular situation. He cannot hide under the pretext that child was not supervised, or he came at a lower speed. I conclude that the 1st Defendant acted negligently and caused death of the child. Principle of Res ipsa loquitur is well established in other words there was a prima facie evidence of negligence of the 1st Defendant. His omission arose from a failure to take proper care for the deceased child's safety.

18.2	It is also my considered conclusion that the 1st Defendant breached the duty of care. He had not performed according to particular standard of care. The mother of the deceased child stated that the motor vehicle was stopped 10 to 12 feet after the vehicle struck the child. Her injuries were on the skull and the brain. It shows that the vehicle was coming at a speed when the child was knocked down if it was at a very lower speed and if the 1st Defendant applied the brakes he would have avoided the death of the child. The evidence by the deceased mother was uncontested and no evidence led to the contrary. It is also my view and conclusion the 1st Defendant driving within the limit does not mean that he was not negligent. The circumstance of this case the vehicle was passing through a village and the driver was driving the vehicle within the speed limit, however he failed to avoid the accident. He would, if he had exercised caution because he had the knowledge children and people were moving around on a public road when it was passing through a village. No evidence led by the Defendants that the 1st Defendant had taken any precaution to avoid the collision. As such I conclude the relevant conduct or inaction of the 1st Defendant breached duty of care which caused the death of the child. I don't concede to the submission by the 3rd Party, that vehicle was travelling slowly and within the speed limit. If so, the vehicle would have stopped before the child was struck. It proves that the 1st Defendant breached duty of care owed by him to the pedestrian. There is no evidence that the police refused to prosecute as claimed by the Third Party and I disagree with the submissions and conclude negligence was established. Having concluded there was evidence to establish the negligence on the part of the 1st Defendant there is no necessity to consider the case of Satis Chand v. Ram Dutt and Labasa Town Council/Supreme Court Civil Appeal No. CBV0005 of 2007S.

18.3	The Third Party made submissions that the 2nd Defendant denied the allegation of negligence and he alleged that the Plaintiff was person at fault. This argument fails in absence of any evidence given by the 2nd Defendant to this effect, and no evidence was led by any of the Defendants to that effect in this proceedings.

19.	Having concluded that the 1st Defendant was negligent and caused the death of the child, 1st and 2nd Defendants are liable for damages. The Plaintiff had claimed the damages in pursuant to compensation to Relatives Act (Cap 29).

19.1	The Letters of Administration was granted to the Plaintiff by the High Court on 20th June 2007 and complied with Section 5 of the Act (P3) at the time of making the claim.

19.2	Throughout these proceedings the 1st Defendant was not represented. The Registered owner of the vehicle was the 2nd Defendant. In the Statement of Defence, the 2nd Defendant denied at all material times the 1st Defendant was driving the motor vehicle registered no. DP677 as the servant and or agent of the Second Defendant. Further, he denied he is vicariously liable for the acts or omissions of the 1st Defendant. The 2nd Defendant gave evidence in this case and he had not established or adduced any evidence that the 1st Defendant was driving the vehicle without his authority. In fact, he stated in his evidence that when the accident occurred the 1st Defendant came to his house and informed about the accident. There was no denial that the vehicle was driven without his authority. In fact at the pre-trial conference it was an agreed fact the 1st Defendant on the day of the accident i.e. 18th October 2006 drove the vehicle DP677 as the servant and agent of the 2nd Defendant. As such it is well established that the First Defendant drove the vehicle no. DP677 as a servant or agent of the 2nd Defendant. In the circumstance, the Second Defendant is vicariously liable for negligence which caused the death of the child. The 1st Defendant was acting on the owner's behalf. I quote statement made by House of Lords in the case of Morgan's v. Launchbury and Others [1972] 2All ER 606 (quoted in Fiji case Ram Charan and Others v. The Public Trustee in FLR [1973] 19 p. 150:

"In order to fix liability on the owner of a car for the negligence of its driver, it was necessary to show either that the driver was the owner's servant or agent that, at the material time, the driver was acting on the owner's behalf as his agent. To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner's request; express or implied, or on his instructions, and was doing so in performance of the task or duty thereby delegated to him by the owners. ………".

As I stated there was no evidence to substantiate that 1st Defendant drove the vehicle without authority and no evidence adduced for the denial of vicarious liability and the submissions of the Third Party fails and I conclude that the 2nd Defendant is vicariously liable for the negligence of the First Defendant. I further conclude that the negligence in breach of duty of care is established to the satisfaction of the court, in balance of probability and the 1st and 2nd Defendants are liable to pay damages.

20.	Having concluded the 1st and 2nd Defendants are liable for the negligence and liable to pay damages to the Plaintiff, it is now to arrive at a conclusion as to whether the Defendants have the right to be indemnified by the Third Party Sun Insurance Company under the Insurance Policy No. 2426603 (2D1).

20.1	The witness for the 3rd Party stated that Vinod was acting as the agent of the Defendant; any notice with regard to the Policy should be given to the company at its Head Office in Suva.

20.2	I have perused the Policy (2D1) and observed the following (The Policy was not contested by the Third Party):

(i)	The policy was issued on 21/9/2006;
(ii)	The payment was made on 21/9/2006;
(iii)	Policy was in force at the time of the accident.

The 2nd Defendant stated in his evidence the only person he dealt with in regard to his insurance was Mr Vinod in Labasa. Sun Insurance Company didn't have an office in Labasa, all its dealings were done by Vinod and Policy was given to him by Vinod. The issuance of the insurance was done on the same day and there was no evidence before this Court, that the Policy was issued and delivered from Sun Insurance Company in Suva. The Third Party witness admitted in his evidence that the insurance was issued by Vinod. The insurance premium was collected by him. The Sun Insurance stamp was affixed in the Policy. It is evident as far as the Labasa customers are concerned; Vinod was acting and carrying full authority for Sun Insurance in all aspects with regard issuance of the Insurance. The evidence of the 2nd Defendant establish that the people in Labasa were only dealing with Vinod on behalf of Sun Insurance and the witness for the Third Party never denied neither stated Sun Insurance had any direct operation in Labasa which corroborate the evidence of the 2nd Defendant. The 1st Defendant in his evidence stated that he informed Mr Vinod about the accident on the same day. The witness was very firm when he gave his evidence and I accept his credibility. Although Vinod was the person who acted for Sun Insurance he was not called as a witness to rebut the evidence of the 2nd Defendant. Further, it was observed in the Insurance Policy that it did not state whom to inform with regard to an accident. See Section 16 of the Motor Vehicle (Third Party Insurance) Act; Section 16(1) states:

"On the happening of any accident affecting a motor vehicle and resulting in the death of or personal injury to any person, it shall be the duty of the owner forthwith after such accident or, if the owner was not using the motor vehicle at the time of the accident, it shall be the duty of the person who was using the vehicle, forthwith after the accident, and of the owner, forthwith after he first becomes aware of the accident, to notify the Insurance Company of the fact of such accident, with particulars as to the date, nature and circumstances thereof, and thereafter to give all such other information and to take all such steps as the Insurance Company reasonably require in relation thereto, whether or not any claims have actually been made against the owner or such other person on account of such accident".

I conclude by informing the fully authorized Agent of the Third Party (by telephone and personally) the 2nd Defendant had fulfilled his obligation conferred on him by Section 16(1) of the Motor Vehicle (Third Party Insurance Act).

20.3	It is my considered conclusion that the 2nd Defendant cannot take any responsibility of not serving the Writ of Summons since it was the responsibility of the Plaintiff as already decided by the Hon. Justice:Hettiarachchi in this case. Having concluded, the proper notice was given.

Observations

20.4	It was stated that the 2nd Defendant did not advise the Third Party of the issue of the Writ in this action at any time prior to his solicitor's letter of 26th November 2009. This was explained by the 2nd Defendant in his evidence stating in the cross examination. I reproduce same:

"Q.	When did you receive the summons?
A.	I received the summons on 3rd November 2009.
Q.	Your lawyer sent the letter on 26th November 2009.
A.	Yes
Q.	The Insurer received the letter on 2nd December 2009?
A.	I don't know. Papers were handed to Mr Adrian Ram (The counsel/solicitor for the 3rd Party who crossed examined the witness) and he kept the papers for 2 weeks and he wanted to contact third party (Insurance company) and vehicle was not in the system of their Head Office. When I collected the 3rd Party papers from Mr Adrian Ram he informed me he act for the Sun Insurance Company and he cannot defend my case. I did not know Mr Ram was the Insurance Company lawyer. I went to see him to get advice that was reason which took time.
Court: Q.	How long papers were with Mr Ram?
A.	On 3/11/2009 and got back the papers on 17th. I told him the Insurance was with Sun Insurance Company on 3rd November 2009".

This is ample evidence to establish even if there was a delay in informing the Insurance Company by the 2nd Defendant it was caused because of Mr Ram. Once he got back the papers from Mr Ram on 17th November 2009 he had consulted another solicitor and letter was sent on 26th November 2009. The witness was cross examined by Mr Ram and the 2nd Defendant divulged all the above information without any reservation and very firmly. I do not have any hesitation to accept 2nd Defendant as a credible witness. It is rather surprising and dismay that a senior counsel accepted the papers from a client very well knowing he was acting for the Sun Insurance Company, there was prima facie case of conflict of interest. The question arises how ethical to accept the papers by the counsel knowingly that he had conflict of interest. Even if there was a delay until 26th November 2009, it infers the Company's counsel knew about the case on 3rd November 2009 the day Writ of Summons was served on the 2nd Defendant. However, my findings in the preceding paragraph 20.2, I concluded that the notice given to Vinod satisfies the requirement under Section 16(1) and there was no necessity for the Second Defendant to give further Notice to the Third Party Insurance Company.

20.5	In the said circumstance, the Third Party Sun Insurance Company's liability to indemnify the 2nd Defendant is well established.

21.	The Third Party submitted in pursuant to Section 11(2) of Motor Vehicle (3rd Party Insurance Act) the Third Party was not given Notice as required.

21.1.	This said section 11 reads as follows:

"11(1) If, after a Certificate of Insurance has been delivered under the provisions of subsection (4) of Section 6 to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by the policy under the provisions of paragraph (b) of Section 6, being a liability covered by the policy, is obtained against any person insured by the policy then not withstanding that the insurance company may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurance company shall subject to provisions of this section, pay to the persons entitled to the benefit of such judgment any sum payable there under in respect of the liability, including any amount payable in respect of costs and any sum payable by virtue of any written law in respect of interest on that sum.

11(2) No sum shall be payable by an approved insurance company under the Provisions of Subsection (1):

(a)	In respect of any Judgment unless before, or with 7 days after the commencement of the proceedings in which the judgment was given, the insurance company has notice of the proceedings; or

(b)	In respect of any judgment so long as execution thereon is pending an appeal……….."

21.2	It is my duty to analyze how the Section 11(2) Notice is relevant in this case. By letter dated 8th of December 2009 (2D2), the claims consultant had informed the Second Defendant that the Plaintiff's solicitors failed to serve the summons on the Third Party within the required period of timeframe and the Third Party is not required to satisfy any judgment obtained thereafter. Admittedly, Writ of Summons filed on 16th October 2009 (3D1) was received by the Third Party on 29/10/2009. The Third Party's counsel argued that the Writ of Summons was not served within 7 days as required by Section (11) 2 and cited several authorities relation to the issue. In this case the circumstances are different. Writ of Summons was filed against the 1st and Second Defendants and Claim was made against them. The Third Party denied the claim by its letter dated 8th December 2009. At this stage there was no Writ of Summons filed against the Third Party. In such event there was no requirement by the Plaintiff to comply with Section 11(2) of the Motor Vehicle (Third Party Insurance) Act. The letter dated 8th December 2009 was issued to the 2nd Defendant. He filed ex-parte Notice of Motion to add the 3rd Party to the proceedings claiming inter alia that 2nd Defendant is entitled to be indemnified by the Third Party.

21.3	The Learned Master made Order to issue Third Party Notice to Sun Insurance Company. Third Party filed a Notice of Motion dated 27th August 2011 and sought the following Orders:

(a)	Order granted leave to issue Third Party proceedings be set-aside;
(b)	Third Party proceedings and summons issued be struck out;
(c)	Order for costs. 

21.4	Having heard the parties, Ruling was made by Hon. Justice Hettiarachchi as follows:

"18. 	Upon consideration of the above, I see no reason to intervene with the ex-parte order made by the Master Labasa.

19. 	Therefore, I dismiss the 3rd Party's motion. Action shall take its normal cause.

20. 	Costs shall be in the cause".

21.5	Thereafter the Third Party filed its Statement of Defence on 27th July 2012.

21.6	It is evident that Third Party was added to these proceedings on the application made by the 2nd Defendant. Writ of Summons was filed against the 1st and 2nd Defendants by the Plaintiff. Therefore, my considered conclusion is that there was no requirement arisen for the Plaintiff to issue Writ of Summons on the Third Party under Section 11(2) of the Act and the Third Party was added on the application made by the 2nd Defendant. As such submission made by the counsel for the Third Party on the requirement under Section 11(2) is of no avail and need not to be considered by this court and conclude that Third Party had no basis to seek cover under Section 11(2) to avoid the liability to indemnify the Defendant's liability for damages.

22.	It is also submitted by the counsel for the 3nd Party that the accident took place on 18th October 2006 and Writ of Summons was served on the 3rd Party on 29th October 2009 and stated Writ of Summons is statute barred by the provisions of Section 4 of the Limitation Act. This position is incorrect. Limitation period was to expire on 17th October 2009 and the Writ of Summons filed on 16th October 2009 within the time period. The 3rd Party fails in its submission.

Further Observations

23.	The 3rd Party's counsel submitted that the decision in this case will be test case having far reaching impact. He also submitted that he had been unable to locate a similar case where a similar issue had arisen and the decision in this case will have far reaching impact on the whole of the Insurance Industry. What does this mean if Judgment is given against the Third Party Insurance industry would be affected? Is he suggesting to protect the industry or to do justice? In my view the court is obliged to do justice in fairness to all parties after considering the evidence and law. I agree it is a test case; no authority is available on the issue. My conclusions are on merits of the case and to do justice. Further my conclusions are not to correct deficiencies of the Act; which is a function of the Legislature.

24.	I would now summarise my conclusions:

(i)	The 1st Defendant negligently caused the death of the child and the second defendant is vicariously liable for the negligence and the Defendants are liable to pay damages to the Plaintiff;

(ii)	The 3rd Party is liable to indemnify the damages ordered against the Defendants.

25.	Accordingly, I make the following Orders:

(a)	The Defendants are Ordered to pay the damages claimed by the Plaintiff in the Statement of Claim and I direct the Learned Master of this Court to assess the damages; 

(b)	The Third Party is Ordered to indemnify the damages ordered under paragraph (a); 

(c)	Costs to be assessed.

Delivered at Labasa on this 18th day of June, 2013.

………………………………….
C. KOTIGALAGE
JUDGE