Ceylon Motor Insurance Association v Thambugala 1953
- Reported: [1953] A.C 584; [1953] 3 W.L.R [1953] 2 ALL E.R 870, PC (CEY)
- Year: 1953
- Court: Privy Council
FACTS:-
On 1 September 1945, the Claimant, P P Thambugala, was knocked down and injured in a street in Columbo by a motor car owned by one K S Perera, the First Defendant, while it was being driven by his driver in the course of and within the scope of his employment. At that date Perera was insured by the the Second Defendants, the Ceylon Motor Insurance Association Ltd against third- party risks as required by the Motor Car Ordinace (No 45 of 1938), section 128.
On 21 May 1946, the Claimant’s protractors wrote a letter to the Second Defendants claiming Rs 15,000 as damages for the accident, and saying that, if the claim was not settled before 31 may 1946, an action would be begun against Perera s the owner of the car. On 23 May 1946, the Second Defendants replied that Perera had not reported the accident to them and advised the Claimant to communicate directly with Perera.
On 10 June 1946, without any further communication to the Second Defendant, the Claimant instituted proceedings in the District Court of Colombo against Perera for Rs 15,000 damages for personal injuries, and on 25 June 1948, he was awarded Rs 10,000 damages. On 11 November 1949, an appeal by Perera to the Supreme Court of Ceylon was dismissed.
The Second Defendants were then called on to pay the Rs 10,000 but they refused to do so and on 5 April 1950 the Claimant instituted proceedings against them in the District Court of Colombo. The Second Defendants claimed that a “notice of action”, as required by the Motor Car Ordinance, section 134 (a) had not been given to them. On 24 October 1950, the District Court held that the letter of 21 may 1946, sent by the Claimant’s proctors to the Second Defendants was a sufficient notice under section 134 (a), and that, therefore, the Claimants were liable to pay the Claimant Rs 13,881.22, being the amount due when he instituted the proceedings on 5 April 1950.
The Second Defendant first appealed this decision to the Supreme Court of Ceylon, who affirmed the decision of the District Court. They then appealed that decision before the Privy Council in front of Lord Porter, Lord Tucker, Lord Asquith of Bishopstone, The Chief Justice of Canada (Rt Hon T Rinfret) and Mr L M D De Silva.
HELD:-
Mr L M D De Silva determined that there was only one question that needs to be decided by their Lordships, namely, whether the following letter, dated 21 May 1946, was sufficient notice of action under section 134 of the Motor car Ordinance;
“We are instructed by Mr. P. P. Thambugala… to file an action for the recovery of Rs 15,000 against Mr. Perera… being damages sustained by our client as a result of the above car knocking down our client on Sept. 1, 1945, by reason of the negligent and careless driving on the part of his driver. We are given to understand that the above car has been insured with your company. Our client is still under treatment and unless our client’s claim is settled on or before the 31st instant, we are instructed to file action against the owner of the car”
Section 134 is to the following effect;
“No sum shall be payable by an insurer under provisions of section 133-(a) in respect of any decree, unless before or within seven days after the commencement of the action in which the decree was entered, notice of the action had been given to the insurer by a party to the action; or (b) in respect of any decree, so long as execution thereof is stayed pending appeal”
Therefore it will be seen that no sum is payable by the Second Defendant unless the Claimant has given notice of action provided by section 134.
A number of authorities were presented to their Lordships, including Weldrich v Essex & Suffolk Equitable Insurance 83 Llyod LR 102, however thought it was only necessary to refer to one of these cases, that being Lewis v Smith (1815), Holt, NP 27, 171 ER 147. In that case an Act of Parliament incorporating the West India Dock Company was under consideration. It enacted that no action could be bought against the company unless fourteen days’ notice of such action had been given. A letter which the plaintiffs in that case relied as giving notice bears in some resemblance to the letter under consideration by their Lordships, but was thought by Sir Vicary Gibbs C J (Holt NP 29) to leave “it open to conjecture what legal proceedings wer ein contemplation… and against whom they were to be bought “. He held that the letter under consideration in that case was not a proper notice of action under the Act. De Silva determined that the letter sent by the Claimant to the Second Defendant in the present case said that the proceedings were to be for the recovery of damages and that they were to be brought against Perera, the owner of the car. It was, consequently, free from the defects referred to by Sir Vicary Gibbs CJ.
Further arguments presented by the Second Defendant include that the letter should have contained the name of the court in which it was proposed to file action. In addition, an action cannot be specified without reference to its number and to the name of the court in which it is filed. This was not accepted by their Lordships. It is to be noticed that section 134 contemplates the possibility of giving notice before the action is filed. Another argument put forward by the Second Defendant was that the words “unless our client’s claim is settled” reduced the notice to one which was conditional and insufficient for the purposes of section 134. Again, the Lordships rejected this.
Instead, they agreed with the view of the Supreme Court that the words must be taken to mean “settled by you”, namely, the Second Defendant Company. A notice of action without such words necessarily carries with it the implication that action will be filed only if the claim is not settled, and the addition of the express statement does not later its meaning or its effect. The notice which has been sent in this case sets ot the name and address of the proposed plaintiff the name of the owner and number of the car which caused injuries, the date of the accident, and the sum which was being claimed form the owner as damages.
Their Lordships concluded that the existence of these elements, taken together, constitute a sufficient notice of action under section 134 (a) and that there are no element in it which in any way reduce it to something less than a sufficient notice.
They dismissed the appeal
Lord Porter, Lord Tucker, Lord Asquith of Bishopstone, The Chief Justice of Canada (Rt Hon T Rinfret) agreed.
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