IN THE COURT OF APPEAL BETWEEN AND. THE PRESIDENTIAL INSURANCE COMPANY LIMITED Defendant/ Respondent (BY COUNTERCLAIM)

Transcription

1 TRINIDAD AND TOBAGO IN THE COURT OF APPEAL C.A. 101 of 2011 Claim No. CV BETWEEN SHIROON MOHAMMED SAIHEED MOHAMMED NAIM MOHAMMED Appellants/ Claimants AND THE PRESIDENTIAL INSURANCE COMPANY LIMITED Defendant/ Respondent (BY COUNTERCLAIM) THE PRESIDENTIAL INSURANCE COMPANY LIMITED Ancillary Claimant AND SHIROON MOHAMMED SAIHEED MOHAMMED NAIM MOHAMMED Ancillary Defendants AND KULDEEP SINGH KOCHER RAVI RAMPERSAD Ancillary Defendants Page 1 of 12

2 PANEL: P. WEEKES, J A A. SOO HON, J A R. NARINE, J A Appearances: Mr. L. Sanguinette for the Appellant Mr. A. Singh for the Respondent DATE DELIVERED: 28 th July, I have read the judgment of Narine J.A. and agree with it. I too, agree. P. Weekes Justice of Appeal. A. Soo Hon Justice of Appeal. JUDGMENT DELIVERED BY NARINE J.A. 1. By Notice filed on 28 th October, 2010 the appellants/claimants made an application to the trial judge for an order striking out the Amended Defence and Counterclaim and entering judgment for the appellants/claimants. By notice filed on 4 th November 2010, the respondent/defendant applied to the Judge for leave to reamend its Defence and Counterclaim. On 20 th May, 2011 the judge dismissed the appellants/claimants application and granted permission to the respondent/ Page 2 of 12

3 defendant to re-amend its Defence and Counterclaim. The appellants have appealed that order, and the respondent has filed a notice to strike out the appellants Notice of Appeal. BACKGROUND: 2. On 16 th June 2004, a maxi taxi owned by one Kuldeep Kocher ran off the road and crashed into a building owned by the first appellant, in which the second and third appellants carried on a business. The appellants brought an action in 2004 and obtained a judgment against Kuldeep Kocher who was insured with the respondent. On 31 st October 2005, the damages were assessed before a Master. 3. On 21 st February 2006, the appellants brought proceedings (No. CV ) against the respondent to enforce the judgment under section 10 of the Motor Vehicles Insurance (Third Party Risks) Chap. 48:51. On 19 th April 2006, the respondent filed its Defence and Counterclaim, contending that at the time of the accident the vehicle was being driven by an unauthorized driver, and that the insured and Ravi Rampersad (the driver) had conspired to have the respondent pay the judgment in the 2004 action, which it was not legally liable to pay. 4. On 22 nd June 2006, the Respondent was granted leave by the court to amend the Defence and Counterclaim to correct a typographical error. The application to strike out the Notice of Appeal 5. The appellants Notice of Appeal was filed on 27 th May, 2011, seven days after the oral decision of the Judge was delivered. The written reasons of the trial judge Page 3 of 12

4 were received in this court on 17 th June The appellants have stated in their written submissions filed on 15 th July 2011, that they obtained the written reasons on 30 th June The respondent contends that the appellants Notice of Procedural Appeal does not comply with Civil Proceedings Rules Part 64.4(1), in that it does not sufficiently identify the findings of fact and law that are being appealed, the grounds of appeal and the orders that are being sought. 7. Mr. Sanguinette responds that it was not possible to set out findings of fact and law, since the written reasons became available after the deadline had passed for filing the Notice of Appeal. The appellant has in fact set out grounds of appeal that the decision cannot be supported by the evidence and is contrary to law. He has asked for orders setting aside the orders of the judge and granting his application to strike out the Amended Defence and enter judgment for the appellants/claimants. 8. The respondent submits that the appellant cannot now seek leave to add to or amend his grounds of appeal, since Part 64.4(7) does not apply to procedural appeals. 9. Part 64.4(7) provides that an appellant may, except on a procedural appeal, amend his grounds of appeal once without permission at any time before 28 days have expired after receiving notice that the notes of evidence and judgment are available, or receiving a date of hearing for directions under Rule Part 64.4(8) provides that the appellant may not rely on any ground not mentioned in his notice of appeal without the permission of the court. It follows that the court Page 4 of 12

5 has a discretion to permit the appellant to enlarge or modify the grounds set out in the notice of appeal. 11. For these reasons, I find that there is no merit in the respondent s application to strike out the appellant s notice of procedural appeal. The respondent s application to re-amend the Defence and Counterclaim 12. In its written submissions filed on 15 th June 2011 the respondent states that the crux of the amendment was to allege fraud on the part of the appellants and the insured Kuldeep Kocher, and the driver Ravi Rampersad in reporting to the police that Ravi Rampersad was driving at the material time, and subsequently changing the report to state that the insured was driving. The amendment further seeks to plead the fact that Ravi Rampersad was in fact the driver, and that he was never issued with a Taxi Badge or a permit to operate a maxi taxi by the Licensing Department 13. A perusal of the amended Defence and Counterclaim however, shows that the alleged fraud was in fact pleaded in paragraph 3. What the re-amendment seeks to do for the first time is to introduce a new defence based on the fact that Ravi Rampersad was not licensed to drive the maxi taxi. 14. In order to obtain permission to re-amend its defence, the respondent needed to comply with Civil Proceeding Rules Part 10.6 which states: (1) The defendant may not rely on any allegation which he did not mention in his defence, but which he should Page 5 of 12

6 have mentioned there, unless the court gives him permission to do so. (2) The court may give the defendant such permission at a case management conference. (3) The court may not give the defendant such permission after a case management conference unless the defendant can satisfy the court that there has been a significant change in circumstances which became known after the date of the case management conference. 15. Under R 10.6(3), the respondent had to satisfy the court that there was a significant change in circumstances. It must be recalled that this accident took place in June As evident from the affidavit of Ms. Baiju, Attorney at Law for the respondent, filed on 4 th November, 2010 in support of the application, the respondent engaged in an investigation of the accident from as early as 26 th August, However, it was not until 9 th June 2010, that the respondent (through Ms. Baiju) wrote to the Transport Commissioner seeking information as to whether Ravi Rampersad was licensed to drive a maxi taxi. The information came to hand, according to Ms. Baiju on 30 th September, 2010 by letter dated 30 th August, 2010 from the Licensing Authority. The trial of the action in fact came up on 15 th June, 2010 and was adjourned to 12 th November, 2010 due to the unavailability of counsel. Page 6 of 12

7 16. The letter to the Transport Commissioner was written almost six years after the accident, more than five years after the first action against the insured (of which the respondent had notice) and more than four years after the s.10 proceedings were filed against the respondent. 17. It is to be noted that the judge did not make an express finding that the respondent had satisfied her that there had been a significant change in circumstances which became known after the date of the Case Management Conference pursuant to Civil Proceeding Rules R 10.6(3). The judge does, however, note in paragraph 14 of her reasons that she accepted the evidence of the respondent that the information relating to the alleged fraudulent conduct of the appellants only came to its attention after the first Case Management Conference. 18. It must be noted that the allegations of fraudulent conduct were in fact made in both the original Defence and Counterclaim and in the Amended Defence and Cournterclaim. What the respondent was seeking to introduce by way of defence was a new issue of an unlicensed driver. According to paragraph 3.3 of the original Defence, the respondent knew that Ravi Rampersad was the driver. 19. The issue that arises is, whether the receipt of information from the Licensing Authority more than six years after the accident, can be considered a significant change in circumstances, when that information was always available to the respondent upon request. 20. A similar situation arose in Great Northern Insurance Company Limited v. Denise Hannibal Civ. App. No. 238 of 2010 (unrep.) where the appellant was seeking to introduce for the first time, the identical issue of an unlicensed driver by Page 7 of 12

8 way of amendment to the Defence, some five years after the accident. Not surprisingly, the appeal was dismissed on the basis that the new information could not form a basis for a change in circumstances when the information could have been obtained by reasonable diligence of a reasonably prudent and responsible insurer. 21. In my view, the judge was plainly wrong in granting permission to re-amend the Amended Defence and Counterclaim. The evidence before her did not support a finding of a significant change in circumstances which is required for her to exercise her discretion in favour of granting permission to re-amend the Amended Defence and Counterclaim. The application to strike out the Amended Defence and Counterclaim. 22. For the appellant Mr. Sanguinette submitted: (1) That there were two issues in the Amended Defence, namely, the issue of an authorized driver, and an allegation of fraud. (2) That the appellants have satisfied the requirements of Section 10 (1) of the Motor Vehicles Insurance (Third Party Risks) Act Chap. 48:51 and are entitled to judgment against the respondent. Unauthorised Driver: 23. The policy of insurance was restricted to two named drives, namely, the insured Kuldeep Kocher and one Jagdesh Ramdial. At the material time, neither one of them was driving. The respondent pleaded in paragraph 6 of the Amended Page 8 of 12

9 Defence and Counterclaim that the policy of insurance was not in force in relation to the unauthorized driver, and so it could not be held liable to pay the judgment obtained against the insured. 24. In response, Mr. Sanguinette refers to section 4(7) of the Act, and the recent decision of this court in Presidential Insurance Company Ltd. v. Resha St. Hill and Ors. Civ. App. No. 51 of 2008, in which that section was interpreted. 25. Section 4(7) of the Act provides: Notwithstanding anything in any written law, rule of the Common Law, a person issuing a policy of insurance under this section shall be liable to indemnify the person insured or persons driving or using the vehicle or licensed trailer with the consent of the person insured specified in the policy in respect of any liability which the policy purports to cover in the case of those persons. 26. In Presidential Insurance Co. Ltd. v. Resha St. Hill, it was held that section 4(7) of the Act imposes liability on an insurer to satisfy a judgment obtained by a third party against the insured, where the driver was driving with the consent of the insured, although the driver was not named or specified in the policy as an unauthorized driver. In that case, as in this one, it was not disputed that the driver was driving with the consent of the insured. 27. Mr. Sanguinette also relies on section 4(A) of the Act which was introduced by amendment in Section 4(A) provides: Page 9 of 12

10 Notwithstanding any other law, the owner of a motor vehicle licensed to ply for hire and insured under this Act is deemed to be the employer of any person driving the motor vehicle at the time of an accident as a result of which a person has suffered death, bodily injury or damage to property unless it is shown that at the time of the accident that the vehicle was the subject of larceny. 28. Mr. Sanguinette submits that under this amendment the driver is deemed to be the employee of the owner of a vehicle licensed to ply for hire, thus disposing of any issue of agency or consent. The only exception provided by the new section 4 (A) is that the vehicle was stolen at the material time. Clearly, no such issue has been raised in this case. The issue of fraud: 29. The respondent has pleaded in the Amended Defence and Counterclaim that the insured fraudulently represented to it that he was driving the vehicle. It is also pleaded that the insured and the driver were part of a conspiracy to defraud the respondent by falsely reporting to officers at the Chaguanas Police Station that the insured was driving the maxi taxi at the material time, having made an earlier report that it was Ravi Rampersad who was driving the vehicle. 30. On this basis, the respondent counterclaimed for an order that that the proceedings in H.C.A. No of 2004 should be set aside for fraud and misrepresentation. Page 10 of 12

11 31. It is interesting to note that in the Statement of Claim in H.C.A. No of 2004, it is pleaded that the defendant (Kuldeep Kocher, the insured) was at all material times the owner of the vehicle, which was being driven by his servant and/or agent and/or employee. This was the basis on which judgment was taken up against the insured. There is no issue that the respondent received notice of those proceedings, and chose not to defend them. 32. However, by Summons filed on 17 th February 2005, the respondent applied to intervene in H.C.A. No of 2004, seeking an order to set aside the judgment on the ground of fraud and/or conspiracy between the appellants and their insured. The application however, was not pursued. 33. It was open to the respondent, as well, to seek a declaration under section 10(3) of the Act, that it was entitled to avoid the policy, on the ground of non-disclosure or misrepresentation. The respondent chose not to avail itself of this remedy. 34. In the premises, I agree with Mr. Sanguinette s submissions that the Amended Defence and Counterclaim does not disclose a defence, and ought to be struck out. In my view the appellants have satisfied the provisions of s. 10(1) of the Motor Vehicles Insurance (Third Party Risks) Act Ch , and are entitled to enforce their judgment against the respondent. DISPOSITION: 35. The appeal is allowed. The order of the judge made on 20 th May 2011, is set aside. There will be judgment for the appellants in terms of paragraphs 1, 2, 3, 4 and 5 of their claim filed on 21 st February The respondent will pay the Page 11 of 12

12 appellants costs of the appeal and the costs of the applications in the court below certified fit for Advocate Attorney. Dated the 28 th day of July, R. Narine Justice of Appeal. Page 12 of 12