(HIGH COURT)

AMNA EL TAYEB AND OTHERS v. EL SIDDIG ABBAS AND OTHERS

HC-EX-86-1959

 Principles

·  Civil Procedue— of judgment debtor—Execution cannot be ordered against insurer not joined as party in action from which execution arises—Separate action must be brought against insurer

·  Insurance---road traffic insurance—Liability of insurer—Execution cannot be ordered against Insurer not joined as party in original action--Separate action must be brought against insurer

Where in an action arising out of a road traffic accident, the insurer of the defendant was not joined as co-defendant, and judgment was given for the plaintiff, execution of that judgment cannot be ordered against the insurer even although it appears that the insurer is liable to indemnify the judgment debtor. The proper course is for the insurer to be joined as co-defendant in the original action under the statutory provisions providing therefor, but where this has not been done, the rule that execution of a decree can only be brought against a defendant against whom the decree was made cannot be infringed. In such a case the judgment creditor may either proceed with execution against the judgment debtor, or bring a new action against the insurer, on the basis of the judgment obtained, under Road Traffic Ordinance 1942. S. 55. Similarly, the judgment debtor, if forced to pay under execution. may bring a new action against the insurer on his contract of indemnity with the insurer.

Where in an action arising out of a road traffic accident, the insurer of the defendant was not joined as co-defendant, and judgment was given for the plaintiff, execution of that judgment cannot be ordered against the insurer even although it appears that the insurer is liable to indemnify the judgment debtor. The proper course is for the insurer to be joined as co-defendant in the original action under the statutory provisions providing therefor, but where this has not been done, the rule that execution of a decree can only be brought against a defendant against whom the decree was made cannot be infringed. In such a case the judgment creditor may either proceed with execution against the judgment debtor, or bring a new action against the insurer, on the basis of the judgment obtained, under Road Traffic Ordinance 1942. S. 55. Similarly, the judgment debtor, if forced to pay under execution. may bring a new action against the insurer on his contract of indemnity with the insurer.

Judgment

T. Cotran D,J. January 25 1960:—The plaintiffs (and decree-holders) in HC-CS-548-1956 obtained judgment against the two defendants (and judgment debtors) for the sum of £S.1,338,510m/ms The cause of action in the civil suit was a claim for damages for the death  of plaintiffs’ supporter as a result of a motor accident. The two defendants are the owner and the driver of the vehicle respectively. The vehicle was insured by the sudan Motor Insurance Co. during the proceedings in the civil suit the defendants sought to join the insurance company as third defendants on the ground that if judgment was obtained against them they have a right of indemnity against the insurers. The court ordered the joinder of the insurance company as co-defendants. The representative of the insurance company appeared and objected on the ground that there was no “privity of contract.” The trial judge accepted the argument and struck them off. In my opinion, the common law doctrine of privity has been modified on occasions by statute, such as, for example, by Road Traffic Ordinance 1942, S.55 Quite apart from the provisions of Road Traffic Ordinance, the insurers could be joined by applying the rules of civil procedure relating to joinder of third parties. In the Sudan this is covered by Civil Justice Ordinance 1929, Ord. VII, r. 8 (i) (b) of the First Schedule, which provides that the court may at any time order that any plaintiff be made defendant or that any defendant be made a plaintiff, and that any person whose presence is desirable for a just decision of the suit be made a party to the suit either as plaintiff or defendant.”

It is submitted that in some cases justice and convenience demand the joining of the insurers. If a judgment is passed against the assured, and the insurers have no ground to avoid the contract, then execution will be allowed against the insurers. If, on the other hand, they want to avoid liability under the policy, the court in the same case. determines this question and passes the appropriate judgment. The insurers have another course open to them. They may refuse to defend the action at all and separately in an action to obtain  a declaration that the policy is void under the provisions of Road Traffic Ordinance, s.55

What had happened in this case is this: the plaintiffs and decree holders  proceed to execute against the defendants and judgment debtors. The judgment debtors said, in execution that they have a right of indemnity from the insurers. They asked the court for an order of execution against the insurance company, who were not a party in the civil suit, and who now contest their liability under the policy on the ground that some of the terms of the policy were not complied  with. I am afraid I cannot do that I cannot allow the execution of a decree on a party who were not judgment debtors in a civil suit, The decree-holders in this execution, having obtained judgment against the assured and the driver of the vehicle which caused the accident, can proceed by way of action directly against insurers under Road Traffic Ordinance, s.55 The plaintiffs also having judgment against the assured and the driver of the vehicle have a right to sue the insurers directly, and execute on them. The assured and the driver (provided the policy purports to cover him) may directly, if judgment has been obtained against them, sue the insurers on the policy of insurance for an indemnity. But they cannot do so in execution.. They just raise against the insurance company a civil suit In the meantime the decree-holders are at liberty to execute against the judgment debtors I am sorry that the judgment debtors find that, despite the fact they are insured, they now find themselves proceeded against, but surely it is not too late if they think they have a right to sue the isurers on their contract of indemnity.