Case No.:

(KHC-CS.433-1959)

Court:

The High Court

Issue No.:

1960

Principles

·  Civil practice and procedure—Joinder of parties—Civil Justice Ordinance, First Schedule, Order VII, r. 8—Joinder of insurance corn pony—Road Traffic Ordinance, SS. 55, 6o

The fact that plaintiff in an action for personal injuries arising from a road accident is not in a contractual relationship with the defendant’s insurance company does not prevent the court from ordering the joinder of the insurance company as defendant, if it is convenient to do so under Order VII, r. 8 (I) (b) of the First Schedule to the Civil Justice Ordinance. If so joined it is open to the in to contest their liability in any way they see fit.
Sid Abmed Moharned v. Sudan Mercantile Co. (1956) S.L.J.R. 502 explained and distinguished.

Judgment

                                                       (HIGH COURT)

GEORGE EDWARD BATEKHA v. MARDI ABDEL GADER MOHAMED, MOHAMED IBRAHIM 4 EL SHAREG INSURANCE CO.

                                                       (KHC-CS.433-1959)

Lnterdocutory proceedings

Advocates:                Abdel Rahman Yousi……… for plaintiff

                     Abdulla El Hassan ………….for first and second defendants

                     Abdulla Nageeb…………….. for third defendants

February 10, 196o. T. Cotran Acting I.: —In this case the plaintiff is Suing the driver who injured him in a motor accident, as well as the owner of the vehicle that did SO. The defendants were covered by insurance and they asked that the insurance company he joined as a third party because they have a contract with the insurance company to indemnify them in case a judgment is obtained. I think that this is possible not because there is privity of contract between plaintiff and the insurance company but because by the rules of Civil Procedure it is possible to order the joining of a party if it is convenient to do so and does not cause embarrassment. Order VII governs the matter. r. 8 (i) (b) of the First Schedule to the Civil Justice Ordinance which provides that the court may at any time order that any plaintiff be made a defendant or that any defendant he made a plaintiff, and tF at 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.”

When an insurance company contests their liability it is suggested that conyenience as well as justice demands their joinder as a third party because the court can dispose of the whole case at once. I said convenience because al! parties concerned will know exactly what they are facing, and justice because a plaintiff will know as soon as possible if the insurance company are going to pay or not. In my opinion the purpose of compul sory third party insurance under Part V of the Road Traffic Ordinance is protection for the injured party or parties in a motor accident, and not the further enrichment of the insurance companies. I have not been sitting in this court for very long time but I have unfortunately already noticed a tendency on the part of insurance companies to deny liability auto matically and before they bother to read the policy, ignoring completely the provisions of sections 53 and 61 of the Road Traffic Ordinance. In one case, for example, a plaintiff obtained a judgment against a defendant for damages for personal injury inflicted in 1956. The judgment was given in 1959. After prosecuting his case for three years the defendant’s insurers refused to pay and he found himself in trouble with the bailifi, and the plaintiff found himself further involved with protracted execution proceedings against a nearly impecunious defendant. Of course the plaintiff having obtained a judgment ensure the insurers directly, and so can the defendant who is entitled to an indemnity from the insurers, but that means further delay, because the insurers might well raise a multiplicity of defences which will take a year or more to determine I am not saying that a court should invariably accept the joinder of the insurers. In some cases it is positivel’y unwise for either plaintiff or defendant to ack for their joinder. In this case I think it is proper and convenient to join them My task will be twofold: first to determine if the defendant is liable for the accident or not, and secondly to examine the policy and see ii the company can avoid it or not. The insurers are not prejudiced because it is open to them to contest their liability in any way they see fit.

But the insurers may object to their being joined in the same action on the ground for example, that they are themselves taking steps against he assured asking for a declaration that the policy is void for reason contained in sections 55 (2) (c), 55(3) and 55(4) of the Road Traffic Ordinance. If in fact they are taking such steps, then the court has always the right to strike them out under Order VII, r. 8 (I) (a) of the Schedule to the Civil Justice Ordinance.

There is some uncertainty amongst some members of the Bar whether the Court of Appeal decided in Sid Ahmed Mohamed v. Sudan Mercantile Co. (1956) S.L.J.R. 102 that under no circumstances can an injured person suc the insurance company because there is no privity of contract between an injured person and an insurance company. That case made no such sweeping rule. I think the facts of that case must always be borne in mind. In that case there was no injury to health or body as a result of the accident, but an injury to property or rather damage to property. The person who caused the damage to the plaintiff’s car in that case was not sued at all as he was outside the jurisdiction and his name was struck out from the suit during the early stages of the proceedings. The plaintiff then sued Sudan Mercantile Co., Ltd., the firm that had hired the car to the person who caused the accident, but they were held to be not liable either in contract or in tort, because in contract there was no privity between plaintiff and them, and in tort because they were not vicariously liable as the person who hired the car was not in their employ ment. Nor could the plaintiff sue the insurance company directly, because there i’s no privity between plaintiff and them. The court then went on to consider whether a person whose property was injured through a motor accident had any recourse to recover from the insurance company by operation of any statute, especially the Road Traffic Ordinance and it found that if certain steps were taken he could. These are that he must fiist obtain a judgment against the wrongdoer, and if he failed to get satis faction from him, make him bankrupt. In that event (which did not obtain in Sid Ahmed v. Sudan Mercantile Co.) the plaintiff can sue the insurance company directly (see section 6o of the Road Traffic Ordinance). If there is injury to person or death as a result of a motor accident, on the other hand, the driver of the vehicle who caused the accident can sue the insurance company directly (provided the insurance policy purports to cover him) to indemnify him against any judgment obtained against him. An injured person could also sue the insurers directly provided he obtained a judgment (section 55 of the Road Traffic Ordinance). An injured party could also apply that the insurers be joined as defendants with the person who caused the injury by the rules of civil procedure.

For these reasons, I order the joinder of the insurance company as a third defendant. I wish, however, to warn the plaintiff that the claim of £S.50 for damage to his motor-cycle could not, if he succeeds against first and second defendants, be ordered to be paid by the latter’s contract of indem nity with the insurers, because he (plaintiff) must first make first and second defendants bankrupt before he could have a recourse against the insurers (Sid Ahmed Mohamed v. Sudan Mercantile Co.)

                                                                                      (Order accordingly)