(COURT OF APPEAL) SID AHMED MOHAMMED ………………...Appellant and SUDAN MERCANTILE & Co. & Others ...Respondents (Khartoum AC-APP 17-1956) Principles · Road Traffic — Insurance - third party risks -. indemnity - liability of Insure - Vicarious liability, - hire of car Where a person is insured as a car driver against third party risks, a third party having a claim against the driver which purports to be covered by the policy, has no direct cause of action against the insurer except as provided in SS. 55 and (*) Court M El Nur, Acting C.J., R.C. Soni, and A. Bedri, JJ. 60 of the Road Traffic Ordinance, 1942 * The owner of a motor vehicle who lets it on hire to an independent hirer who is neither the servant nor the agent of the owner is not vicariously liable for the ‘negligence of the hirer. Appeal One W. Hardman hired a Ford Pilot pick-up from the first defendants, the Sudan Mercantile Co., it being agreed that the defendants would insure the vehicle while being driven by a licensed driver against all third party risks. The first defendants insured the vehicle with the second defendants, the Motor Union Insurance Co. During the period covered by the policy Hardman while driving the Ford Pilot collided with and damaged the Plaintiff’s taxi. As a result of this accident Hardman was subsequently convicted of offences under the Road Traffic Ordinance. The Plaintiff thereupon commenced an action against Hardman and the first defendants, but Hardman having left the country and being beyond the jurisdiction, his name was struck out at an early stage in the proceeding At a later stage the second defendants were added at the insistence of the Plaintiff’s advocates The trial judge, (M.E. Mubarak, Province Judge of Port Sudan) dismissed the action against both defendants. The plaintiff appealed. Advocates: Bakri Abdel Hadi …………for the Appellant W.R. Zaki ……………………..for both the Respondent R.C. Soni, J. (The learned judge recited the facts of the case, stated the relevant sections of the Road Traffic Ordinance, and outlined the (*) The relevant part of s.60 of the Road Traffic Ordinance is set Cut in the judgment The relevant part of S. 55 is as follows Sect. 55 (i) If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under ‘paragraph (b) of section 50 of this Ordinance which refers to liability in respect of death or bodily injury only, being a liability covered by the terms of the policy, then, notwithstanding that the insurer may be entitled “to avoid or cancel,, or may have avoided or cancelled. ‘The policy the insurer shall subject to the provisions of this section, pay to the persons entitled Ito the benefit of the judgment any sum payable thereunder in respect of the liability including any sum payable thereunder in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgment proceedings at the trial below. He then Continued) Mr. Bakri submitted that Hardman had driven the car negligently and as he had been given permission or authority by Sudan Mercantile Co., this Company was liable. Further he submitted that the Motor Union Insurance Co. was also liable because the Sudan Mercantile Co. was liable. He submitted that the Motor Union Insurance Co. had admitted their liability but had only disputed the extent of their liability. He referred to a letter which was evidently the one dated 8.9.1954 which he had in mind. The learned trial Judge, M.E. Mubarak PJ. dismissed the plaintiff’s suit against both defendants. From his judgment an appeal has been taken to this Court. It is quite clear that there is no liability whatsoever against the Sudan Co. The driver at the time of the accident was Hardman. The liability was for negligence, and the only negligence was that of Hardman. Sudan Mercantile Co. Could only be held liable under the doctrine of vicarious liability. That doctrine makes a master or principal liable for the acts of his servant or agent the reason in law being that the master or principal is Supposed to be able to control the acts of the servant or agent. Hardman was neither the servant nor the agent of the Sudan Mercantile Co. He had an independent status. He had taken this Ford Pilot pick-up, which was the instrument of the accident, as a hirer and the Sudan Mercantile Co. had no control whatsoever over his acts. In my opinion the learned trial judge was perfectly right in dismissing the case against the Sudan Mercantile Co. We now come to the case of the Motor Union Insurance Co There are a number of objections before a case against them can be established. The first is that no definite sum of money has been adjudged by a court or anybody else as the amount which Hardman has to pay for his negligence. The position of the Insurance Company is that contracted to indemnify the driver for the actual amount of money which had been found by judgment or otherwise as the amount of money which the negligent driver be legally liable to pay. No such sum has yet been found in this case. (The learned judge then cited certain Passages from Halsbury’s Laws of England, Vol. 18, pp. 556, 558, and 405 and continued). In the present case the plaintiff’s claim, for damages can only be against Hardman. The plaintiff is a stranger to the policy of insurance. He is wholly outside its scope. The legislature has come to the help of persons who have suffered in a motor accident, in certain circumstances only. These are : (i) If the claimant has suffered, bodily injury, or has been killed. In these circumstances the legislature has stepped in, but it has not stepped in with respect to a case in which the claimant alleges only damage to his car or property. (2) Where the claimant claims damages because of injury to property the legislature has not created any relationship between the claimant and the insurance company, except in one circumstance, which is set out in s. 60 of the Road Traffic Ordinance. S. 6o (1) reads as follows :- Where under a contract of insurance a person- (in this section referred to as the “insured’) is insured against liabilities to third parties which he may “incur, then - (a) in the event of the insured becoming bankrupt or “making a composition or arrangement with his creditors; or (b) in the case of the insured being a company, in the event of a winding up order being made or resolution for a voluntary winding up being passed, with respect to the company or. a receiver or manager of the company’s business or undertaking being duly appointed, or of possession being taken, by or on behalf of the holders of any debentures secured by a floating charge, or any property comprised in or subject to the charge; if either before or after that event any such liability as “aforesaid is incurred by the insured, his rights against the insurer “under the contract in respect of the liability shall notwithstanding anything in any law to the contrary be transferred to, and vested in the third party to whom the liability was so incurred.” It will be noticed that the person against whom the liability has fructified must have become bankrupt. In that circumstance only the claimant’s rights against the insurer are transferred to and vested in the party to whom the liability has been incurred. It is clear, therefore, that there is no cause of action against the Motor Union Insurance Co. (The Learned Judge then referred to and rejected an allegation that the Motor Union Insurance Co. had admitted liability. He continued). During the course of the argument learned counsel for the claimant referred to s.55 of the Road Traffic Ordinance. It was pointed out to him that that section applied only if there had been bodily injury or death, and also that the section referred to a judgment having been obtained against the negligent driver. This argument was then dropped. The learned counsel then referred to the policy. I have already referred to that. I have dealt with all the arguments. In my opinion the learned trial judge was quite right in dismissing the case against the Motor Union Insurance Co. (The learned Judge concluded his judgment by referring to a note in Halsbury’s Laws of England 2nd ed. p. 562, and to Shawcross on the Law of Motor Insurance, 2nd ed. p. 149, par. 2, and by discussing and deploring the course of proceedings in the court below. M.I. El Nur, Acting C.J. — I concur A. Bedri, J. — I concur (Appeal dismissed)