Case No.:

HC-REV-95- 1961

Court:

The High Court

Issue No.:

1962

Principles

·  Road Traffic—Notice to insurer—Road Traffic Ordinance I s. (2) (a)—” Com- mencement of proceedings” is when action is allowed and fees are paid Civil Procedure—Notice to insurer—” Commencement of proceedings “—Road Traffic Ordinance 1942, S. (2) (a)—When action allowed and fees paid

“Commencement of the proceedings” within the meaning of Road Traffic Ordinance 1942, S. (2) (a) [Road Traffic Act 1962 (1962 Act No.5). S. 59 (2) (a)] takes place when the action is allowed and prescribed fees are paid.

Judgment

(HIGH COURT)

MISR INSURANCE CO. v. SIR EL KHATIM MOHAMED

HC-REV-95- 1961

Advocates: Ogail Ahmed Ogail … for second judgment-debtor-applicant Mirghani El Nasri f or judgment-creditor-respondent

A. M. Imam 1. September 27, 1962: —This is an application for revision submitted on behalf of second judgment-debtor-applicant, against the order made by the District Judge (High Court) dated January ii, 1961, issued in execution proceedings in which he allowed execution to proceed against the second judgment-debtor-applicant, an insurance company.

The point for consideration was whether notice as prescribed by Road Traffic Ordinance, s.55 (2), was duly given.

Before dealing with the application it should be pointed out that the order above mentioned was on its face wrong. The reason given was as follows

Road Traffic Ordinance, s.55 (2) (a), provides that to be held liable the insurers should have notice before or within 14 days after the commencement of the proceedings. Advocate for decree-holder contended that the insurance company had had notice of the incident before institution of civil proceedings which suggestion was not con tested by the company’s advocate. The objection is therefore ruled out and the insurance company should accordingly be joined as co-judgment debtors.”

The record shows that the second judgment-debtor-applicant’s advocate did contest the serving of such notice, for he said:

We deny that we received the statutory notice within 14 days from the date of institution of the civil proceedings. That is our only objection.”

To come to the point: it is agreed that notice was served on January

22. I959. The parties disagreed, however, as to the relevant date from which the prescribed period should start. It is contended for the second judgment-debtor-applicant that it should be the date on which action was allowed and fees paid which, in this particular case, is December 23, I9 and hence the notice should be treated as out of time. On the other hand, it was contended for the judgment-creditor-respondent that the relevant date should be “when the insured second judgment-debtor applicant, appears before the court and applies for the jointer of the insurer as co-defendant.” Ergo, the relevant claim against the insurer arrives at the time when he, the insured, appears before the court and applies for the jointer of the insurer as co-defendant. Consequently, the material date of the commencement of the proceedings is when the insured first enters appearance, i.e., on February 4, I9 If this is so, then the notice in question is good notice and within the requirements of Road Traffic Ordinance, s.55.

Reference was made by the learned advocate for the second judgment- debtor-applicant to the English Act, s. 10, equivalent to Road Traffic Ordinance, s.55 (2) (a). He correctly pointed out that the commencement in the English High Court is made through the following procedure:

(1) By writ.

(2) By originating summons.

(3) By petition.

(4) By originating notice of motion.

He also correctly pointed out that this procedure is different from the procedure followed by this court.

In this court proceedings commence at the time when action is allowed and the prescribed fees are paid.

For the above, the order above mentioned is set aside and the application is allowed.

No order as to costs.