The Presidential Insurance Company Ltd v Mohammed and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge |
| Judgment Date | 03 February 2015 |
| Neutral Citation | [2015] UKPC 4 |
| Date | 03 February 2015 |
| Docket Number | Appeal No 0085 of 2012 |
| Court | Privy Council |
[2015] UKPC 4
Lord Mance
Lord Wilson
Lord Carnwath
Lord Toulson
Lord Hodge
Appeal No 0085 of 2012
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Alan Newman QC
Shastri V C Parsad
(Instructed by Bankside Commercial Solicitors)
Respondents
Asaf Hosein
Prakash Maharaj
(Instructed by Yasseen Ali, Attorney at Law)
Heard on 29 October 2014
This appeal concerns the Motor Vehicles Insurance (Third-Party Risk) Act (Ch 48:51; Act 39 of 1933 as amended) ("the MVIA"). The principal issue in the appeal is whether the MVIA enables someone who has suffered property damage caused by a motor vehicle accident to obtain indemnity from the vehicle owner's insurers when the driver, who caused the damage, was not authorised by the insurance policy to drive the vehicle.
The Mohammed family own a shop, known as the Montrose Muffler Shop, at the corner of Montrose Main Road and Kenneth Street, Chaguanas. At about 6.30 am on 16 June 2004 Mr Ravi Rampersad, when driving a Nissan maxi-taxi with registration number HAY 3286, crashed the vehicle into the Mohammeds' shop, causing extensive property damage. Mr Kuldeep S Kocher was the registered owner of the maxi taxi. He had taken out motor vehicle insurance with the appellants ("Presidential"). The insurance policy named Mr Kocher and Mr Jagdesh Ramdial as the only authorised drivers with the proviso that they had to be authorised by relevant laws and regulations to drive the vehicle. It appears that Mr Kocher had given Mr Rampersad permission to drive his maxi-taxi, although he was neither a named driver under the insurance policy nor authorised to drive a maxi-taxi under the Maxi-Taxi Act (Act 6 of 1992 as amended).
Shortly after the accident, at 8.03 am Mr Rampersad and Mr Shazim Mohammed gave a statement to police officers at Chaguanas police station. The initial statement, which the police wrote in manuscript in the station duty diary, recorded that Mr Rampersad was driving the vehicle when the accident happened and that he produced his driving permit and the certificate of insurance. The police warned Mr Rampersad of prosecution. The diary also contains an entry seven minutes later which purports to correct the earlier entry and states that the driver was Mr Kocher, who produced his driving permit to the police. The police then warned Mr Kocher of prosecution and inspected the vehicle. Thereafter, both Mr Shazim Mohammed and Mr Kocher declined to give the police a written statement, saying that they would resolve the matter privately.
On 17 June 2004 Mr Kocher submitted an accident report form to Presidential in which he claimed to have been driving the maxi-taxi when the accident occurred. On the same day Presidential appointed Mr Esmond Maxwell to investigate the claim. He promptly visited the police station and obtained a photocopy of the station diary entry. Presidential had discussions with the Mohammeds and at some time between 17 and 22 June 2004 agreed orally to meet their claim. That agreement was then recorded in a letter dated 23 June 2004 to Mr Haniff Mohammed and Mr Shairoon Mohammed in which Presidential undertook (a) to restore their property to its condition immediately prior to the loss caused by the accident and (b) to compensate them for any other losses. The letter was headed with the words "without prejudice" but it was not argued that the words had any legal effect in this context.
The Mohammeds started to repair their shop but did not complete the reinstatement after Presidential disputed their entitlement to indemnity in about August 2004. They raised an action against Mr Kocher in December 2004 (HCA No 2705 of 2004) in which they asserted that "the defendant and/or agent and/or employee" had driven the vehicle negligently and had caused them loss. They intimated the action to Presidential which applied to intervene but did not appear at a hearing to do so. Mr Kocher did not defend the action. As a result, on 7 January 2005, the court pronounced a default judgment against Mr Kocher that the Mohammeds were entitled to recover damages which would be assessed. On 31 October 2005 Master Paray-Durity awarded damages against Mr Kocher in the sums of $185,344.26 to Mr Shairoon Mohammed, $82,651.52 to Mr Saiheed Mohammed and $55,977.86 to Mr Naim Mohammed, together with statutory interest at 12% from that date and costs.
On 20 February 2006 the Mohammeds raised an action against Presidential (HCA No 00454 of 2006) seeking a declaration that the insurance company was liable to satisfy the judgment against Mr Kocher. They founded on the oral agreement and letter of 23 June 2004 and also on the MVIA. In its initial defence and counterclaim Presidential pleaded that Mr Kocher had conspired with Mr Shazim Mohammed, who had represented the Mohammeds at the police station, to make a fraudulent insurance claim by falsely telling the police that Mr Kocher was the driver of the maxi-taxi when the accident occurred. In the counterclaim Presidential sought, among other orders, a declaration that the insurance policy covered only Mr Kocher and Mr Ramdial and also an order that the judgment against Mr Kocher and subsequent proceedings should be set aside because of the conspiracy to defraud it.
In June 2010 an attorney acting for Presidential wrote to the Commissioner of Transport to enquire whether Mr Rampersad had a taxi driver's permit and a permit to operate a maxi-taxi. On 30 August 2010 the licensing authority responded, certifying that he had neither. That response prompted Presidential to apply on 4 October 2010 to re-amend its defence and counterclaim to assert that the driver was unlicensed and to refer to the proviso in its policy that the named drivers had to be authorised to drive the vehicle. In response, the Mohammeds applied to have Presidential's defence and counterclaim struck out.
On 20 May 2011 Madam Justice Charles, after considering the parties' written submissions, dismissed the Mohammeds' application to strike out and granted Presidential's application to re-amend its defence and counterclaim. The Mohammeds appealed and on 28 July 2011 the Court of Appeal (Weekes, Soo Hon and Narine JJA) unanimously allowed their appeal, refusing Presidential's application to re-amend on the basis that Presidential could have found out long before that Mr Rampersad had no maxi-taxi licence, and striking out its defence and counterclaim. In the leading judgment Narine JA founded on an earlier judgment of the Court of Appeal which interpreted section 4(7) of the MVIA as imposing liability on an insurer to indemnify the person insured even if the person using the motor vehicle with his consent was not covered by the insurance policy ( The Presidential Insurance Company Ltd v Resha St Hill Civ App No 51 of 2008). The Board subsequently overturned that judgment ( [2012] UKPC 33) thereby calling into question the basis on which the Court of Appeal had struck out Presidential's defence in this case. On 5 November 2013 the Board granted Presidential permission to appeal.
The MVIA seeks to ensure that people who drive motor vehicles have third party insurance in order to provide adequate compensation to people who are injured in or suffer property damage as a result of motor vehicle accidents. Section 3 makes it unlawful for any person to use, or cause or permit any other person to use, a motor vehicle unless there is in force a valid third party insurance policy that covers that person's use of the vehicle. Contravention of that section is a criminal offence. Section...
To continue reading
Request your trial
-
Adisa Govia v Kevin Williams
...are injured, or suffered damage, as a result of motor vehicular accidents”. 53 See also Presidential Insurance Company Limited v Mohammed [2015] UKPC 4, paragraphs 9–11. [9] The MVIA seeks to ensure that people who drive motor vehicles have third party insurance in order to provide adequat......
-
Mecheck Willis v Globe Insurance Company of Jamaica Ltd
...to indemnify the judgment. 75 The Privy Council, as recently as 3 February 2015 in Presidential Insurance Co Ltd v Mohammed and Others [2015] UKPC 4, cited Presidential Insurance Company Ltd v St Hill with approval and held that it is only where the insured's liability is covered by the pol......
-
Insurance Company of the Bahamas Ltd v Eric Antonio (The Bahamas)
...sort which the Board noted as possible in The Presidential Insurance Co Ltd v Resha St Hill [2012] UKPC 33, para 31 and The Presidential Insurance Co Ltd v Mohammed [2015] UKPC 4. Any complete solution, covering in particular situations where no relevant insurance cover exists at all, req......
-
Maharaj and Concerned Residents of Cunupia v Minister of Planning and R.P.N. Enterprises Ltd
...to rectify matters, especially when he had delegated his powers to a local authority…” PRESIDENTIAL INSURANCE COMPANY LIMITED V. MOHAMMED [2015] UKPC 4 81 Both the claimants and the defendant made reference to this case in their speaking notes. 82 In this case, the Judicial Committee of the......