Supreme Court dismissed appeal where insurer failed to prove vehicle use was outside policy scope.

[*1329] 1965 December 17

(ZEKIA, P., VASSILLADES, JOSEPHIDES, JJ.)

APPELLATE JURISDICTION

London Guarantee and Accident Co. Ltd.,

c/o Ch. S. Christofides,

Appellant-Defendant,

v.

Vryonis Michael Vryoni and another, as

administrators of the estate of Marios

M. Vryonis,

Respondents-Plaintiffs.

(Civil Appeal No. 4535).

Insurance - Motor vehicle insurance - Policy of insurance - Failure of insurance company to satisfy a judgment obtained against a person insured - Action under section 10 of the Motor Vehicle (Third Party Insurance) Law, Cap.333 - Whether vehicle was used for hire or reward at the time of the accident - Whether use of vehicle was covered by the policy.

This is an appeal from the judgment of the District Court of Limassol, given in favour of the Respondents-Plaintiffs, in an action brought by them against the Appellant-Defendant insurance company, based on the provisions of subsection (1) of section 10 of the Motor Vehicles (Third Party Insurance) Law, Cap. 333, for their failure to satisfy a judgment obtained by the said Respondents-Plaintiffs in a running down action for negligence, the defendants of which were insured with the insurance company under a policy of insurance issued under the provisions of section 4(l)(b) of the Law (supra).

The grounds on which the appeal was based are as follows:-

"(a) The Hon. Court erred in concluding that the vehicle in question was not used for hire and/or reward at the material time.

(b) The Hon. Court erred in ignoring the allegation of the Insurers that the said vehicle at the material time was used for a purpose or purposes outside the scope of the Policy of Insurance.

(c) The Hon. Court concluded erroneously from the evidence adduced that the Insurers i.e. the defendant company were liable to meet and satisfy the judgment issued in action No.2044/62 of the District Court of Limassol". [*1330]

The Appeal Court dismissed the appeal on the ground that the Appellant failed to persuade them that the trial Judge was wrong in coming to the conclusion he did.

Appeal dismissed with costs.

R. Michaelides, for the Appellant.

A. Anastassiades, for the Respondents.

JUDGMENT

The Judgment of the Court was delivered by:-

ZEKTA, P.: We have considered this case with care and we followed the able addresses of both counsel.

As a rule we have to be persuaded by the appellant that the learned trial Judge was wrong in coming to the conclusion he did, before we could interfere with his judgment. This, the appellant, in our view, failed to do and, therefore, the appeal is dismissed with costs.

In the meantime, if we feel that further reasons should be given then we shall notify the parties and fix a date for giving them in Court. The parties, however, might easily gather our reasons from what transpired during the argument of the appeal. But, if we have any further reasons to give then we shall let them know. We do not, however, commit ourselves to it.

Appeal dismissed with costs.

The Judgment of the trial Court appealed from was delivered by:-

MALACHTOS. D.J.: The plaintiffs in this case are husband and wife and administrators of the estate of [*1331] their late son Marios M. Vryoni of Limassol, and instituted the present proceedings in their aforesaid capacity.

The defendant is a limited company carrying on insurance business in Cyprus through their general agent Ch. Christofides of Nicosia.

The facts of this case are shortly as follows:-

In the morning of the 23rd day of August, 1962, while motor lorry under registration No. AV.759 was driven on Makarios the third Avenue in Limassol, by a certain Georghios Onissiforou, knocked down and fatally injured Marios M. Vryoni of Limassol the son of the Plaintiffs. At the time of the accident the lorry was unloaded and was the property of a certain Angelos Filippou and Michael Savvides who were insured with the defendant company under a motor car insurance policy bearing No. MAC.90892 and the relative certificate which was issued bears No.42268. The period for which the said certificate was issued to the defendant company for the purpose of the Motor Vehicle (Third Party Insurance) Law CAP.333, commenced on 2/8/1962 and ended on 1/8/1963.

After the accident a running down action for negligence was brought against the driver and one of the insured, namely Michalakis Savvides,bearing No.2044/62 in the District Court of Limassol. On 8/11/1962 within the period prescribed by the law counsel for the plaintiffs sent the relative notice to the insurance company informing them that Civil proceeding had been instituted. A copy of the writ of summons was attached to the said notice.

On 7/12/1963 judgment was issued in favour of plaintiffs against the two defendants for the sum of £400.- [*1332] plus £50.- costs which remained unsatisfied, although execution was issued as the two defendants were possessed of no property liable to execution.

The insurance company was called upon to pay the amount awarded by the judgment but they failed to do so by denying liability. Hence the present proceedings.

The allegation of the plaintiffs is that by reason of the provisions of subsection (l) of section 10 of the Law CAP. 333 the defendant company is liable to pay to the plaintiffs the amount awarded, to them by the said judgment.

The defendant company in its defence denies liability and alleges:

(1) That this Court had no jurisdiction to try this case and the proper Court was the Nicosia Court.

(2) That the correct procedure to be followed by the plaintiffs was to proceed not by action but refer the matter to arbitration in the first instance, and

(3) That at the time of the accident the lorry was used for hire or reward and according to the certificate of insurance was not covered.

Evidence was adduced on behalf of the defendant company to establish the fact that at the material time the lorry in question was transporting carobs from Ayia Fyla to Limassol under a contract entered into by the co-operative credit society of Ayia Fyla on the one hand and one of the [*1333] insured namely Michalakis Savvides on the other whereby the said Michalakis Savvides undertook to transport the carobs of the said Society to the stores of the Limassol co-operative carob Marketing Union Ltd., in Limassol for 80 mils per cantar. This contract was produced as Exhibit 8.

The driver of the lorry was called and gave evidence as W.1 for the defendant company and stated among other things that at the material time he was driving motor lorry AV.759 under the instructions of Michalakis Savvides as he was in his service. He was transporting carobs from Ayia Fyla to Limassol. On 22/8/1962 he delivered four loads of carobs to Limassol. When he went to unload the fifth load the time was over and so the lorry remained loaded in the yard of the stores and was unloaded the next morning i.e. on 23/8/1962. After the lorry was unloaded he proceeded to Ayia Fyla in order to load again. While passing through Makariou the third Avenue directed towards Ayia Fyla this accident occurred.

Now the first question for the Court to consider is the question of Jurisdiction,

The territorial Jurisdiction of District Courts in civil matters is defined by virtue of s.21 of the Courts of Justice Law, 1960. Taking into consideration that both the original cause of action as well as the judgment on which the present proceedings have been instituted, arose wholly in the District of Limassol, in my view, the District Court of Limassol has got jurisdiction to try the present dispute.

The second question to be decided is whether the Plaintiffs by instituting the present proceedings followed [*1334] the correct procedure or they ought in the first instance to refer the matter to arbitration.

On this point the argument of counsel for the defendant Company, in my view, cannot stand as the plaintiffs in this Case do not stand in the shoes of the insured by virtue of any law. The plaintiffs are given a right by virtue of section. 10 of the Law CAP.333 which they can pursue by action, so long as the liability of the insured is covered by the terms of the policy, irrespective of whether the policy itself provides for any matter or questions arising out of the said policy between the insured and the insurers should be referred in the first instance to arbitration.

The last and main question for the Court to consider is whether on the evidence adduced the lorry at the time of the accident was used for hire or reward, or not.

It is clear from the evidence adduced on behalf of the defendant, that the lorry in question was on the day before the accident transporting carobs from Ayia Fyla to Limassol on payment under a contract Exhibit 8 and that on the day of the accident was proceeding to Ayia Fyla to load carobs after unloading the carobs in Limassol which carobs had remained unloaded the day before due to the fact that the time was over. It is also clear that the insured owned at the time, other lorries besides the one in question.

Taking into consideration all the circumstances of this case I hold the view that the lorry in question was used for reward on limited route, only as from Ayia Fyla to Limassol and when loaded with carobs. On the way back the lorry in question was not used for hire or reward.[1335]

The position would have been different if the lorry was hired by the co-operative society say so much per day for transporting the carobs.

For the reasons stated above I give judgment in favour of Plaintiffs for the sum of £450,- plus interest at 4% per annum on £400.- as from 7/12/1 963 to final payment, with costs.

Date: 15th June, 1965.