Dziko v Portland Cement and Royal International Insurance (Civil Cause 728 of 1992) [1993] MWHC 9 (14 October 1993)

CIVIL CAUSE NUMBER 728 of 1992 ESTERE DZIKO and PORTLAND CEMENT . .. . .. . .... . .. 1ST DEF ENDANT a nd ROYAL INTERNATIONAL INSURANCE . . . . . . . . . . . . . . . 2ND DEF ENDANT Cor am: D F MWAUNGULU, REGISTRAR Ch i ng'ande, Counsel for the Plainti ff Banda, Counsel for 1st and 2nd Defe ndan ts ORDER th e I ordered the 19th of October 1993, second On def endant, Royal International Insurance, to ce ase to be a p arty in the action of Miss Dziko against Po rtland Ceme nt Company (1974) Limited, first defendant, an d the t he 8th s ec ond defendant. This action was taken out o n o f J une 1992. The plaintiff, widow of Bernard Dzik o, was s ui ng under Section 7 of the Statute Law P rov isions) Ac ~ , for loss of dependency. The dec eased, \Ct..r.5:o a n employee of ' t he 1st Defendant died on a rai lwa y line wh e n a trol l ey, in which he was a passenge r hi t goats. He i nsu rance co mpany. (M i sce lla neous /,: J The second defendants are an f ell off. On the 5th of March 1993, the two defendants put in a no ti ce of intention to defend. On the 24th March , the p lai ntiff tried to enter judgment in default o f n otice of i ntention to defend on the 24th March. The jud gment was not entered because there was no proof of ser vice. On t he 7th of ~une 1993, the second defendant too k this ap pli cation under Order 15, rule 6(2) praying tha t the s eco nd defendant cease to be a party in this a ctio n and th at its name be struck out of the writ of sum mon s and al 1 subsequent proceedings. the gr ou nd: should reprod uc e I 2 I • •••• I... - - "As the accident involving a pushin g trolley occured on the railway line and the said pushing trolley was not required to be insured for passenger liability under part 5 of the Ro ad Traffic Act (Cap. 6901), the plaintiff has no right to sue the said second defendant directly unde r that part or at all." There is an affidavit in support of the appl ication. I s hould also reproduce paragraph 4 for reasons which will b ecome apparent shortly "Sin c e the pushing trolley is not a motor vehicle for use on a road , it was and is not insured against thir d party risks under compulsory third party insurance cover as required by part 5 of the Road Traffic Act (Cap. 6901)." If I understand Mr. Banda correctly, the statem ent is too p rong. First, that there is no requirement to insure the t r olley under part 5 of the Road Traffic Act. Secondly, e ven if it is a requirement to insure a trol lery under p art 5 of the Road Traffic Act, there is no policy of in surance between the first defendant and t he second d efendant . Coming to the first limb of Mr. Banda's argumen t, I think Mr . Ching ' ande that a r ailway line is not a road. I think it is. Section 2 of the Road Traffic Act, defined road as foll ows: is right. Mr. Banda, argue s "Road" means any road to which the public have access and any public place to which vehicles have access and includes an y bridge, fold , culvert, or other work in the line of such road." Vehicle is def i ned as follows: "Vehicle" includes any construction vehicle, engine, wagon, dray, cart, carriage , bicycle or other means of carrying goods or persons by land, having two or more whee l s, whether drawn or propelled by human, aninmal, steam, electrical o r other power." 3/ . . . . . L - - This accident happened on a road in the wider definition of a road . A railway line is a road for purpo ses of the Road Traffic Act in general and part 5 of the Act in p articular. intended The other aspect to Mr. Banda' s argument is that a t rolley is not a motor vehicle for purposes o f the Road in parti cular. Mr. T raffic Act in general and part 5 Ching'aride is right. A trolley could be a mot or vehicle f or purposes of the Road Traffic Act generall y and part 5 in part i cular. A motor vehicle, according to Section 2 of the Road Traffic Act means "any mecha nically or e lectrically propelled vehicle f or use or c apable of being used, on roads unless such veh icle shall h ave been specifically excluded by regulation s from this d efinition. It is important to note that und er Section 5 9 of the Road Traffic Act, insurance is comp ulsory for " motor vehicles" and trailers as opposed to " vehicles". Mr. Banda's affidavit refers to the vehicle us ed in this c ase, as a pushing trollery. If it is not me chanically or electrically propelled, a pushing trolle y would be a vehicle but would not be a motor vehicle fo r purposes of Section 59 of the Road Traffic Act. The st atement of c laim is not talking of a pushing trollery. I t only says th at when the acident took place, the trollery was being p ushed . That does not say whether the troller was itself a vehicle which is mechanically or electrical 1 y propelled j ust as it does not say that the trollery was a pushing t rollery is It might be safer to say that a t rollery. A trollery could be a motor a vehicle in all cases. ve hicle in certain circumstances. There is a bit of d oubt on that. On the quest i on therefore, whether the t rolley could have been insured under part 5 o f the Road Tr affic Act, In the absence of be tter explanation, the doubt could very well be resolved i n favour of the second defendant. This, howev er, is not th e reason why I ordered that the second defen dant ceases to be a party . t here is some doubt. second defendant and This leads me to the second limb of Mr. Banda's argument. Th at is to say there was no policy of insuran ce between the first defen dant. The t he st atement of claim does not state second d efendant is being sued under Section 65 (A) o f the Road T raffic Act. the Act, h owever, for lack of privi ty of contract be tween the vi ctim of the accident and the insurer, at co mmon law, t he plaintiff has no cause of action against th e insurer. Th e victim had first to obtain a judgment either by t rial, consent, or arbitration against the ins ured. The in sured was then obliged to idemnify the insur er against t he liability to the victim. It follows a for tiori that from Section 65(A) of Apart that t he 4 / .. . .. - - the plaintiff here must have been suing under S ection 65 (a) of the Road Traffic Act. A close reading o f Section 65 (a) will show that the right to sue only ar ises if a policy of insurance has been issued for the pu rposes of I think it is important part 5 of the Road Traffic Act. that the pleadings should so state because n o right to sue the insurer arises in the absence of an in surance p olicy between the insured and the insurer. Mr. Banda insurance exist s. If his depones that no policy of contention is that Portland Cement need not ha ve issued a policy to cover against third party risk o r because there was no obligation under the Road Traffic Act, that i s not correct. Owners of trollies, locomoti ves, which by definition, would be motor vehicles are not exempt I unde rstand his from part 5 of the Road Traffic Act. a rgument to be that in fact no policy exist s. In the a bsence of that, the second defendants are erronously therefore i ncluded as a party to the proceedings. order that the second defendants cease to be p arty to the a ction. I Made Blantyre. in chambers this day of October 1993, at D F REGISTRAR COURT