South British Insurance Co Ltd v Glisson

• Jurisdiction: South Africa
• Judge: Miller J
• Judgment Date: 06 November 1962
• Hearing Date: 02 November 1962
• Court: Durban and Coast Local Division

C Miller, J.:

The respondent is the plaintiff in an action instituted against the applicant for payment of damages alleged to have been suffered by the respondent as a result of injuries sustained by him when D the motor car which he was driving was involved in a collision with a vehicle driven by one Perisamy on 7th January, 1960. The action has been set down for hearing later during this month and the applicant now applies for leave to amend its plea in circumstances which I shall describe. In view of the impending trial it is essential that judgment on this application be delivered with as little delay as possible. If, therefore, I do not deal in the course of this judgment with all the E submissions made during argument or have dealt with certain aspects more briefly than might otherwise have been the case it is not because I have not given consideration to them but because of the necessity of delivering this judgment promptly.

F Respondent's summons was issued on 25th November, 1960, and his declaration filed on the 12th December, 1960. In para. 3 of the declaration it was alleged that at the time of the collision the vehicle driven by Perisamy was insured by the applicant company under and in terms of the provisions of Act 29 of 1942. This allegation was unequivocally admitted by the applicant in its plea which was filed on the 6th March, 1961. The applicant now alleges that in fact it was not G the insurer of the vehicle in terms of Act 29 of 1942 and that its admission to that effect in the plea was erroneously made. This is not disputed by the respondent in his opposing affidavit and it was common cause in the argument before me that in fact no valid or effective declaration of insurance had been issued by the applicant to cover the H period in which the collision occurred. The circumstances in which the applicant made the error of admitting that it was the insurer of the vehicle at the time in question have been set out in the affidavits and may be briefly summarised as follows. It appears that during 1959 the applicant in fact issued a declaration of insurance in respect of the said vehicle to one Easthorpe, who was then the owner of the vehicle, and upon his own application. This insurance expired in December, 1959, and applicant thereafter issued a further declaration of insurance in respect of the same vehicle to cover the period 1st December, 1959, to 30th November, 1960. This

Miller J

declaration was also issued to Easthorpe but it is clear that at that stage Easthorpe was no longer the owner of the said vehicle having disposed of it prior to the application for such further insurance. It is alleged that at that time the owner of the vehicle was one Naicker A and that no application for insurance was made to the applicant by the owner of the vehicle, the declaration of insurance to which I have referred having been issued apparently as a result of an application made by Perisamy. In these circumstances it is clear that the declaration of insurance for the period December, 1959, to November, 1960, was not a valid or effective declaration in terms of Act 29 of 1942 (see Gumede v African Guarantee and Indemnity Co., Ltd., 1952 (3) SA 457 (N) B ; Vlok v Ocean Accident and Guarantee Co., Ltd., 1962 (4) SA 25 (W)). The application now made by the applicant is for leave to amend its plea by withdrawing the admission that it was the insurer of the vehicle in terms of Act 29 of 1942 at the time of the collision and substituting therefor a denial of the allegation to that effect in the C respondent's declaration.

It appears that on the 7th April, 1960, the respondent's attorney addressed a letter to the applicant in which it said:

'We act for Mr. William Kenneth Glisson who was injured when the motor car he was driving was on the 7th January, 1960, involved in a collision with a taxi ND.5937 near Chaka's Kraal on the Main North Coast Road. The D said taxi was driven by one Soobramoney Perisamy of 320 Dayal Road, Jacobs, Durban.

We are informed that your Company insured the said taxi in terms of Act 29 of 1942 at the time of the said collision. We shall be pleased if you will kindly confirm that this is correct, if it is letting us have a copy of the declaration of insurance and the statutory accident report forwarded by the driver of the taxi.'

E To this letter respondent received a reply dated 20th April, 1960, which emanated from a firm of insurance assessors, Messrs. D. Smillie & Co. and which reads as follows:

'We have to advise that we act in this connection on behalf of the South British Insurance Co. Ltd., the insurers of motor car ND.5937, and that your letter of the 7th April addressed to our principals has been handed to us for attention.

F As requested we forward herewith a copy of the relative declaration of insurance.

We shall be glad if you will kindly address all further correspondence to this office.'

It is common cause between the parties that D. Smillie & Co. were in fact acting as the authorised agents of the applicant in writing the letter of the 20th April and that such letter clearly conveyed to G respondent the information that the applicant company was in fact the insurer of the vehicle driven by Perisamy at the time of the aforesaid collision. The declaration of insurance issued by the applicant for the period 1st December, 1959, to 30th November, 1960, to Easthorpe was attached to the letter of the 20th April. It was only after the exchange H of this correspondence that the respondent in due course issued the summons and filed the declaration against the applicant to which I have referred.

In terms of the agreement between the Motor Vehicle Insurers Association of Southern Africa (hereinafter referred to as the M.I.A.) and the Minister of Transport, the respondent, if he had instituted action against Perisamy as the driver or against Naicker as the owner of the said vehicle within a...