Guyana & Trinidad Mutual Life Insurance Company Ltd v Rentokil Guyana Ltd
| Jurisdiction | Guyana |
| Judge | Crane, C,Luckhoo, J.A. |
| Judgment Date | 06 May 1983 |
| Neutral Citation | GY 1983 CA 5 |
| Docket Number | No. 37 of 1982 |
| Court | Court of Appeal (Guyana) |
| Date | 06 May 1983 |
Court of Appeal
Crane, C., Gonsalves-Sabola, J.A.; Luckhoo, J.A.
No. 37 of 1982
C. L. Luckhoo, S.C., R. Ramcharran with him, for the appellants.
M. Fitzpatrick for the respondents.
Administrative law - Issue of driver's licence — A was employed by the appellants — A took a driving test on the appellants’ land rover and was granted a driver's licence permitting him to drive motor cars — A believed that such a licence permitted him also to drive vans — A was involved in an accident while on the appellants’ business — The appellants refused to indemnify the respondents for a claim arising out of the accident on the basis that A was not licenced to drive the van and accordingly fell within the exception clause in the policy of insurance — High Court had ordered the insurers to indemnify the respondents — Court should not look behind a driving licence which had properly been issued to A and entertain a challenge to the decision of the licensing authority to grant a licence to drive only motor cars — Any such challenge should be mounted by the statutory appeal procedure — In the absence of privity between the insurers and the licensing authority with regard to the issue of a driving licence to A, the plea of administrative estoppel would fail — Appeal allowed.
Insurance - Motor insurance — A was employed by the appellants — A took a driving test on the appellants’ land rover and was granted a driver's licence permitting him to drive motor cars — A believed that such a licence permitted him also to drive vans — A was involved in an accident while on the appellants’ business — The appellants refused to indemnify the respondents for a claim arising out of the accident on the basis that A was not licenced to drive the van and accordingly fell within the exception clause in the policy of insurance — High Court had ordered the insurers to indemnify the respondents — Court should not look behind a driving licence which had properly been issued to A and entertain a challenge to the decision of the licensing authority to grant a licence to drive only motor cars — Any such challenge should be mounted by the statutory appeal procedure — In the absence of privity between the insurers and the licensing authority with regard to the issue of a driving licence to A, the plea of Administrative estoppel would fail — Appeal allowed.
The respondents, Messrs Rentokil (Guyana) Limited (also called Rentokil) are a limited liability company, registered in Guyana. For some time now they have been carrying on the business of pest controllers at 38 Cummings Street, Georgetown, by house-to-house spraying with insecticides. On 22nd June, 1972, Rentokil proposed for insurance in respect of a Ford Escort motor-van, No. GAA 641 to be used in their business and a comprehensive motor policy No. M 57620, was issued on 21st February, 1973.
The appellant insurers, the Guyana & Trinidad Mutual Fire Insurance Company Limited, accordingly issued Rentokil insurance cover in return for a premium of $212.40 against loss or damage to the van, for personal injury and claims by third parties arising out of any accident in which the said van might happen to be involved.
On July 7, 1973, some four months later, motor-van GAA 641 became involved in an accident at a place called Foulis on the East Coast of Demerara and was very badly damaged. The appellant insurers have however refused their indemnity for the whole or any part of the cost of repairs to the van amounting to some $1,400.00. They have also not accepted responsibility for damages claimed in an action in the High Court against Rentokil by two persons, Messrs Mohamed Yunas and Mohamed Abdool who allegedly suffered personal injury in the accident at Foulis.
It was in these circumstances that the respondents, Rentokil filed the action out of which this appeal arises for a declaration that they are entitled to be indemnified by the insurers under the policy in respect of any third-party claims for bodily injury to property arising out of the accident; in particular, the claims brought by Mohamed Yunas and Mohamed Abdool, and damages in excess of $5,000.00 for breach of contract, and costs.
In their defence the appellant insurers have acknowledged the fact that a report of the accident was made to them, that they have refused to indemnify Rentokil for loss suffered, and that they have declined to accept responsibility for the outcome of the action in the High Court. However, they contend they are not legally liable to indemnify Rentokil because on 7th July 1973, when motor-van GAA 641 met with the accident, it was driven by one Edward Allen, Rentokil's servant and/or agent, who did not have a licence at that time to drive a motor-van, contrary to the undertaking given in their proposal form. The undertaking in that form was that GAA 641 would be driven by “any licensed driver”. They are thus relieved from accountability by virtue of the General Exceptions clause in the policy dealing with liability where accident is occasioned when the insured vehicle is being driven by “any person who is not permitted in accordance with the licensing or other laws or regulations to drive such motor vehicle unless such person has been so permitted and is not disqualified by order of a court of law or by reason of any enactment or regulation in that behalf from driving such motor vehicle”.
It is therefore the appellant insurers’ contention that as Rentokil permitted and/or authorised Edward. Allen to drive motor-van GAA 641 at the time when he did not have a licence to drive their van, that constituted a breach of the policy, and as a result they are not entitled to the declarations they seek.
It is very clear from the pleadings both parties are accusing each other of breaches of the policy; the only difference being that the appellant insurers have thereby sought to justify their alleged breach by furnishing reasons for non-performing the indemnity clause, which they attribute to the fact that Rentokil's driver was not in possession of a licence to drive motor-van GAA 641. Rentokil, on the other hand, have not attempted any answer in the form of a reply thereto in their pleadings, even though at the hearing their counsel could and ought to have done so when invited by learned senior counsel for the appellants to amend his pleadings so as to raise the issue of administrative estoppel of which Rentokil's counsel gave notice of intention to argue in his opening remarks. Estoppel was therefore not pleaded though adverted to in the opening stages of the trial, and this is why on principle, it seems to me, argument on estoppel ought not to have been entertained by the learned judge. We shall later see the judge rejected that doctrine as the true basis on which he could properly rest his judgment.
Now the facts and circumstances under which the respondents’ permitted is alleged not to have been in possession of a licence to drive motor-van GAA 641 at the time of the accident such as would justify the appellants refusal to honour their indemnity clause of the policy are these: Edward Allen was employed by Rentokil ever since the year 1969 as a serviceman treating houses with insecticides for the eradication of pests. Rentokil had two motor-vans and a landrover to enable them to perform their work, but Allen was unable to drive any of these motor-vehicles because he did not have a licence.
It however being the policy of his company to encourage employees to learn to drive, Allen's evidence is that he applied for and obtained a three-month provisional licence to drive a motor-van. The foreman of the company taught him to drive on both types of vehicles and after three months when his first provisional licence expired, he renewed the provisional licence to drive a van and at the expiration of a total of five months of pupil driving sat for, and was successful at a driving test at Linden where he was then stationed at a branch of the company's business. Neither of these provisional licences was produced in evidence. Allen explained he was required to surrender them both to the Licensing Authority when applying for his renewed provisional licences, respectively. As a fact it was not disputed he had done so, and the trial judge adjudicated on that assumption. The driving test was conducted on landrover GZ 7764, belonging to the company and was licensed at the time as a goods vehicle, but there was no particular reason Allen said for his choice of that vehicle for the test, even though he had applied to be tested for competence to drive a motor-van.
It was on June 8, 1971, however, when the licensing authority at Linden tested and issued him a licence to drive a motor-car instead of a motor-van, a fact which he did notice at the time of issue, but neither said nor apparently thought anything of. In fact, he considered it was a proper licence that permitted him to drive any of his company's vehicles, that is to say, both landrover and vans.
Allen thereafter continued driving both motor-vans and landover in Rentokil's service until he was involved in the accident at Foulis on July 7, 1973; and immediately after his release from hospital where he was confined with minor injuries, his employers inspected his licence. They observed its restriction to motor-car driving but, unlike Allen was, they were obviously aware of the consequence, for they immediately asked him to obtain a licence enabling him to drive a motor-van. Allen then went to the Licensing Department where he saw Cpl. Branche, the Licensing and Certifying Officer, on 8th July 1973. He requested Branche to add the words “and vans” to his current licence would read “motor-cars and vans”, and thereupon Branche told him that it would first have to obtain a...
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