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MENDIS SILVA v. CEYLON INSURANCE CO. LTD.
NLR62V18
1958 Present :
Weerasooriya, J., and Sansoni, J.
H. W. MENDIS SILVA, Appellant, and THE CEYLON INSURANCE
CO., LTD., Respondent
S. C. 114-D. O. Colombo, 34320/M
Insurance-Motor
vehicle-Proposal form-Statements therein- interpretation. Evidence of
un-roadworthiness-" Judicial notice".
A lorry, which had been insured by the plaintiff with the defendant Company, ran
off the road by accident when the steering rod gave way when it was being driven
by the plaintiff's driver. In a claim made by the plaintiff for the cost of
repairing the lorry plus the towing charges
Held, (i) that the accident was caused by "accidental, external means ".
(ii) That the weight stated by the plaintiff in the proposal form as the
"maximum carrying capacity of the vehicle" ought not to be regarded as incorrect
merely because it exceeded the authorized payload specified in the license as
the maximum load which could be carried on the lorry, under section 36 of the
Motor Traffic Act No. 14 of 1957.
(iii) That it could not be contended that the plaintiff committed a breach of
the condition to " maintain in efficient condition" the insured lorry merely by
proving that of the six tyres on the lorry (for it had six wheels) the three on
the off side were worn smooth. A Court should not take judicial notice of the
fact that if there are any smooth tyres on a motor vehicle, the vehicle is
unroad worthy.
APPEAL
from a judgment of the District Court,
Colombo.
E. F. N. Gratiaen, Q.C., with S. C. E. Rodrigo and John de Saram, or the
Plaintiff-Appellant.
F E. B. Wikramanayake, Q.C., with H. Wanigatunga, for the Defendant Respondent.
Cur. adv. vult
February 18, 1958. SANSONI, J.
The plaintiff insured his Chevrolet lorry bearing No. CY 4144 with the
-defendant company upon a Policy of Insurance dated 26th May 1954. When the
lorry was being driven to Trincomalee on 8th August, 1954
By the plaintiff's driver it ran off the road and was seriously damaged. The
lorry was thereafter towed to Colombo, and the cost of repairing it was
estimated by Rowlands Ltd. at Rs. 5,093'73.
The plaintiff brought this action to recover Rs. 9,000 further damages at Rs. 10
a day from 8th September 1954, and a sum of Rs. 150 as towing charges. The
Defendant Company, after negotiations with the plaintiff, denied its liability
in any sum whatsoever. After trial the learned District Judge dismissed the
plaintiff's action, upholding the defense on three grounds: they were (1)
because the damage to the lorry was not caused by "accidental, external means",
(2) because the plaintiff had given a false answer in the proposal by stating
that the" maximum Carrying capacity of the vehicle" was 3t tons and not 2 tons,
(3) because The plaintiff failed to "take all reasonable precautions to
safeguard from loss or damage and to maintain in efficient condition" the
insured lorry, in breach of condition 5 of the Policy.
At the hearing of the appeal, Mr. Gratiaen who appeared for the
plaintiff-appellant limited his claim to Rs. 5,243.73 being the estimated cost
of repairing the lorry plus the towing charges. Mr. Wikramanayake who appeared
for the defendant-respondent did not attempt to support the learned Judge's
finding on the first ground which I have set out. It is clear from the evidence
that the lorry ran off the road by accident when the steering rod gave way, and
was damaged when it collided with a log; the case therefore fell within the
phrase" accidental, external means". If the attention of the learned Judge had
been drawn to such cases as Winspear v. Accidental Insurance Company1[1 (1880) 6
Q. B. D. 42.], and Lawrence v. Accidental Insurance Company2[(1881) 7 Q. B. D.
216.] , his decision on this point would have been different.
With regard to the second ground, Mr. Gratiaen conceded that since the proposal
was the basis of the contract, the statements in the proposal had to be true if
the con
