ROYAL EXCHANGE ASSURANCE vs. OWUSU [1965]DLSC1849

Date	1965-06-21
Suit No.
Citation No.	[1965]DLSC1849

MILLS-ODOI JSC

APALOO JSC

BRUCE-LYLE J.S.C.

MRS. A. HARLLEY FOR THE APPELLANTS.

ASAFU-ADJAYE JUN. FOR THE RESPONDENT.

[1965]DLSC1849
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													<main id="main" class="content" style="min-height: 60rem" >ROYAL EXCHANGE ASSURANCE<o:p></o:p>&nbsp;vs.<o:p></o:p>&nbsp;OWUSU <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 490<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
21 JUNE 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MRS. A. HARLLEY FOR THE APPELLANTS.<o:p></o:p>

ASAFU-ADJAYE, JUN. FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MILLS-ODOI, APALOO AND BRUCE-LYLE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MILLES-ODOI J.S.C.<o:p></o:p>This is
an appeal against the decision of the High Court, Accra (Prempeh J. as he then
was) whereby the defendants-appellants (hereinafter referred to as “the
insurers”) were adjudged liable to the plaintiff-respondent (hereinafter
shortly referred to as “respondent”) for the sum of £G1,473 10s. being judgment
debt and costs awarded in a previous action in favour of the self-same
respondent against the insurers’ insured and his driver for the negligent
driving of motor-car No. AE 4305. The facts which are too clear for argument
are as follows: On 29 July 1960 the insured took out an insurance policy in
respect of his private motor-car, Vauxhall Velox Saloon No. AE 4305, against
third party risks with the insurers.<o:p></o:p><o:p>&nbsp;</o:p>The
liability under the policy was limited to the use of the motor-car for only
social, domestic and pleasure purposes and for the insured’s business. It did
not, and was not intended to, cover use for hire or reward or for racing,
pace-making, reliability trial, speed-testing, or use for any purpose in
connection with the motor trade. The insured was at all times material to the
date of the accident which gave rise to the action an assistant stores
superintendent of the Medical Research Institute, and he attended business at
Accra. The policy did not cover liability of the insured alone; it covered also
“any driver who is driving the motor-car on the insured’s order or with his
permission, provided that such driver... shall as though he were the insured
observe, fulfil and be subject to the terms, exceptions and conditions of this
policy, in so far as they can apply.” In other words, the driver was in no
better position than the insured.<o:p></o:p>On 7
October 1962, while the policy was still in force, the respondent agreed with
the insured’s driver to travel as a passenger for reward on the insured’s
motor-car No. AE 4305 from Accra to Aburi. Under and by virtue of that
contract, namely, to convey the respondent as a passenger for reward, the
respondent boarded the motor-car and upon reaching mile 14 on the Accra-Aburi
road, it ran into a ditch and he sustained serious personal injuries. Whereupon
the respondent brought an action against the insured and his driver jointly and
severally and easily recovered judgment for damages and costs against them for
£1,473 10s. He then instituted this action to recover the sum so awarded from
the insurers relying upon the Motor Vehicles (Third Party Insurance) Act,
1958.1<o:p></o:p><o:p>&nbsp;</o:p>When the
case came up for hearing in the court below the respondent tendered in evidence
a copy of the judgment he had recovered against the insured and his driver. He
admitted travelling in the insured’s motor-car on the date in question and that
he agreed to pay a fare to the driver. Nevertheless he denied that he travelled
as a passenger for reward, his reason for so saying being that he was not
conveyed to his destination and did not therefore pay any fare. The essential
part of his evidence material to this case is as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“On 7
October 1962, I travelled on a vehicle No. AE 4305 which went into a ditch. The
driver told me he would charge me a fare. The vehicle did not reach its
destination but went into a ditch and I sustained severe personal injuries. I
never paid any fare because I never reached my destination.”<o:p></o:p><o:p>&nbsp;</o:p>He then
maintained that he is entitled to recover from the insurers the damages and
costs which had been awarded him.<o:p></o:p><o:p>&nbsp;</o:p>The
insurers disputed the respondent’s claim and denied that they were under any
obligation to indemnify him. They did not deny the existence of the policy
between them and the insured. Their defence is grounded upon the fact that the
motor-car was at the time of the accident being used by the insured’s driver in
such a way that it was not covered by the policy at all; and, therefore,
whether the insured is l</main>