019-SLLR-SLLR-2004-V-1-CENTRAL-COUNCIL-OF-DISABLED-PERSON-v.-OVITAGE.pdf
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CENTRAL COUNCIL OF DISABLED PERSONSvOVITAGECOURT OF APPEALTILAKAWARDENA, J. (P/CA) ANDWIJEYARATNE, J.
A. 410/2000 (F)
C. BANDARAWELA 1115/MOCTOBER 13, 2003
Motor Traffic Act, sections 2, 99 (1) and 100 (1) (b)- Who is liable in respect ofdeath/injury caused to a third party? – Registered owner – Juristic person – Canit be sued? – Who is a person? – Civil Procedure Code, section 16.
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Central Council of Disabled Persons v Ovitage
(Wiievaratne, J.)
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The plaintiff-respondent-respondent sued the 1st defendant-respondent – therider of the motor cycle who caused the collision with the deceased resulting inhis death – and the 2nd defendant-appellant who is the registered owner of themotor cycle and the employer of the 1st defendant-respondent.
The 2nd defendant-appellant, by its Chairman, defended the action against the2nd defendant. It was contended that the action cannot be maintained against the2nd defendant-appellant who is not a juristic person.
The trial court entered decree in favour of the plaintiff-respondent.
ON APPEAL –
Held:
Per Wijeyaratne, J.,
"The person liable in respect of death or bodily injury to a third party is theregistered owner. Accordingly the 2nd defendant-appellant is the personaccording to the Motor Traffic Act that should be sued in the event of deathof a third party caused by the use of the motor vehicle concerned whether itis a juristic person or otherwise.”
It is trite law that an organisation which is not a juristic person should be repre-sented by a principal officer such as Chairman/ President/ Secretary. In the instantcase, the Chairman of the 2nd defendant organisation has not only filed proxy butanswered fully the case against the 2nd defendant. This is in total accord withsection 16 of the Civil Procedure Code. It is in order and lawful to enter judgmenton the 2nd defendant-appellant as well.
APPEAL from the judgment of the District Court of Bandarawela.
S. Igalahewa, with Iranganie Abeysinghe for 2nd defendant-appellant.
Athula Perera for plaintiff-respondent.
Cur.adv.vult.
October 28,2003
WIJEYARATNE, J.This appeal is preferred by the 2nd defendant-appellant from the 01judgment of the learned District Judge of Bandarawela dated
given in favour of the plaintiff-respondent awarding dam-ages in a sum of Rs. 354,000/- and costs of the suit.
The plaintiff-respondent sued the first defendant who was therider of the Motor bicycle who caused the collision with the deceased
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on 06.12.1989 at Bandarawela resulting in his death and the seconddefendant who is the registered owner of the motor bicycle ridden bythe first defendant-appellant. The plaintiff-appellant who claimed tohave been supported and maintained by her son the deceasedsought to recover a sum of Rs. 200,000/- by way of damages whichshe sustained due to shock, mental agony or pain of mind and the dis-tress she suffered by reason of the sudden death of her son and a fur-ther sum of Rs. 600,000/- for loss of support she got from herdeceased son. The first defendant as the person involved in the acci-dent and the second defendant who was the registered owner of themotor cycle and the employer of the defendant, on the basis of vicar-. ious liability were sued jointly and separately.
The first defendant though served with summons did riot appearand defend the action against him and accordingly ex parte trial washeld against him. The second defendant, by its Chairman RajaSenadheera Marasinghe defended the action against second defen-dant. The second defendant-appellant in his answer took up the posi-tion that action cannot be maintained against the second defendantwho is not a juristic person and that the first defendant used the motor-bicycle in question contrary to the strict instructions not to use thesame and the defendant was not using the said motor bicycle not asemployee/representative of the second defendant institution. Theanswer further pleaded that collision took place as a result of the neg-ligence on the part of the deceased Podimahattaya Wijesundera andthat in any event the second defendant is not liable to pay any dam-ages and the damages claimed were excessive. Whilst denying therest of the averments, the second defendant-appellant sought thedismissal of the plaintiff’s action.
After trial where several issues raised by the respective partieswere tried on evidence adduced by the plaintiff and the second defen-dant, the court answered several issues in favour of the plaintiff butawarded compensation in a sum of Rs. 354,000/- without interest andthe costs of the action, and entered decree in favour of the plaintiff.
The second defendant-appellant appealed from the judgmentand decree so entered, on several grounds that the learned TrialJudge erred in law in maintaining the action against the 2nd defendantwho is not a juristic person, that court acted on testimony of the solewitness Ratnapala who claimed to be the sole eye witness who did
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not even make a statement to the Police, did not sufficiently considerthe proceedings before the Magistrate and the negligence on the partof the 1st defendant was not established. The second defendant fur-ther urged that the fact that the 1st defendant used the vehicle con-trary to strict instruction not to use the motorcycle should absolve the2nd defendant from any liability to pay damages.
At the hearing of the appeal the 2nd defendant-appellant urgedthat the 2nd defendant who is neither a natural person nor a juristicperson cannot be sued and action could not have been maintainedagainst it. The second defendant-appellant however did not lead anyevidence at the trial to prove the nature of its existence. Yet the prin-cipal officer of the 2nd defendant institution, describing himself as theChairman of the council filed proxy and defended the action againstthe 2nd defendant. The learned trial Judge having considered all thematerial before him including P1 the extract of the registration of theownership determined that the 2nd defendant is a “person” who hadthe registration in its favour and in terms of the provisions of section 2of the Motor Traffic Act which permit the registration of a motor vehi-cle only in the name of a person, the 2nd defendant was considereda person and therefore can be sued. In terms of the provisions of sec-tion 99(1) the person using the motor vehicle is required to insure thesame in respect of third party risks and provisions of section 100(1 )(b)requires such policy of insurance to be in respect of “any liability whichmay be incurred by him or them in respect of death of or bodily injuryto any person caused by or arising out of the use of the motor vehicleon a highway.”
Accordingly the person liable in respect of death or bodily injurycaused to a third party is the person who is the registered owner of themotor vehicle concerned. Accordingly the 2nd defendant is the personaccording to the Motor Traffic Act that should be sued in the event ofdeath of a third party caused by the use of the motor vehicle concernedas the defendant whether it is a juristic person or otherwise.
The only question that may arise for determination is whether the2nd defendant who is not a juristic or natural person is properlybrought before the court to answer the case against it. It is trite lawthat an organization which is not a juristic person should be repre-sented by its principal officer such as Chairman/President andSecretary etc. In the instant case the Chairman of the 2nd defendant
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organisation has not only filed proxy but answered fully the caseagainst the 2nd defendant and joined issue with plaintiff in defendingthe action. This is in total accord with the spirit of section 16 of theCivil Procedure Code. Accordingly the 2nd defendant is fully and ade-quately represented in court by the Chairman the principal officer ofthe organization / institution and without any prejudice to its interests,and it is in order and lawful to enter judgment on the 2nd defendantas well.
The 2nd defendant-appellant also urged that the sole eye wit-ness to the collision Ratnapala had not made a statement, contem-poraneous or otherwise, to the Police, and therefore his evidence can-not be relied on possibly on the basis that this evidence may havebeen fabricated. His evidence has stood the test of probity throughlengthy cross-examination. The defence has not elicited any fact thatshould affect the credibility of him as a witness. On the contrary thepossibility of his being present at the scene of the collision is estab-lished through other independent evidence of his being the personwho admitted the deceased to hospital and his having informed theplaintiff of her son’s accident the same evening are factors that wouldcorroborate his claim to have seen the collision. The witness who hasacted quite naturally was more concerned abqut the welfare of the vic-tim rather than litigation and has not given much concern to the mak-ing of the statement to police. It should also be borne in mind thatDecember 1989 was in the height of insurrection, when no body daredto walk into a Police Station. Above all these, the witness who stoodthe test of veracity, had been believed by the learned Trial Judge whohas seen him, heard him and been in a position to observe hisdemeanour had believed him. In the absence of any material evi-dence on record, this Court sitting in appeal has no reason to rule thatthe Learned Trial Judge should not have believed him or relied uponhis evidence.
On the contrary the facts the witness spoke of the deceasedbeing knocked down by the motor cycle concerned his having suf-fered bleeding injury and having admitted to the hospital are all mat-ters that are not in dispute but admitted by the 1st defendant in his firstinformation P3 to the Police. According to such information the firstdefendant had attributed contributory negligence on the part of thevictim. But at the trial there is no evidence whatsoever adduced by the
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defendant to establish such contributory negligence or at least the col-lision took place in some other way than that described by the plain-tiff witness. The first defendant pleaded guilty to counts 2 and 3 of thecharge sheet before the Magistrate Court and thereby admitted thedeath of Podimahattaya Wijesundara-was as a result of this collisionwhich he failed to avoid. In view of all these facts the argument of thesecond defendant-appellant that the learned Trial Judge could nothave relied on prosecution evidence, should fail.
The argument of the second defendant.-appellant that thelearned Trial Judge did not adequately consider the defence evidencethat the first defendant had used the motorcycle contrary to strictinstruction is not borne out by the evidence on record. Second defen-dant’s failure to adduce any evidence with regard to such strict instruc-tion, or to at least specify the field officer to whom the motorcycle wasallocated and the designation of the first defendant with necessarydocumentary evidence has received due consideration of the learnedTrial Judge who refused to act on mere statement of second defen-dant witness as a person who tried every possible means of evadingliability of paying compensation. We see no reason to interfere withsuch findings of the learned trial Judge.
As regards the question of damages, the learned Trial Judge hadnot determined the amount of compensation on the basis of the earn-ings of the deceased, but on the basis of support the plaintiff receivedfrom the deceased only. Further no allowance was given to the shockand pain of mind the plaintiff is said to have suffered. Accordingly thecomputation is on legally accepted basis and on reasonable estima-tion only. There is no reason or basis to interfere with such estimation.
In the result the argument of the second defendant-appellantfails, and the findings and the judgment of the learned Trial Judge isaffirmed.
The appeal of the second defendant-appellant is dismissed withcosts fixed at Rs. 15,000/-.
TILAKAWARDENA, J. (P/CA)I agree.
Appeal dismissed.
Editors Note – The Supreme Court on 18.5.2004 refused special leaveto the Supreme Court in SCSPLA 332/03.
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