Supreme Court of Mauritius, 16 janvier 2020, 2020 INT 4 – Indian Ocean General Assurance Ltd v Phoenix Insurance Mauritius Co. Ltd

1 Indian Ocean General Assurance Ltd v Phoenix Insurance Mauritius Co. Ltd

2020 INT 4

Cause Number 1352/11

IN THE INTERMEDIATE COURT OF MAURITIUS

In the matter of:

Indian Ocean General Assurance Ltd

Plaintiff

v.

Phoenix Insurance Mauritius Co. Ltd

Defendant

Judgment

A road accident occurred on 25 May 2010 at Royal Road Cascavelle between vehicle No.1009 ZS 04 (owned by Jobs Construction Co. Ltd insured with Plaintiff) and vehicle No. 2097 ZB 90 (insured with Defendant) as a result of which vehicle No.1009 ZS 04 got damaged. Plaintiff is claiming several items of damages for the prejudice allegedly suffered as a result of the said accident in the sum of Rs.177, 580/- given that it has been subrogated into the rights and actions of its insured. Plaintiff has further alleged that the driver of vehicle No. 2097 ZB 90 was solely to be blamed for the collision which occurred entirely through his fault, negligence and imprudence and as such the said vehicle was under the care and

2 custody of the Defendant’s insured and therefore Defendant as insurer is bound to make good the damages sustained by Plaintiff’s insured. The material/essential facts on which this cause of action rests are as per Plaintiff’s averments that at the material time, vehicle No.1009 ZS 04 driven by one Louis Jacques Noel Camoin along Royal Road, Cascavelle was proceeding towards the direction of Quatre Bornes. Whilst vehicle No.1009 ZS 04 was overtaking vehicle No. 2097 ZB 90, the latter suddenly turned to its right to enter into a Road leading to Cascavelle and in so doing vehicle No. 2097 ZB 90 hit vehicle No.1009 ZS 04 which went to knock against a bus stop and got damaged. Defendant has denied liability in its plea for the collision between the two said vehicles and has not averred any impact whatsoever caused by any of the said vehicles against a bus stop or any other structure and more importantly has not averred any damage so caused as a result of the said road accident to any other structure or bus stop. Indeed, it is significant to note that there has been no damage caused to another structure namely the bus stop as per the averments of Plaintiff nor is it an item for the claim in damages by Plaintiff. The issue of quantum has been resolved while liability is disputed. It is of paramount importance to note that it has transpired from the averments in the pleadings that (a) the damage is confined to the two motor vehicles only without any injury being caused to any party, (b) there is no specific proposition to impute that one of the drivers was under the influence of liquor or drugs at the material time or that one of the vehicles was not equipped with a valid insurance vignette or that one of the drivers did not hold a valid driving licence at that time and (c) there were no State – owned vehicles involved. It is of cardinal importance to note that it is trite law that each party is bound by its pleadings and cannot travel outside. It is appropriate to quote an extract from the case of New Beau Bassin Co-operative Store v Juggroo [1980 MR 320] applied in Gheesah I.M. v The Road Transport Commissioner, National Transport Authority & Anor. [2016 SCJ 77], where it was held as follows:- “A ‘cause of action’ is constituted by the averment of facts which, if denied, require to be proved to enable a Plaintiff to obtain the remedy he seeks. The nature and extent of the remedy sought is a legal consequence of those facts and, as such,

3 is a matter of law which the Court has to apply. Pleadings, therefore, are designed to aver, not the law, but the facts which constitute the ‘cause of action’.” It is opportune to refer to the case of Gungadin J. v The State of Mauritius Anor.[2015 SCJ 193] where it was tersely stated that in order to decide as to whether a plaint discloses a cause of action, the essential averments contained in the Plaint with Summons will have to be examined closely. After having complied with that exercise, the matter was set aside without recourse being had to particulars in order to render valid or to cure that otherwise invalid cause of action. This is because, it is not the function of particulars to take the place of essential averments in the plaint in order to fill the gaps to make good an inherently bad plaint (as per Scott L.J. in Pinson v Lloyds & National Foreign Bank Ltd.[1941] 2 KB 72 at 75) ; see also – Charlie Carter Pty Ltd v. The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 at 419 and H 1976 Nominees Pty Ltd v. Galli (1979) 30 ALR 181 at [13] – [23] which pertain to a Common Wealth jurisdiction namely Australia derived from the English rules of procedure like ours.) – otherwise any bogus or nonsensical plaint will be endlessly cured by way of particulars which is against the overriding principle of procedural fairness ensuring proportional expenses and thus undermining faith in our civil justice system as fundamentally defective plaints would de facto be non-existent. This is because the purpose of particulars is to define the generality or vagueness of material facts already pleaded with a sufficient degree of specificity to convey to the other party the case that it has to meet by the evidence ex facie the plaint on the basis of the facts pleaded which if proved, are sufficient to establish the cause of action relied on (see – Danjoux v Partnership Bangaroo – Danjoux and Cie [2001 MR 64] ; Spedding v. Fitzpatrick (1888) 38 Ch.D. 410; 59 l.t.492, C.A. ; Cassim (supra) and Premchand I. & Ors. v. Jagoo A.R. & Ors.[2013 SCJ 184]).

4 Thus, particulars form part of the pleadings as a matter of concept only and no more. Therefore, it is not open to the Defendant to prove facts which have not been averred, for example, by saying in the witness box that the driver of the vehicle of its opponent’s insured did not have a valid insurance vignette to cast doubt on the road- worthiness of that vehicle, or that the driver was unfit as he was driving under the influence of alcohol or drugs or did not hold a valid driving licence or that the damage was more to another structure so that it was exaggerated. I find it convenient to quote an extract from the case of Danjoux v. Partnership Bangaroo – Danjoux & Cie [2001 SCJ 94]: “Rule 13 of our new Rules of Court (applicable to this case see section 9(1) of the Judicial and Legal Provisions Act 2000) is as follows:- 13. Contents of pleadings (1) Every pleading shall clearly and distinctly state all matters of fact that are necessary to sustain the plaint, plea or counterclaim as the case may be. This is similar to rule 16 of the Rules of the Supreme Court 1903 which were formerly applicable. For guidance on the interpretation of our own rules we refer to the English Supreme Court Rules. See Lemière v. Malécaut [1993 MR 318] or Hawaldar v. Prayag [1960 MR 55] which refers at page 57 to Odgers’ Principles of Pleading and Practice and to the English Rules of the Supreme Court, the Annual Practice 1960, to interpret order 19 rule 12 as to a statement of defence – But whether he denies or does not admit, he must make it perfectly clear how much he disputes and how much he admits. Following the Woolf Reforms in England, the relevant part of Order 18 has now been simplified and replaced by Civil Procedure Rule 16.5 which states- 16.5 Contents of Defence

5 (1) In his defence, the defendant must state – (a) which of the allegations in the particulars of claim he denies; (b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and (c) which allegations he admits. (2) Where the defendant denies an allegation – (a) he must state his reasons for doing so; and (b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version. Further any party to a case must plead specifically any matter, which if it is not pleaded, may take the opposite party by surprise. In the present case Defendants have simply denied Plaintiff’s allegations. But a mere traverse is not sufficient. Defendants must state clearly the facts they rely upon to contradict Plaintiff’s version. They need not adduce evidence in their pleadings. They must inform the Court and their opponent of the specific proposition on which they rely while avoiding prolixity.” Our District Court and Intermediate Court (Civil Jurisdiction) Rules being silent on that issue, we follow Supreme Court Rules for guidance (see – Jhundoo v. Jhurry[1981 SCJ 98]). Therefore, the Defendant has not pleaded specifically to the proposition that the vehicle of its opponent’s insured was not roadworthy or that its driver was unfit to drive or that the damage was more to another structure than to that vehicle.

Hence, there is no need for me to go into the merits of the evidence to hold that all the proceedings before this Court is tantamount to a nullity in the absence of jurisdiction of this Court in the present case in the light of the recent Supreme Court judgment of Swan Insurance Co Ltd & Anor v Rossaye A A & Anor[2017 SCJ 28], because it falls squarely within the ambit of section 68A of the Road Traffic (Amendment) Act No.36 of 2003 amending the Road Traffic Act

6 (the Act) (effective as from 1 August 2004) which is reproduced below (as the accident occurred in May 2010):

“68A. Motor vehicle damaged in road accidents Notwithstanding any other enactment or anything to the contrary in an insurance contract, sections 68B to 68J shall apply to every road traffic accident between 2 motor vehicles which does not involve – (a) bodily injury to persons travelling in the motor vehicles; (b) injury or other prejudice to any other person; (c) damage to other structure or property; (d) a motor vehicle which does not have a valid insurance vignette; (e) a motor vehicle being driven by a person not holding a valid driving licence; (f) a motor vehicle being driven by a person under the influence of alcohol or drugs; (g) a State – owned vehicle.”

The Motor Vehicle Insurance Arbitration Committee hereinafter referred to as (M.V.I.A.C.) which has been set up by the Act is an administrative tribunal (see – Mauritius Union Assurance Co. Ltd. v. GFA Insurance Co.Ltd.[2011 SCJ 34] followed in the case of GFA Insurance Ltd v Motor Vehicle Insurance Arbitration Committee [2011 SCJ 173]) and in Swan Insurance Co Ltd & Anor (supra)) and is consequently the right forum to hear the present case and not this court for the reasons given below :- (1) There cannot be an “arbitrage forcé” or a “State – imposed arbitration” in as much as such practice would glaringly be a blatant violation of the very essence of the voluntariness of the intention of the parties to have a matter referred to an arbitrator or arbitral body. The M. V. I. A.C. is, therefore, necessarily more in the form of a “juridiction d’exception” or a “quasi-judicial body” so that its name can only be described as a protean one which is more adapted to be a tribunal driven mechanism to settle the rights of, inter alia, insured and insurers (see – Mauritius Union Assurance Co. Ltd.(supra) and GFA Insurance Ltd(supra)). (2) Section 68E of the Act makes it clear that should the dispute not be resolved amicably between 2 insurers or between a policy holder and an insurer, regarding their respective liability or the amount of compensation to be paid,

7 the dispute shall, if it has not been resolved amicably within the prescribed period, be referred to M.V.I.A.C. for determination and not for arbitration meaning for a judicial decision or sentence notwithstanding any other enactment. In this manner, the law does not make any provision for the renunciation of the right to the jurisdiction of the M.V.I.A.C. (3) The determination of the Committee is self- executory, without the need for an exequatur of the Judge in Chambers or the Supreme Court as opposed to an arbitral award. The winning party simply has to deposit a copy of the determination of the M.V.I.A.C. at the Registry of the Supreme Court, from which a rule for execution of that determination shall issue (see- Mauritius Union Assurance Co. Ltd (supra)). (4) The M.V.I.A.C. is vested with large discretionary powers by virtue of the Sixth Schedule and section 68H (2) of the Act regulating its procedure which is one of the main attributes of a tribunal. For instance, should the matter not be resolved amicably by the 2 insurers or between a policy holder and an insurer on the basis of an Agreed Statement of Facts Form (ASF) or a Minor Road Accident Report Form within the statutory period, any party to the dispute may lodge an application with the Secretary of the M.V.I.A.C. on a form to be approved by the Committee stating precisely the issues which the Committee will be expected to determine. On receipt of the application, the Secretary shall request the other party to make written representations to the Committee, in reply to the issues raised by the applicant, within a period of 7 days from the date of receipt of the request made by the Secretary. The Committee shall determine the dispute on the basis of the written representations made but may call for further information from the parties to the dispute or from other persons having the relevant expertise in matters to be decided by the Committee. (5) Thus, it is amply clear that the M.V.I.A.C. carries the distinguishing mark of an administrative tribunal in that it has no standard procedure to follow and has a free choice as regards its own policy and expediency provided that it remains within the ambit of its prescribed limits. This is in line with the rationale of the case of Mauritius Union Assurance Co. Ltd.(supra) wherein the Supreme Court referred to the report from the Franks Committee in the U.K. which is reproduced below:

8 “1-076. Tribunals have not been forced into a strait-jacket of uniformity, but their essentially adjudicatory role has been emphasised by rules underlining their independent status, ending undue informality, regularising procedures (…) A-027 A typical lis inter partes culminates in a decision by a tribunal resolving any disputed question of law or fact; the legal issues are determined by reference to principles and rules already in being. A tribunal or other deciding body is therefore likely to be held to be acting in a judicial capacity when, after investigation and deliberation, it determines an issue conclusively by the application of a pre-existing legal rule or another objective legal standard to the facts found by it. That interpreting, declaring and applying the law are the characteristic hallmarks of the judicial function (…).”

(6) The decision or determination of the M.V.I.A.C. is amenable to review by way of judicial review (vide – Ceylincostella Insurance Co. Ltd v. Motor Vehicle Insurance Arbitration Committee [2009 SCJ 181]; GFA Insurance Co. Ltd v. Motor Vehicle Insurance Arbitration Committee [2009 SCJ 263] and New India Assurance Co. Ltd v. Motor Vehicle Insurance Arbitration Committee [2008 SCJ 131]). That is why there is a statutory obligation imposed on the M.V.I.A.C. to follow certain procedural rules and more importantly to give reasons for its decisions as elaborated in Rules 4&5 of the Sixth Schedule of the Act. Rule 4 reads as follows: “Upon receipt of written representations from the respective parties, the Committee shall determine the dispute within a period of 6 weeks as from the date the application is submitted to the Secretary.” and Rule 5 is reproduced below: “The Committee shall communicate its findings in writing by registered post, stating briefly the reasons in support thereof, to the parties within two weeks from the date of its determination.” The law has gone even further and provided in section 68 H(3) of the Act that the party liable has to comply with its determination within 21 days from the date it is communicated to him, unless he decides to proceed by way of judicial review before the Supreme Court( see – section 68F (10) of the Act which reads as follows:

9 “68F. Motor Vehicle Insurance Arbitration Committee (…) (10) For the avoidance of doubt, a decision of the Committee shall be subject to judicial review by the Supreme Court.”) (7) Therefore, the Intention of Parliament in setting up the M.V.I.A.C. as per the Act is for the expeditious, efficient and economic resolution of disputes by the application of flexible and discretionary standards and procedure with the added advantage of being staffed by members having a wide experience and knowledge in the field of transport, traffic management, insurance, automobile engineering or motor surveying (see – The Sixth Schedule and sections 68F& 68H of the Act) arising out of what is commonly known as minor road accidents within the ambit of section 68A given that the damage is confined to the 2 motor vehicles involved only and nothing else as in the present case. Obviously other types of road accidents involving drivers of motor vehicles not within the purview of section 68A would be major road accidents entailing lengthy police enquiries followed by civil suits taking a relatively longer time and entailing more expenses. An excerpt from the case of Mauritius Union Assurance Co. Ltd. (supra) which is directly in point reads as follows: “The purpose of the law was to avoid lengthy police enquiries followed by civil suits which took a fairly long time concerning what are in fact minor road accidents.” (8) Thus, the present matter like other cases of minor road accidents falling within the ambit of section 68A of the Act has to be brought before the M.V.I.A.C which is a fast track jurisdiction entailing less expenses inasmuch as such cases have been taken away from the courts by the Legislator. It obviously cannot be the Intention of Parliament to give the parties a free hand to test the waters at the M.V.I.A.C and if not satisfied to lodge a case before the Intermediate or District Court as that would defeat the very essence of the fast track process entailing longer litigation processes, more expenses and resulting into the unnecessary clogging of the Intermediate or District Court with minor road accident cases when these courts are already heavily congested and finding it difficult to cope with the case load. Nor is it open to a

10 party to seize the civil jurisdiction of the Intermediate Court to have a “milder offence” ranking to be brought to a “higher offence” ranking by trying to reap the benefit of a more important compensation because once fitted into the milder category, the milder damages as per the scales provided for would ensue inasmuch as holding otherwise would go against the rules of interpretation (see- Canhye & Ors. v The Queen [1864 MR 168] by way of analogy.) (9) It is worthy of note that true it is that section 104(1) of the Courts Act has not been repealed by any enactment but it is clearly stated in section 68A of the Act that “notwithstanding any other enactment (…)sections 68B to 68J shall apply to every road traffic accident between 2 motor vehicles (…)” coming within its purview. Furthermore, section 68E of the Act makes it clear that “notwithstanding any other enactment”, in the absence of any amicable resolution of dispute (be it in relation to liability or the amount of compensation) within the prescribed delay, the matter shall be referred to the M.V.I.A.C. for determination. Section 104(1) of the Courts Act is reproduced below:

“104. Civil jurisdiction (1) Subject to this Part, the Intermediate Court or a District Court shall have jurisdiction in all civil cases where the sum or matter in dispute, whether in balance of account or otherwise, does not exceed the prescribed amount, exclusive of interests and costs.”

I find it appropriate to quote an extract from the case of Pabaroo v. Varmah & Ors. [2013 SCJ 197]:

“It is a cardinal principle of statutory interpretation that provisions of a general nature cannot override specific statutory provisions which have been expressly enacted to deal with a particular situation. This is aptly conveyed by the maxim Generalia Specialibus Non Derogant which means that, for the purposes of the interpretation of two statutory provisions which may appear to be in conflict, the provisions of the general statute must yield to those of a special one.

11 This principle is succinctly explained in the following passage from Sullivan and Diedger on the Construction of Statutes [4 th Edition (Butterworths 2002) at page 273]:

“When two provisions are in conflict and one of them deals specifically with the matter in question while the other is of more general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the general; it does not matter which was enacted first. This strategy for the resolution of conflict is usually referred to by the latin name generalia specialibus non derogant”.

Hence, the specific sections 68A and 68E of the Act will have prevalence over the general section 104(1) of the Courts Act.

(10) The proper course to adopt would have been for any party to the dispute pursuant to section 68E and the Sixth Schedule of the Act having failed to reach an agreement, ought to have referred the matter to the M.V.I.A.C. for determination. Liability and its extent or its percentage has to be determined by the Committee after having taken into consideration all material facts and documents including ,inter alia, the survey report, estimates of repairs and the written representation submitted by the applicant for the committee to determine the quantum compliant with the percentage liability as per the various scenarios envisaged as per the said Schedule and pursuant to the Scale of liabilities of the Act and as per section 68D which is a requirement of the law and which the present court is not habilitated to do. I find it pertinent to quote an extract from the case of New India Assurance Co. Ltd (supra):

“Section 68D of the Act sets out the legal parameters within which the Committee is to act in determining the liability of the insurers. The Committee is to act on the basis of the Agreed Statement of Facts or as the case may be on the report of the police on the facts observed and recorded by them and in accordance with the scales of liabilities specified in Part B of the Fifth Schedule”.

12 (11) Therefore, an attempt to adopt the standard procedure meant for all civil suits as per section 104(1) of the Courts Act in cases of minor road accidents falling within the scope of section 68A of the Act would be repugnant to the amendment brought thereby clogging the courts unnecessarily with minor cases and thereby impeding the smooth running of the whole Administration of Justice. Further, it will go against the desire to have specific issues dealt with persons with an intimate knowledge and experience of the problems involved which a court with a general jurisdiction might not acquire. Besides, it will go against the provision of a speedier and cheaper procedure than that afforded by the ordinary courts. It is significant to note that neither the Courts Act nor the District and Intermediate Courts (Civil Jurisdiction) Act nor any other written law in Mauritius has conferred concurrent jurisdiction upon the Intermediate and District Courts alongside an administrative tribunal. Parliament obviously has not legislated in vain.

(12) By the amendment made, it follows that the procedure meant for major road accident cases which applied to minor ones within the description of section 68A of the Act has been repealed by implication by sections 68B to 68J of the Act. It is clear that the repeal flows from necessary implication as the two procedures cannot co-exist. See – Chineegadoo v Chineegadoo[1962 MR 223] and Rayah v The Queen[1871 MR 132]) by way of analogy and guidance.

It is significant to note that in Swan Insurance Co Ltd & Anor (supra), it was held that “the process before the M.V.I.A.C. provided under section 68 of the Road Traffic Act confers upon the Committee the status of public body having for function the determination of disputes falling within its purview” and that consequently “matters falling within the purview of the Committee would have to be determined exclusively by it.” Indeed, the above reasoning is highlighted in the following extract from Swan Insurance Co Ltd & Anor (supra) reproduced below: “The juridical nature of the M.V.I.A.C. has been considered in the case of Mauritius Union Assurance Co Ltd v GFA Insurance Co Ltd [2011 SCJ 34] where the appellate Court after referring to the Explanatory Memorandum to the Road

13 Traffic(Amendment No.3) Bill and to the legislative scheme set up under section 68A and following, had this to say – “The so-called arbitration process provided for under section 68 of the Road Traffic Act is a creation of the law. The law imposes on the citizens a special procedure when they agree on the circumstances of an accident. When the drivers do not agree, the Police would record the facts on the Minor Road Accident Form. Once a dispute arises between the insurers, or between a policy holder and an insurer, “arbitration” of that dispute by the MVIAC is imposed on those parties. The law does not make any provision for the renunciation of the right to the jurisdiction of MVIAC, which thereby becomes a truly quasi-judicial body (juridiction d’exception)” [Emphasis added] (…) The legislative scheme set up under the Road Traffic Act makes it imperative for the drivers involved in a road accident, where section 68A of the Act is applicable, to record the circumstances of the accident in the “Agreed Statement of Facts Form” set out in Part A of the Fifth Schedule to the Act. Every driver involved in an accident has a duty to report it to his insurer and to send to the insurer a copy of the “Agreed Statement of Facts Form” within 5 days of the date of the accident. For that purpose every driver of a motor vehicle shall carry in his vehicle an “Agreed Statement of Facts Form”, failing which he shall commit an offence. The Police would only investigate into the circumstances of the accident where the drivers do not agree. The facts and circumstances of the accident would then be recorded in a “Minor Accident Report Form” and a copy of this form is sent to the insurers not later than 10 days after the accident. Thus the driver involved in a road accident is not under the duty to report the accident under section 140(1) (d) of the Act thereby relieving the Police from investigating into the circumstances of the road accident. The liability of the insurers is determined on the basis of the “Agreed Statement of Facts Form” or the “Minor Accident Report Form”. Where any dispute concerning their respective liabilities and the amount of compensation is not resolved amicably, it has to be referred for determination by M.V.I.A.C. as provided under section 68E of the Act which is reproduced: “68E. Settlement of dispute

14 Notwithstanding any other enactment, where a dispute arises between 2 insurers, or between a policy holder and an insurer, regarding their respective liability or the amount of compensation to be paid, the dispute shall, if it has not been resolved amicably within the period specified in section 68D(c), be referred to the Motor Vehicle Insurance Arbitration Committee for determination.” Further, pursuant to section 68F (10) of the Act, any person dissatisfied with the decision of the M.V.I.A.C. may make an application for judicial review of that decision.”

Hence, this court has no jurisdiction to determine the present case which falls squarely within the ambit of section 68A of the Act.

For the reasons given above, the plaint is set aside with costs.

S.D. Bonomally (Magistrate) 16.1.2020.

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