[1950] EACA 70

## APPELLATE CRIMINAL

#### Before THACKER AND CONNELL, J. J.

# MAX (CONTRACTORS), LIMITED, Appellant (Original Accused)

### REX, Respondent (Original Prosecutor)

#### Criminal Appeal No. 174 of 1950

(Appeal from decision of R. M.'s Court at Nakuru—W. H. Goudie, Esq.)

Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945, Section 4 (1)-Permitting use of motor-yehicle without insurance policy in force—Driver having no Certificate of Competency-Ignorance of owner-Validity of Policy—Liability.

Appellants employed a driver who, unknown to them had no Certificate of Competency. They held an insurance policy covering "any person driving on the Insured's order or with their permission, provided that the person driving is permitted in accordance with the Licensing or other Laws or Regulations to drive a motor-vehicle, and has not been disqualified from driving". They were prosecuted for permitting the use of the vehicle by the unqualified driver, and convicted.

On appeal from the conviction.

Held (3-5-50).—That, under its terms, the Insurance Policy was not in force in respect of the unqualified driver, and the appellants' ignorance of the disqualification was immaterial.

Conviction upheld.

(John T. Ellis Ltd. v. Hinds (1947) 1. A. E. R. 337 dist.) Appeal dismissed.

Smith for appellant.

Holland, Crown Counsel, for respondent.

JUDGMENT.—The Defendant Limited Company was charged with and convicted of permitting the use of an uninsured motor-vehicle contrary to section 4 (1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945. That section reads as follows: -

"Subject to the provisions of this Ordinance it shall not be lawful for any person to use, or to cause or permit any other person to use, a motorvehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance."

The facts in the case, according to the record are that the Asian driver of the vehicle in question had no Certificate of Competency as he should have had. This fact was not according to the evidence, known to the defendant company. The Asian driver was admittedly in the defendant company's employ.

The question before the lower court was "was there in force at the time in relation to the user of the vehicle by the driver such a policy of insurance as complies with the requirements of the Ordinance?" The Magistrate, with a certain amount of doubt, as he expresses it, found that there was not and convicted the

accused company. The relevant part of the policy taken out by the defendant company reads and provides cover as follows: -

"Driver: Any of the following: $-$

$(a)$ The Insured.

(b) Any person driving on the Insured's order or with their permission, provided that the person driving is permitted in accordance with the Licensing or other Laws or Regulations to drive a motor vehicle and has not been disqualified from so driving."

It is not so much a question, we think, of whether the policy was void or voidable, in that the driver had no competency certificate to drive the particular type of motor-vehicle, but rather was there a policy in force at the time? The difference may not be very real but it is, we think, preferable to keep to the actual wording of the section. The latter part of the Magistrate's judgment appears to be, in our judgment, sound and that because the person driving the vehicle was not qualified, the policy was not in force. Our attention has been drawn by Mr. Smith to the case of John T. Ellis, Ltd. v. Hinds, 1947, 1 All England Reports, p. 337. At first sight the facts in that case might seem similar to the facts in the present case. We will not recite the facts in that case which are there in the Law Reports to be ascertained. A scrutiny, however, of these facts will show that there is a difference in the facts here and in the English case. The relevant clause in the policy of Insurance in the English case read as follows:—

"The company shall not be liable in respect of any claim arising (1) whilst such vehicle is $\ldots$ (c) being driven with the general consent of the insured or of his representative by any person who to the knowledge of the insured or such representative does not hold a licence to drive such vehicle."

In that policy "knowledge" was essential before the exceptions clause operated and the Insurance Company relieved of liability.

Here in this case the exceptions clause in the policy is more strict and more absolute. It does not matter, by virtue of the strict wording of the relevant clause in the present insurance policy whether the Irsured knows or knew that the driver was not qualified. If the driver be $r_{\infty}$ in fact qualified the Insurance Company is relieved from liability and it matters not whether the Insured knew this fact or was ignorant of it. We therefore consider the English case referred to as distinguishable from the present case before us.

Upon the facts, as we see them, there was not in fact and in law a policy of insurance in force at the time the unqualified driver was driving the vehicle and the defendant company was rightly convicted.

The appeal is dismissed.