Fitness' of the victim
Published:Sunday | February 12, 2012 | 12:00 AM
'Insurance Helpline, With Cedric Stephens
Question: I was involved in an accident last September. The collision was due to the fault of the third party. His vehicle entered a major roadway and crossed the path of my vehicle. The police charged him for dangerous driving. I realised after the mishap that the certificate of fitness for my car had expired two weeks before. Can the third party's insurers refuse to pay my claim because of this?
Mea culpa. Mea maxima culpa. These Latin phrases, for those of my readers who are non-Catholics or who were not exposed to that language, are humble apologies.
I first saw your question a few days ago even though it was sent to me soon after the accident. I was removing old items from the in-box of my mailbox on the file servers of my Internet service provider when I saw it for the first time.
Had the process been done automatically, your mail would have been 'lost' among the 10,000-plus items that are in the archive folder of my e-mail client.
It is unlikely that the third-party insurers would have refused to pay your claim due to the expiration of your car's certificate of fitness.
That issue has absolutely no relevance to your claim against their policyholder. The other driver operated his vehicle in a careless or negligent manner. It was because of his "failure to exercise that degree of care which a person of ordinary prudence (a reasonable person) would exercise under the same circumstances" - which is the definition of negligence, according to Barron's Law Dictionary, Third Edition - why your vehicle was damaged.
Your vehicle was operating in breach of the Road Traffic Act at the time of the accident. Section 10 of that law says: "A motor vehicle shall not be used on a road unless there has been issued in respect of the vehicle, and prior to the licensing of the vehicle, by a Traffic Area Authority, a certificate (in this act referred to as a 'certificate of fitness') that the prescribed conditions as to fitness are fulfilled in respect of the vehicle, and such certificate is in force in respect of the vehicle." Periods of grace are not allowed.
This makes a great deal of sense to me. A vehicle is either roadworthy or unroadworthy. There is no in between. The regulations make provision for the issuing of new certificates "up to 30 days prior to the expiry of the current certificate".
As you should know, the fitness test includes an examination of the following vehicle systems: steering; front end; braking, lighting/signalling, and windscreens.
Why am I so confident that the third-party insurers would not refuse to pay your claim? That assurance is based on two things. What I know about motor policies is one and the other is The Motor Vehicles Insurance (Third-Party Risks) Act. The liability to third parties section of motor insurance contracts would, typically, say something like: "We (the insurance company) will indemnify you (the policyholder) in the event of accident caused by or arising out of the use of the motor car against all sums - which you shall become legally liable to pay in respect of a) death or bodily injury to any person (and) b) damage to the property (of persons other than the policyholder)."
Motor policies have to comply with Section 5 of The Motor Vehicles Insurance (Third-Party Risks) Act.
Section 5 (1)(b)(ii) refers to "liability incurred - in respect of - any damage to property".
The word vehicle is not mentioned in the context of "damage".
Furthermore, there is no specific provision in that law which gives insurers the right to exclude liability in cases where the damaged vehicle does not have a valid certificate of fitness.
What would be the situation if the other vehicle did not have a valid certificate of fitness? The answer to this theoretical question is not as clear cut as it was in your case.
I sincerely hope that your claim was settled long ago without too much hassle and that my response - late though it is - will be of assistance to other readers with questions that are similar to yours.
Cedric E. Stephens provides independent information and free advice about the management of risks and insurance. Send feedback to aegis@cwjamaica.com or SMS/text message to 812-7233.