Dear Editor,
The Stabroek News carried two letters written by Justice Prem Persaud in which a decision by Magistrate Fazil Azeez was criticised. The case involved a breach of insurance, among other charges. I am not aware of the facts of the particular case but this is very public criticism coming from a current member of the Judicial Service Commission.
My letter relates to the offence of breach of insurance and the misunderstanding mainly by the police which leads to prosecutions where they should be none.
Section 3 of the Motor Vehicles Insurance (Third Party Risks) Act Cap 51:03 provides that
“…it shall not be lawful for any person to use or to cause or permit any other person to use a motor vehicle on a public 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 in respect of third party risks as complies with the requirements of this Act.”
A person who contravenes this section,
“shall be liable to a fine of not less than twenty-five thousand dollars and to imprisonment for three months and a person convicted of an offence under this section shall (unless the court thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification) be disqualified for holding or obtaining a driver’s licence under the Motor Vehicles and Road Traffic Act for a period of twelve months from the date of the conviction.”
There may be instances where a driver has never held a driver’s licence or where he has been disqualified by a court of law, and in those circumstances, it is not difficult to prove a breach of insurance under section 3. It has however been the case that the police also charge drivers whose licences have expired with breach of insurance since they believe that if a person’s driving licence has expired then automatically the person was driving without insurance.
This clearly is not so. The question of insurance cover depends upon the wording of the relevant policy. Wilkinson’s Road Traffic Offences 23rd edition states:
“A common form of policy allows driving, with the permission of the insured person, by any person ‘who holds or has held a driving licence’ and is not disqualified, or any person ‘who holds or has held a driving licence’. The exact wording should always be checked. With that form of wording, if the driver has once held a driving licence, he will be covered even though it may have expired and even though it was only provisional.”
It may be useful that before matters relating to breach of insurance are placed before a magistrate, that the prosecutor sees the policy and satisfies himself that its terms do not extend the cover required by the act, to the prospective defendant.
From the perspective of liability, merely proving that on the date of the accident, the driver did not have a licence, is not enough to hold the insurance company not liable for a claim. The onus of proving that the driver of the vehicle never had a licence or was disqualified from holding a licence is on the insurance company.
I hope that this latter clarifies an area which is largely misunderstood and for which the penalty is imprisonment.
Yours faithfully
Dawn A Holder
