Court Notices published in Govt. Gazette No. 19,874 of 03 October 2017

By means of a decree given by the Court of Appeal (Inferior Jurisdiction) in the records of the Appeal Application in the names GasanMamo Insurance Limited et vs Martin Farrugia et, Application number 1/2016 AE, the following publication was ordered for the purpose of service of the respondent Martin Farrugia, in terms of Article 187(3)et sequitur of Cap. 12.

By means of an Application, filed, in the Court of Appeal, in the names Gasan Mamo Insurance Limited (C 3143) vs Martin Farrugia et, Application number 1/2016 AE, Arbitration Number M 3836/2013, Following the Decision given at the Maltese Arbitration Centre, on the 15th December, 2015, in the names GasanMamo Insurance Limited (C 3143) as subrogated in the rights of its insured Anthony Scerri(ID 713745M) both by policy and by law and the same Anthony Scerri vs Martin Farrugia and by decree of the 14th April, 2014, there intervened in the cause the Fund for Protection and Compensation and and the Motor Insurers’ Bureau and by another decree of the 6th May, 2014, there was called into the cause Selina Mckay, on the 4th January, 2016, the applicant intervenors in the cause the Fund for Protection and Compensation and the Motor Insurers’ Bureau respectfully pleaded,

That by means of the obligatory arbitration procedures with number M3836/2013, presented in the Maltese Arbitration Centre, on the 29th October, 2013, the applicant GasanMamo Insurance Limited as subrogated in the rights of its insured Anthony Scerri and the samr Anthony scerri in his own name asked that the respondent Martin Farrugia should be condemned to pay the damages suffered by them in a car accident which occurred on the 24th September 2012, in Triq l-Imdina, Ħaż-Żebbuġ, in which incident there was involved the vehicle with registration SEL 142 (Trial Run 143) driven by the respondenT Martin Farrugia and the vehicle with registration number PHI 185 property of the applicant Anthony Scerri. In fact, in the written application the applicants asked:

1) A Declaration that the respondent was solely responsible for the car accident in question,

ii)A condemnation against the same respondent to pay the sum of four thousand four hundred twenty seven euro and forty nine cents (€4427.49) besides the judicial costs and the interest from the date of presentation of the arbitration till the date of effective payment;

That the respondent Martin Farrugia did not bring forward any reply in these arbitration procedures and thus remained in default.

That as it results that the vehicle SEL 142 driven by the respondent was not covered by an insurance policy , the applicants gave notice to the interpellants the Fund For Protection and Compensation and the Motor Insurers’ Bureau of the Arbitration Proceedings. The interpellants by means of an Application of the 9th April, 2014, asked that they be authorised to intervene in the procedures in statu et terminis.

That by a decree of the 14th April, 2014, the Arbitration Tribunal upheld the demand of the interpellants to intervene in the present procedures.

That by means of another application on the 28th April, 2014, the interpellants after presenting the document by Transport Malta, which confirms that the vehicle SEL 142 was not insured asked the Arbitration Tribunal to call into the cause the owner of the vehicle SEL 142 Selina Mckay (ID 114182M) of 100, Migmat Triq il-Kbira, Ħal Qormi, in terms of Article 961 of Cap. of the Laws of Malta.

That by decree of the 6th May, 2014, the Arbitration Tribunal upheld the interpellant’s demand and thus there was called into the cause Selina Mckay.

That by her reply presented on the 24th April, 2015, the person called into the cause Selina Mckay, pleaded that 1) in the first place the respondent called into the cause is not the legitimate defendant and thus should be freed from the observance of the judgement, since during the period in which the car accident took place on the 24 th September, 2012, she was not in possession of the vehicle with registration number SEL 142 (Trial Run 143) in the second place the respondent called into the cause Selina Mckay points out that when she got the car registration number SEL 142 (Trial Run 143) from abroad she was informed that such a car could not be insured and there was no néed that it be insured.

… omissis …

That from the proof brought forward in this arbitration it results that the facts are essentially the following:

That the car accident in question which occurred on the 24th September, 2012, at 6.35 a.m., in Triq l-Imdina, Ħaż-Żebbuġ, and in which there were involved the vehicle of the type Chrysler with registration number SEL 142 driven by the respondent and property of the party called into the cause Selina Mckay, the vehicle of the type Ibiza with registration number PHI 185 driven by Philip Scerri and property of the applicant Anthony Scerri and other vehicle of the type Hilux with registration number BH8288BP driven by Kein Nikolov Velen.

… omissis …

That it results that at the time of the incident the vehicle SEL 142 driven by Martin Farrugia was not covered by an insurance policy.

… omissis …

That by a decision given in the Maltese Arbitration Centre, on the 15th December, 2015, the Arbitration Tribunal upheld the applicant’s demands by declaring that the respondent Martin farrugia as solely responsible for the incident merit of the arbitration and the consequential damages, liquidate the damagessuffered by the applicant in the amount of €4000 and condemn the respondent Martin Farrugia to pay the applicants together between them the amount of €4400, with legal interest from the date of notification of the Arbitration proceedings to the same respondent till the date of effective payment. The Arbitration Tribunal failed to condemn the person called into the cause Selina Mckay and chose to reserve all the rights of the intervenors in the cause against Martin Farrugia and the party called into the cause Selina Mckay.

… omissis …

That the interpellants felt aggrieved by this decision and thus are humbly filing this Appeal before this Honourable Court.

That the grievance of the interpellants is clear and manifest and consists in the fact that th Arbitration Tribunal had to pass to condemn the party called into the cause Selina Mckay, responsible in solidum for the damages suffered by the applicants and the reasons given by the Tribunal for its refusal to do this are legally mistaken for the following reasons:

1. … omissis …;

2. … omissis …;

3. … omissis …

The grievances explained

That in the first place it should be stated that the demand so that the party called into he cause Selina Mckay be held resposible in solidum with the respondent Martin Farrugia for the damages suffered by the applicants in the incident of the 24th September, 2012, is based on constant jurisprudence of our Courts that ῾when a car is not insured the responsibility of the resulting damages from a collision is not only of the person who directly and materially causes the damages, that is who is making use of the car, but even wo has failed to insure the car.This responsibility is in solidum in such a manner that he who suffers the damages can turn for payment against the one or the other.

… omissis …

That in the decision appealed, The Arbitration Tribunal does not appear to have doubted such principle but failed to declare that the party called into the cause Selina Mckay, responsible in solidum together with the respondent for the damages suffered by the applicant.

… omissis …

That as regards the procedural aspect it will be useful that there be investigated in the first place, the observation of the arbitrator that Selina Mckay, as owner of the vehicle SEL 142 cannot be declared responsible for the incident together together with the driver Martin Farrugia since that ‘ there was not asked any declaration from the applicants in regard to the owner of the vehicle 142’ is defective as the institute of the party caled into the cause is intended in order that there be the condemnation as regards the third person the original request has not been made. This results explicitly from the wording of Article 962 of Cap. 12.

… omissis …

That as regards the other reason given by the Arbitration Tribunal that ‘ there remains a certain doubt in the state of the proof that the arbitrator has whether effectively the vehicle was covered or not on the day of the incident ‘ the arbitrator failed to take account of the fact that Selina Mckay was notified with the demand in order she be held responsible in solidum with the vehicle SEL 142 was not insured the party called into the suit confirmed in her reply that the vehicle in question was not covered by an insurance policy.

… omissis …

That infact the plea of the party called into the cause was only that she was not in possession of the vehicle when the incident took place, she was not the right defendant and should not be held resposible in solidum with the driver Martin Farrugia. Such plea however results infounded in the light of the jurisprudence quoted which makes it clear that ‘when the car is not insured the responsibility for the damages resulting from the collision is not only of who directly and materially causes the damages, that is of who is making use of the car, but even of who has failed to insure the vehicle’.

… omissis …

That thus as the driver of the vehicle SEL 142 Martin Farrugia was found solely responsible for the incident merit of these procedures by the Arbitration Tribunal had to pass to find the party called into the cause Selina Mckay responsibe in solidum because as the owner of the vehicle she did not take care to ensure that her vehicle was duly covered by an insurance policy.

That for all intents and purposes it is to be pointed out that the Arbitration Tribunal did not appreciate how the law which regulates the Fund for the Protection of Compensation operates. It appears that the Arbitrator identified the Fund with an insurer where there is an uninsured driver who drove the vehicle instead of the insured and after paying he makes a contractual reimbursement on the basis of the insurance policy against his insured. The Fund for Protection and Compensation is not an insurer and does not operate in this manner.

… omissis …

Thus, for the reasons premised, the interpellants whilst referring to the proof produced before the Arbitration Tribunal and those producible at this appeal stage, respectfully pray this Honourable Court, to reform the decision appealed given in the Maltese Arbitration Centre, on the 15th December, 2015, in the names’ GasanMamo Insurance Limited (C 3143) as subrogated in the rights of its insured Anthony Scerri (ID 713745M) both by policy and by law and the same Anthony Scerri against Martin Farrugia and by decree of the 14th April, 2014, the Fund for the Protection and Compensation and the Motor Insurers Bureau intervened in the cause and by another decree of the 6th May, 2014, Selina Mckay was called into the cause in the records of the cause Selina Mckay, in the records of Arbitration Number M3836/2013, and this as demanded in this application.

Whereas the written procedures in the cause before the Court of Appeal between GasanMamo Insurace Limited as subrogated in the rights of her insured Anthony Scerri both by policy and by law and the same Anthony Scerri vs Martin Farrugia and by decree of the 14th April, 2014, there intervened in the cause the Fund for the Protection and Compensation and the Motor Insurer’s Bureau and by another decree of the 6th May, 2014, there was called into the cause Selina Mckay, the Court fixed the hearing of the cause on Friday twentieth (20th) October, 2017, at 11.00 a.m.

Interpellant: 43A/4, St Paul’s Builiding, West Street, Valletta

Notify: Martin Farrugia, ‘Paul’, Trejqet ix-Xilep, Xgħajra

ADV. FRANK PORTELLI, LLD

For the Registrar, Civil Courts and Tribunals