7Liability of the Commission

##### 7. Liability of the Commission (1) Any person who has obtained a judgment against an insured person in respect of negligence causing death or bodily injury, being death or bodily injury directly caused by, or by the driving of, a motor vehicle specified in a policy of insurance under this Act may recover by action from the Commission such amount of the money (including costs or a proportionate part thereof) payable pursuant to the judgment as relates to death or bodily injury and is unsatisfied. (1A) When the judgment against the insured person was obtained within the State, subsection (1)shall not apply unless before the action in which such judgment was obtained came on for hearing, the Commission knew that that action had been commenced. (1B) The right to recover under subsection (1)shall be subject to any limitations prescribed by the policy of insurance as to the amount in respect of which the insured is indemnified. (2) Where an insured person has caused death or bodily injury by negligence, being death or bodily injury directly caused by, or by the driving of, a motor vehicle specified in a policy of insurance under this Act but that insured person is dead or cannot be served with process, any person who could have obtained a judgment in respect of the death or bodily injury so caused against that insured person if he were living or if he had been served with process may recover by action against the Commission the amount of the judgment which he could have so recovered against the insured person. Provided that he shall not be entitled to so recover unless he proves that he gave to the Commission notice of the claim and a short statement of the grounds thereof as soon as practicable after he knew that the insured person was dead or could not be served with process, or that such notice was given within such time as would prevent the possibility of the Commission being prejudiced by want of such notice. (3) Where the driver of a motor vehicle has caused death or bodily injury by negligence, being death or bodily injury directly caused by, or by the driving of, a motor vehicle but the identity of the vehicle cannot be ascertained, any person who could have obtained a judgment in respect of the death or bodily injury so caused against that driver may obtain by action against the Commission the judgment which, in the circumstances, he could have recovered against the driver of the vehicle: Provided that as soon as practicable after the happening of the accident (a) he made due search and inquiry to ascertain the identity of the vehicle; and (b) he gave to the Commission notice in writing of the claim and a short statement of the grounds thereof. (4) It shall be no defence by the Commission to an action against it under this section that it is not liable under a policy of insurance by reason of the fact that — (a) the policy was obtained by any misstatement or non‑disclosure, whether fraudulent, material or otherwise; (b) the insured person has committed any breach of any term, condition, or warranty of a policy or any provision of this Act; or (c) the insured person has failed to comply with any condition of the policy as to what the insured person should do or should not do after the event giving rise to liability. (5) Where any of the matters mentioned in subsection (4) has arisen or occurred in respect of a policy of insurance, the Commission may, in addition to any other right or remedy it may have, recover from the insured person liable in respect of any such accident, and, if 2 or more persons were so liable, from those persons jointly and severally, and from the owner where the insured person liable in respect of any such accident is not the owner of the motor vehicle concerned and at the time of the accident the owner was guilty of any of the matters mentioned in subsection (4), (a) such part of any judgment so obtained against the Commission; or (b) such sums as the Commission has paid in payment, settlement or compromise of the claim or judgment against the insured person or the Commission; and (c) such costs and expenses as have been recovered from or paid by the Commission by reason of the policy in respect to which a matter mentioned in subsection (4) has arisen or occurred, and that amount may be recovered either in a separate action or by means of third party procedure in the action against the Commission by the person who obtained the judgment: Provided that if the insured person has made any written request to the Commission that it should settle or compromise up to any specified sum or should pay or should contest the claim, and if the Commission acts unreasonably in failing to comply with such request, then the Commission shall not recover more than the amount of the liability which the Commission would have paid or incurred if it had not so acted unreasonably. (6) This section shall not apply — [(a) deleted] (b) to any accident which happened before the commencement of this Act; (c) so as to make the Commission liable in respect of any claim in respect of death or bodily injury directly caused by, or by the driving of, a motor vehicle where the accident or occurrence giving rise to such claim happened before a policy of insurance under this Act in respect of such motor vehicle had been issued on behalf of the Commission. [Section 7 amended: No. 40 of 1944 s. 5; No. 7 of 1945 s. 3; No. 31 of 1948 s. 9; No. 36 of 1954 s. 3; No. 77 of 1957 s. 5; No. 72 of 1962 s. 7; No. 95 of 1966 s. 8; No. 81 of 1982 s. 16; No. 51 of 1986 s. 46(2); No. 107 of 1987 s. 7; No. 19 of 2010 s. 51.]