Khuto v Lesotho National Insurance Company (Pty) Limited and Another (CIV/T 65 of 91) [1997] LSHC 59 (5 August 1997)

1 CIV/T/65/91 IN T HE HIGH C O U RT OF L E S O T HO In the matter between LEFU SAMUEL KHUTO APPLICANT and LESOTHO NATIONAL INSURANCE COMPANY (Pty) Limited JOHN REYNEKE 1ST D E F E N D A NT 2ND DEFENDANT JUDGMENT Delivered by the Honourable Mr. Justice M . M. Ramodibedi On the 5th day of August 1997 The Plaintiff has sued the Defendants for payment of M10,500.00 arising out of a motor accident which occurred on the 13th February 1989. The claim is made in terms of the Motor Vehicle Insurance Order No. 18 of 1972. The First Defendant has filed a special plea couched in the following terms: "SPECIAL PLEA The First Defendant pleads specially as follows: 1.1 The claim upon which the Plaintiffs action is based, arose on the 13th February 1989, being the date of the accident. 1.2 The claim in the prescribed form which Plaintiff was required to deliver to Defendant in terms of Section 14 of the Motor Vehicle Insurance Order 18 of 1972, as amended, was delivered to the Defendant after the 26th January 1991. 1.3 Summons was served upon the First Defendant on the 26th February 1991. 2.1 The First Defendant pleads that the period of sixty days allowed in terms of Section 14(2) of the Motor Vehicle Insurance Order had not expired when summons in this action was served on the First Defendant. 2.2 In the premises, the First Defendant pleads the Plaintiffs claim is unenforceable and as the Plaintiffs Summons was not re- served upon the First Defendant within the 2 year prescriptive period as provided for in the Motor Vehicle Insurance Order, the Plaintiff's claim has prescribed. W H E R E F O RE FIRST D E F E N D A NT P R A YS that the Plaintiff's claim against it be dismissed, with costs." It is the above mentioned special plea which is the subject matter of this judgment. I should mention straightaway that all the facts on which the special plea is based are indeed c o m m on cause. It means therefore that on the 26th February 1991 when the summons was served on the First Defendant a period of sixty (60) days had not yet expired from the date on which the claim was sent or delivered to the First Defendant. It is further c o m m on cause that the summons was never re-served on the First Defendant thereafter. In order to determine the matter it is necessary to examine the provisions of Sections 13(2) and 14 of the Motor Vehicle Insurance Order No. 18 of 1972. Section 13(2) reads as follows:- "The right to claim compensation under sub-section (1) from a registered company shall become prescribed upon the expiration of a period of two years as from the date upon which that claim arose: Provided that prescription shall be suspended during the period of sixty days referred to in sub-section (2) of section fourteen." Section 14 on the other hand provides as follows:- "14 (I) A claim for compensation under section 13 shall be set out on the form prescribed by regulation in such manner as may be so prescribed and shall, accompanied by such medical report or reports as may be so prescribed, be sent by registered post or delivered by hand to the registered company at its registered office or local branch office, and the registered company shall, in the case of delivery by hand, at the time of the delivery acknowledge receipt thereof and of the date of such receipt in writing. (2) No such claim shall be enforceable by legal proceedings commenced by a summons served on the registered company before the expiration of a period of sixty days from the date on which the claim was sent or delivered, as the case m ay be, to the registered company as provided in sub-section (1)." These Sections have engaged the attention of this Court as well as the Court of Appeal in a number of cases. It is thus unnecessary for me to go through the interpretation of the sections again. See 'Mamokhethi Mokhethi v Lesotho National Insurance Co. CIV/APN/57/86 per Kheola A CJ (as he then was). Mookho Masilo v Lesotho National Insurance Company CIV/T/427/86 per Molai J. Malee Emsley Putsoa v The Attorney General C of A (CIV) No. 1/87 which confirmed Lehohla J's decision upholding defendant's special plea. Lesotho National Insurance Company v Tšepo Sekhesa C of A (CIV) No.36 of 1994. As I read them the authorities come to the following principles with which I am in full agreement: (1) In terms of Sections 13(2) and 14(2) of the Motor Vehicle Insurance Order No. 18 of 1972 prescription begins to run from the date of the accident upon which the claim arises. (2) If within two years from the date of the accident the third party sends or delivers the claim form to the registered company (insurer) the prescription is suspended for a period of sixty (60) days from the date the claim was sent or delivered. What this means therefore is that the right to claim compensation from the registered company is prescribed upon the expiration of two years. However if the claimant lodges the claim form with the registered company (insurer) within two years from the date of the accident prescription shall be suspended for sixty (60) days. (3) A summons which is served prematurely is not a nullity. While the action therein is unenforceable the summons m ay be re- served. See Lesotho National Insurance Company v Tšepo Sekhesa (supra). (4) The service of the summons and not its issue is decisive in determining when prescription begins to run. Applying the above mentioned principles to the case before me I am satisfied that the Plaintiff delivered his claim to the Defendant before the expiration of two years period from the date upon which the claim arose. Since the claim arose on the 13th February 1989 being the date of the accident in question the two year period within which to file a claim for compensation in terms of Section 13(2) of the Motor Vehicle Order 1972 would only expire on 13th February 1991. I am satisfied therefore that the Plaintiff was well within his rights when he delivered his claim to the First Defendant after the 26th January 1991 or on the 6th February 1991 to be exact. The delivery of Plaintiffs claim form to the First Defendant however had the effect of suspending the prescription for a period of sixty (60) days from the date of the delivery of the claim. What this means is that the claim could not be enforceable by legal proceedings commenced by a summons served on the First Defendant before the expiration of a period of the sixty (60) days. Yet this is exactly what the Plaintiff did. He served the summons in the matter on the 26th February 1991 long before the expiration of the sixty days period referred to in Section 14(2) of the Motor Vehicle Order N o. 18 of 1972. Accordingly I am satisfied that the summons in this matter was served prematurely and as such the action is unenforceable. See Lesotho National Insurance C o m p a ny v Tšepo Sekhesa (supra). Since it is c o m m on cause that the summons was not re-served within the prescriptive period referred to in Section 13(2) read with Section 14(2) of the Motor Vehicle Order No. 18 of 1972 1 am of the view that the Plaintiffs claim has prescribed. See Lesotho National Insurance Company v Tšepo Sekhesa (supra). I should mention that in fairness to Mrs. Kotelo for the Plaintiff she properly conceded that on the authority of the case of Lesotho National Insurance Company v Tšepo Sekhesa (supra) Plaintiffs claim has in fact prescribed. She however sought to persuade the Court that the decision in Lesotho National Insurance C o m p a ny v Tšepo Sekhesa (supra) needs to be "revisited" as it leads to unjust results. I cannot accept that argument. This Court is bound by the decisions of the Court of Appeal. In the result therefore the First Defendant's special plea is upheld with costs. M M. Ramodibedi JUDGE 5th day of August 1997. For Plaintiff For First Defendant: : Mrs. Kotelo Mr. Grundlingh