Lemos v Zimpita & Prime Insurance Company Limited (Civil Cause 920 of 2014) [2022] MWHC 14 (11 January 2022)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO: 920 OF 2014 BETWEEN: STEPHANO LEMOS AND CLEMENT ZIMPITA PRIME INSURANCE COMPANY LIMITED CORUM : JUSTICE RUTH M. CHINANGWA Chikopa Counsel for Claimants Chikwakwa Counsel for Respondents Nyirenda Court Clerk JUDGEMENT CLAIMANT 1st DEFENDANT 2nd DEFENDANT The plaintiff claims damages for pain and suffering; damages for loss of amenities of life, damages for disfigurement, special damages (cost of medical report and police report) and costs of the action. It was alleged that the 1st defendant was at all material times the driver of motor vehicle registration number RU4304 which was under certificate of insurance number 10708931 issued by the 2nd defendant. In addition, it was argued that on or about 8th December 2013, the plaintiff was cycling along Lilongwe/Dedza road when the 1st defendant lost control of the vehicle and swerved to the extreme offside dirt verge of the other lane where he hit the plaintiff who was cycling from the opposite direction. The claimant argues that the 1st defendant’s negligence caused the accident and by reason of his negligence the plaintiff suffered injury, loss and damages. In defence a defence filed in September 2014, the defendants denied that the accident was caused by the negligence of the 1st defendant and denied liability for the damages claimed. Six years later, the defendants amended their defence stating that they were not the insurers of the motor vehicle in question at the time of the accident. During trial it was stated in evidence that the motor vehicle was insured from 1/07/2012 to 30/03/2013 and 24/03/2014 to 31/12/2014. On the 8th December 2014, when the vehicle was involved in an accident the vehicle was uninsured by the 2nd defendants. The claimants did not produce any evidence to the contrary regarding the insurance of the vehicle at the material time of the accident. Insurance claims are premised largely on the agreement that the parties entered into. There being no contractual agreement, there can be no claim against the 2nd defendants. The claim against the 2nd defendant is thus dismissed. However, costs are awarded to the claimant and are to be assessed by the Assistant Registrar, as the 2nd defendants withheld vital information which would have caused the claimant not to go after the 2nd defendant if they had timely disclosed the fact that they had not insured the 1st defendant vehicle. Any aggrieved party has the right to appeal to the Supreme Court within 30 days from date of pronouncement. Pronounced this 11th January 2020 at LILONGWE JUDGE