Mgawa( Suing on behalf of Gracious Mgawa a minor) v Prime Insurance Company Limited (Civil Cause 568 of 2013) [2018] MWHC 1277 (1 June 2018)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 568 OF 2013 BETWEEN OWEN MGA WA (suing on behalf of GRACIOUS MGA WA a minor) .......................................... PLAINTIFF AND - - PRIME INSURANCE COMP ANY LIMITED ...................... DEFENDANT CORAM: HON. JUSTICE R. MBVUNDULA Mwangela, Counsel, for the Plaintiff Chikaonda, Counsel for the Defendant Mpasu, Official Interpreter JUDGMENT This matter was set down for judgment on several past occasions and despite being notified neither counsel appeared to receive the judgment. No reasons are known to the court for that default as none were communicated. The case for the plaintiff is that on 21 st May 2013 Gracious Mgawa, a young boy then aged between 3 and 4 years, was hit by a motor vehicle as he tried to cross the road at Chigumula market. It is alleged that the vehicle was driven negligently and that it was insured by the defendant from whom the plaintiff seeks compensation. There are two issues for determination, namely: i) whether the motor vehicle was driven negligently, and ii) whether the defendant is liable for the negligence, if proved, of the driver of the vehicle. Victor Gogoda, one of the witnesses for the plaintiff, was at a nearby shop and witnessed the accident. It was his account that as the boy tried to cross the road a saloon vehicle approached at high speed and hit the boy, knocking him to the ground in the middle of the road. The boy suffered a number of injuries and lost consciousness. The vehicle stopped at a distance. Gogoda then made arrangements and took the boy to Thyolo hospital where the boy's father eventually found them. He handed over the matter to the boy's father and left them at the hospital. The boy's father is Owen Mgawa who told the court that at the time of the accident he was at a nearby bottle store when he heard that a boy had been hit by a motor vehicle. When he learnt that the boy was his son, Gracious, he made a follow up to Thyolo hospital where he found Gracious unconscious. Later in the night regained consciousness. The boy's injuries included some fractures and lacerations. Neither witness identified the vehicle in their evidence. However both parties refer to it in their pleadings as a vehicle whose registration number is BQ 9080. The fact is therefore not in dispute. The defence did not adduce any evidence, hence the plaintiffs evidence, apart from a number of questions during cross examination, which I find inconsequential, went unchallenged. It is my finding that negligence, on the part of the driver, in that he was over speeding in disregard of other road users, including the victim herein, has been established on a balance of probabilities. He would otherwise have been able to avoid hitting the child. In paragraph 4 of its defence, the defendant expressly denied being the insurer of the vehicle in question. The denial entailed that the plaintiff was obliged to prove the allegation. Despite that, however, no evidence was adduced showing the defendant to be the insurer of the vehicle. As a matter of fact no reference whatsoever was made to the fact in the whole of the evidence of the witnesses. This is quite surprising, to say the least, because it is an elementary rule of evidence that an allegation which is denied must be expressly proved. It is even more surprising, and of concern, that in a case where the plaintiff is legally represented, such as the present, there the plaintiffs claim should fail on account of such an omission. The result is that notwithstanding sufficient proof of negligence on the part of the driver of the vehicle, I must find the claim against the defendant in its alleged capacity as the insurer of the vehicle, not established and dismiss the claim against the said defendant with costs. Pronounced in open court at Blantyre this 1 st day of June 2018. R .~ JUDGE 3