NGARAMBE v. COGEAR Ltd

NGARAMBE v. COGEAR Ltd

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-03-04 - Case/document no.: RCOMAA 0042/15/CS - Collection: Supreme Court

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NGARAMBE v. COGEAR [Rwanda SUPREME COURTch – RCOMAA 0042/15/CS (Mugenzi, P.J., Gatete and Ngagi, J.) 4 March 2016] Contract law – Insurance contract – Pecuniary damages – The insurer cannot pay pecuniary damages due to the loss incurred in case those damages were not agreed upon in the contract and while the insured does not demonstrate that the insurer committed a fault – Law of 30/07/188 governing contracts or obligations, article 258. Commercial procedure – Proving the claim – He cannot be awarded damages for transport fee in case he cannot prove that the issues could only be solved upon his physical presence – Law No 21/2012 of 14/06/2012 relating to civil, commercial, labour and administrative procedure, article 9. Contract law – Insurance contract – Counter-expertise – He cannot be awarded the fee he used in proving otherwise the statement which demonstrates the cause of accident it is not in the contract and does not prove the fault that might have been committed by the other party so that this liability can exist. Contract law – Insurance contract – Repair estimates – The cost must be paid by the insurer as it is in his/her/its obligation. Damages – Compensation – In case both parties have been awarded damages, who lost the case on the big amount must pay the balance for compensation. Facts: This case emanates from the insurance contract that took effect between

Ngaramabe Gaspard and COGEAR Ltd (which turned into PRIME Insurance Ltd). He sued the latter before Commercial High Court claiming that it had breached the contract of insurance of his truck covered on all risks. The truck had been seriously damaged in an accident. This led him to seizing the Commercial Court. The Court decided the case but Ngarambe was not satisfied in regard to the pecuniary damages and so many other damages that he was not awarded. He appealed to the Commercial High Court. The latter held that those damages could not be also awarded because COGEAR Ltd was not reluctant to indemnify but rather occasioned by the contradictions in the statements that was elaborated by the Judicial Police with regard to the cause of accident. Ngarambe appealed to the Supreme Court stating that he had to be awarded pecuniary damages since the truck was insured under all-risks policy instead of grounding on article 56 of the general provisions of the policy which was not even handed to him. He claimed further that there was no cause as to why COGEAR Ltd could worry about two contradictory statements while they were not elaborated on too different dates. He stated moreover that the fact that he was denied damages based on the arguments that him also did nothing to avoid the loss is not true since COGEAR Ltd created the strains against him. He added that he deserves to be refunded of the money he spent on the measurement of the sand, transport fees occasioned by following up the issue of his truck, that he spent on the repair estimates, that of procedural and advocate fees because, had COGEAR admitted to pay this amount of money, he would not have incurred such expenses.

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PRIME Insurance responded that appealing to counter-expertise prior to the indemnification was caused by two contradictory Judicial Police statements submitted by Ngaramba whereby the former demonstrates that the accident was caused by the tire which burst and the excessive loading while the latter which was submitted one month later demonstrates that the accident was only triggered by the tire which burst. He added in addition that both parties are equal in rights and, hence, was also entitled to having counter-expertise done. He concluded that COGEAR Ltd was not reluctant to pay and that it does never pay for pecuniary damages but rather repair the damages. PRIME Insurance filed a cross appeal requesting damages amounting to 3.000.000 Frw for procedural and advocate fees for being dragged into court proceedings. Held: 1. The fact that both parties to the contract had not included pecuniary damages but rather agreed that the damages caused by excessive loading is excluded from the covered risks implies that those damages must not be awarded especially that terms and conditions in the policy do not contain lesion.

2. The plaintiff must prove the claim failure to do so the defendant wins the case. Hence, the fact that in all issues regarding the truck involved in an accident the insured was represented by an advocate as well as Mushinzimana Jean Marie Vianney in different acts in connection to those issues; while he failed to prove that for those issues to be solved his physical presence was a prerequisite implies that he cannot be refunded of the transport fees to follow-up that issues because he does not give supporting evidence.

3. PRIME Insurance Ltd cannot be condemned to pay the money that Ngarambe used in the measurement of the sand it is him to took initiative to disprove the former statement which demonstrates that the accident was caused by excessive loading and hence made another measurement while this act was not provided in the contract and does not even show the fault that COGEAR Ltd might have committed since the contradiction in the statements with regard to the cause of accident was caused by the Police.

4. The fact that the repair estimate is the act in connection to the obligation of the repair of the damaged vehicle itself and that the insurer cannot repair the object whose price quote has not been elaborated is ad that this act cannot be separated from his obligation and that this quote which is accompanied by the Police statement was requested by the insurer after the accident who took it as a basis to conducted its own counter-expertise implies that Ngarambe deserves to be refunded the money he used on repair estimates as one of the act in connection with the obligation of the insurer of repairing the damage. Hence, COGEAR Ltd cannot pretend that the repair estimates is in the interest of the Ngarambe so that it could deny to refund him with the money spent on the on that estimations since the repair of the vehicle itself is in the interests of the insured but also in the obligations of the insurer.

5. The fact that Ngarambe won the case on 129.800 Frw that was paid in detailing the repair estimates while PRIME Insurance won the case on all remaining grounds implies that it is it which must be awarded procedural and advocate fees equivalent to 800 000 Frw but also paying attention on the fact that it lost the case in part; in the context of compensation therefore, Ngarambe who won the case with regard to 129.800 Frw must not pay the totality of 800 000 Frw. He must rather pay the balance, that is 670.200 Frw.

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Appeal has merit in part; Cross appeal has merit in part; Ngarambe is condemned to pay PRIME Insurance 670.200 Frw; 4/5 of the court fees to Ngaramabe and 1/5 to PRIME Insurance. Statutes and statutory instruments referred to: Law No 21/2012 of 14/06/2012 relating to civil, commercial, labour and administrative procedure, article 9. Law of 30/07/188 governing contracts or obligations, article 258. Cases referred to: UB CONSULT v SORAS, RCOMA 0065/11/CS, Decided by the Supreme Court on October 18, 2013.

AUTHORS CITED Libert Hubert, Droit des assurances, E. Bruylant, Bruxelles, 1993, p. 46 Judgment I. BRIEF BACKGROUND OF THE CASE [1] This case came up from the Commercial Court whereby Ngarambe Gaspard had sued COGEAR Ltd (which turned into PRIME Insurance) for it had breached the contract of insurance of the vehicle Mercedes Benz Actros on all risks (omnium insurance). The contract was supposed to expire on December 16, 2013. The vehicle got damaged in a fatal accident which occurred on October 2, 2013. [2] The Court condemned COGEAR to pay to Ngarambe 25.047.405 Frw deducting 5% of franchise and get the wreckege and 23.795.035 Frw remained. The Court held further that no damages or any other kind of damages must be awarded( mileage fee that NGarambe claimed in to follow up the issues of his vehicle, the fee he spent on the sand weighing, fee for repair estimate and advocate fee). The Court ordered provisionsl execution of the judgment on that indemnities that COGEAR accepts. [3] Ngarambe appealed to the Commercial High Court claiming that he was not awareded damages and other fees whereby the Court decided that he must not be awarded damages because COGEARLtd (which turned into PRIME Insurance) manifested no negligence in payment but, rather, encountered contradictory statements issued by the Judicial Police on the cause of the accident which worried it of conducting contre-expertise. The Court explained that he could not be awarded fee for mileage he used from Germany, repair estimate fee and that of sand weighing since all of that have been done in his own interests. The Court however awarded him 400.000 Frw for procedural fees on the first instance since some his requests have merit.

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[4] Ngaramabe appealed to the Supreme Court claiming that he had to be awarded pecuniary damages regardless of any other ground because the trac kwas insured on all risks (omnium insurance) instead of basing on article 65 of general provisions regarding exluded risks and while no policy was given to him. He insisted further that there is no cause as to why COGEAR could worry about two contradicting Judicial Police statements while they were issued on close dates (within 4 months) since it is a normal practice but rather there is range of time of only 25 days. He added that the fact of denying him the pecuniary damages was due to the fact that him also did nothing to prevent the los is not true but, rather the strains created by PRIME Insurance as itself accepts that Ngarambe deserved to be refunded the money he used in the weigh up of the sand, lileage fee, the fee for estimate, procedural fees for if COGEAR have accepted to pay all that money, it would not be paid. [5] With regard to the objection of lack of status raised on November 10, 2015 based on the value of the subject matter and that regarding the fact that Ngarambe lost the case twice on simular grounds, the Court decided on December 24, 2015 that they have no merit. [6] The hearing of the case was conducted in an open court on February 2, 2016 Ngarambe Gaspard represented by Counsel Rugeyo Jean while PRIME Insurance

was represented by Kayitare Serge. II. ANALYSIS OF LEGAL ISSUES [7] The Court shall assess whether Ngarambe may be awarded pecuniary damages for the time that elapsed while the trac kwas out of activities, the mileage fee in the follow-up of the problem of his track, the money he spend on the weighing of the sand, the money he spent on the valuation of the value of the repair (estimate fee), procedural and advocate fees. Whether Ngarambe may be awarded pecuniary damages due to the time elapsed while his trac kwas out of activies. [8] Counsel Rugeyo who represents Ngarambe states that the decision of the Commercial High Court that PRIME Insurance (COGEAR Ltd) cannot be condemned to pay pecuniary damages the time which elapsed without being paid was a result of the worries occasioned by the contradicting statements on the cause of the accident cannot be considered because since Ngarambe’s trac kwas insured on all risks(insurance omnium) and had to be paid not based on general provisions of the contract since, even, no policy was handed to him and that those provisions could not infringe the contract entered into by both parties. [9] He pleads further that COGEAR Ltd had to repair the dameges om due time as provided for by article 2 of the contract concluded by both parties but, since October 10, 2013 till January 20, 2014 it was still denying its obligations over that accident

pursuant to the general provisions whih stipulat that the insurer cannot repair the damage caused by excesive loading of the track. [10] He added that if the insurer worried and it was later found that the insured had the truth, PRIME Insurance would be condemned to pay for the loss incurred during that time of worries. (from November 11, 2013 till May 25, 2014) which is amounting to 59.082.960 Frw. This is based on articles 84 and 113 of Law No 45/2011 of 25/11/2011 governing contract.

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[11] Counsek Kayitare Serge representing PRIME Insurance explained that the reason which triggerred the worries of the insurer and hence led it to conducting conter-expertise prior to the payment was occasioned by two contradicting statements which were submitted by Ngarambe whereby the former was described that the accident was caused by the tire which burst due to the loading that was bveyond the track capacity while the latter was submitted one moth after the accident stating that accident was simply due to the tire which burst. He stated further that both parties have equal rights and, hence, COGEAR also was entitled to resorting to counter- expertise. [12] He explained that COGEAR Ltd was not characterized by negligence in paymeny but, it prepared the dossier as it does for others since, after Ngaramber submitted the estimate fee done by ATC Garage on 124.962.087 Frw, the value which is twice the value of the truck,they presented to him two options whereby the first was to consider the truck as, since then, decommissioned or be repared by the Garage proposed by PRIME Insurance, but he denied. He continued pleading that PRIME Insurance only repair the damage (material loss) and does not pay pecuniary damages as embodied in article 46 of the general contract which is recalled in the final provisions of the specific contract. [13] He stated further that the provisions of

general contract cannot contradict the provisions of article 3 of the specific contract since thecontent of that article is repairing the vehicle after evidence proving the cause of accident, but which is not caused by the insured, is submitted( article 2 of the insurance contract). He cocnluded on this point that it does not contradict the provisions specific contract which provides that the insured take ownership of his vehicle but without being awarded various benefit and any other indemnification.

THE VIEW OF THE COURT [14] The last article of the spoecial contract dated December 16, 2016 between Ngarambe and COGEAR Ltd provides that terms and conditions of the general contract of insurance is also part of contract1 while article 56 paragrapf 2 of the policy provides that the damage caused by excessive loading is not covered2. Therefore, the fact that the payment of the pecuniary damages is not provided by the contract that was concluded between Ngarambe and COGEAR Ltd while it is rather prohibited in the general contract of insurance as provided for by article 44, implies that no pecuniary damages must be paid to Ngarambe. The same decision have been also taken by the Supreme Court. [15] The Court finds that at any time Ngarambe acknowledged in the special agreements that terms and conditions in general contract form also part of the contract implies that he must respect that since it is in accordance with his commitments as it is explained that there is no indemnification in case accident was caused by loading which is beyond the vehicle’s capacity especially that the terms and conditions in the policy especially that terms and conitions to the contract contain no provisions with lesion.3 1 “Subject otherwise to terms and conditions of policy forming part of contract”. 2 “ Sont également exclus de I assurance Ies dégậts causés par les objets transportés , leur chargement ou leur ‟ déchargement, ou par suite du poids de Ia charge transportée par le véhicule”. URUBANZA RCOMAA0042/15/CS 3 Judgment No RCOMA 0065/11/CS of 18/10/2013 SORAS vs UB CONSULT.

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[16] The Court rather notes that the pecuniary damages claimed by Ngarambe would be waraded at any time it would be established that the loss he allges was incurred due to the decommission of his truck was occasioned by the faults of COGEAR Ltd which was characterized by the reluctance to pay on due time. In that case, article 258 of the civil code Book III governing contract or obligation which provides that any act of man which causes damage to another obliges the person by whose fault it happened to repair it would apply. [17] The Court finds that after the statement of the Police was sub,itted before it which demonstrates that the accident of Ngarambe’s truck was caused by excessive loading, COGEAR Ltd was not bopund by indemnifying the damages though the vehicle was insured on all risks (omnium insurance). However, excessive loading was exluded from insured risks grounding on article 56 of the general contract. [18] It is evident further that after it found that first statement was in contracdiction with the previous whereby it demonstrated that the accident was caused by the tire which burst, COGEAR Ltd was also entitled tomaking recourse to counter-expertise so as the truth to be in evidence as explained by legal scholars4 since it had also to protect its rights. Therefore,this cannot be considered as reluctance to pay in case it is not proved that the length of time

that COGEAR Ltd took to pay exdeeded the one convened. [19] In the context of examination of whether GOGEAR was rulactant to indemnify the damaged vehicle on due time the, different dates of activities between both parties would be examined. The case file demonstrates that after the accident which occured on October 2, 2013, Ngarambe notified it to COGEAR Ltd on October 7, and he was requested to present the repair estaimate and the Police statement on accident on. On November 16, 2013 Ngarambe submitted the repair estimate of 124.962.087 Frw. On October 31, 2013 COGEAR conducted counter- expertise5. On November 8, 2013 Ngarambe submitted police statement about the accident demonstrating that the accident of the vehicle was caused by excessive loading. On November 11, 2013 COGEAR Ltd wrote to Ngarambe notifying him that the fault is not covered6 based on article 65 of the contract which liste excluded risks. On December 2, 2013 Ngarambe in writing sought the payment while on December 5, 2013 he submitted tom GOGEAR Ltd the additional statement which contradicts the former and which demonstrates that the accident was caused by the tire which burst. On January 27, 2014 COGEAR wrote to Police requesting to conduct the counter-expertise and, subsequently, it conducted a counter-expertise against the former that was dated March 21, 2014 and it demonstrated that the truck could be

repaired on 25.047.405 Frw. A partir de la survenance du sinistre, l’assureur devra prendre des mesures conservatoires (par exemple demander la désignation d’un expert pour faire constater contradictoirement les dommages, faire appel à un avocat pour réfuter les allégations de la partie qui se prétend lésée, éventuellement introduire un recours, etc): Libert Hubert, Droit des assurances, E. Bruylant, Bruxelles, 1993, p. 46 4 From the occurrence of the accident, the insurer will have to take protective measures (eg request the appointment of an expert to see the damage contradictorily, to hire a lawyer to refute the allegations of the party claiming to be aggrieved, possibly appeal, etc): Libert Hubert, insurance Law, E. Bruylant, Brussels, 1993, p. 46 5 Detailed by Nkomeje K J Pierre value noting that the insured value is 65.000.000 Frw while the actual value that the vehicle had prior to the accident was 63.700.000 Frw and the value of the wreckege is 31.850.000 Frw 6 Correspondancedated 11/11/2013 numbered N/Réf 661/11/SS/MA/RJD/2013

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[20] On January 31, 2014 there was a meeting between both parties. On COGEAR Ltd wrote to Ngarambe7 requesting him either to bring the car or to have it repaired and he did not bring it but, on February 14, 2014 he wrote to COGEAR Ltd presenting alternative of the settlement of the matter but with the payment of different damages that he had requested. On February 20, 2014 COGEAR Ltd again requested Ngarambe to bring his vehicle to Auto Impérial Garage for to be repaired but after expertise and counter-expertise, but his representatives requested the award of differenr damages. [21] After analysing those negotiations that both parties had and the time that those negotiations took for to take action, the Court finds that there is no act done by COGEAR Ltd demonstrating that it was reluctance to pay Ngarambe on time. Rather, the aim was to clear the confusion that was caused by two contradicting statements on the cause of the accident as well as the difference that was identified in the course of the repair estaimates presented by both parties since Ngarambe presented the price quotation of 124.962.087 Frw detailed by ATC Garage while COGEAR Ltd had submitted that of 89.038.659 Frw and both parties ended up before the Court by aggreeing that Ngarambe was to be paid 25.047.405 Frw deducting 5% of franchise and have possession of the wreckage as held by the Commercial Court on May

30, 2014. [22] The Court therefore notes that as long as there is no pecuniary inetrests provided for in thecontract, while there is no fault committed by COGEAR of not repairing the damage on due time with regard to the damaged vehicle of Ngarambe, then the latter has no reasons to claim them. B. With regard to the transport fees that Ngarambe used in the follow-up of the concerns of his vehicle [23] Counsl Rugeyo states that Ngarambe Ngarambe had to be paid 750 Euros for the flight he tokk from Germany to the follow-up of his vehicle, 720.000 Frw for the car he had hired for 20 days he spent in Rwanda due to the insurer who had breached the contract and did not want to easy the tasks of of those to whom he had fonferred the power of attorney to follow-up the problem. He added that the insurer cannot pretend that the isnurence contract was concluded and had effect in Rwanda while Ngarambe showed the flight ticket for his trip and that PRIME Insurance does not demonstrates that there may be another mission for which trip was done. [24] Kayitare Serge states that the contract was intered into in Rwanda, that the accident occured in Rwanda and there is no evidence that Ngarambe took off from Germany to Rwanda for thematter of the vehicle since he had conferred the power of attorney to Mushinzimana Jean Marie Vianney and attorney-at-law who were entitled to monitoring the proceeding and they had actually did.

THE VIEW OF THE COURT [25] As it is highlighted in the case file, in all issues regarding the vehicle of Ngarambe, Mushinzimana Jean Marie Vianney being in conjucntion with the legal adcocate started the proceedings by reparation estimates, they responded to the meeting which brought them together 7 Correspondence Réf 028/02/SS/MA/BBCH/RJD/2014

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with COGEAR and counsel Rugeyo conceded that they submitted the counter-expertise report to to COGEAR Ltd and even before the Courts of Law Ngarambe was represented by an advocate. [26] The Court notes therefore that there is no evidence that for the matter of his vehicle to be solved, his physical presence was the preriquisite. Hence, the damages he requests for the transport fees he spent for the settlent of the issues of his vehicle cannot be awarded since he does not provide evidence in support as it is hilighted in article 9 of Law y’Itegeko No 21/2012 of 14/06/2012 relating to civil, commercial, labour and administrative procedure which provides that the every plaintiff must prove a claim. Failure to obtain proof, the defendant wins the case. With regard to the compensation for the money Ngarambe alleges that he used in the measurement of the sand [27] Counsel Rugeyo states that PRIME Insurance would pay 6.600 Frw that was used in the measurement of the sand in the context of putting in evidence the capacity of loading of the vehicle since that measurement was brought about by the strains created by COGEAR Ltd. [28] Counsel Rugeyo responded that the measurement of the sand was done in the interests of Ngarambe who was intending to challenge the first police statement and PRIME Insurance cannot be held liable since it played no role. He added further that this amount of money is not to be indemnified since it does not relates to the damaged vehicle.

THE VIEW OF THE COURT [29] As it ishighlighted in the case file, after Ngarambe noted that the former statement demonstrates that the accident was caused by the tire which burst due to excessive loading, he took initiative of appealing to the competent institution for measurements to prove the case otherwise. This act however is not covered by insurance contract that Ngarambe concluded by COGEAR Ltd and Ngarambe does not prove that there may be the fault committed by COGEAR since the issues of contradict statements was caused by the Police. [30] The Court hence finds that based on the contract that both parties concluded and on article 258 of Civil Code Book III, thre is no cause as to why PRIME Insurance would be condemned to pay the damages requested by Ngarambe for the measurements of the sand. D. With regard to the money that Ngarambe requests for the reparation estimates [31] Counsel Rugeyo states that Ngarambe have reparation estimates done so that he could figure out the cost of the damage so that he could be indemnified and therefore, he must be refunded of the money he spent amounting to 129.800 Frw. [32] Counsel Kayitare states that this have been done in the interests of Ngarambe so that he could prove the case and that reparation estimates is not among the damaged vehicle and that the damege have been agreed upon by both parties and that he had been already paid.

THE VIEW OF THE COURT

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[33] The Court finds that reparation estimates (devis de réparation) is the act about the obligation to repair the vehicle itself since the insurer cannot repair what has not been identified. Hence it cannot be separated from his obligations. This is also clear in the defence submissions of PRIME Insurance that after COGEAR Ltd was notified of the accident on October 7, 2013 it requested Ngarambe to submit the reparation estimates as well as the Police Statement and it is these estimates which served as the basis of the counter-expertise. Ngarambe therefore must be refunded 129.800 Frw that he paid for repartion estimates which must be considered as one of the acts in connection with the obligations of the insurer of repairing the damage. The Court finds that the explanations that Ngarambe would not be paid these damages due to the fact that he have the reparation estimates done in his interests have no merit because the reparation of the vehicle itself is in his interests but in the obligations of the insurer. E. With regard to theprocedural and advocate fees [34] Counsel Rugeyo states that before the prvious courts, Ngarambe was not awarded the advocate fees while he was represented. He requested that PRIME Insurance be condemned to pay him 3.500.000 Frw for procedural and advocate fees on all instances. [35] Kayitare responded that PRIME Insurance would not be condemned to

pay damages since its requests granted by the Court including paying 25.000.000 Frw for the damaged vehicle deducting 5% for franchise and that thsi had been agreed upon it before the Court. He added that Ngarambe couyld not be awarded damages while he had lost the case. To his view, the damages requested by Ngarambe are not founded. [36] Counsel Kayitare in a coss appeal added further that it is , PRIME Insurance which must be awarded damages amounting to 3.000.000 Frw for procedural and advocate fees for being dragged into court proceedings. Counsel Rugeyo responded that those fees have no merit because it is Ngarambe who had been prejudiced.

THE VIEW OF THE COURT [37] The Court finds that for the requests of damages of Ngarambe only 129.800 Frw for reparation estimates has been granted as aforementioned while PRIME Insurance win the case with regard to all remaining grounds. Threfore, its cross appeal has merit and hence, it is it which must awareded procedural and advocate fees but taking into account that it lost the case in part. Hence, it is waraded in the discretion of the court 800 000 Frw. [38] However, in the context of compensation, Ngarambe who is awarded 129.800 Frw as explained above on paragraph 33 must not pay all 800 000 Frw as ordered above onmparagraph 37, He must rather pay the balance. That is, six hundred seventy thousand and two hundred (670.200 Frw). III. THE DECISION OF THE COURT [39] Decides that appeal filed by Ngarambe Gaspart has merit only with regard to the damages for reparation estimates;

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[40] Coss appeal filed by PRIME Insurance has merit in part; [41] Condemns Ngarambe to pay PRIME Insurance six hundred seventy thousand and two hundred (670.200 Frw). [42] Orders Ngarambe Gaspard to pay 4/5 for the court fees, that is ninity thousand while PRIME Insurance is condemned to pay 1/5, that is twenty thousand (20.000 Frw).