20190207 TZHC Dar es Salaam

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL CASE NO. 60 OF 2017 HUSSEIN ALLY KAN DORO .. .............................. PLAINTIFF

VERSUS KISMA TRANSPORT COMPANY LIMITED ...... DEFENDANT

JUDGMENT 17/12/2018 & 7/2/2019 I.C. MUGETA, J. The claim against the defendant is for payment of Tshs. 5,000,000/= as special damages, Tshs. 500,000,000/= as general damages for injuries and incapacities suffered, and costs of the suit The plaintiff is represented by Gabriel Mnyele, learned advocate. The suit proceeded ex partes upon the defendant's default to either enter appearance or file a written statement of defence. The fact of the case, according to the pleadings and evidence, are that in January, 2014 the plaintiff was employed by the defendant as a driver. He had no formal contract but according to the termination letter (exhibit Pl) he was to be on a one month 1 probation. Within that period, the plaintiff was assigned to drive a motor vehicle with registration number T546 BUT, Make OAF, property of the defendant. He was to transporter drums of tar from Dar es Salaam to Lusaka. The plaintiff testified that before he loaded the Cargo, the said motor vehicle had to be repaired its gears and the compressor. On the way, at Makambako, the break system and the compressor developed defects which caused the motor vehicle to lose balance and stability. The plaintiff reported this challenge and requested for a new compressor and break system. Instead of getting the new spare parts, the defendant's mechanic instructed the plaintiff by cell phone how to open the compressor and

to repair it. Upon such a repair he drove up to Tunduma where he stayed for five days waiting for the spare parts but nothing was forthcoming. Then one Koshi who is the defendant's manager, told the plaintiff by phone that since he managed to drive the motor vehicle from Makambako to Tunduma, he should be able to proceed to Lusaka. The plaintiff finally managed to drive and arrived in Lusaka safely but had to overcome a lot of challenges on the way. Upon off loading the tar drums, the plaintiff was instructed to go to Mfulila to load copper for 2 transportation to Dar es Salaam. On his way back, the motor vehicle got mechanical defects. The break system and the compressor failed again. This time he was in Mbeya. Upon reporting the defects to office, he was told a mechanic from Tunduma shall come to repair it. Indeed the mechanic came and fixed the problem and the plaintiff proceeded with the journey. However, at Inyara slopes, the break failed, the motor vehicle accelerated, hit the car ahead and overturned. Consequently, the plaintiff broke his right leg and the foot was crushed. Photographs of the injured leg and medical report of the injuries sustained were admitted as exhibits P3 and P4 respectively. The medical report states that the plaintiff sustained 25% permanent incapacity. The plaintiff was treated at Mbeya referral Hospital for resuscitation and initial management.

Thereafter, he was referred to Muhimbili Orthopaedic Institute (MOI) where he was treated to recovery. He tendered air ticket for transport from Mbeya to Dar es Salaam (exhibit PS), taxi transport service from home to MOI (exhibit P7) and medicine purchasing receipts (exhibit PS). The total costs in exhibit PS - PS is Tshs. 3,076,000/=. The plaintiff believes the defendant contributed to 3 • ♦ the occurance of the accident by letting a defective motor vehicle loaded with heavy cargo to be driven, failure to replace the defective break system and compressor and failure to send a qualified mechanic to repair the motor vehicle. He testified that due to the accident and the subsequent injuries he suffered, he started living stressful life for lack of employment and his wife disserted leaving him with two children. This is the material evidence on record. Four issue were framed for determination. These are:- (i) Whether the plaintiff was employed by the defendant. (ii) Whether the accident leading to the injuries suffered by the plaintiff was due to mechanical defects of the motor vehicle. (iii) Whether the defendant was negligent to maintain the motor vehicle which led to occurance of the accident. (iv) To what relief(s) are the parties entitled. Counsel for the plaintiff requested and was granted time to file final written submissions. Unfortunately, he filed none. I,

shall, 4 therefore, proceed to determine each issue in light of the evidence one record. Based on exhibit Pl and the testimony of the plaintiff, there is no dispute that the plaintiff was employed by the defendant. The first issue is answered in the positive. The second and the third issue are interdependent so I shall deal with them jointly. The plaintiff believes the motor vehicle was not properly maintained because it was in the garage before he started the journey and the break system and the compressor was not replaced with new spare parts when he requested for the same to be done. Due to this the plaintiff is of the view that the motor vehicle he drove was not road worth which led to the accident. The principle is he who alleges must prove. In this case we have the uncontested evidence of the plaintiff. I understand that evidence by any witness is credible unless there are reasons to disbelieve the witness (See Goodluck Kyando V.R [2006] TLR 363. However, when the evidence involved is of technical nature, for a witness testifying on such facts to be 5 '. believed he or she must be learned or trained in the relevant field. This case involve issue of motor vehicle defects which are mechanics issue. The plaintiff did not testify or tender any exhibit to prove that he is learned in mechanics to make him competent to testify on the roadworthiness of the motor vehicle before

and during the journey. For this reason I shall treat his testimony on the roadworthiness of the motor vehicle with circumspection. The relevant part of the plaintiff's testimony on technical matters is regarding repair in the garage and defects after the repair by a mechanic from Tunduma. On the motor vehicle being under repair before he started the journey and that the repair involved the gears and the compressor, the plaintiff did not tell the court how this fact came to his knowledge. Since the plaintiff is not a mechanic, his evidence on car repair and what was being repaired is hearsay. Even if assumed the motor vehicle was repaired before the joinery, there is no evidence that it was not properly done to associate it with subsequent defects to bring in the defendant's negligence. 6 Was. the accident due to · mechanical defects? The plaintiff testified that the accident was due to break failure and it occurred after the motor vehicle had been repaired by the mechanic from Tunduma and proved properly working on test by him. Break failure of motor vehicle is not a human factor cause of accident but a mechanical factor. In my view, this fact cannot be proved by bare oral evidence of driver. In case of such oral evidence it must be supported by a motor vehicle inspection report which the plaintiff did not tender and no reasons were assigned for this failure. Further, whether

the break system and compressor needed total replacement and whether the mechanic who repaired the motor vehicle in Mbeya was not a qualified mechanic, these are allegations which remains unsubstantiated. I have already held that the plaintiff as a driver and cannot testify competently on mechanics issue. On the competency of the mechanic who repaired the motor vehicle, his credentials remains unsubstantiated, therefore, there is no evidence upon which his competency can be judged. 7 ' 'Ii In view of the foregoing, I hold that negligence on part of the defendant has not been proved. There is also no proof that the accident was due to mechanical defects. I have failed to fathom the reason why the plaintiff could accept to drive a defective motor vehicle from Makambako to Lusaka then agrees to load copper to Dar es Salaam fully aware of defects he described and the risk involved. The plaintiff has not given any evidence that he did this under coercion. The second and third issues are answered in the negative. In the event, as an answer to the fourth issue, I accordingly dismiss the plaint for want of merits. Since the case proceeded ex-parties, I give no orders as to costs. ~ I. C. Mugeta

JUDGE 07/02/2019 Court: Judgement delivered in absence of both parties. The plaintiff had notice of the judgment date. The defendant had no notice because the cause proceeded expai, Sgd: I. C. Mugeta

JUDGE 07/02/2019 8