paul joseph shirima vs guido e ninkido 1987 tzca 21 24 september 1987

-nd MFAIILA„ Ag. J .A .) CIVIL L W Z 'J j NO. 5 OP 1986 BETWEEN PAUL JOSEPH SHIRIMA A'^LL/JIT AIID (Appeal from the judgment and decree o f the High Court o f Tanaanic. e t Arusha) (Chus, J . ) da tod. the 15th day o f October, 19Gp in C iv il Car-3 lip. G"j c f 19SC a? QluR. J .A,-: The ap p ellan t Hr, Shiritaa brcusht the s u it in the High Court as a r e s u lt o f raotor v s h ic lo rc ident which occured in Moshi/iiimo road, on the 14 th A p r il, 3-979» at 11 p .d . Appellant prayed compensation fo r shock pain end. c u ffo r in g , coats; 01' re p a irs to his motor v c h ic le , lo s s o f c-omin-T3 plus medio: tl :;:::pensc3. Appellant "deposed that on ih « m a teriel ni;;ht !:o wrr: d riv in g I a t a x i Xo. AIuI 44 w ith a passenger in i t along Moshi/Himo road when he noted c v e h ic le coming from a side road and without stopping went and c o llid e d with his v e h ic le . This other motor v ....iclo belonged to the respondent Mr, Kinabo and had. one head lc r p . The impact was so gro a t th at app ,'lla e t su ffered fro c tu re s o f the r ig h t, th ifh and rio a and his v e h ic le was daraagsd e x te n s iv e ly . Appellant could not ^ 0 q 9 hie passenger to ^ ive evidence or.,1 so r e lie d on the .one lir. iJhayo P.W.2 who happened to bc-”tiio inii itia a a n on duty in the area that n igh t* P.W.2 stated that he was'ou the ro a tcrirl n igh t j^usrdinc the area near the shops which arc situ a ted at K ib o rlo n i along Moshi/Himo road when he sav; respondent's v e h ic le entering the us in road, from the side road and without stopping at the ju n ction went and ranacd into the respondent's car causing i t some damage and in ju rin g the ap p ella n t. P.W.2 noted that the reapondowt ’ z car had one head lamp b efore the c o llis io n . He sew one passenger in respondent1:j car but he was not sure there was.^ny .passenger in a p p e lla n t's v e h ic le . Respondent cvcrred tVia'b i t vcr- Mu o ir.eilf.n t win osar-d the acciden t by d riv in g towarda iiim in .1 wi.^.udite d i.c c t iiw t>n<!- in a wobbling manner. Respondent said t ’v. h~ drove to his extreme l o i t the on-coming vtl'i:;i,.: o f appellant fo llo w e d him and c o llid e d with hia v e h ic le and because o f g re a t speed a p p e lla n t's v e h ic le a f t e r c o llis io n veered round and. almost faced the d ir e c tio n i t cane fro n . GongaratJ Karotiui E .V ,), respondent's passenger corroborate;' the respondent *rj s to r y , '.The otcetch plan was drawn the same night and i t support-.d the respondent1a a t o r / about the head on c o ll i s i o n . The sketch plan the p oin t o f impact ar. 0 f e e t from the l e f t side- o f the ro?>1 as one fa c e c Noshi thereby le a v in g 1 3 f e e t on the r ig h t side fo r th j a p p e lla n t's car t o pae:---, The t r i a l judge concluded, end q u ite r ig h t ly , tiiat sincc the two motor voh io lo 3 c o llid e d by th e ir r ig h t raud-jucrds i t ucent that the ap pellant had f a ile d to kee^i to h is side and went 03 fa r as the side o f the respondent. S im ila r ly the point o f impact w hile i t vas placed at 5 fe e t from .the l e f t side o f the road was a ls o foun.l to bo 4 2 ' frc u the /junction o f the road where i t was averred by the app ellan t th st that was where respondent's v e h ic le came from. The learned t r i a l judge r ig h t ly concluded that the point o f impact would have been rig h t at the jun ction i f the a p p e lla n t's s to ry pnd his witness were true, cut i t was not so. He th e re fo re re je c te d the v e rs io n o f the ap pellant and his w itness and. b elieved the s to ry o f the respondent thereby a ttr ib u tin g n eg lig en t d riv in g to the a p p ella n t. I am o f the same view as the learned t r i a l judge. ‘-.’he controversy over sketch plan has a lso been c io c u a te ly explained and the tendered sketch plan dram by S gt, Juma (who wo3 not a v a ila b le to g iv e evid en ce) and •4 witnessed by i).V/,4 D e te ctiv e Corporal i-cruna was xho proper sketch plan, .1 ogroo w ith the finclingc o f the tria l-.c o u rt that bv-couso n egligen ce in d riv in g f e l l s s q u a re ly ’ on the app ellan t he is not e n title d to claim compensation f o r the damage;:; incurred on his damaged v e h ic le nor on the pain and s u ffe rin g claim i o r the fractured la g and. lo s s o f earnings from his damaged ta x i.. On the other hand roEixnu.ent13 claims are w e ll founded' and. judgment was r ig h t ly entered in his favou r and. 00 ..-ti, ol aUo, 5 1 » 0 l 0 /= awarded q u ite c o r re c t, I would dismiss the appeal w ith costs, DATJD a t .ArlUSHA th is 24th day of September, 1907, A. M, A. QFIAR JUSTICE OP APPEAL 3 I c c r t i f y th r t th is is v true covrr o f t ’nc r o r ig in a l. (J . II. iraoi'F-'i) T i^ - J T Y R 'E I . 'f t T u i R .