19830519 TZHC Dar es Salaam

..,.. •,.~·-·~ } ,I' - .- • • ~.• ~- IW TFE FIGH COU11T OF TAN'ZAT\TIA AT DAR ES' SAT.A.AM CIVIL CASE NO. 251' OF 1981 ·n±-. AJ.EX 1YI .• J.Vr..AGANGA • • 0 . . .. . • • • PLAINTIFF Versus.

1. JULIAN· MACBEMBA ·2. NATION.AL I SHIPPING AGBNCIES CO. LTD. 3 • Nf~ TIONAL I11SURANCE CO"RPO~.A TION. OF 1ANZANIA LIMITED ! DEFENDA}Tffl · JUDGMENT MTENGA , J1". - National Shipping. Agencies Co. Ltd. , the second defendants insured their car No. SU 551' with the National Insurance Corporation, the third defendants. The second 9:~f~n.9-a~t_s e~p~8ye9-. th,e _· f_i?,"13t defendant Julian Machemba to dri"\Te I,motor · ·~ , .- ve:m.icle - .~ -_t ·,; / :· Nb. SU 551' and during t • •. " the currency of the---pol±cy';·-·t-he ..·car involved in an accident with the car. ·..of-~ ..the,•·'..'plain -... ;-1 ti ff· :No. .. - - ..• ., TZ 50291 - ·:--: . . . while. being ~ / " driven by too··-f1:rst:· . deferidan:t~- ....., ........._... ., ____ _ , .._~he. .,<t~~iU! of..t);J;,e plaintiff in effect is ;t.ra_t,,.p.rt 14th February,. 19s..1· he parked·· his' motor' vehicle' which w'as a taxi at• a parking lot and:-.th-e first -defendant driving car No., SU;-,55.l J.or-~ ..cat;q,e and knocked it from ·the rear resulting. I' .e, • ' •' J •· • •. ~ , • • extensi-ye; daffi:~g~s..to-· the ..pl-a-ip.ti :ff-' s -.c~:r. : - _:-·, "- ...,. ,. 11, • .1 _ ~t _ • •· , ~ ... ~ '• • ·• I ) ,The ~:p':Lainti;ff:·has. H:rougHt ·'trii's·:·:suft apparently because. the 3rd:_ d~f\;ridadt~·· 11~;-~ refused despite re·peated requests by.- the plaintiff, to repair·the, ... -·; i ....... ;\" plaintiff's motor

vehicle -·t• Wo. TZ 50291' peugeot :404~;--:. ---· ::A,1;~:th'-e, ihce-:pti"o:n; ;o~ :1thl:fdt:rri'aJ!i: of ··thiis-- csu1t, douhs'.els for , both; ·parttes a;greed. 'that·;·t'his :aufiti:· g:tves:~r.i.se to'·· ~'four~::-issues, -_~r,,._! ~;::c..c·•t~ _: -,,;~1·::"':• ... 1: . . i-;J -=.cl-;.~····.-) ...1 : .--~-1·~ ,I~·: :"'-_J~ ·_· 7 ·.-:.~.-L . -r. • ·... i:-> ·:A·,o_ W.he~her: t11e.->~:-.d~;tf)rt.da~~~ ~~ere--wr~:g-gly._)"9i.p.ed ~?d - , .• , ,.,,. 1 ~~""'tn_. ... -t... ..,. ' . t:P,;e • .aite.~na;ti:ve.,., . . . :r ..-.whe;ther • . ; _,0_ there_ . '..,- yra~.- - a .,ca_u~e; . ' .• •• :O:~ ~ . ~. ·": ~ -- 1 -•:;- ,. . . -~c.ti,.pn pgai_n~;t, ,:the.-._;third -d.ef:endant~•:, -...-.~ .__ . •• • .. ' • . . ..... . : • J_- ~ . ' . . '• • ~ t ... ; ' . . . ' • " . .·] ("'~ ,. _,. _. ~.... ";, ... ~1---~- · ~~~:-·y, ..-. .J;··~....'.:.... ~--·,,::,,;,i,....... ·~-- , .. ,, ..... , • . . ,...... ., . ·2. Whether the 1st defendant ·was negligent in the ' ~ '. :) , ; . 1"' ·. . ." ) ' ~ ,- ., -' . :·: .,·, • •• ' I •• •• - 2 - J. To what extent did the plaintiff's vehicle sustained dawageso 4. To what relief is the plaintiff entitled. To these four issues, the court added three more issues 5. Whether motor vehicle TZ 50291 was a taxi.

6. WhetheF the loss of eari1ing per day was ··: shs. 1 ,500/=. 7.. Whether the plaintiff ever notified the defendants that he intended to sue them after fflldl:ing to get what he wantedo In order to answer these issues effectively, I now turn-to a consideration of the evidence adduced in the case. The plaintiff -(PW., 1) testified that he owns a car with registration No. TZ 50291' peugeot 404 which-he uses as a taxi and produced a registration card Ex., P,.1 for it. He is also a member· o·:f "Tanzania Drivers Association" and hierimembership card had been tendered in court as Ex-. P. ~t. Ire as well produced a taxi licence in respect of this motor· vehicle as Exo P,,J:o He. started operating v: . taxi business since-2nd February, j981 .. On 14th February, .. 1981 at about 8 ai .. m!I ·he p2.rked his taxi at a parking lot along Mission Street., The rear part of the taxi was two feet away from the road and the front part of,it was 3 feet. away from a wall. Having parked his car, he left· on foot going t0 collect bis driver Cyprian Ligaga (PW ..2)o On his way back, he found his car badly damaged, it having,been knocked by a lorry bearing registration number SU 551; and it was knocked at the rear and pushed against- the wall which was in front of the fore part of the car .. This lorry was· driven by the first d'efEmdant who was employed, by the second defendants.. Having caused

the accident, tho 1st defendant left his motor vehicle at tho scene of the accident and he himssilf was around .. Later tra:ffic ···officers ·c arrived at the scene and drew a sketch plan Ex, P.,4 and when this sketch plan was drawn "oo/J - 3 - both the plaintiff and tbe 1st defendant ~re present. Later the first defendant was taken to c'chi~t and charged with the offence of careless dri vi.ng and he pleaded guilty to the offence·, and:. ho was convicted and sentenced to a fine ,of shs~ 1,·500/:: and in default of payment of su.ch fine, he was to go to jail for a term of six months. A copy -o:f this judgment was tendered and accepted in court as ·Ex. ·-p,.5 ~and 1t· is in respect of Traffic Criminal Case m,. 332/1981. "Tbe plaintiff also tendered the accident report as Ex., P.• 7 whicli was prepared· by police who examined the motor vehicle , after the accident. Thereafter, the plaintiff sent his motor vehicle to· Tamganyika Auto Garage for repair and it costed him shs.· 25,000/= to repair the car as shown on the receipt Ex. P.12 from Tanganyika Auifo Garage • On 1'8 th May.., 1981', the plaintiff wrote a letter to the second defendants ..and copied it to the third defendants ask1.ng them.to request their insurers the third def.endants to innemnify him the . costs-_'. of repairing his car·and a copy of this letter was tendered in court -ss Ex. ·p ~8. 6n 19th May, 1981 , the

third defendants that's the insurers -respondedi to the letter Ex.·P.• 8.by writing to the plaintiff and for ea~e of reference and because of its important relevance to the conduct of the third d@fendants the insurers in handling the plaintiff's claims, conduct which ultimately brought· them in the suit, · I would quote the letter which was- produced as Ex. P.9 and it reads as under:- Dr. ·111ex N. · Miiganga , P.O. Box 5800, Dar es· Salaam Dear S'ir, Re: ACCIDBJ\TT TO YOUR CAR RBG. NO. TZ'. 50291' .A.ND SU 551' DATE OF ACCIDENT 14/2/1981 We are in receipt of your letter dated 18th May; 1981· claiming damage for your above referred vehicle. In order- to enable us do the needful, kindly let us have the estimated cost of repairs for our necessary action. - 4 - Yours faithfullyr for and on behalf of•T:~.':..onal Shipping Agencies Coe I,tdo M.M. Mayamba Insurance Off"icer (The underscoring is mine.) 0 The plaintiff responded to this letter Ex. Po9 by sending to-the insurers the third defendants the estimated costs Ex. Pc10 from Tanganyik~ Auto Garage.· The third-defendants the insurers then wrote another letter Exo P.11 to tbe plaintiff advising him that they were ready to indemnify him as underg- 1,. Repair costs: - shs o 15, 236/ 45; 2. Loss of use of his motor vehicle - Shs,, 200/= per day for 14 dcey,s •= Shs,, 2,800/=a Thus the total cost thev W(i;re prepared to pay him was

shs .. 1s;o36/45o More and above, tpey advised the plaintiff tbat in case he was dissatisfied with the offer, he could take legal-action against them and that they were ready to defend their stand~ .As a result of this ad-v'lce 7 the :plaintiff decided to bring this claim against all the three defendants, in this court and he managed to repair his car on 3rd August, 19s2: The plaintiff further deposed that he started taxi ., business on 2hr1 February, 1981, and on the fi:"st r1ay§ his driver (Pti.2) brought him sbs. 500/= and hereinafter, .he used to receive money in the region of up to shs .. 800/= per day as his profit from _this business an1 this has been confirmed by the evidence of his fl.river Cyprian Lugaga (PW. 2) o / On the other hand 9 the first c1efendant who was the driver of motor vehicle SU 551' and employed by the second defendants tolrl the court that he knocked the rear part of the plaintiff~s motor vehicle which was stationary with its rear part protruding into ·the. main ruaa. and he, did= so when he was trying to avoid colliding with the lorry which was pulling his car afte:::' the rope tie1 to his car ·with that lorry was brokenc However the sketch plan Ex-. P .. 4 ... which was dra.wn in the pres~nce ,nf tho pla~ntiff a.nd the first defendant cleariy .,shows ·t.irn::t. ~ ·the plaintiff" s car was very far·· away from the n,iairi raad and its. rear •.pe.rt

did not :pT~trude :~_.:roa.a·:.-'. -f.nt6. thft· ·Mr~_-J~oMm· ::ee.te:t ~·(nvr o'2 )· te:stif:Led:.,1;&,_(J he·: :i-~- a~pl.;yed by N".I ..c. a.s a motor ass~ssor and accordin~ to him,, he ~xamined damages caused on the plaintiff's· motor vehicle inthe acciflent,and. that the costs of repairil'i~ it. coJld be shs. 16,000/= and-some few shillings:··mo.re'~ It appeerrs that this witness is not aware·· of the high pf-ices of spare parts nowaclayso Fflis evidence is not of .much·assistance to the case as such I disregard it straight away • . Mr. lVIwakajinga learned counsel for the defendants .,: submitted tba t the third defendants were wrongly joined in ·this suit, because they did not commit anytortious ·a-ct . . warranting them to be joined as a party to the suit and in sup:port . .of this view he referred me to Orderf rule 3·of·the Civil Procedure Code; tho casE: of ]Sa.relays Bank D.'C.O., v. C.B'. Patel and Others (1959) E.JL 214~ I do not share these views beca-G.se when the accir. ont took place tho ma:tter was reported to tJqe 2nd defenn.ants the empJ_oyers -of the 1st de~endant their authorized driver and a copy of that letter. Ex·. 1<s ~ittem· by the plRintiff was sent to the 3rd defendants· t1'le insurers of t:be sec0nd defendants.. In effect,. the insurers, the third defendants had taken over and conducte1 the mode of payment of•the claim 0f the plaintiff by first

writing him a letter Exo Po9 and P.11. They even- went further and or1ered their emplo3ree f DW ~- 2) to make an assessment of the damages of the plaintiff's car and when they failed to reach an agreement on the at!lount they were prepared to pay to the plaintiff they adiTised·him to take a legal action against them as sJ.::iown on Ex., P .. 1 f'~ This being the position, the insurers 9 that's the 3rd defendants realized th.at the plaintiff has a .right to the ihdemni tyr provided for in the policy against th0m and they have been rightly joined as a party to the suit .. This answers the '· first issue •. 'I,. 6 the second issue, the learned counsel for the On defendants submitted that the plaintiff contributed a lot to the oaeurance of the acci~ent because he parked his-: car with the rear part protruding int-o ··the-•-tneiirrrciatl·-tP.ru:s there is con.tri butory negligence by the plaintiff. With due respect I do not agree with the learna.d·counsel for ~ . '• the defendants. As rightly submitted by.~- Mchora. learned counsel for the plaintiff, the plaintiff's motor vehicle did not have its rear part protrude into the--::uoa:d~ - and this is clearly shown in the sketch plan Ex. P.4 which was drawn in the presence of both parties concerner:l with the ·. acci~ent. The first nefen1ant admits in his evidence that he caused the accicl.ent when he was trying to avoid colliding with

the lorry which was pulling his lorry when the rope pulling him was broken. Re too plea~ed guilty t~ ·,his . careless manner of driving as exhibite1 in Ex. Po5• In conclusion therefore, I finrl that there is no contri but0ry negligence on the part of the plaintiff only that the first defendant was careless in his mode of driving. There is no dispute by both counsels for both parties as to the ~xtend of damages caused by the accident for there is a police report Ex. P.7 and a report from Tanganyika Auto Garage Ex. P.10 an<'l this evidence is uncontradicted and which I accept, s Mr. Mwakajinga., the learnen counsel for the defendants further submitted that there is no evidence to establish that the plaintiff's motor vehicle was a taxi because there is no eviflence sho-vring the time as to when the plaintiff· obtained *··business licence to operate his car as a, taxi. With respect to the learned c0unsel for the defendants, I do not agree with him. It appears he ~oes not remember the evinence of the plaintiff and exhibits tendered in support WO.: of the plaintiff' _es evidence in this ::i:-espect. There is attached to Ex. P.3 a copy of,a licence for a taxi cab running.from the 2nd February 9 1981 to first January, 1982. In the result, I find that the plaintiff's car was a taxi cab. n I Mr-. Mwakajinga for the defen1'ants c,cr:r:r'd:emed.F-i;m;~-:f:nvm the evirl.ence of the

plai:r:rdff (PWo1) and P1io2 his driver,· the plaintiff was earning between shso 500/= to shs~ 700/= per day during the first week of the business ann between 3rd August, 1982 to 10th August 9 1982~ the highest am0unt he got was shs. 1,200/=,in a rlay anr't .the lowest ho got in a day was shs~ 900/=? but PWoZ tho driver says that before the, accrl:den'tt.·t-ri.e· lowest 2llI!loun-1t of money he collected was shso 800/= per day and in the month.of Augast, 1982 the lowest amount-he collected was shso 1 1 000/= and the highest was-: shs. 1,600/= in a nay~ He therefore submitted that there is material contradicti0n in the evidence of the two and the court should not take reliance on this conflicting evidenceo Ire therefore submitted that loss of earning should be assessed on the basis of what the plaintiff earned before I the accin.ent and not after the accident o In tho light of the -evidence a'1r1uced by the plaintiff and PW.2', I do not- aee any oonfliction ···bit I· ac·ce:riu···b:ts views , · that assessment of loss of profit sh0ulr1. be based on whr.t the plaintiff ,. earned before the accident and not after the accident.· It ~ . . .. is true that we have r-inly nral evirience of PW o 1 and :PW .z establishing what the plaintiff earned and there are neither receipts nor balance sheets to show what the plaintiff earned in a day but having in mind that this business was still

very raw it·suffices to accept the oral evidence of the plaintiff and PW.~. It has been :prov~d .- that the plaintiff' s car was used as a taxi cab and certainly the plaintiff suffered I loss of profit arising from tho defendants' failure to repair the car resulting the plaintiffYs loss of business i.e. that h~ has lost business which would have otherwise gone to him. The plaintiff. therefore is entitled to be awarded such sum as will fairly compensate him the loss that he h@.d actually sustainedo In making the award unc1er·· this item, the full amount of the profit that could have been earned should be discounted to allow for the degree- of improbability. I would accordingly apply these broad statements of princi1>le as a guide in deterrnining the present matter and come to the.cnnclusi~n that the reasonable amount of loss of profit should be shs~- 600/-z per day as from the date,of a,ccident that's 14th February, 1981 up to the 29th July, 1982 and wheE.--:~::- · :::~~--wa-s···completel-y·.-i""~pa.ired and I •. mccordingly- give this awa.-rd., .J f .. That disposes of the 6th issue A.nd I now turn to consir'ier the 7th issue wbic.h is. whether the plaintiff ever notifien the defenilants that he intended to sue them~ The· answer to _t·hc:, t is very simple as prope.rly submi ;tted b;v Mr~ Mcbora tho ·1eg,rrtea. ·co1.1rtSel for the plaintiff th13.t the-re has be err a protracted

corresponfl.ence between the plaintiff and the defendants resulting this suit after-the plaint'i:ff was anvised by the third defendants to do so. There was therefore no need for tbe pJ.aintiff t0 notify the r1.efenn.ants that he was bringing a;.~it against themo I now come to the 4-th issue which is: to what relief is the plaintiff entitledl There is evirl.ence establishing that the car was repaired: at a cost of shs. 25,000/= as shown on Ex. P.12 as a result of the accinent and the plaintiff is entitled to the award of this specific sum ' and I accordingly order an award of this sum. As I trie~ to demonstrate above th.at there was no cor.irbributory negligence 0n the part of the plaintiff and also the plaintif.f was justified to refuse to accept the sum irif shs. 18,036/45 which included the cost ('If repairing his car to~ether with loss of pr0fit,when actually the cost of repairing the car was shs. 25,000/= and this offer was, given by the 3rd defendants the insurer. FJaving found so, the counter claim lo~ged by the nefe~~ants has no legs to stand on and I dismiss it with costs. ~ In conclusion, I find that the first defendant an employee nf the sec0rid defendant was at the material time driving the motor vehicle which was involired in the accident with the plA.intiff's motor vehicle with tbe permission of the insured the sec0nd defendants~ Theref0re I find that he was an

"authorized Drivern within the meaning assigned to this term by the policy 0f insurance. I. also finr.. as a fact proved that the insurers that's the third defendants agreec1 to 1ndemrd..!y- the insured against liability in terr.is of the policy; and also to indennify any authorized driver, nriving with the permission of the insured. More and above, I find it proved that the first defendant was careless in his node of driving resulting the accir:1,ent of knocking the plaintiff's Tiotor vehicle which was properly parked at a ,- parking lot with no contributory negligence by the_12~aintiff,• ••• /9 I l "'~ .... 1- 9 -· I therefore enter ju~gment for the plaintiff- as deMonstrated above and grant the plaintiff the declaration he seeks namely that the :tns'ltre-:rs ·1:1/~e~ the third defendants- are boun~ to indennify the plaintiff against all liability whether in respect of darn.ages or cos-ts- or interest arising 0ut of the accir1.ent of 14th Februa:ry 1 1981' in which the plaintiff's car suffered rl.::i.r.1.ages for they_·_ insured the rest of the defendants as explained abovoo The plaintiff wjll have the cr.sts of this action plus-- interest at the decretal amounto -( a o G-: MTENGA) JlJDGE -~~~ Delivered in open c·ourt- in -~:r1e pi~esence of lVIr-. Mchora: counsel for the plaintiff and J.VIro Mwakajinga counsel for the defendants this f 9th day of May 9 19830 ( C .G ~- J.VITENGf~) - ill[Q_Cr]. 1'9th M~L--1.98'f ( .