Mary Lesha Administratrix of estate of the late Godfrey James Mashala v Marco John Magadula 2 Others

I IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO. 13 OF 2022 MARY LESHA (As administratrix of estate of the late Godfrey James Mashala)..................................................... PLAINTIFF VERSUS MARCO JOHN MAGADULA..................................................... 1ST DEFENDANT MKOMBOZI FISHING & MARINE TRANSPORT LTD................ 2ND DEFENDANT INSURANCE GROUP TANZANIA LIMITED............................. 3RD DEFENDANT JUDGMENT 11/7/2024 & 19/8/2024 ROBERT, J:- This suit arises from a tragic road traffic accident that occurred on 6th April 2019, at Kamanga village, Sengerema district, involving a motor vehicle with registration number T 591 DMY, a TATA mini-bus, driven by the 1st Defendant, Mr. Marco John Magadula. The accident claimed the life of Mr. Geoffrey James Mashalla, for whose estate the Plaintiff, Mary Lesha, serves as administratrix. The Plaintiff has brought this action against the Defendants seeking compensation amounting to TZS 510,000,000, comprising TZS 310,000,000 i as specific damages and TZS 200,000,000 as general damages. The claims are grounded on allegations of negligence on the part of the 1st defendant, Marco John Magadula, who was driving the motor vehicle with registration number T 591 DMY at the time of the accident and vicarious liability of the 2nd defendant, Mkombozi Fishing & Marine Transport Limited as the owner of the vehicle. The second Defendant demands indemnification from the 3rd Defendant, Insurance Group of Tanzania Ltd, as the insurer of the said vehicle. The Defendants deny liability, with the 2nd Defendant disputing the employment relationship between himself and the 1st Defendant, while the 3rd Defendant denies the existence of a valid insurance cover at the time of the accident. The issues framed for determination by the court are as follows: 1. Whether the accident which caused the death of Geofrey James Mashala was due to the negligence of the 1st defendant. 2. Whether the 2nd defendant, being the owner of the motor vehicle, is vicariously liable for the said death. 2 3. Whether the motor vehicle was insured by the 3rd defendant at the time of the accident. 4. To what reliefs are the parties entitled. Starting with the first issue, the plaintiffs case rests on the assertion that the accident resulting in the death of the deceased was due to the negligent and reckless driving of the 1st defendant. The Plaintiff testified that the accident was a result of the 1st Defendant's reckless driving, leading to the overturning of the vehicle and subsequent death of Mr. Mashalla. The Plaintiff submitted the judgment from Traffic Case No. 19/2019, where the 1st Defendant was convicted of causing death by dangerous driving. This judgment was admitted as Exhibit P2. The 1st defendant, who did not participate in the trial, did not present any evidence to rebut the allegations of negligence. It is trite law that a conviction in a criminal case, while persuasive, is not conclusive evidence of liability in a subsequent civil suit. However, the Plaintiffs evidence, in the form of the Traffic Court judgment, coupled with the fact that the Defendants did not present any substantial evidence to counter the claim of negligence, weighs heavily in favor of the Plaintiff. The 3 fact that the 1st Defendant was convicted for causing death by dangerous driving strongly suggests negligence on his part. In the absence of any credible evidence to the contrary, I find that the accident which led to the death of Geoffrey James Mashala was indeed caused by the negligence of the 1st Defendant. Coming to the second issue, whether the 2nd Defendant, being the owner of the motor vehicle which caused death of the late Geofrey James Mashalla, is vicarious liable for the said death. DW1 Ibrahim Kitano Chacha, the Executive Director of the 2nd Defendant, denied that the 1st Defendant was his employee, claiming that the vehicle was supposed to be driven by one Marwa Matiko, who, due to health issues, handed over the vehicle to the 1st defendant without the company's authorization. He contends that the Company cannot be held vicariously liable for the negligence of the 1st defendant as the latter was not its employee. However, the Plaintiff argued that the 1st Defendant was acting within the scope of his employment at the time of the accident, thus implicating the 2nd Defendant under the principle of vicarious liability. 4 Vicarious liability arises when an employee, acting within the scope of their employment, causes harm or damage. The evidence in the present case shows that the 1st defendant was driving the 2nd defendant's vehicle during the course of business. The 2nd Defendant's testimony failed to provide concrete evidence to refute the employment relationship between him and the 1st Defendant. No employment contracts, disciplinary records, or other documentation were produced to support the 2nd Defendant's claim that the 1st Defendant was not his employee. The bus conductor and ticket officers, who were employees of the 2nd defendant, allowed the 1st defendant to drive the vehicle, thereby tacitly approving his role as a driver. Moreover, the 2nd Defendant's admission that his company did not monitor the drivers while they were away from the office suggests a level of organizational control that could be interpreted as employer responsibility. The failure of an employer to follow up on the employees' activities can lead to an inference that the employee was acting within the scope of their employment. In this case, the 2nd Defendant's admission that his company did not monitor the drivers while they were away from the office, coupled with the fact that their own employees allowed the 1st Defendant to drive the vehicle, leads this Court to conclude that the 1st Defendant was indeed 5 acting as an employee of the 2nd Defendant at the time of the accident. Consequently, the 2nd Defendant is vicariously liable for the actions of the 1st Defendant. The third issue seeks to establish whether the motor vehicle was insured by the 3rd Defendant at the time of the accident. The 3rd Defendant disputes the validity of the insurance cover, citing the lack of a premium payment receipt as evidence that no valid contract existed. The 2nd Defendant, on the other hand, presented a cover note as Exhibit DI, indicating that the vehicle was insured by the 3rd Defendant from 21st December 2018 to 20th December 2019. It is established law that an insurance contract is binding once the insurer issues a cover note, even in the absence of a premium payment receipt, unless proven otherwise by the insurer. The 3rd Defendant's witness, DW2 Grayson Elieskya Yusto, admitted that the cover note was a valid document and acknowledged that it is unusual for such a note to be issued without the premium being paid. The 3rd Defendant did not provide sufficient evidence to prove that the premium was unpaid or that the cover note was invalid. 6 Therefore, I find that the motor vehicle was indeed insured by the 3rd Defendant at the time of the accident. The fourth issue seeks to establish the relief(s) to which the parties are entitled. The plaintiff claims TZS 510,000,000/=, comprising TZS 310,000,000/= in specific damages and TZS 200,000,000/= in general damages. The claim is based on the financial and emotional hardships suffered by the deceased's dependents, including his children, grandchild, and parents. However, it is trite law that special damages must be specifically pleaded and strictly proved. The plaintiff did not provide concrete evidence, such as salary slips or financial records, to substantiate the claim of TZS 310,000,000/=. Therefore, this court finds that the claim for special damages cannot be granted as pleaded. On the other hand, general damages are awarded at the discretion of the court based on the circumstances of the case. The death of the deceased has undoubtedly caused significant hardship and emotional distress to his dependents. Considering the nature of the case and the degree of negligence 7 involved, this court finds it just and equitable to award the plaintiff TZS 50,000,000/= as general damages. In the final analysis, judgment is entered in favour of the Plaintiff as follows: 1. The 1st and 2nd Defendants are jointly and severally liable for the death of Geoffrey James Mashalla. 2. The 2nd defendant is vicariously liable for the actions of the 1st defendant. 3. The 3rd Defendant, Insurance Group of Tanzania Ltd, is liable to indemnify the 2nd Defendant for the amounts awarded under the terms of the insurance policy. 4. The plaintiff is awarded TZS 50,000,000/= in general damages. The claim for special damages is dismissed for lack of proof. 5. The Plaintiff is awarded costs of the suit. 8