CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL NO 72 OF 2023 (iOriginating from Civil Case No. 54 o f2022, District Court ofArusha at Arusha) METICULOUS GENERAL INSURANCE COMPANY LTD......................................................APPELLANT Versus ELISIFA RICHARD MBISE {Suing as Administrator of the Estate of the iate Wilson Thadei NyakI) ........................ 1st RESPONDENT PHILBERT JOHN TARIMO...... ....................... 2nd RESPONDENT THOMAS RAPHAEL MOLLEL............................ 3rd RESPONDENT JUDGMENT 12thJune & 2&hJuly 2024 Masara, J In this Appeal, the Appellant is challenging the decision of the District Court of Arusha at Arusha ("the trial court") made in Civil Case No. 54 of 2022. Before the trial court, the 1st Respondent was the Plaintiff. He sued the Appellant as well as the 2ndand 3rd Respondents jointly, claiming for payment of TZS 156,000,000/= as special damages arising from the wrongful death of one Wilson Thadei Nyaki ("the deceased") which occurred as a result of a road accident caused by a vehicle with registration No. T134 DFM, make Nissan Caravan, owned by the 3rd Respondent, driven by the 2nd Respondent and insured by the Appellant. Page 1 of 20 He also claimed for general damages, as may be assessed by the court, interest at the court rate of 12% per annum from the date of the judgment till full payment, cost of the suit and any other order and reliefs that the court deems fit and just to grant. It was the Appellant's defence before the trial court that the 1st Respondent had no legal claim against it as at the time of the accident the deceased was a mini bus conductor and not a passenger and that the vehicle insured was not driven by an authorised driver of the 3rd Respondent. Upon hearing, the trial court entered judgment in favour of the 1st Respondent against the Appellant and awarded general damages to the tune of TZS 150,000,000/= and costs of the suit. The Appellant, being dissatisfied with the said judgment and decree, preferred the current Appeal on four grounds hereunder: 1) That, having found that the late Wilson Thadei Nyaki (deceased) was the bus conductor and employee o f the J d Respondent, the Honourable District court Magistrate/Trial court erred in law and fact in deciding that the deceased is a third party under insurance policy and the 1st Respondent is entitled to compensation from the Appellant. 2) That, having found that the motor vehicle involved in an accident (Registration No. T134 DFM) was driven by the 2ndRespondent who was not an authorized driver, the Honourable District Court Page 2 of 20 Magistrate/Trial court erred in law and fact in deciding that the Appellant is obliged to pay compensation to the 1st Respondent and does not fall under policy exclusion. 3) That, having found that the /ate Wilson Thadei Nyaki (deceased) was the bus conductor and employee o f the J dRespondent and that the motor vehicle involved in an accident (Registration No T134 DFM) was driven by the 2Pd Respondent who was not authorized driver (Mr Prosper Mungaya Laizer) the Honourable District court Magistrate/Trial Magistrate court erred in law and fact for failure to decide that the 1st Respondent is entitled to compensation from the 2ndRespondent and 3rd Respondent and not the Appellant. 4) That, the honourable District court Magistrate/Trial court erred in law and fact for failure to properly evaluate in its record resulting in awarding exorbitant amount o f general damages o f TZS 150,000,000/= to the 1st Respondent against the Appellant without justifiable cause and reasons and againstprinciples governing award o f such damages. At the hearing of the Appeal, the Appellant was represented by Mr Mnyiwala Mapembe, learned advocate, the 1st Respondent was represented by Mr Mosses Ebenezer, leaned advocate and the 3rd Respondent enjoyed the services of Mr Lengai Loita, also learned advocate. The 2nd Respondent did not enter appearance despite service; thus, and the matter proceeded ex parte against him. Page 3 of 20 In the written submissions in support of the Appeal, Mr Mapembe opted to abandon the 3rd ground of Appeal. On the first ground of Appeal, Mr Mapembe averred that as the trial court at page 6 and 7 of its decision held that the deceased was a conductor of the bus, it erred when it ordered the Appellant to pay compensation to the 1st Respondent contrary to the insurance policy between the Appellant and the 3rd Respondent, which was admitted by the trial court as exhibit Dl. Mr Mapembe further stated that, the policy provides for the exception of the Appellant's liability to third parties, specifically at page 5 which provides the exception in the case of a death of or bodily injury to any person arising out of and in the course of such person's employment by the person claiming to be indemnified. That, since the deceased's death arose out in the course of employment as a conductor, as seen in exhibit D2, the flash disk, as well as the investigation report (exhibit D3), the said death could not be compensated as per the contract above stated. To back up his position, Mr Mapembe made reference to the Court of Appeal decision in Unilever Tanzania Ltd. vs Benedict Mkasa t/a Bema Enterprises, Civil Appeal No. 41 of 2009. Mr Mapembe also made reference to sections 4 and 19(1) of the Workers Compensation Act, 2008, and submitted that employees or their Page 4 of 20 dependants who suffer injuries or death in the course of employment are entitled to compensation from the Workers Compensation Fund (WKF) and not private companies such as the Appellant. On the second ground of Appeal, Counsel for the Appellant submitted that the trial court erred in determining who is an authorised driver and its impact when accident occurs as far as insurance law is concerned. Referring to exhibit Dl, the insurance policy, he stated that the term authorized driver is defined to mean any person who drives on by the permission of the insured person. That, in the current matter, the 2nd Respondent was not an authorised driver. He made reference to the evidence of PW2, during cross examination, the evidence of DW2, the investigator, Exhibit D3, the report, as well as exhibit D2, the video flash disk, which proved that the authorised driver was one Prosper Mungaya Laizer, who had been hired by the owner of the motor vehicle, the 3rd Respondent. That, as the accident was caused by an unauthorised driver, then the 1st Respondent was to be compensated by the 3rd Respondent, as the act of the vehicle being driven by a person rather than the authorised driver falls outside the insurance policy. Regarding the 4th ground of Appeal, Mr Mapembe was of the view that the amount awarded as general damages to the 1st Respondent was Page 5 of 20 exorbitant and unjustifiable. That, it is a trite law that general damages should not be awarded as a punishment to the wrongdoer, as it is only intended to put the victim to a place closer to where he was before the action complained of happened. He referred to the decisions in Stanbic Bank Tanzania Limited vs Abercrombie Kent(T) Ltd., Civil Appeal No, 21 of 2001 and Tanzania Saruj’1 Corporation vs African Marbel Company Ltd. r20041 TLR 155 to support that assertion. Counsel for the Appellant, therefore urged the Court to reduce the amount of general damages awarded by the trial court to the 1st Respondent, as the trial court had treated the same as a punishment to the Appellant rather than compensatory. In reply to the 1st ground of Appeal, Mr Ebenezer joined issues with the Appellant. He argued that the 1st Respondent was entitled to compensation, as the deceased was one of the passengers in the motor vehicle that was insured with the Appellant and that the testimonies of PW1 and PW2 substantiate that fact. For him, there was no evidence presented by the Appellant to prove that the deceased was a bus conductor. That, what was presented before the court was mere speculations as the video clip exhibit D2 was an information whose author is unknow and that the owner of the said motor Page 6 of 20 vehicle and the driver were never summoned to support the Appellant's allegations regarding the status of the deceased's employment. Advocate for the 1st Respondent further submitted that failure to call a material witness without showing if he is out of reach, leaves the court with no option but to draw an adverse inference. On this position, reference was made to the decisions in Wachawaseme John vs Republic, Criminal Appeal No, 468 of 2022 [2024] TZCA 349 Tanzlii. Esther Aman vs Republic, Criminal Appeal No. 69 of 2019 CAT and Aziz Abdallah vs Republic (1991^ TLR 71, That, since the Appellant failed to discharge its burden of proof that the deceased was a bus conductor, then the evidence of PW1 and PW2 that the deceased was a passenger on the vehicle which caused its ultimate death remains uncontroverted and therefore the 1st Respondent is entitled to compensation from the Appellant. Submitting against the 2nd ground of Appeal, advocate for the 1st Respondent contended that, since the Appellant was the one who alleged that the 2nd Respondent was not authorised to drive the 3rd Respondent's vehicle, it was upon the Appellant to summon the said Prosper Mungaya Laizer to testify that he was the authorised driver. Page 7 of 20 The learned advocate for the 1st Respondent made reference to the decisions in Esther Aman vs Republic (supra), AbdulKarim Haii vs Raymond Nchimbi Alois & Joseph Sita Joseph r20061 TLR 420, and Reqnard Panda vs Felician Wikesi, Civil Appeal No 265 of 2018 (unreported), to support his contention that the Appellant, being the insurer of the said motor vehicle, was expected to tender a written document filed by the owner of the motor vehicle during the time of his insurance stating that his insured driver is Prosper Mungaya, but that the same was not done. Replying on the 4th ground of Appeal, the 1st Respondent's advocate submitted that general damages are awarded by the court after considering all circumstances and the evidence on record. That, a court also consider whether the plaintiff suffered materially or mentally as was held in Anthony Nqoo & Another vs Kitinda Kimaro, Civil Appeal No. 25 of 2014 and Leonard Paul Kishenha vs Kilimanjaro Truck Company Ltd. & 2 others. Civil Case No. 47 of 2022 (both unreported). On the quest that this Court interferes with the award of general damages, Mr Ebenezer argued that, as a 1st appellate court, it is not in order to exercise a discretion of substituting the amount awarded unless the Court Page 8 of 20 is satisfied that the trial court applied a wrong principle of law or the amount awarded is incredible in law as was stated in The Cooper Motors Corporation Ltd, vs Moshi/Arusha Occupational Health Services [19901 TLR 96 and Materu Leison and J. Fova vs R. Sosoeter ri9981 TLR 102. That, in the current Appeal, the Appellant did not show how the trial court applied a wrong principle of law in awarding TZS 150,000,000/=. Further, that this being the 1st appellate court, it has jurisdiction to revisit the entire evidence on its objective manner and come up with its own findings as was held nin the case of Leonard Dominic Rubuye t/a Rubuye Aqrochemic Supplies vs Yara Tanzania Limited, Civil Appeal No. 219 of 2018. That, during hearing at the trial court and from the pleadings, the Appellant alleged that the deceased was a bus conductor at the time of the accident which fact the Appellant failed to prove as per the dictates of section 110(1) and (2) of the Evidence Act, Cap. 6 [R.E. 2019]. The 1st Respondent, thus, prayed that the Appeal be dismissed with costs. Responding on behalf of the 3rd Respondent, Mr Loita vehemently contested the Appellant's submissions on the 1st ground of Appeal. He stated that, the Appellant misdirected himself because the insurance Page 9 of 20 policy contracted between the 3rd Respondent and the Appellant covered all passengers in the motor vehicle in the event of accident and that there was no any sacrosanct of contract between the Appellant and the 3rd Respondent. That, the alleged exception clause cited in exhibit D1 was too general and that it never mentioned any specific group of persons or individuals which the insurance policy did not cover. To him, the wording of exhibit Dl, the insurance policy, covers all third parties to the said contract. Mr Loita further implored this Court to apply the overriding objective principle, by disregarding minor irregularities and unnecessary technicalities and abide to the need of achieving substantive justice, as held in Alliance One Tobacco Tanzania Limited and Hamis Shoni vs Mwaiuma Hamis fas the Administratrix of the estate of Philemoni R. KilenyH & Another, Misc. Civil Application No. 803 of 2018. With regard to the claim that the 1st Respondent was to be paid as per the Workers Compensation Act, it is the 3rd Respondent's submission that the same is a new issue not raised and determined at the trial court. Further, that the 1st and 3rd Respondents are not members to the Workers Compensation Fund. Page 10 of 20 Responding to the 2nd ground of Appeal, the 3rd Respondent's advocate submitted that the insured motor vehicle was driven by an authorised driver and even referred to the evidence by DW2 where she stated on her report that the vehicle was driven by Philbert Tarimo John who was authorised to drive the vehicle as the driver responsible had an emergency on the material date. Counsel for the 3rd Respondent referred to section 4 of the Moror Vehicle Insurance Act, Cap. 169 and claimed that since the motor vehicle that caused the accident was insured under the third-party insurance scheme, then Prosper Mungaya Laizer was allowed by law to permit Philbert John Tarimo to drive the motor vehicle. The 3rd Respondent further attacked the submission made by Counsel for the Appellant on the ground that the letter written by Prosper Mungaya Laizer was neither tendered nor admitted as evidence before the trial court and that, the act of raising the said claim at this stage is an afterthought intending to defeat ends of justice, an act which contravenes Article 13(6)(a) of the Constitution of the United Republic of Tanzania 1977. He backed this assertion with a reference to the Court of Appeal decisions in Reqisterred Trustees of Arusha Muslim Union vs Registered Trustees of National Muslim Council of Tanzania alias BAKWATA, Civil Appeal No. 300 of 2007, Thomas Lenqiveu vs Page 11 of 20 Emanuel S. Motika, Misc. Land Appeal No. 27 of 2019, Emmanuel L. Ole Kokan vs Isava Saiterie Lukumav, Land Appeal No. 25 of 2023. and Hood Transport Co. Ltd vs East Africa Development Bank, Civil Appeal No. 262 of 2019. Regarding the 4th ground of Appeal, the 3rd Respondent is of the view that, since the 1st Respondent managed to prove his claim on the required standard, then this Court ought to apply its revisional powers and increase the awarded damages from 150,000,000/= to 200,000,000/= because, according to him, the amount awarded by the trial court was too low. Basing on that submission, the 3rd Respondent prayed that the Appeal be dismissed. The Appellant, in the rejoinder submission, largely reiterated the submission in chief. The learned advocate conferred that it was in fact the trial court's finding that the deceased was the bus conductor; that the Respondents are estopped from challenging the same, since they did not challenge the said finding of the trial court through a counter appeal. That, since the deceased was a bus conductor, he is not a person covered under the insurance policy. On whether the vehicle was being driven by an authorised driver, the Appellant' retorted that there was sufficient proof that the authorised Page 12 of 20 driver of the vehicle was one Prosper Mungaya Laizer. That, proof of the same can be deciphered from exhibit D2, the video clip; the evidence of DW2, the investigator and exhibit D3, the report which, among other things, was attached with the statement letter from the authorised driver. Having outlined the submissions made for and against the Appeal, it is incumbent upon me to determine whether this appeal has merits. Notably, there are matters that are uncontested in this appeal. These are: That the deceased, from whose death the 1st Respondent claims compensation, was involved in a car road accident. That the vehicle in question, registration No. T.134 DFM, make Nissan Hiace, was driven by the 2nd Respondent. It is also not disputed that the 3rdRespondent's motor vehicle was insured by the Appellant herein and had a valid insurance cover note at the time of the accident which covered third parties. What is disputed in this Appeal is whether the Appellant herein is liable to compensate the 1st Respondent for the death of the deceased at all or, in the alternative, to the amount awarded. In short, the Appellant is faulting the trial court for failure to properly evaluate evidence on record and for awarding exorbitant general damages to the 1st Respondent. It is the Appellant's argument that the Appellant insured the said motor vehicle in respect of any accident that will arise to third parties subject to Page 13 of 20 some exceptions. That the said exceptions include non liability to accidents involving employees of the policy holder. That the 1st Respondent's son, being a bus conductor of the vehicle in question, was not covered by the insurance policy. Further, that as the vehicle was being driven by an unauthorised driver, the Appellant is exonerated from the liability accruing from such accident. I will begin with the last contention regarding the driver of the insured vehicle. Having considered the evidence on record, I find it difficult to fathom the Appellant's contention regarding the 2nd ground of appeal. I do not agree with the Appellant’s contention that liability of the insurer is limited to the vehicle being driven by the person mention to be the usual driver of the vehicle that was involved in the accident. The owner of a commercial vehicle may have more than one authorised driver. In fact, there is no rule or policy which requires a holder of an insurance cover to name the authorised drivers. What is needed is that the person be authorised by the policy holder and must possess a valid driving licence. As the 3rd Respondent herein does not state that the 2nd Respondent was not authorised by him, and as there is no evidence to prove that the driver was not licensed, the second ground of appeal lacks legs to stand on. Page 14 of 20 I should add here that motor insurance claims typically follow the vehicle and not the driver. This means that, if one lets someone else with a valid driving licence to drive the car and ultimately is involved in an accident, then the insurer, depending on the type of cover, is responsible for paying the claims arising from the said accident. Again, if the said insurance cover is not enough or does not cover the claim in question, the owner or the permitted driver will have to pay for the damage occasioned thereto. The 2nd ground of Appeal, therefore, lacks merit. Turning to the 1st ground of Appeal, it is the Appellant's position that the deceased's death cannot fall in the category of third parties covered by the insurance cover between it and the 3rd Respondent. That, the insurance policy contained an exception clause that limited its liability towards third party in event of the occurrence of any accident leading to either death or injuries of a person. According to the Appellant, the deceased fell in the exception as he was a bus conductor and as such an employee of the 3rd Respondent who should be compensated through a different compensatory scheme, the Worker's Compensation Fund. That position is vehemently disputed by the 1st and 3rd Respondents who argue that the deceased was a mere passenger in the vehicle or, according to Page 15 of 20 the 3rd Respondent, even if he was a conductor in the vehicle, he is not in the group of excluded persons. As it is the Appellant who claim that the victim of the accident was an employee of the policy holder, and considering that the policy holder refutes the allegation, then the burden to prove the same lies on the Appellant. This is the position of the law; specifically, section 110(1) & (2) and 112 of the Evidence Act, Cap. 6 R.E 2002. In Anthony M. Masanqa vs Penina (mama MaesH and Another, Civil Appeal No. 118 of 2014 T20151 TZCA 556 Tanzlii, the Court of Appeal stated as follows: "..Jet's begin by re-emphasizing the ever cherished principle o f law that generally, in civil cases, the burden o f proof lies on the party who alleges anything in his favour. We are fortified in our view by the provisions o f sections 110 and 111 o f the Law Evidence Act, Cap. 6 o f the Revised Edition, 2002" In the Appellant's written statement of defence filed at the trial court, the Appellant pleaded under paragraphs 4, 5 and 6 that the 1st Respondent's son was not a passenger rather a mini bus conductor who was under employment of the 3rd Respondent. Hence, the Appellant was by law duty bound to prove the facts that led to their conclusion and that the exception in the policy covered the situation thus excluding the 1st Respondent from being eligible for compensation by the Appellant. Page 16 of 20 I have been asked, in this Appeal, to reevaluate the evidence and thereby make an informed decision regarding the status of the victim. Whereas I am in agreement with the trial court's finding that the victim did not fall in the category of excluded persons, I am not at one with the conclusion that the victim was the bus conductor or, worse, an employee of the 3rd Respondent. Referring to a person as a conductor entails some sort of an employment contract between the said conductor and the owner of the said min-bus. No such evidence exists from the evidence of record. Mere utterances by third parties does not constitute proof of such employment. In my analysis of evidence, there was sufficient evidence to prove that the deceased was a passenger in the vehicle, thus a third party whose death should be compensated under the policy of insurance. Hence the trial court was correct to order the Appellant to pay compensation to the 1st Respondent. With regard to the issue of general damages raised in the fourth ground of appeal, the position of the law regarding the award of general damages is well settled. There are a number of authorities stating that general damages are normally awarded at the court's discretion and need not to be specifically proved. However, in the circumstances of the current Appeal we need also to consider whether the award of general damages Page 17 of 20 can be interfered and if yes, under what circumstances. The answer to this issue will lead us to determine whether there was any justification for the trial court to award an amount of TZS 150,000,000/ as general damages to the 1st Respondent. A correctly argued by Counsel for the 1st Respondent, it is trite law that this Court will only interfere with the quantum of the awarded damages if it will be seen that the trial magistrate assessed the said damages by using a wrong principle of the law. Where a wrong principle of law is applied, then an appellate court is entitled to vary or interfere with the quantum of damages awarded by the trial court. General damages should, as stated hitherto above, not be awarded as punishment. They are compensatory. This position was upheld in the case of Tanzania Sanyi Corporation vs African Marble Company Ltd. f20041 TLR 155 where it was held that: "General damages are such as the law willpresume to be the direct, natural or probable consequence o f the act, complained of, the defendant's wrong doing must, therefore, have been cause, if not a sole or a particularly significant cause o f damage. " The Court of Appeal in its decision in the case of Cooper Motor Corporation Ltd. vs Moshi/Arusha Group Occupational Health Services (supra) outlined conditions for an appellate court to properly Page 18 of 20 intervene with the assessment of damages by a trial judge or magistrate. These said appellate court must be satisfied of the following things: a) Either that the judge or the trial magistrate, in assessing the damages, applied wrong principle of law (as taking into account some irrelevant factor or leaving out of account some relevant one; b) Or short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. Applying the above principles to the current Appeal, the trial court while awarding general damages to the 1st Respondent stated the following: "Therefore\ taking in to consideration that the deceases has left behind children o f his own below age o f 18, his wife and the irreparable loss suffered by the plaintiff due to the untimely demise o f her son, this court recognizes the immeasurable emotional and financial tool that accompanies such a tragedy In light o f this, the court deems it appropriate to award the plaintiff general damages in the amount o f Tshs 150,000,00 as general damages for this profound loss. This award is intended to provide some solace and redress for the pain and suffering endured by the plaintiff as a result o f the unfortune incident./'emphasis added) i In this Court's view, the trial magistrate properly addressed his mind on the principles governing issuance of general damages. Applying the deep; pocket rule which applies in insurance law, since the Appellant was the Page 19 of 20 insurer under a third party policy, the trial court was justified to decide that it pays general damages to the 1st Respondent. The Appellant is not correct to term such an amount as punitive as the trial court rightly stated that the said amount was intended to provide some solace and redress for the pain and suffering, it was not intended to punish Appellant. I therefore desist from the temptation to vary the discretion exercised by the trial magistrate in awarding 150 million shillings to the 1st Respondent as general damages. I also desist from enhancing the award as requested by the 3rd Respondent. I, thus, uphold the award by the trial court. In the final analysis, this appeal is devoid of merits. It is accordingly dismissed with costs. DATED at ARUSHA this 26th day of July 2024. JUDGE Right of Appeal explained to the parties Page 20 of 20