mwesiga g ahulila vs tanzania electricity supply company ltd 2012 tzhc 123 26 july 2012

IN THE HIGH COURT OF TANZANIA AT IRINGA CIVIL CASE NO.3 OF 2006 MWESIGA G. AH U LI L A ......................................PLAINTIFF VERSUS TANZANIA ELECTRICT SUPPLY COMPANY LIMITED...DEFENDANT JUDGMENT MKUYE, J This is an ex parte judgment in Civil Case No. 3 of 2006 in which the plaintiff Mwesiga Ahulila filed a suit against the Tanzania Electric Supply Company Ltd (hereinafter to be referred to as TANESCO) in which the plaintiff prays for judgment and decree against the defendant for: a) (i) Special damages of Tshs. 13,000,000 being a lost hire charges for ill-fated trip to Dodama; (ii) Special damages of shs. 400,000/= as showing charges of the damaged truck; (iii) Special damages of shs. 59,575,000/= as costs for the repairing the damaged truck. b) Interest for he above; c) Payment of shs. 300,0(10,000/= as general damages; d) Costs of the suit; and e) Any other relief the court may deem just. As the defendant was served and had notice of the hearing date but absented himself without any good cause, the plaintiff was upon a prayer granted leave to prove the case ex-parte. At the commencement of the trial the following issues were framed and recorded as hereunder: 1) Whether at the material time the plaintiff was the owner of a motorvehicle No. T 673 ABK, the 15 tonne scania lorry. 2) Whether the said T 673 ABK sustained damage out of road accident at Kaburi la Nyundo . 3) Whether the accident was attributable to recklessness/negligence/dangerous manner of driving by the late Yoram Yomba Yomba. 4) Whether the plaintiff suffered any damages as a result of the said accident. 5) Whether the defendant is vicariously liable as a result of the said accident. 6) Whether the plaintiff made a claim to Bumaco Ltd Insurance Brokers and received payment of shs. 5,900,000 and if so whether this absolve the defendant from further liability towards the plaintiff. 7) What reliefs are the parties entitled The plaintiff fielded 3 witnesses to testify. From what I have heard from the plaintiffs exparte evidence as well as what is deposed by the plaintiff in the plaint the historical background of the matter can briefly be stated. On 7/3/2006 a collision between a heavy duty 15 tonner scania truck with Reg. No. T 693 ABK and another truck with Reg. No. SU 35 905, Isuzu KB occurred along Iringa Morogoro high way at Kaburi la Nyundo area within Kilolo District and Iringa Region. The scania lorry was travelling towards Dodoma and the Isuzu lorry towards Iringa. The scania truck was driven by one Stanley Njogolo, who was an employee of the plaintiff while conveying a full load of bags of maize under the contract the plaintiff had entered with an Agency known as Strategic Grain Reserve (SGR). The Isuzu was the property of the defendant TANESCO and was driven by its employee one Yoram Yomba Yomba who incidentally died on the spot. Following the accident the driver of the scania lorry sustained injuries and was admitted to Iringa Government Hospital for treatment. 3 According to PW1, Ahulila Mwesiga, the scania lorry was his property which he bought at shs. 22 million shillings as a used motorvehicle from a person called Jaffar, who was a car dealer. The Registration Card thereof was tendered and marked as Exh. PI. PW1 used the said lorry to transport goods like timber, potatoes, maize etc. from Makambako to Songea, Dar es salaam and Tunduma whereby he used to fetch shs 600,000/= per week. But from the date of accident he was unable to use it as it was severely damaged. PW1 said further at the time of collision he had entered in to an agreement with Strategic Grain Reserve (SGR) Zonal Manager to convey 180 tonnes of maize from Makambako to Dodoma at shs. 13,005,170 on the basis of shs 170 per tonne per km as shown in "Mkataba wa Uchukuzi" dated 01/3/2006 which was. admitted and marked as Exh. P2. PW1 said when he went to the scene of accident he found his motorvehicle has overturned on the left side of the road and its engine, gearbox and the cabin were seriously damaged. The maize was poured on the ground and they salvaged it and transported to Dodoma by another vehicle which he hired at shs. 1, 000 , 000 /= . PW1 further testified that the TANESCO vehicle was also damaged but it showed it had moved from its side to the other side of the road and collided with his truck. His driver blamed 4 the TANESCO driver for driving on his side while overtaking three vehicles at the hill. PW1 said he wrote to TANESCO requiring them to compensate him and they demanded to be furnished with exhibits which he did furnish them with original copies of PF 90, PF 93, Vehicle Inspection Report and PF 115, final report, registration card, estimates for repair of the vehicle, insurance cover note which were tendered in copy form and admitted collectively as exh. P4 and P5. The defendant, PW1 testified further that, despite the fact that he furnished them with the relevant documents, did not pay or compensate him. Insteady, on 3/8/2006 he got a letter refusing to pay him because, they alleged, their late driver did not cause the accident. In that letter they did admit that their motorvehicle collided with truck No. T 673 ABK. The said letter was admitted in court and marked as exh. P6. PW1 testified further that at one time BUMACO, Insurance Brokers Ltd gave him a document (Exh. P5.) showing Phoenix, the company to which the TANESCO vehicle was insured was ready to pay him. But he refused the said payment as it was below his claim of shs. 59,500,000 and far below the amount required for repairing his motorvehicle. He testified further that the late Yoram Yomba Yomba was driving the Tanesco motorvehicle in the course of his duties of his employer or in the course of his employment thus TANESCO is 5 vicariously liable. His vehicle is written off, since 2006. Even if he is paid shs. 59,500,000 it won't be enough to repair it. because spare parts costs have gone up. He further claimed that he expected to get another agreement with Strategic Grain Reserve if the motorvehicle was in order. PW l's further testimony is that he had been affected economically and psychologically. He has-travelled to Dar es Salaam for 4 times and stayed in hotels where he paid shs. 100,000/= for follow ups. He once travelled by his motorvehicle where he spent shs. 250,000/=. He thus claims shs. 3,000,000/= as hire charges if his vehicle was in good order, shs. 400,000/= as charges for towing the motorvehicle from the scene of accident to Makambako; shs. 39, 500,000/= for repairing the damaged vehicle; interest at commercial rate; general damages in the sum of shs. 300,000,000/= due to income he would have earned from the time the motorvehicle was involved in an accident and costs. When PW1 was cross examined by the court he stated that TANESCO knew that he made a follow up through BUMACO. Even Phoenix communicated with BUMACO. He never signed any document. PW2, Charles Yuda Kapesi who was employed by PW1 to work as a turnboy in his lorry which was involved in an accident on 7/3/2006 at kaburi la nyundo area, testified as PW1 as to the trip from Makambako to Dodoma for conveying maize and further that he was present at the time of collision. PW2 further testified that he was sitting on the left side of the cabin (passenger seat) as the truck was driven by Stanley Njogolo and he saw the accident. PW2 said at about 18.30 hrs (broad day light). He said they reached at a place where there was a corner on a hill. The scania driver drove to his left side of the road at a speed of 80 km per hour. PW2 testified further that he suddenly saw a motorvehicle from the other side overtaking three motorvehicles. As the scania driver drove/moved on his far left they collided with that vehicle'. Their motorvehicle overturned but the other one didn't. His jaw was injured. The driver of scania was injured on his chest while the driver of that small vehicle died on the spot. His further testimony was that the other vehicle belonged to TANESCO as was shown on the logo affixed to it. The scania lorry got damaged on its engine, chasis and gear box. He was taken to the Iringa Government. Hospital where he was admitted for three days while the driver was admitted for one day. From then he ceased to be an employee of PW1 as the vehicle was damaged. He further said that that was their second trip to take maize to Dodoma. As to the accident he said it was caused by the small vehicle which was trying to overtake at the corner and a hill. Then came C. 8180 Sgt Ally who testified as PW3. PW3 was a traffic police officer at Iringa. He told the court that he knew PW1 on 7/3/2006 when he visited the scene of accident at Kaburi la Nyundo. PW1 was the owner of a lorry T 673 ADK which was involved in an accident. PW3 said, he drew the sketch map and took some measurements. At the scene he saw 7 scania T 673 ADK overturned and another vehicle SU 35908 Isuzu, which was a property of TANESCO. The witness identified Exh. P5 as the sketch map he had drawn while he was still a corporal. PW3 said the scania lorry was 37 metres from the road and it showed it was heading towards Dar es salaam while the TANESCO vehicle was heading towards Iringa. He discovered that the driver of TANESCO vehicle drove to his right hand side in a bid to overtake two other vehicles at a corner. He said further that the point of impact shows that the TANESCO vehicle was on its right hand side and therefore the driver of TANESCO vehicle was reckless or negligent. As to the scania lorry, he said it was written off (ilisambaratika) as the tyres were separated from the cabin. The maize were poured on the ground. This was the end of the exparte hearing. Going by the issues framed the first issue is whether the plaintiff was the owner of the vehicle with Reg. No. T.673 ABK. I think this is without question. I am satisfied from the available evidence that the plaintiff (PW1) was the owner of the motorvehicle a 15 tonner scania lorry with Reg. No. T073 ABK. PW1 himself lead evidence to the affect that he bought it in 2004 at shs. 22 million shillings as a used motor vehicle from one Jaffer who was a dealer. The Registration Card No. 238829 tendered and admitted as Exh. PI shows the owner thereof to be Ahulila Gloria Mwesiga. Not only that, PW2, Yuda Charles Kapasi who was employed as a turn boy of the said lorry supported that the vehicle in question belonged to PW1. Again PW3, the traffic police officer also testified to the effect that he came to know that the vehicle belonged to PW1 when he went to inspect the accident. But no one else claimed ownership of the same. I am therefore satisfied that this issue is answered in the affirmative. The second issue is whether the motorvehicle T 673 ABK sustained damage out of the accident at Kaburi la Nyundo. I think this issue cannot detain me much. PW2 who was a turnboy in the alleged vehicle and was sitting on the left side of the cabin witnessed the collision on the 7/3/2006 at Kaburi la Nyundo. PW2 said after the collision with the TANESCO vehicle, their lorry overturned and its engine, chasis and gearbox got damaged. The damage was so intense to the extend that he did not return to work. PW1 who saw the vehicle after accident testified to the same effect with regard to the damage of the lorry. PW1 said scania had overturned at Kaburi la Nyundo and the engine, gear box and cabin were seriously damaged. Also according to PW1, as the lorry was conveying maize to Dodoma, he had to hire another vehicle to take the maize to Dodoma and he towed the damaged lorry to Makambako. I think this would not have happened if the lorry was not damaged. The manner the lorry was damaged was also supported by PW3, E 8180 Sgt Ally who testified to the effect that the scania lorry was written off (ilisambaratika) Exh. P4, the proforma invoice from Mangula Auto Garage shows many damaged parts and the Vehicle Inspection Report D No 0391773 which is annexed to it also shows that about 38 parts of the scania lorry were damaged. I think even the defendant through the Written Statement of Defence though not proved does not dispute this. They all prove that the lorry sustained damage out of accident at Kaburi la Nyundo. In my view this issue is also proved in the affirmative. Turning now to the 3rd issue of whether the accident was attributable to negligence, recklessness or dangerous driving by- the late Yoram Yomba Yomba, I think one cannot resolve it without revisiting the available evidence. PW2 said he was travelling in the said lorry towards Morogoro direction which was driven at a speed of 80 km per hour. As the lorry was moving on a steep incline corner, he suddenly saw a small vehicle (TANESCO) from the other side overtaking three motorvehicles. PW2 testified further the driver of the scania lorry moved to his far left in order to avoid collision but they eventually collided with that other vehicle. PW2 attributed the accident to the driver of the TANESCO vehicle who tried to overtake three motorvehicles at a corner on a hill. PW3 on his part, who drew the sketch map (Exh. P5) and took some measurements explained to court that he was of the view that the driver of the TANSECO vehicle drove to his right hand side while overtaking two other vehicles at the corner. The point of impact, he said, showed that the TANESCO vehicle was on its right side. PW3 attributed the accident to Yoram Yomba Yomba who drove the vehicle negligently. 10 I have had an opportunity of looking closely at Exh. P5. It shows that TANESCO vehicle was heading towards Iringa while the scania lorry towards Morogoro/ Dar es salaam direction. The lorry was moving on its left hand side while TANESCO vehicle at first moved at its left hand side, but when it reached about 52 meters before the point of impact it come out from its left hand side towards the centre of the road and then to the right side and that by reason of such movement he driver of the scania lorry moved to his far left, but then collision could not be avoided. According to the sketch map measurements the driver of TANESCO started to apply break about 52 metres from the point of impact when he was overtaking three other vehicles and the lorry was coming in front of him. It implies that the driver of TANESCO vehicle was driving at a considerably high/faster speed to his right hand side which was incidentally not his side. I am therefore, satisfied that the driver of the lorry was on his left hand side and on seeing another vehicle coming towards him he drove to his further left hand side in order to avoid collision. That part of the road was hilly/steepy and there was a corner. It means drivers were required to exercise a degree of care and skill reasonably to be expected of a person driving a vehicle on the high way. The TANESCO driver did not do that. As such I find that the driver of TANESCO vehicle was negligent in the manner he drove the motorvehicle an excessive speed or with such recklessness such that he failed to control his vehicle and as such he was the one who caused the accident. In other 11 words that the accident was attributable to TANESCO driver, in my view is answered affirmatively. The fourth issue is whether the plaintiffs suffered any damage as a result of the said accident. According to Blacks Law Dictionary by Bryan A. Garner the term "damage" is defined to mean loss or injury to person or property". The damage caused by negligence is actionable. Damages are awarded to a person who proves that he has suffered damage, thus in Oxford Advanced Learners Dictionary International Students Edition 7th Edition the term "damages" is defined as " an amount of money that a court decides should be paid to somebody by the person, company etc that has caused them harm or injury". This position is reiterated by the court in the case of Kibwana and Another V Jumbe (1990-1994) IEA 223 where it was held that: " The court, in granting damages wili determine an amount which will give the injured party reparation for the wrongful act and for all the direct and unnatural consequences of the wrong fuT. As to special damages, they must be pleaded and specifically proved (See Maritim and Another V Anjere (1990-1994) IEA 312; Sande V Kenya Cooperative Creamaries Ltd Civil No. 154 UIC (1992) LLR 314 CAK). 12 In this case PW1 testified that his damaged vehicle was used for transportation of various goods like potatoes, timber, maize etc. to Songea, Dar es salaam, Tunduma where by he used to get shs. 600,000/= per week. These were special damages but were neither pleaded nor quantified in the plaint. They were mentioned at the time when PW1 testified in court. However, looking at the available evidence I find that this was no supported or substantiated by any evidence. PW1 did not show to what extent his business suffered after the accident. He did not produce his books of accounts or even receipts to substantiate his claim. But again it is hard to comprehend on how the plaintiff could earn a fixed amount of Tshs 600,000/= per week without any variation which could be caused by various factors e.g. scarcity of goods for transportation, defect on the vehicle. Much as the motorvehicle could have been used to transport goods but I think the amount earned per week could be at the high side/exaggerated. PW1 also claimed to have made four trips to Dar es salaam in a bid to follow up his compensation for his damaged vehicle. He said he spent shs. 100,000/= for hotel accommodation, shs. 250,000 for fuel from Makambako-Dar es Salaam-Makambako and shs. 1 million for hiring another vehicle to convey maize to Dodoma from Kaburi la Nyundo. He also paid shs. 400,0000 for towing the damaged vehicle from the scene of accident to Makambako. Except shs. 400,000/= which was pleaded, others were not pleaded. As they were special damages they needed to be proved. However, those claims were not substantiated by documentary evidence such as receipts showing that he stayed in hotels in Dar es Salaam, purchased fuel for his private car or that he hired a motor vehicle to convey maize to Dodoma for towing the damaged lorry to Makambako. But I have said ealier that special damages must not only be pleaded but must also be specifically proved. All these were special damages which needed to be proved. It was not enough to simply explain in court or to state in the plaint without any documentary proof. I am afraid to say that as they were not proved they cannot be allowed at this stage. The PW1 had also testified that at the time of the collision he was in the course of executing an agreement of conveying 180 tonnes of maize from Makambako to Dodoma for shs. 13,005,150/= as shown in Exh. P2. He said he had a possibility of entering into the second agreement after successful performance of the first agreement. The agreement of transportation of 180 tonnes of maize to Dodoma is supported by "Mkataba wa Uchukuzi dated 01/3/2006 (Exh P2) which was signed by both manager of SGR and the plaintiff. However, following the accident he has failed to do it and this has caused him of suffer economically and psychologically. I accept that the plaintiff had entered into a lucrative agreement which was unfortunately frustrated due to the accident. Due to the damaged vehicle he could not perform the contract/agreement. He did not get the shs. 13,005,000/= under the agreement for non performance of the same. His 14 expectation ended untimely due to the accident. This obviously must have caused the plaintiff to suffer economically since his lorry is not working. He is unable to transport other goods like potatoes, timber and maize to other places like Tunduma, Dar es Salaam or Songea as he used to do. He also lost an opportunity of entering into another agreement with SGR of conveying maize from Makambako to other places. I therefore agree that the plaintiff under the circumstances is entitled to some damages and more so since his means of economic ventures and social welfare have occasioned great inconveniences to him. But this claim cannot be awarded as special damage as it cannot be ascertained that he could have performed the agreement without problems. PW1 also pleaded shs. 59,000,000/= for repairing the damaged vehicle. This Claim was both pleaded and explained in court by PW1. Apart from that there is a proforma invoice (Exh. P4) from Mangula Auto Gerage dated 22/4/2006 which gives a breakdown of parts of the lorry requiring repair with the cost required. This is supported by the Vehicle Inspection Report No. 0391773 dated 8/3/2006 prepared by Kijivo A. Mtutu ASP who was he vehicle inspector. The report shows about 38 parts including gearbox, engine, chasis were damaged. This report supports the break down of parts and estimated cost made by Mangula Garage in the profoma invoice. I have anxiously examined the same and I think I have no reason to doubt it. I think it was prepared by people who are well versed in the filed. These estimates explain why the damaged lorry was unable to 15 proceed with its journey to Dodoma nor to move to Makambako without towing. I think the amount of shs. 59,500,000/= claimed has been sufficiently proved and the plaintiff is entitled to be paid as special damage. Turning now to issue number 5 of whether the defendant is vicariously liable as a result of the accident or rather whether the defendant was liable as the drivers' employer. I will answer as hereunder: As a general rule the owner will not be vicariously liable in tort for the negligence of the driver unless it is established that the driver was acting as the servant or agent of the owner or was using the vehicle for the benefit of the owner or for something in which the owner had an interest, either alone or jointly with the driver. (See Bachu V Wainama and Another (1967-1985) 1 EA 29 (CAC). In other words the vicarious liability of the employer in tort is a liability based on his relationship with a tort feaser who must have at the time of an accident been acting within the scope of his employment. See Kibwana & Another V Jumbe (1990-1994) ea 223 (CAT). That the Isuzu vehicle was a property of the defendant company TANESCO and at the time of accident was driven by the late Yoram Yomba Yomba is without question. PW1 and PW2 identified the Isuzu vehicle to belong to TANESCO through the LOGO affixed to it. PW3, E 8180 Sgt Ally who drew the sketch map also said the Isuzu vehicle with Ref. No. SU 35908 16 belonged to TANESCO. But again TANE5CO itself through its correspondences with the plaintiff (PW1) regarding the incident vide Exh. P3 and Exh. P6 acknowledge the Isuzu Vehicle to be their property and that it was driven by the late Yaram Yomba Yomba in the course of his employment. In para 4 of the Written Statement of defence, though not proved, the defendant deposed .that the contents of Para 4 and 5 of the plaint are noted. Looking at para 5 of the plaint the plaintiff stated among other things that " ... it collided with another truck with Reg. NO. SU 35908 Isuzu KB, the property of defendant Company and which was being driven by its employee, one Yoram Yomba Yomba who was driving in the course of employment" From that para TANESCO does not dispute that fact. But the same was further impliedly acknowledged in Exh. P3, the letter from TANESCO Ubungo Head Office with Ref. SEC/254/MC/12/2006 dated 15th May 2006 to Mr. Mwesiga Ahulila in which part of it reads: ”Please be informed that in order to allow us process your claim, please furnish us with the following documents: • Particulars of a road accident (PF 90). • Police Final Report (PF 115). • Vehicle Inspection Report (PF 93). • A copy o f estimate of repairs (It was not attached to your letter of 25/6/2006. • A copy of registration card of T 673 ABK. 17 Insurance particulars of your vehicle i.e. cover note, receipt, of receipt of premium etc" From this letter it is gathered that TANESCO was ready to pay the plaintiff the compensation if it was proved that their driver was to be blamed for the accident. Even in Exh. P6 (a letter from TANESCO, Ubungo Office with Ref.No. SEC/PPF/MC/121/2006 dated 3rd August 2006 to Mwesiga Ahulila) it shows that they were ready to be held vicariously liable if it was proved that their driver was a party to blame in as far as the accident was concerned. It means TANESCO acknowledged that the late Yomba Yomba was- their employee and at the time of accident he was driving the motor vehicle in the course of his employment or for the interest of the employer. The issue that follows is whether the late Yoram Yomba Yomba was to be blamed for the accident. PW1, PW2 and PW3 blamed the TANESCO driver for the accident. TANESCO however through Exh. P6, a letter with Ref. No. SEC/PPF/12/2006, refused to be held vicariously liable as in their view it was not proved through Reports F 90 and F 115 that the driver the late Yoram Yomba Yomba was to be blamed for the accident. What was raised by TANESCO is that there was no proof that their driver was negligent so as to hold them liable. I am not sure whether TANESCO were availed with all the reports relating to the accident. But the sketch map (Exh. 5) which I have already deliberated on issue No. 3 gives light on this issue. The exhibit together with evidence of PW2 and PW3 attributes the accident to the driver of TANESCO vehicle who drove to his right land side while overtaking other three motorvehicles at the corner at a hill. Exh. P5 is so clear. It is peaks for itself. I think had the defendant looked at the sketch map, they would not have come up with such a proposition. After having said that, I find that since the late Yoram Yomba Yomba, was at the material time an employee of TANESCO, and he drove the defendant's vehicle in the course of employment negligently, then the defendant cannot escape to be held vicariously liable as I hereby do. It goes without saying, therefore, that issue No. 6 is answered in the affirmative. Issue No. 6 is whether the plaintiff made a claim to BUMACO Insurance Brokers Ltd and received payment of shs. 5,900,000/= and if so, did it absolve the defendant from further liability towards the plaintiff. This issue arose from the deposition of defendant in para 9 of the Written Statement of Defence though not proved, that the plaintiff was paid shs. 5,900,000/= which was assessed by Phoenix of Tanzania Assurance Co. Ltd. On the 9th day of June 2006 after the plaintiff without the knowledge of defendant lodged the said claim through BUMACO Ltd Insurance Broker. The assessment forum of Phoenix of Tanzania Assurance Co. Ltd was attached to Written Statement Defence as Annexture. The plaintiff (PW1) in his testimony denied to have been paid by the defendant for the damaged vehicle. He said BUMACO was his insurer as he had insured his vehicle with, their company. BUMACO assisted him in preparation of his claim. BUMACO gave him annexture A1 from Phoenix indicating they were ready to pay him shs. 5,900,000/= but he rejected the offer as it was against his claim. He denied to have signed the document or received any payment. I was able to see Annexture A1 though not tendered in court attached to the Written Statement of Defence which is headed Phoenix of Tanzania Assurance Co. Ltd addressed to BUMACO showing a claim for the accident involving SU 35 908 and T 673 ABK and the insured being TANESCO and claimant Ahulila Mwesiga. The annexture A1 further shows a breakdown of payment as assessed by Speed Surveyors and Valuers. Much as it shows that the amount claimed is shs. 5,900,000/= but it was only signed by TANESCO. The plaintiff PW1 did not sign. Neither does it show that BUMACO signed. PW1 claimed he did not take the offer because the amount offered was very little. It could not be sufficient for repairing his vehicle. This makes me to believe that PW1 never signed and was not paid the amount of shs. 5,900,000/=. But even if he was paid that amount, I think it would not have exonerated the defendant from further liability since the amount was very little as compared to the amount of shs. 59,515,000 that was claimed 20 for repair of the vehicle. In my view this issue is answered in the negative. As to the last issue of what are the relief's the parties entitled, I think, with what I have demonstrated above I do order as follows: a) The defendant pays the plaintiff shs. 59,515,000 as special damages. b) The defendant pays the plaintiff shs. 100,000,000 as general damages. c) The defendant pays the plaintiff interest on decretal amount at the court'srate from the date of judgment till when the decree is fully satisfied. d) Costs are to follow the event. R.K.MKUYE JUDGE 26/7/2012 Right of appeal is explained. R.K.MKUYE