20171027 TZHC Dar es Salaam

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISRTY) AT DAR ES SALAAM CIVIL CASE NO. 49 OF 2013 March, 2017 whereby his son Omary Mahamoud Jaha was appointed I an administrator of his estate. The said administrator prayed to be joined in this matter and therefore an amended Plaint to include the Civil Case No. 49 <!f 2013 1 ' 'ii J.. name of the administrator, Omary Mahamoud Jaha was filed on 31 st May 2017 seeking for the following declaratory orders:- (a} Payment of the sum of Tshs. 74,480,000/= only being value of 3~000 litres ofpetrol which spill over during the accident; repair; and (g} Payment of Tshs. 200/000,000/- general damages for psychological torture and loss of business from the date of accident to the date of filing the suit Civil Case No. 49 <!f 2013 2 On the other hand, the 1st and 2nd defendants have filed Written Statements of Defence vehemently disputing the claims by the plaintiff. It is important to point at the outset that, the 3rd defendant belonging to the plaintiff. Damages were accordingly sustained by all these vehicles. The impact thereof led to the fuel spilled off from the plaintiff's truck. While the extent of damages, in monetary terms, to Civil Case No. 4911{ 2013 3 the other vehicle, is not disclosed, those occasioned (through repair and other related charges) to plaintiff's motor vehicle are given and itemized in the plaint lodged before this Court. The above aside, it was found out that the cause of accident was due to 3rd defendant's reckless driving for which he was charged with two counts to wit, reckless driving and failure to report the accident in Traffic Case No. 166 of 2011 and found guilty. Upon conviction, he-ViJas sentenced to a fine of Tshs. 25,000 or six (6) months in jail and Tshs. 15,000/- or three (3) months in jail, respectively. At the hearing of the suit the plaintiff herein was under the services of Mr. M.M. Mutongore, the learned Counsel, while the 1st defendant was represented by Mr. Obeid Mwandambo, the learned Counsel and . . nd the 2 defendant was under the services of Mr. Evans Ignas, the learned Counsel. Upon completion of all the Pre-Trial Preliminaries, the Final -Pre Trial Conference was conducted and the following issues were framed and adopted by the Court:- Civil Oise No. 49 <!f 2013 4 1) Wh_~tl}ee_ JI!~_ .l7d _defendant_:s--metoF-vehicle-was-fO//y________ - insured by the '1st defendant; 2) If issue number one _above is answered in -the affirmative - whether the 1st defendant is liable to compe_nsate the testified as PW2. Likewise the defendants' side also summoned two witnesses, to wit, Erick Kamaka Mushi, the 1st defendant's Deputy Manager under the Legal Department who testified as DW1 and Civil Case No. 49 <!f 2013 5 Saleh Mohamed Afif, the assistant tran_sp_Qrt _manager,--who-testified - - - - - - - --- - - --·- __ .. - ·- ··- as DW2. the plaintiff's motor vehicle from where it is placed in Dar es Salaam after the accident since 2011 to date, to ascertain the extent of the Civil Cuse No. 49 <!f 2013 6 -loss. -The said--prayer was--vehemently rejecte-d by -Mr~- Mwamaambo and Mr. Ignas on the reasons that:- (a) On 31st July 2017 when PW2 was testifying he informed the Court that the trailer was repaired in 2011 and 2016, account that, there is no law which is forceful and mandatorily requires the Court to conduct the locus in quo, but the same is done at the discretion of the Court, the prayer by Mr. Mutongore was CivilCaseNo. 49<!( 2013 7 rejected. The- Court decided to~dete-rmine~the matteroased on· the pleadings and evidence adduced by the parties during the trial. It is imperative at the outset to point out that, this case was handled by four ( 4) Judges. Hon. R.A Teemba, J who conducted the first Pre- of the case and evidence adduced by the parties gives me a clear picture that, the 2nd defendant's motor vehicle was insured by the 1st defendant under the 'Third Party Insurance Police Cover for the Civil Case No. 49 <!l 2013 ~KSam,jV 8 V period of dh July 2011 - o;th July 2012. This fact can be easily ascertained from paragraph 2 of the Plaintiff's Plaint and also paragraph 6· of the 2nd defendant's written Statement of Defence. The same was also proved by the testimonies of PW!, DW1 and It is a trite law that, the 3rd Party Insurance is a policy that protects against the actions or claims of another party (the third parties). Civil Case No. 49 <!f 2013 9 Liability (people, medical hospital bills, lost wages, pains and sufferings) and Property Damage Liability, (property and stuff). It is a common knowledge that, the insurer will only pay damages to the other claims. He said other claims which the 1st defendant ,refused to pay includes Tshs. 17,000,000/= repair expenditures for the truck in 2016 and Tshs. 13,000,000/= and Tshs 11,000,000/= repair for the Civil Case No. 49 <!f 2013 10 ' . -trailer--doAe in 2011. "Fhe-valt1e for the petrol at,sh·s. 74,480;000/-- i.e Tshs. 1,960/= per litre (for 38 litres). Upon cross examination by Mr. Mwandambo PWl admitted that, the plaintiff under the insurance cover is Tshs. 30,000,000/= but they have increased the same to Tshs 32,000,000/= which is above the Civil Case No. 49 <!f 20/3 11 - limit. He-said the-plaintiff-was under-the obligation of-making sure that his load/goods (fuel) are insured, but he did not do· that. He also stated that the motor vehicle was not totally damaged and that is why it was assessed to that extent as per the market value. He losses and compensation of goods on transit in case of losses and damages. He said, if the plaintiff has not insured his goods, he cannot claim the same. He said, the plaintiff's claims have no merit and he prayed the Court to dismiss the case with costs. Civil Case No. 49 <if' 2013 12 ~ ~ .K Sameji,J • During cross examination by Mr. Mutongore, DW2 admitted that the loss of tyres and other items were party of the motor vehicle, though he said he does not remember how many tyres were destroyed, though in the Written Statement of Defence they have indicated four upgraded in 2011. As for the loss of fuel, it has been revealed and admitted by PWl that the plaintiff himself has not complied with the legal requirements of Civil Cuse No. 49 <~f 2013 13 4,,m,i41 ' . ------- -rnsoring his-1oads/gooclunder th-e-'Gooas7ff Transit Insutance-cdver'-- which covers the losses, damages and compensation of goods on transit in cases of losses like this one. In the circumstance the plaintiff does not have a bonafide claim on the same. In the event defendant the insured. directly to recover his claims through the insurance cover. Civil Case No. 49 <!f 2013 14 Coming to the fourth issue, there are no doubts that, due to this the repair costs for the trailer and the truck as indicated above. PWl testified further that, the accident has caused a big loss and economic hardship on their side, because the motor vehicle was assisting them to get their daily bread. He said the same has as well Civil Case No. 49 <il 2013 15 ~KSam,j;,J cause psychological torture and loss of business. He thus prayed for a payment of Tshs. 200,000,000/= as general damages. However, upon cross examination by Mr. Mwandambo, PW1 testified that, the entire vehicle was damaged but they have not submitted _,,_-::- ...-.."v any photographs to prove the same. Upon furtherjffuss examination ,. i by Mr. Ignas PW1 said the photographs were::-.submittec1~Q$f~e 1 st .• ~~"\\~t½l~·x.. ~ ''wx..~ . .· ~ i·!ffe" nd ~ "'' ~'::.½;. ·• ·' defendant and that the 2 defendant Js~he on~:;;(espb_!::)s'ible to pay for the costs of the fuel. PW1 furthe&'Said,~.Q~oes\'6t ·~ ~-- have evidence ~- " .;,' ..._,. -~,. _, ,x-.-..~-::-:::::_::.-;::."-::.":X:,~. % ,.:~*·«~~-~ ,, ~ .,· ~ . .•~~'❖:~".:: .:-., . to prove issues of psycholog)cal"tcn;t:ure "a,nd. other losses caused by ,«~~:::s.~~. ~--..~>*. ..\.\~:>. ~\;..~...,. A.C 515 at page 525. See also the case of Zuberi Augustino V Anicet Mugabe, [1992] TLR 137 where the Court of Appeal religiously held that:- Civil Case No. 49 of 2013 16 ''It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved'~ It is therefore a position of the law that, the specific amount of money claimed by the plaintiff is supposed to be specifically proved. bonafide claims against the defendants. I therefore wish to invoke the principle of the law that "He who goes to the Court must go with clean hands'~ As such, the issue number four is answered in the negative. Civil Clise No. 49 <if 2013 17 ___ As_ for_ the fifth -issue- it gges -without-saying--that since-the- foorth- - - issue is answered in the negative then even the fifth issue is also answered in the negative. In the final analysis and as I have painstakingly co~_.~·idered all issues A<l, .~•,:~"'·'-~' ~ R. K. Same I. JUDGE 03/11/201 Civil Case No, 49 <!f 2013 18 ... \ COURT- Judgement delivered in Court Chambers in the presence of Mr. M.M. Mutongore, the learned Counsel for the plaintiff, Mr. Obeid · Mwandambo, the learned Counsel for the 1st defendant and Mr. Evans Ignas, the learned Counsel for the 2nd defendant. A right of appeal expla_ined. If li Civil Case No. 49 <!f 2013 19