RELIANCE INSURANCE 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 10331 OF 2024 (Originating from Civil Case No. 89 of 2022 in the District Court of Ilala at Kinyerezi) RELIANCE INSURANCE COMPANY............................................ APPELLANT VERSUS HAMISI SAIDI MLWATI (A legal representative of the estate of SELEMANI SAIDI MLWATI) RESPONDENT JUDGMENT Date of Last Order: 03/10/2024 Date of Judgment: 22/10/2024 NGUNYALE, J. Tbe appellant after being dissatisfied by the decision of the trial court in Civil Case No. 89 of 2022 preferred the present Civil Appeal No. 10331 of 2024 aiming to challenge decree and judgment dated 23'd November 2023 on the following grounds per the memorandum of appeal: - 1. The trial court erred in law and fact to hold that the vehicle with registration No. T123 DRH make Mitsubishi Fuso was involved in an accident on 2481 April 2022 despite the fact that the respondent failed to prove occurrence of the said accident. 2. That the trial court erred in law and fact in holding that at the time of the alleged accident on 2zPh April 2022 the respondent was insured by the appellant despite the fact that the respondent failed to prove the same. 3. That the trial court erred in law and fact in holding that the appellant breached the insurance policy without considering that at the time of the alleged occurrence of accident there was no insurance contract between the appellant and the respondent. 4. The trial Magistrate erred in law and fact for awarding without proof specific damages of Tanzania Shillings 50,000,000/= as actual value of the vehicle in question and Tshs 15,000/= per day from the day of the accident to the judgment date being payment of parking and charges of the vehicle in question. 5. The trial court erred in law and fact for failure to exercise discretion judiciaIJy in awarding general damages of Tanzania Shillings 30,000,000/= , In order to appreciate the genesis and the outcome of the present first appeal, I will start by making reference to the factual background of this case that; the respondents’ motor vehicle which its registration number is T. 123 DRH made Mitsubishi Fuso Model No. FK6287 was involved in a serious accident on 24th April, 2022 when it was on business transit from Morogoro to Dar es Salaam. It was alleged that the motor vehicle had insurance cover through an agreement between the respondent and the appellant covering the motor vehicle in the period between 20th July, 2021 to 19th July 2022. Tbe respondent (Selemani Saidi Mlwati) faced untimely death thus Hamis Saidi Mlwati legal representative assumed the legal responsibility to claim insurance reliefs covered in the said vehicle from the appellant. Tbe appellant denied responsibility to pay insurance benefits on ground that they cancelled their insurance service in respect of the said motor vehicle upon death of the owner of the vehicle. The respondent registered Civil Case No. 89 of 2022 against the appellant seeking payment of specific and general damages where upon conc Fusion of the trial, judgement and decree were entered in favour of the respondent. The appellant was ordered to compensate the respondent VS 50,000,000/= being the value of the motor vehicle in question, TZS 15,000/= per day from the day of the accident to the date of judgment being payment of parking charges of the motor vehicle and 30,000,000/= being general damages. Being dissatisfied with the findings of the trial court, the appellant preferred the present appeal. nIe appeal was heard by way of written submission, the appellant appeared represented by Dickson Paulo Sanga from A & D Attorneys whilst the respondent enjoyed the legal services of Yusuph Mathias from Flatter Attorneys. I am very grateful for their timely compliance to the scheduling orders of filing the respective submissions. ;M The appellant Counsel submitted in support of the first ground of appeal that it is a fundamental principle of law that in civil cases the burden of proof lies on the party who alleges anything in his favour. On that he relied on the case of Raphael Enea Mngazija (Administrator of the estate of the late Enea Mngazija) versus Abdallah Kalonjo Juma and Section 110 (1) and (2) of the Evidence Act Cap 6 R. E 2022. In paragraph 4 of the plaint the respondent stated that on 24th April, 2022 the vehicle with registration No. T. 123 DRH make Mitsubishi, Fuso while in business trip from Morogoro to Dar es Salaam did encounter a serious and irreparable accident; it is not known what kind of the accident occurred and how it occurred. Tbere is no way this court can believe that the accident occurred. Occurrence of an accident is proved by sketch map, PF 90, PF 115, charge sheet, judgment and proceedings. No document was tendered by PWI to prove the occurrence of an accident. When he was cross examined, he admitted that he had no document to prove the accident and he did not know even the driver of the motor vehicle. Even nature of the accident is not known. The appellant cited the case of this court (Commercial Division) Thobius Samwel Gwanje versus Sanlam General Insurance Tanzania Ltd Commercial Case No. 50 of 2023 where the court faced with a similar situation and it was observed that: - 4 M \ IJ V 1 1 "In the instant case, the plaintiff had a duty to prove that his insured motor vehicle collided with the alleged third-party motor vehicle. Assuming that, the owner of the vehicle which collided with the insured vehicle of the plaintiff was not cooperative, still the plaintiff could have called the traffic police officer who dealt with the matter. The traffic police officer could have assisted to prove on balance of probabilities that, in deed the said two motor vehicles collided" TIle above case presupposed that the respondent cannot prove that the occurrence of the said accident by mere words he is obliged even to call the traffic police officer in order to prove his case on balance of probabilities, otherwise it is difficult for this court to believe that there was an accident. On the 2-d ground of appeal on allegation that on the date of accident the motor vehicle was insured by the appellant the Counsel submitted that it was not true that the vehicle was insured by the appellant. To substantiate his position, he referred to the testimony of DWI who stated clearly that Selemani Said Mlwati had no money for payment of premium, thus on 15th July, 2021 Selemani Saidi Mlwati entered into a tripartite insurance premium financing agreement with NMB Bank PCL. The bank provided the deceased (owner of the vehicle) a credit facility amounting to TZS 2,507,500/= as premium for the purpose of insuring his vehicle with registration No. T. 123 DHR. It was one of the conditions that, the deceased was required to pay the loan by depositing monthly instalments of VS 267,595.55/= to NMB Bank for a period of 10 months. In other words, monthly payment depended from Selemani Saidi Mlwati who later passed away in February, 2022. Due to the death of the insured (deceased), the tripartite agreement was unable to be performed as there could be no more monthly instalments of premium facility borrowed by the deceased from the Bank and as per the terms of the tripartite agreement, the defendant had no way except to cancel the policy of insurance on 21;t February, 2022. The balance of the premium Tshs 1,016,739.00/= was refunded to the bank by the insurer. Exhibit Dl is self-explanatory that the cover note was cancelled because of the death of Selemani Saidi Mlwati. At the time of accident on 24th April, 2022 the respondent was insured by another insurance agency SANLAM INSURANCE AGENCY and not the appellant. On the third ground that the trial court erred to hold the appellant have breached the insurance policy he submitted that, the same has been covered well while he was submitting on the 2nd ground of appeal through the testimony of DWI that tripartite agreement was cancelled and cancellation of the cover note was done following the death of Selemani Saidi Mlwati .M He went on to submit on the 4th ground of appeal about awards that, the same were not awarded based on evidence on record. He submitted that specific damages ought to be pleaded and proved as ruled in the case of Sanlam General Insurance Tanzania ltd (formally known as Kiko Niko insurance Tanzania ltd) versus Dennis Charles & 2 Others, Civil Appeal No. 51 OF 2021 where a Kenyan Case of Joseph Kipkorir Rono Versus Kenya Breweries Limted & Another Kericho, HCCA No. 45 of 2003 was referred. He submitted that no evidence was tendered to substantiate each of the amount awarded by the trial court. On the last ground of appeal about general damages of 30,000,000/= he submitted that it is a principle of law that, general damages are granted basing on the discretion of the court which is exercised judiciously. For the court to grant general damages it should consider the material facts pleaded in the plaint and the plaintiff has proved before the trial court and that the trial court must give reasons as to the basis of grant of the said compensation. To bolster his argument, he invited this court to be guided by the decision of the court of appeal case of Alfred Fundi Versus Geled Mango, Managing Director Sandru Coach Limited, Phoenic of Tanzania Assurance (T) Ltd, A civil appeal no. 49 of 2017. It was his submissions that no material facts were pleaded in the plaint regarding claims of general damages and the court did not state the reasons of awarding TZS 30,000,000/= as general damages The respondent did not remain silent, she strongly contested the argument raised in the submission of the appellant. In respect of the 1;t ground of appeal the respondent Counsel submitted that the testimony of PW2 was to the effect that an accident of a motor vehicle No. T123 DRH occurred on 14th April 2022 while the vehicle was in business trip from Morogoro to Dar es Salaam. The appellants were notified but they were not cooperative on the date of accident. The respondent’s counsel on the 2-d ground of appeal on the finding of the trial court that the respondent motor vehicle was insured by the appellant he submitted that on the date of accident the motor vehicle was still fully covered by the appellant as evidence by exhibit PE2 a one- year insurance agreement entered between the late Selemani Said Mlwati running from 20th July 2021 through 19th July, 2022 and the testimony of PW2. TIle appellant wrongly cancelled the insurance cover with the car in question on 2nd May 2022 upon discovering that it has an accident on le ca lation was done w notifying the legal representative of the deceased Selemani Saidi Mlwati. He could not labour on the 3'd ground of appeal because it was covered while arguing the 2-d appeal. Tbe Counsel for the respondent on the 4th ground of appeal started by refuting the arguments that the special damages were awarded without proof. On the value of the vehicle, it was stated in the plaint in its clause 14. The appellant did not provide the insurance cover which would establish the value of the motor vehicle. PWI testified clearly that the value of the motor vehicle was 50,000,000/=. Tbe award of 15,000/= per day was also proved by PWI. In the last ground of appeal about general damages he submitted that the same are awarded at the discretion of the court by considering the evidence on record and all circumstances of the case and having satisfied that the claimant has suffered materially or mentally following the unlawful action of the defendant. He insisted that the trial magistrate was correct to award general damages as the vehicle in question was for the commercial with approximation of generating Tshs 1,800,000/= per week. 'MW In rejoinder, the appellant stated that their submission in chief in support of the appeal has not been contested by the respondent hence reiterated the same. Having in mind the records of the trial court, grounds of appeal and the rival submission I proceed to determine whether the trial court had legal justification to decide the case in favour of the respondent herein. After fully consideration of the arguments of both counsels on objections raised the main point for my determination is whether the case was proved at the required standard in proving civil cases on balance of probability. In assessing the same, as the first three grounds of appeal are centred on evaluation of evidence; I am going to determine them conjointly by re-evaluation of evidence on records taking into consideration that this is the first appellate court. Ibis is the position in the case of Registered Trustees of Joy in the Harvest vs Hamza Sungura Civil Appeal No. 149 of 2017 (CAT) where it was held: "On our part, we are in agreement with both learned advocates that it is part of our jurisprudence that a first appellate court is entitled to reevaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision:' While re evaluating the evidence on record, I will be guided by the following issues one, whether the motor vehiclezfaced an accident two, 10 hN ) whether there was contractual relationship between the parties at the time of an accident three whether there was breach of such insurance cover and four, what are the necessary reliefs (through the 4th and 5th grounds of appeal). PWI Hamis Said Mlwati who is the administrator of estate of the deceased Selemani Said Mlwati tendered exhibit PE2 a Partnership Agency Agreement which established that there was a contractual relationship between the parties to this case on insurance of the motor vehicle No. T123 DHR make Mitsubishi Fuso from 15th July, 2021 till 15th July, 2022. It was his further testimony that the said motor vehicle faced an accident on 24th April, 2022 and he immediatety informed the insurer (the appellant) after the accident. Tbe information that the motor vehicle faced an accident was shared to PW2. The testimony of the legal officer of the appellant one DWI Mariam Shabani did not discredit the testimony of PWI and PW2 instead she testified that compensation was not done against the respondent because one, they did not receive necessary documents like PF90, PFl15, sketch map of the scene, vehicle inspection report and the copy of judgment relevant for claiming and two insurance contract between the parties to this case was cancelled by the appellant from 21st February, 2022 per exhibit Dl. Having keenly considered the circumstance of the matter, the testimony of PW2 is very clear that the act of the respondent to cancel insurance was not successful thus the insurance cover was still in existence. The appellant unilateral act to cancel the tripartite agreement was unjustifiable. Ure evidence of PWI and PW2 have proved on balance of probability as ruled by the trial court that the motor vehicle in dispute faced an accident on 24th April, 2022 and at the time of the accident the same was under insurance cover of the appellant. The evidence of PW2 is very clear that when he attempted to ensure the said vehicle, he was prevented to issue the insurance cover following existence of another insurer namely Reliance Insurance Company Limited the appellant. The allegation of cancellation of the agreement by the appellant in February, 2022 as stated by DWI were not effective and unjustifiable thus the insurance cover of the appellant was still in force in favour of the respondent. Thus, even Tanzania Insurance Regulatory Authority (TIRA) was in favour of the respondent towards claims of compensation because of the existence of such relationship. Exhibit P5 and exhibit P6 TIRA directed the appellant to comply with legal procedures and pay compensation to the respondent. 12 M It is a rule of law that the one who alleges must prove the allegations. nIe respondent discharged his duty according to law to prove that the motor vehicle faced an accident, the fact that it was involved in an accident is subjected to compensation from the insurer i. e the appellant. The appellant refused to pay on allegations that the respondent did not present to them necessary documents and that the contractual relationship with the respondent was cancelled since 21;t February, 2022 per the testimony of DWI. He tendered exhibit Dl to establish that the contractual relationship was cancelled. The testimony of DWI has been outweighed by the testimony of PW2 who proved that the insurance cover in favour of the respondent was not cancelled and non tendering of Sketch map, PF90, PF 115, Charge sheet, Judgment and proceedings as stated by DWI does not negate the fact that an accident occurred. The last issue to be answered is on reliefs. The trial court upon being satisfied that the appellant was in breach of the insurance agreement with the respondent proceeded to order compensation. ne court awarded specific damages in the tune of 50,000,000/=, general damages in the tune of 30,000,000/=, payment of 15,000/= per day as parking charges and litigation costs. The appellant has registered a complaint that such award was awarded without justification. There was no evidence to prove the value of the suit vehicle and the parking charges. The law is very certain that for the specific damages to be awarded they should be pleaded in the pleadings and strictly proved. This has been the position in a number of cases including the case of UAP Insurance Tanzania Limited versus Wankyo Benjamin (Minor and of Sound Mind by next friend Banjamin Hamis) and 2 others, Civil Appeal No. 01 of 2022 this court sitting at Musoma observed while citing with approval the cases of the Court of Appeal of Tanzania; - "It is a trite law that specific or special damages should be specifically pleaded and strictly proved. See Tanzania Electric Supply Limited vs Ember Enterprises Limited, Civil Appeal No. 26 of 2000 (unreported) and Reliance Insurance Company (T) LTD & 2 others vs Festo Mgomapayo, Civil Appeal No. 23 of 23 of 2019, CAT at Dodoma. " In the case at hand the special damages of VS 50,000,000/= was pleaded in the plaint. The witness PWI in his testimony during cross examination said that the price of the motor vehicle is the one which he signed in the plaint. In my view his evidence only cements the fact that such amount was pleaded in the plaint but it remained unproved thus she said nothing about special damages during e#idence in chief. There 14 is no any form of evidence in record which substantiate how they arrived at the figure of 50,000,000/=. 1 am in agreement with the appellant that, the special damages were not strict proved as required rather than depending on the value pleaded in the plaint. Having said and done, I am settled in my mind that the special or specific damages were not proved to the required standard. The trial court erred to award the same in absence of evidence on record establishing the value of the motor vehicle in question. Even the parking charges of 15,000/= per day were not proved by evidence. Nowhere in the testimony of PWI or PW2 proved such amount of parking charges. Tbe same were wrongly awarded because they were not strictly proved. ne trial court awarded general damages in the tune of 30,000,000/= Essentially it is a clear position of law that general damages need not to be specifically or strictly pleaded and proved as opposed to specific damages but rather it is sufficed to state that damage was suffered. See the provisions of Order VII rule 7 of the CPC and the case of The Cooper Motors Corporation Ltd v. Moshi Arusha Occupational Health Services [1990] TLR. 96 where the Court stated that: "General damages need not be specifically pleaded they may be asked for by a mere Furthermore, it remains the discretion of the trial court to determine the extent of general damages founded on the material evidence and the circumstances of particular case. In this case, the trial court awarded the respondent general damages to a tune of Tanzanian shillings thirty million (TZS 30,000,000/=). 1 have dispassionately considered the circumstances of this case that the business vehicle faced and accident thus it stopped raising income to the respondent. I have also taken into account that the plaintiff manifestly failed to prove specific damages hence all the costs incurred fall under the general damages. I find no reason to change such considerable damages awarded by the trial court. In Davies v. Powell (1942) 1 All ER 657 which was approved by the Privy Council in Nance v. British Columbia Electric Rail Co. Ltd (1951) AC.601 at page 613 it was stated as follows: "Whether the assessment of damages be by a judge or jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case ...before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this that the amount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate o f the damage ... " Applying the above principle, I subscribe to it. It is my finding that the award of TZS 30,000,000/= as general damages should remain undisturbed. Consequently, the award of TZS 50,000,000/= as special damages and that of 15,000/= per day as parking charges were wrongly awarded. They are hereby set aside. The respondent is only entitled to payment of general damages to the tune of TZS 30,000,000/= and costs of the suit. Appeal partly allowed to the extend explained. Order accordingly. Dated at Dar es Salaam this 22"d day of October, 2024. uR \8> li D. P. -Ngunyale JUDGE Judgement ml this 22-d day of October, 2024 in presence of nmonthy Mwamakimbula learn ed Counsel for tOe appellant UR7 D JUDGE 17