suzan samson nakembetwa vs imperium insurance brockers co ltd another 2022 tzhccomd 25 23 february 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT MWANZA COMMERCIAL APPEAL NO. 01 OF 2021 (Originating from Commercial Case No. 16 of 2018 in the District Court of Nzega at Nzega) SUSAN SAMSON NAKEMBETWA..................... APPELLANT

VERSUS

IMPERIUM INSURANCE BROKERS CO. LTD.................................. 1st RESPONDENT RESOLUTION INSURANCE CO. LTD........ 2nd RESPONDENT Date of Last Order: 10/12/2021 Date of Judgment: 23/02/2022

JUDGMENT C. P. MKEHA, J The present appeal which is premised on a single ground of appeal aims at challenging the decision of the District Court of Nzega which dismissed the appellant's claims for specific and general damages for reasons that, the i appellant's insurance policy was obtained without disclosure of material facts and by misrepresentation of facts on part of the appellant. The appellant's single ground of appeal is to the following effect: That, the trial court having heard evidence from both sides conclusively held erroneously that the respondents had the right to avoid the contract of insurance because it was entered into under non- disclosure of material facts by the appellant who in the circumstances is not entitled to any claim for compensation or damages. Mr. Mussa Chemu learned advocate represented the appellant in arguing the appeal; Mr. Sylvester Mlokozi learned advocate represented the 1st respondent. On the other hand, Mr. Nyawambura learned advocate represented the 2nd respondent. According to Mr. Chemu learned advocate, the trial court's decision is perverse as it was based on erroneous evaluation of evidence adduced before it which evidence, if properly analyzed and evaluated, proved the appellant's claim at the required standard of preponderous of probability. The learned advocate submitted that, the trial court failed to evaluate evidence while

addressing issue No. 3 as to whether the 1st defendant/ 1st 2 respondent inspected the motor vehicle's condition before issuing insurance cover note. The learned advocate submitted that, through the testimony of PW2, there was disclosure of material facts and it was for the respondents to inspect the vehicle. The learned advocate maintained that, the appellant had a valid insurance contract with the respondents when the accident occurred. He also insisted that, the evidence of PW4 and PW5 proved that the accident occurred on 25/05/2018. Mr. Mlokozi learned advocate submitted in reply that the trial magistrate was right in her findings that the appellant is not entitled to damages. The learned advocate condemned the appellant for suppression of material facts as well as misrepresentation of facts. According to the learned advocate, when the appellant purported to apply for comprehensive insurance, she had a valid 3rd party insurance cover for the same motor vehicle with the same insurer. The learned advocate submitted that, two insurance covers cannot co-exist. According to the learned advocate, this fact was not disclosed to the insurance broker who ended up covering an accident which had already happened. Reference was made to the testimonies of DW1 and DW2 at page 50 of the proceedings. 3 The learned advocate submitted that, PW4 had testified that, he commenced working in

February, 2018 and that, the accident occurred within two months of his employment which suggests that the accident occurred in April, 2018. According to the learned advocate, the appellant's averment that the accident occurred on 25th May, 2018 was fabricated. Reference was made to page 32 of the typed proceedings. Mr. Nyawambura learned advocate submitted in reply that, the 3rd party insurance cover note was issued on 19/07/2017 and was supposed to expire on 18/07/2018. And that, the comprehensive cover note was issued on 17/04/2018 and was supposed to expire on 16/04/2019. According to the learned advocate, as per PW4's testimony, the accident occurred in April, 2018. This suggests that, when the accident happened, two insurance cover notes were co-existing over the same subject matter, the appellant's vehicle. When Mr. Chemu learned advocate rose to rejoin, he told the court that the third party insurance cover note had expired when the comprehensive cover note was procured. He controverted his own submissions when he insisted that, the third party insurance cover note commenced on 19/07/2017 and was supposed to expire on 18/07/2018. This part of 4 submissions meant that, at the end of the day there was no denial that, the comprehensive cover note was procured from the insurance broker when the third party cover note still existed without disclosure of the said fact to the

insurance broker. The only determinative issue is whether there were sufficient reasons for the insurer's denial of the appellant's claims. Under a contract of insurance compensation is made for damages resulting from occurrence of the insured event and not damages which pre-existed. Whereas the appellant's pleadings indicate that the accident occurred on 25/05/2018, the appellant's own witness testified that the accident happened in April, 2018. See: The testimony of PW4 at page 32 of the typed proceedings. PW4 is on record to have testified that he started working with the appellant in February, 2018 and that he worked for two months. This is the very person who was driving the appellant's vehicle when the accident happened. Whereas it is not disputed that the appellant's third party cover note was still alive when the accident happened, this fact was not disclosed by the appellant to the insurance broker when she purportedly procured the comprehensive cover note. Third Party cover note in the name of the appellant, which was valid up to 18/07/2018, in respect of vehicle No.T 636 5 DJA, subject of the appellant's claims in this case, was admitted without objection as Exhibit DI for the defence. From the foregoing analysis of evidence, as per the appellant's own evidence, the accident did not happen on 25/05/2018 but in April, 2018. The comprehensive cover note might have been

procured after occurrence of the accident contrary to what insurance principles require. It is without dispute that the appellant failed to disclose material facts to the insurance broker that there was a subsisting third party policy for the vehicle in respect of which a comprehensive cover note was purportedly procured on 17/04/2018. All these were sufficient reasons for the insurer's refusal to pay the appellant's claims. I find no good reasons for faulting the trial magistrate. I instead uphold her findings. The appeal stands dismissed with costs for being unmeritorious. Dated at DAR ES SALAAM this 23rd day of February 2022.

JUDGE 23/02/2022 6 23/2/2022 CORAM: M.B. MPAZE, DR For the Appellant For the 1st Respondent For the 2nd Respondent Mr. Said Nyawambura, I hold brief of Mr Musa Chemu for the appellant, I also hold brief of Mr Silvester Mulokozi for the 1st Respondent, I am also appearing for the 2nd Respondent. The matter is coming for the Judgement I am ready to receive the same. COURT: Judgement has been delivered today in the presence of Mr. Said Nyawambura for the 2nd Respondent, who also held brief for Mr Musa Chemu for the appellant and Mr Silverster Mulokozi for the 1st Respondent.