TENKOJudgment2 FINA Finaljudgt25 3

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO 4033 OF 2024 TENKO TOURS LTD ……………………………………………PLAINTIFF VERSUS UAP INSUARANCE TANZANIA LIMITED ……………. DEFENDANT JUDGMENT Date of last order: 20/02/2025 Date of judgment: 24/03/2025 A.J. MAMBI, J This suit emanates from the contractual relationship between the plaintiff and the defendant. The records such as plaint show that the Plaintiff claims against the Defendant payment of Tshs. 97,750,000/= being direct costs for repairing the Plaintiff's insured vehicle which was damaged in a road accident and general damages for consequential loss of business and opportunity for the entire period the motor vehicle has not been in use, payment of interest at the decretal sum and costs of the suit. The plaintiff further alleges that on the 8th September 2022 the Defendant 1 Page 1 issued a policy of insurance for a cover period of one year for the Plaintiff's motor vehicle, (Ford Ranger with registration No. T753 DWZ). The plaintiff also claims that having paid the premium, the Plaintiff's vehicle sum insured was pegged at Tshs 100,000,000/ and was issued with cover note with Risk Note No. 1985. That the said vehicle was alleged to be involved in an accident on the 21st February 2023 at Puma Traffic Light Tangibovu, Bagamoyo Road as it was being driven by Plaintiff's director one Paul Temba. The plaintiff in this suit claims that the said accident was registered at Kawe Police Station where the particulars of the road accident including the drawing and Vehicle Inspection Report were prepared by the police to authenticate the circumstances of the accident and give accurate extent of the damage. The plaintiff also avers that on the 23rd February 2023, the Plaintiff informed and furnished the Defendant with all relevant information through Motor Accident Report Form and informed them of her decision to have the vehicle repaired at Nne Moja Garage at Kinondoni. The plaintiff also alleges that the said Motor Accident Report Form was accompanied with garage estimates at the tune of Tshs 97,750,000/= being the direct costs for repairing the said vehicle at Nne Moja Ltd. Garage at Kinondoni. 2 Page 2 In her written statement of defence, the defendant disputed that on the alleged date the said car was not involved in any accident. The Defendant averred that she promised to conduct an investigation on the alleged accident. The defendant also claims that she sub-contracted the Trans- Europa Associate Insurance Surveyors and loss adjusters who contacted the police department to have the findings of the police investigation. The defendant in her written statement of defence further contends that the records under the Police Report book does not reflect any reality in regard to the plaintiff’s alleged accident. The defendant in their written statement of defence were of the view that at that point it was concluded that the defendant is not liable to indemnify the plaintiff for the alleged losses incurred and the defendant communicated it to the plaintiff. The Defendant further averred that there is no cause of action against her and prayed for the suit be dismissed. Before I address and answer the key legal issues, I wish to briefly highlight the evidence testified by witnesses in line with exhibits by both parties. Having tendered his witness statement, the first plaintiff witness namely PW1 Paul Costantine Temba in his statement testified that he is the Director of the Plaintiff fully aware of all circumstances surrounding this matter, with personal knowledge and information obtained from his 3 Page 3 advocate. PW1 further testified that he was driving the car on the date of accident. He stated that the said motor vehicle with registration no. T 753 DWZ was insured by the defendant under a comprehensive policy with UAP Insurance Tanzania Ltd and the insurance cover period extended between 8th September 2022 to 7th September 2023. PW1 also testified that the traffic police arrived at the scene of the accident, inspected the vehicle, prepared the drawings and registered the accident at Kawe Police Station. PW1 further testified that immediately the plaintiff informed UAP Insurance Tanzania Ltd (the defendant herein) of the accident and the motor accident report form was duly filled and signed by the UAP officer. PW1 further testified that the defendant undertook and promised to send her investigators to the scene of the accident before taking further insurance measures but in vain. PW1 in his testimony stated that after making consultation with the defendant, it was agreed that the damaged motor vehicle to be taken to Nne Moja Garage for repair which was estimated at 97,750,000/=. PW1 further stated that regardless the efforts by the plaintiff the defendant did not show the efforts to settle the matter amicably. PW1 further testified that after failure to resolve their dispute out of court they requested TIRA to intervene. PW1 informed the court that TIRA wrote a letter to the defendant on 12th July 2023 and the 4 Page defendant responded on 14th August 2023 but still the matter could not 4 be resolved hence this case. PW1 testified that the company has been counting losses as it cannot put the vehicle to productive use. The second witness PW2 Mr Arnold Kweka testified that he is a senior motor vehicle mechanic at Nne-Moja garage Ltd and he was fully aware of all circumstances surrounding this matter, with personal knowledge. He testified that on the 28TH February 2023 he was at his place of work that is Nne Moja garage when PW1 brought his vehicle with registration No. T 753 DWZ, mark ford ranger that was involved in an accident where he (PW1) requested for an estimate for repair. PW2 testified that together with other mechanics at his office, they assessed the repair of the said vehicle and observed that the damage caused required a thorough replacement of its parts. PW2 stated that the estimated repair of the said vehicle came to the tune of Tshs. 97,750,000/=. On the other hand, the defendant had two witnesses to testify. The first defendant witness was JANETH RWECHUNGURA (DW1) who introduced herself as the principal officer of the Defendant (UAP Insurance Tanzania Limited), working as a Claims Manager. DW1 testified that she was fully conversant with the facts of this case and authorized to make a witness statement on behalf of the Defendant company. 5 Page 5 DW1 further testified that as the Claims Manager of the defendant her duties included receiving claims, accessing and reviewing claims, appointing investigators, giving feedback to the claimants over the status of the claims and approve or decline payments to the claimants against the Defendant. She further testified that the company offers risk management in the form of insurance contracts where payment for an uncertain future event is guaranteed. She testified that the duty of the insured is to pay a smaller premium to the insurer in exchange for that protection on that uncertain future occurrence. DW1 further testified that in course of performing her duties she was served with a demand note from the plaintiff who is their client showing the intention to sue claiming compensation of her vehicle with Reg. No. T753 DWZ, Ford Ranger. DW1 further testified that on 4th July, 2023 the defendant responded to the demand note informing the plaintiff that the matter has been referred to the investigator and the results will be communicated. She testified that the Trans-Europa Associates was subcontracted to make investigation over the said accident. DW1 testified that the Police investigation dated 11th June 2023 indicates that the accident which occurred on the 21st Feb 2023 did not involve the plaintiff’s car. DW1 stated that the police investigation revealed that the records in 6 Page 6 the Police Report book do not reflect any reality with regard to the plaintiff's alleged accident. The second defendant witness (DW2) was Emmanuel Kachuchuru whose testimony was based on two exhibits (First a letter dated 1st November, 2023 with reference number CAD. 308/1104/01/13 and a letter dated 11th June, 2024). DW2 testified that he is the principal officer of Trans-Europa Associates who provides services as Insurance Surveyors & Loss Adjusters. He stated that he has the duty of making investigations and surveying matters regarding insurance claims together with adjusting losses to be insured. He further testified that, the Defendant referred a matter to his office regarding a vehicle insured by the Defendant mark Ford Ranger with registration number T753 DWZ in connection with the accident claimed to have occurred on 21st February, 2023 at Puma Traffic Light Tangibovu, Bagamoyo Road. He stated that as their office wrote a letter addressing the office of Commander, Traffic Police Division regarding the said motor vehicle and the accident. He stated that the police made an investigation process and registered the investigation as KW/TR/AR/73/2023. He further stated that, the Office of Commander Traffic Police Division wrote a letter in reply dated 11th June, 2024 regarding the investigation to the Commissioner of Insurance copying 7 Page 7 their office. He stated that the said letter informed them the outcome of the investigation which indicated that there was no dispute about the occurrence of the accident on 21.02.2023 about 09.30 at Mbezi Jogoo, Bagamoyo road as alleged by the Plaintiff. He stated that, the letter from police revealed that the vehicles involved on the incident was T 939 CVN make Nissan Civilian being driven by Issa s/o Jumanne which collided with a vehicle with registration number T 423 DTT make Subaru Forester being driven by Janeth Owen Mayomboka. He testified that the vehicle with registration number T753 DWZ make Ford Ranger was not part and parcel of the object matter involved in road accident registered in Police Books with reference number KW/TR/AR/73/2023. He testified that, the information contained in PF 90 which explains the involvement of vehicle T 753 DWZ make Ford Ranger does not reflect the reality as recorded in the Police Report Book. He testified that, from the findings of investigation, the commanding officer declared that the said vehicle T DWZ make Ford Ranger was not involved in the alleged accident. Having summarized the evidence of both parties, the plaintiff and defendant written submissions let me now at this juncture address the key issues. During the final PTC a total of three issues were raised as hereunder: 8 Page 8 1. Whether the Plaintiff’s motor vehicle was involved in a car accident as alleged. 2. Whether the Defendant had as duty to indemnify the plaintiff. 3. What reliefs the parties are entitled to. Having testified their evidence both parties made brief submissions to support their evidence. Addressing the first issue raised by the court whether the vehicle was involved in the accident the plaintiff counsel submitted that the answer for the first issue attracts a straightforward answer in the affirmative. He further supported his answer for the first issue with different exhibits that were admitted in the court. The plaintiff counsel submitted that exhibit P1 described where, how, and when the accident occurred. He submitted that PW1 Paul Constantine Temba testified as the first plaintiff witness (PW1). He stated that PW1 was the driver of the vehicle involved in the accident and explained the series of events leading up to the current dispute. The learned Counsel submitted that PW1 reported the incident immediately at Kawe Police station, and he was given Police Form 90 (PF 90) containing the summary of the accident. The learned counsel for the plaintiff stated that there was evidence of defence witnesses not disputing genuineness of police reports (exhibits P1). He averred that both defence witnesses admitted under oath that indeed the said vehicle was involved in the accident. He referred 9 the testimony of DW1 Janet Rwechungura who on 4.12.2024 stated that Page 9 “Sisi hatupingi kuwa gari ilipata ajali.", ("We do not dispute that the vehicle had an accident)." The learned counsel for the plaintiff submitted that during cross-examination DW1 stated their internal investigations did not reveal that police reports (PF 90 and PF 94) were forged. The learned counsel for the plaintiff submitted DW1 also admitted during cross- examination that the Defendant had not presented any evidence before the court rebutting whether the accident occurred (Puma Traffic Lights/Tangibovu along Bagamoyo Road). He further submitted that DW1’s evidence was corroborated by the evidence of DW2 Emmanuel Kachuchuru, who stated that "Niliona imegongwa kwa mbele, ila mimi sio assessor kujua ukubwa wa ajali",. The plaintiff counsel further submitted that exhibits D3 and D4 which were admitted in court described an accident that took place at a different area involving different vehicles. The plaintiff counsel was of the view that the defence is attempting to evade the legal obligation to indemnify the Plaintiff and both exhibits D3 and D4 have no value. Addressing the second issue whether the defendant had a contractual duty to indemnify the plaintiff, the plaintiff’s counsel averred that it is undisputed that the parties had a contract for indemnification running for 10 one year, and the accident happened while the insurance cover was still Page 10 valid. He referred to the contents of exhibit P6, a risk notes, which summarizes the contractual obligation between the parties. He further argued that during cross-examination, DW1 (Janet Rwechungura) admitted under oath that the parties had a valid insurance contract for one year covering accidents, theft, and fire. He was of the view that the Defendant has an obligation to indemnify the Plaintiff. With regard to the third issue as to what reliefs are the parties entitled; the learned counsel submitted that the automatic relief in light of the foregoing is to allow the suit with costs. In response, the learned counsel for the defendant started his submission by reiterating what has been averred in the plaint. The learned counsel for the defence submitted that some months later after the car was insured, the Plaintiff alleged that the insured vehicle was involved in an accident on 21st February, 2023, at Puma Traffic Light, Tangibovu, along Bagamoyo Road. The learned counsel was of the view that following the alleged accident, the Plaintiff submitted a Motor Accident Report Form (PF 90) to the Defendant, accompanied by repair estimates from Nne Moja Garage in Kinondoni, estimated the total of TZS 97,750,000/-. He averred that the Defendant received these documents and took a step to appoint 11 Page 11 an investigator for purposes of revealing the alleged accident and later the validity and reasonableness of the assessment of the costs of repair. Addressing, the issue as to whether the Plaintiff’s motor vehicle was involved in a car accident as alleged, the defence counsel submitted that from the evidence of PW1 which is exhibit P1/P4 (PF 90) was overtaken by Exhibit D4 which was prepared by the senior authority from that of Kawe Police station, the Plaintiff’s claim was brought to this court prematurely. The defence counsel further averred that the said PF 90 tendered by the plaintiff was not meant to be final and conclusive of the investigation process and according to PW1 and PW2 who tendered all those exhibits, exhibit D4 was conclusive by revealing that the plaintiff’s motor vehicle was not subject of the alleged accident. He argued that the above evidence adduced by the Plaintiff’s witnesses does not specifically and strictly prove that the special damages alleged resulted from the accident in which the Plaintiff claims his motor vehicle was involved. The defence counsel referred decision of the court in ANTHONY NGOO & ANOTHER v KITINDA KIMARO, CIVIL APPEAL NO. 25 OF 2014. Mjasiri J, which stayed that; “In relation to special damages, the law is settled. Special damages must be proved specifically and strictly.” 12 Page 12 The defence counsel also referred the decision of the court in Stanbic Bank Tanzania Limited v Abercrombie & Kent Tanzania Limited, Civil Appeal No. 21 of 2001 (CAT) (unreported), where it was stated that: “The law is that special damages must be proved specifically and strictly.” He also referred decision of the court in Stanbic case (supra) which made reference to Strom v Hutchison (supra) at page 525. Lord Macnaghten The defence counsel was of the view that it is crystal clear that the Plaintiff’s motor vehicle was never involved in the accident. Addressing the second issue as to whether the Defendant had as duty to indemnify the plaintiff, the defence counsel averred that since the first issue is not in the affirmative, it follows that the Defendant is not duty bound to indemnify the Plaintiff. The defence counsel was of the view that since the Plaintiff has failed to establish the genuineness of the accident it turns out that the burden to indemnify falls short. He submitted that from the outset that the Defendant has no duty to indemnify the Plaintiff. Addressing the third issue, what reliefs the parties are entitled to, the defence counsel was of the view that no relief on the part of the Plaintiff but dismissal of the entire suit with costs of the suit to the Defendant. 13 Page 13 Having summarized the evidence and submission by both parties let me now address the issues as raised by the court together with the parties. Before addressing the issues such as whether the plaintiff’s car was involved in an accident as claimed, and if yes whether the plaintiff is entitled for compensation from the defendant. I wish to first address whether the parties had contractual relationship. In my view this issue is straight forward issue as no one disputed if the parties had contract related to insurance. It should be noted that any insurance contract is a legal agreement that is binding between an insurance company and a policy holder (the insured). Ordinarily, any insurance contract stipulates the obligations of the insurer and rights of the person who is insured (insurance policy holder). It follows that, an insurance contract is a legal agreement between an insurer (the defendant) and the insured (the plaintiff) in our case. In other words, the insurance contract clearly stipulates the insurer's obligation to indemnify the insured against specified losses from particular contingencies or risks. This is a binding legal agreement where an individual or entity is obliged to pay a premium to an insurance company in exchange for financial protection against potential losses or damages. In this regard, it is the terms and conditions of such insurance contract which determine the claims entitled by the insurer. It is trite law that, the insurance contract must be supported by an insurable interest. Now reverting to the first issue as to whether the Plaintiff’s motor vehicle was involved in a car accident as alleged, I wish to make reference to 14 evidence of both parties. I noted earlier above that there is no doubt that Page 14 there was insurance contract between the plaintiff and the defendant and each party was duty bound to fulfil her obligations as per the terms and conditions of the very contract. Having determined that there was insurance contract among the parties, the question to be answered, has the plaintiff proved if his insured car had natural accident? If yes, did the insurer fulfilled her obligations of compensating the insured as required by the law? It should be born in mind that an insurance contract mainly covers and protect damages that may occur on the property insured. Where it is proved the insured property was damaged that was not an intentional the insured party has an alienable right to cover loss from the insurer. This is due to the fact that the insurance company is bound by law as per the terms of agreement to cover the valid claim of the insured party arising from damage of the insured property. I have gone through the evidence by the plaintiff and observed the evidence of the plaintiff witnesses and exhibits are self explanatory. It is clear from the evidence of the plaintiff that her car was unintentionally involved in an accident that qualifies for recovery of damages from the defendant. The plaintiff exhibits such as exhibits P1, P4 and especially exhibits P2 (motor vehicle inspection) and exhibit P5 (physical exhibit, the damaged car) are very clear to prove that the plaintiff car was involved in an accident that led to damages. Indeed, this evidence from these exhibits were neither disputed nor addressed by the defendant in her evidence and submission. It is also on the records that the proceedings of 6th October 2024 before my predecessor judge who earlier dealt with this matter his lordship Justice Morris through TTS, the court had the benefit of visiting and witnessing the car which was 15 tendered and admitted without objection as per exhibit P5. Indeed, the Page 15 evidence reveal that the plaintive car, clearly appeared to be damaged due to an accident. Looking at the evidence of the defendant, it is clear that apart from the witnesses, the defendant also mainly relied on exhibit D4 to rebut the allegations by the plaintiff side. I have considerably gone through the said exhibit which is not conclusive to refute the occurrence of accident. While the latter tendered by the defendant appeared to be from traffic commander that talked about the accident that took place at Mbezi Jogoo at 9:30, the exhibit PF 90 tendered by the plaintiff show that the accident took place at the junction of Puma petrol station/Tangibovu traffic lights. In this regard exhibit D4 tendered by the defendant had no probative value as it depicted the wrong place of where the accident occurred. The defendant in her submission contended that the investigation of the accident reveals that the claims are fraudulent and not genuine since the authority vested with power to confirm particulars of incidents declared that the Plaintiff’s car was never involved in the accident as claimed by the Plaintiff. However, the defendant neither mentioned the authority she was referring, nor evidence support her claim that the car was not involved in an accident. Indeed, even exhibits D1 and D2 tendered by the defendant witnesses does not show if the plaintiff raised fraudulent claim as alleged by the defendant. The defendant witnesses DW1 (Janeth Rwechungura) and DW2 (Emanuel Kachuchura) in their testimonies informed this court that the defendant engaged the service of the police department of the Ministry of Home affairs to investigate the whole accident incident which involved the Plaintiff’s motor vehicle. However, the defendant never submitted the outcome report with detail to indicate whether there was 16 Page genuine accident or not. Indeed, Exhibit D4 simply denies that the said 16 car T 753 DWZ has never been involved in any accident while during cross examination both DW1 and DW2 never disputed if the car was extensively damaged. In my view and basing on the reliable evidence by the plaintiff, the Defendant averment that the Plaintiff’s claims are not supported by credible evidence has no merit. Indeed, the defendant in her submission through the learned counsel seems to be admitting that the plaintiff was indeed involved in accident that is why she is disputing the amount of money for repair. This is reflected from the submission made by the defendant where she submitted as follows: “The estimated costs of repair of the said motor vehicle tendered as Exhibit P6 by PW2 does not reflect any quotations from suppliers. It is therefore short of proof that the same are coming from the genuine suppliers of the parts to be replaced”. Reading between the lines on the above paragraph it is clear that the defendant is aware that as per as Exhibit P6 tendered by PW2, the plaintiff car was involved in an accident but what the defendant is disputing is the estimated costs of repair of the said motor vehicle. It should be remembered that this is a case of civil nature, and the standard of proof is on the balance of probabilities. Having addressed the first issue, let me also address the second issue on Whether the Defendant has a duty to indemnify the plaintiff. It is on the records (Motor Cover Note marked as annexture 1) that having paid the premium, the Plaintiff's vehicle sum insured was pegged at Tshs 100,000,000/ and was issued with cover note with Risk Note No. 1985. It is also on the records that the 17 said vehicle was involved in an accident on February 2023 at Puma Traffic Page 17 Light Tangibovu, Bagamoyo Road as it was being driven by Plaintiff's director Paul Temba. Having paid the premium to the defendant, the plaintiff is entitled to any justifiable claim from the defendant who is duty bound to indemnify the plaintiff. Indeed, the duty to indemnify the plaintiff is established through a contract, where parties agree to certain responsibilities regarding potential losses. It is from indisputable records that the parties in this suit have been in contractual relationship as per exhibit P7 (cover note), exhibits D1, D2, D3 and D4. Having established that there was an indemnity contractual relationship, the plaintiff has the legal right to be indemnified by the defendant. The legal principle of "pacta sunt servanda" (agreements must be kept) emphasizes that parties to a contract must fulfill their obligations as agreed upon, and courts uphold these agreements as long as there was valid contract. See, Jovet Tanzania v. Bavaria Civil Appeal 207 of 2018 [2022] TZCA 557. It follows that, since the plaintiff proved her claims on the balance of probabilities as per section 111 and 112 of the Evidence Act, Cap 6, [R.E 2019] the plaintiff is entitled to compensation (indemnity) from the defendant. Finally, I wish to address the last issue that is “to what reliefs are the parties entitled?”. Having observed that the plaintiff has proved her claim on the damages from the car accident, let me now dares relief that plaintiff is entitled. The learned counsel for the plaintiff Mr. Emmanuel Muga, submitted that the Plaintiff is entitled to substantial payment being 18 Page 18 the repair expenses, general damages and specific damages to the tune of tshs 97,750,000/=. On the other hand, the learned counsel for the defendant claimed that the estimated costs of repair of the said motor vehicle tendered as Exhibit P6 by PW2 does not reflect any quotations from suppliers. I am aware that as per the evidence, the plaintiff car was involved in accident and was damaged. I am also aware that the said car has never been put into use since February 2023 to date. In my considered view, the plaintiff is entitled to payment of tshs 60,000, 000/= being direct costs for repairing the Plaintiffs insured vehicle which was damaged in a road accident instead of tshs 97, 750,000/= that was earlier claimed. With regard, to damages, the plaintiff claims Payment of general damages as may be determined by this court. There is no doubt that it is a settled principle of law that in claim for general damages, particulars will not be needed of the quantum of damages claimed. See London and Northern Bank Ltd. v George Newness Ltd. (1900) 16 T.L.R. 433, C.A . Indeed, looking at damages that was suffered by the plaintiff the trial court was in better position to consider and award general damages as prayed by the plaintiff. It is trite law that general damages can be asked for by "a mere statement or prayer of a claim" and this is what has been done in our case. See Perestrello Companhia Limitada v United Paint Co. Ltd., [1969] 1 W.L.R. 570. The Court in observed that: “If damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question”. Having gone through the records and considered the loss suffered by the 19 plaintiff as a result of the car accident, I find that the plaintiff suffered Page 19 damages for loss of business as a result of car damage and thus this court orders the defendant to pay the plaintiff Tshs.10, 000, 000/= as general damages. The Court in LIVINGSTONE V RAW YARDS CAAL CO (1850) 5 Case 25 clearly explained “damages”, to mean:- “The sum of money which will put the party who has suffered in the same position as he would have been if he has not sustained the wrong for which he is now getting compensation or reparation”. The court Prehn V. Royal Bank of Liverpool, observed that: “General damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man…” In the present circumstance despite the plaintiff was highly affected by the car accident and the position of the plaintiff could mostly be retrieved by way of reasonable and justifiable general damages and that is because the loss sustained by the plaintiff is hugely measured. Basing on the analysis of evidence of both parties and the records, it follows that, the plaintiff has proved her claims on the balance of probabilities in their claim under the plaint. This court thus make an order for the defendant to pay the plaintiff the following amount of money; a) Payment of tshs 60,000, 000/= being direct costs for repairing the damaged car within three months from the date of this judgment. b) Payment of general damages at the tune of tz.shs.10,000,000/= within three months from the date of this judgment. c) This Court also orders the plaintiff to be handled his vehicle that was earlier ordered by this court to be stored at NNE MOJA Garage. d) No orders as to costs. 20 It is so ordered. Page 20 DATED at DAR-ES-SALAAM, THIS 24th DAY OF March 2025 ......................................... A .J.MAMBI JUDGE 24 MARCH 2025 TH Right of Appeal Explained A.J.MAMBI JUDGE 24 MARCH 2025 TH 21 Page 21