20190529 TZHC Dar es Salaam

\I. IN THE HIGH COURT O F TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 23 OF 2017 (Originating from Civil case No. 303/2011, Resident Magistrate Court of Dar es Salaam at Kisutu) THE JUBILEE INSURANCE CO. (T) LTD ............... .... APPELLANT VERSUS CHAM KA YE SALUM MTONGA .................... 1sr RESPONDENT KENGELE JOHN BAGOMBA t/a MARI BO BEER WINE AND SPIRIT LTD ........... .2ND RESPONDENT GILBETH WAMBURA ...... ............................. 3RD RESPONDENT JUDGMENT E.B. LUVANDA, J. The appellant- The Jubilee Insurance Co.(T) Ltd, is appealing against the decision of the trial court which decreed a sum of 60,000,000 general damages in favour of the first respondent - Chamkaye Salum Mtonga. In the memorandum of appeal, the appellant grounded that: first, the trial magistrate having found that the 3rd respondent pleaded guilty of the offence charged in Traffic Case No. 484/2010 which was based on negligence ·erred in law and facts by holding that the appellant 1 was liable to idemnify the pt respondeht, secondly, the resident magistrate erred in law and fact by issuing on ambiguous judgment by ordering payment of Tsh 60.000,000/= to the 1st respondent without specifying which respondent or appellant is liable to pay; thirdly, the resident magistrate erred in law and fact by awarding the first respondent erroneous general damages without taking into consideration of the age, life expectancy of the deceased and the productivity of the deceased; fourth, the resident magistrate erred in law and fact by awarding the 1st respondent Tsh 60,000,000/= as general damages without taking into consideration the insurance policy of identification. It is to be noted that the appeal proceeded exparte against the second and third respondent who even after service were effected by publication did not appear. Mr Mutakyamirwa Philemon learned Advocate filed written submission for the appellant and the first respondent did not file a reply. In prosecuting her appeal, the appellant abandoned the first and second grounds of appeal and argued by 2 combining the third and fourth grounds _of appeal, ds hereunder. The learned Advocate for appellant submitted that the jurisprudence behind insurance is to re-instate the claimant/or victim of a particular calamity into the state which he/she was before the occurrence of the said calamity and the same is not geared at enriching the claimant thereof. He cited the case of As Sajan V Cooperative and Rural Development Bank (1991) T.L.R at page 45. The learned Counsel for appellant submitted that without taking into account the status of the deceased who was aged 75 years when he met death plus his status as a petty trader (selling orange and banana on a bicycle) the trial Court went on and grossly erred in awarding him 60,000,000/= as compensation by considering only the life of the deceased which was lost but did not consider the principal of indemnification in insurance cases, that is age of the deceased, income and responsibility to the dependents. That the deceased (aged 75 years) had no permanent or tangible income no dependent and thus the award of Tsh 60,000,000/= was too exorbitant, unrealistic and was to enrich the remaining deceased's family contrary to insurance policy. 3 The learned. Counsel for appellant argued that, the trial court erred to speculate the deceased past income prior occurrence of the accident. That the birth certificate of the left children were not brought in court. He cited the case of Mayombo Shabani V Nkandi Makun~ ( 1998) T.L.R. at pages 330 - 331, Rugarabamu Archard Mwamboki Vs Charles Kizigha and 3 others ( 1985) T.L.R 96. The learned Counsel for appellant submitted that failure to tell the court the income of the deceased plus documentation of the dependents if any, left the court to give the decree based on the loss of the life and sympathy which 1s contrary to the law and the principle of indemnity. According to a plaint in particular paragraph twelve, reveal that a claim of the first respondent (who was the plaintiff at a trial court) against the appellant (third defendant at the lower court), the first respondent averred, I quote a portion of paragraph twelve as hereunder. " .. .the 3rd defendant is liable to make good the said loss of life of the deceased by way of indemnity" 4 As correctly submitted by the learned Counsel for appellant, the law on indemnity is all about security or compensation against loss or damage. The principle of indemnity aim to bring the insured to the financial position where he was prior to the happening of loss. (See Prem Jihamnani, Fellowship from Insurance Institute of India (2019) at w.w.w.quora.com). In awarding damages the trial court seem to have considered an aspect of loss of the life and dependents. The trial of court did not say anything on loss or damages suffered by the deceased. However, it is evidence that the deceased was a peasant and petty trader vending fruits (orange and banana), also coconut and eggs, see PW 1, PW2 and PW3 at pages 37, 39 and 41 of the typed proceedings of the lower court. Nevertheless, none of the three witness for the plaintiff or first respondent herein, had testified and explained on the income generated by the deceased from his peasantry activities (or sedentary farming by an old man aged at 75 years) and for the petty trade of vending oranges, bananas, coconut and eggs. Neither explained the capital or quantity of those commodities. At any rate, an award of general damages at a sum of Tshs 60,000,000/=, is on a higher side and exaggerated. Actually the learned resident magistrate abdicated his duty to make 5 an assessment of damages, instead awarded the exactly • sum which was pleaded by the plaintiff (1 st respondent herein). It is a trite law that general damages are awarded at the discretion of the court and therefore does not require to be specifically pleaded by the plaintiff. According to the commentator and author Prem Jhamnani on his article (supra) suggest that the principle of indemnity is such a principle that an insured may not be compensated by the insurance company an amount exceeding the insured economic loss. In view of the foregoing deliberation, I reassess the damages to a less sum of Tsh 30,000,000/= An appeal is partly allowed to the extent adumbrated above. No order as to costs. E. Judge 9.5.2019 6 29.05.2019 Coram: Hon R. Masam,DR For the Appellant: Mr Alfred Rweyemanu H/b Philemon Mutakyamirwa For the 1st Respondent- Present For the 2nd Respondent- Absent Cc: Yassin Order : Judgment delivered today on 29 th May 2019 in the presence of Mr Alfred Rweyemanu holding brief for Philemon Mutakyamirwa for appellant, and in the presence of the respondent. R.B.Masam DR 29.05.2019 \ 7