nyanza bottling company ltd applicant versus makere ... - Tanzlii
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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIAIN THE DISTRICT REGISTRY OF SHINYANGA
AT SHINYANGA
CIVIL APPEAL NO.1 OF 2020(Arising from Civil Case No.6 of 2018 in the District Court of Shinyanga)
NYANZA BOTTLING COM PANY LTD APPLICANT
VERSUS
MAKERE GACHUMA 1 ST RESPONDENT
UAP INSURANCE TANZANIA LTD 2ND RESPONDENT
TANZINDIA ASSURANCE CO. LTD 3RD RESPONDENT
YUSUPH SHEIKH 4TH RESPONDENT
JUDGMENT1f17 July & f17 August, 2021
MKWIZU, J:
Fourth respondent filed a civil suit at the District Court of Shinyanga vide
Civil Case No.6 of 2018. The suit was against four defendants namely,
Makere Gachuma, Nyanza Bottling Company Ltd, UAP
Insuarance Tanzania Ltd and Tanzindia Assurance Company Ltd.
The appellant was claiming from the defendants jointly and severally the
sum of Tshs. 100,000,000/= being special damages for the loss of earning
during the time of treatment and general damages to be assessed by the
court as a result of injuries suffered by the plaintiff in the road.
1
The facts on the record reveals that, on 22nd April, 2015, 4th respondent (
original plaintiff) was traveling as a passenger in the bus with Registration
No. T148 BKK insured by the 3rd Respondent ( original 4thdefendant) from
Mwanza to Tabora. While at Samuye Village in Shinyanga region, 1st
respondent (original 1st defendant), a driver of a lorry with Regitration
NO.T.207 BSA Scania with a trailer with Reg. No. T635 AJT the property
of the Appellant (original 2nd defendant), recklessly and negligently drove
the vehicle such that it knoked the bus in which the 4th respondent
boarded causing a tragic accident resulting into serious injuries to the 4th
respondent herein.
The records are to the effect that, pt respondent was arraigned before
Shinyanga District Court with an offence of causing death and injuries for
dangerous driving of a motor vehicle Cis 40,27(1) (a) and 63 (20 (a) of
the road Traffic Act Cap 168 R E 2002 in a Traffic criminal Case No 20 of
2015. He was convicted and accordingly sentenced.
First respondent did not respond to the claim. He neither filed a written
statement of defence nor appeared and therefore the suit proceeded ex-
parte against him. Appellant denied the allegations that she had employed
1strespondent and that she owns the vehicle with registration No. T. 207
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BSA Scania. Second respondent denied all the claims in the plaint while
3rd respondent admitted the fact that she is the insurer of the bus which
met the accident. She as well denied the rest of the claim.
After a full trial, the trial court found in favour of the 4th respondent
(plaintiff) . He was awarded 100,000,000/= special damages for loss of
salaries calculated as the rate of 5,000,000/= times 20
months;50,OOO,OOO/=general damages and interests of 30% commercial
rate in both general and special damages awarded and g% interest from
the judgement date to the date of full payment. The costs of the suit were
also part of the award.
Appellant is dissatisfied, she has filed this appeal on the following
grounds:
1. Tttst; the trial magistrate erred in both of law and facts by finding
the appellant liable while she was a wrong party to the suit.
2. Thst; the trial magistrate wrongly established that the appellant is
vicarious liable to the acts of the I" defendant at trial court without
evidence of employment relationship.
3. Thet; the trial magistrate erred in both point of law and facts and
wrongly reached to a conclusion that the I" defendant was tortuous
liable to the plaintiff.
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4. That, the trial magistrate erred in both point of law and facts by
awarding the respondent herein specific damages without evidence
of the said demsaes, alternatively without taking consideration to
statutory deductions.
5. That, the trial court erred in law by finding both insured and insurer
jointly liable to compensate the respondent herein.
6. That, the trial court erred in law by awarding special damages
basing on an illegal contract of service between the respondent
he~mandh6aUegedemphye~
7. That, the trial court erred in law by awarding general damages of
Tanzanianshillings fifty million (Tzs 5~OO~OOO)without showing
how it reached to that sum.
8. That, the trial court wrongly awarded interest to the respondent
herein.
9. That, the trial court failed to properly analyze evidence hence
reached into a wrong conclusion.
At the hearing, appellant was represented by Mr. Endrew Luhigo learned
advocate, Mr. Pharles Malengo was for the 2nd respondent, Richard Deus
advocate appeared for the 3rd respondent and Mr. Siraji Kwikima advocate
was for the 4th respondent. pt respondent's physical address were not
known for service purposes thus, on 4/5/2020 appellant prayed and was
granted leave to serve him by way of substituted service. The service was
done through Mwananchi newspaper dated 19/5/2020 and the appeal
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proceeded exparte after failure by the 1st respondent to enter appearance
after such a service hence this exparte judgement against the pt
respondent.
Submitting for the appeal, Mr. Luhigo prayed to argue grounds 1, 2 and
3 together 4, 6 and 9 together and 5th and 7th one after the other. On
grounds 1, 2 and 3 he said, the appellant (original 2nd defendant) was
sued as a wrong part at the trial court. Appellant was mentioned in
paragraph 3 of the plaint as a defendant and on 27/4/2018 the appellant's
Written Statement of Defence raised a preliminary objection alleging that
she is a wrong party to the suit.
In her Written Statement of Defence particularly paragraph 2, 3, 4, 6 and
9, appellant denied to have any connection with the suit. She contested
the claim that she had employed 1st Defendant Makere Gachuma, at the
time of accident. Appellant's counsel stated that, appellant was connected
to the suit through paragraph 7 of the plaint, where she was alleged to
be the owner of the vehicle Scania Lory with Registration No. T. 207 BSA
and the Trailer with Registration No. T 635 AJT involved in the accident.
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Mr. Luhigo submitted further that the fact that, appellant is not the owner
of the vehicle in dispute was expressed in the Written Statement of
Defence, the presented evidence and is supported by the plaintiff's own
evidence particularly Exhibit P3 - (Vehicle Inspection Reports) in relation
of the Scania T. 207 BSA (Vehicle Inspection Report No. 1443871) which
mentions the owner of this Scania as NBCLDistribution Limited, Vehicle
Inspection Report for the Trailer No. T 635 AJT (Vehicle Inspection Report
No. 1443877) indicating that the owner is NBCL Distribution Limited;
Exhibit 6, Insurance Cover Note No. 7355158 for the Scania No. T. 207
BSA and Cover Note No. 7467246 for the Trailer No. T. 635 AJT where
the Insured was introduced as NDCL. Mr. Luhigo submitted that, it is the
position of the law that who alleges must prove and because plaintiff was
alleging the appellant to be the owner of the two vehicles, he ought to
have proved his allegation.
To prove that appellant is the owner of the alleged motor vehicle, plaintiff
was required under section 15 of the Road Traffic Act Cap 168, read
together with section 100 (1) of the Law of Evidence Act Cap 6 RE 2019
to produce Registration Cards of the said Motor Vehicle. The omission by
the plaintiff (4th Respondent), stated Mr. Luhigo, to produce the vehicle
registration card requires the court to draw an adverse inference against
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him. He, on this point, cited the case of Hemedi Said Vs. Mohamedi
Mbilu [1984] TLR 113; Azizi Abdala V.R, [1991] TLR 71 and Mathe
Bilhwangero EnosiVs. Muhindo Oniz, HCT -01 CV - CA -0. 49 of 2016
of Uganda. He insisted that appellant was wrongly sued and the trial
court misdirected itself to find that appellant was tortious liable to the
plaintiff (now 4th Respondent).
On grounds 4, 6 and 9 he argued that, the trial court failed to analyse the
evidence leading to a wrong conclusion on what are the entitlement of
the plaintiffs ( now 4th respondent).Special damages were granted strictly
on a contract of service between the plaintiff and the third party allegedly
his employment contract admitted as exhibit P9.Mr. Luhigo explained that
the said contract was irregularly admitted because it had no stamp duty
as required under section 47 of the Stamp Duty Act Cap 189.
Arguing in the alternative, appellant counsel said, One, the contract of
service alone could not be enough to prove that plaintiff (now 4th
respondent) was actually receiving that sum of money as a monthly salary
without tendering a salary slip which is a document recognised under the
law particularly section 27 (2) of the Employment and Labour Relations
Act of 2004. Two that, the trial court awarded the plaintiff the total sum
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of 100,000,000/= which is 20 months' salaries while paragraph 13 of the
plaint, the claim was for eight months only which the plaintiff expressly
said to have been absent from work. The trial court, clarified Mr Luhigo,
awarded extra 12 months as specific damages un pleaded by the plaintiff.
Three that, the plaintiff's claim of special damages was because the
employer could not pay him salaries for he was not working. On this
appellant's counsel was of the view that in such a situation, the remedy
was not to sue the tortfeasors, the plaintiff was required under section 32
of the Employment and Labour Relations Act No.2 of 2004 to claim from
his employer four months sick leave. Again, stated Mr. Luhiqo, no
evidence of termination of 4th respondent's employment after the four
months sick leave and therefore no proof of specific damages. Four, even
assuming that plaintiff was entitled to any number of months, it was still
wrong for the trial court to award him on gross salary because section 28
(1) (a) of the Employment and Labour Relations Act, such salaries was
subject to deduction such as taxes and Pension Funds Contributions.
On ground 7, the appellant counsel challenged the award of 50,000,000
general damages. He said, the trial court failed to show the base of the
award. The case of Cooper Motors Corporation Ltd V. Moshi/ Arusha
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Occupational Healthy Servicers [1990J TLR 96 was cited on this
ground.
Regarding the 5thground said, Mr. Luhigo, trial court erred in finding both
insurer and insured jointly liable to compensate the 4th Respondent. The
two issuers 2nd and 3rd Respondent together with the alleged insured the
appellant, were found jointly liable to compensate the plaintiff the decreed
sum contrary to the principles of insurance because it was to be known
specifically as to who is responsible whether insurer or insured and to
what extent. If all were to be liable, then the court ought to have indicated
the extent of each one's liability.
He lastly prayed for the appeal to be allowed with costs at the trial court
as well as in this appeal.
Mr. Pharles Malengo for the 2nd Respondent supported the appeal and all
the submissions by the appellant's counsel. He in addition cited the case
of Zuberi Augustino Vs. Anset Mugaba [1992J TLR 137 stressing that
specific damaged must be proved. He said,4th Respondent, did not plead
12 months therefore, the trial court erred in awarding months which were
not pleaded. Like the appellant, Mr Malengo prayed for the court to allow
the appeal with costs.
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On his party, Mr. Deus Richard for the 3rd respondent subscribed to the
submissions by the appellant's counsel with few additions on grounds 1,
2 and 3 argued collectively and ground 5. He contended that, according
to the pleadings, the complained accident involved two vehicles. The Lory
- Scania and Bus Registered as T. 148 BKK boarded by the 4th
Respondent. While 3rd Respondent is said to be an insurer
of the Bus in question, the owner of the bus has never been a party to
this case. To accommodate the insurer in this case, the relationship
between the insurer and insured must be established which is not the
case in this case. He, for those reasons supported the appeal.
Mr. Kwikima on the other hand, was in support of the trial court's decision.
He started his submissions by attacking the issue of non-joinder of parties
raised by the 3rd respondent arguing that it is a new ground raised at this
appellate stage contrary to Order XXXIX rule 2 of the CPCCap 33 RE2019.
He argued that, joinder of parties must be taken at an earliest opportunity
possible and therefore, 3rd Respondent was supposed to complain at the
trial court and not at this stage. On this he cited provisions of Order I Rule
13 of the CPC,Cap 33 RE 2019. Mr. Kwikima admitted that, owner of the
bus was not sued and the link between the 3rd Respondent and the bus
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owner was not established but 3rd Respondent did not complaint and no
appeal was preferred against the trial court's decision. To establish
whether the claim was proved to the required standard, Mr. Kwikima
invited this court, as a first appellate court to re-evaluate the evidence on
the record.
Arguing on the complaint that appellant was a wrong part to the suit for
there was no proof of ownership of the Scania and its trailer, Mr. Kwikima
submitted that evidence on the records points out that the 1st Respondent
was at the time of the accident an employee of the appellant on the
reasons that one, pt Respondent was charged and convicted as per
Exhibit P4. At page 6 of Exhibit P4 indicates that 1st Respondent's sureties
J. Kwiliba and Yohana Bunwai were employees of Nyanza Bottling Co and
they declared before the court that they were bailing out their co-worker
cpt respondent).
Two, that 2nd Respondent's witness, Julius Sambia identified the vehicle
with registration No. T. 207 BSAas a property of the appellant and that it
was brought to them for insurance purposes. He said in their Insurance
Cover Note, Nyanza Bottling Company Limited was presented by initial -
NBCL and the Insurance Cover Notes were admitted as Exhibit P6. Mr
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Kwikima was of the view that, the ownership of the vehicle and
employment relationship of the driver and the owner of the vehicle in
question was well established in the balance of probabilities and therefore
trial court was justified in finding the appellant vicarious liable.
On grounds 4, 6 and 9 Mr Kwikima said, both special and general damages
were justified. While admitting that special damages must be specifically
pleaded and proved. He said, Exhibit 9, employment agreement between
4th respondent and his employer proved what the 4th respondent was
earning per month with specified terms that 4th Respondent would not be
paid his monthly salary if he is not in completion of a full calendar month
assignment save for holidays. In this case, stated Mr. Kwikima, his client
was unable to serve 20 months after the accident.
Responding to the appellant's submissions that in paragraph 13 of the
plaint, it was indicated that plaintiff (4th Respondent) failed to serve only
8 months under the alleged contract, Mr Kwikima said, the 20 months
period were the months which had remained in 4th respondent's contract
and therefore were to be compensated.
On why the salary slip was not produced as evidence in court, He said,
the trial court based its findings on the contract of service. This being a
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civil matter proof is on the balance of probabilities and therefore plaintiff
managed to prove that he was earning 5,000,000/= per month and he
suggested that the absence of the stamp duty on the contract of service
admitted in court is not material. He gave two reasons, one that non-
payment of stamp duty does not vitiate a contract and secondly that
stamp duty Act does not give specific time on which the stamp duty should
be paid in respect of any document. According to the Court of Appeal
decisions, stated Mr. Kwikima, the courts are directed to give time to the
holder of document to pay for unpaid stamp duty. He in the alternative,
prayed for the court not to consider this issue under Order 39 Rule 2
because it is a new issue which was not part of the memorandum of
appeal or raised when the said document was tendered in court.
While insisting that 4th respondent managed to establish that he had not
worked for more than 20 months after the accident, he agreed that under
section 32 of the Employment and Labour Relations Act, an employer is
statutory bound to provide full four month sick leave to an employee who
suffered injury and therefore the 1st four months of the 4th Respondent's
sickness was an obligation of his employer and therefore should be
deducted from the 20 months awarded.
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On the submissions that no evidence of termination of his employment
after the four months of sick leave and therefore no proof of specific
damages, he said, the contract was very clear that 4th respondent was on
medical treatment for 8 months and after that he was advised to take rest
and therefore, he could not work. On statutory deductions issue, he said
that, the consideration was to be done on the payment of the awarded
amount and not at the trial stage.
Responding to the issue relating to general damages, Mr. Kwikima cited
the case of The Cooper Motors (supra) stating that, general damages
are within the discretion of the court. The appellate court can only
interfere where trial court failed to consider relevant facts or considered
irrelevant facts on the matter which is not the case here. He said, the
trial court did consider the extent of injuries suffered by the plaintiff. He
prayed for the dismissal of grounds 4, 6 and 9.
Mr. Kwikima argued that 5th ground is baseless. Both insured and the
insurer are joint tortfeasors and in tortuous liability they are jointlv
liable. He at the end prayed for the dismissal of the appeal with costs.
The rejoinder submissions were essentially reiterations of the appellant's
submissions in chief, I will for those reasons not recapitulate it here.
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I have cautiously and keenly evaluated the evidence on the records, the
grounds of appeal and submissions by parties' counsels. To avoid
confusion and for consistence, I will determine the grounds of appeal in
four categories as presented by the parties' counsels during hearing of
this appeal.
The first three grounds of appeal essentially challenge the trial court's
decision for holding appellant vicarious liable without proof. This
complaint lies on two main reasons, that no evidence was brought to
prove that appellant was/is the owner of the vehicle caused the accident
and that she had employed the pt respondent to drive the vehicle in
question. In other words, the appellant is complaining that the vicarious
liability alleged against her was not proved by the 4th respondent.
It is not in dispute that 1st respondent was a driver of the Motor Vehicle
T207 BSA with a trailer with registration No. T.635 AJT. It is not
controverted also that 1st respondent was charged, convicted and
subsequently sentenced for dangerous driving in Traffic criminal case No
20 of 2015. The dispute is on whether the appellant is vicariously liable
for the acts committed by the 1st respondent. In Machame Kaskazini
lS
Corporation Limited (Lambo Estate) v. Aikaeli Mbowe [1984] TLR
70, the court held thus:
"In order to render the employer liable for the
employee's act it is necessary to show that the
employee, in doing the act which occasioned
the injury, was acting in the course of his
employment. An employer is not liable if the act
which gave rise to the injury was an independent act
unconnected with the employees employment If at
the time when the injury took place, the
employee was engaged, not on his employer's
business, but on his own, the relationship of
employer and employee does not exist and the
employer is not therefore liable to third persons
for the manner in which it isperformed. since he
is in the position of a stranger. " (Emphasisadded)
Again, in Lazaro v Mgomera [1986-1989] 1 EA 302 it was stated;
'~n employer is vicariously liable if his servant
commits a tort in the course and within the scope
of his employment This does not absolve the
liability of the servant but only means that the
employer is also liable as the tort was committed
when the servant was supposed to be acting in
place of or for the employer. whose act it
becomes':
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Interpreted from the above decisions is that, the employer is liable for the
torts of the servant so long only as the alleged wrong was committed in
the course of the servant's employment. That being the position which I
fully subscribe, the truth is, to succeed against the appellant in this case
it must be proved that appellant is the owner of the vehicle which caused
the accident and that the driver (1st respondent) committed the alleged
wrong while in an employment commitment with the appellant.
It is evident from the 4th respondent's evidence at page 33-34 of the
records that, at the time of accident, 1st respondent was driving a lorry
property of appellant insured by the 2nd respondent - UAP Insurance Co
Limited. The Motor vehicle inspection reports and the insurance cover
notes were tendered in court as exhibit P3 and P6 respectively. As rightly
submitted by Mr. Luhigo, 4th respondent's evidence, Exhibit P3 - Vehicle
Inspection Reports in relation to the Scania T. 207 BSA and Trailer No. T
635 AJT (Reports No. 1443871 and No. 1443877) describe the owner of
the Scania involved in the accident as NBCL Distribution Limited
whereas the Insurance Cover Notes Exhibit P 6, introduces the owner of
the same vehicle as NDCL. The above evidence is supported by the
evidence of DW1 at page 45 of the records. In his defence, DW1 explained
the difference between the two companies that is appellant and NBCL
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Distributor limited. He said, appellant, Nyanza Bottling Co Limited is the
producer of Coca-Cola and Dasani products, and the NBCL Distribution
Limited is a company dealing with the distribution of the products
produced by Nyanza Bottling Co Limited. DW1 also informed the court
that 1st respondent was a driver to NBCL Distribution Limited at the
time of the accident.
The issue for solution by this court is whether appellant, Nyanza
Bottling Co limited is the same NBCL Distributors limited and jor
NDCL. This confusion is brought about by the documentary evidence
tendered in court by the plaintiffs himself. Appellant is a registered
company. In my view, a registered name of a company is a crucial issue
when it comes to its identity. This is so because a slight change in the
name may mean another competent and legal recognized company with
a different legal capacity. Emphasizing on the importance of names,
Court of Appeal in Civil Appeal No. 110 Of 2017 CRDB Bank Pic
(Formerly CRDB (1996) Ltd Vs. George Mathew Kilindu, held inter
alia that:
1~ •• Names of parties is central to their identification in
litigation. Bothparties are limited liability companieswith all
18
attributes. If one changes its name, it becomes a
different legal entity, altogether ... F/ (Bold is mine)
The name of the appellant (the then 2nd defendant at the trial court) is
Nyanza Bottling Co limited. Meaning that by its name, appellant is an
independent legal entity capable of being sued or sue on her own name.
It is treated like any other independent person with rights and liabilities
appropriate to itself. Thus, to have a valid claim against the appellant
evidence must be led to prove that appellant's company is responsible
to the alleged wrong and this being a civil suit, the burden is on the
plaintiff.
The evidence brought by the 4th respondent is very straight forward that
the owner of the Scania 207 BSA and trailer No T 635 AJT driven by the
pt respondent at the time of accident is the NBCL Distribution Limited.
This was proved by the vehicle inspection report (exhibit P3) relied upon
by the plaintiff. Unfortunately, the NBCL Distribution Limited was not a
party to the suit.
DW2, 3rd defendant's witness before the trial court gave evidence in
support of the plaintiff (now 4th respondent). DW2 supported the evidence
in exhibit P6 that Motor Vehicle in question are the properties of Nyanza
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Bottling Co Limited and were insured by the 3rd Defendant, now (2nd
respondent). I have perused exhibit P6, the owner of the vehicle in that
document is NDCL, no further description of the police holder was given
in the Insurance cover Notes. Reading their contents, Insurance Cover
Notes were to include important information of the Police Holder and
the particulars of the vehicle like, the name of the Police holder ( insured),
address, date of commencement of the insurance, expiry date, name of
the vehicle covered, colour, registration Number of the vehicle in question,
engine and chassis number, make of the vehicle, Body type, cc, year of
manufacture, carrying and Seating capacity, insured estimate value, date
of issue, name of the agency involved and authorising signature. In all
the two Insurance cover Notes tendered in court (exhibit P6), the name
of the Police Holder was recorded in a short Form NDCL, address, name
of the vehicle covered, colour, engine and chassis number, Body type, cc,
carrying and Seating capacity, were not recorded. To say the least, the
information in Exhibit P6 are not descriptive enough to disclose with
certainty the Police Holder (insured) and no other explanation on the
records were given to convince this court that, the appellant, Nyanza
Bottling Co Limited is the same NBCL Distribution Company Limited the
owner of the above named vehicle or the NDCLthe holder of the tendered
insurance Cover Notes. Plaintiff's clarification on the ownership of the
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vehicle is so contradictory such that it is difficult for this court to conclude
with precision on who is the owner. It is, for the above reasons, without
doubt that plaintiff failed to prove the ownership of the vehicle involved
in the accident complained of.
If that is not enough, plaintiff, now 4th respondent failed also to prove that
pt respondent was an employee of the appellant in this matter. The facts
contained in Exhibit P4 - courts proceedings in Criminal Traffic case No.
20 of 2015 that 1st Respondent's sureties J. Kwiliba and Yohana Bunwai
are employees of Nyanza Bottling Co Ltd do not conclusively prove that
1st respondent was an employee of the Nyanza Bottling Co Limited under
whose control the vehicle was at the time of accident. And even assuming
that the fact was so proved, still without proof of ownership of the vehicle,
the claim against the appellant remains unproved. Generally, 4th
respondent failed to prove his claim against the appellant in this matter.
I find the first three grounds of appeal meriting. This conclusion disposes
off the 4,6,7 ,8 and 9 ground of appeal.
Before penning off I feel obliged to discuss a little bit on the 5th ground of
appeal in which the trial court's decision is faulted for finding both the
insured and insurer jointly liable to compensate the 4th respondent. I have
21
evaluated the trial courts records. As stated earlier on, plaintiffs claim is
tort was in nature under vicarious liability principle which hooks vicarious
responsibility on the master for the wrong act done by his /her servant.
Complainant in such a case as stated earlier on, must prove; the liability
of the wrongdoer (servant); the relationship of master and servant; and
that the servant acted in the course of his employment with the master.
Insurance company's responsibilities to a third party comes in only after
the liability of the insured person is ascertained. The third party's right
against the insurer is only restricted where he has a statutory right to sue
or has obtained a judgement against the insured (Motor vehicle owner)
and only to the extent of the amount covered by the insurance policy
(between the insurer and insured). This is the import of section 10 (1) of
the Motor vehicle Insurance Act which states:
"It. after a policy of insurance has been effected, judgment
in respect of any liability as is required to be covered by a
policy under paragraph (b) of section 5 of this Act (being a
liability covered by the terms of the policy) is obtained
against any person insured by the policy...the insurer shall
subject to the provisions of this section, pay to the persons
entitled to the benefit of the judgment any sum payable
thereunder in respect of the liabili~ including any amount
22
payable in respect of costs and any sum payable in respect
of interest on that sum by virtue of any enactment relating
to interest on judaments"
It is from the above section of the law that when an insurance company
pays any sum to the third party, it makes payment for and on behalf of
its client, the insured. z= and 3rd respondents were the insurers of the
appellant and the bus in which the 4th respondent had boarded
respectively. As explained above, their engagement to the claim by the
4th respondent would come in after their clients - the insured are found
liable for the alleged tort. And the extent of their liability would have been
determined through their insurance policy.
The trial court went amiss. The owner of the bus T 148 BKKwas not made
a party of the proceedings of the trial court. This is the person on whose
behalf, the 3rd respondent would have been responsible. Thus, it was
wrong for the trial court to find the insurer, 3rd respondent liable without
any liability on the party of the insured. Secondly, the defendants were all
found jointly liable without ascertainment of each one's extent of liability
contrary to the insurance laws and procedure.
I, for the above reasons agree with Mr Deus Richard, 3rd respondent's
counsel that claims against the 3rd respondent was too remote because of
lack of connectivity between the two. There is no way, the 3rd respondent
could be found liable for the tort committed by the 1st respondent. 5th
ground of appeal is also allowed.
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