Lundu v Prime Insurance Company Limited (Civil Cause No. 903 of 2014) [2016] MWHC 636 (29 November 2016);

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IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CIVIL CAUSE NO. 903 OF 2014

 

BETWEEN

GRIVIN CHARLES LUNDU ............................................ PLAINTIFF

AND

PRIME INSURANCE COMPANY LIMITED………………DEFENDANT

 

CORAM: HON. JUSTICE R. MBVUNDULA

Kalua, Counsel, for the Plaintiff

Mhango, Counsel for the Defendant

Mithi, Official Interpreter

 

JUDGMENT

The plaintiff’s claim is for damages for negligence arising from a road accident which took place at or near Stella Maris Secondary School along the Blantyre­ Chikwawa road. The defendant is sued as the insurer of the vehicle registration number 5429 involved in the accident.

The plaintiff s evidence was that he was riding a bicycle from Green Comer to Zingwangwa on the left side of the road and upon reaching the junction to Zingwangwa, near the aforementioned school, and about to complete turning from the main road into the road to Zingwangwa he was hit by the vehicle and was dragged for a distance. He said it was during morning time and the road was clear with no other vehicles. The plaintiff attributes the incident to over-speeding of the vehicle and that the vehicle swerved to the right side of the road where he had moved to. He said it was being driven very fast.

The plaintiff did not know both the driver's and the owner's names. He said he knew the insurer's name but did not have evidence of the insurance. He had not seen the insurance disk as of the day of trial.

The plaintiff stated that he suffered various injuries particularised in both his pleadings and evidence in chief. He also stated that he lost consciousness on the spot which he regained at Queen Elizabeth Central Hospital. He further stated that his bicycle was damaged beyond repair.

In response to questions in cross examination the plaintiff stated that the accident occurred during the morning hours and the minibus was heading towards Blantyre, i.e. it was coming behind him and after the collision it did not stop. He said he saw the minibus at a distance before it hit him. He also said when the accident was taking place there was a police officer, the one who prepared the report of the accident. During re-examination however he said that there was no other person on the scene at the time.

Traffic Sergeant Masida Sandram was the second witness for the plaintiff. She is the officer who took charge of the matter after it was reported to Manase Police Unit. She did not witness the occurrence of the accident but took particulars of the driver and insurance details of the vehicle and the parties involved, namely the plaintiff and the driver of the vehicle. She told the court that in her assessment the accident was influenced by the negligence of the driver of the motor vehicle in driving 'lt an excessive speed. The driver, she said, was charged with the statutory offence of reckless driving and he paid a fine in that connection and on the request the driver the officer produced an abstract police report with details of the motor vehicle, insurance details showing that the motor vehicle was insured by Prime Insurance Company Limited and particulars of the accident which she tendered in evidence in this court.

It was the further evidence of Traffic Sergeant Sandramu that after the accident was reported to the police by the driver she and another officer visited the scene and interviewed some eye witnesses. It was not true therefore that when the accident occurred there were no other persons. In any event the plaintiff was in no position to testify to that fact as he had lost consciousness.

Traffic Sergeant Sandramu further stated that she could deduce from the skid marks on the road that the vehicle had been speeding and that in fact the driver did admit to have been over-speeding. She said that the driver showed her evidence of the insurance cover issued by Prime Insurance Company Limited which was valid. She further said that the vehicle was extensively damaged at the front.

The defendant did not adduce any evidence.

The defence submits that the court cannot find the insurer of the vehicle without a prior finding of liability on the part of the driver and the owner of the vehicle. The defence is referred to the Supreme Court decision in Commercial Union Assurance (PLC) v Alfred Waters M.S.C. Appeal Case No 46 of 1995 where it was held that there is no such requirement under the current law. The defence argued that the driver could not be held liable unheard, since he was not joined as a defendant, as this would violate constitutional principles. It is the view of this court that this argument does not lie in the mouth of the defendant who all along was at liberty to apply for the joinder of any person whose presence before this court the defence felt necessary for the proper disposal of the case.

The onus lies on the plaintiff to adduce evidence proving on a balance of probabilities that the collision was occasioned by the negligence of the driver of the vehicle in question. The defendant was at liberty to adduce evidence proving the contrary or to discredit the plaintiff s evidence in cross examination.

From the evidence adduced on behalf of the plaintiff this court finds that the plaintiff was hit by the vehicle after he had entered the right side of the road as he was turning into the Zingwangw a road. As such when the vehicle hit him it was not on it. side of the road. The court also finds, from the evidence regarding the skid marks and the extent of the damage to the vehicle, as well as the extent of the injury to the plaintiff, that the vehicle was over-speeding as alleged. This finding is buttressed by the evidence that the driver in fact made an admission to that effect to the police officers who attended to the matter. That the vehicle was not on its side of the road when it hit the plaintiff supports the allegation of negligence.

In the result it is finding of this court that the driver's negligence has been established. The plaintiff is accordingly awarded damages and costs as prayed for.

Pronounced in open court at Blantyre this 29th day of November 2016.

 

______________

R. Mbvundula

JUDGE