Nyirenda and Ors v Kwalala (SCZ Appeal 32 of 1993) [1994] ZMSC 161 (18 January 1994)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 32/1993 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN : 1st Appellant RODGERS NYIRENDA ODONGO ONEKA 2nd Appellant ZAMBIA STATE INSURANCE CORP. LTD 3rd Appellant vs JAMES MWILA KWALALA Respondent Coram: Bweupe D. C. J., Sakala and Chirwa JJ. S at Lusaka on 2nd September 1993 and 18th January 1994. For the Appellant : Mr. M. M. Mundashi, Z. S. I. C Legal Manager For the Respondent: Mr. E. B. Mwansa, E. B. Mwansa Chambers JUDGMENT Chirwa J. S. delivered the judgment of the Court. For clarity in this judgment, the parties will be referred to as they were in the court below, namely Rodgers Nyirenda, Odongo Oneka and Zambia State Insurance Corporation Limited as 1st, 2nd and 3rd defendant respectively and James Mwila Kwalala as the plaintiff. Briefly the facts of the case are that the 2nd defendant was owner of a motor vehicle registration number AAH 3519 and took up an Insurance policy with the 3rd defendant and the type of Policy he took was a third party insurance generally referred to as "Act only" policy issued as required under Part IX of the Roads and Road Traffic Act, Cap. 76b. On 8th October/the 2nd defendant lent his motor vehicle to 1st defendant who whilst driving the said vehicle was involved in a road accident in which he knocked down the plaintiff inflicting him some serious injuries. The plaintiff then brought an action 2...based on - J2 - based on negligence against all the three defendants basing their liability on as regards 1st defendant, driver of the vehicle, the 2nd defendant as owner of the vehicle and the 3rd defendant as the insurer of the vehicle. We note from the record that the 1st and 2nd defendants never entered any appearance and also never served any defence. The defence of the 3rd defendant was that since they were not informed in writing about the accident by the 2nd defendant, they repudiated the insurance contract. In the alternative they limited their liability to KlU,000 as provided for under the Roads and Road Traffic Act and in the Insurance policy. After trial the learned trial judge found that the 1st defendant was negligent in driving the vehicle and entered judgment in favour of the plaintiff against all the defendants, He awarded 1(15,000 for pain and suffering and K25,000 for wounds and other injuries making a total award of K40,00U with interest at 10% from the date of the issuing of the writ up to date of payment. There was no apportionment of these damages according to each defendant's liability. It is against these awards that the 3rd defendant appealed. In arguing this appeal, Mr. Mundashi for the third defendant argued one ground of appeal, namely the extent of liability of the 3rd defendant liability not been denied. He argued that as the issurance cover taken by the 2nd defendant was "Act Only Policy" under Part IX of the Roads and Road Traffic Act, Sections 33 and 37 of the Act apply limiting damages to K10,000 for a one individual and K40,000 for more than one individuals. He argued that since insurance contract,a third party cannot get more than what the insured can get. 3... He submitted - J3 - He submitted that liability of the 3rd defendant should be limited up to K10,000. Mr. Mwansa for the plaintiff submitted that the learned trial judge did not misdirect himself in not apportioning damages as against each defendant. He submitted that the certificate of insurance does not limit the amount to be compensated. We have noted the manner in which the awards were given, all the defendants were jointly liable for both awards without apportioning the awards according to liability. Where there are many tortfeasors each tortfeasor's extent of blame must be determined and it is to that extent that he should suffer in damages. Having found the defendants liable in different capacities, it was a misdirection by the learned trial judge to say "how each defendant contributes to the damages is for them to decide." The learned trial judge had evidence before him which clearly shows the extent of each defendant's liability and he ought to have apportioned the damages accordingly. Coming specifically to the 3rd defendant, its liability arises from an insurance contract and the extent of liability must be governed by the terms of that contract. We note that the policy was issued under Part IX of the Roads and Road Traffic Act and the certificate of insurance specifically states so. This certificate also specifically provides limits of liability to K10,000 in respect of one person killed or injured and K40,000 in respect of any one accident or series of accidents due to or arising out of the occurrence of any one event. The 3rd defendant having been joined in this action because of this insurance contract, their liability must be within the terms of the contract. To this we agree with Mr. Mundashi that the liability of the 3rd defendant must be limited to K10,000 per the insurance contract and Part IX of the Roads and Road Traffic Act. We accordingly allow this appeal in as far as leaves the parties to themselves to determine how much each party is to contribute 4...and in particular - J4 - and in particular we order that the 3rd defendant's liability be limited to K10,000 of the total award. Coats in this court to the 3rd defendant to be agreed in default to be taxed. B. K. BWEUPE DEPUTY CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE D. K CHIRWA SUPREME COURT JUDGE