Jonathan Kirasha v United Assurance Co Ltd - (HCT-00-CC-CS 861 of 2004) [2006] UGCommC 18 (9 May 2006)

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\li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\fs28\insrsid1136281\charrsid12991301 \par }\pard \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid6306542 {\b\f36\fs28\insrsid6306542 THE REPUBLIC OF UGANDA \par \par IN THE HIGH COURT OF UGANDA AT KAMPALA \par (COMMERCIAL }{\b\f36\fs28\insrsid10492078 COURT }{\b\f36\fs28\insrsid6306542 DIVISION) \par \par }{\b\f36\fs28\insrsid10492078 HCT-00-CC-CS-0}{\b\f36\fs28\insrsid6306542 861 OF 2004 \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid6306542 {\b\f36\fs28\insrsid6306542 \par \par JONATHAN KIRASHA ::::::::::::::::::::::::::: PLAINTIFF \par \par }\pard \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid14444513 {\b\f36\fs28\insrsid6306542 VERSUS \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid6306542 {\b\f36\fs28\insrsid6306542 \par UNITED ASSURANCE CO. LTD :::::::::::::::::::: DEFENDANT \par \par \par BEFORE: }{\b\f36\fs28\ul\insrsid6306542\charrsid14444513 THE HONOURABLE MR. JUSTICE YOROKAMU BAMWINE}{\b\f36\fs28\insrsid6306542 \par \par \par }{\b\f36\fs28\ul\insrsid6306542\charrsid14444513 J U D G M E N T: \par }{\b\f36\fs28\insrsid6306542 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid5661075 {\f36\insrsid5661075 The plaintiff\rquote s claim against the defendant is for an indemnity for loss under the defendant\rquote s private car motor policy and the goods in transit insurance policy; interest thereon, general damages and costs of the suit.}{\f36\insrsid6306542 \par }{\f36\insrsid5661075 \par From the evidence, the plaintiff and the defendant executed an agreement of insurance on 19/5/2004 by which the defendant issued a private car policy [No. 010/080/1/000680/2004] and goods-in-t ransit insurance policy [No. 010/062/1/000427/2004] where unto the plaintiff embarked on the payment of the respective premium. The effect of the two policies was that effective the date of the agreement, the defendant}{\f36\insrsid12287587 would indemnify the plaintiff against the loss of or damage to the insured property. The loss or damage covered under the policy included fire, among others.}{\f36\insrsid5661075 \par }{\f36\insrsid12287587 \par The plaintiff\rquote s case is that on 29/6/2004, less than two months into the execution of the agreement, he purchased goods worth Shs.39,500,000- which he }{\f36\insrsid15151657 loade}{\f36\insrsid12287587 d into the insured vehicle. The following day, 1/7/2004, while the vehicle was on its way to Kabale, at a place after Lyantonde Town on the Masaka \endash Mbarara Rd, it is said to have caught fire which burnt the goods to ashes and seri ously damaged the vehicle. \par \par The plaintiff turned to the defendant for indemnification in the terms of the insurance policies but the defendant refused. Hence the suit. }{\f36\insrsid4655880 \par \par }{\f36\insrsid12287587 The defendant\rquote s stated reasons for refusing to indemnify the plaintiff are that: \par a.\tab The plaintiff deliberately misrepresented to the defendant the value of the motor \tab vehicle UAA 463W. \par b.\tab The alleged goods purchased from Joho Enterprises were not in the vehicle UAA \tab 463W at the time of the fire or alternatively and without prejudice to the answer \tab in this paragraph, the defendant deliberately misrepresented the value of the \tab said goods and the amount of the goods lost in fire. \par }{\f36\insrsid14249705 \par The only point of agreement between the parties is the existence of the two insurance policies. The rest is disputed. \par Four issues were framed for determination: \par 1.\tab Whether the plaintiff\rquote s motor vehicle was destroyed as alleged. \par 2.\tab Whether the plaintiff lost the goods as claimed. \par 3.\tab Whether the defendant is liable for the loss and damage occasioned to the \tab plaintiff, if any. \par 4.\tab Whether the plaintiff is entitled to the reliefs claimed. \par \par Counsel: \par Mr. Arinaitwe Tony for the plaintiff. \par Mr. Luswata Joseph for the defendant. \par }{\f36\insrsid1604590 \par Before I delve into the assessment of evidence, I consider it necessary to state the law on proof of claims of this nature. \par \par In law, a fact is said }{\f36\insrsid13977956 to be}{\f36\insrsid1604590 proved when Court is satisfied as to its truth. The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When such party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shi}{\f36\insrsid4655880 ft}{\f36\insrsid1604590 the burden of proof: that is,}{\f36\insrsid8025679 his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption. The standard of proof is on a balance of probabilities. Relating the above to this case, the plaintiff has alleged that his insured vehicle and goods in it were destroyed by fire while the goods were in transit. The burden rests on him to prove those two allegations.}{ \f36\insrsid1604590 \par }{\f36\insrsid8025679 \par First, whether the plaintiff\rquote s motor vehicle was destroyed as alleged. \par \par I have considered the evidence of the plaintiff, PW1 Kirasha. He was the undisputed owner}{\f36\insrsid15994881 of the vehicle in question, UAA 463W, a Toyota Hiace mini-bus. His evidence is that the vehicle caught fi re shortly after Lyantonde Town on 1/7/2004 as he was proceeding to Kabale. His testimony}{\f36\insrsid12587121 is }{\f36\insrsid13977956 that he}{\f36\insrsid12587121 was in his }{\f36\insrsid4655880 P}{\f36\insrsid12587121 ajero and the vehicle in issue was under the stewardship of a driver and a turn boy. That police rushed to the scene and found it burning and upon disclosing to them that it was insured, he was advised to report the matter to the defendant\rquote s branch in Mbarara. Some official of the defendant\rquote s branch in Mbarara is said to have gone back with the plaintiff to the scene of the accident and found the tyres still burning. This unnamed official did not appear as a witness for either party. He would have been a material witness for the defence. PW2 Alex Zoreka was the man behind the steering wheel when the accident occurred. His evidence is that some short distance after Lyantonde town, he saw some smoke coming from the car\rquote s dash board.}{\f36\insrsid6252870 He stopped to check its source. Then he saw fire under the driver\rquote s seat. He tried to put it out but failed. It quickly spread to the goods he was carrying in the vehicle and destroyed them completely. He too said that as he was still there, confused, police men came. They advised him and his boss (who had been driving ahead of them in his pajero and had come back upon getting reports of the fire) to report t he matter to Mbarara police station and they did just that.}{\f36\insrsid8025679 \par }{\f36\insrsid6252870 \par PW3 No. 3345 P. C. Sasya Samuel was }{\f36\insrsid1788020 at }{\f36\insrsid6252870 the time material to this case with Mobile Police Patrol Unit, Mbarara Detach. According to him, around 5 a.m of 1/7/2004, he was on patrol duty at a place p opularly known as Kaguta Road on the Masaka-Mbarara Highway when the vehicle in question stopped at a police check point. They allowed it to continue its journey towards Mbarara. After sometime, they were alerted about a vehicle which had caught fire a short distance ahead of where they were. Police men, including himself, rushed to the scene and found the vehicle burning. The fire was too much. They could not control it. \par \par From the defence evidence, they too do not deny}{\f36\insrsid5131517 destruction of the plaintiff\rquote s vehicle. At the scheduling stage, counsel for the defendant }{\f36\insrsid4655880 had }{\f36\insrsid5131517 intimated to Court that the defence would lead evidence to show that the vehicle was never damaged or burnt by fire. Such evidence was never adduced. Instead, DW1 Mukwana, the defendant\rquote s As sistant Legal Manager in charge of claims, admitted seeing the wreckage of the burnt vehicle. Also, DW4 Bhattacharya, an insurance assessor and loss adjuster}{\f36\insrsid4655880 ,}{\f36\insrsid5131517 said that he traveled to the spot of the accident and found, on the way to Mbarara, a }{\f36\insrsid4655880 wreckage}{\f36\insrsid5131517 of a Toyota Hiace in a burnt condition, lying by the road side.}{\f36\insrsid6252870 \par }{\f36\insrsid4409770 \par I have seen no reason to doubt the above evidence. It is evidence that shows very clearly that the plaintiff\rquote s vehicle was lost in fire. The said fire burnt it and left a }{\f36\insrsid10972222 \lquote }{\f36\insrsid4409770 skeleton}{ \f36\insrsid10972222 \rquote }{\f36\insrsid4409770 of it. It is evidence that renders counsel\rquote s word from the bar that the vehicle was never damaged or burnt as alleged mere gossip. I accept the evidence}{\f36\insrsid14368333 of the witnesses who saw the vehicle on fire and its }{\f36\insrsid10972222 wreckage}{\f36\insrsid14368333 there after. It is evidence}{\f36\insrsid3212188 that proves to the satisfaction of Court that the plaintiff\rquote s vehicle was destroyed as alleged.}{\f36\insrsid4409770 \par }{\f36\insrsid3212188 \par Accordingly, the first issue is answered in the affirmative. \par \par Second, whether the plaintiff lost the goods as claimed. \par \par The plaintiff\rquote s case is that he bought goods worth Shs.39,500,000- from Joho Enterprises in Kampala. He claims that after loading them, they went to the defendant\rquote s head office to show that they had done so. He apparently did this in accordance with the policy requirements. One Sarah, an employee of the defen dant, is said to have come out of office and inspected them. This Sarah did not appear as a witness. I thought }{\f36\insrsid15796798 s}{\f36\insrsid3212188 he would be a material witness for the defence, in as far as the stated loading of the goods is concerned. \par }{\f36\insrsid6293622 \par Be that as it may, PW2 Alex Zoreka, the driver of the ill}{\f36\insrsid1137458 -}{\f36\insrsid6293622 fated vehicle, testified that }{\f36\insrsid13379865 6 boxes of goods were loaded into the vehicle and that they were destroyed by the fire which gutted it. PW5 Hope Mwesigye states that she sold merchandize worth Shs.39,500,000- to the plaintiff, as ind icated in P. Exh. IV, a receipt dated 29/6/2004 from Joho Enterprises. Some defence witnesses claimed that when they asked her to produce the receipt book from which P. Exh. IV was extracted, she failed to do so. However, she produced the same at the he aring.}{\f36\insrsid6293622 \par }{\f36\insrsid13379865 \par PW3, the police officer who rushed to the scene of the accident after getting a report about the fire said that by the time he arrived with his colleagues, the whole vehicle had been engulfed by fire and that none of its cargo could be saved. There is evidence that PW1 Kirasha made an attempt to brave the fire but he was advised against it. PW3 had earlier on seen boxes in its hold at the police check point. As I have already said, the defence case is that no such goods were in the vehicle or if they were there, the value is overstated. Their argument is not based on any account of an eye-witness who may have }{\f36\insrsid221031 s}{\f36\insrsid13379865 een an empty vehicle or empty boxes at the time of the accident or anywhere else but on the feeling that}{\f36\insrsid10373283 if the vehicle truly carried, as c laimed, trousers, shoes, etc they would have expected to see things like zippers, buttons and remains of rubber products. The argument appears attractive at face value. However, it does not address a number of issues:}{\f36\insrsid13379865 \par }{\f36\insrsid3410974 1.\tab We are considering the possible impact of petrol fire on substances like the ones \tab in question. }{\f36\insrsid11337965 Petrol fire}{\f36\insrsid3410974 cannot in my view be treated at the same level as wood }{ \f36\insrsid11337965 \tab }{\f36\insrsid3410974 or grass fire. The }{\f36\insrsid11337965 defendant\rquote s concerns do}{\f36\insrsid3410974 not address this fact. \par 2.\tab The accident occurred on 1/7/2004. A report was immediately made to the }{\f36\insrsid1063592 \tab }{\f36\insrsid3410974 defendant. PW4 Bhattacharya went to Lyantonde on 25/7/2004, a cool 24 days }{\f36\insrsid1063592 \tab }{\f36\insrsid3410974 after \tab the event to inspect the vehicle and }{\f36\insrsid11337965 its }{\f36\insrsid3410974 declared cargo. There is no }{\f36\insrsid11337965 \tab }{\f36\insrsid3410974 evidence of any attempt to cordon off the area against any possible interference }{\f36\insrsid11337965 \tab }{\f36\insrsid3410974 with the scene. No explanation has been offered}{\f36\insrsid2243810 for this inordinate and }{\f36\insrsid11337965 \tab } {\f36\insrsid2243810 inexcusable}{\f36\insrsid11337965 }{\f36\insrsid2243810 delay.}{\f36\insrsid3410974 \par }{\f36\insrsid2243810 3.\tab The plaintiff and his driver (PW2) stated, and I have already accepted that \tab evidence that on the very day of the accident they went to Mbarara and reported \tab the matter to the defendant\rquote s branch office there.}{ \f36\insrsid1967532 Their evidence is further that \tab they went back to the scene of the accident with someone from that office. \tab There was no attempt on the part of the defendant to disprove that fact. }{\f36\insrsid13977956 Now if \tab any one went to the scene of the accident soon after its occurrence, that\rquote s the }{\f36\insrsid12655973 \tab }{\f36\insrsid13977956 person who should assert most positively that there }{\f36\insrsid4662753 were }{\f36\insrsid13977956 no goods in the }{\f36\insrsid6366157 \tab }{\f36\insrsid13977956 vehicle. }{\f36\insrsid1967532 His \tab evidence}{\f36\insrsid15477862 would be based on what he/she saw soon after the event. }{\f36\insrsid6366157 \tab }{\f36\insrsid15477862 In the }{ \f36\insrsid159646 \tab }{\f36\insrsid15477862 instant case, no such evidence has been led by the defence. Court does }{\f36\insrsid6366157 \tab }{\f36\insrsid15477862 not know what the findings of that would be witness were. There is a }{ \f36\insrsid6366157 \tab }{\f36\insrsid15477862 possibility that if he came to Court, he would say that he saw what}{\f36\insrsid159646 the plaintiff is }{\f36\insrsid6366157 \tab }{\f36\insrsid159646 alleging in this}{\f36\insrsid6366157 }{ \f36\insrsid159646 case. I make that inference.}{\f36\insrsid2243810 \par }{\f36\insrsid13852689 4.\tab The defendant\rquote s own witness, DW1 Mukwana, stated that if they had collected \tab ash from the scene of the accident and had sent it to some experts in Nairobi or \tab South Africa they would perhaps have ascertained the components of the ash. \tab DW1\rquote s evidence is that ash was actually collected by one Bhattacharya. He \tab (DW1) says: \par }\pard \qj \li720\ri720\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin720\itap0\pararsid12655973 {\i\f36\insrsid13852689\charrsid12655973 \'93 He stayed with it and has it to-date. He consulted us and wanted to know whether to send it to South Africa or Nairobi. The committee disregarded the idea of its examination because its source could perhaps be disputed.\'94 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid5661075 {\f36\insrsid13852689 \par In short, the defence evidence is that the defendant got the ash alright but did not consider it necessary to subject it to some forensic tests. In fact, according to Bhattacharya, DW4, he collected a small amount of b lack powder. He was to get it tested to find out whether it was connected to textiles, rubber, etc. While Mukwana says that the committee disregarded the idea because perhaps the plaintiff would dispute the findings, Bhattacharya claims that he failed t o have the tests done because of lack of testing facilities. He does not say why the idea of sending samples to Nairobi or South Africa, which in my view was a noble one, was abandoned. This apparent contradiction in the defence case has caused me consid erable discomfort. When all the evidence is considered together, one gets the impression that the claim was for}{\f36\insrsid10221 unknown reasons casually and negligently investigated by the defendant. Accordingly, the plaintiff}{\f36\insrsid8651866 \rquote s}{\f36\insrsid10221 evidence that he purchased goods on 29/6/2 004; that he loaded them into motor vehicle No. UAA 463W; and that the following day the goods were lost in an inferno of fire at a place after Lyantonde Town, has not been controverted. I accept that evidence and answer the 2}{ \f36\super\insrsid10221\charrsid10221 nd}{\f36\insrsid10221 issue in the affirmative.}{\f36\insrsid13852689 \par }{\f36\insrsid8277631 \par Third, whether the Defendant is liable for the loss and damage that was occasioned. The answer in my view lies in the two policies themselves. From the evidence, the parties agreed that the defendant would indemnify the plaintiff against loss or damage to the motor vehicle and its accessories and spare parts whilst thereon. The defendant also agreed to indemnify the plaintiff against loss of property that would be destroyed by fire while that property was in transit in the insured vehicle. In other wo rds, transportation of such goods as were destroyed in this case was the insured risk. \par \par For the defendant to be liable, the plaintiff has to prove that the insured property was burnt by fire and that as a result the plaintiff has suffered loss or damage covered under the 2 policies. In my view, the plaintiff has discharged that burden.}{ \f36\insrsid1010243 There is no evidence that he willfully caused that fire. The defence witnesses were of the view }{\f36\insrsid13977956 that}{\f36\insrsid1010243 the cause of fire could not be attributed to any particular person. I agree.}{ \f36\insrsid8277631 \par }{\f36\insrsid1010243 \par On the whole, Court is satisfied that the fire was accidental rather than intended. The careless manner in which the defendant handled the investigations should not be a ground to deny the plaintiff the benefits accruing to him under the two polic ies. I accordingly hold as I must that the defendant is liable for the loss and damage occasioned to the plaintiff. \par \par Fourth, whether the plaintiff is entitled to the reliefs claimed. \par \par He has prayed for: \par i.\tab a declaration that the defendant is liable to indemnify the plaintiff. I have \tab already said so. For the avoidance of the doubts, it is so declared. \par }{\f36\insrsid13702675 ii.\tab indemnity in the sum of Shs.15,000,000- accruing from the motor vehicle policy. \tab His action is based on the information that he paid Shs.15m for the vehicle. He \tab had spent a year with it when the accident occurred. The defendant disputes \tab the value. It argues that the plaintiff misstated its value at the time of entering \tab into the insurance agreement. I have been baffled by this argument. There is \tab no evidence that he was asked to verify the purchase price before the deal was \tab concluded and that he failed to }{\f36\insrsid12276299 do }{\f36\insrsid13702675 so}{\f36\insrsid16529942 .}{\f36\insrsid13702675 \par }{\f36\insrsid16529942 \par }{\f36\insrsid16453558 \tab }{\f36\insrsid16529942 A similar argument arose in }{\f36\ul\insrsid16529942 SPAN INTERNATIONAL LTD \endash VS- NATIONAL }{\f36\insrsid16453558\charrsid16453558 \tab }{\f36\ul\insrsid16529942 INSURANCE CORPORATION HCCS NO. 29 OF 1999. }{\f36\insrsid16529942 The case is reported in }{\f36\insrsid16453558 \tab }{\f36\ul\insrsid16529942\charrsid16529942 [1997 \endash 2000]}{\f36\ul\insrsid16529942 UCLR 404. }{\f36\insrsid16529942 \par }{\f36\insrsid2508510 \par }{\f36\insrsid16453558 \tab }{\f36\insrsid2508510 Like in the instant case, the parties had entered into a contract of insurance. }{\f36\insrsid16453558 \tab }{\f36\insrsid2508510 The insurable property was some printing machinery. The same was insured }{\f36\insrsid16453558 \tab }{\f36\insrsid2508510 against fire for Shs.95m. The plaintiff paid a premium of Shs.191.000- and }{\f36\insrsid16453558 \tab }{\f36\insrsid2508510 shortly thereafter the machines burn}{\f36\insrsid12276299 t}{ \f36\insrsid2508510 down. The plaintiff lodged an indemnity }{\f36\insrsid16453558 \tab }{\f36\insrsid2508510 claim which the defendant rejected. \par \par }{\f36\insrsid16453558 \tab }{\f36\insrsid2508510 The Court found that the plaintiff had not withheld any information from the }{\f36\insrsid16453558 \tab }{\f36\insrsid2508510 defendant which was required before the issuance of the policy and awarded him }{\f36\insrsid6373750 }{\f36\insrsid16453558 \tab }{\f36\insrsid6373750 the amount claimed. The matter went on appeal vi}{\f36\insrsid12276299 d}{\f36\insrsid6373750 e }{\f36\ul\insrsid6373750 NATIONAL INSURANCE }{\f36\insrsid16453558\charrsid16453558 \tab }{\f36\ul\insrsid6373750 CORP. \endash VS- SPAN INTERNATIONAL LTD CACA NO. 13 OF 2002}{\f36\insrsid6373750 (also reported }{\f36\insrsid16453558 \tab }{\f36\ul\insrsid6373750 [1997-2001] UCLR 100)}{\f36\insrsid2508510 \par }{\f36\insrsid6373750 \par }{\f36\insrsid15028798 \tab }{\f36\insrsid6373750 The appellate Court, wh}{\f36\insrsid7228545 ile}{\f36\insrsid6373750 upholding the decision of the lower Court, held that }{\f36\insrsid15028798 \tab }{\f36\insrsid6373750 as the plaintiff/respondent had given the information as he knew it and the }{\f36\insrsid15028798 \tab }{\f36\insrsid6373750 defendant had not }{\f36\insrsid5922589 in}{\f36\insrsid6373750 quired from him as to details of purchase price, model, the }{ \f36\insrsid15028798 \tab }{\f36\insrsid6373750 vendor, customs papers, etc before issuing the policy, the presumption was that }{\f36\insrsid15028798 \tab }{\f36\insrsid6373750 the appellant/defendant was satisfied with the machines}{ \f36\insrsid15027311 and the values being }{\f36\insrsid15028798 \tab }{\f36\insrsid15027311 insured before it issued the policy. The appeal was therefore dismissed save for }{\f36\insrsid15028798 \tab }{\f36\insrsid15027311 the adjustments the appellate Court made on some awards.}{\f36\insrsid6373750 \par }{\f36\insrsid15027311 \par }{\f36\insrsid15028798 \tab }{\f36\insrsid15027311 What the learned trial judge had said about NIC is relevant to the instant case. }{\f36\insrsid15028798 \tab }{\f36\insrsid15027311 He said: \par }\pard \qj \li720\ri720\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin720\lin720\itap0\pararsid15028798 {\i\f36\insrsid15027311\charrsid15028798 \'93It is my view that the }{\i\f36\insrsid2574715\charrsid15028798 careless manner in which the defendant handled the sale of the policy and investigations of the fire should not be blamed on the plaintiff, who insured a value, claimed a valu e and did so after doing what was in his ability without any suggestion of fraud. I have not seen any material concealment or non-disclosure at the time that was material to the issuance of the policy.\'94}{\i\f36\insrsid15027311\charrsid15028798 \par }\pard \qj \li0\ri0\sl480\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid5661075 {\f36\insrsid15028798 \tab }{\f36\insrsid5338492 I find the facts, the circumstances and the findings of the Court in that case }{ \f36\insrsid15028798 \tab }{\f36\insrsid5338492 similar to the instant one. I have therefore seen no reason to depart from the }{\f36\insrsid15028798 \tab }{\f36\insrsid5338492 principle therein. \par \par }{\f36\insrsid15028798 \tab }{\f36\insrsid5338492 In the instant case, the plaintiff says he paid Shs.15,000,000- for the vehicle in }{\f36\insrsid15028798 \tab }{\f36\insrsid5338492 2003. He has produced a sale agreement t o that effect, P. Exh. V. He bought it }{\f36\insrsid15028798 \tab }{\f36\insrsid5338492 as a used vehicle. \par }{\f36\insrsid11534907 \par }{\f36\insrsid15028798 \tab }{\f36\insrsid11534907 DW2 Lubowa, a valuer of sorts, estimated its value at Shs.4,650,000- at the time }{\f36\insrsid15028798 \tab }{\f36\insrsid11534907 of the accident. It is significant to note that the plaintiff was never asked to }{\f36\insrsid15028798 \tab }{\f36\insrsid11534907 have it valued before the deal was conclude}{\f36\insrsid5922589 d}{\f36\insrsid11534907 . DW2 says he carried out a market }{\f36\insrsid15028798 \tab }{\f36\insrsid11534907 survey of similar vehicles }{\f36\insrsid5922589 in }{\f36\insrsid11534907 bonded warehouses and took into account the fact }{\f36\insrsid12091373 \tab }{ \f36\insrsid11534907 that}{\f36\insrsid12091373 }{\f36\insrsid11534907 the vehicle had been on the road for seven (7) years. \par \par }{\f36\insrsid15028798 \tab }{\f36\insrsid11534907 DW4 Bhattacharya puts its value at a miserable Shs.2.5m. As between}{\f36\insrsid13204214 DW2 and }{\f36\insrsid15028798 \tab }{\f36\insrsid13204214 DW4, I think the former did a better job. His report appears to be more }{\f36\insrsid15028798 \tab }{\f36\insrsid13204214 researched. Even then it is an estimate, }{\f36\insrsid620906 a rough estimate}{\f36\insrsid13204214 so to say.}{ \f36\insrsid11534907 \par }{\f36\insrsid13204214 \par }{\f36\insrsid15028798 \tab }{\f36\insrsid13204214 In }{\f36\ul\insrsid13204214\charrsid620906 Tumushime Benon \endash Vs- Kiwanuka Robert HCCS No. 494/2001}{\f36\insrsid13204214 (unreported), }{\f36\insrsid15028798 \tab }{\f36\insrsid13204214 the plaintiff had paid Shs.8,700,000- for a similar mini-bus. He had used it for 4 }{\f36\insrsid15028798 \tab }{\f36\insrsid13204214 months when it got involved in an accident. Court accepted that figure of }{\f36\insrsid15028798 \tab }{ \f36\insrsid13204214 Shs.8,700,000- for a vehicle that was 14 years old, twice as old as the instant }{\f36\insrsid15028798 \tab }{\f36\insrsid13204214 one. After assessing the scrap value and the attendant depreciation, Court }{\f36\insrsid15028798 \tab }{\f36\insrsid13204214 awarded the plaintiff a sum of Shs.5,440,000-.}{\f36\insrsid14710344 }{\f36\insrsid13204214 \par }{\f36\insrsid14710344 \par }{\f36\insrsid15028798 \tab }{\f36\insrsid14710344 In the instant case, Court is satisfied that the plaintiff paid Shs.15m to PW4 }{\f36\insrsid15028798 \tab }{\f36\insrsid14710344 Yusuf Mawanda. Considering its year of manufacture, 1991, I would apply a }{\f36\insrsid15028798 \tab }{\f36\insrsid14710344 factor of 45% to the purchase price. This makes it Shs.8,250,000- (that is, }{\f36\insrsid15028798 \tab }{\f36\insrsid14710344 Shs.15,000,000- 6,750,000-). I would subject the }{\f36\insrsid9124477 figure to another 10% policy }{\f36\insrsid15028798 \tab }{\f36\insrsid9124477 excess in accordance with the policy agreement and come up with a figure of }{\f36\insrsid15028798 \tab }{\f36\insrsid9124477 Shs.7,425,000- (that is, Shs.8,250,000 \endash 825,000). I would award that much, }{\f36\insrsid15028798 \tab }{\f36\insrsid9124477 that is, Shs.7,425,000- to the plaintiff as the value of the vehicle. I do so.}{ \f36\insrsid14710344 \par }{\f36\insrsid539106 iii.\tab indemnity in the sum of Shs.39,500,000- accruing from the goods in transit \tab \par \tab policy. \par \par \tab He has proved that his goods were worth Shs.39,500,000-. Unlike the vehicle \tab which he had used for over a year, he had just bought those goods.}{\f36\insrsid6443876 The parties \tab had agreed that the insured shall bear the first 10% of all claims lodged against \tab the defendant resulting from accidental damage. The 10% policy excess reduces \tab the amount claimable under this head to Shs.35,550,000-. I have seen no \tab reason to deny him this amount. It is contractual. I accordingly decree it to \tab him.}{\f36\insrsid539106 \par }{\f36\insrsid808528 iv.\tab refund of Shs.50,000- being the cost of police accident report and the scene of \tab accident sketch plan. \par }{\f36\insrsid12344495 \tab Court is satisfied that he paid it. However, he was obliged to obtain it at his own \tab cost whether the case ended up in Court or not. In other words, it is the basis \tab for his claim against the defendant for whic h he has been decreed damages. \tab Court is inclined to make no order as to its refund given the compensation he will \tab get for the claim under the policies. I order so. \par }{\f36\insrsid614047 v.\tab interest at 20% p.a on (ii) and (iii) above from the date of filing the suit till \tab payment in full.}{\f36\insrsid16078932 The usual practice is that interest, if it is not part of the contract \tab terms, is a discretionary remedy. The general rule is that interest can only be \tab claimed if the claim is based on an agreement for it in the document sued on or \tab by statute. The basis of an award of interest is that the defendant has kept the \tab plaintiff out of his money; and the defendant has had the use of it himself; so he \tab ought to compensate him accordingly.}{\f36\insrsid614047 \par }{\f36\insrsid14430480 \par \tab In the instant case the plaintiff appears to have just paid the initial instalment of \tab the premium when the accident occurred. He knew or ought to have known that \tab both claims were reduceable by a factor of 10% in accordance with the policy \tab agreement but he has insisted on being paid Shs.15,000,000- and \tab Shs.39,500,000- respectively. His suit includes a prayer for general damages. \tab The principle descernable from available authorities on this point shows that \tab where a person is entitled to a liquidated amount and has been deprived of it \tab through the wrongful act of another person, he should be awarded interest from \tab the date of filing the suit}{\f36\insrsid13920229 . }{\f36\insrsid12091373 }{ \f36\insrsid13920229 W}{\f36\insrsid12091373 here, however, damages have to be assessed by \tab Court, the right to them does not arise until they are assessed. In such event, \tab interest is only given from the date of judgment. In the instant suit, the \tab }{\f36\insrsid16531044 compensation claimed by the plaintiff is contractual. It arose out }{\f36\insrsid12091373 \tab }{\f36\insrsid16531044 of}{\f36\insrsid11682150 }{\f36\insrsid16531044 the }{ \f36\insrsid11682150 \tab }{\f36\insrsid16531044 policies he had with the defendant. }{\f36\insrsid15091410 However, there are damages which \tab have }{\f36\insrsid11682150 \tab }{\f36\insrsid15091410 been claimed and had to be assessed. From the evidence, I\rquote m unable to \tab hold }{\f36\insrsid11682150 \tab }{\f36\insrsid15091410 that the benefits were }{\f36\insrsid16531044 unjustifiably }{\f36\insrsid15091410 withheld from}{ \f36\insrsid16531044 the date of the accident. }{\f36\insrsid11274551 \tab }{\f36\insrsid11492750 The defendant had to satisfy itself that any payment would be in accordance \tab with the contract terms. The claims were not in consonance with the policy \tab terms. }{\f36\insrsid16531044 I }{\f36\insrsid3556659 would }{\f36\insrsid16531044 award interest on the special damages to the plaintiff at the rate }{\f36\insrsid3556659 \tab }{\f36\insrsid16531044 of 20% per annum }{\f36\insrsid4742104 but }{\f36\insrsid16531044 from the date of }{\f36\insrsid4742104 judgment }{\f36\insrsid16531044 till payment in full.}{\f36\insrsid14430480 \par }{\f36\insrsid4351641 vi.\tab General damages. \par \tab These are not easily quantifiable in money terms. They are never specified in \tab the claim; instead Court decides how much the injured person deserves in \tab compensation for his pain and suffering, which the Court assumes the plaintiff \tab did sustain. \par }{\f36\insrsid1452184 \par \tab In the instant case, the plaintiff suffered no physical injury in the accident. He \tab was not in the ill-fated vehicle. In any case, the defendant was not in any way \tab responsible for the misfortune that befell him. He has been compensated for the \tab loss he suffered in accordance with the insurance policies. Whatever else he has \tab suffered is atonable by an award of costs. The }{\f36\insrsid10356734 reluctance to process payment \tab resulted from the plaintiff\rquote s own exaggerated claims}{\f36\insrsid1452184 . I have therefore not found }{\f36\insrsid10356734 \tab }{\f36\insrsid1452184 the case to be a proper one for an award of general damages. I award none. \par }{\f36\insrsid87185 vii.\tab Costs of the suit. \par \tab The plaintiff has no doubt incurred costs in espousing his claim against the }{\f36\insrsid15010319 \tab }{\f36\insrsid87185 defendant, whether the defendant had a reason to reject the claims or not. I }{\f36\insrsid15010319 \tab }{ \f36\insrsid87185 therefore see no good reason to deny him the costs of the suit. However, the }{\f36\insrsid15010319 \tab }{\f36\insrsid87185 assessment of the claims has achieved partial success for the defendant on the }{\f36\insrsid15010319 \tab }{ \f36\insrsid87185 issue}{\f36\insrsid15010319 of damages. I assess the success at }{\f36\insrsid15478430 3}{\f36\insrsid15010319 0%. I would therefore award \tab }{\f36\insrsid15478430 7}{\f36\insrsid15010319 0% }{\f36\insrsid15478430 \tab }{ \f36\insrsid15010319 of the costs of the suit to the plaintiff and I do so.}{\f36\insrsid87185 \par }{\f36\insrsid15010319 \par \tab The same shall attract interest at Court rate per annum from the date of taxation \tab till payment in full. \par }{\f36\insrsid3283130 \par Before I take final leave of this case, I consider it necessary to comment on the defendant\rquote s apparent expeditions to other insurance companies in a bid to justify its argument that the plaintiff could be a fraudster. }{\f36\insrsid10693808 De fendant was entitled to }{\f36\insrsid15870665 i}{\f36\insrsid10693808 t}{\f36\insrsid15870665 s}{\f36\insrsid10693808 opinion}{\f36\insrsid3283130 . However, one such company, Jubilee Insurance, has confirmed that another of the plaintiff\rquote s vehicles got burnt almost in similar circumstances. So what?}{\f36\insrsid8266506 This issue of similar fact evidence was never pleaded by the defendant in its WSD to raise inference that it may have been the reason to reject the plaintiff\rquote s claims. Even then, Jubilee Insurance has confirmed to Court that the plaintiff\rquote s claim to them was genuine. The plaintiff is a transporter. The business of transportation involves accident risks. Insurance Companies exist basically for such business risks. In these circumstances, I did not consider it strange that he had moved from Jubilee Insurance to the defendant. The accident happened in the morning. Many people witnessed it. If the defendant had exercised due diligence in its investigations, it would not have been difficult to verify the plaintiff\rquote s claims in time. In view of all this, I did not consider the defendant\rquote s search for similar fact evidence principled or justifiable. It was in my view an afterthought and a disguised cover up of the defendant\rquote s officials\rquote negligence in investigating the claim. For this reason, I decided to treat this point as a peripheral one, only fit for an obiter dictum.}{\f36\insrsid3283130 \par }{\f36\insrsid6047337 \par For reasons stated above, Judgment is entered for the plaintiff. In addition to the declaration that the defendant is liable to indemnify the plaintiff, I make the following orders: \par i.\tab Special damages in respect of the destroyed motor vehicle: Shs.7,425,000- \tab (seven million four hundred twenty five thousand only). \par }{\f36\insrsid9966187 ii.\tab Special damages in respect of the goods destroyed in transit: Shs.35,550,000- \tab (thirty five million five hundred fifty thousand only). \par iii.\tab Interest on (i) and (ii) put together at the rate of 20% per annum from the date \tab of }{\f36\insrsid11618057 judgment}{\f36\insrsid9966187 till payment in full. \par }{\f36\insrsid14444513 iv.\tab }{\f36\insrsid11618057 7}{\f36\insrsid14444513 0% of the plaintiff\rquote s taxed costs. \par v.\tab Interest on (iv) above at Court rate per annum from the date of taxation till \tab payment in full. \par It is ordered accordingly. \par \par \par }{\b\f36\insrsid14444513\charrsid14444513 Yorokamu Bamwine \par J U D G E \par 1}{\b\f36\insrsid11618057 0}{\b\f36\insrsid14444513\charrsid14444513 /05/2006}{\b\f36\insrsid14444513 \par }{\b\f36\insrsid3024314 \par }{\b\f36\insrsid3024314\charrsid8942989 \par }}