Masilo v Lesotho National Insurance Company (Pty) Ltd and Another; Motaung v Lesotho National Insurance Company (Pty) Ltd (CIV/T/427/86; CIV/T/551/86) [1990] LSCA 58 (28 February 1990)

C I V / T / 4 2 7 / 86 C I V / T / 5 5 1 / 86 IN T HE H I GH C O U RT OF L E S O T HO In t he M a t t er of : M O O K HO M A S I LO Plaintiff and LESOTHO NATIONAL INSURANCE C O M P A NY (PTY) Ltd T. PAKALITHA .. 1st Defendant 2nd Defendant L Y D IA M O T A U NG ...... P l a i n t i ff and LESOTHO NATIONAL INSURANCE COMPANY ... (PTY) Ltd Defendant J U D G M E NT Delivered by t he H o n. M r. Justice B. K. Molai on t he 28th d ay of February, 1 9 9 0. The parties h a ve agreed on t he c o n s o l i d a t i on of t he t wo a c t i o ns in w h i ch Plaintiffs s ue defendants for d a m a g e s. T he d e c l a r a t i o ns to t he summons h a ve alleged that t he P l a i n t i f f s' h u s b a n ds died in a c o l l i s i on b e t w e en t wo vehicles v i z. A1511 and D 1 0 26 d r i v en by T. Pakalitha and Tebello M o f o lo (now d e c e a s e d ) , r e s p e c t i v e l y. T he d r i v e r s' n e g l i g e nt driving of t he t wo vehicles w h i ch w e r e, at t he material t i m e, insured by t he Lesotho National Insurance C o m p a n y, w as t he c a u se of t he fatal a c c i d e n t s. As a result of t he a c c i d e n ts t he P l a i n t i f fs suffered d a m a g es f or 2/ w h i ch t he -2- w h i ch t he d e f e n d a n ts w e r e, in law, l i a b l e. C o n s e q u e n t ly t he P l a i n t i f fs sued t he d e f e n d a n ts for d a m a g es in t he a m o u n ts claimed in t he s u m m o n s. The d e f e n d a n ts intimated t h e ir intentions to defend t he a c t i o n s. In t h e ir pleas to t he d e c l a r a t i o ns to t he summons t he d e f e n d a n ts in C I V / T / 4 2 7 / 86 denied that T. Pakalitha w a s, at t he material t i m e, driving vehicle A 1 5 1 1. T he accident could n o t, t h e r e f o r e, h a ve o c c u r r ed as a r e s u lt of his n e g l i g e nt d r i v i n g. L i k e w i se t he defendant c o m p a ny in C I V / T / 5 5 1 / 86 pleaded t h at t he a c c i d e nt w as not t he result of t he n e g l i g e nt d r i v i ng of t he d r i v er of v e h i c le D 1026. In a d d i t i on t he d e f e n d a nt c o m p a ny raised a special plea of p r e s c r i p t i on in t h at t he MV1 13 Claim Form w as r e c e i v ed at its o f f i c es m o re t h an t wo (2) y e a rs after t he death of t he d e c e a s e d, and t he summons w as served or received on 6th A u g u s t, 1986, "more than t wo y e a rs and 60 d a ys after t he date of t he o c c u r r e n c e, as r e q u i r ed by Section 16 of t he Lesotho M o t or Vehicle insurance O r d e r ." The d e f e n d a n t s, t h e r e f o r e, d e n i ed t h at they w e re liable in damages to t he P l a i n t i f fs in t he a m o u n ts claimed in t he s u m m o n s es or at a l l. It is not really d i s p u t ed t h at on 5th J u n e, 1984 a c o l l i s i on o c c u r r ed between vehicles D.1026 and A 1511 next to t he v i l l a ge of Khubetsoana along t he m a in N o r th 1 public road here in M a s e r u. 3/ What is -3- W h at is d i s p u t ed is t he e x a ct d a te in June 1984. A c c o r d i ng to t he p l e a d i n gs in C I V / T / 4 2 7 / 86 t he c o l l i s i on o c c u r r ed on 5th June. 1984. This is, h o w e v e r, c o n t r a ry to t he d e c l a r a t i on to t he summons in C I V / T / 5 5 1 / 86 a c c o r d i ng to w h i ch t he c o l l i s on o c c u r r ed on 6th J u n e, 1984. M a l e f e t s a ne Moeketsi t e s t i f i ed as P. W.3 and t o ld t he court t h at on t he day of t he c o l l i s i on he and t he d r i v er of v e h i c le D1026 w e re returning from Ladybrand in t he Republic of South A f r i c a. A c c o r d i ng to his p a s s p o r t, he had crossed t he b o a r d er p o st on 5th J u n e, 1984. He could n o t, h o w e v e r, p r o d u ce t he p a s s p o rt to support, him in t h at regard. T. P a k a l i t h a, t he second defendant in C I V / T / 4 2 7 / 86 also testified as P. W. I and told t he court t h at on t he day in q u e s t i on he he was t r a v e l l i ng in v e h i c le A1511 which w as involved in t he collision Although he no longer r e m e m b e r ed t he e x a ct m o n th in 1 9 8 4, P. W.1 was p o s i t i ve t h at it was on t he 6th of t he m o n t h. T he e v i d e n ce of P. W. I w a s, in a w a y, c o r r o b o r a t ed by that of Tper M o h a l e, t he Traffic p o l i ce o f f i c er w ho t e s t i f i ed as P. W.2 and t o ld t he c o u rt that it was at about 6 p.m. on 6th June 1984 when he received a report following which he proceeded to t he s c e ne of a c c i d e nt at Khubetsoana w h e re he found t he t wo v e h i c l e s, D1026 and A1511 involved in a road a c c i d e n t. I am inclined to accept P. W.2's e v i d e n ce w h i ch i s, in a way c o r r o b o r a t ed by t h at of P. W.1 t h at t he accident o c c u r r ed on 6th and not, 5th J u n e, 1984, Be t h at as it m a y, it is c o m m on c a u se that V e h i c le D1026 was at t he material t i m e, d r i v en by Tebello M o f o l o, t he husband of the p l a i n t i ff in C I V / T / 4 2 7 / 8 6, A l t h o u gh in her p l e a d i n gs to t he summons 4/ t he p l a i n t i ff -4- the plaintiff in CIV/T/427/86 alleged that vehicle A1511 was driven by the second defendant, T, Pakalitha, that was inconsistent with the pleadings in CIV/T/551/86 and the evidence of the second defendant according to whom the vehicle was driven by Andries Motaung, the husband of the Plaintiff in the latter case (CIV/T/551/86). It is significant that no evidence was adduced in support of the allegation of the Plaintiff in CIV/427/86 that the second defendant w a s, at the material time, the driver of vehicle A1511 nor was she present when the accident occurred. As it has already been stated the second defendant testified on oath and told the court that he was a passenger in vehicle A 1511 at the time of the accident in which the driver, Andries Motaung was killed. In the absence of any evidence supporting the allegation of Plaintiff in CIV/T/427/86 that the second defendant w a s, at the time of the accident, the driver of vehicle A1511, I have no alternative but to find that the truth is in the undisputed evidence of the second defendant that the vehicle was driven by Andries Motaung and not himself. Assuming the correctness of my finding that Andries Motaung and not the second defendant w a s, at the time of the accident, the driver of vehicle A1511, it stands to reason that the accident could not have been caused by the negligent driving of the second defendant. it necessarily follows that the claim of the plaintiff in CIV/T/427/86 cannot succeed. Even if I were wrong and it is held that the second defendant was the driver of vehicle A1511 which was admittedly insured with the first defendant, it seems to me that in terms of the provisions of S.16 of the Motor Vehicle Insurance Order 1972 only t he first and not the second defendant ought to have been sued in this proceedings. On that ground the claim against the second defendant in CIV/T/427/GS could not stand. 5/As it has been -5- As it has been stated,in his e v i d e n ce P. W.3, M a l e f e t s a ne M o e k e t s i, t o ld t he c o u rt t h at he w as a p a s s e n g er in v e h i c le D 1 0 26 w h i ch w as b e i ng driven by t he late T e b e l lo M o f o l o. W h en they w e re next to t he village of Khubetsoana t r a v e l l i ng in t he d i r e c t i on from M a s e ru to T. Y. along t he m a in North 1 p u b l ic road he noticed a v e h i c le w h i ch w as g o i ng in t he o p p o s i te d i r e c t i on o v e r t a k i ng a c o a s t e r. In so doing that v e h i c le c a me into v e h i c le 01026's c o r r e ct lane of t he road. He was blinded by t he h e a d l i g h ts of that o t h er v e h i c le and t he next t h i ng he found h i m s e lf at Q u e en Elizabeth II h o s p i t a l. He w as p o s i t i ve t h at t he a c c i d e nt had o c c u r r ed on t he left lane of t he road as o ne t r a v e l l ed in t he d i r e c t i on from M a s e ru to T. Y. The e v i d e n ce of T. Pakalitha w ho t e s t i f i ed as P. W.1 w a s. H o w e v e r, s l i g h t ly d i f f e r e n t. A c c o r d i ng to h im he a nd A n d r i es M o t a u no w e r e, on t he e v e n i ng of t he day in q u e s t i o n, coming to Maseru from T. Y. He was a p a s s e n g er in v e h i c le A1511 which w as being d r i v en by t he late M o t a u n g. As t h ey passed next to t he v i l l a ge of Khubetsoana along t he m a in North 1 p u b l ic road t h e re was a n u m b er of vehicles going in t he o p p o s i te d i r e c t i o n. He t h en noticed o ne of t h o se vehicles o v e r t a k i ng several v e h i c l e s. On h is a d v i c e, A n d r i es M o t a u ng swerved o u t s i de t he t a r r ed s u r f a ce and stopped on t he left gravel p o r t i on of the road as o ne t r a v e l l ed in t he d i r e c t i on t o w a r ds M a s e r u. The v e h i c le w h i ch had been o v e r t a k i ng o t h er vehicles going in t he o p p o s i te direction. c a me and c o l l i d ed w i th v e h i c le A1511 w h i ch w as s t a t i o n a ry on t he g r a v e, portion of t he road. He and M o t a u ng s u s t a i n ed injuries and had to he assistated o ut of t h e ir vehicle to Queen Elizabeth II hospital where he learned t h at t he latter had passed a w a y. As t he o t h er v e h i c le had c o l l i d ed w i th v e h i c le A1511 w h i ch w as s t a t i o n e ry on its c o r r e ct side of t he road P. W.1 c o n t e n d e d, t h e r e f o r e, that t he accident was t he r e s u lt of t he n e g l i g e nt d r i v i ng of t h at o t h er v e h i c l e. 6/ In his -6- In his testimony P. W.2, Tper Mohale, told the court that he was attached to the Traffic section of the Police force and stationed here in Maseru. As it has already been pointed out earlier, he testified that at about 6.p.m. on 6th June, 1984 he received a report following which he proceeded to a spot next to the village of Khubetsoana along the main North 1 public road where he found vehicles D 1026 and A 1511 involved in a collision. The drivers thereof had already been rushed to the hospital for medical attention. He examined the scene of accident and took measurements,, Both vehicles were badly damaged on their right front portions. vehicle D 1026 was in the middle of the road whilst vehicle A 1511 was off the road on the left side as one travelled in the direction from T. Y. to Maseru. In the course of his examination of the scene of accident P. W.2 noticed places of broken glasses, some oil and soil from the mudguards about 3 paces from the white centre line on the left lane of the road as one travelled in the direction from T. Y. to Maseru, thus indicating where the point of impact w a s. At the time of examination he wrote down notes and made a sketch plan on the basis of which he prepared motor vehicle accident report as per Exh A(Form LMP 2 9 ), P. W.2 then proceeded to the hospital where he found Andries Motaung badly injured and unable to speak. The driver of vehicle D 1926 had already passed away. On the following day he met P. W.1 who took him to the scene of accident and confirmed the point of impact as described above. It is significant that according to P. W.2 the point of impact was on the tarred surface of the road. He denied, therefore', P. W.1's story that the collision had occurred on the left gravel portion of ths road as one travelled in the direction from T. Y. to Maseru He likewise denied P.w.3's version that the collision had occurred on the 7/left lane -7- left lane of the road as one travelled in the direction from Maseru to T. Y. Regard been had to the fact that broken peices of glass, some oil and soil from mudguards were found 3 paces from the white centre line on the left lane of the road as one travelled, in the direction from T. Y. to Maseru, it seems to me reasonable to accept as the truth the evidence of P. W.2 that the point of impact is as he has described it. That being so, I find that P. W. I and P. W.3 were not being honest with the court when they, respectively, testified that the collision had occurred on the left gravel port of the road as one travelled in the direction from T. Y. to Maseru and on the left lane of the road as one travelled in the direction from Maseru to T. Y. Assuming the correctness of my finding that the collision occurred on the tarred surface of the left lane as one travelled in the direction from T. Y. to Maseru it is obvious that vehicle D. 1026 which was admittedly travelling in the direction from Maseru to T. Y. must have careered from its correct side of the road into the lane of vehicle A 1511. The driver of vehicle D 1026 ought to have kept to his correct side of the road and avoided crossing into the right side lane of the road particularly so as it is clear that vehicle A 1511 was at the time, approaching from the opposite direction. Failure to do so, rendered the driver of vehicle D 1026 negligent in his driving. He w a s, therefore, the cause of the fatal accidents. As it has already been pointed out earlier, the defendant in CIV/T/551/86 raised the special plea of prescription. I have however, found on the evidence that the accident occurred on 6th June, 1984. In terms of the provisions of Motor Vehicle Insurance O r d e r , M 9 72 section 13(2)(a), Plaintiff had two years i.e. until 8/ 6th June, -8- 6th June, 1936 to lodge her claim f or c o m p e n s a t i on against the defendant company. The relevant subsection r e a d s: "(2) (a). The right to claim c o m p e n s a t i on under subsection (1) from a registered company shall become prescribed upon t he expiration of a period of t wo y e a rs as from t he date upon which that claim a r o s e: Provided that p r e s c r i p t i on shall be s u s- pended during t he period of sixty days refer- red to in subsection (2) of section f o u r t e e n ," Section 14 of t he Motor Vehicle Insurance O r d e r, 1972 r e a d s: "14(1) A claim for compensation under section 13 shall be set out on t he form prescribed by regulation in such manner as may be so prescribed and shall be accompanied by such medical report or reports as may be so prescribed, be sent by registered post or delivered by hand to t he registered company at its registered office or local branch o f f i c e, end t he registered company s h a l l, in t he case of d e l i v e ry by hand, at t he t i me of delivery acknowledge receipt in w r i t i n g. (2) No such claim shall be enforceable by legal proceed ings commenced by summons served on the registered company before the expiration of a period of sixty days from the date of which the claim was sent or delivered as the case may b e, to the registered company as provided in subsection ( 1 ) ." It is common cause that on 3rd J u n e, 1986 i.e. t h r ee (V (3) days before the expiration of t he period of t wo years referred to under S.13 (2) (a) of t he Motor Vehicle Insurance O r d e r , 1 9 72 Plaintiff c o m p l i ed with t he p r o v i s i o ns of section 14(1) of t he Order. In terms of t he proviso to S.13 (2) (a) of t he a b o ve m e n t i o n ed o r d er 9/ 1972 t he -9- running of the prescription period was, therefore, suspended for sixty days during which Plaintiff could n o t, in accordance with the provisions of S.14(2) of the Motor Vehicle Insurance Order, 1972, commence, by a summons served on the defendant company, legal proceedings to enforce her claim for compensation. In view of the fact that PLaintiff complied with the provisions of S.14(1) of the Motor Vehicle Insurance Order 1972 on 3rd June, 1986 and the running of the two years period referred to under S.13 (2)(a) of the Order w a s, therefore, suspended for sixty days, it must be accepted that when on 3rd August, 1986 the sixty days period of suspension expired the prescription time resumed running for the remaining three (3) days i.e. until 6th August, 1986. That being so, it must be accepted that when, on 6th August, 1988, Plaintiff admittedly issued and served summons on the the defendant company to enforce her claim for compensation, she was still within the prescription time i.e. the two years period referred to under S. 13(2)(a) of the Motor Vehicle Insurance Order, 1972 had not e x p i r ed The defendant company could not, therefore, be heard to say, in its special plea, that when she instituted legal proceedings, on 6th August, 1986, to enforce t he claim for compensation, Plaintiff's right to do so had prescribed. As regards the quantum of damages, it is worth noting that in an attempt to curtail the duration of this trial the parties have, on 8th April, 1987, held a pre-trial conference in which it was agreed, inter alia, that this court should, at this stage, determine only the question of negligence and not the quantum of damages. I have decided that the accident was caused by Tebelle Mofolo's negligent driving of vehicle D 1026, That, in my view, should be sufficient to dispose of this matter. 10/ In the circumstances ... - 1 0- In the circumstances, I find that the fatal accidents occurred as a result of the negligent driving of the driver of vehicle D 1026 and not the driver of vehicle A 1511. B. K. MOLAI JUDGE. 28th February, 1990. For Plaintiff For Defendant : : Mr. Monaphathi Mr. Molyneaux.