Moyo v Mkandawire & Anor. (Civil Cause 188 of 2015) [2018] MWHC 1035 (22 June 2018)

1 BRA R'Y ' • ) The Judiciary ... 'i-z.u'Z. U '('I.. '\'2., ... ~.o. e0 IN THE HIGH COURT OF MALA WI MZUZU REGISTRY CIVIL CAUSE NUMBER 188 OF 2015 ===================B-E-'FWE--EN============== - -~ - - DYSON MOYO ... ......................................................................................... .. CLAIMANT DRIVER CONSTABLE SA VE MKANDA WIRE ............................ 1sT DEFENDANT REUNION INSURANCE COMP ANY LIMITED .......................... 2ND DEFENDANT AND CORAM: A. J. BANDA, ASSISTANT REGISTRAR Mr. C. Chithope Mwale and Mr. Duke, of counsel, for the Claimant Ms. Khumbizeni Wawanya, For the Defendants, Mr. A. Kanyinji, Clerk/Official Interpreter Banda, AR 1. Background ASSESSMENT ORDER The claimant in in this proceeding obtained judgment on liability in his favour against the defendants who are driver of a motor vehicle that hit the claimant's motor vehicle and insurer of the wrongful vehicle respectively. He had claimed damages for loss of use of a motor vehicle, damages for inconvenience and a refund of cost of repairs and a police report. The honourable judge Justice D. T. K. Madise in his judgement dated 5th April, 2017 granted all reliefs the claimant asked for and directed that assessment of damages hearing be before the registrar. This is therefore, the order after assessment of damages hearing. I Page 1 of 3 I Moyo v. Dvr. Const. Mkandawire & Reunion Insurance Co. Ltd<Assessment Order> Banda,AR 2. Evidence The only witness in the assessment hearing was the claimant, Mr. Dyson Moya. He told the court in his statement that it costed him K2, 185,540.00 to repair his vehicle. He exhibited the quotation that he got from Mzuzu Panel Beaters which was marked 'DM2'. He also exhibited the police report which had a cost ofK3,000.00 as paid under General receipt number 1457817, marked 'DMl '. He went on to say that due to the vehicle being hit, he lost the use of the vehicle and was walking on foot, and he could not carry his family and friends and also goods for domestic and commercial use. He said that he also abandoned his routine in order to serve the defendant's lawyers with court documents in Blantyre, and also to make himself available at the court for trial, but also to arrange the towing of his vehicle to the garage and meet associated costs. Mr. Dyson Moyo said he also had to arrange for the driver of his vehicle, Mr. Joseph Tembo to be treated at the hospital and visiting the police several times to obtain the police re ort. In cross examination, Mr. Moyo told the court that the cost of repairing the vehicle was claimed as it costed him, just as the repairer had quoted. He said it was fine as such even though he had used the vehicle for 3 years, and even though the cost of repairs was as good as what the car had costed him on purchase. In re-examination he said spare parts were expensive than a whole car, in explaining the cost of repairs being close to the cost of purchase. 3. Issue The only issue for the court to resolve is the quantum of damages payable to the claimant, in the circumstances, under the heads of; loss of use of a motor vehicle, damages for inconvenience, and a refund of cost of repairs and a police report. 4. Determination Damages are the remedy for a victim of a wrong and the wrongful party has to compensate the victim, in as far as money can, to be put back in the same place that the victim would have been if not for the wrong- Elida Bello v. Prime Insurance Company Limited, Civil Cause Nol 77 of 2012 (unreported). In the instant matter, the pt defendant is the one responsible for the damage to the claimant's vehicle. He should pay back the cost of repairing vehicle back to its re-useable state. The cost quoted by the firm that repaired the vehicle was K.2, 185, 540.00. The claimant must recover that sum, as damages for repair costs. The defendants, with their negligence, necessitated a police report which comes at a cost. It was recorded on the report, which was exhibited as 'DM 1" that the report was paid for at a cost of K3,000.00 and the General Receipt given was numbered 1457817. The claimant should recover this sum of K3,000.00. The claimant further claims damages for loss of use of the motor vehicle. He quantifies the loss at K700,000.00 in his submission. It must be stated that the claimant did not explain his quantification of the loss. There is no evidence of an alternative car being in use. He stated that I Page 2 of 3 I Moyo v. Dvr. Const. Mkandawire & Reunion Insurance Co. Ltd<Assessment Order> Banda,AR he used to walk and his family and friends were denied the use of the vehicle. This was a family and business car. I tried to find guidance as to the normal usage of a family and business car. The claimant did not state for how long he was without the car, as it underwent repairs. This however, does not mean he did not suffer loss of use of the motor vehicle. In Renzo Benetollo v. Attorney General and National Insurance Company Limited Civil Cause No. 279 of 1993, High Court Principal Registry (unreported) the court held that where a party has not proved damages, reasonable compensation in the circumstances can be awarded. It is my most considered opinion that K250,000.00 is reasonable compensation for loss of use of the motor vehicle in the circumstances. I so award the claimant. The claimant further prayed for the award of damages for inconvenience. Damages for inconvenience are awarded where substantial physical inconvenience and discomfort was = = ====1caused.::or::e.ffected=l,:_y::the::neg:ligenwr=ether,wis&=l:llliaw.m,baGt~Ql'.l;;l,j.ssiGn of....the-de.fendant. ___ ___ _ The discomfort should not just be psychological or emotional- Hobbs v. L. S. W. Ry [1885] 10 QB 111 per Mellor, J. In this case, the claimant had to walk on foot, where he would have used his vehicle, abandoned his routine in pursuit of having his car repaired by towing it to the garage but also ensuring the driver who was authorised to drive his vehicle had been attended to at the hospital; and also for this matter when the defendants denied liability. He prayed for damages in the region of K700,000.00 under this head. I find the sum of K450,000.00 as adequate compensation under this head. 5. Conclusion The claimant should recover K2,185, 540.00 as repair costs of his motor vehicle. He should also recover K3, 000.00 as cost of the report that he obtained from the police. He is further awarded the sums of K250,000.00 and K450,000.00 as damages for loss of use of motor vehicle and inconvenience respectively. In total the claimant gets an award ofK2, 888,540.00. I also award the claimant cost of the assessment hearing which will be assessed by the registrar if not agreeable by the parties. Made this 22nd day of June, 2018 Austin Jesse Banda ASSIST ANT REGISTRAR I Page 3 of 3 I Moyo v. Dvr. Const. Mkandawire & Reunion Insurance Co. Ltd<Assessment Order> Banda,AR