Pindani, Dangaya and Daka v Malawi Communications Regulatory Authority and Reunion Insurance Company Limited (Civil Cause 124 of 2012) [2018] MWHC 1256 (4 July 2018)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 124 OF 2012 BETWEEN MARK PINDAND, i ssassccssccv ess cxnanennaans a 142844 akssiidsthitinadenenanenmmenememsceinane soe eee caenaes 1s* CLAIMANT KINGSLEY DANGA Y Av vcssssnasemnnanaceses 5.0» 4 + sasnanmnnenncniinsnad 844294444 # Riddunoesianenamecnnee 24 CLAIMANT CHRISSY DAKA. Q... oo c ccc ce cee ccee ne ne ee een seen sence eeeenea sense eaeeeeeeaeaeeeenenenees 3™ CLAIMANT AND MALAWI COMMUNICATIONS REGULATORY AUTHORITY... occ cece cece ee ee ne ee nen e ne ne nee ne eens ee nen een ee eee seen ease ense eee eassaseeens DEFENDANT REUNION INSURANCE COMPANY LIMITED. .......... 0. cccececececeeeeeseceeeneaeaenas THIRD PARTY Coram: WYSON CHAMDIMBA NKHATA (ASSISTANT REGISTRAR) Chiwoni - of Counsel for the claimant Mapemba- of Counsel for the defendants Mkandawire- Court Clerk and Official Interpreter RULING This is the court’s ruling on an application by the defendant that this matter be dismissed for disposal on a point of law. The application has been brought under order 14A rule 1 of the Supreme Court Rules. Mark Pindani & 2 Others v MACRA & Reunion Insurance Co. Ltd Bank Civil Cause No. 127 of 2014 Page 1 The application is supported by an affidavit sworn by Daniel Chiwoni of Counsel. The substantive part of the affidavit reads: 2. That the plaintiffs commenced this action against the Defendant claiming inter-alia damages for personal injuries suffered in an accident involving the Defendant’s motor vehicle number BR4502 Toyota Prado. The plaintiffs were passengers in the said vehicle at the time of the accident. 3. That in February 2013 the Defendants took out Third Party proceedings against Reunion Insurance Company Ltd for an indemnity against all claims by Plaintiffs on the basis of a policy of insurance underwritten by Reunion Insurance Company Limited. Under the said policy Reunion Insurance Company Limited undertook to indemnify the defendant against any liability arising from the defendant’s use of the aforesaid motor vehicle registration number BR4502 Toyota Prado. A copy of the Third Party Notice issued against Reunion Insurance Company Limited is hereby produced and shown to me and is marked exhibit “DC1”’. 4. That Reunion Insurance Company Limited has served its defence to the claim for indemnity by the defendant under Third Party Proceedings. The defence asserts that Reunion is not liable to indemnify the defendant as the policy of insurance did not cover passenger’s liability. A copy of the Defence is hereby produced and shown to me and is marked exhibit “DC2”. 5. That Reunion Insurance Company Limited’s defence raises the question whether the policy of insurance on its true and proper construction excluded liability for passengers. A copy of the policy of insurance is hereby produced and shown to me and is marked exhibit “DC3”. 6. That the defendant’s position is that the said policy of insurance did not exclude liability for passengers and that Reunion Insurance Company Limited is liable to indemnify the defendant against the claims of the plaintiffs in this matter. 7. Wherefore the defendants pray for the disposal of the Third Party Proceedings on a point of law namely whether the insurance policy underwritten by the Third Party reunion Insurance Company Limited on its true and proper construction excluded liability for passengers. In an oral submission to the Court, Counsel stated that the policy provided some limitation in terms of liability to K5,000,000.00. He also stated that the policy also provided for exceptions which did not include passengers hence the claim by the third party that the policy did not cover passengers is not attainable. He added that for completeness the policy provided for some endorsements and says the Mark Pindani & 2 Others v MACRA & Reunion Insurance Co. Ltd Bank Civil Cause No. 127 of 2014 Page 2 endorsements will only apply when indicated on the Policy schedule. In this case the applicable endorsements are 13, 14 and 15. Any other did not apply. He further stated that there is reference to endorsement number 4 which provides for deletion of passengers risk. He pointed out that this one had been excluded hence their position that the policy covered passengers and third party should be liable to indemnify the plaintiffs. There is an affidavit in opposition sworn by Ufulu Matupa of Reunion Insurance Company Limited. The affidavit reads in part: 3. That the plaintiffs commenced this action against the defendant by way of a specially endorsed writ claiming damages for pain and suffering and loss of amenities of life arising from a road accident involving motor vehicle registration number BR 4502 Toyota Prado in which the plaintiffs were travelling as passengers. 4. That the defendant on the 26" of February 2013 took out Third Party proceedings against the Third Party claiming indemnity against all the claims by the plaintiffs pursuant to a policy of insurance underwritten by the Third Party. 5. That the Third Party denies liability to indemnify the defendant on the ground that the policy of insurance in respect of motor vehicle registration number BR 4502 Toyota Prado does not cover for passengers especially the plaintiffs. Hereto attached are copies of the defence and the policy of insurance exhibited and marked “UKM1” and “UKM2” respectively. 6. That since the plaintiffs are not covered by the Third Party’s policy of insurance then the defendant cannot bring an action claiming to be indemnified by the Third Party. 7. That the question whether the Policy of insurance excludes cover on liability for passengers is not suitable for determination without full trial of the action since it is not a question of law but a matter of construction of the policy of insurance which has to be determined by the court in a full trial. 8. That the Honourable court’s determination of the said question will not finally determine the entire matter or any claim or issue herein. Wherefore the third party prays to this Honourable court to dismiss the defendant’s application to dispose of the case on point of law herein with costs and allow the Third Party right to be heard by defending itself on merit in this matter. Mark Pindani & 2 Others v MACRA & Reunion Insurance Co. Ltd Bank Civil Cause No. 127 of 2014 Page 3 In an oral submission to the Court Counsel for the Third Party stated that the current application was in fact made by the defendant in anticipation that the matter would be summarily disposed of by His Honour Mvula. He further stated that His Honour Mvula’s ruling was to the effect that there were triable issues that no summary procedure would address. He therefore referred the matter to full trial. The current application had been made seeking pronunciation that in the event the trial court held the defendant liable in negligence then the Third Party ought to indemnify the defendant by virtue of the policy. It was Counsel’s argument that the plaintiffs were under the defendant’s employment and therefore fell outside the prescription of the said policy. He further pointed that the fact that the plaintiffs were under the defendant’s employment had not been denied. He explained that the fact that the plaintiffs were the defendant’s employees it meant that they were not third parties and hence not privy to the insurance policy which was meant to indemnify third parties against bodily injury or death of third parties. Counsel is therefore of the view that there are triable issue beyond mere construction of the provision s of the insurance policy herein. It was his prayer that this court just like HH Mvula did should refer the dispute between third party and the defendant to be determined through full trial. It is expedient to expressly note that the summons by the defendants was made under Order 14A of the Rules of the Supreme Court. Let me make the following pertinent observations on conditions precedent to the evoking of the procedure under that Order. It appears the court may upon the application of a party determine any question of law or construction of any document in any cause or matter at any stage of the proceedings where it appears to the court that: (a) such question is suitable for determination without full trial of the action; and (b) that the determination will finally determine the entire cause or matter or any claim or issue in the case, subject only to any possible appeal. In the premises, the suitability of disposing of an action under this procedure entirely depends on whether the court can determine the question of law raised without a full trial of the action. Thus upon making its determination of the question of law or construction, the court may dismiss the action or make such order or judgment as it thinks just. In this way, the action will be finally disposed of without a full trial and the judgment or order will have the same force and effect as the judgment or order after a full trial of the action. Pausing here I believe the question that arises and fall to be decided is: what is the purport and effect of this insurance policy to the entire matter. Specifically, the question is whether on a true and proper STE ETE ET EET ETT SS EU Mark Pindani & 2 Others v MACRA & Reunion Insurance Co. Ltd Bank Civil Cause No. 127 of 2014 Page 4 construction of the policy herein the action will be finally disposed of. I shall now set out those parts of the policy of insurance herein which appear to me to be material to the present case. The following are the parts which are relevant to this matter:- Section II - LIABILITY TO THIRD PARTIES 2. Indemnity to other persons The company will subject to the Limits of Liability and the Jurisdiction Clause indemnify any Authorised Driver against all sums including claimant’s cost and expenses which he shall become legally liable to pay in respect of; (a) death of or bodily injury to any person...where such death or injury... arises out of an accident by or in connection with the motor vehicle or the loading or unloading of the motor vehicle. EXCEPTIONS TO SECTION II The company shall not be liable... (b) in respect of death of or bodily injury to any person arising out of and in the course of such person’s employment by the person claiming to be indemnified under this section...” Observably, it is the contention of the Third Party, through Counsel, that it is not liable to compensate the Plaintiffs, for their injuries or indemnify the Defendant against the claims by the Plaintiffs, because the policy of insurance which it issued to the Defendant contained a clause which excluded liability in respect of employees of the Defendant if they got injured in the course of their employment. Counsel for the defendant, on the other hand, contends that the issue whether the plaintiffs were under the defendant’s employment does not arise. He argues that in Third Party proceedings the defendant acts as a plaintiff against the third party and the third party notice is taken as a statement of claim against the third party who also files a defence to a third party claim. The two documents are taken to be pleadings between the two parties. He further stated that the defence by the third parties refers to passengers and not the plaintiffs being employees of the defendant. Mark Pindani & 2 Others v MACRA & Reunion Insurance Co. Ltd Bank Civil Cause No. 127 of 2014 Page5 What comes out clear in this case is that there are contractual obligations that need to be ascertained that have an effect of discharging either the defendant or the third party or even both in the light of the construction to be given to the terms of the policy herein. Nevertheless, pivotal to this application is whether the said determination would dispose of the entire matter. For some reason, I believe even after determination of the matter on the point of law, some of these issues would surface in one way or another, bringing the matter back to court. This is not the purpose of Order 14A which is intended to conclusively bringing proceedings to finality. In my view, this is a case which the Judge ought to make a determination on liability on the issue of negligence and if it is proved the Judge ought to proceed to make a determination as to who among the defendants ought to pay damages to the plaintiff that is if they are payable. Simply dealing with the construction of the Insurance Policy will just be a step to other proceedings. In the case of Njiruzawo Chingaipe and Sofia Kanjongole V National Bus Company and another Civil Cause No. 66 of 2000 (unrep), Justice Kapanda (as he was then) made the following remarks: It is my opinion that the provisions Order 14A of the Rules of the Supreme Court were not considered at the time the order for the determination of the preliminary issue was being prayed for by the Defendant. I am of this view because it is evident from the case file that, even though this court has made a determination on the question put before it, there will be no finality to the entire cause or matter. It is as if the court was given an academic question to answer. That is not the purpose of this procedure. In future it would be advisable that before an application for order is made for the determination of a preliminary point of law, like in the instant case, the provisions of the said Order 14A of the Rules of the Supreme Court should be borne in mind so that once a determination is made there is finality to the entire cause or matter. In any case, there are factual disputes in this case. Counsel for the defendant argues that the defence by the third parties refers to passengers and not the plaintiffs being employees of the defendant. Counsel for the third party also challenges the assertion. In the case of Sympathy Chisale v Phiri (Commercial Case No. 29 of 2009) [2011] MW Comm C 3 (06 June 2011) (unreported) the court observed that this procedure should only be adopted in very clear cases and it should never be applied to debatable cases. In view of the above, I deem it necessary that we proceed with caution so that we eventually attain the justice of the case. For this reason I take it that this is such a case that would require a full trial for the determination of each party’s obligations or lack thereof and I order likewise. ee a EE ET TTT TT ET NE Mark Pindani & 2 Others v MACRA & Reunion Insurance Co. Ltd Bank Civil Cause No. 127 of 2014 Page6 Costs shall be in the cause. A A SDE SE EEE SETS Mark Pindani & 2 Others v MACRA & Reunion Insurance Co. Ltd Bank Civil Cause No. 127 of 2014 Page 7