Maimba v Mangochi Diocese of Roman Catholic Church (Civil Cause 5 of 1992) [1993] MWHC 19 (20 April 1993)

I IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO 5 OF 1992 ULOSI MAIMB/\ PLAINTIFF and DIOCESE OF ROMAN CHURCH DEFENDANT ~ .. ! JANE MAYEMU ANSAH (MRS) DEPUTY REGISTRAR Msiska of Counsel for the Plaintiff DEFENDANT: Unprcsentcd, absent. RULING ii) .h.;1. ,?hs the plaintiff's claim for damages arising out of ~, ,, 'f'i:: . "'/.•, . ' ' ' . ~ . :d.affi,~-.i9S{ to his veh .1.c .le, Datsun 18 OB Coupe. The action . .1 s based 1-l OJ~'iii~e.gligence. On 30th July, 1992 the court. entered Judgement ,. i·n1..,deJault of intention to defend, damages to be assessed. , 'Il,l;iis J"is an ordinary case of road accident involving a i--. 1,9).. J.ision of two vehicles along the Lilongwe Zalewa road and th'~";· .·plaintiff's vehicle was extensively damaged. The p·laintiff took out summons against the defendant and Lhe !;:,,·d~.t_-.¢ant's insurance company· paid the maximum premium of ·li'1:Kd'.; .~O. The plaintiff's claim is the difference between · ij \he defendant's insurance company has already paid to the i ant and his total claim. aintiff's claim is for repair charges, hiring charges, charges, cost. of a police report, charges for t~ent, pain and suffcrjnq and the cost. of this act.ion . . .ff . · · ·· 1aim for treatment charges, pain and suffering . ) ~._.a)l'lred&3-y sett.led bet.ween the parties at K500. The claim 1, .. o S t Of a p O 1 L c e r c po rt i s d i s mi s s c d . The p 1 a in t. i [ f ·5.'\_lead this cl<1irn, i.t just cropped up sudd_enly in Lhc '·"'· ' $'.e of the pJc:1inLiff's evidence in courl There is cilso was for dtd i :g to back up l l1<1l r:laim, there is no po] ir:e rcporl or fpt exhibited. '".,:. · Df.!, to the ma j n r, 1 a j rn on darn age s ; t he 1 aw 1 s cl ea r , L t ij¢es that an _injured party .is entitled to restitulio in r~rurn against t.he wrong doer. Damage done to an i tern 1 s u:,red by the r:os t of rera 1 r. In The London Corporal ion (1;935·) C.l\ p. 70 Lhr lc,1rned Judge said: 2/ .... ~w ,, i~~:1 i; -2 -. ·~•i.'··' ~ ' ~I.;.,, .l-~/tr\,.· ;} ,,,:'Pfima facie, the damage or:ccisioned to a vessel J~.:; tlic ~6st of repairs -the r:ost of putting the vessel in the ;t .(:t, .. ame condition as she was in before the collison, and to #;Store her in the hzu,ds of the owners to the same value lshe would have had if the damage had never been done; :?"d pr ima f ac ic the value of a damage vessel is less by 1~ cost of repul rs than t. h8 value .i. t would have if ;ri~amaged." i~:f .~ :l/f\ :(Q; . J,. ;~ ~i'. case the plaintiff is entitled to get the reasonable cq~i·,':''.of~ repairs to be affected on his damaged Datsun 180B . .,,,., . "':·· ~---.yen:the cost of repairs must be reasonable and appropriate "' .pg }nto consideration the circumstances and the condi Lion .~]C ~ damaged i tern. 1 n the ca sc of Darbi sh ire vs. Warran · ··-. LR 1067 (CA) llarman L LT said that: C a n b C p r O V C' (I l h cl I L h C' r, 0 ::; t O f r C p cl i r CJ , <'. cl I J y C X r, (' (' d S value in Lile rn,1r·kct of Lhc damaged url:icle" ~-te~idence of the plaintiff leaves a lot of unanswered :i'-' !-,y, t • . . ,gg(;lstions concerning the accident and damage to the vehicle. ~'l;;b.~j c;:ourts have al ways said that it is wrong for a pl a inti ff 1,-tfd''Vlay: a cause of action before a court and lead no enough {~v,ide..n.ce to support the claim and then expect the court to do lqu. ~~s;f.wprk and award damages, claimed. The plaintiff has not ~~xp.:J.,a,;,;i;ned the nature of the accident whether it was head on lpollisipn or whether his vehicle was. hit ?n the side or 11~,h \~Q].:as a result of some collison, his velncle overturned . .. '1:~ ~9t;ure of the accident would somehow throw some light on -~he ~a-t'ure of damage suffered by the vehicle. There is no !po~ .1ieport to show what damage the vehicle suffered or even Ja"'f'p '<Jgraph to show the same. One is left to wonder as to ~ ·'·t~t-.. r :. th~ llf\,:n~t,ure of damage the vehicle suffered. The only .;.i'ndis:=~"t:;ion is the handwritten parts estimate from a big and j ) . I #f .-', • ;yel,lJ-~~stablished Mandala Limited. The parts estimate bears a 4 signature without a legible name on it. Going through the } list\-qff, parts to be replacE:d one gets the impression that thE: ~ vehiclef was damaged beyond repair. Both the front and rear )~in1i%~F·~ens need to be replaced, right hand and left hand door f,fubp~;~i~/rings, conrod bearing, roof ceiling (lining), to ; rnent'2-,on} a few out of the total forty one items listed down. f_<lt", a"pp,e. rs the vehic. Lc 's body work was completely damaged and f:alsq~l'tl.e engine needs to be done completely. As indicated f ,ear:<;J,,;i:.er, on, the cost of repairs need to be reasonable. The .. ' t:" ' ! yeact,~~~ ~ make of the plaintiff's vehicle is not know and j ts !,~.on.o,i;t:,i,on before the accident is not known. It J.s the 1 plaintiff's duty to prove before the court. that the vehicle !w~~Win ~ good condition and all the listed parts are needed as l;a r~.su~t of the accident. The plaintiff in his evidence has j•,notP,;?sa_i_,d that the vehicle was new or in very good condition I j,t .. he:i;.·e,.•fo,re believe that the vehicle was an old one. The old L~~t-~p.~, f"80B would fetch the sum of between Kl2,000 -KlS,000 . . f.,~,, 1:.~p ' t·' 't,; . J 3/ ..... ;~: ~ !-,r,,• ,{; .i,~, . ~l ~ tr ·1(1~ . ''l. !-, J .'' .' ·. l"'. 'j r,i 'isl 't· f!':i :•-'. 1 I , ~ii f~• '; . fiif'.;'{ f~/. ·~ . ..', 'ff 1 it • ~ ~ ; tJl .!• L. ¼.i::•' .··,·\L \i:-:-,~ ·~-· .. ;,_ ~?W· ... -<i l~-.. -~:-}-_,:;;: x~ '•'ii' ,.,,. ,i.. -]-~---.'S ··"' ~ ·.'ii }; '. ·•I• -'. ijJ_, \S, • \;f ~ -~;;,· 'rii ., 'iI 'Hin d\1t that it i s u n r ca son able to c 1 aim the sum of K 2 3 , 0 0 0 as .·-_ ', t•]•' Ji>."· . ,,,b~,r1:n<;1' ilhe cost of reµai rs when the vehicle could most likely '.•'h "'b_een replaced by I<:15, 000. I allow the sum of Kl4, 000 to . u-:;: -~~~ sum of money w h i c h c an b c spent to p u t the v eh i c l e i n r·iginal condition or to replace it. ~j..;-. ... Jfi:urther the p 1 a in tiff 's con tent ion that the vehicle was \:r'.3u'sed for business in Lilongwe and Blantyre tt!i >J,~, .+;.,.-;"" ' "\:. J , J'.(t~~ ~:~int i ff ha S. n O t cl i SC l OS e d t O the CO Ur t the n at Ur C O £ hi S .· . usiness. He con tends that to avoid his business from j(9~'ilap'.sing he had to hire veh i.cles in Bal aka so that he could ,~-'-J.:.·. t . ~; t : . t t I I-. . Tl t f h . •~Cv,l 11,ue O V. LSJ. -_ -1CSe C. WO (;_LtJeS. . 1e C-:OS _. 0. r:ar 1.rc ,•f .fl iu,jtthe period o[ rcp.:ii.r 1 s rcr:overable. llowever i L must ~,, . f ~:i~ on a bl c , , on :-~ i cl(' r· i n CJ I h c q l l ,1 l i t y of t hr' v ch i r: l c . 1 n I hr' tf se:r~O'f W,ilson v~;. Sl1,1w (l<)(,7) l<. T. H. (Cl\) ,-1 liiql1 <Jt1,1lily i'h'i.cr'!is W(l~~--i"i"i'r'c,-(T. <1:; .-, Stlhsl 1T\lr-z, t.o ,lll()i l1c·r· Iii C:Jil (jlJ;l Ii I y , i C .re , l Ii c coll r· l Ii<' I (! h il I l 11 c def c n cl <l n L was l i cl b l c I o j) ,1 y ,,_ ~x:. iy ~. cost of hiring a low quality vehicle. ln this casc, lhe ~;..,._ . .' . 1:~pla1;nt_iff owned a Datsum 180B and as a substitute he hired a f~~ then a Nissan Patrol. Both vehicles arc higher than his [o~~·vehicle and they c1rc expensive vehicles. His explanation ;t, st that th C SC WC r C' l h C On l y V Ch _j J C S a Va _i_ l ab ] C l n 8 a ]_ c1 K a . I f if'in'.qeed he hired them Eor the sake of his business in Blantyre .,1an·d Lilongwe he wouJ.d have not restricted himself to Balaka • ,. "' I )I· j:1{,':6 he would have r:hecked other hiring places in Blantyre and ~t:~»\ongwe. I find that the defendant cannot be condemned to f:;~~a,'y the full hire charges of these prestigious and expensive ~N.e ic],es when he would have hired a Fiat or any other cheap ;v.~Hic.f.e. Almost all other hiring vehicle have mileage free i:P,'.e.'.ff,io,d.s depending on how long a vehilce is hired, therefore ~-ijg~plaintiff's contention that he hired these vehicle because ,-~tjf_l~ th'.at privilage fails. His claim for three months is -, t¾',5~0. I_ believe the sum of KS,000 would be enough to hire · heap vehicle for J months. i., •· f'inal claim is for tow charges. There is a receipt ~ib~ted in court, I therefore award the sum of KJSO being 1 · c,harges. The lotal sum awarded to the plaintiff is , ,·.s~p minus the sum of I<:12, 500, which was already paid by .. d :fendant 's insuranr:e company. The plaintiff is further ftled to the r:ost o( this a~tion fees to be taxed. :·~J Chambers this 20th day of April 1993, at Blantyre. \t· t• .. , 'f. f /'" ., ~' -?• ' i ¼.: ti f ' . • ,, ,I ~ ~ ·-~ '➔~\ ~ I r---. ' . I ' .\( 1/' '\ / \_!\',/'--*:'--"'----' Jane Mayemu Ansah (Mrs) DEPUTY REGISTRAR OF THE HIGH COURT