Zambia Breweries Ltd v Chate (Appeal 33 of 1998) [1999] ZMSC 62 (3 March 1999)

Appeal No. 33/98 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA (civil uurisoxction) BETWEEN: ZAI^iZ ^iEHOIra LIMITED APPELLANT AND LA3S0R CHATE RESPONDENT Coram: Chirwa, Lewanika, Chibesakunda, JJS 10th September, 1998 and 3rd March, 1993 For the Appellant: J. Kabuka of Messrs J. Kahuku A Co. For trie Respondent: V. K. Mwewa of V. K. ^ewa & Co. JUDGMENT Lewanika, JS. delivered the judgment of the court. This is an appeal from a decision of the Deputy Registrar of the High Court awarding damages m the sum of K7,060,000.00 in respect of negligent failure on the part of the appellant to notify the Zambia State Insurance Corporation Limited of the respondent's claim under the ZIMCO Group Insurance Scheme. The facts of the case were that the respondent was at the material time employee as a fitter by the appellant at its Kdola plant. On 19th September, 1988 whilst the respondent was performing his duties he was involved in an accident and suffered injury which led to the amputation of the right leg above the knee. The respondent along with other employees was insured under a ZIMCO Group Insurance Scneme. Due to late notification of the accident by the appellant Zambia State Insurance Corporation Limited repudiated the claim on ths around that the same was time oarred, hence EBtiSo proceedings* in malting tat award trie Deputy Registrar noted that neither tee iunt nor the respondent had produced the Group Iniurcoce Scheme rciicy ano that in the circumstances it would be difficult for hhi to compute wnat would have been due to the respondent unuer the policy of insurance. The learned Deputy Registrar Chen proceeded to deal with tne matter as if he were assessing a claim for personal injuries based on conwon law principles. After consulting seme cnglish authorities and Zambian authorities quoted to him by counsel he awarded the appellant a global sum of kW,0GJ,u01:.0t and at 70% disability bringing the nett award tu \7,CuP,dou.(?v. in awarding this amount the iX-puty registrar coiitpitteiy misaenrenenaed the facts before him. He was not dealing wiln a claim for damages for personal injuries arising out of the negligence of tne appellant but with a claim for whut I:/-' respondent would have received had ttn appellant Limoosly A*, notified the Zambia State Insurance Corporation Limited of tin respondent’s claim, b'ereov^r there was evidence on record that under the group insurance cover five times the annual salary was payable in the case of total disablement. The respondent’s annual salary was kILJK. IG and according to the medical report his Disablement, was assessed at 70%. The total disability amount payable, under cue terms of tile policy of insurance would therefore be Kl2,18b.1t x d = kou.^b.eL gross. As toe respondent's disability was assessed at 7u% the nett amount payable is W2,64n. Cu. Inis is the amount that would nave been payable to tie? respondent under the 21MCO Group Insurance Scheme. I*.;; are accordingly allowins the appeal and settinc; aside cne award made oy the Deputy i<egistrar in the sum of f/,i,Cb»t!CG.uL anc in ici. i-lcce w? substitute an award of K42,64b.bt with intor-st , f reJ!: ir it xiit ci”'e: nt i-nci ■} r'cii .is by th« Bank of zaiteid. The r^p'ri^int '.'111 frcv? Ms costs f: th- p^ocef di;\ s in t:?s cojri Jilcw ?nc’ ■■:■, '.^ : ne ortcr i»s ;.. casts for tri^ prccf^irh-.s t: ;r.-j .i. C. K. Cairws SUPREME COUP! v'UDGE L»i'i. L^taciilijsc SUPREME COL'^l JUBGi, (J...;.'.<n......................... _.'■“. t I i ja;U.!::Ccl 5£ESL££k5I JUDC£