The
plaintiff instituted proceedings against the defendants, jointly and
severally, the one paying the other to be absolved for the following
relief;
1.
Payment of the sum of $3,700= being costs of repairs to the
plaintiff's sprinter vehicle registration number AAQ 5021 which was
damaged due to a collision solely caused by the first defendant. The
other vehicle involved, which was being driven by the first
defendant, a Toyota land cruiser registration number AAX 3378, was
comprehensive-insured by the second defendant.
2.
Payment of $9,750= being hiring costs incurred by the plaintiff
during the period his vehicle was under repair.
3.
Payment of interest on the sum total of $13,450= at the prescribed
rate from date of summons to date of full payment.
The
defendants, whilst accepting liability for causing the accident, deny
liability for the amounts claimed above.
The
first defendant pleaded that the vehicle involved was comprehensively
insured by the second defendant. She did what was expected of her by
referring the plaintiff to the second defendant. Her obligations
ended there as she was not privy to what transpired between the
plaintiff and the second defendant thereafter. She is at a loss why
the plaintiff decided to join her in the proceedings.
The
second defendant, on the other hand, pleaded that it attended to
repairs which were caused by the accident involving the first
defendant. The plaintiff's vehicle had been involved in any earlier
accident which the second defendant is not liable for. Secondly, the
plaintiff signed a release form which had the effect of releasing the
defendants from any further suits or claims arising from the said
accident. The defendants later offered the plaintiff, without
admitting liability, the sum of $3,500= in exchange for the vehicle
which offer was rejected by the plaintiff.
The
defendants denied the plaintiff's vehicle was valued at $6,500=
before the accident. The defendants also denied liability for $9,750=
being costs allegedly incurred by the defendant through hiring a
replacement vehicle. They put in issue the figure claimed.
At
pre-trial conference the parties agreed that the issues which fell
for determination are;
1.
Whether or not the plaintiff is entitled to a further disbursement,
the same claim having been settled. If so, in what amount?
2.
Whether or not the plaintiff was entitled to hire a vehicle, and, if
so, the quantum thereof.
The
defendants admitted that the first defendant negligently caused the
accident on the day in question.
The
plaintiff admitted that his vehicle had been involved in another
accident prior to the day in question. The facts which are common
cause are that the plaintiff's vehicle was involved in an accident
with a vehicle driven by first defendant. The accident was solely
caused by the first defendant's negligence. The first defendant has
since paid an admission of guilt fine for driving without due care
and attention.
The
parties agree that the plaintiff's vehicle was taken to H and J for
repairs. Such repairs were done. After repairs were done, the parties
engaged trying to resolve the dis-satisfaction by the plaintiff over
repairs done to his car. The second defendant offered the plaintiff,
without admitting liability, the sum of $3,500= in exchange for the
plaintiff's vehicle. The plaintiff rejected the offer.
The
plaintiff led evidence in support of his claim.
He
testified that on 17 December 2011 he was involved in a traffic
accident with a vehicle driven by the first defendant. The first
defendant has since deposited an admission of guilty fine with the
police for driving without due care and attention. The plaintiff did
not state damages sustained by his vehicle. He however testified that
the second defendant took over the matter. His vehicle was taken to H
& J for repairs. He testified that the first defendant informed
him that his vehicle would be ready for collection in two days. He
testified that when the vehicle failed to come out in two days he
advised the first defendant of his intention to hire a vehicle. He
then entered into an agreement with Jubilee Centre for the hiring of
a vehicle for use. The vehicle was hired at $50 per day up to June
2012. The total costs of such hiring came to $9,750=.
He
tried to produce an agreement before the court to show that daily
rental for kms below 150 was $50 and for any kms exceeding 150km a
day $0.60 per kilometre. Such vehicle was rented for 6 months from 21
December 2011 to 30 June 2012. However, such document was not
discovered and no plausible explanation was given for failure to do
so.
The
witness testified that when his vehicle was ready for collection he
was made to sign a release form before he had inspected the vehicle.
He was also made to sign a form before the car was released to him.
He denied ever signing a satisfaction form but admitted to have
signed for the collection of the car.
As
he drove the vehicle from H & J this witness observed that there
were serious defects on the car. The gears were not engaging. He
complained to H & J and also to the second defendant. He said he
lodged a complaint to the second defendant on 22 June 2012. Despite
his complaint, he later found out that the second defendant had paid
out repair costs to H and J on 24 June 2012. He however produced his
complaint letter written to Altifin dated 23 January 2012 and stamped
by Altifin on 30 January 2012. The vehicle was later assessed by the
second defendant's assessors. The plaintiff was never shown the
reports. He was advised by the second defendant that they were
assessing the vehicle for purposes of paying off the plaintiff. Three
valuations were done. Alliance Insurance valued the vehicle at
$5,500=, Mike Harris at $5,500= and the third at $6,300=. An offer
letter was sent to him for $3,500= which he turned down.
He
testified that after the accident his vehicle had been valued at
$5,000=.
Under
cross-examination, the plaintiff maintained he hired the vehicle
after advising the first
defendant.
It became apparent he was not authorised to do so by the first
defendant but was referred to the second defendant.
The
first defendant testified that indeed she paid an admission of guilt
fine
with the police as she was to blame for causing the accident. The
first defendant testified that at some point the plaintiff phoned her
intending to hire a vehicle. The first defendant referred him to the
second defendant as the vehicle was comprehensively insured.
Thereafter, she never involved herself in the matter until after
receiving summons from the plaintiff. She testified that the matter
should be between the plaintiff and the second defendant and must not
involve her.
Under
cross examination, she conceded her husband was the owner of the
vehicle at the time of the accident. She later said the vehicle
belonged to Interfin but was allocated for use to her husband. The
witness also said the plaintiff informed her that the vehicle had
been involved in three accidents prior to that day's accident. She
insisted that the plaintiff should not have sued her but should have
proceeded against the insurers only.
It
is common cause the first defendant negligently caused the accident
in question and consequently caused the damages to the vehicle. The
first defendant paid an admission of guilt fine for driving without
due care and attention in that she failed to keep her vehicle under
control. It is important to note that at the pre-trial conference the
defendants admitted liability and the plaintiff admitted that his
vehicle had been involved in an accident prior to this accident.
At
the time of the trial the second defendant was under liquidation and
no leave was sought to proceed against the second defendant. It was
only the first defendant whom the plaintiff proceeded against.
From
the evidence, the issue of liability is not in contention. That
explains why the plaintiff's vehicle was taken for repairs.
From
the evidence, it is common cause, after the initial repairs, the
plaintiff was not happy with the repairs resulting in assessments to
ascertain the value of the motor vehicle. The second defendant is no
longer before me so I shall endeavour to talk about the second
defendant only as agents for the first defendant.
The
assessments were done and no agreement was reached between the
plaintiff and the second defendant as the two parties disagreed on
the value of the vehicle. The first defendant pleaded that she was
indemnified in and against all damage to the plaintiff by virtue of
the comprehensive insurance policy held with the second defendant. As
such, she argued that she was a wrong defendant before the court.
The
contract of insurance is between the owner of the vehicle and the
second defendant. There is no direct contractual relationship between
the plaintiff and the second defendant. A contract of insurance is a
contract for the benefit of a third party. As was quoted with
approval in Joel Melamed and Hurwittz v Cleveland Estates (Pvt) Ltd,
Joel Melamed and Hurwittz v Vorner Investments (Pvt) Ltd 1984 (3) SA
155…,;
“…,.
In the legal sense, which alone is here relevant, what is not very
appropriately styled a contract for the benefit of a third person: it
is a contract between two persons that is designed to enable a third
person to come in as a party to a contract with one of the other two
(Cf Tankelow v Binder Gering and Co. 1927 TPD 364)…, the typical
contract in order that C may be enabled, by notifying A to become a
party to a contract, between himself and A.”
Whilst
the plaintiff can choose to sue the insurance company, it is only
sued on behalf of the insured. The second defendant could only be
sued on behalf of the first defendant. That, in itself, does not
exonerate the first defendant from liability. In any case, it is
trite that even where the insurance assumes liability on behalf of
the insured, it does not always cover every damage. The injured party
is allowed, in law, to pursue the driver of the vehicle for the
difference.
The
mere fact, therefore, that the first defendant was indemnified under
the insurance policy does not entail she is immune to suit.
The
evidence of the present case shows that the vehicle was not repaired
to the satisfaction of the plaintiff and there is nothing in law
stopping the plaintiff from pursuing his claim against the first
defendant. However, the plaintiff must prove his damages in order to
recover same from the first defendant.
Whilst
I am aware that the motor vehicle was not repaired to the plaintiff's
satisfaction, I have not been told in what respect. The plaintiff
only generalized that the wipers were not fitted properly and the
gear box was damaged. The plaintiff did not go further to call expert
evidence to prove his damages.
The
plaintiff also testified that he had hired a vehicle and had paid
monies toward such hire but he failed to produce such receipts. In
the case of Standard Chartered Finance Zimbabwe Ltd v Georgiea and
Another 1998 (2) ZLR 547 the court…, had this to say;
“With
regard to the question of proof of quantum, in Mkwanazi v Van der
Merwe and Another 1970 (1) SA 609 (A) at 631, VAN WINSES JA referred
with approval to Herman v Shapiro & Co 1926 TPD 367 at 379 where
STRATFORD J said:
'Monetary
damage having been suffered, it is necessary for the court to assess
the amount and make the best use it can of the evidence before it.
There are cases where the assessment by the court is very little more
than an estimate; but, even so, if it is certain that pecuniary
damage has been suffered, the court is bound to award damages. It is
not so bound in the case where evidence is available to the plaintiff
which he has not produced; in these circumstances, the court is
justified in giving, and does give absolution from the instance.'”
Where
the plaintiff is capable of leading evidence which will enable the
court to arrive at some quantum, and the plaintiff does not the court
can dismiss the matter. Litigants should never leave it to the court
to guess damages suffered when they could have provided such
information to the court.
Herein,
the plaintiff could have had an expert testify on the damages caused
to the car, the repairs done, and the insufficiency of repairs
carried out. The plaintiff had in his possession the contract between
him and Jubilee for the car hire, and receipts paid but decided to
withhold such information from the court. The plaintiff only has
himself to blame for failing to quantify his claim. As said in Visser
and Portigieter, Law of Damages…,:
“It
is not the task of the court to award an arbitrary amount of damages
where the plaintiff has not produced the best evidence upon which a
proper assessment of the loss could have been made.”
The
plaintiff, in the summons, did not claim for value of the car.
Otherwise it is trite that where a vehicle is damaged beyond repair
the measure of damages is the value of the motor vehicle at the time
of the accident. See SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA
833 (A) and Visser and Portigieter, Law of Damages…,.
However,
that is not the plaintiff's case.
The
plaintiff's case is that he incurred additional costs of $3,700=
for repairs to his vehicle after the first repairs done by H & J.
The plaintiff however did not produce any evidence to show that he
incurred such expenses.
The
plaintiff tried to rely on the initial value of the vehicle at the
time of the accident. Such evidence does not assist the plaintiff in
his claim. Whilst I am of the view that the first defendant could
have been found liable for the damages and hiring costs of the
vehicle, the plaintiff has failed dismally to prove quantum of such
damages and hiring costs.
Accordingly
the claim is dismissed with costs.
