Milembe Insurance Co LTD Vs Jaffari Hussein Selemani (Civil Appeal 150 of 2017) 2018 TZHC 2777 (29 June 2018)
Milembe Insurance Co LTD Vs Jaffari Hussein Selemani (Civil Appeal 150 of 2017) 2018 TZHC 2777 (29 June 2018)
Milembe Insurance Co LTD Vs Jaffari Hussein Selemani (Civil Appeal 150 of 2017) 2018 TZHC 2777 (29 June 2018)
VERSUS
JUDGEMENT
Toyota Cresta owned by one Salimu Isihaka Sengo (the 1st defendant
Collora and caused bodily harm to the respondent's driver one Sudi
l
Mohamed and the respondent's motor vehicle was badly damaged to
before the Kinondoni District Court via Traffic Case No. 1733 of 2010
where the 1st defendant's driver was convicted on his own plea of
guilty and sentenced to pay fine at the tune of Tshs 50,000/- for
each count or jail for six months. The 1st defendant's motor vehicle
insurance cover and the respondent's motor vehicle was insured with
the Real Insurance Tanzania Limited under the third party cover.
covering the 3rd party and him (the respondent) being a 3rd party in
the said accident he decided via his letter dated 18th April 2012 to
submit his claims to the 2nd defendant for the repair of his motor
hence he decided to institute a Civil Case No. 217 of 2014 before the
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Kisutu Resident Magistrate Court against the 1st defendant and the
appellant (2nd defendant) praying for the following reliefs that the
AUTOMOBILE GARAGE;
the date o f filing the plaint and other storage charges that
the plaintiff will incur till the date o f repair o f the motor
vehicle;
(c) sum o f Tshs. 350,000/= being the cost for breakdown after
the accident;
(e) interest o f 30% from the date when the cause o f action
(f) interest on the decretal amount at the court's rate from the
(h) any other relief(s) that the Court will deem fit and just to
grant.
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It is on record that, the 1st defendant, was served through a
and he appeared only once, but never filed any Written Statement of
against her. The said preliminary objection was dismissed by the trial
court and the matter was determined on merit, where the respondent
paraded two (2) witnesses, PW1 - the respondent himself and PW2 -
the diver, while the appellant's side summoned one witness, DW1 -
the insurance officer. After full trial the matter was determined in
Being aggrieved by that decision the appellant has lodged this Appeal
with four (4) grounds that, the trial Magistrate erred in law and facts
by:-
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party to the insurance contract in which his claims was
based;
a tortfeasor; and
At the hearing of this Appeal the appellant was under the legal
Counsel for the parties for the energy and industrious research
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observed that, it seek to question the competence of the matter
before the trial court. Since this is one of the fundamental issues in
In support of the 1st ground of appeal Ms. Ilumba argued that, the
respondent in this case does not have direct cause of action against
appellant and the respondent. She said, the appellant has direct
claim against the 1st defendant in the original suit, who was the
owner of the insured motor vehicle. She insisted that the insurance
contract is between the insured and the insurer. She said, in the
respondent, the said respondent has no direct right to sue under the
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" The plaintiff not being a party to the insurance contract issued
argue otherwise"
Kisimbo) V Yassin Ally M/S Hari Singh & Sons and Jubilee
Pneumatic Tyre V Selfrige & Co. Ltd (1915) AC, 847 HL, where
the persons insured in respect of 3rd party risks, still that judgement
must have been first obtained in accordance with the well established
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in National Insurance Corporation, Consolidated Holding
whether a 3rd party has a claim against the insurer, quoted with
the Court among others held that, "A stranger to a contract cannot
sue upon the contract unless given statutory right to do sd'. That,
James Otiene (1989) 2 KAR 162, where it was held that, "A third
[Emphasis added].
She then submitted that, since in the case at hand the respondent
was not party to the insurance contract it was improper for him to
sue the appellant directly. She said the respondent has no any claim
against the appellant and she thus prayed the Court to allow the
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Responding on this ground, Mr. Bruder started by narrating the gist
ensure that the insured after the loss/peril is restored in the same
position he would have been if the loss did not occur or to the same
(premium) paid.
Mr. Bruder said in this case the respondent is enjoying the award
granted by the trial court through the principle of third party, which
insurer (2nd part) for protection against another person (3rd part). He
said, the appellant (insurer) was informed by the insured about the
Ms. Ilumba that they are irrelevant and not applicable in this case.
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Mr. Bruder also challenged the applicability of the 3rd Part Notice
[R.E. 2002]. He said, the said provision could have been invoked if
and arguments of the Counsel for the parties on this matter and the
is between the appellant and the 1st defendant (in the original suit).
Therefore, the respondent in this case does not have direct cause of
I am aware that, the said insurance agreement that was between the
cover which covers also claims against the 3rd party. Pursuant to
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Responding on this ground, Mr. Bruder started by narrating the gist
ensure that the insured after the loss/peril is restored in the same
position he would have been if the loss did not occur or to the same
(premium) paid.
Mr. Bruder said in this case the respondent is enjoying the award
granted by the trial court through the principle of third party, which
insurer (2nd part) for protection against another person (3rd part). He
said, the appellant (insurer) was informed by the insured about the
Ms. Ilumba that they are irrelevant and not applicable in this case.
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My reading and understanding of the above provision is that until the
Judgement has been obtained against the insured, then the said
Judgement can be enforced by the 3rd party and in this case the
respondent. If such a judgement has not been obtained then the 3rd
a party.
I the case at hand, I have perused the trial court's Judgement and
submission by the Counsel for the respondent before the trial court
that PW1 testified that, the 1st defendant was charged with
proceedings at 20 - 24).
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motor vehicle was for Jafari or any other person it does not
time the company wanted to compensate him does not show on how
herein were not indicated anywhere in the record of the case. The
person who was convicted and sentenced to pay Tshs 50,000/= per
each count, to make a total of Tshs 100,000/ and not Tshs 50,000/=
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2.200,000/=" was not offered by the appellant or even reflected
the trial Magistrate only concluded that the appellant was liable to
pay the respondent. Therefore, the issue was not only that the motor
vehicles were on the road and insured, but whether the 1st defendant
that fact, the trial Magistrate was required to first enter Judgement
against the 1st defendant, the judgement which could have enable
the trial Magistrate to enter Judgement against the 1st defendant, the
00 ...
Now, in the case at hand, I have since perused the trial court
appellant. I therefore find that, it was not improper for the trial court
ensuring that the 1st defendant was responsible for the offence and
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against the 1st defendant to that extent. As such, the respondent
could have now enforcing the said judgement against the appellant.
against the 1st defendant and not otherwise. The act of the trial
Magistrate of not determining first the case of the 1st defendant and
on the face of the record, which had vitiated the trial and occasioned
a miscarriage of justice.
be paid by the 1st defendant's driver and the amount proposed by the
In view of the above findings and reasons, I don't see the need to
with costs. I hereby nullify the entire proceedings of the trial court
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liberty to institute a fresh suit against the 1st defendant, subject to
R. K. t>ameji. <
JUDGE
29/06/2018
Ms. Felista Msoka, the learned Counsel for the appellant and Mr. Mr.
MJl*'
R.K.Sameji.
JUDGE
29/06/2018
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