IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO. 1093 OF 2002
BETWEEN:
MALAWI TELECOMMUNICATIONS LTD
..1ST
DEFENDANT
C G U INSURANCE LTD.
2ND DEFENDANT
CORAM: M.
A. TEMBO, ASSISTANT REGISTRAR
Kalima,
Counsel for the Plaintiff
Kaliwo,
Counsel for the Defendant
Only one witness testified on the
assessment of damages for loss of use of the motor vehicle.
That
witness was Joseph Mbewe who informed this court that he is a Pastor at Living
Waters Church and that he was the one driving the motor vehicle herein when the
accident occurred. He further informed
that the Car herein had been received by the 2nd plaintiff from the
1st plaintiff and had been dedicated to be used by himself.
Mr Mbewe
informed the court that by the date of the accident he had only used the car
for 8 days. And that since the accident
he had no personal transport and had to walk or use public transport.
He said
that the date of the accident was 1st January, 2002. Pastor Mbewe then told the court that he got
the replacement value of the vehicle on 8th August, 2002.
He also
informed the court that he was using the car for many purposes like ferrying
his children to school as well as running his pastoral errands.
On Cross
examination by Mr Kaliwo Pastor Mbewe informed this Court that at the time of
the accident the vehicle herein was not registered in his name nor in the mane
of the 2nd plaintiff. But
that the vehicle had been brought in the country to be given to the 2nd
plaintiff.
Counsel
for the defendants also Cross - examination Pastor Mbewe on the importation
declaration made by the 1st plaintiff in relation to the
vehicle. In relation to which Pastor
Mbewe agreed that the vehicle had been
imported temporarily into Malawi. But
he added that it was in the power of the 1st plaintiff to donate the
vehicle to the 2nd plaintiff.
In re -
examination by Mr Kalima Counsel for the plaintiffs, Pastor Mbewe told the
court that when the 2nd plaintiff received the vehicle herein it
went to Malawi Revenue Authority to declare its receipt of the foreign
registered motor vehicle. And he
further said that by the true of the accident all the importation processes of
the motor vehicle herein had not yet been cleared with the Malawi Revenue
Authority. The Court observed that from
the evidence of pastor Mbewe the 1st plaintiff was using his motor
vehicle herein. By leaving it at the
disposal of the Pastor. The fact that
it had been temporarily imported to Malawi and that it bore foreign registration
numbers has no bearing on its use by the 1st plaintiff.
The 1st
plaintiff was still using the motor vehicle through the 2nd
plaintiff in the person of Pastor Mbewe.
As such
when Pastor Mbewe lost use of the motor vehicle that was tantamount to loss of
use by the 1st plaintiff as well.
As such the 1st plaintiff is entitled to damages for loss of
use of the motor vehicle. This is an
matter of fact.
The law
on loss of use is clear.
General
damages are awardable on proof of loss of use of a chattel including a motor
vehicle.
On the
quantum of damages Mtegha J (as he then was J had this to say in P. J.
Chinema v World Vision International Civil cause Number 1097 of
1991:-
`It is conceeded that the Courts are rather conservative in awarding damages for loss of use and the cases do not show a criteria for awarding damages for loss of use and the cases do not show a criteria for awarding such damages`.
He went on to state that:
` I have pointed out that awards for loss of use are not consistent and they depend on the circumstances of each case and the money depreciates in value all the time`.
The Court
notes that herein the 1st plaintiff was deprived of the use of his
vehicle from 1st January, 2002 to August 2002 representing a period
of 8 months. The court notes that in G.S.
Gondwe v Mandala Limited
Civil Cause No. 1725 of 1994 decided on 3rd January, 2002, a
sum of K250,000.00 was awarded as damages for loss of use of a motor, vehicle
for a period of about 7 years. Upon
consideration of all the circumstances in the instant case the court is of the
view that an award of K40,000.00 is a fair and adequate as damages for loss of
use occasioned herein.
Costs are
also awarded to the plaintiff.
MADE in
Chambers at Blantyre this 25th February, 2003.
SUPREME
COURT OF APPEAL