Basil Kunaka v Safel Insurance Company (Pvt) Ltd

### Preamble
1
HH 81-18
HC 10293/16
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BASIL KUNAKA

versus

SAFEL INSURANCE COMPANY (PVT) LTD

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 22 January and 14 February 2018

Civil trial

V H Tongoona, for the plaintiff

M Chapeta, for the defendant

TAGU J: Most of the facts are common cause in this case. It is not in dispute that the plaintiff is the registered owner of a motor vehicle, namely, a Mercedes Benz, E320, 2002 model, Engine number 11294931346039, Chasis number WD8211065-2A095026, registration number ADA 9827. On the second of October 2014 the plaintiff insured the said vehicle with the defendant Safel Insurance Company (Pvt) Ltd. The defendant issued out a comprehensive insurance cover for the said vehicle for the sum of US$15 000.00 (Fifteen Thousand United States Dollars. The plaintiff then paid US$ 750.00 being the full premium that was payable for the comprehensive insurance cover. Subsequently, the plaintiff’s vehicle got severely damaged in an accident wherein whilst trying to reverse his vehicle downhill he failed to negotiate the terrain resulting in the vehicle getting damaged in its rear section. The accident occurred during the term of the policy. The vehicle was deemed to be beyond economic repair by the repairers. The plaintiff presented his claim to the defendant to indemnify him within the prescribed period but the defendant refused to indemnify him. The plaintiff eventually sold the wreck for US3 500.00.

The plaintiff issued summons against the defendant claiming the sum of US$11 500.00 less the US$3 500.00 which he salvaged. The defendant refused to pay.

In its plea the defendant is alleging that it ought to be absolved of any liability since the plaintiff was involved in the accident by virtue of taking the risk of reversing the motor vehicle on a very steep descend with a very sharp curve whilst under the influence of alcohol. The defendant therefore repudiated the claim within the dictates of the insurance policy taking into account that the plaintiff fraudulently misrepresented the true facts of the previous accidents, and that the plaintiff without the consent and/or approval of the defendant and contrary to the insurance policy disposed of the wreck at the price of US$3 500.00. The defendant further denied the quantum of US$11 500.00.

Two issues were referred for trial in this case as follows:

“Whether or not Defendant is liable for Plaintiff’s claim.

The quantum of the Defendant’s indebtedness to the Plaintiff if any.

ADMSSIONS

That the Plaintiff’s Mercedes Benz E320 Registration Number ADA 9827 was comprehensively insured by Defendant.

That the motor vehicle was damaged…”

The plaintiff gave evidence in support of his claim. One Lloyd Matanhike gave evidence on behalf of the defendant.

The summary of the plaintiff’s evidence was that he was involved in a car accident whilst he was reversing his vehicle. The trunk, windshield and boot of the vehicle were damaged. He obtained three quotations from three repairers who all deemed the car to be beyond economic repair. He produced the quotations as exhibits 1A-1C without any objections from the defendant. He approached the defendant with his claim but it was repudiated. Consequently, he sold the wreckage for US$3 500.00. He is now claiming US$11 500.00 being the difference between the insured value of the vehicle in the sum of US$15 000.00 less the US$3 500 he sold the wreckage for. He denied ever admitting that he drove the vehicle whilst under the influence of alcohol and denied ever making any misrepresentations to the defendant in respect of this accident.

On the other hand the evidence of the defendant was that the plaintiff took the risk of reversing on a steep descent which had a sharp curve when he could have made a round –about turn easily. He said that was one basis for repudiating the policy. He said the other basis for repudiating the policy was that on some earlier incident the plaintiff drove the said motor vehicle under the influence of alcohol and made misrepresentations. He said when the plaintiff was involved in the present accident he was drunk. Lastly he said the plaintiff sold the vehicle without their approval. According to him the vehicle had sustained some damages on its trunk and rear windshield which damages could have been repaired by a general panel beater. He therefore denied liability.

ANALYSIS OF THE EVIDENCE.

The evidence is clear that the plaintiff insured the vehicle in question with the defendant to the tune of US15000.00. It is not in dispute that the plaintiff paid full premium of US$750.00. It is also not in dispute that the accident occurred during the term of the policy. It is common cause that the accident occurred when the plaintiff was driving downhill in reverse. The plaintiff made his claims within the stipulated time frames. The defendant repudiated the claim on the basis that the plaintiff should not have reversed as he did. In its evidence the defendant failed to point to a provision in the policy that says the plaintiff should not have done so. The defendant further raised the issue of misrepresentation. Such misrepresentations were not pointed out other than that the plaintiff previously misrepresented. If indeed the plaintiff misrepresented before that misrepresentation had nothing to do with the current accident. However, the court is alive to the provisions of s 83B (2) of the Insurance Act [Chapter 24.07] which clearly states that:

“2 (a) no policy shall be invalidated; and

(b) no obligation or liability of an insurer under a domestic policy shall be excluded or limited; …on account of any misrepresentation made to the insurer, whether or not the misrepresentation was warranted to be true, unless its correctness was such as is likely to have materially affected the assessment of the risk insured when the domestic policy was issued, renewed, varied or reinstated.”

In casu the defendant failed to prove the requirement of misrepresentation nor that of materiality.

The defendant further alleged the plaintiff was drunk at the time. According to the witness for the defendant the exact words which were uttered by the plaintiff was that he was going to restock his beer. This with the greatest of respect does not mean he was drunk in the absence of other evidence such as a breathalyser or some blood test to show the amount of alcohol in the plaintiff’ blood at the time of the accident. Admittedly, clause 2(c) under the heading General Exceptions in the Insurance Policy, (page 8) of the plaintiff’s Bundle of Documents) say the defendant may only be absolved from liability if an Insured person drives whilst under the influence of intoxicating liquor or drugs or whilst the percentage of alcohol in his blood exceeds the permissible limit at law. Assuming the plaintiff had consumed alcohol, what was material was to show the percentage of that alcohol in his blood. In this case the plaintiff vehemently denied that he had consumed any alcohol.  The other basis for repudiating the police was that the plaintiff misrepresented or exaggerated the extent of the damage to the vehicle. The plaintiff produced three quotations describing the extent of the damages. On the other hand the defendant did not produce any evidence as to the extent of the actual damages to the vehicle.

The above having been said and done I am of the view that there was no basis for repudiating the policy. Consequently, the defendant cannot be absolved from liability on the basis it raised.

QUANTUM OF DEFENDANT’S INDEBTEDNESS

As stated above it is not in dispute that the insured value of the vehicle was US$15 000.00. The three quotations produced by the plaintiff showed that the vehicle was extensively damaged and could not have been economically repaired, hence the defendant had the obligation to pay the full insured value to the plaintiff in the sum of US$15 000.00. When the defendant repudiated the plaintiff’s claim the plaintiff mitigated his loss by selling the wreckage and realized a sum of US$3 500.00. It is trite that a plaintiff seeking to claim damages based on breach of contract has a duty to mitigate his loss. See Rowland Electro Engineering Private Limited T/A Sita Sound Forex v Zimbabwe Banking Corporation Limited HH-3-2007 and Victoria Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 22. There was therefore nothing untoward that the plaintiff did by selling his wreckage after the defendant had repudiated his claim. In this regard the defendant’s liability is reduced by US$3 500.00. The defendant’s liability to the plaintiff is therefore US$11 500.00.

The following orders are therefore made:

IT IS ORDERED THAT

The defendant to pay the sum of US$ 11 500.00 (Eleven Thousand Five Hundred United States Dollars) to the plaintiff being compensation for the plaintiff’s damaged motor vehicle.

Interest on the amount above at the prescribed rate from date of demand to date of payment in full.

Costs of suit.

Mapondera & Company, plaintiff’s legal practitioners

Antonio & Dzvetero, defendant’s legal practitioners