THE Court of Appeal has served the Phoenix of Tanzania Assurance (T) Limited and two others from paying 90m/- as compensation to a passenger following a road accident, which made him to lose conjugal rights and enjoyments, among other sufferings.
Justices Mbarouk Mbarouk, Richard Mziray and Mwanaisha Kwariko ruled in favour of the insurance firm, Geled Mango, a driver of a bus and the Managing Director of Sandhru Coach Limited, as respondents, after dismissing the appeal the passenger, Mr Alfred Fundi, as appellant, had lodged.
In the appeal, the appellant had sought to challenge the decision of the High Court, which had awarded him only 500,000/- after being involved in a passenger bus accident that occurred in 2007 where he suffered several bodily injuries, apart from losing the conjugal rights and enjoyments. During the trial of the case, the appellant had demanded the respondents to pay him 3m/-as medical treatment and hospital expenses for suffering bodily injuries, dislocation of the neck bone, hip joint and head injuries and losing strength of three teeth.
He also pressed for 87m/- as general damages. In their judgment delivered in Mwanza City recently, the justices of the appeals court pointed out that the law relating to special damages is settled and that they could not be granted unless specifically pleaded and proved. “In the instance case, the appellant had not produced any documentary evidence to substantiate and justify the claim.
As such therefore, there was no verifiable evidence to prove that the appellant incurred costs,” they said. According to them, there should have been proof that the appellant actually sustained those injuries following the accident and consequently he incurred specific costs and medical expenses for his injuries and such costs and medical expenses should have been supported by respective medical receipts.
On the award of 500,000/-, the justices said that the law was also settled that general damages are awarded by trial judge after consideration and deliberation of evidence on record to justify the award.
The judge, they said, has discretion in awarding the damages although he assigns reasons. When awarding the damages, the justices noted that the trial judge stated that it would be just and fair for the appellant to be given some compensation on the injuries sustained and considering the accident happened in 2007, the amount of 500,000/- as damages would cover the pain and sufferings.
“On that basis therefore, we are of the considered view that the award of 500,000/- was with reasons. Taking the assigned reasons and the fact that the award given was only for the injuries of hips, mouth and teeth, then the amount was sufficient and met the justice of the case,” they ruled. The justices went on holding, “The allegations that (the appellant) suffered mental confusion, loss of conjugal rights and enjoyment are not supported by evidence.
The first appellant court properly rejected these allegations. “As such, therefore, no ground was established for this court to interfere with the assessment and quantum of damages awarded by the (High Court). That said and done, we hold that the appeal lacks merits and is hereby dismissed.”
On October 23, 2007, the appellant was travelling in a bus from Musoma to Mwanza. The said bus which is owned by the Managing Director of Sandhru Coach Limited was being driven by Geled Mango. When the bus arrived at Lukungu/Lamadi in Magu District, Mwanza Region, it collided with another bus.