Protas Raphael v. Nassoro Saidi Nasoro & another civ no 13 of 2001 (compensation)

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM REGISTRY

AT DAR ES SALAAM

CIVIL CASE NO. 13 OF 2001

PROTAS RAPHAEL……………………..…………………..PLAINTIFF

VERSUS

1.  NASSORO SAIDI NASORO……………………. 1^ST DEFENDANT

2.  SADIQ HUSSEIN KHATAU…………………..…2^ND DEFENDANT

JUDGMENT

KALEGEYA, J.:

        The Plaintiff claims from the Defendants as follows:

a)            That the Defendants be jointly and severally held liable to pay the Plaintiff a sum of T.Shs. 25,000,000/= being compensation for both maintenance of the dependant of the Estate of the deceased, anguish and psychological pains suffered by plaintiff and other dependants.

b)           General and punitive damages to be assessed by the court by both 1^st Defendant as an employee and 2^nd Defendant as employer and owner of the said motor vehicle with registration No. TZC 2725.

Hearing proceeded exparte.

        The Plaintiff is a Legal Representative of the deceased’s estate having been so appointed on 20/10/2000 by the Manzese Primary Court in Probate Cause No. 103/2000.

The Plaintiff called two witnesses and tendered two documentary Exhibits (P1 and P2).

Both PW1 and 2 (Protas Raphael and Peter Mwedisinga, respectively) deposed that one Raphael Mazengo died due motor vehicle injuries; that the relevant M/v, Reg. No. TZC 2725 knocked deceased down at Manzese; that the driver of the said vehicle did not carry the deceased to Muhimbili Hospital as indicated shortly after the accident but instead off-loaded and abandoned him after leaving the scene of accident.  He was taken to Hospital by good Samaritans.  He died three days later.  The vehicle and driver were subsequently traced.  The latter was arrested and charged with causing death through careless driving and driving a motor vehicle without a valid Certificate of Insurance.  He was convicted of the former and acquitted of the latter.  He was sentenced to a fine of 30,000/= or 24 months in jail.  This is also as per Exh. P1, a copy of judgment in Traffic Case No. 582/98 of Ilala District Court at Kinondoni – R v Nassoro Said Nassoro.

As regards the cause of death, Exh. P2, a postmortem Examination Report shows that the deceased, Raphael Uliza Mazengo died two days prior to the date (22/1/98) when the postmortem was conducted and that the cause of death was “Multiple Injuries with Multiple Fracture of upper and lower limb Bones”.

The Plaintiff deposed that the compensatory sum is claimed because deceased was the bread earner for the family including seven children who no longer go to school.  Compensation is also claimed for serious psychological pains and suffering by the children and family.  It was also deposed that the deceased was both a farmer at Busoga, Bagamoyo and a businessman at Tandale market earning between Tshs. 200,000 and 300,000/= a month.

On the evidence available, it has been established that indeed the deceased died due injuries caused by the motor vehicle belonging to the 2^nd Defendant and driven by the 1^st Defendant and that the latter was at the time driving carelessly.  Both the driver and the owner are liable to effect compensation to the family for the loss sustained due to the departed for good bread-earner.  The 2^nd Defendant comes in on grounds of vicarious liability.

The next question is how much should this Court order as a befitting compensation?  Although it is difficult to assess, in monetary terms, the loss of a bread-earner let alone of human life, considering the deceased’s status in life as portrayed by the Plaintiff, I am persuaded that the sum of shs. 25 million claimed is reasonable.  It is accordingly granted.  However, the claim under prayer (b) having not been proved stands disallowed.

In conclusion, judgment is hereby entered in favour of the Plaintiff for a compensatory sum of shs. 25 million with costs.

DATED at DAR ES SALAAM this          day of                   2009.

L. B. KALEGEYA

JUDGE

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