Shivji v. Pellegrini, Civ. Cas. 23-D-69; 26/10/71; Onyiuke, J.

 

Shivji v. Pellegrini, Civ. Cas. 23-D-69; 26/10/71; Onyiuke, J.

The plaintiff’s motor vehicle which was being driven by his driver was in collision with the defendant’s motor vehicle and as a result the plaintiff’s vehicle was damaged beyond repair and his driver received extensive personal injuries. The plaintiff was obliged to pay his driver a total of Shs. 14,132/65 by way of compensation and for medical expenses under the Workmen’s Compensation Ordinance. The plaintiff sought to recover this amount from the defendant and asked to amend the plaint to include the claim.

            Held: (1) “Order V1 Rule 17 of the Civil Procedure Code provides as follows ‘The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties’. The principle on which the court will exercise this discretion were discussed in Eastern Bakery v. Castelino (1958) E.A. 461. As a rule amendment to pleadings should be freely allowed if they can be made without injustice to the other side. The powers of amendments to pleadings should be freely allowed if they can be made without injustice to the other side. The powers of amendment should not be used to substitute one cause of action for another or change an action into another of a substantially different character. Subject to this, the fact that an amendment may introduce a new case is not a ground for refusing it.” (2) “The plaintiff had to establish negligence in order to succeed in the pending suit just as he has to establish it in order to establish the right to indemnity under s. 23(3) of the Workmen’s Compensation Ordinance was statute barred under Article 22 of the Schedule to the Indian Limitation Act which he submits is applicable to this case since the cause of action accrued before the Law of Limitation Act No. 10 of 1970 came into operation on the 1^st March 1971. I agree that where an amendment would prejudice the rights of the opposing party in that it would deprive him of a defence of limitation which has accrued since the filing of the suit it should be refused. The question for consideration is whether the plaintiff’s claim under s. 23(3) of the Workmen’s Compensation Ordinance is time-barred.” (3) “The accident occurred on the 30^th September 1967. The plaint in this case was filed on the 1^st March 1969, the compensation was paid to the plaintiff’s driver in September 1968 and the plaintiff’s right to indemnity accrued as from the date of payment. The present application to amend the plaint was filed on the 6^th October 1971, that is to say, 3 years after the right of action accrued. I accept the submission by Mr. Talati, learned counsel for he plaintiff/applicant that the law that applies in this case is the Law of Limitation Act (No. 10 of 1971) and that the claim under s.23(3) of the Workmen’s Compensation Ordinance

Is not a claim in negligence for personal injuries but a statutory claim to indemnity based on proof of negligence.” [His lordship then referred to S. 48 of the Limitation Act and proceeded]: “This case comes under s. 48(1) of the Act Article 10 of Part I of the First Schedule to the said Act provides 6 years as the period of limitation for a ‘suit to recover any sum recoverable by virtue of a written law other than a penalty of forfeiture or sum by ways of penalty or forfeiture’. I hold therefore that the plaintiff’s claim under s. 23(3) of the Workmen’s Compensation Ordinance is not time-barred.” (4) “There is the further consideration that the defendant has, since the date of the accident (30/9/67), been absent from Tanzania. S. 20 of the Law of Limitation Act provides for any suit the time during which the defendant has been absent form the United Republic shall be excluded. The circumstance that under the Civil Procedure Code the defendant could have been served with a summons during his absence from the United Republic is irrelevant to the application of s. 20 of the said Act. (See (1894) 1 Q. B. 533 and (1894) 2Q.B.352).”