Green Fuel Pvt Ltd has won an appeal against a High Court judgement granting a transporter US$13 000 damages for loss of business and the replacement value of her commuter omnibus which was involved in an accident following negligence by the company’s driver.
On December 2 2018, a commuter omnibus owned by Hessie Mupfuri was involved in a head-on collision with a Howo truck driven by Tawanda Njanji employed by Green Fuel killing several people on the spot.
Mupfuri’s driver died on the spot while the omnibus suffered extensive damage.
She contended that Njanji caused the accident and went on to sue Green Fuel because it was vicariously liable for the delict of its employee.
The High Court then ruled in favour of Mupfuri ordering the company to pay US$13 350 in damages.
The company was also ordered to pay US$150 per day calculated from the 1st of March 2019 up to the full payment of the value of the omnibus.
The claim was contested by the appellant who denied that the accident had occurred as a result of the negligence of its employee.
Greenfuel averred that the driver of the omnibus had encroached into the oncoming traffic lane thereby colliding with the Howo truck.
It also averred that the omnibus was operating outside its authorised route.
Green Fuel also disputed the currency of the first respondent’s claim arguing that the Reserve Bank of Zimbabwe (Legal Tender) Regulations, S.I. 142/2019 had abolished transacting in foreign currency.
For that reason, it contended that it was not competent for the first respondent to claim damages in United States dollars.
The Supreme Court bench comprising Justices Tendai Uchena, George Chiweshe and Felistas Chatukuta upheld the appeal ruling that the High Court erred when it reached that decision.
“The order of the court a quo is flawed in several respects. Under para (a) of that order the court a quo absolved the appellant from the first respondent’s claim for the replacement value of the commuter omnibus in the sum of US$ 12 666.00.
“By dint of that order, the court a quo absolved the appellant from the obligation to pay damages for the loss of the motor vehicle.
“That notwithstanding, the court a quo surprisingly directed that the appellant pays the sum of US$ 13 350.00 being damages for loss of business from 2 December 2018 to 28 February 2019 in instalments of US$ 150.00 per day and a further US$ 150 per day from 1 March 2019 up to the full payment of the value of the vehicle.
“Once the appellant is absolved in that respect the order to pay US $ 150 per day till the replacement value of the vehicle is paid up is meaningless since the appellant has been absolved from liability to pay that replacement value,” said the judges.
The Supreme Court also said the order for Green Fuel to pay US$150.00 per day for loss of business from 2 December 2018 to 28 February 2019 could not stand because, in her claim for loss of business, Mupfuri omitted to deduct from the anticipated profit certain expenses which are incurred directly in the operation of her business.
“The appeal has merit. It must succeed. The appellant has shown that there being no order in favour of the first respondent for payment by the appellant of the replacement value of the omnibus, it was not competent to order such payment in instalments,” ruled the court.
Mupfuri and two other witnesses testified in support of the claim for damages.
She told the High Court that she had purchased the omnibus in South Africa a year before the accident.
Mupfuri could not produce receipts of the purchase price but relied on quotations from three car dealers in Mussina, South Africa. The second witness was a passenger who had survived the accident said the accident occurred when the omnibus was parked at the bus stop.
He attributed the cause of the accident to the negligence of the driver of the truck.
Source NewZimbabwe
