AN insurance company has dragged Transport and Communications Minister Mutotwe Kafwaya, trading as Nsansamina Enterprises, to court for allegedly refusing to surrender a Hino Truck that was involved in an accident after the insurance company fully compensated him for the loss and damage.
Swan General Insurance Company Zambia Limited wants a declaration that it is entitled to the said motor vehicle, being Hino Truck registration No. ABZ 5827 and an order that the defendant, Kafwaya (trading as Nsansamina Enterprises) releases, or surrenders the motor vehicle to it.
It also wants the Lusaka High Court to order the defendant to pay it damages for loss of use of the motor vehicle, any other reliefs that the Court may deem fit, interest and costs.
In a statement of claim filed in the Lusaka High Court recently, Swan General Insurance Company Zambia Limited stated that Kafwaya was a businessman and transporter.
The insurance company stated that on December 6, 2017, the defendant commenced an action in the High Court under Cause No. 2017/HP/2134.
It stated that in the said matter, the defendant was claiming an order for payment of K170,000 for reimbursement under the comprehensive motor vehicle insurance policy that was taken out on a Hino Truck registration No. ABZ 5827, which was involved in an accident on March 22, 2016, in South Africa; and an order for payment of K1,100,000 for loss of business earnings, among others.
The insurance company stated that on January 11, 2019, the Court delivered judgement in favour of the defendant in which it found that Swan General Insurance Company was liable to indemnify the defendant against any loss or damage to the motor vehicle that was occasioned as a result of the accident.
It stated that the Court further directed that the matter proceeds for assessment before the registrar to ascertain the loss or damage to be reimbursed.
The insurance company stated that on February 5, 2020, the Registrar awarded the defendant K156,000 as total reimbursement of motor vehicle and K272,658 as damages for loss of business and other relief.
It stated that on March 6, 2020, the parties obtained a consent judgement where it was agreed that the defendant be paid the total sum of K428,000 as full and final settlement of all his claims.
The company stated that on May 22, 2020, the defendant refused to accede to the demand for the release and surrender of the vehicle after being fully compensated for the loss, and argued that the judgement and consent judgement did not mention anything of the return of the motor vehicle.
“The plaintiff will demonstrate at trial that the defendant was fully indemnified thus, placed in the same position that he was immediately prior to the accident and, therefore, not entitled under any circumstances to recover more than his financial loss by holding onto the motor vehicle. The plaintiff will contend at trial that it is entitled to the motor vehicle upon having the defendant compensated and will stress that the principle of indemnity would be defied if the defendant is allowed to retain the motor vehicle after being indemnified to the full extent of his loss,” read the claim.
It stated that as a result, it has suffered loss, injury and damage.