CIV/T/26/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

QOBOLOANE
RAKOENA Plaintiff

V

NGAKA
MOPOLO Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 27th day of August,
1982.

According
to the declaration the plaintiff's claim against defendant is for
damages for personal injuries allegedly caused by defendant's

negligence as a result of the latter's vehicle colliding with the
plaintiff.

Defendant
filed a notice to defend the action.

There
were the usual requests for further particulars but of a particular
interest in this case are the answers furnished by the
plaintiff to
the defendant's request for further and better particulars which were
phrased as followed (with plaintiff's answers
in brackets after each
request):

1.

Was the
Defendant in this matter served witha prescribed claim form in terms
of Order 18 of 1972 being the motor vehicle Insurance
Order, if so
copy thereof is required.

(Defendant
was not so served).

2

Has
plaintiff complied with s. 14 of Order XVIII of 1972 as amended being
the motor vehicle Insurance Order.

2

(No).

3.

Was the
Defendant served with a prescribed statutory medical report in terms
of the regulations to Order XVIII of 1972, if so, when,
give the
dates please.

(Defendant
not served).

4.

Why is
the Defendant sued personally in this matter?"(He is personally
liable).

The
replies to the above questions go to the very root of the issue to be
decided at the moment because the defendant has filed
a plea in
abatement which has as its object the quashing of the action in this
particular case because the obligatory provisions
of the law have not
been complied with.

It was
conceded by counsel for the plaintiff that defendant's vehicle had
been insured at the time the cause of action arose. However,

plaintiff did not proceed against the insurance company because he
had been prescribed and by that he meant the period within which

action ought to have been initiated had expired. No proof was placed
before this Court that the Insurance Company had indicated
that it
had closed all avenues of negotiations with plaintiff.

Section
16 of Order 18 of 1972 reads, in part :

"When
a person is entitled under section 13 to claim from a registered
company any

compensation
in respect of any ........damage resulting from any bodily
injury......... arising out of the driving of amotor vehicle
insured
under this Order by the owner thereof or by any other person with the
consent of the owner, the first mentioned person
shall not be
entitled to claim compensation in respect of ........damage from the
owner or from the person

3

who drove
the vehicle as aforesaid or if that person drove the vehicle as a
servant in the execution of his duty from his employer
unless the
registered company concerned is unable to pay the compensation."
(My underlining).

The
section is very clear. Where a vehicle is insured and while so
insured, through its damages are caused which result in bodily

injuries, the Insurance Company must first be served with a claim by
whoever wishes to claim. Before that is done the owner of
the
vehicle; the person who drove it, with his consent, nor his servant
in the execution of his duties, may be personally sued
or a claim
made against them. That can only occur only where the company
concerned i.e. insurance company, has been proved to be
unable to pay
the compensation.

In the
present case, as stated earlier, it has been conceded that the
provisions of section 16 of Order 18 (supra) are applicable
but it
has not been proved that the provisions of this section have been
complied with. Indeed, the answer to the fourth request,
as quoted
earlier in this judgment, places this beyond any doubt. The defendant
is being sued because he is personally liable.
That will only be
allowed by the law when the company concerned is unable to pay
compensation. In this case there is no such proof
as there was no
such an attempt on the part of the plaintiff.

It was
therefore with no surprise when, half-way his argument, Mr. Moorosi,
counsel for the plaintiff informed the court that he
no longer wished
to oppose the inevitable. It takes a man to surrender. It was a wise
decision under the circumstances.The plaintiff's
summons as amplified
by further particulars is hereby quashed.

4

The party
have requested that there be no order as to costs and consequently
the court makes no order for costs as per request.

JUDGE.

For the
Plaintiff : Mr. M. Moorosi

For the
Defendant : Mr. O.K. Mofolo.