Motsoasele v Lesotho National General Insurance Company (CIV/T/130/99 )

Case No: 
CIV/T/130/99
Media Neutral Citation: 
[2003] LSHC 91
Judgment Date: 
21 August, 2003

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CIV/T/130/99

IN THE HIGH COURT OF LESOTHO


In the matter between:

MICHAEL T. MOTSOASELE PLAINTIFF

AND

LESOTHO NATIONAL GENERAL DEFENDANT

INSURANCE COMPANY


JUDGMENT


Delivered by the Hon. Mr Acting Justice T. Nomngcongo on the 21st August. 2003


This is an action wherein plaintiff, in his capacity as guardian of the minor children of his elder brother, claims from the defendant, an insurance company, payment of certain moneys being loss of support and funeral expenses. This resulted from the death of his elder brother George Motsoasele in a motor accident of which vehicle the defendant was the insurer. He alleges that the death resulted from the negligent driving of such motor vehicle.


In his plea defendant raised two special pleas regarding prescription and locus standing of the defendant. These were later abandoned and I need not dwell on them further. Evidence was then led to prove negligence which the defendant in his plea


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had denied. At the end of the day Counsel for the defendant had to concede and correctly so in my view that the death of George Motsoasele was the result of the negligent driving of insured vehicle. In the result it was clear that liability had been established, the only question remaining being the quantum of damages.


Evidence in this regard was led on behalf of the plaintiff. The sum total of such evidence was an amount probably in excess of the sum claimed for loss of support (some M108,000). No evidence was led regarding funeral expenses and I assume that quite advisedly such claim had been abandoned. On behalf of the defendant evidence was led tending to show that since certain moneys had been paid to the estate of the late George Motsoasele the loss to the plaintiff had somehow been mitigated. I have no reason to disbelieve either version but it is a pointless exercise considering that even the mitigated amount is far in excess of the amount allowed in law by the limitation clause - Section 8 of the Motor Insurance Order NO.29 of 1989. It provides:


"8. (1) The liability of an insurer in connection with any one occurrence to compensate a third party for any loss or damage contemplated in section 6 which is the result of any bodily injury or the death of any person who at the time of the occurrence which caused that injury or death, was being conveyed in or on the registered motor vehicle concerned, shall be limited in total -


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  1. to the sum of M12,000 in respect of any bodily harm on death of any such person who at the time of the occurrence which caused that injury or death was being conveyed in the registered motor vehicle in question


    1. ..................................


    1. in the course of the business of the owner of that registered motor vehicle"


Finally Counsel for the defendant had to admit that they were liable for loss of support up to the maximum of M12,000 but then only in respect of only one of the children Nthabiseng Motsoasele who is a minor and not Thato who is a major.


Evidence was led that at all material times Thato was a student supported by his late father. Indeed his death affected him so much that he didn't do well in his subjects. He still intends to pursue his studies but the death of his father renders this impossible. He would have enjoyed the support of his father in his endeavors but for his untimely death.


Now a father has a legal duty to support his children. That duty does not necessarily terminate upon attainment of majority. The test is whether that such support is still needed or whether such child is able to maintain himself/herself. Thus in Richter v Richter it was held that a daughter who was not only a major but also held a Bachelor's degree but wished to continue with her studies was entitled to her father's support. (Richter v Richter 1947 (3) SA 86 at 92).


The present case is on all fours with the Richter case (supra) and there is no doubt in my mind that the defendant is liable also for the loss of support to Thato.


The assessment of damages is difficult not to mention sometimes arbitrary at the best of times. I am spared this arduous task in the present case because the sums proven even though perhaps somewhat exaggerated in places far exceed the paltry sum of M12,000 allowed by law. In the circumstances I have no hesitation in allowing each of two dependants a sum of Ml2,000 for loss of support.


To that extent therefore the action succeeds with costs.


T. NOMNGCONGO

ACTING JUDGE

21st August, 2003


For Plaintiffs : Mr Mathaba

For Respondent : Mr Laubsher


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