- January 20, 2023
- |Concise Law Reports (CLR), Contracts
Nampolo v Hollard Insurance Company of Namibia Ltd NAHCMD (20 January 2023)
The plaintiff’ and the defendant entered into a written insurance policy agreement on 14 August 2020 under policy number WK NPM 4319977. The personal policy document and the policy schedule constituted the agreement between the parties, in terms of which the defendant insured the plaintiff against losses incurred as a result of loss or damages to the plaintiff’s properties listed under the insured items scheduled. One of those items was the plaintiff’s motor vehicle. On 4 October 2020, an accident occurred on the D1972 road between Gross Barmen and Okahandja, during which incident the plaintiff’s vehicle collided with a tree next to the road. No other vehicles were involved in the accident.
The plaintiff pleaded that whilst driving within the legal speed limit of 120 km/h and exercising proper control of the vehicle, an accident occurred due to him swerving to avoid hitting a warthog, which unexpectedly ran onto the road. As a result of the accident, the plaintiff’s vehicle was damaged beyond economical repair. The plaintiff submitted a claim under claim number 229272 to the defendant in the amount of N$172 000 as the insured value of the said motor vehicle. The defendant, however, declined to pay out the plaintiff’s claim.
The plaintiff then instituted an action against the defendant as a result of damages sustained to the plaintiff`s vehicle following a motor vehicle accident, premised on a policy contract entered into between the plaintiff and the defendant in terms of which the plaintiff`s vehicle was covered under the policy contract. The relief sought by the plaintiff in its particulars of claim was for an order declaring that the defendant dishonouring the Plaintiff`s claim under claim number 229272 was unlawful, and an order directing the defendant to compensate the Plaintiff in accordance with the policy of insurance between the parties, for all damages sustained by the plaintiff as a result of the happening of the insured event/accident.
The Defendant entered appearance to defend the matter and pleaded that it was entitled to repudiate the plaintiff`s claim based on the fact that the plaintiff breached the terms of the agreement. The defendant pleaded that the plaintiff breached the terms of the insurance policy agreement in his attempt to obtain a benefit from the insurance policy to which he was not entitled, by submitting a fraudulent claim for indemnification with the defendant. The defendant pleaded that the plaintiff failed to provide truthful and accurate information on how the accident occurred. Furthermore, the defendant instituted a counterclaim for the recovery of costs incurred by it in order to determine the fraudulent claim.
Having heard the evidence and applied the applicable princilples of law, PRINSLOO J held that:
- The contract of insurance is the primary illustration of a category of contracts described as uberrimae fidei, e. of utmost good faith. Misrepresentation made by an insured when claiming entitles an insurer to repudiate a claim.
- Where there are two stories mutually destructive, before the onus is discharged the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false.
- The plaintiff’s version was fraught with improbabilities and inconsistencies.
- The defendant discharged the onus resting on it on a balance of probabilities and that the plaintiff breached the clauses in the agreement on which the defendant relied to repudiate the plaintiff’s claim.
As a result, the plaintiff’s claim was dismissed with costs. The defendant’s counterclaim was granted