ARTICLE IN THE SUNDAY EXPRESS OF 20 TO 26 JANUARY, 2013 BY MR. CASWELL TLALI RELATING TO THE MOTOR VEHICLE INSURANCE ORDER, NO. 26 OF 1989 AS AMENDED
We refer to the article by Caswell Tlali published in your edition of 20 to 26 January 2013 under the heading “ STRIP LNIC OF MONOPOLY SAYS CONSUMER GROUP”, our letter of the 25th January 2013 and your telephonic discussion with our Mr. Fraser.
We set out hereunder our response to your above article and trust that you will publish it in order to provide a balanced view to your reading public.
Prior to the introduction of the Motor Vehicle Insurance Order, if a claimant was injured in a motor accident due to the negligence of a driver, the chances of him recovering compensation from the said driver depended on whether the driver was able to pay. If the driver was poor the reality was that he/she could not pay compensation to the claimant and this clearly created an unfair situation as it meant that a claimant would only receive compensation if the driver was wealthy.
The Order thus put a Fund in place to ensure that all claimants would have an equal result; those with a valid claim would receive compensation regardless of the financial position of the negligent driver.
As Government did not have the expertise to run the Fund it appointed an insurer, LNGIC, (referred to as LNIC in the article) to investigate and pay valid claims arising from motor vehicle accidents. It is not a question of LNGIC having a monopoly. LNGIC is the appointed insurer in terms of the Order, has the experience and expertise to run the Fund and is obliged to comply with the provisions contained in the Order.
Your article omits to state that, in terms of this Order, a claimant is not entitled to compensation simply by reason of the fact that he suffered injuries in an accident. He is only entitled to be compensated once he has succeeded in proving negligence on the part of the driver of a motor vehicle and once he has succeeded in proving the quantum of his damages.
Moreover, the Order provides for certain periods within which claims have to be submitted to LNGIC and within which legal action has to be instituted against LNGIC.
These kinds of provisions are common in accident insurance legislation all over the world and not only in Lesotho.
The statement in your article that a claimant is only entitled to a maximum amount of compensation of M12 000-00 is misconceived. In terms of the said Order a claimant has an unlimited claim against LNGIC. Only where the driver of the vehicle in which the claimant was conveyed was solely to blame is such claimant’s claim limited to M12 000-00. In such circumstances, however, the claimant may still proceed against the driver or owner of the vehicle for the balance of his claim.
What your article also fails to point out is that the above provisions and principles place a grave responsibility on LNGIC to comprehensively investigate the merits of each and every claim, as well as the extent of the loss allegedly suffered. Such investigations are not done merely to delay a claim for the purposes of pleading prescription. Should a claimant be of the opinion that too much time is taken up by the investigations, he has the remedy to institute action in the Courts of Lesotho where, ultimately, it will be determined whether there was negligence and what the amount of the damages should be. The Court of Appeal of Lesotho has already found, in this respect, that the prescription periods contained in the said Order are consistent with the Constitution of Lesotho.
The Order sets out fully when and how claims are to be paid. If the provisions of the Order are not complied with LNGIC is not obliged to pay such claims. It is thus advisable for a claimant to have a legal practitioner to assist him and the Order in fact provides for LNGIC to make a contribution to such legal practitioner’s costs if the claim is successful.
The prescriptive periods in the Order are well known to all legal practitioners in Lesotho. Therefore, if a legal practitioner allows a claim to prescribe, the blame cannot and should not be placed on LNGIC or our firm of attorneys. In such instances, the aggrieved claimants have the common law right to claim compensation from the said legal practitioner.
In this respect we emphasise the principle that any aggrieved claimant also has the right to approach any attorney for assistance in his action against the legal practitioner who allowed his claim to prescribe.
Mrs Mathabo McCloy, who is quoted in your article and who is well versed in the provisions of the Order as she was employed by LNGIC some years ago as a manager dealing, inter alia, with claims in terms of the Order, is one of the legal practitioners who has allowed a number of these claims to become prescribed resulting in some of the claimants in question have instituted action against her in the High Court of Lesotho and in a number of such cases having obtained judgment against her. This has also resulted in the attachment of her property in some of the instances.
This has obviously caused Mrs McCloy some considerable embarrassment. She has exhausted every avenue in an attempt to avoid this embarrassment but neither the Courts, the Government or any other body has assisted her because there is no merit in what she claims.
As concerns the contention that huge fees are paid for medical examinations, this is also not correct. Almost all the statutory medical reports are completed by local doctors. Where LNGIC request that a claimant submit to a medical examination by a medical professional of its choice, as it is entitled to do, it is obliged to accept liability for the cost of such examination.
The allegation that claimants are not able to issue summons to protect their claims as they do not have the money to do so is also based on a misconception. Rule 16 of the High Court Rules allows an indigent plaintiff to bring proceedings by applying to the Registrar to bring such proceedings and, if the Plaintiff is truly indigent, free legal representation will be provided. In addition, an indigent plaintiff can approach Legal Aid for assistance with the institution of such an action. There is thus no bar to an indigent plaintiff instituting action.
In the premises, we strongly reject any suggestion of improper and unfair conduct by ourselves and LNGIC in your article. Such allegations should in future be submitted to us for fair comment before publication thereof.