Supreme Court of Mauritius, 29 avril 2026, 2026 PL1 4 – M D P Bono & Eagle Insurance v SamlamAllianz General Insurance & anor

Page 1 of 8

M D P Bono & Eagle Insurance v SamlamAllianz General Insurance & anor

2026 PL1 4

CN 101/21 IN THE DISTRICT COURT OF PORT LOUIS 1 st DIVISION (Civil Side)

In the matter of:- 1. Marie Dominique Pierre Bono 2. Eagle Insurance Limited Plaintiffs v

1. SanlamAllianz General Insurance Limited 2. Nizam Korumtallee Defendants Judgment 1. In their amended proecipe, the plaintiffs averred that at all material times plaintiff no.1 was the owner of vehicle bearing registration number 697, which was being driven by Mrs Marie Noelle Dominique Bono, whilst plaintiff no.2 was the insurer thereof. They further averred that defendant no.1 was, at all material times, the insurer of vehicle bearing registration number 4171 ZS 04, which belonged to and/or was being driven by defendant no.2. 2. The plaintiffs further averred that on 4 June 2011, an accident occurred along New Trunk Road before Wooton roundabout, in circumstances where vehicle no.697 was

Page 2 of 8

motoring along the fast lane towards the south and, as it approached the roundabout, vehicle no.4171 ZS 04, which was proceeding in the same direction on its left-hand side, abruptly changed lane and entered the fast lane occupied by vehicle no.697. In so doing, vehicle no.4171 ZS 04 allegedly knocked against the front left side of vehicle no.697, which was then projected against the guard-rails and sustained further damage. 3. The plaintiffs averred that the accident occurred through the fault, negligence and/or imprudence of defendant no.2. In the alternative, they relied on the custody and control of vehicle no.4171 ZS 04 by defendant no.2 and averred that defendants no.1 and no.2 are jointly and in solido liable for the damage caused. 4. In their amended plea, the defendants admitted that an accident occurred on 4 June 2011 between vehicles no.697 and 4171 ZS 04 along New Trunk Road before Wooton roundabout, but denied the plaintiffs’ version as to how the accident occurred. The defendants averred that vehicle no.4171 ZS 04 was proceeding along the left-hand side lane whilst vehicle no.697 was being driven on the fast lane, when suddenly vehicle no.697 collided with the rear offside part of vehicle no.4171 ZS 04 and thereafter also knocked against the front offside part of the latter vehicle. 5. The defendants further averred that the accident occurred through the sole and exclusive fault, negligence and imprudence of the driver of vehicle no.697. In the alternative, they pleaded contributory negligence and prayed that any damages be apportioned accordingly. 6. During the course of proceedings, the motion for the change of name of defendant no.1 was granted, from Sanlam General Insurance Ltd to SanlamAllianz General Insurance Limited. It was also agreed, subject to liability being found in favour of the plaintiffs, that quantum would stand as follows: • to plaintiff no.1: Rs 15,000/- • to plaintiff no.2: Rs 121,725/-.

Page 3 of 8

7. This Court must therefore determine whether the plaintiffs have proved, on a balance of probabilities, that the accident occurred through the fault of defendant no.2, or whether the defendants have established sole or contributory fault on the part of the driver of vehicle no.697. Since quantum has been agreed upon subject to liability, the principal issue before this court is liability. Analysis 8. I have considered all the evidence on record, including the oral testimonies of the witnesses, the rough sketch produced as Doc P1, the road accident reports produced as Docs P2 and P3, and the submissions of learned counsel for both parties. 9. PS Boodhoo stated that on 4 June 2011, at around 10.30 hours, he attended a road accident at Wooton Road involving vehicles no.4171 ZS 04 and 697. He drew the rough sketch and produced same as Doc P1. He explained that point X represented the point of impact as shown by the driver of vehicle no.697, whilst point Y represented the point of impact as shown by the driver of vehicle no.4171 ZS 04. He further stated that from point X to vehicle B was around 23 metres, and from point X to point D was 9 metres 70 centimetres. 10. In cross-examination, PS Boodhoo explained that point D represented the damaged guard rail near the fast lane, point C the position of vehicle no.4171 ZS 04 after the accident in the fast lane, and point B the position of vehicle no.697 partly on the fast lane and the central reservation. He also confirmed that no brake marks and no debris were noted on the scene, but that there was damaged guard rail over 8 metres. 11. The evidence of PS Boodhoo is significant inasmuch as it objectively establishes that vehicle no.697 came to rest partly on the reservation and that the guard rail had been damaged over a substantial distance. Whilst the rough sketch does not by itself establish which driver was at fault, it supports the plaintiffs’ case that vehicle no.697 was projected after the initial impact.

Page 4 of 8

12. Mrs Marie Dominique Pierre Bono, the driver of vehicle no.697, stated in examination in chief that she was driving on the fast lane towards Curepipe when vehicle no.4171 ZS 04, which was on the left lane, changed lane and hit her vehicle. She stated that the right side of defendant no.2’s vehicle hit the left side of her vehicle, causing her vehicle to be projected. She showed point B on the sketch as the point where her vehicle stopped and point X as the point of impact. She also stated that the guard rail was thereafter damaged. 13. Mrs Bono further denied that she was on the phone at the time of the accident and maintained that the accident was due to the fault of defendant no.2. 14. In cross-examination, Mrs Bono was confronted with the rear offside damage noted on vehicle no.4171 ZS 04. She stated that she could not explain it with precision, but added that after the initial impact her vehicle was “en travers” and might have hit the rear of the other vehicle. She nevertheless remained firm on the essential part of her testimony, namely that defendant no.2 changed lane into her path and caused the accident. 15. I find that, despite her inability to account fully for every item of damage sustained by the other vehicle, Mrs Bono remained consistent on the core circumstances of the accident. Her evidence that she was already on the fast lane and that defendant no.2 moved into that lane was not shaken in any material manner. Her denial that she was on the phone remained unsupported by any independent evidence to the contrary. 16. PS Rosun stated that following the road accident along New Trunk Road, he was called to examine both vehicles at Eau Coulée police station. He put up two reports. With regard to vehicle no.4171 ZS 04, he recorded fresh damages on the offside, namely to the front offside wing panel, front offside wheel arch, front offside door and rear offside wing panel together with the rear plastic bumper. With regard to vehicle no.697, he recorded main impact at the front together with extensive frontal damage, damage to both front sides and scratches to the offside doors and rear offside wing panel. He

Page 5 of 8

also stated that when there is an impact between two vehicles, it is difficult to say whether there would be scratches or dents, or both. 17. I find that the road accident reports do not conclusively establish, on their own, which driver caused the accident. What they do show is that vehicle no.697 sustained substantial frontal damage together with additional side damage, whilst vehicle no.4171 ZS 04 sustained damage on its offside, including rear offside damage. In my view, that pattern is not inconsistent with the plaintiffs’ explanation that there was an initial impact, followed by further contact as vehicle no.697 was projected and ended up “en travers”. 18. Plaintiff no.1, Mr Marie Dominique Bono, stated that he was the owner of vehicle no.697, that his wife was driving the vehicle with his consent, and that he paid to plaintiff no.2 an excess of Rs 15,000/-. 19. The representative of Eagle Insurance, Mrs Bayaram, confirmed that plaintiff no.2 was the insurer of vehicle no.697 and that the amount claimed by plaintiff no.2 had been revised and agreed at Rs 121,725/-, subject to liability being found in favour of the plaintiffs. 20. I now turn to the evidence of defendant no.2, Mr Nizam Korumtallee. In examination in chief, he stated that on 4 June 2011 he was driving vehicle no.4171 ZS 04 near Wooton roundabout, that he was on the right lane when he saw a car coming on high speed at the back, he then put on his flasher to leave the right lane to the left but then he heard a noise at the back. He also stated that something had hit his car on the right bumper next to the tyre. He further said that point Y on the plan was not the point he showed to the police as he was not on the spot for the reconstruction exercise. 21. In cross-examination, defendant no.2 was confronted with material discrepancies between his testimony in court and the version contained in his police statement. Whilst he stated in court that he was on the fast lane, he was confronted with a statement he gave to the police suggesting that he had said that he was driving on the left side at around 60 kilometres per hour. He repeatedly answered that he could not read and did

Page 6 of 8

not know what the police had written. He also gave inconsistent answers as to whether vehicle no.697 had hit him at the rear or in the front. 22. I find the evidence of defendant no.2 to be unreliable on material parts. His version as to the lane in which he was driving was uncertain. His version as to whether the impact occurred at the rear or front of his vehicle was likewise uncertain. His attempt to disown the contents of his own police statement on the basis that he could not read does not, in the circumstances, enhance his credibility. Furthermore, his evidence that point Y was not even shown by him because he was not present for the reconstruction exercise substantially weakens the evidential value of that alleged point of impact. 23. I also note that the allegation that Mrs Bono was on the phone remained a bare assertion. No independent evidence was adduced in support thereof. Mrs Bono expressly denied it. I therefore attach no weight to that allegation. 24. On the issue of negligent driving, it is trite that a driver who changes lane must ensure that such manoeuvre can be carried out safely, must keep a proper lookout and must pay due heed to other users of the road. A failure to do so amounts to imprudence and negligence. I also bear in mind the principles governing liability under Article 1384 of the Civil Code, namely that the gardien of a vehicle is liable for the damage caused by that vehicle unless he proves force majeure or faute exclusive of the victim. 25. Having considered the whole of the evidence, I am satisfied that the plaintiffs’ version is more credible and coherent than that of the defendants. Mrs Bono’s evidence tallies with the aftermath objectively noted by PS Boodhoo, namely the final position of vehicle no.697 and the damaged guard rail. By contrast, the evidence of defendant no.2 was marked by material contradictions on crucial aspects of the accident. 26. I am also not persuaded that the defendants have established contributory negligence on the part of Mrs Bono. The existence of rear offside damage on vehicle no.4171 ZS 04 is not, in the circumstances of the present case, sufficient to prove that Mrs Bono was partly to blame. In light of the totality of the evidence, including the possibility of

Page 7 of 8

secondary contact after the initial impact, I find that contributory negligence has not been proved on a balance of probabilities.

Findings 27. I find that the accident occurred through the fault, negligence and imprudence of defendant no.2, who changed lane without keeping a proper lookout and without ensuring that he could do so safely, thereby colliding with vehicle no.697 and causing it to be projected against the guard rail. 28. I further find that defendant no.2, in his capacity as driver and/or gardien of vehicle no.4171 ZS 04, is liable for the damage caused thereby, and that defendant no.1, as insurer of the said vehicle, is jointly and in solido liable with defendant no.2. 29. I also find that the defendants have failed to prove either faute exclusive or contributory negligence on the part of the driver of vehicle no.697. 30. As regards quantum, the amounts due, subject to liability, were agreed upon by the parties as follows: • to plaintiff no.1: Rs 15,000/- • to plaintiff no.2: Rs 121,725/-. 31. I accordingly order defendants no.1 and no.2, jointly and in solido, to pay: • to plaintiff no.1 the sum of Rs 15,000/-; • to plaintiff no.2 the sum of Rs 121,725/-, together with interests at the legal rate as from the date of judgment until final payment with costs.

Page 8 of 8

C Soobagrah Pillay (Mrs) Senior District Magistrate On this 08 th of April 2026