The recent accident that led to the total loss of a brand new Range Rover, while it was being delivered to its owner in Nairobi, has raised several questions about compensation due to the circumstances of the crash.
The accident on the Mombasa-Nairobi Highway resulted in the total destruction of the vehicle, which collided head-on with a Canter lorry transporting grain.
“Jamal Mubarak, male adult aged 37 years, was driving a motor vehicle make Range Rover from Mombasa heading towards Nairobi. On reaching the location of the accident at Maji ya Chumvi area, while overtaking improperly, collided head-on with an oncoming motor vehicle Isuzu FRR,” said the report, noting that the vehicle did not have a registration number yet and was still using a temporary one.
The impact of the collision was severe, resulting in the immediate deaths of Mubarak and an unidentified female passenger, while three other individuals were injured and rushed to Mariakani Sub-County Hospital for treatment.
High Court Advocate J.V. Mwongole states that when a vehicle is damaged during delivery before reaching its owner, three key factors are considered in determining compensation for the buyer.
Change of Ownership
The initial step involves determining when ownership and risk transferred from the dealer to the buyer. If the contract indicates that risk transfers upon delivery, the dealer will cover the loss. On the other hand, if the risk transfers at the point of sale, the buyer will be responsible for the loss.
“If the contract is such that the risk passes to the buyer upon delivery of the car, then the dealer might bear the loss. Conversely, if the nature of the contract is one that passes ownership and all the risks to the buyer at the time of the sale (once the transaction is completed), then the buyer might bear the risk,” Mwongole told a local media house.
Determining Who Contracted The Driver
The next step is to identify who contracted the driver for the car’s delivery. The person who hired the driver will be liable for the costs, particularly if the accident was caused by the driver’s negligence.
“For instance, if the driver was hired by the dealer and was acting as his agent/servant/employee, then the dealer might be liable for damages, especially if the driver’s negligence caused the accident. Similarly, if the buyer hired the driver and was acting as the buyer’s agent/servant/employee, with express permission to deliver the car, then the buyer might as well bear the risk, particularly if it’s established that the driver’s negligence caused the accident,” he added.
Determining The Insurance Status of the vehicle
The next crucial step is to assess the vehicle’s insurance status. Typically, car dealerships and logistics companies have insurance policies to cover damages incurred during transport. The dealership or shipping company would generally file a claim with their insurer.
However, if the vehicle was uninsured, the decision on who covers the loss will depend on the terms of the contract between the buyer and dealer.
“If it was insured, the insurance company should cover the damages according to the terms of the policy. If it wasn’t insured, the ball rolls back to the buyer and dealer, and the nature of the contract they signed comes into play,” he stated.
It is important to note that if a dispute arises or if the dealership fails to meet its obligations, the car owner may need to pursue legal action. This could involve filing a complaint with consumer protection agencies or taking the matter to court.
Car buyers are hence advised to thoroughly review the terms and conditions of their purchase agreements and any related insurance policies.
