Accident victim wants court to nullify insurance order

MASERU — A motor accident victim has filed an urgent application in the Constitutional Court seeking to nullify a Motor Vehicle Insurance Order section which he says is inconsistent with the constitution.

Sekoati Limo, 22, also wants the court to declare that section eight of the order shall not apply to and govern all claims lodged with the Lesotho National Insurance Company (LNIC).

The section says individuals can only file their claims within two years.

The respondents are the LNIC, Finance Minister Leketekete Ketso, Law and Constitutional Minister Haae Phoofolo and the Attorney General.

Limo, from Ha-Tšosane, was involved in a car accident in January 2011 near Tiping in Likalaneng, a mountainous rural area in Thaba-Tseka.

The minibus he was in overturned and he sustained serious injuries together with six other passengers.

His injuries include a fractured bone of upper arm, two bones of forearm, the two bones between knee and ankle, and left thigh bone.

Limo has a stiff right elbow joint and stiff right ankle because of the injuries he suffered.

His major point of contention is that according to the order LNIC’s liability in a car accident is limited to M60 000 only where the injured people are more than one irrespective of their number.

This means that if a 65-seater bus overturns and all passengers get seriously injured LNIC will compensate them with only M60 000, which they will share.

Limo also complains that according to the order, LNIC’s liability ceiling is only M12 000 for a single injured passenger during an accident.

“It is on the basis of the foregoing that I find the provisions of Section eight to constitute a serious infringement of my fundamental rights and freedoms as protected by the Lesotho Constitution,” says Limo in an affidavit.

He claims that section eight of the order is discriminatory in that “there is no rational basis for treated (sic) me and other similar victims differently from other road accident victims whose claims are not affected by the Section 8 of the order.”

“We are all victims of negligent driving of motor vehicles yet the law affords different treatment,” Limo said.

“The Motor Vehicle Insurance Order 1989 does not afford all victims equal protection and right to claim compensation,” he said.

“The majority of victims that stand to suffer from this differentiation are poor people like myself who use public transport on a daily basis as their mode of transport.”

Limo tells the court that the minibus he was travelling in overturned “solely due to the negligent driving on the part of the driver . . . who had been speeding and lost control . . .”

“At present I am unemployed and looking at my medical condition, the chances of getting any meaningful employment are almost non-existent,” he says.

“I am only aged 22 [years] and would prefer to further my studies but with my writing hand now dysfunctional I may as well forget about schooling.

“The cap placed by Section 8 of the order does not take cognisance of all these factors and many more.”

He also asked the court to order that the expiry date of his claim be moved forward pending finalisation of his case.

In his opposing affidavit LNIC managing director, Ralitapole Letsoela, says Limo’s application on section 18 of the constitution which prohibits discrimination is baseless.

Letsoela says the constitution prohibits a state organ from treating “one racial group differently from another wholly or largely on the basis of race”.

He says according to the constitution, it is illegal to discriminate a person only on account of his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

“Section 18 [of the Constitution] does not have application where there is not different treatment on the basis of one of the protected categories,” Letsoela said.

He says the order is meant to provide compensation for bodily injury or death caused by reckless driving.

“As the compensation ultimately comes from public money, there must, however, necessarily be a cap on the amount of compensation which is payable,” he said.

“The higher the compensation which is payable, the greater the fuel levy would have to be, and thus the higher the petrol or diesel price.”

Letsoela says Limo’s argument that the order impacts unfairly on the unemployed, poor income earners and students does not assist him or further his case.

“For a start, those are not people who constitute a readily identifiable or distinguishable group, and thus a body of persons who could even remotely qualify for protection under section 18 of the Constitution.”

Limo’s case comes four years after a local third-party lawyer, ’Mathabo McCloy, failed to convince the government that either LNIC’s interpretation of the order is wrong or the order itself is flawed.

McCloy claimed that LNIC used legal technicalities to refuse compensation for her 250 clients, some of whom used the insurer’s lawyers to sue her for failure to claim for them.

Earlier this year, the Consumer Protection Association announced that it was campaigning for a review of the order and to strip the LNIC of its monopoly to manage the Road Traffic Accident Fund.