The plaintiff (respondent in this appeal)'s omnibus was damaged in a road traffic accident attributed to the negligence of the second defendant's driver. The first defendant was made a party under the principle of subrogation as an insurer of the second Defendant. The first defendant paid for the repairs but resisted to pay for attar was referred to the first Defendant who requested the plaintiff to obtain three quotations. The first Defendant paid the repair costs based on the lowest of the quotations. The Plaintiff asked to be paid for the loss of use of the Omnibus but this was resisted by the defendants on the basis that when the repair costs were paid to the plaintiff, he had signed a form of release which included the following term:
"I/we hereby release and forever discharge and indemnify HELMOS Transport and/or The Zambia State Insurance Corporation Limited from all claims competent to me/us whether now or hereinafter to be manifest relating to personal injuries, damages, loss of us of my/our vehicle AAC 4405 or consequential loss of any nature, and all actions or suits at law of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by HELMOS Transport prior to and including the date hereof."
The learned trial judge heard evidence and accepted the plaintiff's averment that at the time of accepting the cheque for repair charges and signing the release form the Plaintiff had insisted that he would like to be compensated for the loss of use and he was verbally assured he could still make such claim. There was evidence from the Plaintiff which the learned trial judge accepted that an official of the first Defendant had told the Plaintiff that while the first Defendant would pay for the repairs the Plaintiff must look to the second Defendant for the loss of use. It was also common ground that the release form was signed by the Plaintiff alone; that it was marked "without prejudice" and that the first Defendant's covering letter forwarding the cheque for repairs indicated that it was in respect of the repairs only. The learned trial judge was not impressed by the Defendant's case based on the release form and entered judgment for the Plaintiff for the loss of use to be assessed by the Deputy Registrar. It is against such judgment that the Defendants have appealed to this court.