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Kumar v Dayal [2022] FJHC 16; HBC272.2017 (21 January 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 272 of 2017

BETWEEN:

BAL SUDHA KUMAR of Lot 1 Pritam Singh Road, Nasinu, Suva as the lawful wife and Administratrix of the ESTATE of her husband ANIL KUMAR of Lot 1 Pritam Singh Road, Nasinu, Suva, Deceased.

PLAINTIFF

AND:

VISHAL SAVENDRA DAYAL of 65, Lady Narain Drive, Tamavua, Sales and Marketing Officer.

FIRST DEFENDANT

DAYAL COMPANY LIMITED a limited liability company having its registered office at 65, Lady Narain Drive, Tamavua, Suva.

SECOND DEFENDANT

BEFORE:
Hon. Justice Vishwa Datt Sharma

COUNSEL:
Mr. Chand A. for the Plaintiff
Ms. Haniff F. for the Defendants

DATE OF DECISION:
Friday 21^st January, 2022 @ 9.30am

JUDGMENT
[Personal Injuries Claim for Damages]

INTRODUCTION

1. The Plaintiff in her capacity as the lawful wife and the Administratrix of the Estate of her late husband Anil Kumar claims damages under various heads for personal injuries from the Defendants:
   
   • (a) Special damages;
   • (b) General damages;
   • (c) Damages under the Law Reform (Miscellaneous Provisions) (Death and (Interest) Act for loss of prospective earnings and for loss of expectation of life;
   • (d) Section 3 Law Reform (Miscellaneous Provisions) (Death and (Interest) Act 27 on the award of damages at the rate of 6% per annum from the date of service of the Writ on General Damages and at the rate of 3% per annum from the date of accident on Special lamages;
   • (e) The Plaintiff claims interest on Judgment sum at 4% pursuant to Law Reform (Miscellaneous Provisions) (Death and (Interest) (Amendment) Act 2011 until full payment;
   • (f) Costs;
   • (g) Such other relief as the Court deems just and equitable in the circumstances.
     
2. The Plaintiff pleaded her claim in negligence as outlined hereunder-
   
   • That the Deceased at all material time was a Taxi Driver of vehicle registration number LT559 and he was operating his taxi from Bure Taxis based at Princess Road, Tamavua.
   • That the 1^st Defendant at all material time was driving a four wheel drive Nissan van having a personalised registration number as JNJ.
   • That the 2^nd Defendant at all material time was the registered owner of the vehicle registration number JNJ.
   • That on or about 20^th May 2016 at 2150hrs, the Deceased was driving his taxi registration number LT559 along Kings Road, Centrepoint, 4 Miles travelling towards Nabua, when the vehicle registration number JNJ driven by the 1^st Defendant travelling towards Nausori went onto the lane in which the Deceased was travelling collided with the Deceased taxi resulting in the Deceased’s Taxi sustaining massive damage and the Deceased losing his life.
   • That the said accident took place as a result of negligence and/or breach of statutory duty on the part of the 1^st Defendant for whose negligence the 2^nd Defendant is Vicariously Liable.
     
3. The Plaintiff sets out the Particulars of? Negligence by the 1^st Defendant as follows-
   
   1. Driving at an excessive speed having regard to all the circumstances;
   2. Failing to keep any or any proper lookout or to have any or any sufficient regard for the Deceased who was driving on the opposite lane on the road;
   3. Failing to take reasonable control of his vehicle on the road to avoid accident;
   4. Failing to stop or slow down or so to manage and control the said vehicle as to avoid the said accident;
   5. Driving the said vehicle at such speed and in such a manner that he failed to stop it in time or to avoid the said accident;
   6. Failing to apply the brakes in time or at all or to steer or control the said vehicle as to avoid striking the Deceased’s Taxi;
   7. Failing to follow the road rules and swerved onto another lane on which the Deceased was travelling or in any other way so to manage or to control his vehicle and colliding with the Deceased’s vehicle;
   8. Failing to exercise such degree of care and control over his said vehicle as was warranted having regard to all the circumstances;
   9. Failing to control the vehicle within sufficient time or all to save the said accident;
   10. Driving the said vehicle without due care and attention.
       
4. The Plaintiff in her Statement of Claim at paragraph 7 she pleaded that as a consequence of the immense impact of the collision, the Deceased sustained severe injuries and died upon reaching at the Accident and Emergency Ward at CWM Hospital, Suva.
   
5. The Defendants in their Statement of Defence filed on the 24^th October 2017 stated that Save to admit the fact of the accident on 20^th May 2017 between Motor Vehicle Registration Nos. JNJ and LT559, they deny the allegations in paragraph 5 of the statement of claim and puts the Plaintiff to strict proof of her allegations.
   
6. Further, the Defendants denied the allegations in paragraph 6 and says that the accident was wholly caused by and/or contributed to by the Plaintiff and sets out the following Particulars of Negligence:-
   
   • (i) Failing to keep any or any proper lookout;
   • (ii) Failing to control his vehicle in such a manner as to avoid the accident.
     
7. The Defendant further say Save and except as expressly admitted in the Statement of Defence, the Defendants deny each and every allegation of fact in the Statement of Claim as if the same were set out seriatim in this document and specifically traversed.
   

Admitted Facts in the Pleadings

8. From the pleadings, the Defendants admitted the following facts:
   
   • (i) The First Defendant at all material time was driving a four wheel drive Nissan van having a personalised Registration Number as JNJ.
   • (ii) That the 2nd Defendant at all material time was the registered owner of the vehicle registration number JNJ.
   • (iii) The fact of the accident on 20^th May 2017 between Motor Vehicle Registration Nos. JNJ and LT559, the Defendant’s deny the allegations in paragraph 5 of the Statement of Claim and puts the Plaintiff to strict proof of her allegations.
     

Pre-Trial Conference Minutes

9. Following were the Agreed Facts within the Pre-Trial Conference Minutes-
   
   • (a) That the Plaintiff is the legal wife and next of kin of the Deceased namely late Mr Anil Kumar and is also the Administratrix in the Estate of Anil Kumar pursuant to Letters of Administration Number 59070.
   • (b) That the Deceased at all the material time was a Taxi Driver of Vehicle Registration No. LT559 and he was operating his taxi base at Princess Road, Tamavua.
   • (c) That the 1^st Defendant at all material time was driving a four wheel drive Nissan van having a personalised Registration Number as JNJ.
   • (d) That the 2^nd Defendant is the Registered Owner of the vehicle number JNJ.
     

At The Hearing

10. The Plaintiff called two (2) witnesses namely Dr James John Vula Kalougiviki and the Plaintiff Bal Sudha Kumar.
    
11. PW1 Dr James John Vula Kalougiviki in his evidence stated as follows-
    
    1. Lecturer in FNU and doctor at CWM Hospital
    2. Carried out the post mortem of the deceased Anil Kumar
    3. Head of Forensic pathology, medical and surgery
    4. I prepared the post mortem report marked and tendered as Exhibit P1
    5. Immediate cause of death was due to excessive loss of blood
    6. The report is prepared by me as I carried out the investigation and observation and the post-mortem report of the deceased
    7. Multiple injuries was noted throughout. Cause was due to fatal road accident.
    8. Medical report has been made by me after I thoroughly inspected the patient
    9. Doctor has no objection tendering the medical report as annexure 1
    10. Gave a Statement to police – by consent pages 31 and 32 tendered as Exhibit P2
        

In Cross-examination

• Accident in May 2016
• Carried out Autopsy three (3) days later
• The man died 12 hours after information passed by police officer
• I didn’t see the accident
• Possibility that patient could have sustained injuries from beating or serious assault
• Injuries more consistent with motor vehicle accident after noting history
  

In Re-examination

• Information put through by Situation Report by Investigating Officer and details are there
• Injuries consistent with fatal road accident
• Based on PM Report injuries sustained by Anil Kumar is consistent with fatal road accident
  

12. PW2 Bal Sudha Kumar in her evidence told Court as follows:
    
    • Late Anil Kumar (Deceased) was my husband
    • Received LA Grant No. 59070 from High Court Suva in my husband’s Estate. I am the Administratrix
    • At 9pm on 20^th May 2016 accident happened. Informed by Bure Taxis Taxi Driver
    • Accident happened at RB Patel Centrepoint light
    • Big crowd – LT559 involved. Husband was driving LT559 facing/thrown on RB Patel side
    • After accident my husband stuck between steering and bonnet
    • Vehicle out of road. LT559 front bonnet and passenger side door damaged and back door driver’s side door damaged
    • I saw the other vehicle facing Nausori side – HY567 Registration Number. It was JJ positioned blocking the road facing Nausori side. I met driver at the scene
    • People at scene told me he was the driver and he admitted being the driver of JJ
    • I took my husband to hospital, crying for assistance, screaming and alive
    • Taken to hospital by ambulance at 9.15pm. talked to me, in lot of pain everything broken
    • Surgeon and doctors came running and at 6am on Saturday morning of 21^st May in ICU Ward he died
    • Vishal was also present with the father at the scene admitting causing accident. Funeral was carried out
    • The driver drove my taxi after my husband passed away
    • At hospital I asked Vishal if he caused the accident and he said yes for the second time
    • I did not give police any statement
    • Defendant was charged and in custody at Valelevu Police Station, later charged for Dangerous Driving Causing Death
      

In Cross-examination

• Incurred expenses as per Writ of Claim – don’t have any receipts for claim for Special Damages
• No statements to confirm that my husband was earning $300 net per week
• Defendant 1 has been charged only but not dealt with and case pending
  

In Re-examination

• My husband was earning a taxi income of $300 per week
• For Special Damages I don’t have receipts
• I am claiming those expenses without receipts
  

13. The Defendant’s Counsel made a decision and informed Court that he will not call any evidence in this matter and accordingly closed his case.
    

Determination

14. This is a Third Party claim arising from a Motor Vehicle Accident along Kings Road, Centrepoint, 4 Miles on 20^th May 2016 at 2150hrs which caused the death of the late Anil Kumar.
    
15. The proceedings have been brought against the First and Second Defendants since it is alleged that the First Defendant was a driver of the four wheel drive Nissan van having a personalised Registration Number as JNJ whilst the Second Defendant was the Registered Owner of the said vehicle.
    
16. Upon perusal of the Pre-Trial Conference Minutes, it can be ascertained that there are a number of issues to be deliberated upon including-
    
    • Whether the accident was caused by the First Defendant on 20^th May 2016 at 2150hrs along Kings Road, Centrepoint, 4 Miles?
    • Whether the First Defendant was negligent when he was driving the Vehicle Registration No. JNJ? AND
    • Whether the negligent driving of the First Defendant caused the death of Anil Kumar?
      
17. The Defendants in terms of the pleadings before this Court and in the Pre-Trial Conference Minutes had put negligence of the Defendants in issue. Therefore, it was incumbent on the Plaintiff to prove the facts pleaded in the Plaintiff’s Statement of Claim, in particular paragraphs 5 and 6 of the Statement of Claim. The Plaintiff has to establish Negligence on the part of the 1^st Defendant and then it will follow on whose Negligence the 2^nd Defendant is Vicariously Liable.
    
18. The Plaintiff pleaded Negligence and particularised the same on the basis that on or about 20^th May 2016 at 2150hrs that the First Defendant travelling towards Nausori went onto the lane in which the Deceased was traveling and collided with the Deceased Taxi resulting in the Deceased’s Taxi sustaining massive damages and the Deceased losing his life. Further, that the said accident took place as a result of the Negligence and/or breach of statutory duty on the part of the First Defendant for whose Negligence the Second Defendant is Vicariously Liable.
    
19. The Plaintiff in her submissions at paragraph 13 to 18 inclusive submitted the following-
    

“[13] During the cause of Trial, the Plaintiff’s witnesses submitted their evidence which the Plaintiff invites this Court to accept. There was no doubt and no denial that the accident was caused by the Defendant namely Vishal Savendra Dayal.

[14] The Plaintiff submits that the Defendant was Negligent whilst driving his vehicle which then collided with the Deceased’s Taxi. The Plaintiff submits that due to Negligent driving of the Defendant, accident has been caused that led to the death of the Deceased.

[15] The 1^st Defendant’s vehicle from its own lane went to the opposite side lane and then collided. Plaintiff submitted that as per her knowledge and the information gathered from the scene and from the investigation of police, the accident was caused due to 1^st Defendant’s fault.

[16] The Plaintiff submits that if the 1^st Defendant was careful then he would not have caused the accident.

[17] Also looking at the seriousness of the injuries caused to the Deceased it is submitted that the impact was massive and the 1^st Defendant was driving above the speed level and based on that impact, the Deceased died. If the Defendant would have been slow and within speed limit, he would have controlled the vehicle and accident would have been avoided, then obviously the Deceased would have just sustained injuries and would not have lost his life.

[18] With that the Plaintiff submits that the Defendant was Negligent herein and has caused the accident Negligently that has caused the death of the Deceased.

20. The Plaintiff called two (2) witnesses namely Dr James John Vula Kalougiviki (PW1) and Bal Sudha Kumar (PW2) respectively.
    
21. These two witnesses were formal witnesses who testified in Court in terms of what transpired as a result of the aftermath of the accident on 20^th of May 2016 along Kings Road, Centrepoint, 4 Miles between the Deceased Vehicle Registration No. LT559 and the Defendant’s Vehicle Registration No. JNJ. Further, these witnesses were not the eye witnesses at the scene of the accident.
    
22. On the perusal of the Plaintiff’s written submissions at paragraphs 15 and 16 furnished to Court, the Plaintiff is relying on the Statement that “the Plaintiff submitted that the 1^st Defendant’s Vehicle from its own lane went to the opposite side lane and then collided. Plaintiff submitted that as per her knowledge and the information gathered from the scene and from the investigation of police, the accident was caused due to the 1^st Defendant’s fault. The Plaintiff submits at paragraph 16 that if the 1^st Defendant was careful then he would not have caused the accident “to establish the Negligence on the part of the 1^st Defendant”.
    
23. I find that paragraphs 15 and 16 of the Plaintiff’s written submissions furnished to Court are submissions and not evidence that will prove the pleadings within the Plaintiff’s Statement of Claim.
    
24. However, the Court needs evidence in terms of the pleadings within the Statement of Claim filed by the Plaintiff to establish their case against the Defendants before this Court.
    
25. Further, it is notable from the file records that a Subpoena was issued to the Investigating Officer, PC 3199 Nitin Nilesh who was stationed at the Valelevu Police Station. According to the Plaintiff’s Counsel, the Police Constable refused the Service of the Subpoena onto him. If the Investigating Officer was called to give evidence in this proceedings then he would have surely assisted the Court by tendering into evidence rough sketch plans and would have described the scene of the accident. Further, the Investigating Officers are normally subpoenaed to Court to establish facts from which an inference could reasonably be drawn by the Court to determine the Negligence.
    
26. However, the same was not done in this case. In motor vehicle accident cases, matters are reported to Police who in turn attend the scene of the accident and draw sketch plans in order to tender to the Courts and are able to investigate and to establish the cause of the accident and obviously who was at fault that had caused the accident.
    
27. It cannot be disputed by the parties to the proceedings that the true cause of the accident cannot be ascertained and thus it is unknown as to how the accident occurred.
    
28. The Plaintiff has not called any eye witnesses who were present at the scene of this accident on 20^th May 2016 along Kings Road, Centrepoint, 4 Miles and there is no direct evidence of the Negligence as pleaded in the Statement of Claim by the Plaintiff.
    
29. The Plaintiff did not call any evidence whatsoever to establish that on or about 20^th May 2016 at 2150hrs, the Deceased was driving his Taxi Registration No. LT559 along Kings Road, Centrepoint, 4 Miles travelling towards Nabua when the Vehicle Registration No. JNJ driven by the 1^st Defendant travelling towards Nausori went onto the lane in which the Deceased was travelling collided with the Deceased Taxi resulting in the Deceased’s Taxi sustaining massive damages and the Deceased losing his life. Further, that the said accident took place as a result of Negligence and/or breach of statutory Duty on the part of the 1^st Defendant for whose Negligence the 2^nd Defendant is Vicariously Liable.
    
30. The Plaintiff pleaded Vicarious Liability for the 2^nd Defendant. The 2^nd Defendant admitted in the Pre-trial Conference Minutes that he was the owner of Vehicle Registration No. JNJ. As such, no evidence has been led on this issue by the Plaintiff.
    
31. I find that there is insufficiency of evidence for this Court to draw any inference on the cause of the accident. There is simply no proved facts from which an inference can be made or material from which it can be drawn to establish Negligence of the 1^st Defendant. The Court is only left with mere conjecture or speculation of how the accident happened.
    
32. Bearing all above in mind, I have no alternative but to dismiss and strike out the Plaintiff’s claim against both the 1^st and the 2^nd Defendants accordingly.
    
33. This matter proceeded to hearing with the Plaintiff calling two witnesses and the Defence called no witnesses, both Counsels furnished Court with written submissions.
    
34. Therefore, it is only appropriate that I award a cost of $750 as summarily assessed costs against the Plaintiff accordingly.
    

FINAL ORDERS

1. The Plaintiff’s claim against the First and Second Defendants are hereby dismissed and struck out accordingly.
   
2. The Plaintiff to pay a sum of $750 as summarily assessed costs to the First and Second Defendants accordingly.
   

Dated at Suva this 21^st day of January, 2022.

................................................
Vishwa Datt Sharma
JUDGE

cc: Amrit Chand Lawyers, Suva.
Haniff Tuitoga, Suva.