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4 Wheel Drive Sales Ltd v Rohit [2009] FJMC 21; Civil Case 70.2007 (25 September 2009)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Civil Case No: 70 of 2007

4 WHEEL DRIVE SALES LIMITED
Plaintiff

V

1. SUNIL SHARMA ROHIT
2. AMRAS EARTHWORKS LIMITED
Defendants

Before: C. Lakshman
Resident Magistrate

For Plaintiff: Mr. Ramesh Prakash & Ms Joytika Jattan
No appearance by the 1st Defendant
For the 2nd Defendant: Mr. Ram Chand

JUDGEMENT

Introduction

1). On 26th November 2007, the Plaintiff, 4 Wheel Drive Sales Limited, filed a Writ of Summons and Statement of Claim claiming damages caused to its premises and property by a vehicle driven by the 1st Defendant, the driver of the 2nd Defendant company.

2). The 2nd Defendants on 5th February 2008 filed a notice of intention to defend through its Solicitors, Sherani & Co. A Statement of Defence of the 2nd Defendant was filed on 10th April 2008.

3). On 31st July 2008, the Court upon reading the pleadings, the matter being listed for hearing and an application for adjournment by the 2nd Defendant and no appearance by the 1st Defendant ordered judgment against the 1st Defendant with damages and costs to be assessed by the court. The 2nd Defendant was also ordered to pay costs of $1000.00.

4). On 13th November 2008 the 2nd Defendants filed a change of Solictors. Mr Ram Chand, the new solicitor for the 2nd Defendant filed a statement of defence on 2nd December 2008 (Which the Court feels should be the Amended Statement of Defence).

5). This case was heard on 17th August 2009, 26th August 2008 and 3rd September 2009.

THE CLAIM AS PER THE WRIT

The Plaintiff sought:

(i) Special damages –

(a) Damage to fence, light system,

front gate and alarm system $ 3947.56

(b) Toyota Land Cruiser VX Limited $15751.18

(c) Toyota Land Cruiser VX Limited $4837.50

(d) Five vehicles repair costs @

$916.66 each (buff, polish, repair of

Dents, touch painted) $4583.30

(e) Labour charges paid for transport of

Vehicle from Nasinu to Lautoka and

return $1300.00

(f) Security hire (2 weeks @$20/day) $280.00

------------

Total $30699.54

(ii) Cost of Demand Notice dated 16th August 1007 $165.75

(iii) General damages to the jurisdiction of the court

(iv) Such further and/or other relief as the court deems just: and

(v) Costs in the action

The Defendant in return sought that Plaintiffs claim be limited to $10,000.00, costs and such further and/or other relief as the court deems just and fair.

HEARING

Prior to the commencement of the hearing Mr Prakash informed the Court that the Plaintiffs have a judgment against the 1st Defendant. Mr Ram Chand on 17th August 2009 just before commencement of hearing conceded liability for the 2nd Defendant and further stated that they were willing to settle for $10,000.00. This offer was rejected by the Plaintiff.

The Plaintiffs introduced the bundle of exhibits and the Defendant’s counsel objected to the introduction of the whole bundle as exhibits. The Court informed the counsels that it will look at those introduced and referred to respectively and that the tendered exhibits from the bundle will be marked accordingly as they are submitted by the counsel.

THE PLAINTIFF’S WITNESSES

The Plaintiff’s called 4 witnesses. They were Sanjay Sharma (Pw-1), Nilesh Prasad (Pw-2), Rajeshwar Prasad (Pw-3) and James Edward Singh (Pw-4).

The DEFENDANTS WITNESSES

The Defendants called 5 witnesses. They were Champak Lal (Dw-1), Cpl Jeetendra Prasad (Dw-2), Parmod Chand (Dw-3), Jim Brown (Dw-4) and Ravindar Singh (Dw-5).

QUANTUM

The 2nd Defendant admitted liability and the Court is only to determine quantum of damages and costs. The Court will now look at the claim under each head and analyse the evidence of the witnesses to determine the quantum of damages.

The court has considered the closing submission of the Plaintiff and the Defendant and would like to thank the counsels for their substantive submissions. The submissions have greatly assisted the court.

(a) Damage to fence, light system, front gate and alarm system

The Plaintiff Company’s Sales Manager, James Edward Singh (Pw-4), represented the company and gave evidence for the Plaintiff. Under this head PW-4 stated that he received a quote from Nilesh Prasad (Virs Construction) for the damaged fence. The quote was for $3947.56. Virs Construction did not fix the fence.

PW-4 further told the Court that the fence was temporarily fixed by some of his relatives and other boys and he paid $1750 for the work.

The defence called Parmod Chand (D-3) as its witness. This witness told the court that he was asked by James Edward Singh (Pw-4) to repair the fence 2 days after the accident. He knew Pw-4 well and had built his house and they were friends. D-3 was paid $500 labour and approximately $850 for materials, which totals to $1350.00. In cross examination D-3 was asked if he was paid only $200. He stated it was not true. Upon further cross examination D-3 stated that he repaired the fence and not cleared the fence.

The evidence of the Parmod Chand (D-3) was that he fixed 3 posts, replaced with new galvanised posts, pulled and straightened the main gate posts, replaced chain link, fixed 3 lights (they worked when replaced), barb wire on top. The court on this evidence notes that new materials were used rather than just straightening the old materials and putting them up temporarily. The Court accepts that the fence and posts were not temporarily fixed.

James Edward Singh (Pw-4) told the Court that they paid Vinod Welding Works $1750 for temporarily fixing the fence. In cross examination Pw-4 told the court that they paid Vinod for the work and he also knew Parmod Chand who did some work and it was Vinod who fixed the fence. In further cross examination D-3 agreed that he did not tell his solicitors that Parmod (D-3) did some work.

The court noted the demeanour of the witness in their evidence. The Court found Pw-4 to be selective and not truthful in some responses. The Court finds that Parmod Chand (D-3) was truthful in his response. He (D-3) was a friend of James Edward Singh and he maintained his composure in his evidence in chief and cross examination, he did no one a favour.

From the evidence of witnesses the Court finds that $1750 was spent for the reconstruction of the fence. For which the Defendants are liable.

(b) Toyota Land Cruiser VX Limited – Grey or Greenish

This vehicle in evidence is described as Toyota Landcruiser, Colour Code 183, Model #S-HDJ81V (Grey or Greenish). The plaintiff told the court that this vehicle was not repaired to date. The market value of the vehicle was $30,000.00 in 2005.

The Plaintiff’s called Sanjay Sharma (Pw-1) a panel shop adviser from Asco Motors who tendered the quote prepared by him for his assessment of the accident repair to the Toyota Landcruiser, Colour Code 183, Model #S-HDJ81V. The witness gave evidence that the quote by Asco Motors to repair the vehicle is $15751.18 and it excluded bull bar price and the quote was for new parts.

The 2nd Defendants called Jim Brown (D-3) a Salesman of Unique Limited who gave evidence that they sold 2nd hand parts imported from Japan. D-3 gave further evidence that a nose cut, bull bar and bonnet for the said Landcruiser was available at $3300.00.

The said vehicle was over 15 years old at the time of the accident. From the evidence it was not clear what was the condition or the status of the vehicle prior to the accident. Mr James Edward Singh was not able to categorically state if the said vehicle was purchased badly damaged from Jetpatcher or if they had bought from an Insurance Company.

Both the counsels have referred to Dewa Rathnam v. Usman & Abdul Khali 7 FLR 108
Where the Court ruled "that a respondent was entitled to reimbursement for the whole cost of the new parts irrespective of the fact that the value of the vehicle might be enhanced." The Court in Dewa Rathnam further stated that "it was the duty of the respondent to minimise his loss, if a second hand part were available, and the installation of such a second hand part would suffice to put the vehicle into the same road worthy condition as it was before the accident, then the second hand part should be used and there was no evidence of this in this case."

This Court notes that second hand parts might be available and the Defendants have adduced evidence that it is available, but need to be acquired from Japan. The main consideration this court gives is that the vehicle needs to be put into the same road worthy condition as it was before the accident. This Court is also mindful of the delays in this case and the long delay in restoration of the vehicle to its former condition.

The Court notes from the evidence before it that at one moment one part or another required for the repair of the vehicle would need to be bought from overseas. This Court also notes that nose cuts are available for the vehicle. The Court has considered all the evidence given with respect to this vehicle. The Court also notes that the Plaintiff vide letter dated 19th June 2007 claimed using the Asco Motors quote the sum of $15751.18 for the repairs of the said vehicle. The Defendants did not respond to the letter nor seek a similar quote then for the damage to the said vehicle. At the hearing the Defendants stated that they could get a nose cut for $3300.00 with bull bar. Since the damage to the vehicle todate is almost 4 years.

The Court also notes the Demand Notice by the Plaintiff’s Solicitors dated 16th August 2007 to which the Defendants did not respond hence the filing of the Writ by the Plaintiff’s Solicitors. To the Court it is clear from the evidence that the Defendants took no active steps to pay for the damages caused by his employee. The Plaintiff’s took all reasonable steps to pursue the Defendants to seek compensation for its loss. The Defendants also only admitted liability on the 11th hour before the hearing commenced. If they had admitted liability and proceeded to assess the damage caused earlier then matter could have been judged before today. The 2nd Defendants seeking adjournment on hearing date on 31st July 2008, which is over 1 year today also did not help matters.

The Court notes that a nose cut is given bear of other components like the bonnet shocks, reserve tank, battery, right front fender, right front fender line, right front fender flare, front windscreen glass, left front tyre, radiator fan and radiator shroud. that are damaged in the vehicle which the Defendants have not disputed. The vehicle will also require the realignment of chasis and bonnet gaps, filling of air condition gas, wheel alignment as detailed in the Asco quote.

The Asco Motors quote was on the basis of the vehicle inspection by a qualified person with knowledge of vehicles. The quote was given by a reputable Motor Repair Organisation. A nose cut in itself will not fix the vehicle it will require other components to be fixed as the Court has noted. The Defendants have in their submission suggested that the Court consider the nose cut (includes bull bar) by Unique Limited and add the Asco Motors labour in the assessment of damage of this vehicle. The defendants sum is $3300.00 (nose cut + bull bar) + $2126.00 (labour) = $5426.00.

The Court under this head has considered all factors and the evidence. The length of delay and the Court notes that vehicle needs to be restored to the same road worthy condition as it was before the accident. The Parts were available at Asco Motors and could have been fixed in 2005. The Court finds that the Defendant should pay the Plaintiff the sum of $15751.18 for the restoration of the said vehicle. As the Court has stated that the vehicle needs to be restored to the same road worthy condition it was before the accident it will not allow the additional expense for the bull bar, which the vehicle can be road worthy without. The Court will cover some issues with respect to its decision under this head in another portion of this judgement.

(c) Toyota Land Cruiser VX Limited (Red)

The Court notes the evidence of all the witnesses who gave evidence with respect to the Red Toyota Land Cruiser VX Limited.

The Plaintiff’s called Rajesh Prasad (Pw-3) of Haris’ Motor Repairs who provided a quote for his assessment of the vehicle. The quote is dated 30th November 2005. The quote provided by Pw-3 is for a sum of $4837.50.

The Defendants called Corporal Jeetendra Prasad (D-2) who attended to the scene of the accident on 23rd November 2005 at 2pm and told the Court that the owner showed him the damages. At the scene 3 vehicles were parked and the greenish vehicle had major impact and he saw no damages to any other vehicles. The red vehicle did not have any damage. The Plaintiff’s in cross examination tendered through D-2 tendered the Sketch Plan of the accident that PC Jeetendra Prasad had drawn. The Court has viewed the sketch plan. The plan shows the Defendants truck and 3 vehicles lined up and the plan marks that the truck collided with one vehicle.

The Court believes PC Jeetendra’s evidence. He visited the scene. He was neither discredited in cross examination. He saw the vehicles and he drew the sketch. If there was damage to the Red Land Cruiser he would have noted it.

The Court dismisses the Plaintiff’s claim under this head.

(d) Five vehicles repair costs @ $916.66 each (buff, polish, repair of Dents, touch painted)

The Plaintiff’s are claiming costs for the repairs of 5 other vehicles that they allege were repaired. The Court noted the evidence of PC Jeetendra Prasad who visited the scene immediately following the accident. He saw 3 vehicles lined up where the Defendants truck plowed in. His testimony was that apart from one vehicle of the Plaintiff no others were damaged. The Court believes PC Jeetendra Prasad.

The Court is also amazed that the Plaintiff is claiming $916.66 for each of the 5 vehicles they allege was damaged. The question this Court poses is how the cost of repair of each vehicle was the same. The plaintiff under this head wanted to claim $4583.30.

The Court does not believe the evidence of the Plaintiff that 5 other vehicles were damaged and needed repairs. The Court dismisses the Plaintiff’s claim under this head.

(e) Security hire (2 weeks @$20/day)

The evidence on this issue is linked to Damage to fence, light system, front gate and alarm system and its repair. The Court under the 1st head accepted the evidence of Parmod Chand who repaired the fence. The fence according to Parmod Chand was repaired 2 days after the incident. The claim by the plaintiff for two weeks (14 days) security is not supported by other witness. The Court accepts the evidence of Parmod Chand as the Court found him to be truthful and not evasive in his response. The court also notes that if the fence is temporarily fixed to date the Plaintiff would have placed a security as the fence was temporarily fixed.

The court allows $40.00 claim under this head.

(f) Cost of Demand Notice dated 16th August 1007

The Plaintiff Solicitors served the Defendants the demand notice and the Court is satisfied that it was properly served and received by the Defendants. The Court allows the Plaintiff cost of $165.75 being cost of demand notice.

(g) Cost of Proceedings

The Court notes that the proceedings have incurred considerable costs. The Court considers that the 2nd Defendants pay $1500.00 costs.

Other Relief and consideration by the Court

The Court in considering that the Grey Toyota Land Cruiser be fixed using the Asco Quote and that the parts quoted were genuine parts also weighed heavily that the vehicle will be restored to roadworthy condition. The parts are immediately available in Fiji. The Court also wishes to add that the use of the genuine parts and professional labour on the vehicle will not diminish the market value of the vehicle. The Plaintiff’s vehicle will be enhanced and be restored to its former state and with genuine parts. The Court also notes that there might be price changes given the current economic climate and the devaluation of the Fiji dollar since the quote was taken. For the foregoing reason the court will not consider loss of accumulated sale of the vehicle. The Plaintiff under this head wanted to claim $13, 021.77.

The Orders

The Court Orders as follows:

(i) That the Plaintiff has proved its claim against the Defendants and awards the following:

Special damages –

(a) Damage to fence, light system,

front gate and alarm system $ 1750.00

(b) For Toyota Land Cruiser VX Limited

(grey/greenish $15751.18

(c) Security hire (2 days @$20/day) $ 40.00

(d) Cost of Demand Notice dated 16th August 1007 $165.75

(e) Costs in the action $1500.00

Total $19206.93

(ii) Interest from the date of judgment at a rate of 10.5% per annum.

(ii) That the judgment be limited to the jurisdiction of this Court.

Chaitanya Lakshman
Resident Magistrate

25/09/09