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Pratap v Chief Manager of LICI (Life Insurance Corporation of India) [2010] FJMC 20; SCT Case 2358 of 2008 (30 March 2010)

IN THE FIRST CLASS MAGISTRATE’S COURT AT SUVA
CENTRAL DIVISION - SMALL CLAIMS TRIBUNAL

SCT CASE NO: 2358 of 2008
APPEAL ACTION NO: 21 of 2009

BETWEEN:

CHAND PRATAP
Appellant

AND:

CHIEF MANAGER OF LICI (Life Insurance Corporation of India)
Respondent

JUDGMENT

1. This is an appeal against the order made by the referee of Small Claims Tribunal on 26th March 2009. The SCT order is to refund the bond of $ 1500 to the respondent within 21 days.

2. Whist giving evidence on his behalf appellant informed the court that he is dissatisfied with the SCT order. Appellant claimed that the referee had made one-sided decision. In his grounds of appeal, appellant stated that he had lost $4500 for not being able to rent the flat for four months, $115.94 as unpaid electricity bill and $600 for damaged carpet.

3. Upon my reading of the SCT files and appeal brief, it appeared to me that the appellant’s claim for the unpaid electricity bill is a new addition and it has never been an issue at the SCT in his counter claim.

4. Appeal Provisions regarding the Small Claim Tribunal matters are laid down under sec. 33 of the Small Claims Tribunal Decree, 1991 and read as follows:

33.- (1) Any party to proceedings before a Tribunal may appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:

(a) the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of proceedings; or

(b) the Tribunal exceeded its jurisdiction

5. Appellant’s grounds of appeal thereby falls under Sec. 33 (1) (a) of the Small Claim Tribunals Decree 1991.

6. However, appellant nowhere in his appeal challenged that he did not have an opportunity to place his grievances at the SCT. Hence, his allegation that the referee had made a one-sided decision has no merit. In fact appellant had filed a cross-claim in the STC. This shows that the referee had conducted a fair investigation and had come to a conclusion.

7. Even though this court gave an opportunity to the appellant to bring evidence to prove his appeal, appellant failed to bring even an iota of evidence justifying his appeal. Hence, I conclude this appeal has no merit.

8. Respondent in his written response to grounds of appeal drew the courts attention to following decided case law.

Vidya Wati & Suresh Charan v. Waqabaca Truck Hire and Machinery [2005] HBA 0001/2005 on 04th May 2005 Per Singh J], where it was held that, "an error of law is not a permitted ground of appeal nor is an appeal allowed on merits of the case – Sheetmetal and Plumbing (Fiji) Limited v. Uday Narayan Deo - 45 FL R 80, where Justice Fatiaki (now the Chief Justice) endorsed the principles expressed by Greig J in Hertz New Zealand Ltd. v. Disputes Tribunal - 1984 8 PRN2 at 151 as "there is no appeal on the merits even if there is clear and fundamental error of law in the conclusion of the tribunal". [Emphasis is mine].

9. When perusing the appellant’s grounds of appeal and his evidence in the open court it is clear that the appellant had tried to invoke this court’s jurisdictions solely on merits. Above-mentioned case law is clear evidence that no one is allowed to file an appeal based on merits.

10. Accordingly final orders are:

(a) Appeal Dismissed.

(b) Appellant is ordered to pay $ 1000 to the respondent as costs within 21 days.

(c) Respondent is now free to enforce the order of the SCT.

11. 28 days to appeal.

On this Wednesday the 30th day of March 2010

Kaweendra Nanayakkara
Resident Magistrate.