IN THE MAGISTRATES COURT AT NASINU

Civil Case No. 99/2009

BETWEEN:

VB HOLDINGS LIMITED
[Plaintiff]

AND:

ANISH LATA
[1st Defendant]

AND:

BIR UDOM SINGH
[2nd Defendant]

Mr. Garvin O' Driscoll for the plaintiff
Mr. Akuila Naco for the defendants

Judgment

1] The Plaintiff in his statement of claim states as follows; 

1.	The Plaintiff was at all material times the owner of a Hino type motor vehicle registration number FM944 and had leased the vehicle to the Prison's Department.

2.	The 1st Defendant was at all material times the owner of a Toyota Cabin and Chasis type motor vehicle registration number CU270 and had authorized the 2nd Defendant to use the same on 15th May 2009.

3.	On the 15th day of May 2009 at about 10.30 am, an employee and or agent of the Prison's Department with full authorization for the Plaintiff was driving motor vehicle registration number FM944 along Kings Road. Main Road leaving Nakasi and heading towards Naboro. Just reaching Nasinu Police Station going down the slope towards Laqere, a motor vehicle registration number CU270 driven by the 2nd Defendant with the knowledge and permission of the 1st Defendant did not stop and suddenly came out of from Muanikoso junction, hit motor vehicle registration number FM944 causing a collision between the two vehicles. 

4.	The said collision was caused by negligence on the part of the 2nd Defendant.

PARTICULARS OF NEGLIGENCE

(i)	Failed to keep any or any proper lookout;

(ii)	Failed to keep his motor vehicle under any or any proper control;

(iii)	Failed to stop and give way to the Plaintiff's vehicle;

(iv)	Failed to apply the brakes on his said motor vehicle in time to avoid the said collision or at all;

(v)	Failed to give indication from his said motor vehicle so as to avoid the said collision or at all;

(vi)	Drove or attempted to cross the part of the Plaintiff's vehicle at which moment it was neither the time nor was there space to do so;

5.	By reason of the negligence mentioned above the Plaintiff's motor vehicle was extensively damaged.

PARTICULARS OF DAMAGE

(a)	 As a result of the collision, the following parts of the Plaintiff's motor vehicle were damaged thus requiring repair:-

(i)	 Right Arc Cover;
(ii)	 Right Cab Hinged Mounting;
(iii)	 Top Hood Panel;
(iv)	 Right Front Dyer Door Pillar;
(v)	 Left Front Door Pillar;
(vi)	 Front Face Panel;
(vii)	 Front Dashboard Assembly;
(ix)	Front Lower Panel;
(x)	Right Front Door Panel;
(xi)	Right Front Step Panel;
(xii)	Cab Floor Panel;
(xiii)	Cab Inner Face Panel;
(xiv)	Right Front Chasis Channel;
(xv)	Front Windscreen Aperture; and
(xvi)	Steering Box Assembly

(b)	 As a result of the above described collision, the following parts of the Plaintiff's motor vehicle were damaged, thus requiring replacement-

(i)	 Front Windscreen Glass Unit;
(ii)	 LHS Front Wiper Blade Arm;
(iii)	 Front Grille Unit;
(iv)	 Left Front Rear Vision Mirror;
(v)	 LHS Corner Lam (Orange0;
(vi)	 Left Headlamp Bezel;
(vii)	 Front Bonnet Assy;
(viii)	RHS & LHS Front Bonnet Locks;
(ix)	 Front Bumper Bar;
(x)	 Left and Right Headlamp Units;
(xi)	 Right Front Rear Vision Mirror;
(xii)	 RHS Front Mirror Bracket Assy;
(xiii)	Right Front Corner Lamp;
(xiv)	Right Headlamp Bezel;
(xv)	 Radiator Reserve Tank;
(xvi)	Clutch Master Cylinder Unit; and
(xvii)	Brake Foot Valve Assembly.

(6)	 The Plaintiff's vehicle has sustained damages and related expenses to the value of $27,664.74 (Twenty Seven Thousand Six Hundred and Sixty Four Dollars Seventy Four cents only), being assessment fee of $146.25, LTA search fees of $7.00 and $27,511.49 for cost of repairs.

(7)	 The Plaintiff through it's insures had sent requests and demands to the Defendants for payment of the said sum, the latest of which was by notice in writing dated 8th September 2009.

(8)	 For the purposes of establishing liability in this case the Plaintiff will rely on the fact that the 2nd Defendant was charged for careless driving causing the said collision, (Nasinu Police Station Report No. 1799/09). Any conviction if entered would be further relied on.

Wherefore the Plaintiff prays for:

(i)	 Judgment in the sum of $27,664.74 (Twenty Seven Thousand Six Hundred & Sixty Four Dollars Seventy Four Cents only) for repair costs and associated charges.

(ii)	 Costs of this action;

(iii)	 Total claim and costs limited to within the jurisdiction of this Honorable Court.

(iv)	 Such further reliefs and orders as this Honorable Court seems fit in the circumstances.

2} The Defendants filed Statement of defence and they state as follows;

1.	That the defendants deny any knowledge of the contents of paragraph 1.

2.	That the Defendant admits paragraph 2 of Statement of Claim;

3.	That the Defendants neither admit nor denies paragraph 3 of the Statement of Claim and puts the Plaintiff to strict proof;

4.	That the Second Defendant totally denies paragraph 4 (i) (ii) (iii) (iv) and (v) and puts the Plaintiff to strict proof.

5.	That Second Defendant neither admits nor denies paragraphs 5 (a) and (b) and puts the Plaintiff to strict proof.

6.	That the Second Defendants neither admits nor deny paragraph 6 of the Statement of Claim;

7.	That the Defendant admits paragraph 7 of the Statement of Claim;

8.	That the 2nd Defendant admits being charged for the offence of careless driving but further states that liability in that proceeding is being totally opposed and strongly denied.

COUNTER-CLAIM

1.	That Plaintiff on the 15th day of May 2009 at 10.30am an employer said on agent of the Prison Department was driving about vehicle registration no. FM944 along Kings Road leaving Nakasi and heading towards Nasinu Police Station going down the slope towards Laqere was speeding and not following the speed limit of 50km per km at that speed zone.

2.	That the accident was caused by the Plaintiff's negligence in over speeding in a 50km per hour zone.

PARTICULARS OF NEGLIGENCE

1.	Failed to keep away or any proper lookout
2.	Failed to keep his motor vehicle under any or any proper control.
3.	Failed to follow the speed limit of 50km per hour down that slope.
4.	Drove or attempted to cross the path of the Defendants vehicle at which moment if was neither the time nor space to do so.
5.	By reasons of negligence mentioned above, the Defendants car was excessively damaged.

PARTICULARS OF DAMAGE

1.	That as a result of the collision, the Defendants vehicle was written off.

2.	That the defendants vehicle had sustained damages.

3.	That the defendant will be confessing such allergies of careless driving. 

Wherefore the Defendant prays:

(a)	That the Plaintiff claim for the sum of $27,664.74 (Twenty Seven Thousand Six Hundred and Sixty Four Dollars Seventy Four Cents only) be dismissed with cost.

(b)	That the Plaintiff claim for the cost of this action be dismissed.

(c)	 Such as further and/or other relief as this Honorable Court may deem just and equitable.

3] Parties have agreed to following facts;

1.	Agreed Facts

1.1	The 1st Defendant was at all material times the owner of a Toyota Cabin and Chassis type motor vehicle registration number CU270 and had authorized the 2nd defendant to use the same on 15th May 2009.

1.2	On 15th May 2009 at about 10.30am a collision occurred between CU270 and FM944 smewhere near the Muanikoso junction.

1.3	The Plaintiff through its insurers had sent requests and demands to the Defendants for payment of the sum of $27,664.74 in respect of damages incurred to the Plaintiff's vehicle and associated costs, the latest of which by notice in writing dated 8th September 2009.

1.4	The 2nd Defendant was charged for careless driving causing the accident.

4] Following triable issues are raised by both parties. 

2.	Triable Issues

2.1	Who caused the accident? 

2.2	Was there negligence on the part of the 2nd Defendant or on the part of the Plaintiff's authorized driver as set out in the respective pleadings? 

2.3	What was the quantum of damaged caused to the Plaintiff's vehicle? 

2.4	What was the quantum of damage caused to the 1st Defendant's vehicle? 

2.5	Is the Plaintiff entitled to recover for damage sustained?

2.6	What costs should be allowed?

5] On 28th May 2012, the plaintiff's case was led. Thereafter the defendant moved adjournment and defendant's case was fixed on 13th June 2012. It was fixed for continuation of hearing on 20th February 2013. On that date nor defendants or his counsel were present. Matter was fixed for judgment today. 

6] On behalf of the Plaintiff, Mr. Esala Drova Ravonokula gave evidence. On 14th May 2009, he drove FM 944, a prison vehicle. It was leased from V.B. Holdings Ltd by prison department. It met with an accident at Makoi. When he was driving towards Suva from Makoi, a truck came from left side and truck collided his vehicle. The accident happened middle of the road. Though he applied brakes it happened. He then reported the matter to the police. He was never charged for this incident. 

7] in cross examination he said he was driving a Hino truck and he was coming down on a slope, speed was 50kmph. There were two lanes he was inside lane close to the middle. He said the truck came suddenly at Munikoso Junction. The point of impact was the back part of the carrier. The witness said there was a bus travelling at the outer lane at that time. The defendants suggested that he was speeding but witness denied it. 

8] The next witness was Jainendra Govind.He said he is working for QBE. There was a claim for $26,761.49. Access charges were $750. He said they paid that claim. The witness tendered following documents in his evidence. 

PEX-1A is Visitation and assessment fess that was paid by the Plaintiff $146.25
PEX 1B is the service quotation from Niranjans for $27761.49. 
PEX 2 is Memorandum of Agreement and the agreed amount to pay was $27761.49, including access fee. 
PEX3 is the police report. 
PEX-4 is to prove the ownership of the 1st Defendant. 
PEX-5A and 5B are Demand notices to the defendants from the plaintiff. Which the defendants failed to honor the demand. 
PEX-6 is Bailiff Charges of $200, issued by Shamedra Kumar.

9] In cross examination the witness said Mr Esala was driving the prison department vehicle at the time of incident and they paid bill to Niranjans. 

10] The Plaintiff closed their case. The defendant failed to call any evidence.

11] The defendants denial is based on negligence of the driver of FM 944. The driver of FM 944, Esala gave evidence. He said while he was driving the 2nd defendant suddenly came to the main road without due diligence and care. There was a bus proceeding to the same side and FM 944 hit the carrier of the 2nd Defendant's. PEX-4 shows the first Defendant is the owner of CU270. The second defendant was driving and acting as master and servant basis and therefore first defendant is liable to pay said sum under vicarious liability. The defendant tried to prove negligence of the Plaintiff's driver, Mr Esala. But PEX-3 Traffic Officer says;

"On the above date, time and place PW1 was coming back from Nakasi to go back to Naboro Prison. Upon reaching Muanikoso Junction accused was about to come out from Muanikoso Junction to the main Kings Road, Pw1 then put the horn for accused to stop as it was too late for him to apply the brake. Accused did not stop and just suddenly came out from the junction. As the result Pw1 bumped accused and accused bumped another vehicle. Three vehicles received damages. The vehicle registration number CU 270 was at fault.

On the same day the driver of vehicle registration number CU270 was brought in to the station, interviewed and charged for Careless Driving" 

12] This report confirms the evidence of Mr. Esala. The 2nd defendant, without caring other road users, suddenly entered the main road and it caused the damages to the plaintiff's vehicle. PEX-2B quotation gives the quantum of damage and it proves excessive damage has been done to the Plaintiff's vehicle. PEX-2A proves that they agreed to pay the amount which arose by negligent act of the second defendant. 

13] The defendant did not call any evidence. In the light of the evidence it is proved that damages have been done and quantum of damages has also been proved. I hold the Plaintiff proved their case balance of probabilities. 

14] I answer triable issues as follows; 

•	Who caused the accident? The second defendant

•	Was there negligence on the part of the 2nd Defendant or on the part of the Plaintiff's authorized driver as set out in the respective pleadings? Negligence was on the second defendant

•	What was the quantum of damaged caused to the Plaintiff's vehicle? $27,664.74

•	What was the quantum of damage caused to the 1st Defendant's vehicle? Yes

•	Is the Plaintiff entitled to recover for damage sustained? Yes

•	What costs should be allowed? Cost to be taxed as mentioned in the judgment

15] Therefore, I make following orders.

a)	I grant Judgment against the defendant in the sum of $27,664.74 (Twenty Seven Thousand Six Hundred and Sixty Four Dollars Seventy Four Cents only) as the Plaintiff prayed in the evidence and the statement of claim.

b)	In addition the Defendant should pay Court Fee, Bailiff Fee, Solicitor Cost (Un defendant scale) and Interest at the rate of 5% Pursuant to Order 32 Rule 8 of the Magistrates Court Rules,legal interest from the date of this judgment until the full sum is paid by the Defendants to the Plaintiff, but total sum is limited to $50,000.

16] Judgment to be entered accordingly.

On 15th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu