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Nand v Jans Rental Cars (Fiji) Ltd [2014] FJMC 113; Civil Action 94.2013 (25 June 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION

Civil Action No: 94 of 2013

Prema Nand
Plaintiff

v.

Jans Rental Cars (Fiji) Limited
First Defendant

Roger Lutz
Second Defendant

Appearances and Representations
For Plaintiff: Mr V Prasad (VP Lawyers)
For First Defendant : Mr M. Anthony (Neel Shivam Lawyers)
For Second Defendant : Mr K. Jamnadas (Jamnadas & Associates)

Judgment

Introduction

In this matter the Plaintiff had filed a Writ of Summons seeking judgment in the sum of $41,000.00 together with post judgment interest as provided for under the Magistrates Court Act, costs incidental to the proceedings, such further and other relief as the Court deems just and expedient (all to be within the jurisdiction of the Court).

The Plaintiff's Claim arose out of a motor vehicle accident involving the Plaintiff's Vehicle Registration Number RSL 365 and LR 990 a motor vehicle being driven by the 2nd Defendant. The 1st Defendant was the Registered Proprietor of the Motor Vehicle Registration Number LR 990. The Plaintiff claimed negligence of the 2nd Defendant.

Pleadings Filed and the Evidence in Court

The Plaintiff filed a Writ and the 1st and the 2nd Defendant each filed a Statement of Defence.

The Plaintiff and the 2nd Defendant gave evidence in Court. The 1st Defendants called Mr. Sada Prasad. In addition to all the evidence given in Court this Court has considered the submissions that were filed by the Plaintiff and the 1st and the 2nd Defendant.

Analysis

This Court has noted all the evidence that was given in this Court, the documents that were tendered together with the pleadings filed. There is no dispute in this matter that the vehicle owned and driven by the Plaintiff was involved in an accident with the vehicle owned by the 1st Defendant driven by the 2nd Defendant.

From the evidence before it this Court finds that 2nd Defendant drove motor vehicle registration number LR 990 and it went onto the other side of the road where the Plaintiff was driving and caused an accident with Plaintiff's vehicle registration number RSL 365. The 2nd Defendant was charged for Careless driving and he pleaded guilty and was fined $200. The 2nd Defendant paid the $200 fine for careless driving. Having noted all the evidence before it in this matter and the admission and guilty plea by the 2nd Defendant for the traffic charge this Court concludes that the 2nd Defendant admitted that he drove carelessly, which is without due care and attention. This Court from the evidence before it finds that the 2nd Defendant was negligent and he caused the accident involving the Plaintiff's vehicle. The 2nd Defendant (a road user) owed a duty to the Plaintiff (the other road user). The 2nd Defendant breached that duty that he owed to the Plaintiff by his careless driving and causing the accident. The accident caused damage to the vehicle of the Plaintiff.

This Court further finds from the evidence before it that the 2nd Defendant was driving a rental vehicle and he drove the rental under a rental agreement with the 1st Defendant. The agreement between the 1st and the 2nd Defendant was lawful and the 1st defendant authorized the 2nd defendant to use the said vehicle.

The Plaintiff obtained quotes for the repair and related costs of his vehicle. Once again there is no dispute for the Court of the extent of the damage caused to the vehicle of the Plaintiff from the quotations and the parts to be repaired or replaced. The Plaintiff took all reasonable steps to seek compensation for his loss. He approached either of the Defendants at one time or another. He was not compensated for his loss arising from the accident. He then proceeded to take legal action.

This Court further notes that the 1st Defendant is alleging that the 2nd Defendant is liable to pay the loss for the Plaintiff due to him causing the accident. They further submit that the 2nd Defendant was not an authorized driver or an agent of the 1st Defendant. The 2nd Defendant for its part states that the 1st Defendant had authorized him to drive the vehicle. He had a Rental agreement with them. The 2nd Defendant further stated that he had a clause in the agreement that provided for 2 way motor vehicle insurance and for the accident that was caused and as a result the 1st Defendant is to pay for the loss sustained by the Plaintiff. This Court from the evidence before it finds that the 2nd Defendant was a lawful hirer of the rental car issued to him by the 1st Defendant. The 1st Defendant had a vicarious relationship with the 2nd defendant and is jointly liable for the actions of the 2nd Defendant following the accident as the owner of the vehicle.

The Plaintiff owned the vehicle which he used as a Public Service Vehicle. Apart from providing public service it was to a source of income for him. This Court finds from the evidence before it that the Defendants did not promptly assist the Plaintiff nor saw that his vehicle was restored to its former self within a reasonable time. The Plaintiff then sourced another vehicle so that he could continue providing the public service. The Plaintiff further suffered loss and had to pay for the towing of his accident vehicle, storage, loss of income. This Court finds that the Plaintiff needs to be compensated for this.

The quantum of damages

This Court accepts the quote of Niranjans Autoport for the cost of repairs in the sum of $24656.00 as it's from a reputable and long established dealer in motor vehicles. It has a history of motor dealership in Fiji. The quotes were given for the repairs meaning once it was done the vehicle would have been road worthy. This Court therefore finds that $24656.00 is the sum to be awarded for the replacement and repair cost of the vehicle.

The Plaintiff claimed loss of income for one week which is $750.00. This is reasonable for the mode of service the vehicle provided and should be allowed.

The Plaintiff is claiming loss for purchase of vehicle in order to provide service. The accident vehicle could have been repaired as is noted from the quotes. The delays in repair would have led to the Plaintiff losing income. He bought a vehicle rather than wait for the repairs as he was not getting any positive response from the defendants on the compensation of his loss or repairs of his vehicle. It would be unjust for the Court to order the Defendants to pay both the repair costs and the loss due to the purchase of another vehicle. The Plaintiff according to his evidence in Court was able to get another vehicle after a week and started providing public service. In fact the Plaintiff by getting another vehicle ensured he promptly provided public service and started earning income. He acted reasonably. He mitigated his loss. The sum awarded to him for the repair of vehicle is just. It would be unjust for this Court to provide damages under both heads to the Plaintiff. However this Court notes that the Plaintiff numerous expenses which he is not claiming which involved his running around, obtaining quotes, visiting the police, taking time to communicate and follow up with the Defendants. He needs to be compensated for this as well. For this miscellaneous expenses this Court take a reasonable sum as $500.00.

The Plaintiff has sought $800 for the towing charges for his vehicle following the accident. This was not supported by any receipts or invoices. However this Court notes that charges would have been incurred for the towing of the vehicle. Under this head this Court notes that a reasonable award would be $250.00.

The storage charges that is being claimed by the Plaintiff is $2000.00 This is also a reasonable claim given the delays and failure by the defendants to settle the Plaintiff to his former situation within a reasonable time. This Court allows $2000.00 for storage charges.

This Court further allows a sum of $1000.00 as legal costs. The total sum to be paid by the defendants is $29156.00.

The Plaintiff's case is proven on the balance of probabilities. The Plaintiff succeeds with the claim. This Court has worked out the quantum of damages to be paid by the Defendants. This Court orders that the Defendants pay the Plaintiff as follows:

(a) A sum of $24,656.00 for repair and restoration cost of the vehicle.
(b) A sum of $750.00 for loss of income.
(c) A sum of $500.00 for miscellaneous expenses.
(d) A sum of $250.00 for towing charges.
(e) A sum of $2000.00 for storage charges.
(f) A sum of $1000.00 being legal costs.
(g) The total sum being $29156.00.
(h) Interest at a rate of 6.5% from date of judgment.
(i) The total sum to be paid by the Defendant is limited to the jurisdiction of this Court.

Any party aggrieved with this judgment has the right to appeal to the High Court within 28 days.

Chaitanya Lakshman
Resident Magistrate
25th June 2014