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Kumar v Duikoro [2014] FJMC 43; Civil Appeal 08.2013 (25 March 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
CIVIL JURISDICTION

Civil Appeal No. 8 of 2013
SCT Claim # 2728/2013

Between:

Jai Kumar
Appellant (Magistrates Court)/ Respondent (Small Claims Tribunal)

And:

Vasitia Vakaloloma Duikoro
Respondent (Magistrates Court)/
Claimant (Small Claims Tribunal)

Appellant/ Original Respondent: Vakaloloma & Associate
Respondent/ Original Claimant: In Person

Ruling

1). Introduction
The Appellant/Original Respondent (Jai Kumar) in this action has appealed the decision of the Referee, dated 14th November 2012 as per the Tribunal Records (not 18th October 2012 – as per the Tribunal Order) that "The respondent pay $100.00 monthly starting from December 2012 until the sum of $3170.00 as claimed is fully paid."

The parties at the hearing had sought that the matter be heard and concluded by way of written submission. This Court has scrutinized and considered the written submissions made.

2). The Grounds of Appeal
The Appellant/Original Respondent's grounds of appeal (as per the notice of appeal filed) are as follows "no documentary evidence to show the amount paid for the repairs, only quotations were presented to the tribunal and no receipts to prove the vehicle was repaired, referee took into account irrelevant considerations in regard to amount claimed, ...".

3). The Law
Section 33 of the Small Claims Tribunal Decree 1991 provides that:

"(1) Any party to proceedings before a Tribunal 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 the proceedings; or

(b) the Tribunal exceeded its jurisdiction."

The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

4). Observations
The primary concern of this Court is whether the appellant has met the threshold set out in section 33(1) (a) and (b) of the "Small Claims Tribunal" Decree. The grounds of Appeal advanced by the Appellant have been reproduced above.

This Court has carefully examined the Small Claims Tribunal records, the documents tendered in the Small Claims Tribunal and grounds of appeal advanced by the appellant. From its perusal of the records this Court finds that the Claimant claimed a total sum of $2170 (as per the particulars of claim).

From the records and documents in the files this Court finds that the Respondent had caused an accident and was charged for careless driving. He pleaded guilty and was fined $100. This therefore means that there was no dispute as to the accident. The Respondent had admitted the facts in Court that he bumped the vehicle of the claimant from behind which caused damage to her vehicles rear portion and rear bonnet.

The Claimant had maintained that she did not have the funds to repair the vehicle and that she had relied on the money to be paid to her by the Respondent to get her vehicle repaired. This Court is therefore satisfied with the reason so advanced by the Claimant for not having the receipts as repairs were not carried out. However, she had sought and tendered the quotation in the SCT. This Court also notes that the Claimant had worked out and shown to the Respondent and the Tribunal why she claimed $1000 which was for her travel expenses following the accident. This Court further notes that buses and for her other related travels she would not have been given receipts.

This Court takes that a sum of $1170 for the repairs and labour costs is proven and should be granted as such. This Court noted from the working out in her submission made out by the Claimant to the SCT for the sum of $1000 she sought that it exceeded the sum ($1000). This Court notes that the Claimant needed to mitigate her loss and which is without losing sight of the fact that the Respondent caused the accident and as a reason she was in that position. Despite that fact she needed to ensure that she mitigated her loss by prompt repairs and restoring her vehicle within a reasonable time rather than wait for the traffic case and SCT proceedings. For this reason this Court will revise this figure. A fairer allowance under this head will be as follows: loss of use of vehicle taking into consideration a minimum time-frame that vehicle should be in a garage and repaired thereafter is about 3 to 4 weeks. A reasonable travelling cost (for children travelling to school and travelling to church) worked out at a rate of $100/week for 4 weeks, comes to $400. And other costs (pursuing matter and related expenses) $250. Total being $650.00.

This Court has noted the length of the matter in SCT and now in the Magistrates Court. This Court has noted that the Referee tallied the amount to be paid by the Respondent incorrectly. Instead of noting that the Claimant had claimed $2170 the Referee allowed her $3170.

In allowing the appeal. This Court will not remit this matter to the SCT for re-hearing, as this Court finds that the figures need to be revised and can be rectified by this Court. This Court revises the figures as follows:

Repair costs - $1170.00

Other costs - $650.00

Total Due - $1820.00

5.) Conclusion
The appellant has met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991 and partially succeeds with the appeal. The Small Claim Order is quashed. The appellant (Jai Kumar) is to pay the Claimant (Vasitia Vakaloloma Duikoro) a sum of $1820.00 within 60 days.

For the given reasons given above, the appeal partially suceeds. Any party aggrieved with this Ruling has the right to appeal to the High Court within 30 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE

25th March 2014