Kumar v Prasad [1992] FJHC 28; Hba0007j.92s (24 July 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL APPEAL NO. 7 OF 1992

Between:

(1) KISHORE KUMAR
(1st Defendant)
s/o Bhagirati
(2) BHAGIRATI
(2nd Defendant)
s/o Not Known
Appellants

- and -

SAMBHU HARI PRASAD
(Plaintiff)
s/o Hari Prasad
Respondent

Mr. H.M. Patel for the Appellants
Mr. R. Chand for the Respondent

JUDGMENT

This is an appeal against the decision of the Suva Magistrate Court awarding the respondent, judgment "... as prayed for with costs".

This latter expression is unfortunate because the plaintiff's "prayers" as set out in his Statement of Claim reads as follows:

"(a) Judgment in the sum of $4,094.60;

(b) Interest;

(c) Costs of and incidental to these proceedings; and

(d) Such further and/or other relief as the Honourable Court may deem just."

Furthermore the learned trial Magistrate who tried the case is now deceased and no useful purpose would be served by this Court exercising its general powers to refer the matter back to the Magistrate Court for clarification.

Be that as it may the tenor of the learned trial magistrate's judgment makes it abundantly clear that he had directed his mind almost solely to the respondent's claim for the cost of repairs to his motor vehicle and although mention was made of the expenses incurred by the respondent in hiring taxis during the period when his motor vehicle was undergoing repairs, no findings have been made in that regard nor was there any order as to what interest (if any) the respondent was entitled to receive on his judgment.

Needless to say the respondent did not seek clarification of the judgment as he could have. I also note that the respondent gave as his residential address 387 Waimanu Road, Suva and nothing is known about the frequency, distances or journeys undertaken by the respondent during the '3 months' that he claims he was without a car.

Furthermore the evidence seems to suggest that the car had been "given" to the respondent's employee for his "official and private use". This would suggest to my mind that the vehicle was mainly kept and used by the employee rather than the respondent. In any event learned counsel for the appellant correctly points out that the claim is exaggerated having regard to the dates of the accident and repairs.

Accordingly I shall treat the judgment as restricted to $2,594.60 being the actual cost of repairs to the respondent's motor vehicle for the damage caused as a result of the negligent driving of the 2nd appellant's son the 1st defendant.

I shall also deal with the appellant's appeal as it was argued before the Court by learned counsel for the appellant and in particular the grounds may be divided into 2 categories, namely, ground (2) which relates to the liability of the appellants and grounds (1) and (3) to the quantum of that liability.

As to the question of liability learned counsel for the appellant submitted that nowhere in the evidence of the respondent's witnesses did they refer to the 1st defendant or any negligence on his part. I cannot agree, the first defendant was sued as the driver of the vehicle and the second defendant as the owner of the vehicle. Both facts are admitted in the defendant's pleadings. It is also common ground that the 1st defendant was driving the 2nd defendant's vehicle at the material time when it was involved in an accident with the respondent's vehicle which was being driven by his (the respondent's) employee at the time.

Certainly the 2nd defendant in his sworn evidence admitted that on the date of the accident his vehicle was being driven by his son the 1st defendant and although the defendants denied in their pleadings that the 1st defendant was the servant and/or agent of the 2nd defendant, proof of ownership of a motor vehicle furnishes prima facie evidence that the vehicle at the material time was being driven by the owners agent or servant. (See: Barnard v. Sully (1931) 47 T.L.R. 557) a fortiori where the driver is his son.

More than that however the learned trial magistrate had before him the direct evidence of B. Singh the driver of the respondent's vehicle who described in detail how the accident occurred and more particularly where he said in identifying the driver: "The 1st Defendant was charged for this accident."

The learned trial magistrate had no hesitation in concluding that the accident occurred as a result of careless driving on the part of the 1st defendant. Such a finding is clearly supported by the evidence led before him (which did not include the transcript of the evidence in the criminal prosecution) and cannot be faulted.

Then reference was made to the acquittal of the 1st defendant on a police prosecution for an offence of Careless Driving arising out of the same accident. The learned trial magistrate had the record of the criminal proceedings before him but as he correctly points out it merely "... reveals that the 1st defendant was given the benefit of the doubt and was acquitted".

Needless to say learned counsel for the respondent correctly points out that an acquittal in a criminal prosecution is not conclusive evidence in a civil action based on the same facts having regard to the different standards of proof and moreso where the magistrate conducting the civil case did not have the benefit of hearing the defendant give sworn evidence before him as occurred in the criminal trial of the 1st defendant.

As was said by Buckley L.J. in Stupple v. Royal Insurance (1971) 1 Q.B. 50 at p.76:

"... The judge's duty in the civil proceedings is still to decide that case on the evidence adduced to him. He is not concerned with the evidence in the criminal proceedings except so far as it is reproduced in the evidence called before him or is made evidence in the civil proceedings under the Civil Evidence Act 1968 Section 2 or is established before him in cross-examination."

In this latter regard it is to be noted that learned counsel for the appellant who was also counsel at the civil trial in the Magistrate Court did not seek to cross-examine any of the respondent's witnesses on the basis of their earlier testimony in the criminal prosecution of the 1st defendant nor was any part of their evidence read into the civil trial record. No inconsistencies in the witnesses evidence (if any) was highlighted or brought to the learned trial magistrate's attention in the civil proceedings as indeed none was referred to this Court in the course of the appeal.

The appeal against the learned trial magistrate's finding of liability has no merit and is accordingly dismissed.

As for the question of quantum the appellant complains generally that there is insufficient evidence and more particularly that the learned trial magistrate erred in accepting as undisputed evidence a Burns Philp Workshop Statement (Ex.1) in the absence of any evidence "to substantiate the veracity of the contents ..."

The evidence in this regard before the learned trial magistrate came primarily from the respondent who testified that he had sought quotations to repair his damaged vehicle from 3 named garages and had settled on the lowest. After the repairs were carried out he paid the bill which amounted to $2,594.60 as evidenced by the relevant Workshop Statement which he tendered without objection.

The driver of the respondent's vehicle also testified as to the general nature of the damage to the respondent's vehicle. He said: "The trunk and bumper was pushed inside. The front bumper was damaged."

In Shiri Shankara v. John R. Thoman Civil Appeal No. 53 of 1979 the Fiji Court of Appeal in rejecting a similar ground of appeal as that advanced by the appellants in this appeal, said at p.4 (cyclostyled judgment):

"The quotation ... was admitted in evidence in our view not as a medium of proof in order to establish the damage caused to the respondent's car, but as being in itself part of the transaction and explanatory of the amount which the respondent testified he paid ... for repairs to his car; in other words the quotation accompanied the act of payment by the respondent and explained the circumstances surrounding same."

The Court of Appeal also approved the dictum of the learned judge who heard the appeal from the Magistrate Court when he said in his judgment:

"In my opinion, the document in question is admissible as a document upon which the respondent in fact made payment for the repairs of damage to his car. The document was prepared and supplied ... at the request of the respondent. Although the document is not evidence of the actual repairs carried out on the car, it is nonetheless evidence of the general nature of the repairs required and of the probable costs such repairs would entail. As can be seen the admission of the document is therefore for a limited purpose only but be that as it may be nevertheless provides in the absence of anything better some material on which the court may assess damages.

Similarly in this case the learned trial magistrate was perfectly entitled to admit the Workshop Statement in evidence notwithstanding that the maker thereof had not been called as a witness.

In the result the appeal against the quantum of damages is without any merit and is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
24th July, 1992.

HBA0007J.92S