Khan v Kennedy Hotel Ltd [2012] FJHC 1148; HBC179.2002 (4 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 179 of 2002

BETWEEN:

IMTIAZ AHMED SAHU KHAN of Lami, Dental Surgeon.
PLAINTIFF

AND:

KENNEDY HOTEL LIMITED, Kennedy Avenue, Nadi.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. Nagin H. of Sherani & Co. for the Plaintiff

Mr. O' Driscoll S. for the Defendants

Date of Hearing : 02nd April, 2012

Date of Ruling : 04th June, 2012

DECISION

1. INTRODUCTION
   

1. The Plaintiff has obtained the judgment in its favour. The summons for assessment of damages was heard before me. The Plaintiff gave evidence and did not file any documentary proof supporting his contention. The claim is based on a vehicle sold to him by the Defendant, which was subjected to an 'asset purchase agreement' to a financial institution. The vehicle was sold free from all the encumbrances and the vehicle was dispossessed as a result of non payment of payments by the Defendant to the said Financial Institution. The Plaintiff re-possessed the vehicle after settling an amount to the said financial institution and judgment was obtained against the Defendant in this action. The Plaintiff gave evidence and the Defendant did not produce any evidence to the contrary. In the cross examination the credibility of the evidence was not shaken and I believed the evidence of the Plaintiff. Defendant was granted an opportunity to file a written submission and it did not file the submissions.
   

2. ANALYSIS
   

2. The Plaintiff gave evidence and stated that he is a Dental Surgeon by profession and he purchased the Toyota, Land Cruiser bearing the registration no. CP 175 from the Defendant without knowing the already existed agreement between the Defendant and a financial institution regarding the said vehicle. Since the payments were defaulted by the Defendant to the said financial institution, it exercised its powers and the vehicle was possessed from the Plaintiff. The vehicle was in the custody of the Police and the financial institution filed an action by way of originating summons to High Court, to obtain the vehicle and was not successful and the vehicle was returned to the Plaintiff, but on appeal the Court of Appeal overturned the said decision and vehicle was handed over to the financial institution.
   
3. Initially the vehicle was dispossessed from 4th May, 1996 to 31st January, 1997 for which the Plaintiff is claiming $1,500 per mensum and the loss is $13,500.00. This was the time when the vehicle was in the custody of the Police and financial institution filed an action to recover to vehicle, but was not successful and the financial institution appealed against the said decision of the High Court.
   
4. In pursuant to the Court of Appeal decision the vehicle was again dispossessed from 12th February, 1999 to 3rd May, 2001 and the loss is again claimed at $1,500.00 per mensum and the loss is assessed at $42,920.25.
   
5. The Plaintiff having dispossessed the vehicle, arranged a settlement with the financial institution and he had paid $21,000 to re-possess the vehicle. The Defendant cross examined the witness and did not dispute the amount paid to the financial institution so the amount paid to settle is proved.
   
6. In the cross examination he admitted that he was not a party to either High Court or Court of Appeal as the vehicle was registered in favour of his parents and they were the parties to the said actions. The Plaintiff also admitted that he does not possess any receipts for the legal fees that he is claiming. The Court of Appeal has awarded cost to the financial institution in that action and the Plaintiff's parents who were the actual registered owners of the said vehicle were a party to the said action and they were bond by the cost ordered by the Court of Appeal. The Plaintiff is precluded from re-opening the issue of cost in the said actions as a 'global-sum' was awarded for the actions in High Court as well as in Court of Appeal. I will not order any damages for alleged legal fees.
   
7. The Plaintiff did not submit any receipt or evidence to claim $1,500 per month for the loss of the vehicle. He said since he had an alternate vehicle the loss that he claimed did not actually incurred to him to produce any receipts to support his contention. The burden of proof for assessment of damages is with the Plaintiff. He has given evidence and stated that at the time of the incident the normal rate for a hire of such a vehicle was $150 per day and he is claiming 1/3 of that and on that basis he had calculated $1500 per month as the loss due to the dispossession of the vehicle. The Defendant did not produce any evidence to the contrary and what I have before me is the uncontroverted evidence of the Plaintiff that the deprivation of the vehicle amounted a loss of $1,500 per month, and I accept that position since there is no evidence to the contrary on the preponderance of evidence.
   
8. The Damages are assessed as follows
   
   1. Loss due to dispossession of the vehicle for the period 4th May, 1996 to 31st January, 1997 @ $1,500 per mensum $13,500.00
   2. Interest for 13,500 @ 6% from 1997 to 2012 - $12,150
   100. Loss due to the dispossession of the vehicle for the period 12th February 1999 to 3rd May, 2001 at the rate $1,500 - $42,000
   4. Interest at 6% rom 2001 to 2012 - $27,720
   5. The amount paid to the financial institution to re-possess the vehicle on 3rd May, 2001- $21,000
   6. The interest for the amount paid to re-possess @ 6% from 3.5.2001- to 2012 = $13,860
   7. The total loss $130,230.
      
9. The total loss is assessed as above at $130,230 and the Plaintiff is entitle to legal interest from the rate of judgment to final settlement of the above mentioned sum. The cost of this action is to be taxed if not agreed as per the judgment entered on 7th October, 2011.
   

Dated at Suva this 04th day of June, 2012.

Master Deepthi Amaratunga
High Court, Suva