Singh v Waqanidrola [2012] FJHC 1462; HBA2.2006 (5 December 2012)

IN THE HIGH COURT OF FIJI AT SUVA
APELLATE JURISDICTION

CIVIL CASE NO: 38 OF 1998
(CIVIL APPEAL HBA 2 OF 2006)

BETWEEN:

ABHAY KUMAR SINGH
APPELLANT

AND:

JOSEFA WAQANIDROLA
1ST RESPONDENT

AND:

PERMANENT SECRETARY FOR AGRIGULTURE,
FISHERIES & FOREST, SUVA
2ND RESPONDENT

AND:

ATTORNEY GENERAL OF FIJI
3RD RESPONDENT

BEFORE : Hon. Justice Susantha Balapatabendi
COUNSEL : Appellant in Person
Mr. E. Veretawatini for the 1st Respondent
Ms. Sha1h for the 2nd and 3rd Respondents

Date of Judgment : 5 December 2012

JUDGMENT

1. This appeal is concerned with the Judgment of the Magistrates Court, dated 12 April 2005. The Appellant appeals to this court on the following grounds of appeal, namely that:-
   
   • (1) That the Learned Magistrate erred in law regarding the principle of subrogation.
     
   • (2) That the Learned Magistrate erred in law by holding that the Plaintiff cannot rely on the principle of subrogation since he did not plead in his Statement of Claim.
     
   • (3) That the Learned Magistrate erred in law and facts regarding the quantum of damages.
     
2. The Appellant in his written submissions combined all three grounds and argued as one ground.
   
3. The 1st and 2nd Respondents also filed separate written submissions in opposing the appeal of the Appellant and moved that the appeal be dismissed.
   
4. The Statement of Claim filed by the Appellant in the Magistrate Court provides that after the collision between the vehicle of the Appellant and vehicle driven by the 1st Respondent who was an employee of the 2nd Respondent, suffered losses and damages amounting to $7,701.08.
   
5. The Appellant's vehicle was insured with New India Insurance Limited who paid for the repairs and parts totaling $6,681.88 and $371.00 to the Appellant as reimbursement.
   
6. The Resident Magistrate in his judgment in favour of the Appellant, ordered that Appellant should be paid a sum of $1,675.54 and interest at the rate of 5% thereon.
   
7. Appellant argues that the learned Magistrate has erred in law when he failed to order damages of $8,357.52 in favour of the Appellant irrespective of what the Appellant was paid by the insurer, based on the principle of subrogation.
   
8. Both Respondents in their written submissions state that Appellant cannot claim the full amount on the principle of subrogation as the plaintiff had not specifically pleaded the principle of subrogation and further take up the position that the learned magistrate has correctly considered the question of liability and the question of actual loss suffered by the Appellant and awarded the Balance sum to the Appellant.
   
9. I do not disagree with several judgments cited by the Appellant in his written submissions. According to Mann P (Annotated Insurance Contract Act [4th Edition 2003]) defines subrogation as:-
   

"Where as insurer pays a claim, it is normally entitled to exercise any right the insured might have against a third person, for the loss which gave rise to the claim. The process whereby the insurer stands in the shoes of the insured to pursue those rights against a third party is termed subrogation".

10. In view of the above definition there is no doubt that insurer could exercise his rights against the 3rd party through the insured.
    
11. In the case of Yorkshire Insurance Co. Ltd. V Nisbet Shipping Co. Ltd (1962) 2QB 330 Lord Diplock stated that:
    

"It is to be noted that the subsection, which comes into operation only upon payment for the total loss by the insurer, deals with two distinct matters:

(1). The interest of the assured in the subject-matter insured, and (2) the rights and remedies of the assured in and in respect of that subject matter. The former the insurer is entitled, although not bound, to take over, if he does, the whole interest of the assured in the subject-matter insured is transferred to him. To the rights and remedies of the assured in respect of the subject-matter insured, with which alone I am concerned in this case, the insurer is 'subrogated as from the time of the casualty causing the loss." In my view, this case turns upon what is meant by the word "subrogated" in this context. The doctrine of subrogation is not restricted to the law of insurance. Although often referred to as 'equity' it is not an exclusively equitable doctrine. It was applied by the common law courts in insurance cases long before the fusion of law and equity, although the powers of the common law courts might in some cases require to be supplemented by those of a court of equity in order to give full effect to the doctrine; for example, by compelling an assured to allow his name to be used by the insurer for the purpose of enforcing the assureds remedies against third parties in respect of the subject-matter of the loss."

12. Lord Diplock in Yorkshire Insurance (ibid) stated that:
    

Two consequences flow from this first "subrogation" is I concerned solely with the mutual rights and liabilities of the parties to the contract of insurance. It confers no rights and imposes no liabilities upon third parties who are strangers to that contract. It vests in the insurer who has paid a loss no direct rights or remedies against anyone other than the assured. He cannot sue such parties in his own name (see Simpson v. Thomson (1877) 3 App. Cas. 279, H.L).

13. However in a case of tort, the court is obliged to grant only the actual loss suffered by the Plaintiff unless the subrogation has been specifically pleaded in the pleadings. In the absence of an averment in the pleadings of the Plaintiff, such an award would tantamount to an unjust enrichment which is denied to any litigant before the court.
    
14. Plaintiff in his Statement of Claim needs to aver that the insurance policy or the contract has vested such powers to the insured that the case before the court was to recover the amount paid by the insurer to the insured. It is to be noted that there is no averment in the Statement of Claim that the instant case before is based on assigned cause of action.
    
15. There is no doubt and it was inherent in the concept of subrogation that insurer was entitled to the advantages of every right of the insured. However if the issue of subrogation has not been properly pleaded in the pleadings and in my view, no right would emanate to the Plaintiff based on subrogation.
    
16. It is to be noted that mere evidence of witness from the insurer to testify to the fact that insured has been paid a certain amount for the loss and damages, does not change the character of the case or the cause of action to a case based on the concept of subrogation.
    
17. Solicitors on record appears to be A.K. Singh Law, Lawyers and Appellant too is Mr. A.K. Singh. As Mr. A.K.Singh is no longer in practice as a Solicitor & Barrister in this country, on perusal of the case record I observe that there is no new solicitor appointed to appear in this matter. It is to be noted that both parties filed their respective written submissions in way back in 2006 and reserved judgment on notice in 2006. This appeal was listed first before me for mention for the first time on 14 February 2012 and thereafter mentioned on 28 February 2012, 16 March 2012, 13 April 2012 and 27 April 2012 due to non appearance of Appellant and an application was finally made by the counsel for Respondents on 27 April 2012 to deliver the judgment on written submissions already filed by both parties.
    
18. In view of the aforementioned reasons, I am of view that there is no merit in this appeal. On the above premise I dismiss the appeal with costs summarily assessed in a sum of $1,000.00 each payable by the Appellant to the 1st and 3rd Respondents.
    

Susantha Balapatabendi
JUDGE

05.12.2012