Kumar v Reddy [2024] FJHC 442; HBC 71 of 2022 (18 July 2024)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 71 of 2022

BETWEEN

SANGEETA DEVI KUMAR of Natokowaqa, Lautoka, Senior Educator
presently unemployed.
PLAINTIFF

A N D

AVITESH REDDY of Sonaisali, Nadi, Chef.
DEFENDANT

Before : Master U.L. Mohamed Azhar
Counsels : Mr. R. Chaudhary for the Plaintiff
Ms. M. Tumalevu for the Defendant

Date of Ruling: 18.07.2024

RULING

01. The plaintiff was the passenger in the car bearing registration number DY 911 and driven by her husband Sandeep Kumar on 13 July 2019 along Queen’s Road, Navo, Nadi towards Nadi town. The defendant, at the same time, was the driver of the car bearing registration number EW 539 travelling along Queen’s Road, Navo, Nadi towards Sigatoka. The car driven by the defendant collided with the car in which the plaintiff was the passenger.

02. The plaintiff alleged that, the defendant negligently, carelessly and recklessly drove his vehicle and particularized the negligence in paragraph 3 of the statement of claim. The important paragraph that is relevant to the current application is the paragraph 4 which reads:

4. That, the defendant has been charged with the offence of Dangerous Driving Causing Grievous Bodily Harm in Nadi Traffic case number 350 of 2019 and the same is pending and progressing through the court system in the Nadi Magistrate’s Court. The said charge is relevant to the accident in the within action.
   

03. The defendant acknowledged the writ and filed the current summons for striking out the plaintiff’s action. The summons is supported by an affidavit sworn by an associate of the defendant’s solicitors. The application is founded on the basis that, the plaintiff pleaded in paragraph 4, the fact that the defendant was charged and the matter is pending in court and it will prejudice the defendant. The deponent of the supporting affidavit further stated that, a litigant is permitted only to plead conviction according to the rules, and to adduce evidence on conviction if it is relevant according to section 17 of the Civil Evidence Act 2002. The deponent further stated in her affidavit that, this would cause prejudice to the defendant and affect the fair trial.

04. The plaintiff’s counsel informed the court that, the plaintiff would not file the affidavit in opposition but moved the court to fix the summons for hearing. The plaintiff filed the legal submission. The defendant’s counsel moved the court for leave to file her legal submission and the leave was granted to file the same on or before 19.03.2024. Both counsels then agreed to dispose this summons by legal submission. The matter was fixed for ruling on submission. However, the defendant’s solicitors did not file the legal submission till today.

05. The pleadings are the factual basis of one party’s claim or defence. The pleadings present the allegations and defence. The party that pleads those allegations and or defences should prove them if the matter goes for trial in order to get the relief sought. Therefore, the pleadings are mere assertion facts or allegations. It is the settled principle that, the contents of statement of case are not evidence (Kimathi & Ors v. The Foreign and Commonwealth Office [2018] EWHC 2066 (QB). The mere fact that, the defendant had been charged for traffic offence occasioning grievous bodily harm does not mean that, he was negligence. The plaintiff cannot rely on the pleading only, nor the court is going to decide this matter on this mere allegation contained in the pleadings. The plaintiff owes the burden of proof on balance probability that, the defendant was negligent and his negligence caused damages to him. If the plaintiff fails to do so, he cannot obtain the relief he sought in his statement of claim.

06. Furthermore, the section 17of the Civil Evidence Act does not apply here for two reasons. First is that, the pleadings are not evidence as mentioned above. Second is that, its mere charge and not the conviction. The supporting affidavit contains the correspondence between the solicitors of the parties in this case. In one of the letters, the solicitors for the defendant stated that, the trier of fact will still able to access the original pleadings and this would prejudice the defendant. In civil matters, the judges are the trier of facts and law unlike the criminal matters, where the assessors are the trier of facts. And now even in criminal cases judges decide all facts and laws after abolition of assessors system. The judges are well versed in rules of evidence and they know the difference between the pleadings and evidence. Therefore, the contention of the counsel for the defendant, that the trier of facts will depend on the pleadings, is meritless and outrageous, because it undermines the competence of the judges.

07. Accordingly, I decide that, there is no valid ground to strike out the plaintiff’s action. There is no threat to fair trial, because the judges will deliver the judgment on evidence and not on pleadings. For the above reasons, I decide that, this summons is not founded on a valid ground and ought to be dismissed. I further decide that, current interlocutory application brought by this summons did not serve any purpose than delaying the substantive matter. For these reason, I order the defendant to pay a summarily assessed cost in sum of $ 1.000.00 to the plaintiff.

08. In result, I make the following orders,

1. The summons filed by the defendant is dismissed, and
   
2. The defendant should pay a summarily assessed cost in sum of $ 1,000.00 to the plaintiff within a month from today.
   

100. The matter to proceed for other pre-trial steps.
     

4. Mention on 7/08/24.
   

U.L Mohamed Azhar
Master of the High Court
At Lautoka

18.07.2024