Fuel Supplies (Pacific) Ltd v SDS Earthmoving & Transport Ltd [2009] FJMC 23; Civil Case 20.2009 (3 November 2009)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

CIVIL CASE NO: 20 OF 2009

FUEL SUPPLIES (PACIFIC) LIMITED
Plaintiff

V

SDS EARTHMOVING & TRANSPORT LIMITED
Defendant

Before: C. Lakshman
Resident Magistrate

For Plaintiff: Mr. Gavin O’Driscoll
For the Defendant: Mr. Sunil Kumar

JUDGEMENT

Introduction

1). On 6th April 2009, the Plaintiff, filed a Writ of Summons and Statement of Claim demanding payments for supply of fuel which remained unpaid as cheques rendered were dishonored by the bank upon presentation.

2). The Defendants on 28th May 2009 filed a Statement of Defence and Counter -Claim arguing that fuel was of inferior quality and contaminated and as a result its vehicles sustained damage. On 30th June 2009 the Plaintiff’s filed a Reply to the Defence and Defence to Counter-Claim.

3). This case was heard on 16th October 2009.

THE CLAIM AS PER THE WRIT

The Plaintiff sought:

(i) Judgment for $19,835.64.

(ii) Interest as per paragraph 6 – from 22nd October 2007.

(iii) Claim be limited to the jurisdiction of the Court.

(iv) Costs.

(v) Such further relief and orders as the court deems fit in the circumstances.

The Defendant filed a statement of defence and a counter claim in which they sought:

(i) The statement of claim be dismissed.

(ii) Judgment be entered against the plaintiff for the counter claim for $8765.00.

(iii) Judgment be entered for loss at the rate of $500.00 per day for the trucks and further $500 for excavators from 31st March 2006 to date and as it continues.

(iv) Costs.

(v) Such further relief and orders as the court deems fit in the circumstances.

(vi) Total losses be limited to the jurisdiction of the Court.

In Reply to Defence the Plaintiff sought that the Counter-Claim be dismissed with costs and that judgment be entered as prayed in the statement of claim.

HEARING THE PLAINTIFF’S CASE

The Plaintiff’s called 1 witness. The witness was Mohammed Haroon Khan (Pw-1).

Examination in Chief

The witness is an employee (Accountant) of the Plaintiff Company. He gave sworn evidence which was as follows:

- "Work for fuel supplies. I am the Group Accountant.

- Distributors of BP Oil and we do supply fuel to customers and have a service station.

- Have the Defendant as a customer. Defendant customer since 2004 to end of 2005.

- In 2006 when I started Shobna (SDS) called me and said we want fuel. She gave order we gave this to BP oil. They delivered to Mr Sharma’s residence. In 2006 they started buying fuel from us.

- When customers are delivered fuel they pay with a cheque. They buy 4000 litres every 2 weeks. They give us cheques. They sign the invoice. We keep original yellow copy given to customer.

- I got 2 originals. One worker who migrated kept the originals. These are the invoices from the plaintiff to the defendant.

- 3000 litres @ $1.2177 = $4109.73 (includes vat). When driver takes fuel. The driver makes the invoice. The person who signed must be employed by the Defendants.

- 3 other invoices. They gave dated cheques."

The Plaintiff tendered invoice # 238744, 233825, 233824 and 233821 as Exhibits 1a-1d. The Defendants objected to the invoices and stated that they were not received by the employee. (The Court on this notes that later on the Defendant admitted that fuel was supplied and that he owed the Plaintiff money.)

PW-1 further gave evidence as follows:

"- cheques were made out to Fuel supplies from SDS. Total of 4 cheques.

- Amount of the cheques correspond with the invoices. Cash sale from Vatuwaqa bowser. The cheques were dishonored. The Bank is Bank of South Pacific (Habib Bank).

- Debit advice from bank both cheques were dishonored. Fees $60.00. (Cheques as exhibit 2a and advice as Exhibit 2b).

- Interest on overdue accounts is 15%. 30 days account. Total due is 19835.64.

- They never gave any report of dirty fuel. We fill from BP oil depot. We supply all over Fiji. No complaints about fuel.

- Farook was Director’s son in-law. Resigned from company in 2004 and migrated to New Zealand. In 2006 Farook did not work for the company.

- We stopped supplying to Defendant. We have a ½ million dollar account with BP oil. We no longer supply to the Defendants. They did not pay us."

Cross-Examination

The witness in cross examination responded as follows:

"- Who is J Roy? - It was received by the Defendant’s employee.

- Tank belongs to fuel supplies. Tank at Defendant’s residence. Tank is with the defendant. My drivers do not lock or unlock the tank.

- How tank operated? We put overhead tank. Filling point from top. They verify the quantity in the truck. They then verify the tank. Staff and drivers.

- Similar invoices were cheques were honored? We got invoices. Claim is for dishonored cheques.

- I contacted his daughter. They told me that they did not have enough funds. They asked it be deposited later. I am not making up stories. We gave fuel and they gave a cheque.

- I did not go to the customer’s site. Tank is our property our drivers check the tank.

- Drivers have not told us anything. Farook resigned in 2004.

- There are no filters in the tank. The pump has filters which is life guaranteed. The filters were not repaired. We have new pumps.

- I am aware of this claim. Since cheque was dishonored – we stopped the account.

- Fuel supplied was not contaminated. Q: Complaint lodged to Farook who installed the tank? No.

- Q: Company changed the filters. Despite that fuel was contaminated? No.

- Q: Because of contaminated fuel 4 vehicles were damaged and still in Defendants yard? I do not know.

- Q: The Defendant lodged compliant to company directors? No

- The customers call me not the Director. Director did not inspect the fuel tank. I do not know of the damage and loss to Defendant."

Re-examination – nil.

THE DEFENDANTS WITNESSES

The Defendants called 2 witnesses. The witnesses were Surya Deo Sharma (Dw-1) and Vinay Raj (DW-2).

Examination in Chief - Surya Deo Sharma (Dw-1)

This witness is the Director of the Defendant Company. He gave sworn evidence which was as follows:

"- know the Plaintiff company.

- Business since 2003 had tanks in 2004. No money paid for the tanks. Me and my driver had responsibility for the tanks.

- We call one Farook when problem with the tanks.

- One filter was blocked. One worker took the filter to repair. Repaired once. When he was there. When Farook left it was 2 times. It was because of rust and water that nozzle was blocked.

- I heard the evidence of the Plaintiff. I owe them $17,000.00.

- My trucks are still in the yard. Water and rust choked the engine. I hold the supplier of the fuel responsible for the vehicles damage.

- I repaired two trucks. Receipts with counsel. Another 4 trucks in the yard. I took the vehicle pumps to Diesel Turbo services for service. 2 vehicles repaired. I have paid them.

- Quotes for vehicles parked in the garage. Photos of pump. Paid approximately $9000 for repairs. They told me water went into pumps and blocked the nozzle. I blame fuel supplies for the damage."

The Defence tendered the quotations by Diesel Turbo for the vehicles and the photos.

"- I spoke to the Plaintiffs 1st witness on the phone. Did not meet him. I called him to come and check the filter. He said he will come. He did not come.

-when my vehicle broke down I could not get income.

-$500-$600 I got income from the vehicles. 4 still in the yard and 2 repaired. Loss of use of vehicles. Since 2005 vehicles parked in the garage.

-I do not have money to pay."

Cross-Examination

The witness in cross examination responded as follows:

"- Q: parked since 2005? A: yes.

- Q: fuel supplied in 2006? A: yes.

- Q: vehicles are serviced? A: yes.

- Q: cost of usual service? A: Own Mechanic we service ourselves.

- Q: For EF082 repair of fuel pump? A: given to Diesel Turbo.

- Q: any invoice of Diesel Turbo? A: yes. I do not have it.

- Q: can tell when done? A: in 2006, gave cheque for work done.

- Q: can you produce invoices? A: gave to lawyers.

- Q: Date of invoice? A: 17/8/2005 (tow truck), 30/10/2007. Fuel supplied since 2004.

- Q: any written complaint to plaintiff? A: spoke to my friend Farook had verbal conversation.

-I did not know when Farook resigned in 2004. Later on I found from accountant that Farook left. Haroon told me Farook left. Haroon told me in 2006. Haroon told me in 2006 that Farook left and I asked him to check filters.

- cheques of 15th May 2006 are my cheques. The fuel was supplied every 2 weeks.

- Q: No problems caused by the fuels? A: because of the fuel.

- Q: duty to mitigate loss? A: my vehicle is parked.

- Q: claimed $7000 for excavators, any invoices or evidence for loss of trucks of $500? A: no, have tax invoices in office. I have income tax loss.

- I owe the plaintiff fuel was supplied."

Re-examination

In re-examination the response was as follows:

"- The first photo shows pump breakdown with bad fuel and water. The last photo shows excavator pump break down.

- I paid Diesel Turbo by cheque in 2007, cheque number is on invoice.

- Fuel was bad. When they replaced I would pay.

- Did not pay because trucks and excavator were damaged.

- I will pay their expenses if they pay mine."

Examination in Chief - Vinay Raj (DW-2)

This witness gave sworn evidence as follows:

"-employed by defendant for 3 months now. Was employed before. 2005-2006 worked for defendant.

- Truck used to choke when I drove. When filter was opened it contained dirt and water.

- There was a tank in the yard. We used to fill from the tank.

- On the way vehicle was stuck. It happened 10 times. Did not reach destination on time. Did not reach home on time.

- It happened when I drove. 3pm choked reached yard at 4am."

Cross-Examination

The witness in cross examination responded as follows:

"- Q: dates 10 times choked? A: cannot recall.

- I cannot recall when I left the defendant company.

- I am not a mechanic. Would not know what the problem was. I opened filter cleared and started again. Drove truck number – EH 395."

Re-examination – nil.

Submissions

In closing the Counsel for the Defendant mentioned that he relied on the Statement of Defence. The Counsel for the Plaintiff stated that the truck the 2nd Defence witness drove is not mentioned in the Defence pleadings or evidence.

Analysis of the Evidence

The Defence’s first witness the Director of the Defendant company, Mr Surya Deo Sharma does not deny owing the Plaintiff money. The Plaintiffs had tendered evidence to prove its claim against the Defendant for their part. The Plaintiffs claim is proven.

The Defendants in their defence and counter claim state that they did not pay because the fuel was of inferior quality and it caused damage to its vehicle. The Defendants in their pleadings stated that "as a result of the contaminated fuel supplied by the Plaintiff, four of the company’s trucks registration no. DW644, DY213, EF082 and EU 706 fuel pumps and its components were extensively damaged".

The defence submitted 4 photos stating it to be of fuel pumps and the last one to be of the excavator fuel pump break down. In fact the last photo does not show a fuel pump but an Excavator bearing number plate EF 826. In its pleading the Defendants stated that they repaired fuel pumps of 4 excavators for $7000.00. There is no supporting invoice or evidence of this at the hearing. The photos did not assist the Court. From the photos it could not be ascertained which vehicles the parts belonged to and what components the components in the photos were. In fact the photo of the Excavator does not prove anything. No evidence was led that it even belonged to the Defendant. A mere photo with no evidence as to its taker, date photo was taken, identity of the component and the vehicle do not assist the Defendant. The last photo only shows an excavator without a bucket? What inference the Defence expects the court to draw from this photo. No invoice or quotes were tendered for repairs of fuel pumps of 4 excavators as pleaded.

The Defendants have submitted quotes by Diesel Turbo EFI (Fiji) Ltd for vehicle numbers: FF826, DW 664, EW 978, EF006, EX809 and EU706 dated 1st August 2009. The defendants have tendered no evidence (by way of LTA vehicle Search) that they own these vehicles. In fact in the pleadings the Defendants state only about EU 706, but for none of the other vehicles mentioned in the pleadings has a quote been provided for.

One tax invoice was tendered dated 30th October 2007 to service and calibrate 1 x 8 cylinder inline fuel pump #106891-1334 at a cost of $965.25 purportedly for EU706 which is written in pen (by someone) as the invoice portion relating to vehicle number is blank. A Tax invoice was also submitted dated 17th August 2005 for service of EF082 for $800.00. The Court notes the alleged contaminated fuel supplied by the Plaintiff was in 2006. The Vehicle EF082 fuel pump was serviced prior to the supply of the fuel in 2006 and the allegation of contamination. The Defendant has given evidence that their vehicles fuel pumps were repaired prior to the supply of fuel by the Plaintiff in 2006.

The driver of the Defendant drove vehicle number EH395 which he told the Court choked 10 times. The Defendants 1st witness did not state he owned this vehicle and neither is this stated in the pleadings. The Defendants counter claim is not supported by the evidence that it has tendered. The Defendant in support of its case could have brought in evidence of those who repaired the fuel pumps to state it was contaminated by water and dirt. No such evidence was tendered.

The court also notes that the Plaintiff presented a cheque twice and this supports its argument that they were asked to re-present the cheque. They would not have done so if they knew the payment for the cheque was stopped as they Defendant complained about the quality of the fuel. The Court accepts the fact that the Defendants told that Plaintiff’s to re-present the cheques as they did not have funds, which the Plaintiffs did. The Defendants did not stop the payments for the cheques for the supply of inferior quality of fuel. They did not have funds to pay for the supply of the fuel. No conclusive evidence was tendered in Court that the alleged damage to the Plaintiff’s vehicle was caused by the fuel supplied by the Plaintiff.

The Court noted the evidence tendered in Court. The Court noted the demeanor of the witnesses. The Court believes the evidence of the Defendants 2nd witness. The Defendant’s driver. He was truthful. The 1st Defendant witness was selective. He was not truthful. He also contradicted his evidence.

The Plaintiffs claim against the Defendant succeeds. The Defendants counter claim is dismissed. Right to appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

03/11/09