Osaka Auto Spares (Fiji) Ltd v Verma [2010] FJMC 36; SCT 0852.2008 (10 September 2010)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION - SMALL CLAIMS TRIBUNAL

SCT CASE NO: 0852 of 2008
APPEAL ACTION NO: 51 of 2009

BETWEEN:

OSAKA AUTO SPARES (FIJI) LIMITED
Appellant

AND:

SANJAY SINGH VERMA and BABITA KUMAR VERMA
Respondents

Appellant: In Person
Respondents: Not Present

JUDGMENT

1. This is an appeal against the order made by the referee of Small Claims Tribunal (SCT) on 24th September 2009. The SCT order is to pay $ 1165.15 to the Respondent.
   
2. Appellant informed the Court that he is relying on appeal grounds he has filed in SCT. Respondent were present in Court on 23rd March 2010 and this case was fixed for hearing. However when this case was called on 02nd July 2010 respondents were not present in the Court and this case was postponed for 16th July 2010. All the Court no: 02 cases for 02nd July 2010 had been called before RM. Mua and litigants who were present in the Court no:02 had been duly noticed about the change of the Court.
   
3. Respondents in this case are well known litigants in Suva Magistrates Court with at least 15 – 20 cases pending in Courts where one of them are party to the case and there is no reason for them not to be aware of the change of Court. Since both these respondents are hanging around in the magistrate court's premises at least 02 days a week, I am satisfied that both respondents had all the opportunity to obtain the information about the case.
   
4. Respondent were not present in Court even on the next mention date (16th July 2010), and appellant sought judgment based on his appeal grounds.
   
5. According to the appellant's grounds of appeal, the referee had not given a fair hearing and his plea was denied for further time for his case. Moreover, referee had had a private conversation with the respondents and appellant has asked to vacate the conversation room. Appellant's feeling was that referee's conduct was totally unjust and biased.
   
6. According to the appellant, the respondent's vehicle CY 622, had been damaged by vehicle registration number LT 908 whilst it was parked at appellant's premises. Matter had been reported to the police and vehicle LT 908 owner had been duly charged.
   
7. Appellant further state that the CY 622 had its license and third party policy expired and therefore the appellant does not have any responsibility to move the vehicle from its parked position.
   
8. According to the appellant all vehicles left for repair at his place are at owners risk and appellant's company had unambiguously made it clear to all customers through a notice displayed at his premises.
   
9. Appeal Provisions regarding the Small Claim Tribunal matters are laid down under sec. 33 of the Small Claims Tribunal Decree, 1991 and read as follows:
   

33.- (1) Any party to proceedings before a Tribunal may appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:

(a) the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of proceedings; or

(b) the Tribunal exceeded its jurisdiction

10. Appellant's grounds of appeal thereby falls under Sec. 33 (1) (a) of the Small Claim Tribunals Decree 1991.
    
11. Referee in his appeal report admitted asking the appellant to leave the hearing room for him to have a discussion with the Respondent regarding an allegation made by the respondents to the acting chief registrar. According to the referee, assistant Court officer was present through out the meeting.
    
12. How innocent it may have been, the manner in which the said meeting had been conducted was highly unacceptable and therefore, I find the appellant's assumptions are with merit.
    

Merits of the Appeal

13. According to the respondents their vehicle had been given to the appellant for repairs to the gear box and the vehicle got hit from behind whilst it had been parked in appellant's premises. Matter then reported to the police and owner of the vehicle LT 908 which was at fault had been charged for Careless Driving at Nasinu Magistrate's Court.
    
14. Respondents' quite correctly had left it to the referee to decide as to who should be held responsible for the damage.
    
15. SCT referee in his appeal report had explained that he has doubt as to the existence of the cautionary notice which said to be on display at the appellant's premises but failed to explain as to how he accept the respondents mere words without any proof that the respondent had an arrangement with the appellant to have their vehicle parked inside the garage each day before the appellant closed for business.
    
16. In view of the above findings I am of the view that the referee of the SCT had conducted the hearing in a manner which leave room for any by stander to conclude as unfair and the referee had been at fault when he came to the conclusion that the appellant should be held responsible for the damage caused to the respondents' vehicle.
    
17. I decide that the appellant should not be held responsible for a damage caused by some other party and accordingly order made against the appellant is quashed. The claim against the appellant is dismissed.
    
18. 28 days to appeal.
    

On this Friday the 10th day of September 2010

Kaweendra Nanayakkara
Resident Magistrate