Narayan v Allied Security Force (Fiji) Ltd [2012] FJMC 10; Civil Case 112.2009 (7 February 2012)

IN THE FIRST CLASS MAGISTRATES COURT AT NASINU

CIVIL JURISDICTION

Civil Case No. 112/2009

BETWEEN:

ROHINI KIRAN NARAYAN (f/n Surua) of Lot 117, Stage 3, Sangam Road, Narere, Nasinu in the Republic of Fiji Islands.
Plaintiff

AND:

ALLIED SECURITY FORCE (FIJI) LIMITED a limited liability Company having its registered office at 184 Toorak Road, Suva in the Republic of Fiji Islands.
1st Defendant

AND:

AMITESH CHAND (f/n Ami Chand) of 152 Fletcher Road, Vatuwaqa, Suva in the Republic of Fiji Islands.
2nd Defendant

Ms. Melaia Ligabalavu for the Plaintiff
The Defendant was absent and represented by Ms Nusi Tabete

Judgment

1] By writ of summons the plaintiff commenced this action against the Defendants. The facts of the case are as follows;

2] The Plaintiff was at all material times the owner of Motor Vehicle Registration No. FC 221. The First Defendant was at all material times the owner of Motor Vehicle Registration No. CL 381 [hereinafter referred to as "CL 381"]. The Second Defendant was at all material times the driver of CL 381 and was duly authorized at the relevant time by the 1st Defendant to drive the said vehicle. On or about the 4th day of July, 2008 the Second Defendant was driving CL 381 at the junction of Kings and Kalabu road, Nasinu on the instructions, consent and knowledge of the First Defendant. The Second Defendant drove CL 381 so negligently and carelessly that it collided with the Plaintiff's car which sustained damages that needed repairs. The said accident was caused solely due to the dangerous and negligent driving of the Second Defendant. Those are; the second Defendant;

(a) Failing to keep any or any proper lookout for other road users.

(b) Driving in a dangerous manner.

(c) Driving the vehicle without due care and attention.

(d) Driving at an excessive speed having no regard to all the circumstances.

(e) Failing to stop, to slow down or to swerve in any other way as to avoid the said collision.

(f) The Plaintiff will further rely upon the doctrine of res ipsa loquitor in that the Second Defendant failed to control his vehicle and bumped the Plaintiff's vehicle from behind and pushed the vehicle and as a result of the impact it moved forward and bumped a Government vehicle which had stopped in front of the Plaintiff's vehicle.

(g) In the premises failing to drive with due care and attention.

(h) The Plaintiff's will further rely upon the doctrine of "res ipsa Loquitur" in that the Defendant lost control of the said vehicle registration no. EG436, failed to stop or in any way manage or control the said vehicle.

3] As a result of his negligent driving, the Second Defendant was charged for Careless Driving by the Nasinu Police and he pleaded guilty to the offence.

4] The Plaintiff's vehicle FC 221 was damaged and the following costs have been incurred by the Plaintiff.

Total Repair Costs	- $ 6,100.00
Assessor's Fee	- $ 155.00
Demand Notice Costs	- $ 150.00
Excess	- $ 500.00
	$ 6,905.00

5] The Plaintiff says that the First Defendant is vicariously liable for the actions of the 2nd Defendant and the Plaintiff claims from the Defendants damages and loss. On 13th August, 2009 the Plaintiff through its Solicitors wrote to the First Defendant requesting it to pay the repair charges, but the First Defendant refused and/or willfully neglected to pay the Plaintiff.

6] Therefore the Plaintiff Claims from the Defendants;

(a) Judgment in the sum of $6,905.00

(b) Costs of this action

(c) Such further and/or other relief as this Honorable Court deems just and equitable in the circumstances.

(d) The Plaintiff limits the claim within the jurisdiction of the Magistrates Court to not exceed the sum of $50,000.00.

7] The record shows that defendant was served, present and has filed their statement of defence to the Plaintiff's claim. Then the Plaintiff has filed reply to the defence and matter was set for hearing on 07th November 2011. On that hearing date, the Defendants did not appear in person, but their counsel Ms Nusi Tabete appeared. She said she did not get any instructions from the Defendant for this case and seek leave to withdraw from the case and that application was allowed. The Plaintiff counsel requested that matter be formally proved as case was fixed for hearing and that application was also allowed.

8] On formal proof, the Plaintiff's agent, senior customer service officer, Mr. Nukul Deo gave evidence. He said that Mrs Rohini Kiran is the Plaintiff of this case and she is one of their clients. She has made a claim to recover damages to their company "Sun Insurance". Her vehicle, FC 221 was involved in an accident on 04th July 2008. The driver of other vehicle was Mr. Amitesh Chan, the Second Defendant. Owner of that vehicle, CL 381, was first Defendant, ALLIED SECURITY FORCE (FIJI) LIMITED. The first Defendant is a limited liability company with registered office. The second Defendant was an employee of the first Defendant. The witness tendered 10 documents and he said that claim was made by the Plaintiff to repair the damages to her car which was arisen by this accident. The total repairing cost was $6753 and they claim that money together with cost and interest.

9] I now evaluate the evidence before me. The Ex-1 is the motor claim form was lodged by the Plaintiff. It says how the accident happened and front and rear portions were damaged by this accident. Ex-2 is the motor policy to this Plaintiff's car. The Condition 1(e) says "Where you are not at fault and someone else is responsible for damages to your vehicle, SUN insurance reserves the right to sue that person in your name and recover any payment made by SUN insurance...." In that condition, it clearly shows that the plaintiff has filed this application to co operate with SUN insurance to get back the money which was incurred by the SUN. Ex-3 and 4 showed that they requested first Defendant to pay that money. Ex-5 to 10 shows that the Plaintiff repaired the vehicle and that the defendants were demanded to pay the money which is sum of $ 6753, but the defendants failed to pay.

10] I note under the vicarious liability the first Defendant Company is liable to pay this money. The second Defendant was negligent and he is liable to pay this money and under the vicarious liability it goes to first Defendant as well. In the evidence it transpired the Defendants failed/neglected to pay this money. The documentary evidences are strengthening the plaintiff's case. I have no reason to disbelieve the Plaintiff's evidence. The evidence placed before me are very satisfactory. I am satisfied that the Plaintiff has proved its case balance of probabilities. Hence, there will be a judgment in favour of the Plaintiff.

11] Therefore, I make following orders.

1. I grant Judgment in the sum of $ 6,905.00 as the Plaintiff prayed in the statement of claim.
   
2. In addition the Defendant should pay Interest at the rate of 5% Pursuant to Order 32 Rule 8 of the Magistrates Court Rules, legal interest from the date of this judgment until the full sum is paid by the Defendants to the Plaintiff, but total sum is limited to $50,000.
   

12] Judgment to be entered accordingly.

On 07th February 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu