Digital Print (Fiji) Ltd v Sharma [2012] FJMC 264; Civil Case 01.2009 (4 October 2012)

IN THE MAGISTRATE'S COURT ATLAUTOKA

Civil Case No 01/09

BETWEEN

DIGITAL PRINT (FIJI) LTD
Plaintiff

AND

ABINESH SHARMA T/A LAUTOKA CUSTOMS AND SHIPPING
DEFENDANT

JUDGEMENT

1. The plaintiff instituted this action on the 06th January 2009 seeking the following orders:
   
   1. Order that the defendant provide the Plaintiff another STC 1985 Komori single colour offset printer and or on the alternative that there be a judgement against the defendant in the sum of NZ $ 4,500.00 being the purchase price of the printer.
      
   2. Judgement in the sum of $ 22,000.00 being loss of sale and income from Air Pacific Limited.
      
   3. Judgement in the sum of $ 12,978.00 pursuant to paragraph 11 of the Statement of claim.
      
   4. General damages for breach of contract and negligence.
      
   5. Consequential loss and damages and loss of income and sales.
      
   6. Interest on all awards from 22/05/2008 till date of payment at the rate of 15%.
      
   7. Any other and further order this Honourable Court may deem just.
      
   8. Costs of this action on Solicitor / Client indemnity basis.
      
   9. That all awards be limited to $ 50,000.00.
      
2. The Defendant filed the notice of intention to defend of the 19th February 2009 and the Statement of Defence on the 11th March 2009. The case was taken up for hearing on the 27th February 2012. One witness was called for the Plaintiff and after the Plaintiff's case was closed the Defendant gave evidence and no other witnesses were called.
   
3. As per the Plaintiff's witness, Siri Raj Singh the Plaintiff Company has engaged Lautoka Customs and Shipping to clear a printing machine imported from New Zealand. The witness said that they paid 4,500 NZ dollars to purchase the machine. The machine was fallen off the truck when it was on its way to be delivered to the Plaintiff company. The Plaintiff has not accepted the machine as it was damaged. It appears that the Defendant has obtained the services of a third party named Rao's Transport to deliver the item. However the Plaintiff's witness said that they engaged only the Defendant and they did not advice any third party to deliver the item. Therefore the Plaintiff claimed damages from the Defendant.
   
4. In this case the following facts were not disputed by the Defendant:
   
   1. That the Plaintiff imported the printing machine
   2. That the value of the machine was NZ 4,500
   100. That the Defendant was engaged to clear the machine from the customs and to deliver the same to the Plaintiff
   4. That the machine fell off the truck whilst on transport on the 22nd May 2008
   5. That the Plaintiff refused to take possession of the machine in damaged condition
      
5. The witness for the Plaintiff further said that apart from the loss suffered due to non delivery of the machine in original condition they have suffered more damages for loosing business. The witness tendered documents marked Plaintiff's Exhibits 4, 5, 6 and 7 to establish that they lost business as a result of this incident. However the Defence Counsel disputed this issue on the basis that the said businesses the Plaintiff claimed to have lost were related to dates after the 22nd May 2008. I have perused the said documents. It appears that Exhibit 4 is regarding a job given on the 5th June 2008 which is very much after the machine was damaged on transportation. Also it should be noted that although the Exhibits 5, 6 and 7 were tendered neither the documents nor the witness elaborate enough on the losses suffered by the Plaintiff. Further it appears that all these documents are in respect of jobs which were given after the machine was damaged.
   
6. It should be noted that when a Plaintiff claims for special damages it has to be claimed in a precise manner and the claim must be specially pleaded. Vague and uncertain evidence with regard to special damages will not be helpful for the Court to determine the claim of the Plaintiff. It should also be noted that the witness for the Plaintiff could not give specific answer to the cross examination by the Defendant on this issue. I am not satisfied that the Plaintiff could prove the claims he has put forward with regard to the subsequent loss of businesses he claims to have suffered.
   
7. Further the Plaintiff did not adduce any evidence to prove any general damages although he has claimed that in the statement of claim.
   
8. The Defendant claimed that the customs clearance charges paid by the Defendant should be deducted from the Plaintiff's claim. However the Defendant did not mention anything regarding the payments made by him in respect of clearing the item in his statement of Defence. Further there was no cross claim that the Plaintiff should pay the expenses incurred to the Defendant in the process of clearing the items. It should be noted that there is no procedure where the Defendant can put forward new claims during the trial unless it has been specifically pleaded in his pleadings. In the circumstances the Defendant cannot claim the expenses borne by him at this stage.
   
9. It was very evident that the Defendant has hired the services of a third party to transport the item to the Plaintiff. There was no evidence adduced by the Defendant to establish that the third party was engaged at the request or with the knowledge of the Plaintiff. There is no evidence to show that there was an agreement between the Plaintiff and the Rao's Transport. Thus I do not see any merits in the contention that the Defendant is not liable for the failure to deliver the item in its original condition without damage, as agreed. I am satisfied that the Plaintiff has proven on a balance of probability that the Defendant breached the contract between the Plaintiff and the Defendant to deliver the item and thereby caused a loss to the Plaintiff.
   
10. There was no dispute regarding the value of the item. However the Plaintiff failed to prove special or general damages suffered by him due to loss of income. Therefore I decide that the Defendant has only caused a damage of NZ $ 4,500 by failing to deliver the item in an undamaged condition.
    
11. The Plaintiff has asked for interest at the rate of 15% from the 22nd May 2008. However the Plaintiff did not give any reason as to why he claims 15% interest. Therefore the Court has no reason to award interest at the rate of 15%.
    
12. Accordingly I enter a judgement in favour of the Plaintiff for the sum of NZ $ 4,500 (limited to the jurisdiction of this Court) with interest at the rate of 6% per annum from the 22/05/08 until the full payment. Further I summarily assess the cost of this case to be & 400 (FJD).
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka
04.10.2012