National Bulldozing Transport Company Ltd v Sun Insurance Company Ltd [2012] FJMC 4; Civil Action 74 of 2008 (20 January 2012)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
CIVIL JURISDICTION
WESTERN DIVISION

Civil Action No. 74 of 2008

Between :

NATIONAL BULLDOZING TRANSPORT COMPANY LIMITED
a Limited Liability Company having its Registered Office at Angel Theatre Building, Sigatoka Town, Sigatoka.
Plaintiff

And :

SUN INSURANCE COMPANY LIMITED an Insurance Company
Having its Registered Office at Suva and branch offices in and around Fiji.
Defendant

BEFORE MR. C LAKSHMAN
Resident Magistrate

Counsels: For the Plaintiff: Mr. Epeli Vula
Defendant: Mr. Romanu Vananalagi and A. Narayan

Judgment

1). Introduction

In this Action the Plaintiff claimed from the Defendant a sum of $13,030.00 being amount due and owing by the Defendant to the Plaintiff under a insurance cover for vehicle # EG455 together with interest at the rate of 10 % per from 21st June 2007, costs and such other relief as the Court deemed to the limit of this Court.

2). The Defendant filed a Statement of Defence admitted some parts of the Writ and denied certain parts and sought that the Plaintiff's claim be dismissed with Costs on full indemnity and/or solicitor client biases.

3.) For the Plaintiff, Mohammed Younas, and Naushad Ali gave evidence. The Defendant called Avendra Kumar.

4.) The Plaintiff's Witnesses Evidence

The material evidence of PW-1 - Mohammed Younas, the Director of the Plaintiff Company was that "Company Had vehicle # EG 455. Had insurance cover with Defendant. Sum insured was $30,000.00. On 21st June 2007 vehicle was bumped while parked near Angel Building. Was advised to take quotes from garages. Insurance company assessed after 8-9 days. Had to hire rental car. I did not agree to repair of boot lid. Extent of damage high. Insurance company did not want to get boot lid. Source was 2nd hand from Japan."

In cross-examination the PW-1 - Mohammed Younas responded as follows: "I didid not choose benefit for rental car. Boot lit was extensively damaged. Not the vehicle. Windscreen cracked on left side 8 – 10 inches. Only claiming for parts not supplied as per receipts. As per receipts $3850. only amount I paid. No other amount. Paid $3850 only entitled to it. Labour cost $1650. All the repairs.

In re-examination the Plaintiff stated "Delay in repairs due to supply of parts."

The second witness for the Plaintiff was Naushad Ali, Director of Sigatoka Auto Repairs. His material evidence in examination in chief was as follows: "operate garage for 30 years. Do insurance jobs. Plaintiff paid us $3850. "

In cross-examination the second witness for the Plaintiff responded as follows: "I could repair not give guarantee for the boot lid. Owner did not want it repaired. Owner discussed with Sun. Sun has not paid $1600 to me."

5). Defendants Witnesses Evidence

The witness for the Defendant gave sworn evidence. The Defendant's material evidence was "with Sun for 5 years. Plaintiff did not want rental option. We gave order of $2600 less excess. We repair parts that can be repaired. Vehicle to be restored to pre-accident condition. No to cover better. Date of accident 21st June 2007. dispute went for long time."

No cross-examination of the Defendants witness.

6). Analysis of the Evidence

The Court has noted all the evidence and the documents tendered in Court by the parties.

The Plaintiff does not succeed with the claim for the rental car as he was not covered for this option. The claim for $6000.00 fails. The Plaintiff has proved on the balance of probabilities that he paid $3850 for the repairs which the Court finds the Defendant is to pay the Plaintiff. As to the issue of the boot-lid. The Court finds that the repairer could not guarantee the repairs and therefore it was reasonable to replace with a second hand Japanese Boot-lid. Boot-lids can cause rattling and the Court accepts as reasonable the need to replace with a second hand Japanese Boot-Lid.

The payment of $3850 was made to the repairer on 5th July 2009. As such the interest on this sum will accrue from this day forth.

7). Orders
The Court Orders as follows:

(a) The Defendant to pay $3850.00 to the Plaintiff within 14 days of this Judgement.
(b) The Defendant to Plaintiff interest on $3850.00 at a rate of 9% from 5th July 2009 to date of payment.
(c) No order as to Costs as the Plaintiff partially suceeds.

Right of appeal within 28 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE
Sigatoka
20/12/2011