Narayan v Sharma [2013] FJMC 125; Civil Action 182.2011 (6 March 2013)

REPUBLIC OF FIJI ISLANDS

IN THE MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION
CIVIL JURISDICTION

Civil Action No. 182 of 2011

Rajendra Narayan
Plaintiff

v

Sashi Sharma
Defendant

For Plaintiff : Mr. S. Nandan (Reddy & Nadan)
For Defendant : Mr. A. Sokimi & Mr. K. Singh (Jamnadas & Associates)

Judgment

Introduction

In this matter the Plaintiff has filed a Writ seeking judgment in the sum of $2265.00. The Plaintiff alleges negligence on the part of the Defendant's employees, he alleges they towed his vehicle which caused damages to various components of his vehicle. The Plaintiff also seeks costs and any other relief as the court may deem just.

The Defendant has filed a Statement of Defence and subsequently the Plaintiff's filed a reply to the Statement of Defence.

The case was heard on 23rd January 2013. Parties were given time to make written submissions. This Court has only received submissions on behalf of the Defendant.

The Plaintiff's Case

The Plaintiff called one witness, Rajendra Narayan, the Plaintiff in this action.

The evidence of Mr Rajendra Narayan can be briefly summarized as follows:
"Recall 13th November 2009. Truck parked opposite work place suddenly tow truck came – "I TOW U". Reversed at the back of my truck – "ET185". I ran down to them. I told Council officer not to tow. They forcefully tried to tow the truck. I advised them on LTA Act. I told them not to tow. They pushed so fast. They plugged wheel lift and winched up. The radiator fan, grill and head light damaged through wheel lift. When vehicle damaged they ran away. I repaired my vehicle, bought parts from Yamato Auto Spares." In cross-examination "my vehicle was lifted in front of me. Same time I reported to the police. When damage done they left. Vehicle parked in a taxi rank along roadside. Got original police report with solicitor. Got damage report. Police examined at the scene. Yamato gave me parts. I purchased the parts. Got delivery note. Did not get invoice until today. They owe me. We deal with each other. No photo of damages. Took photo, camera changed and deleted. Delivery note does not state for vehicle damaged. I have 9 tow trucks. My wife saw parts fitted in vehicle. Except my wife no other witnesses. Truck without driver. Some dislike between me and your client. In re-examination "when vehicle was towed I was at side of the truck. Just beside the truck. Saw damages as happened."

The Defendants Case

The Defendant's called 2 witnesses, Afroz Ali and Wilson Ray.

The evidence of Afroz Ali, the driver of the Defendants tow truck was "at Nabua we saw tow truck at taxi ramp. Officer told us to take our vehicle from front and tow the vehicle. We turned and went to vehicle. Had a boy and officer. Officer takes photo and boy assists driver. When lift down I reverse the vehicle. I reversed boy there. When wheel lift down. It touches tyre first. From across the road other vehicles driver and mechanic came running. Owner not there. The boys came running and argued with officer and my boy. They said we cannot take the vehicle. Our vehicle is smaller, our capacity is smaller – 1 tonn. We could not lift the vehicle. Other tow truck is 2.5 to 3 ton. Officer told us not to lift. Officer said he will warn them not to park their next time. Driver reversed and drove into their yard. Towing process is boy turns on we lift. When boy o.k.'s We lift. When wheel lift hits tyre we stop. Before we lift we put L bar and chain, lock tyre and the lift. We reversed and touched the tyre, we did not lift. Our truck was smaller we could not lift. No damage to vehicle of Plaintiff. I know owner of ET – he was not there. Plaintiff in Court was not there. In cross-examination "we did not lift the vehicle. I am not lying. Cab was like that no damage. I took oath to tell the truth. I reversed when it touched I got out. Was out for 3-4 minutes. Whole incident for 15-20 minutes. I never saw Rajen saw his driver and mechanic. If he was there I will see him.

The evidence of Wilson Ray, the tow truck assistant of the Defendants vehicle was "was with driver and traffic officer, we listen to traffic officer. We did not attempt to lift the vehicle. No collision. No damage to vehicle. SCC officer gave them final warning. Is overseas now. Mechanic and driver there. Owner not there. In cross-examination "we dropped wheel lift. Plaintiffs vehicle did not come into come into contact with our vehicle. Wheel lift touched the vehicle. Wheel lift did not cause the damage. We were there when officer gave them warning. They reversed, then we left. Until they moved we were there."

Analysis

This Court has heard all the evidence in Court. It has further scrutinized the documents that were tendered in Court together with the submission that was made.

The claim by the Plaintiff is for damages caused due to the negligence of the Defendant's employees in using their tow truck, which the Plaintiff alleges caused damages to his vehicle. The Plaintiff in his evidence stated that that he had taken photos of the damage but were not available as it was deleted. He further told this Court that he gave his Solicitors the original police report. None was tendered in Court. The Plaintiff also told this Court of the damage report but none was tendered. The only document the Plaintiff relies on is the delivery note. This delivery note does not state which vehicle the parts are for. The Plaintiff also stated that no invoice was issued as the payment has not been made. He told the Court that the sum would be off-set by some payments due to him by the Parts Company. No details of this were either provided to Court. This Court has noted that the Plaintiff is very articulate and knowledgeable about vehicles and towing. The Plaintiff would have saved photos of the damage, brought other witnesses to Court and tendered the police report to support his claim.

The Defendants called 2 witnesses who were at the scene and in the towing vehicle that is being alleged to have caused damage to the Plaintiff's vehicle. Both the witnesses for the Defendant were clear in their evidence in Court. Even in tough cross-examination they were not discredited. This Court believes their version as they were consistent and according to this Court telling the truth. Having noted the Plaintiff's evidence and his demeanor in Court, this Court does not believe him. He was evasive and gave evidence which suited him. The 2 employees of the Defendant, whom this Court believes told this Court that the Plaintiff was not even present at the time of the towing. While the Plaintiff says that he "ran down to them. [he] told Council officer not to tow. They forcefully tried to tow the truck". Plaintiff states he was present, having believed the Defendants witnesses this Court finds that the Plaintiff was not present during the alleged towing.

This Court finds odd that the plaintiff who has 9 towing vehicles does not have witnesses, apart from his wife for the parts being fitted in the truck. He surely would have mechanics, drivers and others working for him. This Court does not believe the Plaintiff that there are no witnesses, even those who supplied him the parts that were fitted in his vehicle. It is hard to believe that no one else would have knowledge or had seen the parts being fitted in his vehicle. The Defendant's witnesses are truthful and they told this Court that the Plaintiff was not present. This Court believes them.

This Court from the hearing finds that this action initiated by the Plaintiff is mischievous and frivolous. This Court has accepted the evidence of the Defendants witnesses that their vehicle was smaller than the Plaintiff's vehicle and they did not lift the Plaintiff's vehicle. This Court also finds from the evidence that the Defendants vehicle did not cause any damage to the Plaintiff's vehicle. The Plaintiff seems to have fabricated this action to get money from the Defendant.

This Court Orders as follows:

(a) Claim is dismissed.
(b) Plaintiff to pay Defendant a sum of $1000 as costs for this action.

28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
6th March 2013