Sunbeam Limited v Reddy [2014] FJMC 154; Civil Action 311.2012 (14 November 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION
Civil Action No: 311 of 2012

Sunbeam Limited
Plaintiff

V

Shivam Reddy
First Defendant

Narsa Reddy
Second Defendant

Appearances and Representations:

For Plaintiff: Mr Katia (Siwatibau and Sloan)
For First Defendant: Mr Samad (Samad Law Law)
For Second Defendant: Mr Samad (Samad Law Law)

Judgment

Introduction

In this matter the Plaintiff had filed a Writ of Summons (together with statement and particulars of claim, which was later amended) seeking judgment in the sum of $5,724.85 together with post judgment interest as provided for under the Magistrates Court Act, costs incidental to the proceedings, such further and other relief as the Court deems just and expedient (all to be within the jurisdiction of the Court).

The Plaintiff's Claim arose out of a motor vehicle accident involving the Plaintiff's Vehicle Registration Number DM444 and DB468 a motor vehicle being driven by the 1st Defendant. The 2nd Defendant was the Registered Proprietor of the Motor Vehicle Registration Number DB468. The Plaintiff claimed negligence of the 1st Defendant.

Pleadings Filed and the Evidence in Court

The Plaintiff filed a Writ (Claim later amended) and the Defendant's filed a Statement of Defence (amended as well).

For the Plaintiff, Ilaitia Sivo the driver of DM444, Pranil Prakash and Arvendra Kumar gave evidence in Court. The 1st and the 2nd Defendant gave evidence. In addition to all the evidence given in Court this Court has considered the submissions that were filed for the Plaintiff and the Defendants.

Analysis

This Court has noted all the evidence that was given in this Court, the documents that were tendered together with the pleadings filed. There is no dispute in this matter that the vehicle owned by the Plaintiff was driven by Ilaitia Sivo and was involved in an accident with the vehicle owned by 2nd Defendant and driven by the 1st Defendant.

The particulars of negligence pleaded by the Plaintiff is that the 1st Defendant drove fast under the circumstances and failed to keep a proper look out for other road users and failed to stop, steer, slow down, swerve of control his vehicle properly to avoid the accident with the Plaintiff's vehicle. The evidence before this court of Ilaitia Sivo is that he was on his lane. It was raining but not heavily. He further gave evidence that the 1st Defendant came and hit his bus. He had stopped the bus. The collision occurred in the lane where the bus had its right of way. No one else was in the bus. Before the collision he had stopped the bus. The evidence of the 1st defendant, the driver of DB468 was that a car in front slammed the brakes. It was raining heavily. The bus was fast on the other lane. The 1st Defendant said that tried to press brake it did not work. The accident occurred on the middle of the road. He said he was travelling at 35 to 40 km/hour. In cross-examination this witness told the Court he was not sure how the accident happened.

The vehicle test report of the 2nd Defendant's vehicle by the LTA Officer, Isaac Samson was submitted by consent of both the parties. The opinion of the assessor was that the brake was defective and that could have caused the accident. In light of this report and no cross-examination of the maker of the report this Court cannot draw any other conclusions from it, apart from what is stated in it. The 1st Defendant as at the date of hearing of this matter was not charged for any offence. There were no other independent witnesses called apart from the 2 drivers. One point this Court however, noted from the vehicle test report was the notation "defective brake, spoke to the officer. The assessor also stated in the report that the vehicle could not be test driven due to the impact. Based on this the Court finds the assessment of the assessor is improper and incomplete. He formed the opinion on what the police officer told him. No tests were carried out to test the brakes. This Court does not give any weight to the report due to the fact that LTA officer gave his opinion based on what he was told and not after any checks. A professional assessment or report on the brakes of any vehicle cannot be made without any without proper tests and checks. In this case no tests or assessment was carried. It is not good enough for one to re-state what he heard from another. This is unacceptable.

In court the driver of the Plaintiff's vehicle was not discredited. His version is believed. In contrast the 1st Defendant in cross-examination stated that he was not sure how the accident happened. He also stated he was not sure if his vehicle was on his lane or the Plaintiff's driver's lane. However, he easily blamed the Bus driver as being fast and coming onto him and the vehicle in front of him braking. The evidence of the 1st Defendant in Court was that the bus driver was in the other lane.

The speed the 1st Defendant is saying he was driving at was 35 to 40 km/hour. If he was driving at that speed his vehicle would not go onto the middle of the lane, if braked at that speed. This would only happen if a vehicle is at a speed and that speed is in excess of the speed being stated by the 1st Defendant. According to him he was slow if he was between 35 to 40 km/hr. He would have maintained his lane even if one brake or another failed. The 1st Defendant would not have been driving at 35 to 40 km/hour to have applied the brakes and the vehicle moving towards the centre or the other lane. This would not happen between speeds of 35 to 40 km/hr. In this case the 1st defendant must be driving in excess of 60 km/hour. Given the fact the road was wet and if the 1st Defendants version is it was raining heavily. He should have been overly cautious and driven at a reasonable speed. This Court finds his speed was not what he is stating in Court. This Court does not believe the 1st Defendant and her evidence in Court. His version is contradictory and self-serving.

This Court from the evidence before it finds that the 1st Defendant was negligent and he caused the accident where the Plaintiff's vehicle sustained damages. The 1st Defendant (a driver) owed a duty to the Plaintiff and his driver (the other road user). The 1st Defendant breached that duty that he owed to the Plaintiff by his driving and causing the accident. The accident caused damage to the vehicle of the Plaintiff.

This Court further finds from the evidence before it that the 1st Defendant was driving the vehicle of his father (2nd Defendant) and he was authorized by the 2nd Defendant to use the said vehicle. The 2nd Defendant is vicariously liable for the action of the 1st Defendant and is jointly liable for the actions of the 1st Defendant following the accident as the owner of the vehicle.

The Plaintiff obtained quotes for the repair and related costs of his vehicle for the repair of the bus from a reputable company which was PA Lal Coachwork. The total sum was $7298.63. The independent assessment was for $7790.00. The cost of having the vehicle assessed was $195.00. The total cost of repairs at the Plaintiff's garage was $5529.35. This is the sum claimed plus the $195 assessment costs. The Plaintiff could have had the vehicle repaired at PA Lal at $7790.00. But relied on its quote and got it repaired. The excess to be paid to Sun Insurance was $2500.00. This was offset between Sun Insurance and the Plaintiff. It is also noted that the Plaintiff's are not claiming for loss of use of vehicle or anything else.

The Plaintiff's case is proven on the balance of probabilities. The Plaintiff succeeds with the claim. This Court orders that the Defendants pay the Plaintiff as follows:

(a) A sum of $5724.85.
(b) Interest at a rate of 5% annum from the date of issuance of the writ until full payment is made pursuant to this judgment.
(c) Costs to be on solicitor client baisis.
(d) The total sum to be paid by the Defendant is limited to the jurisdiction of this Court.

Any party aggrieved with this judgment has the right to appeal to the High Court within 28 days.

Chaitanya Lakshman
Resident Magistrate

14th November 2014