Ram v Ram [1985] FijiLawRp 2; [1985] 30 FLR 108 (20 January 1985)

SUPREME COURT OF FIJI

Civil Jurisdiction

RAJESH RAM

v

SOHAN RAM

Kermode J.

20 January 1985

(Negligence − Motor vehicle accident − agency of defendant driver binding owner − presumption that driver was agent of owner rebuttable − unchallenged evidence that driver was not such agent − acceptance of such evidence).

J. N. Singh for the Appellant.
R. Chandra for the Respondent.

Appeal against decision of a Magistrate's Court given on 25 May 1984 awarding $250 to the plaintiff against the defendant in effect for special damages for negligence for which defendant as owner of a motor vehicle negligently driven was responsible.

The Statement of Claim had alleged that the plaintiff at all material times was the owner of vehicle AC611, the first defendant was the owner of vehicle AC912 and the second defendant (presumably mentioned in the Statement of Claim) the servant or agent of the first defendant. It further alleged that the two vehicles were involved in an accident on 29 July 1983 and that the action was solely due to the negligent driving of the second defendant.

Thereafter instead of pleading damages to his vehicle and claiming special and/or general damages plaintiff claimed that the first and second defendants after the collision agreed in writing to pay the sum of $300 for the damages.

The first defendant filed a defence admitting ownership of vehicle AC 912 but denying the second defendant was his servant or agent. He denied all the allegations regarding the accident except admitting he had learnt that his vehicle had been involved in an accident near the junction of Velau Drive.

The learned Magistrate ordered the two defendants to file defences within 14 days. No defence was filed by the second defendant who however appeared in person on adjourned date for hearing and admitted liability for $200 and costs. This was not accepted by the plaintiff. Notwithstanding this non-acceptance the Magistrate did give judgment for the plaintiff against the second defendant for $200 and costs.

Both Counsel and Magistrate appeared to have completely ignored the pleading and the issues to be tried.

Mr Chandra for the plaintiff (respondent) called the plaintiff who gave very brief details of the action and that his vehicle was damaged. He endeavoured to produce the receipt for parts alleged to have been purchased for $147 to which objection was taken and upheld. The plaintiff however was permitted to state that he spend $147 for parts and had paid Michael Motors $103.50 for labour. Following cross examination two receipts including the one for $147 earlier tendered and one for $103.50 not given by Michael Motors but by one Simadri Sami were admitted apparently without comment.

There was no attempt by plaintiff to prove that the first defendant signed the alleged agreement to pay him $300.

The first defendant in evidence denied he had agreed to pay $300 to the plaintiff, he did not know the second defendant who was not his servant or agent. He said that on 1st July 1983 he had handed his vehicle a taxi to one Sunil Kumar to drive and look after in return for payment of $60 a month, at which time Sunil Kumar was working for B. Kumar.

The Magistrate in his judgment ignored the claim based on an agreement to pay $300. He commenced his reasons thus:

"The plaintiff's claim is that $300 based on negligent driving of the second defendant."

Thus he erred in so describing the plaintiff's claim which, while alleging negligence was based on contract - an alleged agreement by the two defendants to pay $300. There was no such agreement produced and the plaintiff did not testify that any such agreement had been entered into.

Despite these pleadings the Magistrate treated the action as claim for special damages for negligence.

In cross examination the first defendant's statement that he did not know the second defendant and had only seen him in court for the first time was not challenged. Yet the Magistrate did not make any finding as to the credibility of the first defendant, but took the unusual step of deciding the matter on the balance of probabilities i.e. that the first defendant had failed to rebut the presumption that the second defendant was his servant or agent.

Held: Where no more is known of facts and at the time of the accident the vehicle was owned but not driven by A it can be said that that ownership affords some evidence that the vehicle was being driven by the owner's servant or agent. If facts bearing on service or agency are known the problem is to be decided on the totality of the evidence. The Magistrate did not weigh the available evidence on the issue of vicarious liability.

The Magistrate did not hold as a fact that the second defendant was at the material time the servant or agent of the first defendant. What he held was that the first defendant had failed to rebut the presumption that that was the situation.

The Magistrate had not properly considered who carried the burden of establishing the issue or the nature of the presumption.

The ownership of a car is only prima facie evidence that it is, if not being driven by the owner being driven by his servant or agent. In this case the alleged driver was known and was made a party to the action.

The plaintiff had merely established that the first defendant owned the car and it was being driven by the second defendant but there was other evidence rebutting the prima facie presumption which was not challenged in cross examination or by any rebuttive evidence called by the plaintiff. The failure by counsel to cross examine the first defendant on his story that the second defendant was not known to him and was not his servant or agent must be deemed to imply acceptance of that evidence.

There was evidence that the second defendant was not the agent or servant of the first defendant to rebut the presumption (supra). On a proper consideration of the evidence the Magistrate should have held that the plaintiff had failed to establish that the second defendant was at the material times the agent or servant of the first defendant.

Appeal allowed.

Judgment against the first defendant set aside.

Claim against the first defendant dismissed.

Cases referred to:

Samuel Subhas Chandra v Dhurup Singh & another FCA 18 of 1982.
Barnard v Sully (1931) 47 TLR 557.
Ganesh & Ram Asre v Mahmood Ali & Ors 24 FLR 147.
Rambarran v Gurrucharran (1970) 1 All ER 749.
Hemns v Wheeler (1948) 2 KB 61.
Browne v Dunn (1894) 6 Co Rep 67.

KERMODE, Mr Justice

Judgment

The appellant who was the defendant in the Court below appeals against the judgment of the first class Magistrate's Court Suva delivered on the 25th May, 1984.

There are 6 grounds of appeal as under:

"1. THAT the Learned Magistrate erred in law and in fact in awarding the sum of $250.50 (TWO HUNDRED FIFTY DOLLARS AND FIFTY CENTS) for labour and parts to the Plaintiff when in fact the Plaintiff did not call the Repairer of his said Motor Vehicle No. AC611 to give evidence and prove that in fact he had carried out the alleged repairs on the Plaintiffs said Motor Vehicle which had cost the Plaintiff the said sum of $250.50 (TWO HUNDRED FIFTY DOLLARS AND FIFTY CENTS),

2 THAT the Learned Magistrate erred in law and in fact in awarding to the Plaintiff the sum of $250.50 for labour and parts when in fact according to paragraph 4 of the Plaintiffs pleadings his case was based on an alleged written contract between the 1st Defendant and the Plaintiff and no such alleged contract was produced or proved before the Court at the trial and accordingly the Court had erred in entering judgment in the sum of $250.50 for labour and parts.

3 THAT the Learned Magistrate erred in rejecting and not giving due consideration to the evidence of the 1st Defendant who said that he had hired his taxi to one taxi driver Sunil Kumar at the monthly payment of $60.00 (SIXTY DOLLARS) with instructions not to give his said taxi to anyone else to drive and the said evidence rebuts the presumption that the 2nd Defendant whom the 1st Defendant had not known, drove the said taxi as a servant or agent of the 1st Defendant.

4 THAT the Learned Magistrate had erred in allowing $10.00 for taxi fares when no claim had been made by the Plaintiff in his pleadings for taxi fare.

5 THAT the findings and the decision of the Learned Magistrate cannot reasonably be supported having regard to the Pleadings of the Plaintiff and evidence adduced in the case.

6 THAT the Learned Magistrate erred by not giving any weight or due consideration to the evidence of the Appellant."

The Statement of Claim was very brief. It was alleged that the plaintiff was at all material times the owner of vehicle AC 611, the second defendant was owner of vehicle AC 912 and that the second defendant was the servant and/or agent of the first defendant.

It was further alleged that the two vehicles were involved in an accident on the 29th July, 1983, near the junction to Velau Drive and that the accident was solely due to the negligence of the second defendant. Particulars of negligence were given.

Instead of pleading damage to his vehicle and claiming special and/or general damages, the claim of the plaintiff was for payment of an agreed sum of $300. Paragraph 4 of the Statement of Claim states:

"THAT the first and second defendant after the collision agreed in writing to pay the sum of $300.00 for the damages but to date has not paid."

The plaintiff then claimed judgment for $300.00 and costs. There was no claim for damages.

The first defendant filed a Defence admitting he was at all material times the owner of vehicle AC912 but denied the second defendant was his servant or agent. He denied all the allegations regarding the accident except that he admitted he later learnt that his vehicle had been involved in an accident near junction to Velau Drive. He denied the allegations in paragraph 4 of the Statement of Claim.

The learned Magistrate on the first call ordered that the two defendants file Defences within 14 days. The Record shows that Mr Singh appeared for both defendants.

No Defence was filed by the second defendant but he appeared in person on the adjourned date and admitted liability for $200 and costs. Mr Chandra did not accept this.