Kuman v Tokia [2022] PGNC 447; N9996 (21 October 2022)

N9996

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 398 OF 2020

BETWEEN:

MICHAEL KUMAN

- Plaintiff-

AND:

ROY TOKIA

-First Defendant-

AND:

THE GRILL RESTAURANT LIMITED (1-12184)

-Second Defendant-

Waigani: Tamade AJ

2022: 20^th June, 7^th & 21^st October

DAMAGES – trial on assessment of damages – Insurance deemed to have been paid over loss of value of vehicle- claim on this unjust enrichment- loss of business for use of vehicle calculated to be for a year as a reasonable period pending payment of insurance

Cases Cited

The following cases are cited in the judgment:

Mel v Pakalia [2005] PGSC 36; SC790 (1 July 2005)

Koa v Kula Oil Palm Ltd (trading as Higaturu Oil Palms) [2021] PGNC 551; N9377

Sorowa v Taison [2021] PGNC 475; N9229

Counsel:

Mr Jerry Siki, for the Plaintiff

No appearance for the Defendants

21^st October 2022

1. TAMADE AJ: This is a decision on a trial on assessment of damages heard on 20 June 2022.

2. On 22 February 2022, default judgment was granted against the Defendants for failing to file a Defence on the matter.

3. The Plaintiff claims that on 24 June 2018, his motor vehicle which is a 25-seater PMV Bus collided with a vehicle owned by the Second Defendant described as a Toyota Land Cruiser 10-seater with the Registration Plate Number BDT 741 which was driven by the First Defendant. The First Defendant’s conduct was found to be involved in dangerous and reckless driving.

4. On 1 July 2020, the District Court convicted the First Defendant for driving the said motor vehicle in a manner that was reckless or dangerous whereby causing injury to another. The First Defendant was sentenced to 2 years in hard labour which was suspended, and the First Defendant entered into good behaviour bond for a period of 12 months with the First Defendant paying a surety of K2000 to the victim for the accident.

5. The Plaintiff, therefore, states in evidence that he is the registered owner of the PMV Bus described as a Toyota Coaster Bus, Registration No P572, 25-seater, and white in colour. The Plaintiff’s evidence shows that he bought the coaster bus from Ela Motors from a loan from Credit Corporation Finance Limited on 17 November 2016 and the loan was fully repaid after the accident on 25 September 2019.

6. The Plaintiff states in evidence that the vehicle driven by the First Defendant collided with his coaster bus on the right side causing his coaster bus to spin into a 180-degree spin and landing on its roof causing injury to his driver and one other person in the bus as can be seen in the Sentence entered in the District Court against the First Defendant. At the time the accident happened, the PMV bus was not carrying any passengers.

7. The Plaintiff states in evidence that his PMV Bus was written off as a result of the accident. The Plaintiff also states in evidence that the First Defendant is a police Officer but is employed by the Second Defendant on a casual basis as a security guard.

8. The Plaintiff, therefore, claims for the permanent loss of the PMV bus, for loss of income, for costs incurred by the Plaintiff in the Criminal proceedings which resulted in the First Defendant’s conviction and sentence, and for interest, costs, and other related claims.

9. As liability has been found in a default judgment entered against the Defendants, how much is the Plaintiff entitled to for the loss of his PMV bus?

Assessment of damages

10. In assessing damages, the following principles as outlined by the Supreme Court in the case of Mel v Pakalia^[1] set out the guidelines for me to follow;

• The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

11. The First of the Plaintiff’s claim is for the loss of the PMV Bus in the full value of a new Toyota coaster bus less 40 percent depreciation value. The Plaintiff’s claims a total sum of K99 000 based on the purchase price of K165 000. The Plaintiff states in evidence that the coaster bus is registered with Niugini Islands Insurance Brokers & Risk Consultants. There is no evidence whether the Plaintiff’s insurer have paid out the loss of the bus due to the accident. There is a letter dated 29 March 2022 from Niugini Islands Insurance Brokers & Risk Consultants to the Second Defendant demanding claims for loss of business and loss of the value of the bus however it leaves the Court baffled that the insurers or the insurance brokers will seek these claims when it should be responding to the Plaintiff as to it’s insurance cover. If the Plaintiff has received the insurance payment for the loss of the value of the PMV bus, then claiming the full value again in Court is unjust enrichment in my mind.

12. I find in this matter that the subject bus having been purchased from a loan from Credit Corporation (PNG) Limited on 17 November 2016 was insured by the Plaintiff as deposed to in Michael Kuman’s affidavit Exhibit P2. The vehicle has been registered at MVIL and has a PMV license. The said accident which resulted in the Plaintiff’s bus being written off happened on 24 June 2018.

13. I also find that that as per Annexure B of the Affidavit of Michael Kuman as Exhibit P2, the Chattel Mortgage or loan from Credit Corporation has a payment of K16 025.63 as payment for insurance. This proves that the subject bus was insured as is a requirement for vehicles purchased through a loan from a financier and therefore the Court reasonably concludes from the Plaintiff’s evidence that as the subject bus was insured, the Plaintiff did receive payment from its insurer for the insured value of the bus. The Plaintiff’s claim for the loss of value of the bus is therefore unjust enrichment and is denied.

Claim for Loss of Business

14. I am of the view that any claim for loss of business would be from the date of accident to the date the insurers have paid out the insurance for the value of the bus. The Plaintiff has only disclosed to the Court that the bus is insured but provides no evidence as to whether the Plaintiff received payment from its insurers. The letter from the Plaintiff’s insurance brokers or agents dated 29 March 2022 seeking recovery of the full value of the bus and for loss of business is misconceived as insurance brokers are not debt recovery agents, they secure insurance deals for their clients.

15. The Plaintiff essentially claims for loss of income from the PMV bus business at a rate of K400 per day from the date of the accident on 24 June 2018 to date of trial which is in the sum of K503 636.00. The Plaintiff’s pleadings however in the Statement of Claim, the Plaintiff claims a sum of K265 084. A Plaintiff is bound by his pleadings. With no guide as to when the Plaintiff’s insurance was paid, I will order the loss of business of the bus at K400 per day from the date of the accident for a reasonable period.

16. The Court in the case of Koa v Kula Oil Palm Ltd (trading as Higaturu Oil Palms)^[2]:

“The owner of a small business operated by an ordinary Papua New Guinean is required to keep records of their business including appropriate tax returns and produce them in evidence to support a claim for loss of income or profit from the business; see Mappa v PNG Electricity Commission (1995) PNGLR 170.

The unfortunate situation in this case is that any records the plaintiff possessed were destroyed by the floods caused by Cyclone Guba in 2007, while the records maintained by Higaturu were destroyed by fire in 2002.

However, I bear in mind that where damages cannot be assessed with certainty, the wrongdoer is not relieved of the necessity of paying damages and the Court must do the best it can; Paraia v The State (1995) N1343. “

17. In this case, there is no evidence of when the insurers have paid out the claim. The Court will therefore do it’s best to ascertain a reasonable time frame for a claim of loss of business.

18. I accept the evidence by the Plaintiff that he was operating a PMV bus service and earns about K400 daily with his takings from his PMV bus deposited into his bank accounts and there is some evidence of his business having a Tax Identification Number for Tax purposes though actually paying taxes is a different issue. The First Defendant was found guilty by the District Court on 1 July 2020. I will grant the loss of business of K400 per day for a period of one year from the date of the accident which was on 24 June 2018 as is the reasonable time for the Plaintiff to have lodged a claim for insurance using a police report and other relevant evidence and being paid the loss from his insurers. This therefore amounts to K400 x 365 days equals K146 000.00

Claim for Special Damages

19. The Plaintiff states in evidence that he paid a total sum of K1 500 for his PMV bus to be towed away at the time of the accident. There is no receipt for such a payment produced in evidence though a photograph shows the PMV bus was being hauled to tow. I will grant K500 for costs of towing the bus.

20. The Plaintiff also claims a total sum of K30 000 for his costs in pursuing the criminal case as against the First Defendant in the Committal Court. These are costs he says are for lunch, flex cards arranging for the Police to search for the vehicle that caused the accident to his bus etc. This claim has no foundation in law and is denied by this Court as the Criminal Process and the work of the police and Magistrates are independent of the Plaintiff and are the due discharge of the duties of these employees of the State.

Claim for distress and frustration

21. The Plaintiff relies on the case of Sorowa v Taison^[3] to submit that he had suffered stress and frustration at the loss of his new vehicle in which at the time of the accident, he was still repaying his loan to Credit Corporation Limited, and he had to source funds from else where to complete his loan repayment. He therefore claims K6 000 for stress, frustration and anxiety. Having found that the subject vehicle was purchased through a loan from Credit Corporation with a payment for insurance over the bus and the reasonable conclusion that the Plaintiff did receive compensation for the bus from its insurer, I will only award K2 000 for stress and frustration.

Interest and Costs

22. I therefore find that interest at 8 percent shall be awarded on the judgment sum from the date of this judgment until paid pursuant to section 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 by the Defendants and costs is awarded to the Plaintiff to be taxed if not agreed.

Total Judgment Sum

23. The total judgment sum in favor of the Plaintiff is as follows:

1. Loss of value of the PMV bus= nil
2. Loss of business= K146 000.00

100. Special Damage= K500

4. Distress and Frustration- K2 000
   

Total= K148 500

24. I therefore make the following orders;

1. Judgment is awarded for the Plaintiff in the Sum of K148 500. 00
2. Interest is awarded at 8 percent from the date of judgment until paid.
3. The Defendants shall pay the Plaintiff’s costs to be taxed if not agreed.
   

Orders accordingly.

________________________________________________________________

Jerry Siki Lawyers: Lawyers for the Plaintiff

No appearance for the Defendants.

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^[1] [2005] PGSC 36; SC790 (1 July 2005)

^[2] [2021] PGNC 551; N9377 (4 August 2021)

^[3] [2021] PGNC 475; N9229 (10 September 2021)