| Fiji Islands - Narayan v Queensland Insurance (Fiji) Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CIVIL APPEAL NO. 20 OF 1997
(Magistrate's Court, Suva C.A. No. 549/96)
BETWEEN:
VIJAY NARAYAN
t/a Riverside Motors
Appellant/Original
Defendant
AND:
QUEENSLAND INSURANCE (FIJI) LIMITED
Respondent/Original Plaintiff
Mr. S. Chandra for the Appellant
Mr. Inoke Sosefo for the Respondent
JUDGMENT
The Defendant VIJAY NARAYAN (the "appellant") has appealed against the decision of Resident Magistrate Ms. Gwen Phillips
given at the Magistrate's Court, Suva on 6 August 1997 in which the Court ordered the release of Motor Vehicle Registration No. CW668
to the respondent (the Original Plaintiff) without any remuneration to the appellant with costs to be taxed if not agreed.
The grounds of appeal are as follows:-
(1) the Court erred in law and in fact in interpretation of the possessory rights of a bailee.
(2) The Court erred in law and in fact in interpreting the legal relationship and right between and amongst the bailor, bailee and
the third party.
(3) The Court erred in law and in fact in finding that the bailee had intention to deprive the Respondent of its "rights"
over the Motor Vehicle CW 668.
(4) The Court erred in law and in fact by considering the evidence of ownership of the vehicle concerned in retrospectivity.
After the hearing Mr. Inoke made oral submissions; Mr. Chandra had prepared written submissions and also argued orally. I have given
due consideration to counsels' arguments.
Background facts
The background facts of this case has been succinctly stated by Mr. Chandra in his written submission which is as follows:
In the Magistrate Court the Plaintiff (Respondent in this case) filed claim against the Defendant (Appellant in this case) to release
a damaged BMW Motor Vehicle Registration No. CW 668 (hereinafter called "the car") which had been in possession of the
Appellant since 6th October, 1995. The Appellant filed a Counter-claim that he had been in possession of the car on instructions
as a bailee and is entitled to the towage costs and cost of storage and safe keeping since 6th October, 1995.
In the Amended Statement of Claim by the Respondent it expressly admitted that:-
(a) the Appellant a "tow truck" operator towed the car from the scene of the accident to the Navua Police Station (see paragraphs
4 and 5 of the claim).
(b) the vehicle was towed from the Navua Police Station to the Appellant's garage, (see paragraph 7 of the claim).
(c) the property in the car was purportedly acquired by the Respondent on or after the 12th day of January, 1996 (see paragraph 9
of the claim).
The Appellant claimed in his counter-claim that:-
(a) That upon instructions on 6th day of October, 1995 he came into possession and towed the car from Navua Police Station to his
garage to keep the car in custody and away from the public view.
(b) He incurred costs and expenses for what he did and claimed for towing, storage and safe keeping costs from the Respondent.
The car had been in custody with the Appellant from the 6th day of October, 1995 to 20th day of August, 1997 when it was taken into
custody by the Respondent upon the ruling given in favour of Respondent by the Trial Magistrate on the 6th day of August, 1997. The
car is with Eskay Motors the authorised agent of the Respondent. The Appellant claims, that he as bailee is entitled to be remunerated
for the storage and safe keeping of the car for the period he was in possession.
Appellant's submission
The first two grounds have been argued together by Mr. Chandra.
He argued that the appellant kept the car as a bailee with the consent and permission of the apparent owners/dealers, police etc.
He said that the appellant came into possession without illegal means and in fact by this possession he became the bailee of the
car with all obligations and duties in law as bailee. The appellant acted bona fide as a garage operator for reward and in doing
so he came into possession of the car.
Mr. Chandra referred to a number of cases and to the provisions of INDEMNITY, GUARANTEE and BAILMENT ACT Cap 232 (the "Act") in support on his argument on those grounds.
Mr. Chandra then argued grounds 3 and 4. He said that the appellant never intended to deprive the respondent of its "rights"
in the car. His claim only related to cost and expenses for what he did in respect of towing, storage and safe keeping. Under s47
of the Act he claimed to be entitled for such remuneration as he had followed the instructions of the bailor. This action of his
will also benefit all subsequent interest holders in the car.
The learned counsel then submitted the law involved, stating inter alia, that the bailee's lien under s47 is in respect of the chattel
only and upon payment of appropriate remuneration it is implicit in the section that the bailee would release the chattel. His lien
is only a possessory lien.
On ground 4 he said that the time when the car came into the appellant's possession there were other persons or entities who had some
sort of rights in the car at one stage or another. The car had been in the appellant's possession since 6 October 1995. It came to
appellant's knowledge later that the respondents were to pay his claim but this claim was refused by them.
The learned Counsel submits that the appellant had a possessory right in the car. Therefore, he says, anyone who had any legal, equitable
or other right to claim he had the right under s47 and in common law to demand in the absence of any other contract as a bailee to
retain the chattel until adequately remunerated.
The appellant therefore claims his full remuneration for towage cost of $33.00 and safe keeping cost $1770.00 that is, for the period
6 October 1995 to 30 April 1996 at the rate of $10.00 per day.
Consideration of the issue
The facts in detail are set out in the judgment of the learned Magistrate of 6 August 1997. Her findings of fact are also set out
there. She also applied the law to the facts as she found them.
It is clear from the record that the appellant towed the car to his garage upon instruction of persons who had no right, title or
interest whatsoever in the car.
The issue for the Court's determination was and is whether the relationship of bailor and bailee as between the appellant and respondent
was created in all the circumstances of this case to entitle the appellant to his claim.
Under section 27 of the INDEMNITY AND GUARANTEE AND BAILMENT ACT Cap 282 (the 'Act') 'bailment' is defined as follows:
"A bailment is the delivery by one person to another for some purpose upon a contract that they shall, when the purpose is accomplished
be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is
the bailor. The person to whom they are delivered is called the bailee."
The learned Magistrate found that "there was no privity of contract between the plaintiff and the alleged bailee and /or bailor".
She also found that the Appellant "admits" that he knew that the second defendants (CAR CORPORATION LIMITED) were not the
owners of the vehicle. He knew that the vehicle was owned by Ragg & Associates. The learned Magistrate said that "any claim he has in this regard, as bailee, must be made against the alleged bailor and not the plaintiff. This is not a situation
where a bailee is entitled to payment from a third party. Mr. Narayan has not on a balance of probabilities established his counterclaim".
I agree with the above finding on the evidence before the Court. No issue of bailment arises between the appellant and the respondent
as the latter has nothing to do with the alleged contract between the appellant and Car Corporation Limited as to the storage and
safe-keeping of the car as the respondent was not the owner of the car at the time of the contract; and as the learned magistrate
said to the effect that if there is a claim it is against Car Corporation Limited. At this stage I might refer to s45 of the Act
which states:
"If the bailor has no title to the goods and the bailee in good faith delivers them back to or according to the directions of
the bailor, the bailee is not responsible to the owner in respect of such delivery."
This section clearly shows the extent of liability of a bailee if he in good faith receives goods from a bailor who has no title to
the goods.
The section clearly shows that the appellant is not responsible to the respondent even if he had redelivered the goods to Car Corporation
Limited in return for remuneration from it. However, the appellant did not do this, instead he was willing to give the vehicle to
the respondent when he realised it to be the true owner only in the belief that he will be paid.
Also section 43 of the Act states that:
"The bailor is responsible to the bailee for any loss which the bailee may sustain by reason that the bailor was not entitled
to make the bailment or to receive back the goods or to give directions respecting them."
This section clearly illustrates the liability of Car Corporation Limited as bailors. The appellant had sustained loss by acting in
good faith and receiving delivery of goods from Car Corporation Ltd in the capacity of a bailee.
For the above reasons the Appeal fails and is therefore dismissed with costs which is to be taxed if not agreed.
D. Pathik
Judge
At Suva
17 August 1998
Hba0020j.97s
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