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Naryan v GP Reddy & Co Ltd [2005] FJHC 328; HBC0044.2005L (26 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0044 OF 2005L

BETWEEN:

HARI NARAYAN
f/n Shiu Narayan
Plaintiff

AND:

G.P. REDDY & CO. LIMITED
Defendant

Mr. J. Boseiwaqa for Mr. S. Maharaj for the plaintiff
Ms. A. Watkins for the defendant

Date of Hearing: 26 October 2005
Date of Ruling: 26 October 2005

EXTEMPORE RULING

This matter comes before the Court by way of a Summons to strike out the action and claim filed on behalf of the defendant. The defendant seeks by way of alternate relief that there be a trial as to a preliminary point, that is the validity of a purported agreement pursuant to section 16 of the Workmen’s Compensation Act.

The cause of action arises as a result of injuries sustained by the plaintiff in the course of his employment with the defendant. The plaintiff attended upon the Department of Labour and an agreement pursuant to section 16 of the Workmen’s Compensation Act was executed by the employer and purportedly executed by the workman, which provided for the payment of the sum of $1,778.40 to the workman. The insurer of the defendant, acting in accordance with the agreement, drew a cheque in favour of the Department of Labour for the amount determined and that cheque was not presented and the plaintiff on seeking legal advice commenced the proceedings that are now before the Court seeking compensation by way of a common law claim for the injuries sustained by him.

The defendant’s application is supported by an affidavit of a Law Clerk and a further affidavit by G.P. Reddy, the managing director of the defendant company. The application is opposed by the plaintiff who relies on his affidavit filed on the 5^th September 2005.

Whilst much of the material in the plaintiff’s affidavit is completely irrelevant to the application, the most pertinent point or perhaps the only pertinent point is that the plaintiff says that he did not read the whole form because he cannot read and write English. He is only educated up to class 7 at Viseisei Primary School and he did not fully understand what the form contained. The form of course contains a certificate to be signed in the case of a workman who is unable to read and understand writing, regrettably that certificate has not been completed by the Labour Office.

Similarly, the agreement appears not to have been approved by the Permanent Secretary or person authorized by him. In these circumstances, it is impossible for the Court to make a determination between the evidence of competing witnesses when that evidence is given solely by way of affidavit. It is therefore a matter that must be determined at trial and accordingly, the defendant’s Summons is dismissed and the matter is to proceed to trial.

JOHN CONNORS
JUDGE

At Lautoka
26 October 2005