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Reddy v Mohammed [2008] FJHC 350; HBA14.2008 (17 December 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
Civil Appeal No.: HBA 14 of 2008

BETWEEN:

ANIL REDDY
Appellant

AND:

WAZIR MOHAMMED & NIKHAT JAN
Respondents

Mr. G. O’Driscoll for the Appellant
No Appearance for First Respondent
In Person - Second Respondent

Date of Hearing: 4th November 2008
Date of Judgment: 17th December 2008

JUDGMENT

[1] This appeal arises out of proceedings initially dealt with by the Small Claims Tribunal at Suva. To make the appeal understandable, I shall look at proceedings in the Small Claims Tribunal. The appellant was the respondent in the Small Claims Tribunal (SCT).

[2] On 28th July 2005 the respondents in this appeal filed a claim with SCT claiming $2,000.00 from the appellant. The particulars of claim which are quite detailed and in narrative form stated that the appellant who was driver of vehicle registration number DQ 904 on 3rd April 2005 collided with respondent’s vehicle from the rear. As a result of the collision the respondent’s vehicle got pushed forward and collided with a vehicle in front. The respondents attached three quotations for repairs two being for $2,100.00 and one for $2,160.70.

[3] The case was called on 10th August 2005 in the Small Claim Tribunal and fixed for hearing on 22nd August 2005. The appellant was absent on 10th August 2005. On the hearing day the Tribunal ordered the appellant to pay $2,000.00 by instalments.

[4] On 21st November 2005, the appellant applied for a re-hearing of the action. His grounds for re-hearing were that the summons was not served on him, that police were not called at the scene of accident and that damage to other parties’ vehicle was only $40.00.

[5] The re-hearing took place on 29th December 2005. On the date of re-hearing the Tribunal ordered as follows:

"1) The record of proceedings of the Tribunal was read over to Anil Reddy the applicant for re-hearing.

2) This was done because he had failed to attend the hearing on 22nd August2005 despite the fact that he was served and admitted that he received the notice of hearing.

3) It was not necessary to call the Police because he had offered to pay damage repair costs art the scene of the accident.

4) Amount of damage compensation was obtained from three repair garages who all quoted more than $2,000.00 for repairs.

5) The application for re-hearing is declined on the above mentioned grounds and the application is dismissed.

6) Small Claims Tribunal Order dated 22nd August 2005 is to be enforced forthwith."

Appeal to Magistrate’s Court:

[6] The orders of the Tribunal include reasons as well. The appellant was dissatisfied with the Tribunal’s ruling so he appealed to the Magistrate’s Court. In his affidavit in support the appellant stated that the Referee did not allow him time to speak at the hearing or at the application for re-hearing but went ahead and gave his judgment and secondly that the respondents only relied on quotations for repairs and not invoices.

[7] The learned Magistrate dismissed the appeal on the grounds that though the appellant was given an opportunity to be heard, he did not attend the original hearing and that he did not challenge liability but only the amount awarded against him. The learned Magistrate stated that there were three quotations before the Referee. He concluded that the original proceeding was fair.

Grounds of Appeal to this Court:

[8] The appellant filed one ground of appeal against the decision of the Magistrate and that was -

"(i) The Learned Magistrate misdirected himself in failing to consider the Appellant’s contention that he had not been served with the original Notice of Hearing in the Small Claims Tribunal, thus leading to the wrong conclusion in respect of his Judgment dated 3rd October 2007. Proper consideration of this would have led to a different conclusion in respect of the Appellant’s appeal from Small Claims Tribunal to Magistrates’ Court."

[9] Mr. G. O’Driscoll in his submissions stated that on 10th August 2005, the appellant was present at SCT but he did not hear his name being called and for hearing he had no notice.

[10] This is a submission which is difficult to uphold. Firstly, the appellant in his application for re-hearing alleged that he was not served with the summons. If he was not served with the summons then what was the appellant doing at the SCT on 10th August 2005. Secondly, if he did not hear his name being called, then why did he not enquire that day from the clerks about his case? That surely would not have taken much effort.

[11] The respondent told the court that only when the judgment debtor summons was served on the appellant did he make an application in re-hearing.

[12] At the re-hearing, the tribunal read record of proceedings to the appellant. He admitted receiving notice of hearing, so contrary to what he said in his application, he was served. The Tribunal then looked at the need to call police but stated there was no need to call police to the scene of accident as the appellant had offered to pay for repairs. Police attend scenes of accident for purposes of prosecution of a driver at fault. Those proceedings are not conducted for purposes of compensating the victim but to punish the wrongdoer. Court proceedings are for purposes of compensation. Non attendance of police at the scene is hardly a relevant factor for purposes of compensation. The standard of proof in compensation cases is civil standard not one of beyond doubt. The Tribunal also referred to three quotations as being acceptable evidence. It refused re-hearing.

[13] The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

[14] Obviously all litigants have the right to be heard on relevant matters. The right to be heard includes the opportunity to present ones case and to respond to the case of the opponent.

[15] At the re-hearing the appellant had raised three matters which the referee looked at and dismissed each of the reasons. The Referee was of the view that the appellant’s allegations had no substance and that he would have come to his previous conclusions.

[16] Two of the quotations produced by the respondents do set out details of parts required and give details of workshop operations for panel beating and painting. Even though the quotations may not be evidence of actual repairs carried out on the vehicle, they nevertheless provide evidence of the general nature of repairs required and possible costs. Therefore the quotations were admissible to prove extent of damage: Shiri Shankara v. John Thoman - HBA 13 of 1979. Further the quotation given by Eskay Motors (Fiji) Ltd added that revised quotation may be given if latent damages are discovered upon dismantling.

[17] I find no unfairness in the conduct of the proceedings. Both the Tribunal and the learned Magistrate were entitled to dismiss the appellant’s assertions.

[18] The appeal is therefore dismissed with costs. The respondent had come from Lautoka for the hearing of the appeal. I allow the respondents’ $120.00 costs. The Tribunal’s award remains unaltered.

[Jiten Singh]
JUDGE

At Suva
17th December 2008