Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

Sharma v Chand [2011] FJMC 18; SCT71.2010 (3 February 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT AT SUVA
CENTRAL DIVISION - SMALL CLAIMS TRIBUNAL

SCT CASE NO: 71 of 2010
APPEAL ACTION NO: 1593 of 2010

BETWEEN:

MIRDULA & RAJENDRA SHARMA
Appellants

AND:

HEM CHAND
Respondent

Appellants: In Person
Respondent: Ms. Goundar L.

JUDGMENT

1. This is an appeal against the order made by the referee of Small Claims Tribunal (SCT) on 03rd September 2010. The SCT has ordered the Appellant to pay $ 437.56 to the Respondent in $50 monthly installments commencing from September 2010.
   
2. By filing his grounds of appeal, appellant informed the Court that the hearing was unfair and referee did not allow him to call his witness.
   
3. Appeal Provisions regarding the Small Claim Tribunal matters are laid down under sec. 33 of the Small Claims Tribunal Decree, 1991 and read as follows:

33.- (1) Any party to proceedings before a Tribunal may appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:
(a) the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of proceedings; or
(b) the Tribunal exceeded its jurisdiction

4. Appellant's grounds of appeal thereby falls under Sec. 33 (1) (a) of the Small Claim Tribunals Decree 1991.
   
5. According to the appeal brief, the referee had allowed both parties to file written submissions.
   
6. Upon considering the submissions referee had reduced $ 311.97 from the total claim of $984. 17 and had arrived at a figure of $437.56. Page 7 of the appeal brief contains the details regarding the claim.
   
7. There is no evidence to show that the referee had made any inspection with regards to the damaged carpet. Referee had allowed 50% damage to the carpet stating that due to wear and tear he is allowing only 50% of the claimed amount. This means that the referee had agreed that the damages present are only due to wear and tear and the life of the carpet.
   
8. As the damages are due to wear and tear, the referee should not have awarded a single cent for replacement of the carpet. Any household equipment is subjected to wear and tear due to fair usage. Further there is no evidence to show any negligent on the part of the appellant during the usage of the carpet and no evidence to show that appellant maliciously damaged the carpet. Respondent is therefore not allowed for the claim he made for the carpet as well as for laying the carpet.
   
9. According to pg. 40 of the appeal brief, one Sanjesh has written a letter explaining that he received $15 for house cleaning and the letter is dated 22nd August 2010. Evidence suggests that the house was vacated on 13th June 2010. If the house had been kept closed till end of August, it is very clear that house needs a cleaning. There is no evidence to show that the house was in unusable stage by the date of vacation. Therefore claim of $15 appears to be frivolous.
   
10. Further claimant had made a claim of $70 for replacing two damaged louver blades. SCT brief contains no evidence to show that the referee had inspected the damaged louver blades. There is no evidence to show that the louver blades had in fact being damaged by a deed of the appellant. Therefore, claim regarding the damaged bladed must fail.
    
11. In view of the above-findings I order that following amounts must be deducted from the award.
    
    1. $70 – Damaged Louver blades
    2. $95 – Carpet
    3. $20- laying carpet
    4. $15- house cleaning
       
12. After the above deduction ($200), I order that appellant pay $ 237.56 (Less $200 from $437.56) to the respondent in $50 monthly installments commencing from the last week of February 2011. In default of each payment one week imprisonment.
    
13. 28 days to appeal.
    

On this Thursday the 03rd day of February 2011

Kaweendra Nanayakkara
Resident Magistrate