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State v Narayan [2013] FJMC 167; Traffic Case 372.2012 (10 April 2013)

IN THE MAGISTRATE’S COURT OF NASINU

Traffic Case No. 372/12

STATE

-v-

KUSHAL DEO NARAYAN

PC J.F. Raymond for the State
Accused Present and appeared in person

Judgment

[1] The accused is charged with the offence of Careless Driving. The charge read as follows;

CHARGE
Statement of Offence (a)

[2] CARELESS DRIVING: Contrary to Section 99 (1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence (b)

[3] KUSHAL DEO NARAYAN on the 8th day of November, 2011 at Nasinu in the Central Division drove a motor vehicle registration number DP 789 on Nakasi Road, Nakasi without due care and attention.

Summary of evidence

[4] At the trial, prosecution called following witnesses to prove the charge. Firstly they called Phul Singh. The witness said that he resides in 48 Nakasi Road. He had been therefore the last 15 years. He said he can recall on the 8th day of 11 of 2011, he was sitting on the porch. He said the accused person was the driver of the garbage truck, the lid was still open the garbage truck. He said when the accused drove garbage truck the lid hit his electric wire which was connected from the post to his house was broken. He was on the porch he saw at the distance about 13 meters. The witness further said whet it broke the power line he shouted at the driver. But he didn’t stop. The witness said that 4 to 5 blocks away the same thing happened again. He damaged someone else’s. The witness told how the lid operates and he said after dumping the accused did not close the lid of the rubbish, it damaged the electric wire coming to his house and it was broken from the lamp post. The witness was running after the rubbish truck but the driver did not stop. After damaging the second house’s power line the accused stopped the truck. The witness informed this incident to the landlord and lodged a complaint later. The witness identified the accused in open court.

[5] In the cross examination, the witness said he was in the area almost 15 years and the electricity connected from that lamp post to this house prior to his arrival to the house.

[6] Thereafter, PW2 Jitendra Kumar was called. He said on that day he was not at home. Then his tenant namely Phul Singh called him and he informed that the driver of the rubbish truck has broken the power line. Then he came home and asked his tenant again what has happened, PW1 informed him that the driver of the rubbish truck has broken their power lines and he did the same thing 4 to 5 block ahead of us an another block. The power line cost $224.

[7] The prosecution called the Police Constable No. 2090 Abdul Kaiyum as next witness. He was the investigating officer. On 8th day of November 2011, h was residing at Koronivia. On that day, the truck which carries normally picks up rubbish from Nakasi area; damage the main FEA wire of his house. He said the damage is $163.00 for live wire and the electrician cost is $213, sorry $233. The witness said that the accused was keep on driving and the lid was open and could have killed somebody, lucky that it was a midday and there was no school children, no people walking on the road.

[8] The prosecution called next witness PC 3340 Vinay of Nakasi Police Station. He said he is serving Fiji Police Force for last 8 years and he can remember on the 8th day of November 2011. He interviewed a driver by the name of Kushal Deo Narayan for the offence of careless driving. This interview notes were shown to him and he identified. The witness was referred question questions No. 12. It says;

Question No: 12 “Did yesterday 8/11/11 at 8.05pm at anytime your truck broke the FEA power line, answer yes”.

[9] The witness said there was no force or threat done to obtain this interview. This is an admission of guilt or incident by the accused. The Interview tendered as Exhibit No. 1. The witness also identified the accused.

[10] In cross examination the witness said the interview was taken following day of the accident.

[11] Thereafter prosecution closed their case. Since there is a case to answer, Defence was called and the accused rights were explained. The accused opted to give sworn evidence and call other witness on his behalf.

[12] DW1 Kushal Deo Narayan , the accused gave sworn evidence. He said on that day from his yard he straight away went to Tembarra Plaza in Nakasi to pick up one of his workmates. He was not collecting any rubbish. There was another lorry collecting rubbish he only went to drop his lorry boy. After he was returning and suddenly this incident happened where the power lines were broken, because of the lid of the truck. Then he called his boss. And he was informed that he should report back to work immediately and boss will arrange with FEA on what to do with those power lines.

[13] In Cross examination the accused said that the power lines might have broken by the lid, he is not sure. He said PW1, Mr. Phul Singh informed him the damage to power lines. The lid is not mechanically open or automatically opens and the lorry boy has to go outside and there is a lever at the back to open it. The last time before the incident, the lid was before picking the lorry boy from Tembarra Plaza lorry boy opened the lid over there and he closed it again. The accused said that lorry boy knows the duty, he knows what to do. The accused admitted that he was on duty and driving the truck. The accused said that from Tembarra Plaza to where the damaged was occurred at Nakasi is nearly 1 km. He further said, if they were to travel with the lid open it would snap more wires. In Nakasi it had only 2 wires snapped because it must have been a low lane area. He said that was outside. The accused tendered truck picture as Defence EX-1. The prosecution suggested that the truck is an automatic new type of vehicles that can be operated from inside of the driver’s seat. But the accused said that truck is not automatic all the levers are outside.

[14] The defence called lorry boy next. He is Vijendra Prasad, a lorry boy at Environclean. He said on that day, He and the driver of the said vehicle came to Tembarra for bin pick up. He is in charge of opening the lid of the bin. So after the rubbish was collected from Tembarra Plaza the driver had to drop him at Nakasi. They came out from Tembarra Plaza and went towards MH Nakasi. He was sitting with the driver of the truck and suddenly he saw the power lines they were broken.

[15] In the cross examination, the witness said No one tells him to open the lid he decide whether to open or not. The driver of the vehicle is his immediate boss so he listens to him.

[16] The next witness is Satish Kumar, Managing Director of the Company Clubs Pacific Limited. He said that on the particular date 8th of November one of his drivers Mr. Kaushal Narayan was on duty picking up the waste from Nausori Town Council as per the contextual requirement. And then around midday approximately he received a call that an incident had happened and the wires the FEA wires in particular got tangled in the lid of the compactor truck which was a 10 wheeler garbage truck. As a result the wire was broken and there was a bid of commotion and the rate payers concern wanted him to pay for the compensation or get the electrical contractor to fix it. So upon receiving the call he went to the sight the scene within minutes. And he had a visit to the 2 household which were affected and he also took photograph of the actual scene where the incident had happened. According to his observation If the driver has picked up at Tembarra Plaza and the lid was open then all the wires along the road from Tembarra Plaza on Nakasi Road would have been damaged. The truck is not an extra ordinary locally modified one and it is genuine factory fitted 10 wheeler compacted truck. He further said that there are 3 lids on top. 2 folds from the side and 1 from behind that comes horizontally 90° up. The lid would be on top right on top of the truck not the boom in front just the from the middle portion right on top, that’s where the lid is. So 2 of the side lids will close horizontally, perfectly horizontally and while the rear lid will recline only to around 20 or 30° at the back of not the front. He said he has written to Nausori Town Council advising them of similar problems around other places and for their officers to be more vigilant that when the ranger is in the field they take note of low lane cables and inform respective authorities. Further he said he has seen number of places where the cable which is if it is being attached to a property over a period of few years through the natural weather conditions the wire will come loose. But FEA’s height clearance is 18 feet, as he was informed by FEA. He said the truck height if the lid is not open it is 15 feet. With the lid open it won’t even reach 18 feet.

[17] In cross examination he knew that the driver went to Nakasi for picking and dropping of staff as it is normal and they are expected to be picked and drop staff. He said that the lid to be opened either the driver or a lorry boy. He said the operations those lids open from the outside. There’s a lever behind the cap of the truck. There is set of lever, like a high truck they have set of lever that is used to operate, open up the lid and compact.

[18] The defence closed his case. The facts of the case is rather peculiar than others. I now consider the judgment.

The Law on Careless Driving&#/b>

[20]The test for cas drividriving is stat the case case of High Couh Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:

"In order terminther the offence ence of carelesving is comm comm committed, the test, as LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER 447 at p.449) is: "was D exercising that degree of care and attention that a reasonable and prudent driver would exe in the circumstances?"