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Karan v Nand [2013] FJMC 2; SCT Appeal 01.2012 (7 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF NAVUA

SCT Appeal No: - 01/2012

ARJUN KARAN
( Appellant)

V

JITENDRA NAND
(Respondent)

For Appellants : In person
Respondent : In person

JUDGMENT

[1] The appellant filed this appeal against the order made by the learned referee on 25/05/2012.

[2] The appellant in his notice of appeal has stated that the learned referee was biased and unfair. He also stated that the referee has not take into consideration some items when he delivered the award.

[3] The appellant later claimed from this court additional cost for expenses for summons services, witness expenses. This will be dealt later in the judgment.

[4] The respondent was present and I directed both parties to file written submissions about this appeal. Only the appellant filed his submission on 01/12/2012. The respondent failed to comply with the direction.

[5] The appellant in his submission has stated that the respondent was supposed to get married to his daughter and, therefore he gave some money to the respondent. Also the appellant brought jewelries, ring, mobile phones and some clothes on behalf of his daughter for the wedding.

[6] The main points of the appeal is that the referee has not considered the loan of $190 as well as the jewelries, gold ring and cloths bought by the appellant when giving the award in favor of the appellant.

[7] Section 33 (1) of the Small Claim Tribunal Decree provide the right to appeal against the order of the small claims tribunal to the Magistrates' court under two limited grounds.

1. The Proceedings were conducted by the referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or,
   
2. The Tribunal exceeded its jurisdiction.
   

[8] I have carefully considered the order of the learned referee made on 25/02/2012. I have also carefully gone through the proceedings in the small claim tribunal as well as the report submitted by the referee to this court.

[9] The appellant in the small claim claimed $4190 against the respondent for purchase of Jewelries, ring, mobile phone and clothes bought for his daughter. He also claimed amount for the 2 mobile phones as well as $190 he gave as a loan to the respondent.

[10] The referee in his award gave following reasons for his award

1. The claimant cannot claim for the items bought as the items are with the Claimant
   
2. There is no written agreement or proof that Respondent has loaned $190.00 from the claimant.
   
3. None of the witnesses saw or mentioned about the money or the phone given to the respondent by the Claimant
   
4. At no time during the hearing the claimant mentioned about the $1500 been taken by the respondent.
   
5. The respondent admitted taking only one phone valued at $199.
   

[11] Therefore learned referee directed the respondent to pay the value of the phone taken by him in the award.

[12] This court cannot find anything wrong in the decision of the learned referee's on 25/05/2012.

[13] There were no evidences led before the tribunal by the Claimant or by his witnesses to show that the jewelries, ring or cloths were given to the Respondent or in his possession.

[14] With regard to the alleged loan of $190 given to the respondent there was no written agreement nor any witnesses mentioned about this too.

[15] Even though the claimant said 2 mobiles phones were given, the respondent admitted receiving only one. Again the claimant failed to adduce evidence to prove about his claim. Therefore again I cannot find any fault in awarding the damages with regard to only one mobile phone.

[16] The Claimant in his particulars of claim or during the hearing did not mention about a loan of $1500 given to the respondent.

[17]Therefore I find that the learned referee has considered all the evidences and there is no unfairness or bias by the referee.

[18] For these reasons mentioned above, I dismiss this appeal .

07/01/2013

H.S.P. Somaratne
Resident Magistrate, Navua