IN THE MAGISTRATES COURT AT NASINU

Civil Case No.02/2013

PERMAL GOUNDER
[Plaintiff]

-v-

LAND TRANSPORT AUTHORITY
[1st Defendant]

And

BERA- (Law Enforcement Officer of 1st Defendant)
[2nd Defendant]

Mr. Sunil Kumar for the Plaintiff
The Defendant is absent and unrepresented

Judgment

1] The Plaintiff filed this action against the defendants claiming damages. The plaintiff in his statement of claim states; 

1.	That the Plaintiff was at all material time the registered proprietor of Waimaro Carriers operates it's business from it's base at Fletcher Road in Nabua Suva.

2.	That the Defendant is the commercial business entity of Government of Fiji, a body corporate registered in Fiji engaged in a Business of regulating issuing bases, registration vehicle registration, approving and granting of licence and is a record keeper of all vehicles on the roads in Fiji at any given time.

3.	That between the 8th April 2011 and 15th April 2011 as usual the Plaintiffs carrier drivers parked their respective carriers at the approved base by Suva City Council and Defendant entity, the employee by the name of Bera came and caused harassment to the Plaintiff's drivers and tows its carries away from the base there depriving him of business, causing embarrassment, humiliation, pain and suffering.

4.	That the towing occurs during busy time just to deprive the Plaintiff of carrier business causing loss.

5.	That during the towing the Plaintiffs carries are extensively damaged.

PARTIULARS OF DAMAGE

a.	Damage to body and suspension.

b.	Such other Particulars that will be delivered at the time of the hearing of this action.

6.	 That the Plaintiffs carriers were kept at the Defendant yard for 8 days and the Plaintiff has lost the income of $480.00 per day amounting $3840.00.

7.	That the cost of repairs amounted to $4130.00.

8.	That the Plaintiff claims aggravated damages arising out of the unlawful act of Defendants employee Bera and when the Plaintiff went to get his carriers released he was been pushed around (meaning from pillar to post) by this employee (Bera) and finally its carrier was released but again the Plaintiff was warned by Bera, the Plaintiff claims a sum of $5000.00.

9.	That the Plaintiff also claims damages for embarrassment, humiliation, pain and suffering in the sum of $3000.00.

10.	That the Plaintiff repeats Paragraph 1 to 9 of above statement of claim against 1st Defendant as employer of the 2nd Defendant and holds it vicariously liable for the action of 2nd Defendant.

2] Therefore the Plaintiff claims the sum of $15,970.00 plus the cost and interest on the Judgment sum of this action jointly and severally.

3] He further claims; 

Sum claimed	$15,970.00	
Court fees	34.50	
Bailiff's fees	20.00	
Solicitor's costs to be assessed by this Court	$16,024.50	

4] The defendants were served and affidavit of service is filed on record. On 19th February the defendant failed to appear and no representative was present. The court fixed formal proof date. Formal proof was done by filing affidavit evidence together with documents on 18th March 2013. 

5] The Plaintiff in his evidence mentioned that he was set at all material time the registered proprietor of Waimaro Carriers operates its business from its base at Fletcher Road in Nabua Suva. The plaintiff further states; 

1.	That the Defendant is the commercial business entity of Government of Fiji, a body corporate registered in Fiji engaged in the Business of regulating issuing bases, registration vehicle registration, approving and granting of license and is a record keeper of all vehicles on the roads in Fiji at any given time.

2.	That the 2nd Defendant is an employee of the 1st Defendant and is viscously liable for the wrong actions of the 2nd Defendant while carrying out his duties.

3.	That on the 14th of March he received a letter from Suva City Council approving the allocation of carrier stand – Waimaro Carriers to his application of 28th February 2011 made for allocation of carrier stand; annexed is the approval marked as Annexure "PG1".

4.	That upon receipt of approval, he registered my business on the 16th day of March 2011, annexed is his business license marked as Annexure "PG2".

5.	That he started operating his carrier business after approval by the Suva City Council from this approved stand.

6.	that between the 8th April 2011 and 15th April 2011 as usually his carrier drivers parked their respective carriers at the approved base by Suva City Council and Defendant entity the employee by the name of Bera came and caused harassment to the Plaintiff's drivers and tows its carriers away from the base there depriving him of business, causing embarrassment, humiliation, pain and suffering the chronology of the event are as per annexure "PG3".

7.	That having not received any response, he wrote to the 1st Defendant pointing out his claim against it; annexed is my claim letter marked as Annexure "PG4".

8.	That the towing occurs during busy time just to deprive him of carrier business causing loss.

9.	That during the towing his carriers were extensively damaged.

10.	That the particulars of damage are:

a.	Damage to body and suspension
b.	Such other particulars are annexed are invoices marked as Annexure "PG4".

11.	That the Plaintiffs carriers were kept at the Defendant yard for 8 days and the Plaintiff has lost the income of $480.00 per day amounting $3840.00.

12.	That the cost of repairs amounted to $4130.00 annexed is the receipts of repairs carried out marked as Annexure "PG5".

13.	That the Plaintiff also claims damages arising out of the unlawful act of Defendants employee Bera and when the Plaintiff went to get his carriers released he was been pushed around (meaning from Pillar to post) by this employee (Bera) and finally its carrier was released but again the Plaintiff was warned by Bera, the Plaintiff claims a sum of $5000.00.

14.	That the Plaintiff also claims damages for embarrassment, humiliation, pain and suffering in the sum of $3000.00.

15.	That the Plaintiff repeats Paragraph 1 to 8 of above statement of claim against 1st Defendant as employer of the second Defendant and holds it vicariously liable for the action of 2nd Defendant. 

6] I consider facts before me. The plaintiff sued first defendant under vicarious liability and he has not proved the actions of 2nd defendant comes within the master and servant relationship. The second defendant is law enforcement officer of LTA and he has authority to book for illegal parking and towing the vehicle. Firstly the plaintiff should prove that he has a right to park at Fletcher Road Base. The Annexure PG1 is a reply letter for requesting carrier stand allocation from Suva City Council by the plaintiff. It proves the plaintiff was given approval for carrier base, but place is uncertain. The letter PG2 is not specifically stated that the approval has been given to the plaintiff by the SCC to park his vehicles at "Fletcher Road Base". It says "Further to the approval that was issued to you earlier, please be informed that the carrier base at Fletcher Rd has been gazetted and you are required to come and apply for the base". No approval has been taken by the plaintiff. Thus, this court cannot accept that the Plaintiff has been given approval by the SCC to park his vehicles at Fletcher Road Base. PG3 indicates that the plaintiff was issued with Business License to provide carrier and transport service under registration of Business Names Act (Cap.249). It does not specifically mention that he is allowed to do his business at Fletcher Road Base. Taxi bases are operated by LTA and he should get approval from LTA. PG 4 is the full explanation of the incident by the Plaintiff. This is a mere deposition of the plaintiff and he has not called or tendered any affidavit of Praveen Chand, Rasesh Dayal, Etika, Emori, Satish and Joe to prove what had happened. In that paragraph 7 the plaintiff said "After that incident Bera left us alone for a few days because he knew that the base has been given to me verbally". Normally, these approval are given in writing for certain period. The Plaintiff in this case failed to prove whatsoever that this base has been given to him by any kind of evidence. The Plaintiff has claimed damages and special damages. But he did not prove repairing cost and he only made statutory declaration which cannot be accepted as truth of the incident. The trucks were towed by approved company and the plaintiff had paid towing fees to the company as instructed by the LTA Satish (Paragraph 11) .if it was damaged, the towing company to be sued or to be made as necessary party to this action. The plaintiff did not lodge any kind of police complain that his trucks were damaged nor taken any photos to prove the damages. There is no acceptable evidence in relation to that the trucks were towed by the LTA or Bera's instructions and it was retained two days and it was damaged by this incident. PG 5 is the letter of demand to LTA to pay $10,000 which was sent by the plaintiff. In that letter the plaintiff has not given the breakdown and now he is claiming $15,970.00. The Plaintiff failed to prove his claim on balance of probabilities. 

7] Mr. Kumar has mentioned two authorities on this regard. First one is Fiji Court of Appeal case, Civil Appeal No. ABU0055 of 1997S, The Attorney General of Fiji v Samisoni Naisua dated 29th May 1998. The second one is Dibble Bros Ltd v. Tamanui [1971] NZLR 1144. Both cases were ex parte judgments on negligence. After serving the writ the defendants failed to deny the claim. Case was formally proofed. In latter case Perry J held as follows;

a)	 "In respect of cases where the defendant does not appear, the court may dispose of the case as nearly as may be possible in accordance with the rules of the Code of Civil Procedure…

b)	In such case a case only required proof for the purposes of assessing damages

c)	The failure to deny the allegation of negligence by the defendant was evidence of negligence and was obtainable from the documents in the Court file

d)	The amount of damages had to be assessed by the Court on proof advance by the plaintiff" 

8] These rules are applied for claims in relation to unliquidated sums. Circumstances of this case are not similar to above two matters. The amount of damages has to be assessed by the court and supportive evidence must come from the plaintiff. In this case the plaintiff has not proved that his trucks were damaged by towing. Further he has not proved that these damages were caused by defendant's action. To get the claim, though it went uncontested, the plaintiff must prove that he sustained damages. But the plaintiff failed to prove the damages and liability of the defendants. 

9] I therefore make following orders;

a)	The Plaintiff claim is dismissed
b)	No costs

On 04th June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu