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Prasad v Ratumaiyale [2014] FJMC 102; Civil Action 09.2014 (13 June 2014)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION

Civil Action No. 09 of 2014

BETWEEN:

UMLESH ARUN PRASAD of Vessari , Lami, Suva
APPELLANT

AND:

SAILASA RATUMAIYALE of Qauia, Lami
RESPONDENT

Mr. Tirath Sharma for the Appellant
Respondent in Person

JUDGMENT

1. The appellant filed this appeal against the decision made by the Small Claims Tribunal on 20th December 2013.
   
2. The grounds for appeal were as follows;
   
   1. That the Learned Referee erred when he ordered the Appellant to pay the Respondent $2,500.00 when the fact the repairs for the vehicle before it broke down was conducted by an independent mechanic.
      
   2. That the Learned Referee erred when he ordered the Appellant to pay the Respondent the sum of $2,500.00 as claimed without any proper evidence with exhibits as to the breakdown of the amount.
      
   100. That the Learned Referee erred in Law and in fact by not disclosing how the mechanics could evaluate that the cost of repairs were not more than $1,400.00 when the Appellant submitted dockets and quotations for parts and labour worth $2,000.00.
        
3. Both parties filed their respective written submissions before me . The learned counsel for the appellant in his written submission argued that the Referee did not consider that the vehicle broke down after the guarantee period , the award was given without any proper documents ( invoices , receipts etc ) and the Referee took in to consideration opinions of two independent mechanics whilst awarding damages .
   
4. The Respondent in his submission pointed out that the repairs carried out by the appellant was substandard and the referee conducted the hearing in a fair manner in the Small Claim Tribunal.
   
5. Section 33 (1) of the Small Claim 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.
      
6. .Hon. Justice W D Calanchini (as he then was) in Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 727; Civil Appeal 17.2011 (10 November 2011) stated;
   
   1. "In essence the ground allows for an appeal to the Magistrates on the grounds that the appellant has been denied natural justice in the form of procedural fairness which has prejudicially affected the result of the proceedings. The other allowable ground of appeal under the Decree is that the Tribunal exceeded its jurisdiction. Together they represent a limitation on the general principle that an appellant's right to appeal is as of right in respect of an error of law and/or fact. It is a right of appeal which requires the appellate court (the Magistrates Court) to review the proceedings conducted by the Referee in the Small Claims Tribunal and determine whether the applicant's complaint has any merit. There is certainly no right of appeal in respect of any error of law nor in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re-hearing".
      
7. I have carefully perused the Small Claim Tribunal record as well as the respective submissions filed by the appellant.
   
8. After considering the evidence presented by both parties the referee accepted the version presented by the respondent and decided that the respondent paid $4000.00 to the Appellant. This was based on the evidence of the respondent as well his wife. I do not see any wrong in the part of the Referee in coming to that decision.
   
9. The Referee also decided that the cost for the work carried out in the vehicle would have cost only $1400.00 and therefore ordered the appellant to pay $2400.00 as refund to the Respondent. The referee came to that conclusion after seeking assessment from independent mechanics.
   
10. But there is nothing in the Small claim tribunal record to show who this mechanics were and how they came to that conclusion about the cost of $1400.00. The record does not indicate if the Referee informed the parties about this assessment. Only time this was mentioned was on 10/12/2013 where it is noted that enquires revealed that the work done would have cost around -------. If the Referee has called the assessment he should have informed both parties about that and if the Appellant objected need to let the Appellant cross- examined them.
    
11. Based on the record I find that there is nothing to show that the Referee has informed the parties about this assessment from 'independent mechanics' . Therefore without informing parties which would have let the Appellant to contest the assessment and reaching the final decision the Referee has acted unfairly.
    
12. Therefore I allow this appeal and set aside the order dated 20th December 2013. This case is to be sent back to Small Claim Tribunal to be heard by another Referee. There is no cost for this case.
    
13. 30 days to appeal.
    

13th June 2014

H.S.P.Somaratne
Resident Magistrate