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Fire Fox (Fiji) Ltd v Sun Insurance Co Ltd [2020] FJMC 135 (6 November 2020)

IN THE MAGISTRATE’S COURT AT SUVA
CIVIL JURISDICTION

Civil Case No. 300 of 2018

BETWEEN:
FIRE FOX (FIJI) LIMITED
PLAINTIFF

AND:
SUN INSURANCE COMPANY LIMITED
DEFENDANT

For the Plaintiff: Mr. S Kumar
For the Defendant: Mr. A Vulaono

RULING

This is a ruling on a civil claim for breach of contract of insurance filed by the Plaintiff, an importer/distribution company, against the Defendant, an insurance company.

The Claim

The Plaintiff filed a Writ and Statement of Claim dated 28^th December 2018.

The Plaintiff alleges that it insured its vehicle, a Hino truck 300 Series with registration number IU 454, with the Defendant on 1^st December 2016. In the course of the insurance cover, the said vehicle got involved in an accident and consequently, sustained damages. A quotation of $48,349.13 arose. An insurance claim was lodged with the Defendant but the Defendant failed to honour the claim. A demand notice was then served to the Defendant.

The Plaintiff clams for inter alia special damages in the sum of $48,349.13 and costs.

The Defence

The Defendant filed its Defence on 4^th February 2019 and states the Plaintiff’s insurance claim was declined because the Plaintiff breached a term/condition in the insurance policy as the Plaintiff’s driver at the time of the accident did not have the valid driver’s license to drive said vehicle.

The matter was scheduled for Trial on 1^st September 2020. Before Trial commenced, the parties addressed the Court on the jointly filed Pre Trial Minutes, which both parties had executed and rely on.

Pre-Trial Minutes

For purposes of clarity, I will reproduce the salient features of the Pre-Trial Minutes.

PRE TRIAL MINUTES

1.0 Agreed Facts

1.1 THAT the Plaintiff is a duly registered company under the Companies Act of Fiji having its registered office at Waila Road, Nausori, P. O. Box 528 Nausori and engaged in the business of inter alia importation and distribution of goods in Fiji.

1.2 THAT the Defendant is at all times duly registered company under the Companies Act of Fiji having its registered office at ground & Level 1, SUN Insurance, Kaunikuila House, Laucala Bay, Suva, P.O.Box Suva Insurance, Private Mail Bag Suva and engaged in the business of inter alia property & casualty (P& C) insurer as indicated in their website.

1.3 THAT the Plaintiff is the registered owner of a Hino truck 300 series bearing the registration number IU 454, valued at $90,000.00 at the time it was purchased and was to be used for the purpose of delivering goods.

1.4 THAT on the 1^st day of December 2016, the Plaintiff insured the said vehicle with the Defendant for the sum of $90,000.00.

1.5 THAT on this insurance cover was renewed on a yearly basis.

1.6 THAT on or about 11^th day of September 2018, the said vehicle got involved in an accident whilst its voyage from Suva to Lautoka.

1.7 THAT at the time of the accident; the said vehicle was being driven by one Mohammed Naushad with consent of the Plaintiff.

1.8 THAT the said Mohammed Naushad holds a Full Class 2 Drivers License bearing the licence number 899104.

1.9 THAT the said vehicle veered off road and landed on its side but no damage was caused to any other vehicle or pedestrian.

1.10 THAT a road side assistance towing company was hired to bring the vehicle to Nausori from the scene of accident at Sigatoka.

1.11 THAT the quotation was obtained from Niranjans Autopart Limited in the sum of $48,349.13.

1.12 THAT thereafter an insurance claim for repairs were lodged at the Defendant’s Office however the Defendant refused their claim.

2.0 AGREED ISSUES

2.1 WHETHER the vehicle had goods loaded on it at the time of the accident?

2.2 WHETHER the Plaintiff’s Driver, Mohammed Naushad was a qualified driver to drive the said vehicle at the time of the accident?

2.3 WHETHER the vehicle was delivering goods at the time of the accident?

2.4 WHETHER the vehicle had an unladden mass not exceeding 3.5 tonnes at the time of the accident?

2.5 WHETHER the Defendant should pay for the Plaintiff’s insurance claim of $48,349.13?

3.0 COSTS

3.1 Which party is entitled to costs of this action?

3.2 If any costs are ordered, what basis are the costs to be computed on?

3.3 Further, in the event any costs are ordered, when are such costs to be paid by?

Agreed Documents

Ideally, it would have been proper to include in the abovementioned Agreed Facts a portion on Agreed Documents but nevertheless in the course of the proceedings, the following documents were taken as read and tendered in by consent of both parties:

Exhibit 1 – Niranjans Quotation – HINO dated 30/09/2016

Exhibit 2 – LTA Extract of IU 454

Exhibit 3 – Motor Vehicle Insurance Policy of IU 454

Exhibit 4 – Copy of Drivers Licence of Mohammed Naushad

The Plaintiff’s case

The Plaintiff called 2 witnesses as follows: -

1. Mohammed Naushad (PW1)
2. Jadu Ram (PW2)

PW1 stated that he is a driver by profession and currently holds a Group 2 and 6 drivers licence. In 2017, he possessed a Group 2 drivers licence which authorised him to drive private rental and 3.5 tonnes. He confirmed though Exhibit 4 that he was authorised to drive 3.5 tonnes vehicles. He recalls being in an accident in September 2018 while driving a vehicle IU 454, which weighed at 3,300 kilograms. He started driving the said vehicle without any load from Waila Feeder Road, Nausori with Shama, his boss’s son, on the way to Lautoka. On the date of the accident, there was heavy rain and he lost control of the vehicle resulting in the drain. The police came to the scene about two hours after the accident. After that, he called his boss and told him about the accident. After police investigations, he was charged for careless driving but was not charged for driving a motor vehicle of a class that he was not entitled to drive.

In cross examination, he maintained that the truck he was driving was 3.3 tonnes in unladden weight as he had it weighed the truck the day before and it weighed 3.3 tonnes. He disagreed to obtaining this weight from the Niranjans quotation. After being shown Exhibit 2, PW1 stated that he was illiterate and disagrees to the unladden mass of the vehicle as 3,540 kilograms as contained in the said document

In re-examination, he appears to be literate as he was directed by counsel to first column of Exhibit 2 and read the laden mass load as 8,500.

PW2 is the Managing Director of the Defendant company. He recalls buying the said vehicle from Niranjans in the sum of $90,000.00 with an unladen mass weight of 3,300 kg. He then insured it with the Defendant and continued paying premiums for it as shown in Exhibit 3. He was also shown Exhibit 2 and confirmed that it read the unladen mass weight as 3,540kg. However, he disagrees with LTA records because the manufacturers through its specific agent, Niranjans had the correct unladden weight of 3,300kg in Exhibit 1 and this was the basis of his insurance policy.

In cross examination, he confirms that the term “unladden weight” does not appear anywhere in Exhibit 1. He agrees that Exhibit 2 contains the term “unladden weight” and specifies it as 3,540kg.

It would not be judicious to note that at the hearing, no evidence was led on the special damages claimed for.

The Defence Case

The Defendant stated that they will not be calling any witnesses but will rely on the agreed documents that have been tendered in by consent and will make submissions on them.

After the hearing both parties filed helpful written submissions to assist the Court. The Court has considered the content of all submissions and moves to analyse and determine the salient features of the matter.

Analysis

In any civil proceedings the standard of proof is always one which is established on a balance of probabilities which has been aptly described in Miller v. Minister of Pensions 1947 2 All E.R. 372 where Lord Denning stated that the standard of proof regarding balance of probabilities as:

"That degree is well settled. It must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not."

The claim is based on whether the Defendant is liable to pay for the Plaintiff’s insurance claim of $48,449.13 given their contract of insurance, which appears to have been entered into on 1^st December 2016. This is the last agreed issue as contained in the Pre Trial Minutes. To determine this question, it would be prudent to look at the preceding agreed issues in light of the evidence. The evidence and the said submissions before this Court has now further specified which of the said agreed issues are relevant and significant and so I determine the following issues as relevant^[1] to determine the abovementioned question.

1. Whether the vehicle had an unladen mass not exceeding 3.5 tonnes at the time of the accident?

Both parties rely on hearsay evidence to support their arguments. The Plaintiff relies on Exhibit 1, that is, a copy of the Niranjans Quotation – HINO dated 30/09/2016. The Plaintiff asserts that the Payload 3,300kg is the maximum weight that the vehicle can carry and so if deducted from the gross vehicle weight of 6,500 then the balance be 3,200kg or 3.2 tonnes. This should be taken as the unladden weight of the vehicle^[2]. In addition to that, what appears to be circumstantial evidence for the Plaintiff albeit derived from cross-examination by Defendant’s Counsel, is that PW1 had the vehicle weighed a day before the voyage. The Defendant relies on Exhibit 2, which appears to be a printout from LTA records of the history of ownership of the vehicle. Exhibit 2 contains the description of the vehicle and shows that the vehicle’s unladen mass as 3,540 kilograms which is 3.5 tonnes. Neither party called the makers of the documents relied upon. Therefore, the question for the Court is how much weight should be placed on the two exhibits. But before this, for the purpose of convenience, the following will first assess PW1’s evidence of weighing the vehicle the day before the voyage.

PW1 stating that he knew that the vehicle was 3.2 tonnes after weighing the vehicle a day before the voyage. He did not say who weighed it as how Counsel for the Plaintiff puts it in the submission nor did PW1 state in his evidence how the weighing was done. Had this been properly placed before the Court as evidence then, at best, the Court would have considered it as valuable circumstantial evidence. There is also the absence of any other supporting evidence to show that the vehicle was weighed by some form of authority and the manner which such an exercise was and would have been conducted. Hence, in its current form, there is no value in this evidence.

PW2 refers to Exhibit 1 as a quotation from the manufacturers but with respect, it is not. It is only a quotation from Niranjans and therefore, whether the same captures the same description of the said vehicle from the manufacturers is a question only a representative from, ideally, the manufacturers or Niranjans can answer. It would have been reasonable and practical had a representative from Niranjans being present. Additionally it would have been helpful had there been a source document by or from the manufacturers to Niranjans that would at least shown a nexus in description which the Plaintiff relies on. Under Section 6 of the Civil Evidence Act, this Exhibit 1 is viewed as multiple hearsay as the description of the vehicle in the document supposedly originates from a description by the manufacturers. Consequently, this Court places very minimal weight on Exhibit 1 and the submissions including the mathematical explanation by the Plaintiff on the same.

The Defendant relies on Exhibit 2. Nevertheless, the Court fails to fathom reason on the absence of the Land Transport Authority (LTA), the maker of the said document. This would have been reasonable and practicable. The printout also appears to be a copy of the printout as the characters show but this is immaterial as per Section 10(3) of the Civil evidence Act. All in all, the printout copied document bears a slightly faded seal and signature of the LTA authorised officer. Section 22(2) of the Land Transport Act 1998, which the Defendant’s rely on appears to place more weight on Exhibit 2. It states:

“Any extract from, or copy of, an entry...certified under the hand of the office in charge...shall be received...and deemed sufficient proof of all particulars contained in [it]...”

The Court therefore, places significant weight on it and as a result, adequately recognises that the LTA stipulates the unladen weight of the vehicle as 3,540 kilograms or 3.54 tonnes.

Therefore, this Court accepts that, at the time of the accident, the vehicle had an unladen mass or weight of 3.54 tonnes which exceeded 3.5 tonnes.

2. Whether the Plaintiff’s Driver, Mohammed Naushad (PW1) was a qualified driver to drive the said vehicle at the time of the accident?

Given that the parties consented to Exhibit 4 as evidence. The Court takes it as an accepted fact that PW1’s Group 2 drivers licence only allowed PW1 to drive vehicles below 3.5tonnes. Anything in excess of 3.5 tonnes would require a driver with a Group 6 drivers licence.^[3]

Therefore, in light of the determination in the preceding issue, the Court is of the view that PW1 was not a qualified driver to drive the said vehicle at the time of the accident.

Other issue

There were various issues raised in the closing submissions of both parties which have been considered but determined not relevant to discuss. I perceive it imperative though to say the following which is not only for purposes of clarity but for future purposes of any represented litigant owing a duty to the administration o justice as a whole.

Whether the Defendant needed to call a Witness to tender an Agreed Document?

The Plaintiff states in their closing submission that the Defendant had no capacity to tender Exhibit 2 because they did not produce any witness. With respect, this notion is displaced. The Plaintiff, procedurally, should have objected to the said documents which the Defendant was relying on at the time the said documents or evidence was offered was offered by the Defendant. Such are the tenets of Order 5 Rule 14 of the Magistrates Court Rules. Given there was no objection and the Plaintiff expressly consented to the said documents on record, the Court allowed the Defendant to not call any witness and to make submissions on the documents. There are numerous authorities including Devi v Queensland Insurance (Fiji) Ltd [2010] FJHC 318; HBC233.2004L (17 August 2010) that show the non-necessity of Defendant’s witnesses to tender a particular agreed document.

Determination

I therefore determine that the Defendant is not liable to pay for the Plaintiff’s insurance claim of $48,449.13 given that the Plaintiff did not hold a valid driving licence for the said vehicle under insurance cover, at the time of the accident.

The Plaintiff’s writ and statement of claim is hereby dismissed. Costs is summarily awarded to the Defendant in the sum of $500.

28 days to appeal.

------------------------
J. Daurewa
Resident Magistrate

6th November 2020

^[1] Order 17 Rule 4 of the Magistrates Court Rules.
^[2] The Concise Oxford English Dictionary 12^th Edition defines the term “Unladen” as “not carrying a load”.
^[3] Schedule 1 (Regulation 10) of the Land Transport Act 1998