DC568

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING]
[IN ITS GRADE FIVE CIVIL JURISDICTION]

CFCi 462 of 05

BETWEEN

KIA KURINGI
Complainant

AND

MARTIN KANE
First Defendant

JOE EPEN
Second Defendant

Wabag: J Wia

2007: May 21

CIVIL- Claim for damage of property namely 15 seater PMV bus.

Cases Cited

Nil

References

Counsel

For the Complainant – In Person
For the Defendant – Defendants in Person

21 May 2007

REASONS FOR DECISION

J Wia, PM: This is a claim for damage of property namely a 15 seater Public Motor Vehicle (PMV) bus.

2. Facts.

The brief facts of the matter are that, on or about the 21st day of July, 2005 the first defendant who was at the material time driving the second defendant's vehicle namely a white Toyota Land Cruiser, Open Back Registration Number HAD 180 bumped into the rear of the complainant's PMV bus namely a Hiace 15 seater red in colour while it was parked on the side of the Okuk Highway near Pawas, Wabag, calling for passengers travelling to Mr Hagen.

3. The first defendant admitted having hit the complainant's vehicle at the rear but he denied the cost of the repair of the complainant's bus and other related costs which amounted up to a total claim of K9, 011.62. He said the repair cost should be less than K1, 000.00.

4. The complainant alleges that the first defendant is an employee of the second defendant as a driver and hence should be vicariously liable for actions of his employee.

5. According to the second defendant's evidence, the first defendant is not his employee/driver but he (first defendant) was picked up on the road the previous day to accompany him (second defendant) to Muritaka to transport some pigs from Muritaka in Kompiam/Ambum District for compensation payment. Second defendant says, his vehicle was hired for that purpose by former Kompiam/Ambum MP John Pundari.

6. Further, according to the second defendant, after having unloaded the pigs from Muritaka at Meriamanda at about 12:30am, he felt tired and sleepy due to the long distance driving for the whole day on 20 July, 2005 so he put his vehicle ignition keys into his short pocket and went straight to bed. While he was past asleep, the first defendant took out the vehicle ignition keys from the second defendant's short – pocket and drove the vehicle away without letting the second defendant (who is the owner of the vehicle) know.

7. The first defendant admitted that he took the vehicle ignition keys from the second defendant's short-pocket while the second defendant was past asleep and further admitted that he did not get any permission from the second defendant to drive off the vehicle. First defendant further told the Court that he is and has never been am employee of the second defendant as a driver.

The issues are:

1.	Whether or not the second defendant is or should be vicariously liable

2.	Whether or not the amount claimed is justifiably reasonable.

8. Regarding the first issue, there is no evidence to suggest that the first defendant is employed by the second defendant as a driver. He was picked up by the second defendant who is the owner of the Toyota Land Cruiser to accompany him (second defendant) only to Muritaka and back to Meriamanda. The second def3endant did not give any permission to the first defendant either to drive his (second defendant's) vehicle. Hence, the first defendant was not under the employment of the second defendant when he hit or bumped into the complainant's bus. The second defendant is therefore not vicariously liable. I find only the first defendant is liable.

9. The question now is, how much should the first defendant be liable? The first defendant has argued that the cost of the repair of the complainant's vehicle should not be more than K1, 000.00. He further argued that the complainant's vehicle was repaired at BBM Motors in Mt. Hagen and an Invoice No. 133 for a deposit of K400 was therein issued to the complainant but had somehow obtained a quotation from Ela Motors in Mt. Hagen which exceeds the amount charged by BBM Motors which had actually repaired the vehicle.

10. According to the complainant's statement of claim, the complainant proceeded to Ela Motors Mt. Hagen on 21st July 2005 and obtained a quotation No. 1065455 for K5, 509.62 and that he had paid that amount and got the vehicle back and sold it. The complainant however, has not produced that quotation to the court to support his claim. The only documentary evidence before the court is Invoice No. 133 from BBM Motoring and Panel Shop Mt. Hagen dated 28th July, 2005.

11. According to that Invoice, the quoted cost for "repair and spray paint of back left hand side, panel back door for Toyota Hiace Bus Reg. No. P4932" is K890.00. The amount the complainant had deposited was K400.00, and the outstanding is K490.00. The court therefore, accepts Invoice No. 133 from BBM Motoring & Panel Shop as genuine quoted Invoice. Hence, the first defendant is liable to the complainant he had incurred in repairing his vehicle at BBM Motoring and Panel Shop.

12. In respect of the complainant's other related claims including K400.00 PMV takings per day on seven days a week, seven days 10% compound interest, claim for expenses incurred in trying to locate both defendants for five (5)months and legal cost, I find that there is no evidence whatsoever to support these claims.

13. I find the First Defendant namely, Martin Kane is liable in the sum of K890.00 plus K71.20 being 8% interest and cost to be taxed.

14. The Court hereby orders accordingly; Defendant Martin Kane is granted there (3) months from today to pay the amount.

For the Complainant – In Person
For the Defendant - Defendants in person.