Supreme Court of Mauritius, 24 juin 2020, 2020 INT 82 – MJJA GODER V PRADEEP KANGLOO

1 MJJA GODER V PRADEEP KANGLOO

2020 INT 82

CN:- 1378/17 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Marie Jean Joseph Alain Erick Goder Plaintiff v/s Pradeep Kangloo Defendant JUDGMENT In a proecipe dated 14 December 2017, the plaintiff is praying for an order from this court condemning and ordering the defendant to: (a) Pay to the plaintiff the sum of Rs. 500,000 as moral damages and prejudice suffered by him for the reasons set out in the plaint, together with interest from the date of the lodging of the plaint until final payment; and (b) To tender verbal apologies to him in presence of all staff of the hotel. With costs.

It has been averred in the plaint that the plaintiff and the defendant were at the material time employed at Le Pearle Beach Hotel and that on the 30 October 2017, following a polite reminder, on part of the plaintiff to the defendant, regarding the request made by the shooting crew at the hotel for an executive office chair, the defendant reacted in an aggressive and threatening manner by insulting the plaintiff and uttering the following words to his address: “bousse ou likifalou ou mama, ki chaise to pe rode mauvais gogot.” The plaintiff was shocked and traumatized and calmly asked the defendant to whom he was addressing himself. In reply the defendant physically approached the plaintiff and whilst pointing his finger directly towards him, he uttered the following: “Are to meme mo pe coser, mauvais gogot falou ou mama.” The plaintiff was shocked and felt humiliated and belittled by the insulting words and behavior of the defendant, the moreso that same was uttered in presence of other members of the staff of the

2 hotel. He immediately reported the incident to his director and when the defendant was queried about same, he stated that he could not remember what he said but explained that he was allegedly angry and that the defendant was allegedly harassing him regarding the said chair, which the plaintiff denied. The plaintiff is now averring that the impugned words uttered by the defendant constitute an ‘insulte’ and that he was mentally disturbed and felt humiliated by the behavior of the defendant towards him. He is further averring that the defendant is tortuously liable to him for the damage and prejudice he suffered due such acts and doings of the defendant.

The defendant has denied the averments of the plaintiff and has averred that the plaintiff had been harassing him regarding an unused office chair for some time to such an extent that he was being referred to by the staff as ‘voleur chaise’. On the 30 October 2017, prior to the alleged incident, the plaintiff had already harassed him on two occasions in the morning regarding the same issue, to which the defendant remained calm and did not react. At about 12.30 hrs, whilst the defendant was passing by the smoking area, the plaintiff, who was already there, again taunted him about the chair. The defendant, in an exasperated tone, told him that the chair was not his property and that he was not accountable to him. The plaintiff became very unhappy and reported the defendant to the management. A committee was set up to look into the matter and after hearing both parties, the committee concluded that the allegations of the plaintiff against the defendant had not been substantiated. The defendant was then served with the present plaint upon which the hotel convened a joint meeting with the plaintiff and the defendant where the plaintiff insisted that the defendant apologises to him in presence of all the staff and that the defendant be issued with a warning. Such proposal was not accepted by the defendant who instead proposed that they both apologise to each other, but the plaintiff was not agreeable to same. Upon the present plaint being served on the defendant, the hotel convened another committee with its legal representative in order to sort out issues and to find an amicable arrangement. The plaintiff again requested that the defendant apologises to him and pays him the sum of Rs. 50,000 as legal fees that he had incurred, which proposal was turned down by the defendant since he had done nothing wrong. On the same day, the plaintiff approached the defendant and in an aggressive tone informed the latter that he has to pay the sum of Rs. 50,000 otherwise he would be in trouble. The defendant reported the matter to the police. The defendant is now moving that the present plaint be dismissed as he did not commit any ‘faute’ for which he is liable to the plaintiff.

3 Both the plaintiff and the defendant have adduced evidence in court and I have duly assessed same as well as the submissions of counsel appearing for each party. I do not propose to reproduce all the evidence on record in the present judgment as it consists of numerous pages.

Analysis At the outset, it is to be noted that there is no dispute regarding the fact that the impugned words constitute to an insulte. The only contention is whether the said words were indeed uttered by the defendant to the address of the plaintiff.

The plaintiff deposed in terms of his plaint. In a gist he explained that he raised the issue of the chair with the defendant on that day because a request for an executive chair had been made by the shooting crew in a meeting in the morning and Mr. Gokool, the financial controller at the hotel, had recommended that the chair, which was being used by the defendant, be used for such purposes. When he saw the defendant, he thought of reminding him of same, just to get things done and out of the way. I note from the evidence on record that when the plaintiff raised the issue with the defendant, the said Mr Gokool was also present in the smoking area, but the latter did not say anything to the defendant, although he was the one who recommended that the chair of the defendant be used by the shooting crew. I further note that the plaintiff raised the issue of the chair with the defendant of his own volition and that he was never given any such task to be done during his said meeting, otherwise this would have transpired from the record.

In cross examination the plaintiff admitted that the defendant was not answerable to him at work but to one Mr. Bundhoo, the hotel manager. He however explained that, as a member of the management team, he could be called upon to give directives to other members of the staff with regards to the day to day management of the hotel. Upon being questioned about whether the management of chairs was within his prerogatives, he very conveniently dodged the question and rather explained that the chair in issue was in fact a chair that he had been using for some time but which he had put aside when he started using another chair. Thereafter, he noted that the chair had been moved from the spot where he had left it. Since the chair was under his responsibility, he queried the defendant about same and it was then that he was informed that the chair had been shifted in the office of the defendant to be used by the latter. He denied that he had been harassing the defendant about the chair and stated that he was quite satisfied with the explanation given by the defendant when he questioned the latter about same. He stated

4 that he had no dispute with the defendant regarding the said chair and that his relationship with the defendant was strictly professional prior to the incident of the 30 October 2017.

I have given much thought to the above version of the plaintiff. He was adamant in court that he did not harass the defendant about the chair. I am however not convinced that he did not do so. It is to be noted that at paragraph 7 of the plaint, it has been averred that “The plaintiff reminded the Defendant politely not to forget the Executive Office chair requested by the shooting crew…” [Emphasis added] and again in court when the defendant was cross examined by counsel for the plaintiff, it was put to the defendant that the defendant “ine trouve ou pe passé, line cause avec ou bien, line dire ou pas blié amène sa chaise la pou tournage film” [Emphasis added]. The use of the above wordings suggest that the defendant was already aware that an executive chair had to be provided to the shooting crew when the plaintiff raised the issue with him. In fact the version of the defendant, which has not been challenged in court, is that he was also present at the morning meeting and the issue of the chair for the shooting crew had already been sorted out during the said meeting.

Considering the above, the question that therefore prompts itself is why the plaintiff would raise the issue of the chair with the defendant anew. After assessing the whole of the evidence on record I have reached the irresistible conclusion that the plaintiff did so to actually pester the defendant. Indeed, the plaintiff had no reason to raise the issue of the chair with the defendant if not to annoy him as the undisputed facts show that (i) the defendant was not accountable to the plaintiff, (ii) the plaintiff had not been given the specific task by the management to raise the issue with the defendant, (iii) the plaintiff was not in any way closely involved in the shooting event that was happening at the hotel such that he could have been called upon to address the issue personally and (iv) he did not share any friendly relationship with the defendant. Thus there was in fact no reason for the plaintiff to remind the defendant about the chair in the circumstances. The undisputed evidence on record indicates that it was an issue which had already been resolved. I therefore find that the explanation given by the plaintiff that he wanted to get things done and out of the way does not hold water and that he came up with such version only to escape the consequences of his acts.

Concerning the incident of the “insulte”, both the plaintiff and the defendant remained obdurate on their respective versions. Whilst the plaintiff insisted that the defendant ushered the invective words to his address, the defendant for his part candidly admitted that he was “en colère” but he was adamant in court that he never used such language towards the plaintiff. However, taking

5 the evidence as a whole and bearing in mind that the plaintiff did not come with clean hands regarding the fact that he was the one who provoked the defendant in the first place and he wanted the court to believe that the incident was a one off to which the defendant had over reacted, I am doubtful about the credibility of the plaintiff. I have also had the privilege of assessing the demeanour of the plaintiff in court and I have found him to be a cunning witness who was at times evasive in his answers, most probably to suit his own convenience. Bearing in mind such facts, I find that the version of the plaintiff cannot be relied upon. I open a parenthesis here to remark that I find it surprising that the plaintiff did not report the matter to the police being given, as he himself stated, that he felt humiliated and was very much affected by the incident. One would have reasonably expected the plaintiff to do so, the moreso when he had allegedly sought legal advice from his counsel about the incident and the way ahead.

Witness Gokool, who was called to give evidence in support of the plaintiff’s version, was not of great assistance to the court. His testimony was neither here nor there. He was unable to enlighten the court about the alleged incident.

The director of the hotel, Mr. Fowdar, was also called to give evidence in support of the plaintiff’s case. However, I find that the witness was hesitant and contradicted himself in court. He first stated in chief that “It was about a chair that Mr. Goder no longer used and Mr Kangloo asked for the use of that chair so we said there is no problem but I think Mr Kangloo took the chair and he said to me he was being harassed by Mr. Goder every time why he took the chair. But it is a company property so I said it is not a big problem, not a big issue. Then later on Mr Goder came to my office and said he has been insulted by Mr Kangloo in front of a few colleagues and therefore he has a complaint and I told him not to worry.”

Upon being asked whether at any moment before or after the incident the defendant came to the management to complain of harassment by Mr Goder, he stated “Well, as far as I remember he came to my office once. He told me the situation then it’s after that we took the decision to set up a committee to look into the matter.” He then stated that the defendant came to his office after the incident of the 30 October 2017, contradicting himself on his previous stated version. It is therefore not clear to the court whether the defendant did report the plaintiff prior to the incident in lite or whether it was after the incident that he did so. The witness was also asked whether the defendant submitted anything in writing regarding the acts and doings of the plaintiff but again he stated that he could not remember and that it could be that the defendant submitted same to his General Manager. On the whole therefore, I find that the witness himself

6 was not convinced about his testimony. In the circumstances I find that not much weight should be given to his testimony.

On the other hand, I find that the defendant was more consistent in his version. In so far as the issue of reporting the incident to Mr Fowdar is concerned, the defendant was adamant in court that he did submit a report to the latter. Considering the fact that Mr. Fowdar clearly stated that he could not remember and was not sure about such event, I am more inclined to believe the defendant on the said issue. Being the director of the hotel and having himself qualified the incident as “quite trivial”, it is cannot be excluded that witness Fowdar could have forgotten whether the defendant did submit a report to him. Regarding the ‘pre measure’ that the defendant made at the Flic en Flac Police Station, counsel for the plaintiff highlighted that the defendant did not complain of any harassment or of any prejudice that the latter suffered vis a vis his colleagues contrary to what the defendant stated in court. I have perused the document which was produced in court. I am of the view that although the defendant did not specifically use the word “harassment” therein, the statement in a gist reflects whatever the defendant contended in court. Bearing in mind that the defendant stated in court that he could not recollect exactly what he stated in such entry and the fact that deposing in Court is not meant to be a memory test, I am satisfied that the defendant was not inconsistent in court about the said issue. Taking the evidence of the defendant as a whole, I find that the defendant was more consistent and credible in his version than the defendant. I find his version worthy of belief and that same can safely be relied upon.

For all the reasons given above therefore, I find that the plaintiff has failed to prove his case on a balance of probabilities against the defendant and I accordingly dismiss the plaint against the defendant.

I. Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 24 June 2020