Supreme Court of Mauritius, 27 février 2020, 2020 INT 42 – H Bolaky v/s SICOM Ltd & D Cooshneapa v/s SICOM Ltd

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H Bolaky v/s SICOM Ltd & D Cooshneapa v/s SICOM Ltd

2020 INT 42

HANS BOLAKY V/S STATE INSURANCE COMPANY OF MAURITIUS LTD & DITISH COOSHNEAPA V/S STATE INSURANCE COMPANY OF MAURITIUS LTD CN: 1112/2015 THE INTERMEDIATE COURT OF MAURITIUS In the matter of: – Hans Bolaky Plaintiff v/s State Insurance Company of Mauritius Ltd Defendant And in the matter of: –

CN: 1113/2015

Ditish Cooshneapa

Plaintiff

v/s

State Insurance Company of Mauritius Ltd Defendant

JUDGMENT

Both cases CN 1112/2015 and 1113/2015 have been consolidated and proceedings were recorded in case CN 1112/2015.

This is a claim for damages arising out of road accident which occurred on the 14th of February 2015. Plaintiff in case CN 1112/2015 is praying for a judgment ordering the defendant to pay him the sum of Rs 395,000 for the reasons set out in the proecipe and plaintiff in CN 1113/2015 is praying for a judgment ordering the defendant to pay him the sum of Rs 395,000.

It is averred in both cases that the said accident occurred through the entire fault and negligence of the driver of vehicle S 877 which suddenly effected a U turn in front of motorcycle 3951 Y as a result of which the latter collided against the front offside part of the car. Defendant, as the insurer, is liable for the damages and prejudice suffered by the plaintiffs. Plaintiffs further aver that the driver of vehicle S 877 had “la garde” and “controle” of the said vehicle and that the defendant, as insurer, is liable for the damages sustained by the plaintiffs.

In the plea of case CN 1112/2015, it is admitted that Mr Bolaky was the pillion rider of motorcycle 3951 Y whilst in case CN 1113/2015, it is admitted in the plea that Mr Cooshneapa was the rider of motorcycle 3951 Y and that the defendant was at all material times the insurer of vehicle S 877.

The circumstances of the accident as per the plea in each case are as follows:

Vehicle bearing number S 877 was being driven along St Jean road proceeding from la Louise towards St Jean in the middle lane. As the driver had to turn right to enter Avenue des Rosiers, the latter gave the appropriate signal and was in the process of turning when motorcycle 3951 Y which was coming from behind recklessly overtook the defendant’s insured vehicle and knocked against the front offside door of car S 877.

It is further averred in the plea that the accident occurred through the negligence of the rider of motorcycle 3951 Y who was riding at a rather high speed and failed to give way to vehicle S 877 which was turning right. It is further averred that the accident occurred through the sole fault of the rider of motorcycle 3951 Y.

The case for Mr H Bolaky and Mr D Cooshneapa

The case for the plaintiffs rests essentially on the testimony of Mr Cooshneapa, the rider of vehicle 3951 Y and the real evidence which consists of the rough sketch and the vehicle examiner’s reports.

The gist of Mr Cooshneapa’s testimony is that on the 14/02/2015, he was riding motorcycle 3951 Y in the right lane in the direction of St Jean. Mr Bolaky was the pillion rider. Suddenly, a car turned in front of his vehicle to make a U-turn and there was an impact between the two vehicles. He did not agree that he overtook the car or that he was riding fast. He added that the driver of the car did not signal before making the U- turn. He was injured as a result of the impact and suffered from a laceration in the left hand. He produced a medical certificate to that effect. He stayed in hospital for 5 days and had to undergo surgery. He had to go back to hospital on five occasions following his discharge. He produced a copy of an appointment card. He was unable to walk for some time and he still cannot make use of his two fingers properly. He was working as messenger at the time and was earning Rs 14,820. He followed treatment with Dr Ramtohul and met him on 3 occasions. He is claiming Rs 10,000 for the treatment and Rs 5000 for transport. He was unable to work for 6 weeks and is claiming Rs 30000 for loss of income. He could not walk properly and could not sleep well after the accident. He has suffered a permanent incapacity of 9 % and is claiming damages for permanent incapacity in the tune of Rs 250,000 and Rs 100,000 as moral damages. He still cannot lift heavy things and he needed help when he had a plaster. He is praying for a judgment ordering the defendant to pay him the sum of Rs 395,000 with interests. In cross- examination, he stated that the driver of vehicle S 877 did a U-turn and did not turn into Avenue des Rosiers. He maintained that the driver did a U-turn. He stated that if the driver was turning into Avenue des Rosiers, he ought to have signalled to turn right. The driver was in fact well before the yellow box. He maintained that the driver did not signal. Mr Cooshneapa stated that if the driver had signalled, he would have taken the necessary precautions. He stated that he has no prescriptions from Dr Ramtohul or receipts that he had hired a taxi to go to the hospital. He added that he needed help only temporarily but that he still cannot lift heavy items. He denied that the accident occurred because of his “faute”.

The rough sketch showing the spot where the road accident occurred, the vehicle examiners reports and the declaration were produced in court.

The gist of Mr H Bolaky’s testimony is that he was the pillion rider of motorcycle 3951Y. He agreed that he suffered an incapacity of 5%. There are two lanes going in the direction of St Jean and the motorcycle was in the right lane. A car which was on its left suddenly made a U-turn in front of the motorcycle. He was injured and stayed at hospital for 3 days. He was earning Rs 4000 on a monthly basis. The accident occurred due to the negligence of the driver of S 877. The driver had the custody of the vehicle. He was injured in the knee as a result of the accident. He stated that he did not do any follow-up at the hospital following his discharge. He then in the same breath stated that he went once to the hospital. He could not recall what treatment he followed with Dr Ramtohul. He then stated that he had to undergo physio for which he is claiming Rs 10,000 and Rs 5000 for transport. He stated that he was unable to work for a period of 3 weeks. He suffers from pain in the knee. He has asking for Rs 250,000 as permanent incapacity and Rs 100,000 as moral damages. He could not sleep and could not work for 2-3 weeks. He is claiming Rs 395,000 with interests. In cross-examination, he could not say exactly how the impact occurred but added that he saw the car turning and making a U- turn. The driver turned to the right but not to enter Avenue des Rosiers. He could not say whether the driver signalled. He denied that the accident occurred due to the “faute” of Mr Cooshneapa who was riding too fast. He stated he could not work for 3-4 weeks but that he is now leading a normal life.

The defendant did not adduce any evidence.

Analysis and findings

As regards the first limb of plaintiffs’ action which is grounded under articles 1382 and 1383 of the Code Civil, I need to consider whether the driver of vehicle S 877 has committed a “faute” which caused the accident. The version of the Mr Cooshneapa that the driver of vehicle S 877 made a U-turn is plausible and credible in as much as the impact occurred before the junction as evidenced by the rough sketch. If the driver of vehicle S 877 was indeed manoeuvring to turn right into Avenue des Rosiers, he would

have started the manoeuvre after the white line and not at spot as indicated by the real evidence. It is worthy to note that no evidence has been led in support of the averments that it was the rider who provoked the accident by riding at an excessive speed and overtaking the vehicle. Additionally, the averment that the motorcycle knocked against the offside door of the car is not supported by any evidence and is in contradiction with the real evidence which does not reveal any damage to the door but to the front offside mudguard. I conclude that the driver of vehicle S 877 swerved suddenly without warning before the junction and committed a “faute” by failing to pay heed to the motorcycle and that the accident occurred as a result of the negligence and “faute” of the driver of vehicle S 877.

I will now consider the claim based on article 1384. Since paragraph 5 of the proecipe; “that the driver of vehicle S 877 is the gardien of vehicle S 877”; has not been specifically denied, it is deemed to be admitted. It is settled that there is a “responsabilité de plein droit” which amounts to a no-fault liability and which renders the “gardien de la chose” liable in damages unless he proves that accident and “dommage” have been caused by a “force majeure” or by the “faute exclusive” of the victim. FB Toorab v La Prudence Mauricienne Assurance Co Ltd [2016] SCJ 370, Chaumoo v Road Development Authority [2016] SCJ 382

In the absence of any evidence of any “faute exclusive” on the part of the rider or “force majeure”, I conclude that the defendant, as insurer of vehicle S 877, is liable for the damages suffered by the plaintiffs.

As regards the quantum of damages, it is not disputed that Mr H Bolaky suffered a permanent incapacity of 5% whilst Mr D Cooshneapa suffered a permanent incapacity of 9 %.

I will first consider the claim made in case CN 1112/2015 by Mr Bolaky, the pillion rider. As regards the claim for treatment and doctor’ fees, when he was asked about the treatment he followed with Dr Ramtohul, he was very evasive but hastened to add that he obtained a report from Dr Ramtohul which was in fact never produced in court. It is only when he was pressed that he stated he had to do physio. In view of the unsatisfactory evidence in respect of the claim of Rs 10,000, I cannot allow such claim.

As for the claim for transport, I am not satisfied that the claim has been substantiated since Mr Bolaky initially denied that he went to hospital after his discharge. He contradicted himself when he later stated that he went once. I therefore cannot allow the claim for Rs 5000. As for the claim for loss of income, it is appropriate at this juncture to refer to the case of Armasin v/s Bassawon [1971] MR 64 where the Court held that “ when a person has been incapacitated as a result of an accident , he should entitled to full compensation for loss of earnings resulting from such incapacity only when he proves that he has actually suffered such loss or that there is certainty that he will suffer such loss in the future.” Mr Bolaky did not bring any documentary evidence of the number of days he was absent from work. In fact, he gave evidence against the pleadings when he stated that he could not work for 2-3 weeks. Such contradiction leaves doubt as to the genuineness of the claim which is consequently not allowed.

I am now left with the claim for permanent incapacity and moral damages. It is admitted that Mr Bolaky suffered a permanent incapacity of 5 % although no medical evidence was adduced in respect of the permanent incapacity. As regards the claim for moral damages, it was made clear in the case of Sotramon Limited v/s Louis Gerard Bathilde [2008] SCJ 338 that in assessing moral damages, the court would not confine itself solely to the percentage of incapacity but it will give due regard to the special facts and circumstances relating to the prejudice suffered by the claimant and which requires to be compensated. The Appellate Court in the case of Sotramon [supra] rejected the basic computation of Rs 15,000 to Rs 20,000 for one per cent incapacity and awarded a global sum encompassing incapacity, loss of amenity and pain and suffering. Similarly, in the case of New Light Match Manufacturing Co Ltd v/s Mrs Ww. M.L. Ono & Ors [1990] MR 164, it was highlighted that the Court has to bear in mind the specific circumstances of the case at hand and that moral damages are meant to compensate and should not be confused with punishment imposed on the author of the accident. Considering the lack of medical evidence in respect of the nature of the injury, Mr Bolaky’s own version that he is now leading a normal life and the absence of evidence that the incapacity of 5 % has had an indirect psychological impact on Mr Bolaky and has resulted in a loss of amenity, I find that a global award in the sum of Rs 90,000 is fair and reasonable.

As regards the claim which was made by Mr Cooshneapa, I find that the claim of Rs 10,000 for treatment and doctor’s fees has not been substantiated since there is no report from Dr Ramtohul which has been produced. I however allow the claim of Rs 5000 for transport in the light of his evidence that he had to do a follow up at the hospital after his discharge and the visitor’s card which has been produced. The claim of Rs 5000 cannot be denied simply because of the absence of receipts. Patel & Ors v/s Beenessreesingh & SICOM Ltd [2012] UKPC 18 As for the claim for loss of income for two months, the document which was produced in court from the hospital reveals that Mr Cooshneapa was granted one month leave. I therefore allow loss of income in respect of one month which would come to Rs 15,000.

Now, as regards the claim of Rs 350,000 for moral damages and permanent incapacity, after having considered the nature of the injury and the testimony of Mr Cooshneapa who did go through a period of physical and mental distress following after the accident and has suffered a loss of amenity due to the fact that he has been unable to use his two fingers, I find a global award in the sum of Rs 220,000 to be fair and reasonable.

I therefore order the defendant to pay to Mr Hans Bolaky the sum of Rs 90,000 with costs and interests from the date of judgment until the final date of payment and to Mr Ditish Cooshneapa the sum of Rs 240,000 with costs and interests from the date of judgment until the final date of payment.

[Delivered from N Senevrayar- Cunden, Magistrate of Intermediate Court, Civil Side]

[Delivered this 27 th of February 2020]