Supreme Court of Mauritius, 6 mars 2020, 2020 INT 48 – Mauritius Union Assurance Co Ltd & Anor. v Swan Insurance Company Limited & 2 Ors.

1 Mauritius Union Assurance Co Ltd & Anor. v Swan Insurance Company Limited & 2 Ors.

2020 INT 48

Cause Number 1947/2013

IN THE INTERMEDIATE COURT OF MAURITIUS

In the matter of:

1. Mauritius Union Assurance Co Ltd 2. P.A.D Co Ltd

Plaintiffs

v.

1. Swan Insurance Company Limited 2. Pelagic Process Ltd 3. Patrice Joseph Maurice Maurel

Defendants

Judgment

A road accident occurred on or about 3 June 2004 between two vehicles namely vehicle No.814MR03 (owned by Plaintiff no.2, insured with Plaintiff no.1) and vehicle No. 4804DC01 (insured with the first Defendant, owned by Defendant no.2 and driven by Defendant no.3) as alleged. Plaintiffs are claiming several items of damages for the prejudice allegedly suffered as a result of the said accident in the sum of Rs.119, 648/- in relation to Plaintiff No.1 (comprising of cost of repairs: Rs.118,498 and survey fee: Rs. 1,150) and the sum of Rs.35, 000/- in relation to Plaintiff No.2 (comprising of excess: Rs.10,000, loss of use (10 days at Rs. 500 per day): Rs. 5000, depreciation: Rs.

2 10,000 and trouble and annoyance: Rs. 10,000) from Defendants. They allege that the accident occurred due to the “faute”, negligence and/or imprudence of the driver of vehicle No. 4804DC01 and consequently, the Defendant no.1, as insurer thereof, the Defendant no.2, as “commettant” of the tortfeasor, and the Defendant no.3, as tortfeasor, are bound in law to make good the damages sustained by the Plaintiffs. In the alternative, Plaintiffs have averred that at the time of the said accident, vehicle No. 4804DC01 was under “la garde” of its driver and/or owner and consequently, Defendant no.1, as insurer thereof, and Defendants nos. 2 and/or 3, as “gardien”, are bound in law to make good the damages sustained by Plaintiffs. Plaintiffs have averred the following at paragraph 2 of the plaint: “2. On or about the 3 rd June 2004, an accident occurred between the two said vehicles on the New Trunk Road, Bell Village, in the following circumstances, viz: Vehicle No.814MR03 was being driven on the said New Trunk Road, when arriving behind Subana Factory, suddenly vehicle No. 4804DC01 ran into vehicle No.814MR03 from the rear and pushed the latter into the rear of vehicle No. 48ZB88, which was in front. Vehicle No.814MR03 was thus extensively damaged.” Defendants have denied liability and have averred that the accident that occurred involved three vehicles. They have further averred that Defendant no.3 was driving vehicle No. 4804DC01 along New Trunk Road, Port Louis when suddenly the vehicle in front, namely No.814MR03 driven by Plaintiff no.2’s préposé collided with the vehicle in front of it. On seeing this Defendant no.3 applied his brakes and tried to avoid the accident but nevertheless vehicle No. 4804DC01 collided with the rear of Plaintiff no.2’s vehicle. Defendants have further averred that the accident occurred due to Plaintiff no. 2’s préposé’s exclusive faute and negligence in as much as the latter failed to keep a safe distance with the vehicle in front and that it was the abrupt and imprudent manoeuvre of Plaintiff no.2’s préposé which caused the accident. As regards liability, the evidence unfolded as follows:- PS 5828 Ramnatsingh gave evidence in Court. On 3 June 2004, there was an accident at New Trunk Road, Bell Village reported to the police and he was the main enquiring officer. There were several vehicles involved in the said accident as there was a carambolage and as per the list of vehicles involved there were vehicles Nos. 4804DC01, 814MR03, 847FB99, 3464 JL2000 and 48ZB88. He was the one who repaired on the locus, took down notes and measurements in the presence of all

3 drivers and drew a rough sketch as per Doc. A. Then, he decided that the position of the vehicles had been marked by an unknown police officer. All the vehicles were on the fast lane when going towards Reduit. As per Doc. A, Point O was the first vehicle and Points A, B, C & D were the points of impact between vehicles Nos. 847FB99 and 3464 JL2000, vehicles Nos. 3464 JL2000 and 48ZB88, vehicles Nos. 48ZB88 and 814MR03 and vehicles Nos. 814MR03 and 4804DC01 respectively. The particulars of driving licence of Plaintiff no.2’s préposé namely the driver of vehicle No.814MR03 were produced as per Doc. B. At the time of the accident the road was dry and not under repairs. Mr. Meeterjoye, retired police officer, gave evidence in Court. He examined vehicles Nos. 814MR03 and 4804DC01 involved in the said road accident and drew up a report as per Docs. C & C1. As per his report, as regards vehicle No. 814MR03, its steering wheel, tyres and brakes were good and connected, its front bumper was dented and forced, its radiator and grill were forced in and damaged, its front nearside and offside headlamp were damaged, its front identification mark was dented, its bonnet was dented on frontal aspect, its front nearside fender was dented and its rear aspect underneath door was dented and forced. There were damages suffered by vehicle No.4804DC01 namely its front bumper was dented and grill forced, its front nearside fender was dented and its headlamp and lantern were forced out. The damage to both vehicles was on the frontal aspect as it was a frontal accident. There were five other vehicles involved in that road accident. It was the type of damage that we get in a carambolage that the front aspect had hit the other vehicle and there was no damage to the engine or inside but just the bodywork.

Mr. Joel Antoinette gave evidence in Court. On 3 June 2004, he was driving vehicle No.814MR03 on New Trunk Road Bell Village coming from Port Louis and proceeding towards Reduit and Quatre Bornes. He was on the New Trunk Road on the fast lane about 300 metres before the petrol filling station at Bell Village and while he was driving at approximately 80 kilometres per hour an accident took place. He meant that there were several vehicles in front of his vehicle (meaning that belonging to Plaintiff no.2) which had stopped and he applied his brakes when another vehicle behind his got him swayed into that pile of vehicles. He meant that the vehicle behind his continued to move and crashed against other vehicles found in front of his. When that vehicle knocked against his at the rear, his car went to crash against the vehicle in front of his that was already involved in an accident. There was an

4 accident in front of him as well. The vehicles that he had said had stopped in front of him was because there was an accident. While he was stopping his vehicle, the one behind him knocked against his and caused his vehicle to knock against the one in front. The car which knocked against his at the rear was car No.4804DC01. That was how the accident took place. He did not agree that the driver of the vehicle behind his when seeing that he had knocked against another vehicle in front applied his brakes and yet knocked against his vehicle. He said that it was peak hour and each vehicle was driving close to each other and there was a slowdown. The vehicle that hit his vehicle from behind swayed his vehicle with the rest. He did not remember that his vehicle had already knocked against the vehicle in front of his and while he was still in motion colliding against that vehicle in front, the vehicle behind him then knocked against his. The remaining witnesses on behalf of the Plaintiff concerned the issue of quantum.

The Driver on behalf of Defendants, Mr. M.J. Patrice Maurel namely Defendant no.3, gave evidence in Court in relation to the present road accident. He stated that he was driving slowly about 10 kilometres per hour at the material time as he was following the flow of the pile of vehicles involved in the traffic jam coming from the direction of Port Louis and heading towards Curepipe. He meant he had to stop and then drove a little and then stopped again. In so doing, the car in front of his viz. vehicle No. 814MR03 went quite fast and he thought that he was at last going to Curepipe when that car in front applied its brakes anew and had knocked against the vehicle in front and he too applied his brakes and could not avoid touching against vehicle No. 814MR03 at the rear. According to him, there were three vehicles involved in the said accident. He pleaded guilty in a criminal case as he collided at the rear whilst driving vehicle No.4804DC01 as to what he said in Court. I have given due consideration to all the evidence put forward before me and the submissions of both learned Counsel. On the issue of liability, the driver of vehicle No. 814MR03, Plaintiff no.2’s préposé, has departed from the averments of Plaintiffs in the present plaint to the effect that he slowed down prior to the vehicle he was driving being hit at the rear by car No. No.4804DC01. It is common ground that it was peak hour and that there was a slowdown of a pile of vehicles heading towards Reduit coming from the direction of

5 Port Louis on the fast lane along the New Trunk Road. He as well as all the remaining witnesses for the Plaintiffs have departed from the averments of the plaint to the effect that the said accident did not involve the two said vehicles only but more. At no time it has been averred in the plaint that the vehicle of Plaintiff no.2 as a result of the impact caused by the vehicle at the rear caused it to collide with the vehicle in front so that there were three vehicles involved and not just two and as such to join the pile of accidented vehicles in front which had stopped. Indeed, the préposé of Plaintiff no.2 admitted that he was driving at 80 kilometres per hour at the material time and place while conceding that there was a slowdown of vehicles in front so that the vehicles in front were close to each other. Thus, I find that the version of the Defendants is more plausible in that Defendant no.3 driving car No.4804DC01 which was behind Plaintiff no.2’s vehicle(vehicle No. 814MR03), seeing it moving in such a manner that he would eventually reach Curepipe without the need to stop again when the vehicle No. 814MR03 in front while still in motion hit against the vehicle in front of it leaving him with no choice but to apply his brakes and while doing so, he could not help getting into contact with the rear of that vehicle No. 814MR03. It is clear that when the vehicles in front of vehicle No. 814MR03 began to move over a longer distance, its driver wrongly assumed that the traffic jam was over so that by the time he would have reached the level of that other vehicle in front, the vehicles would be moving again and which was not the case and thus found himself involved in an accident with that vehicle in front bearing in mind that the damage to vehicle No. 814MR03 is predominantly on the frontal aspect as per Doc. C1. Thus, the imprudent and inappropriate manoeuvre of that vehicle No. 814MR03 mislead the vehicle No.4804DC01 behind that the flow of traffic was continuous without stopping when it abruptly got caught in an accident in front leaving the vehicle No.4804DC01 behind with no choice but to brake.

Nevertheless, as a reasonable and prudent driver, Defendant no.3 ought to have kept sufficient distance between his vehicle No. 4804DC01 meaning the vehicle he was driving and the one in front of his namely vehicle No. 814MR03 and thus found himself in a situation where his vehicle got into contact with the other one at the rear. It is clear ex facie the averments in the plaint that vehicle No. 814MR03 did not slow down prior to the accident which is in line with the plea of the Defendants that the vehicle was in motion at the time of the accident. Now, the main enquiring officer who called on the locus after the accident and who drew the rough sketch (Doc. A.) at no time stated that the notes and measurements were taken in the presence of all drivers and to the satisfaction of all of them let alone that he said that

6 the position of the vehicles was marked by an unknown police officer. I take the view that no weight can be attached to the real evidence namely the rough sketch (Doc. A.). True it is that Defendant no.3 had pleaded guilty in the criminal case but his guilty plea is only reduced to an aveu extra judiciaire having no probative value on its own and has to be in line with the plea of the Defendants for it to carry any weight (See – Jamodhee v. Jharia &Ors [2013 SCJ 148]) and the plea is to the effect that Defendant no.3 admitted having caused the impact to vehicle No. 814MR03 at the rear but not the impact caused by vehicle No. 814MR03 in front and thus the probative force of that guilty plea will be to that extent only. Therefore, given that the driver of vehicle No. 814MR03 and the other witnesses who deposed on behalf of the Plaintiffs have departed from the averments in the Plaint and in view of the present state of affairs, I find it proved on a balance of probabilities that it is the driver of vehicle No. 814MR03 who was solely at fault for the damage caused to that vehicle in front and that Defendant no.3 was solely at fault for the damage caused to that vehicle at the rear.

As regards quantum, Plaintiffs relied on the testimonies of Mr. Denis Auckbarally and Miss A. Sadien.

Mr. Denis R. Auckbarally in his capacity as Motor Surveyor gave evidence in Court. He made two reports in relation to the assessment of the costs of damages caused to vehicle No. 814MR03 which had been repaired at the request of Plaintiff no.1. namely Docs. D & D1. As per his report dated 30 June 2004 viz. Doc. D1 in relation to the damages caused to the rear part of that vehicle was Rs.9,200 which however also comprised of the repair of a clutch fan of the front part of that vehicle that was damaged in the sum of Rs.6,641.25. In that regard that vehicle remained at the garage for repairs for about 4-5 days. He was paid Rs. 1,150 by Plaintiff no.1 for his services. In cross-examination, he stated that following the Traffic Examiner’s report namely that of Mr. Meeterjoye, costs of repairs for the damages to the frontal aspect of the vehicle were about Rs. 127,000 and the costs of repairs to the damages caused to the rear were in the total sum was Rs.8,000 but it was only when VAT was being added that it was increased to Rs.9,200.

Miss A. Sadien, representative of Plaintiffs nos.1 and 2 in her capacity as claims officer gave evidence in Court. Further to the present road accident, Plaintiff

7 no.1 has disbursed the sum of Rs. 118,498 as per the discharge receipt as per Docs. F&G. As regards survey fee, it was Rs. 1,150 as per discharge receipt viz. Doc. H. As per her Motor Claim Record, the insured of Plaintiff no.1 had an excess of Rs.10,000 as per Doc. J. On behalf of Plaintiff no.2, she was claiming the sum of Rs.10,000 as excess and loss of use in the sum of Rs.5000 meaning ten times Rs. 500 for ten days. She was claiming the sum of Rs.119,648 for Plaintiff no.1 and Rs.15,000 for Plaintiff no.2. As regards Plaintiff no.2, the items of depreciation and trouble and annoyance were not being insisted upon.

I have duly considered the testimonies of both witnesses for the Plaintiffs as regards quantum. I find that it has been established on a balance of probabilities that costs of repairs to the vehicle No.814MR03 at the rear was Rs. 2,558.75 as the sum of Rs.9,200 meant for the repairs to the rear of the vehicle also included the costs of repair of a clutch fan of the front part of the vehicle that was damaged in the sum of Rs.6,641.25 as per Doc. D. I find that sum to be fair and reasonable. As regards the survey fee, I find that the sum of Rs.1,150 has been proved on a balance of probabilities and which is also fair and reasonable. As regards the loss of use, I find that the sum of Rs.1000 meaning for two days loss of use in the sum of Rs. 500 per day is fair and reasonable as while the rear side was being repaired at the garage it was noticed that the clutch fan in front was also damaged and was also repaired so that the lapse of four to five days meant for the repair of the rear part of that vehicle also included the front part.

For all the reasons given above, I find that the case for the Plaintiffs has been proved on a balance of probabilities as regards the damage to the rear part of vehicle No.814MR03 only. As regards quantum, I order the Defendants to pay to Plaintiff no.1 the survey fee in the sum of Rs. 1,150 and as regards Plaintiff no.2 to pay the sum of Rs. 2,558.75 in relation to the excess and Rs. 1,000 for loss of use. Defendants shall pay interest at the rate of 15% as from the date of entry of the plaint until final payment.

With half the costs in favour of Plaintiffs.

S.D. Bonomally (Magistrate) 6.3.2020.

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