JHOOLUNSINGH S S v LAMCO INTERNATIONAL INSURANCE CO. LTD & ANOR IN THE SUPREME COURT OF MAURITIUS. Seet Seesunkarsingh JHOOLUNSINGH

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1 JHOOLUNSINGH S S v LAMCO INTERNATIONAL INSURANCE CO. LTD & ANOR 2017 SCJ 51 Record No IN THE SUPREME COURT OF MAURITIUS In the matter of: Seet Seesunkarsingh JHOOLUNSINGH Plaintiff v. Lamco International Insurance Co. Ltd & Anor Defendants JUDGMENT The plaintiff is claiming monetary damages from the defendants following a road accident which occurred on 24 July 2011 for which he avers, the defendants are liable. Defendant no 1 is the préposé of the owner of the private car, defendant no 2. The plaintiff was a pedestrian at the time of the accident on Royal Road, Baie du Cap and defendant no 2 was driving a private car 5004 NV 00 which is insured by defendant no 1, an insurance company. Both liability and quantum were disputed initially by the defendants. The pleadings in the present matter do not reflect the evidence which was adduced during the trial. The plaintiff averred that he was walking along a pavement facing Baie du Cap when car 5004 NV 00 came from the opposite direction and hit the plaintiff on his side of the road. The plaintiff suffered a fracture and claims a permanent, physical and functional incapacity at 25%. His total claim is for Rs 1,570,000.

2 2 Defendant no 1 avers that the collision occurred through the sole and exclusive fault, negligence and/or imprudence of the plaintiff who suddenly and unexpectedly crossed the road. Defendant no 2 avers he was driving from the direction of Tamarin towards Chemin Grenier. The plaintiff was walking on the left hand side of the road, moving in the same direction as the car, which came from behind the plaintiff. The plaintiff suddenly crossed the road just before the car arrived by the side of the plaintiff. Defendant no 2 avers that the accident occurred through the entire fault and/or negligence and/or imprudence of the plaintiff. At the outset of hearing evidence, all parties through their Counsel agreed on the quantum of Rs 325,000 plus costs against both defendants jointly in solido. It was during the hearing of evidence, specifically the plaintiff s description of the accident, that Counsel for defendant no 1 raised a point of law that a force majeure had occurred which would exonerate the defendants from any liability. It is established that the road where the accident occurred is a straight one and that it was not raining at the time of the accident. The accident occurred at 1805 hrs when it was dusk; and there was street lighting at an interval of 59 metres. There was one street light, specifically near a pedestrian crossing close to where the accident occurred. The plaintiff and a witness, Mr Ardeeal have both indicated that the impact with the car occurred on the pavement (although not showing the same spot). The defendant has indicated another spot on the road, 1metre 40 from the left hand side of the road while facing Chemin Grenier. The Police Officer who attended the accident found the plaintiff unconscious in the middle of the road. The pavement at the relevant location is between centimetres in height. Defendant no 2 gave his statement to the Police on the same day of the accident (24 July 2011). The plaintiff gave his first statement on 17 August As at 12 August 2011, the Police Officer was not aware of any eye witness to the accident. It was some five months after the accident that Mr Ardeeal gave his statement on 09 December The identity of the lady, mentioned by the plaintiff as crossing the road at the time of accident, was not found after investigation by the Police. The defendant was tested for alcohol in his blood and this was found to be negative. No similar test was carried out on the plaintiff who was in hospital. The evidence by the officer who examined the vehicle and drew up the road accident report, is that the damage was minor, but was not the result of a mere brushing and the tyres were not

3 3 damaged. He agreed it was a possibility that tyres could be damaged when mounting onto the pavement of centimetres in height. The examination-in-chief of the plaintiff was very short. He was coming on his way back after having been to see one Gassen about work. The plaintiff was on the pavement and a car came onto the pavement, it hit his right arm and he fell down. The plaintiff did not say on which side of the road he was and from which direction the car came from. A leading question was put to him to establish he was walking towards Tamarin. The plaintiff who is a fisherman, was on the pavement when a car appeared before him and had mounted onto the pavement. The plaintiff swerved to avoid being hit by the car, but it did have contact with his right hand. He then lost consciousness. At the time of the accident the road was lit. He was not attempting to cross and was walking in the direction of Tamarin. He was returning home and had had about two alcoholic drinks. The claim entered by him was prepared by his attorney based on the police enquiry and doctor s report. In cross-examination, he agreed that in his statement to the Police, he said the accident occurred because a lady was crossing the road to come over to his side and this was why the car moved to the other side of the road and came to hit him on the pavement. He explained he did not refer to the lady crossing the road when asked about the accident because he was not asked about her. He did not know Mr Ardeeal at the time of the accident, he only came to know about one Mr Ardeeal during the enquiry carried out by the Police. The plaintiff did not give the name of Mr Ardeeal as a witness to the Police, as he was not aware that the latter had seen the accident. It was only later on that Mr Ardeeal contacted him and he in turn informed the Police that there was a witness. A part of his statement was put to him, c est l auto là qui fine traine moi qui fine amène moi lors bord chemin et li ti ine continue. The plaintiff denied he stated this to the Police and asserted that he was hit by the car in question and that he lost consciousness after this and did not know what happened including being dragged by the car as per the extract above. The plaintiff s evidence was not linear or precise. On the other hand the witness Ardeeal gave much clearer evidence which was consistent and coherent. Mr Ardeeal s evidence was that the car came over to the other side of the road, came onto the pavement and hit the plaintiff on his right. He saw the plaintiff go over the bonnet of the car and fall on the other side. The car and driver did not stop and somebody noted the number. He took the plaintiff to hospital in

4 4 his van. He was about 25 metres from the accident and he was not related to the plaintiff or friends with him prior to the accident. He had also testified about the accident at District Court. He was shocked by the accident which could happen to anyone and this was the reason he came to court. This witness was a convincing witness especially in his vivid description of the accident. His testimony was not perfect, despite the contradictions about the pedestrian crossing, the colour of the car and its registration number, I find that he did describe truthfully the manner in which the accident did happen. He was lengthily cross-examined and though some inconsistencies did come through, his evidence was very credible. The inconsistencies and contradictions were not major ones. Both he and the driver in their evidence were concordant that the accident happened very quickly. They also did not volunteer the evidence of seeing a lady crossing the road at the time which the driver tried to avoid thus causing the car to mount the pavement. The driver s version was that the plaintiff was trying to cross the road and just suddenly appeared before him. The driver has not put forward that he was trying to avoid a lady crossing the road. It was not his version in court, nor in his plea, that it was because of a lady crossing the road that caused him to go onto the other side of the road and hit the plaintiff. Even though defendant no 1 is entitled to raise a defence of force majeure, the evidence on record is not sufficient for me to seriously consider it. The driver in fact stated he just saw a person crossing suddenly in front of him, he did not see his face. Though he stopped his car further on, because of a crowd who was angry at him, he preferred to go to the Police Station. He denied going onto the pavement. His description of the accident was not convincing. He said he swerved, he braked and did not go onto the pavement and he was driving at 35 kph. I find that after considering all of the evidence on record, I believe the evidence of witness Mr Ardeeal. Despite the weaknesses, inconsistencies and lack of precision which were prevalent in both the plaintiff s and driver s evidence, I find that the plaintiff has succeeded in proving the liability of the defendants for the accident on the balance of probabilities. The evidence of Mr Ardeeal as well as the damage to the car, the position of the plaintiff taken all together, are consistent with the version of the plaintiff as to how the accident occurred. In the light of the quantum being agreed, I award Rs 325,000 plus costs with interest from the date of lodging of the plaint.

5 5 14 February 2017 R. Teelock Judge For Plaintiff: For Defendant No 1: For Defendant No 2: Ms I M Padya, Attorney at Law Mr S Lallah SC Mr M Lallah, of Counsel Mr A B Atchia SA Mr Z Rajani, of Counsel Mr A P Mungroo, Attorney at Law Mr S Ghoorah, of Counsel