Phoenix Insurance (Mtius) Ltd v Mauritius Union Assurance Co Ltd 2017 INT 260 IN THE INTERMEDIATE COURT OF MAURITIUS Cause No.59/2014 In the matter of: - 1. Phoenix Insurance (Mtius) Ltd 2. Beeharry Jwalah v Mauritius Union Assurance Co Ltd Plaintiffs Defendant JUDGMENT The plaintiffs claim arise out of a road accident which occurred on 25 July 2010, on the New Trunk Road, involving car 566ZP00 insured with plaintiff no.1 and owned by plaintiff no.2, and car B316 insured with the defendant and driven by Mr M. Z. A. Lollmohamud. The plaintiffs aver that vehicle 566ZP00 was being driven along the New Trunk Road, towards the City Dentre, when it was violently knocked at the rear by vehicle B316 being driven in the same direction and the driver did not have time to brake: vehicle 566ZP00 skidded, left its lane and knocked against two other vehicles. Vehicle 566ZP00 was damaged through the fault and/or negligence and/or imprudence and/or want of caution of the defendant s insured and/or the insured s driver and/or préposé. The defendant admits it was the insurer of vehicle B316 and the accident, but denies the circumstances thereof as averred by the plaintiffs. It avers that vehicle B316 was in the left lane when vehicle 566ZP00, without warning swerved to its left and moved across its path. The driver of vehicle B316 swerved to avoid the impact, but none the less knocked against vehicle 566ZP00. The accident occurred due to the faute and/or negligence and/or imprudence of the driver of vehicle 566ZP00. It denies that it is liable for damages. In the alternative it avers contributory negligence on the part of the driver of vehicle 566ZP00 and any damage found proved should be apportioned and the sums claimed are grossly exaggerated and should be reduced. The case for the plaintiff Mr V. Beeharry was driving vehicle 566ZP00, going towards Caudan, and was in the fast lane. At about 100 metres from the roundabout, he put on his indicator and changed lanes: he heard a braking sound at the rear and in his rear-view mirror saw a car coming straight at him fast and leaning to the right. He was at 20m from the roundabout when the vehicle braked behind him. He only had time to brake, as he was sure the car would hit the rear of his vehicle, which it did. His car skidded and he hit with two cars in front, because of the fault of the driver of car B316. It was a violent shock as the boot of his car was forced in. He denied that he changed lanes
without signalling his intention, drove fast and cut in the path of the other car. He denied that the tyre marks start when he changed lanes at 99.70m. He was at the locus and showed spots and was satisfied with those noted by the police, but they are not reflected in the rough sketch, which is not good. SI Ghoorah attended the locus of the accident, took notes and measurements and subsequently drew a rough sketch (Doc. A). There is no point D/point of impact in the rough sketch. Ex-CPL Aukhojee examined the vehicles involved in the accident and noted the damages they bore in his report, which he produced before the District Court. A certified copy of the Court file in the case of Police v V. Beeharry, Cause No.585/11, District Court of Port-Louis (South) is on record as produced by Mr D. Budhna, Court Manager (Doc. B). Ms H. D. Choti, Claims Officer, said that vehicle 566ZP00 was insured with plaintiff no.1 on 25 July 2010, as confirmed by plaintiff no.2 (Document C). Plaintiff no.1 indemnified plaintiff no.2 in the sum of Rs37,500/- after deducting the excess of Rs14,500/- (Document D). A contract car was provided to plaintiff no.2 for eight days and Rs4800/- was disbursed in favour of Meg Tours Co Ltd (Documents E and F). Mr Jugoo surveyed the vehicle and the plaintiff paid him Rs1725/- (Document G) but she does not have a discharge receipt because he is an internal surveyor, although there is a record of every payment. Plaintiff no.1 is claiming Rs44,025/- because vehicle B316 was wholly responsible for the accident. The case for the defendant Mr M. Z. Lollmohamud was driving car B316 at about 60kmh, on the slow lane of the motorway, in the direction of Port-Louis. The traffic was not at a standstill, although there was a lot of vehicles. There was no vehicle in front of him. He had driven 5 to 10mn when a vehicle suddenly moved from the fast lane in front of him without any indication: there was distance of about 5 metres between the vehicles at that time. He cannot say if vehicle 566ZP00 was in the slow lane in front of him. He braked and swerved to the left, but his car skidded and hit with the vehicle, which went to hit with two other vehicles in front. The tyre marks are just behind his car. The police did not note the tyre marks between his car and vehicle 566ZP00. The accident occurred because of the fault of the person who moved in front of him. He denied that the vehicle did not move in front of him, that he drove fast and hit with it and that the shock caused it to hit with the vehicles in front. The impact was at the corner of his vehicle, which was not heavily damaged at the front. He denied that he is responsible for the accident or was imprudent. Discussion The plaintiffs case is staked under article 1382 of the Code civil, namely the liability of the defendants for faute. There is no dispute that Mr Beeharry was driving vehicle 566ZP00 and Mr Lollmohamud was driving vehicle B316 at the material time and that vehicle B316 knocked against the rear of vehicle 566ZP00. It is on record that vehicle 566ZP00 went to hit with two other vehicles in front, but I find that the impact with the other vehicles is not relevant for the purposes of determining whether V. Beeharry or M. Z. Lollmohamud was imprudent. The issue is whether vehicle B316 knocked against vehicle 566ZP00 because the Mr Lollmohamud was
imprudent or whether vehicle 566ZP00 changed lanes and cut in front of vehicle B316 causing the latter to knock against the former. The Court is faced with the testimony of Mr Beeharry as opposed to that of Mr Lollmohamud and I find that the version of Mr Beeharry is substantially different from what is averred in the proecipe inasmuch as it is only in Court that he mentioned changing lanes at about 100 metres from the round-about, hearing braking sounds, seeing vehicle B316 coming at him from an oblique position in his rear-view mirror and applying his hand and foot brakes. Mr Beeharry admitted in Court that he changed lanes at some 100 metres from the round-about, although he also said that he was at 20 metres from the round-about when the vehicle braked behind him, therefore rendering his evidence inconsistent and hazy. Mr W. de Robillard, counsel for the defendant, submitted that changing lanes at 100m before a round-about is dangerous and reckless. I am of the view that changing lanes at 100 metres before a round-about is not per se dangerous and reckless, but doing so without ascertaining whether there are vehicles in the other lane, their distance from one and without indicating one s intention is dangerous and reckless. In the present matter, I find that Mr Lollmohamud deposed in a more convincing manner and in line with the averments in the plea. He maintained that vehicle 566ZP00 cut in front of him without warning and when there was a distance of about 5 metres between the two vehicles, thereby causing him to knock against vehicle 566ZP00. There is a discrepancy in his evidence, namely about the traffic on the New Trunk Road at the time, but I do not qualify it as serious to the point of nullifying his credibility. Both drivers evoked omissions in the rough sketch, namely tyre or brake marks. Since Mr Beeharry admitted that he said in his statement to the police that he was satisfied with the notes and measurements taken by the police, it stands to reason that he cannot now contest the rough sketch in its globality. It is to be noted that he caused summons to be issued on SI Ghoorah and the latter is his witness. It is true that he cannot be responsible for the manner in which the police officer drew the plan, but it was never put to the latter that he did not draw the rough sketch on the basis of notes and measurements indicated by the drivers and that such rough sketch was erroneous. I do bear in mind that point D, which purportedly indicates the point of impact was not noted in the rough sketch, but I find that the absence of the said point does not undermine the case for the plaintiffs or the defendant. The tyre marks on the road, immediately behind vehicle B316, are more likely to be those of that vehicle than that of vehicle B316, and those tyre marks would support the version of Mr Lollmohamud that he braked, swerved to the left and skidded before his vehicle hit with vehicle 566ZP00. Ms B. Bhagwan, counsel for the plaintiffs, submitted that if the accident had occurred as told by Mr Lollmohamud, the damages to vehicle B316 would have been to the offside and not the nearside. A perusal of the Road Accident Report Book reveals that vehicle B316 was damaged mostly at the front nearside, but also at the front offside light, front bumper and bonnet. I find that since there is undisputed evidence that vehicle B316 swerved and skidded before the impact with vehicle 566ZP0, which is in part confirmed by Mr Beeharry, who said he saw the vehicle coming in an aslant position, the damages to vehicle B316 are not incompatible with the evidence of Mr Lollmohamud and would not necessarily have been exclusively to the front offside of vehicle B316.
Counsel for the defendant submitted that Mr Lollmohamud was not at fault considering that vehicle 566ZP00 swerved at 5 metres in front of him when he was driving at 60kmh. Counsel for the plaintiffs submitted that the tyre marks indicate a higher speed. In S. D. Patel & Anor v A. Beenessreesingh & Ors [2008 SCJ 249] the Supreme Court said in respect of the table of braking distance found in Le Code de la Route of the Police Road Safety Unit: Although the table of braking distances is inadmissible by itself to prove speed, it being hearsay (R v Chadwick) 1975 Crim L.R. 105, I nevertheless find that its contents may be used as indication of the speed. According to the said booklet, the brake impressions of 18 mts 80 long left by Mr. Koenig s vehicle, would tally with a speed of less than 50 kmph and more in the region of 40 kmph. A car travelling at a speed of 48 kmph would leave brake marks of some 23 metres long and therefore a car travelling at a speed of 50 kmph would leave still longer brake marks. It is understood that braking distance would depend on many factors and whilst there is evidence on record that the road was dry and that there were no repairs being done on the road, no other criterion was mentioned. Bearing in mind the tables produced by both counsel Le Guide Complet du Conducteur, B. Munisami and Les Marquages Routiers and Wilkinson s Road Traffic Offences, 4 th Edition, Vol. 1, Appendix 5, Table of Stopping Distances, and the fact that the tyre marks would be about 80 metres, it appears that Mr Lollmohomud could have been driving at more than 60 kmh. However, there is no evidence of the speed limit on that part of the New Trunk Road at the time or that the driver of vehicle B316 was driving above the speed limit, and speed on its own does not amount to imprudence. Furthermore, there is no evidence that vehicle B316 was changing lanes or drove imprudently, notwithstanding the tyre marks on the road right behind the said car. In the light of all the above, I find that the plaintiffs have not established that the accident occurred due to the faute and/or negligence and/or imprudence and/or want of caution of the defendant s insured and/or the insured s driver and/or préposé. In the circumstances, the issue of damages does not arise. Conclusion For all the reasons given above, I find that the plaintiffs have failed to prove their case against the defendant on a balance of probabilities. I accordingly dismiss the proecipe, with costs. W. V. Rangan Ag. Vice-President Intermediate Court (Civil Division)
This 12 July 2017