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Kama v Menah [2005] PGDC 58; DC243 (4 July 2005)

DC243

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 3682 OF 2004

BETWEEN

Mesa Kama
Complainant

V

Simeon Menah
Defendant

Port Moresby: Gauli, Magistrate
2005: 4th July.

DECISION OF THE COURT

Complainant claims that defendant is indebted to the complainant in the sum of K2,887.85.

On 7th March 2005 the Court ordered the defendant to pa K1,007.33 to the complainant after hearing all evidence from both parties.

Today (4th July 2005) the defendant appears in Court to explain and be orally examine as to why he was not able to satisfy the Court Order of the 7th March 2005.

In his explanation the defendant said that he and the complainant were injured in a motor vehicle accident in the complainant’s vehicle which was driven by the complainant himself. Their claims were lodged to the Motor Vehicle Insurance Limited (MVIL) and they were each paid their compensations. And each claimant had paid the layman who assisted them. The complainant however claimed the commission from the defendant for assisting him in his claim.

The complainant admits to what the defendant has put to this Court as above. However he claims he alone paid for the lawyer to put their claim through the MVIL with a sum of K1,000.00. The defendant did not even pay a toea towards this. The lawyer failed to carry the action right through with the MVIL. So they retrieved the file and allowed a layman who successfully assisted them. When they all got their compensation payment each claimant paid the layman who assisted them.

Having considered the statements by both parties, I could not see why the complainant had to be paid by the defendant. On this basis I decided to set aside the Court Order dated 7th march 2005 and reconsider the evidence filed before the Court that lead to that decision.

The Complainant’s Evidence

The complainant and his two witnesses namely Awai Mesa and Daphney Mesa gave affidavit evidence.

The complainant deposed that he himself Mesa Kama, Awai Mesa and the defendant Simeon Menah were injured in a motor vehicle accident. They all lodged their claims to the MVIL. They all engaged a lawyer to pursue their claim. The complainant deposited K1,000.00 with the lawyer to pursue their claim. The money was paid by the complainant while the defendant and Awai Mesa did not contribute.

As required by the MVIL, the complainant also paid for the medical reports for each of the three claimants. He paid for their bus fares while pursuing their claims which took some 4 years.

When the MVIL paid them their compensations, the defendant gave K1,000.00 to the complainant for all his assistance but the complainant refused to accept it. But when defendant offered him K3,000.00 he accepted it.

The complainants witnesses Dephney and Awai Mesah confirmed that the complainant paid for all the expenses for the lawyers, medical report and bus fares and that the defendant did no contribute towards these expenses.

The Defence Evidence

The defendant and his witnesses namely Oftike Aimon and Ribi Thomas gave affidavit evidence.

The defendant deposed in his affidavit that on or about February 2001, he and the complainant’s brother Awai Mesa accompanied the complainant. They got in the complainant’s vehicle driven by the complainant. They were on their way to Koki market to sell complainant’s two bags of betelnuts when they had an accident, where the complainant’s vehicle collided with another vehicle. All three of them were injured.

The engaged a lawyer to pursue their claim with the MVIL. The lawyer charged them K400.00 fee each claimant. However since the defendant is unemployed his fee was reduced to K200.00 which the complainant paid. A total of K1,000.00 was paid to the lawyer.

The defendant’s medical report was paid for by Awai Mesa for a sum of K50.00 when the MVIL paid them their compensation, the defendant repaid the K50.00 to Awai Mesa and he gave K1,000.00 to the complainant. The complainant refused to accept it claiming that he should be paid K2,887.55. And the complainant threatened him by swinging a bushknife at him which only missed him (defendant) by an inch.

The witness Oftike Aimon testified that on 21st August 2004 the defendant gave the money in an envelope to the complainant but he refused to accept it and threatened the defendant with a bush knife. This witness was present at the time. EH confirmed the complainant’s evidence.

The witness Mrs. Ribi Thomas deposed that she gave K50.00 to the complainant to pay for the defendant’s medical report. She was reimbursed with K100.00 by the complainant when he got his MVIL compensation.

From reading the affidavits evidence presented by both parties before the Court, I am satisfied that the complainant did assisted the defendant financially in his claims against the MVIL. However I am not satisfied that this financial assistance amounted to K2,887.85. the complainant paid K1,000.00 deposit to a lawyer to pursue their claims, that is for the three claims mentioned herein. That lawyer did not carry the claims to achieve the outcome. The files were then withdrawn and given to a lay person who successfully pursued the claims. The complainant can only sue that particular lawyer to reimburse the deposit of K1,000.00. HE could not claim that against the defendant suppose that lawyer has successfully pursued their claims then the defendant would only be entitled to reimburse one third or 33% fo that deposit. The defendant was very generous in offering K1,000.00 to the complainant as an appreciation for the K200.00 he assisted him for the layman who pursued his claims. The money the defendant offered, and in fact gave to the complainant in my view was more than complainant’s financial assistance given. He however refused to accept that money.

Sine the complainant did not specify his financial assistance to the defendant in detail and also that it was the complainant’s own driving that resulted in the motor vehicle accident in which both the complainant and the defendant were injured, it is just fair that the complainant should bear those costs or expenses for the defendant.

For the reasons I have alluded above, I find the defendant not liable to compensate the complainant. And I order the case be dismissed

Ordered accordingly.

In Person: Complainant
In Person: Defendant