HURNAUM R. v DINDOYAL D.

& ORS
2016 SCJ 519
Record No. 1288
THE SUPREME COURT OF MAURITIUS
(Court of Civil Appeal)
In the matter of:
Radhamohun Hurnaum
Appellant
v
1. Deolall Dindoyal
2. Zaheer Lalloo
3. Jan Jummun
Respondents
---------JUDGMENT
This is an appeal against a judgment of the learned trial Judge ordering the appellant
and respondent no. 2 jointly and in solido to pay to respondent no. 1 material and moral
damages in the sum of Rs 1,418,000 together with interest.
The facts of the case before the trial Judge were as follows: on 13 September 2001,
respondent no. 1 (then plaintiff) was seriously injured when his motorcycle collided against
car CM 135 driven by respondent no. 2 (then defendant no. 3). Respondent no. 1 brought a
claim for material and moral damages against respondent no. 2 for his negligent and
imprudent driving and against the appellant and respondent no. 3 as commettants of
respondent no. 2.

There was also an alternative claim against the appellant and

respondents nos. 2 and 3 as gardiens of the said car.

The plea of the appellant was that he had already sold car CM 135 on 18 January
2001 to respondent no. 3, consequently, he was neither the owner nor the custodian of the
car at the time of the accident, and was, therefore, not liable in damages to respondent no.
1.
Respondent no. 3 for his part denied having bought the car from the appellant. It
was his case that his brother had purchased the car from the appellant. Without causing the
car to be registered in his name, his brother sold it to a third party and emigrated to Ireland.
On 10 May 2004, he (respondent no. 3) was duped by the appellant into signing a deed of

transfer which the appellant had backdated to 18 January 2001 before causing same to be
registered in his (respondent no. 3) name. It was also the case for respondent no. 3 that the
appellant had furthermore in bad faith concealed from him that the car had been involved in
a road accident a fact which came to his knowledge when respondent no. 1 brought a
claim for damages against him.
On the day of the trial, respondent no. 2, who had in his plea denied all the
averments of respondent no. 1, admitted he was at fault for the accident. He also admitted
that the appellant and/or respondent no. 3 were the owners of car CM 135; that he was the
prepos of the appellant and respondent no. 3; and that the appellant, respondent no. 3
and himself were the gardiens of the said car. He, however, questioned the amount of
damages which he claimed was grossly exaggerated.
Acting on respondent no. 2s admission of liability for the accident and on the
undisputed testimony of respondent no. 1, the learned trial Judge had no difficulty in finding
established that the accident, in which respondent no. 1 was injured and his motorcycle a
total loss, occurred through the faute of respondent no. 2.

She, however, found the

averments of respondent no. 1 on the existence of a relationship of commettant and

prpos between either of the appellant or respondent no. 3 on the one hand and
respondent no. 2 on the other had not been established. She consequently found that the
liability of the appellant and/or respondent no. 3 as commettants of respondent no. 2 had
not been proved.
The learned trial Judge went on to consider the alternative claim of respondent no. 1
against the appellant and respondent no. 3, that is, whether at the time of the accident either
one or both of them had la garde of the car. After making reference to Franois Terr,
Philippe Simler, Yves Lequette Droit Civil Les Obligations 5e dition paragraph 756
on the legal principle applicable to la garde de la chose and after considering the evidence
placed before her and the submissions made on behalf of the appellant, she found that at
the time of the accident the appellant was the registered owner of car CM 135 and was
therefore presumed to have its custody. She pointed out that this presumption has remained
unrebutted as the appellant had failed to adduce any evidence in rebuttal.

She then

concluded that only the appellant as the registered owner of car CM 135 at the time of the
accident had la garde of the car. She thereafter decided on the quantum of damages
which the appellant and respondent no. 2 had to pay jointly and in solido to respondent no. 1
and ordered accordingly.

The nine grounds of appeal challenge the findings of the learned trial Judge quoad
the appellant only.
Ground 1 reads:
After having held that the accident happened through the faute of
Respondent No. 2 (then Defendant No. 3), the Honourable Judge erred in law
in considering the issue of la garde which had been specifically pleaded in
the alternative, and this, despite the elaborate submissions of Counsel for the
Appellant, which the Honourable Judge failed to address and adjudicate
thereon.
Under this ground, it was submitted by learned Senior Counsel that the first
respondents cause of action, as per his amended plaint with summons dated 18 July 2006,
against the appellant and the second and third respondents was grounded on faute.
Learned Senior Counsel contended that once the learned trial Judge had found faute
proved against the driver, and no proof of the existence of a relationship of commetant and
prpos between the appellant and the driver, she was precluded from pronouncing herself
on the liability of the appellant as gardien de la chose under article 1384-1 of the Civil Code
as this was specifically pleaded in the alternative.
It was also submitted that after having found that the accident occurred through the
faute of respondent no. 2, the learned trial Judge erred in law when she held that: there
remains accordingly the issue whether either of defendant no 1 or defendant no 2 or both of
them had la garde of the car at the time of the accident. According to learned Senior
Counsel, the learned Judge would have been justified in her finding had respondent no. 1
failed in his cause of action against the appellant and respondents nos. 2 and 3.
It was further submitted that respondent no. 2 having admitted that he was driving the
car at the material time and was responsible for the accident, and not having contested the
averments that he had the custody of the car, the only reasonable inference was that
respondent no. 2 had also the custody of the car.

This, so submitted learned Senior

Counsel, was an added reason in support of his contention that the learned trial Judge erred
in law when she considered the liability of the appellant under the alternative claim.
Learned Senior Counsel conceded that there was no authority in support of his
propositions but added that in such a case we should stand guided by the dictionary
meaning of the word alternative. He also referred us to notes 77, 79 and 80 of Rpertoire
de Procdure Civile, Encyclopdie Dalloz, Tome III, J.C. Appollon v L.A. Nobin & Ors
[2012 SCJ168] in which are cited these notes from Encyclopdie Dalloz, Procdure, Vo.

Jugement and to Odgers Principles of Pleading and Practice, 21st Edition at pages 32,
165 and 373.
Cases of motor vehicles road accident may give rise to different causes of action
under articles 1382 to 1384 of the Civil Code as different parties may be involved, such as
the driver, the owner/custodian and the insurer of the vehicle.

The driver may not

necessarily be the owner/custodian of the vehicle or vice versa.

There may also be

situations where the driver is a prepos of the owner/custodian of the vehicle. The law
gives the injured party the liberty to choose whether to sue all or anyone of these parties and
in what capacity. If the injured party elects to bring an action against one party only which
includes an alternative cause of action and the Court is satisfied that the plaintiff has made
out his case, it stands to reason that the Court will not consider the alternative cause of
action. But where there is more than one defendant and each one is sued in a different
capacity, we hold the view that the trial Court is perfectly entitled to consider the plaintiffs
case against each defendant as Articles 1382 and 1384 are cumulatifs as opposed to
alternatifs.
In the present case, the first respondents cause of action against the appellant, the
second and third respondents is set out at paragraphs 6 and 7 of the amended plaint dated
18 July 2006, and they read as follows
6. The Plaintiff avers that the said accident occurred due to the faute,
negligence and/or imprudence of the driver of vehicle no CM 135, the
Defendant no 3, and consequently, the Defendant no 1 and/or the
Defendant no 2, as commettant of the tortfeasor, and the Defendant
no 3, as tortfeasor, are bound in law to make good to the Plaintiff the
damages sustained by the latter.
7.

In the alternative, the Plaintiff avers that at the time of the said accident,
vehicle no CM 135 was under the custody of its owner and/or driver and
consequently, the Defendants, as gardiens of vehicle no CM 135, are
bound in law to make good the damages and prejudice sustained by the
Plaintiff.

Paragraph 6 above discloses two causes of action, one under article 1382 of the
Civil Code against respondent no. 2, the driver of the vehicle, and the other one under
article 1384 of the Civil Code against the appellant and respondent no. 3 in their capacity
as commettant of respondent no. 2. The learned Judges findings of faute against
respondent no. 2 did not preclude her from considering the liability of the appellant and
respondent no. 3 as commettants of respondent no. 2. Having found the evidence not
consonant with the averments of a lien de prposition between respondent no. 2 and the

appellant and/or respondent no. 3, it was perfectly legitimate for the learned trial Judge to
consider the claim under paragraph 7 of the amended plaint - the alternative cause of action
of gardien of the said vehicle against the appellant and/or respondent no. 3.
Having found proved the liability of the appellant as gardien of the vehicle and
having also found faute proved against respondent no. 2, the learned trial Judge was right
to hold both appellant and respondent no. 2 jointly and in solido liable in damages to
respondent no. 1.
Ground 1 has no merit and accordingly fails.
Grounds 2 and 5 were argued together and they read:
2. In any case, the lower Court failed to consider that the Respondent No. 2
(then Defendant No. 3) had the custody of motor vehicle bearing
registration number CM 135 at the material time and further failed to find,
on the basis of the pleadings and evidence before it, that the Respondent
No. 2 (then Defendant No. 3) in fact had the exclusive custody of the said
vehicle.
5.

The lower Court erred in law when it found that the Appellant (then
Defendant No. 1) had la garde of motor vehicle bearing registration
number CM 135 at the material time in the teeth of the admissions of the
then Defendant No. 2 (now Respondent No. 3) and Defendant No. 3
(now Respondent No. 2) as regards lusage et la direction of the said
vehicle.

In support of the above two grounds, it was submitted that the presumption that a
registered owner, which it was not disputed the appellant was, is also the custodian of the
vehicle can only operate in only two situations: (a) lorsquil est lui mme dtenteur de la
chose quil matrise effectivement ou (b) lorsquil exerce les pouvoirs dusage, de direction et
de contrle par lintermdiaire dun prpos. [vide ditions du Juris-Classeur 2002
Droit Rparation Responsabilit du fait des choses Article 1382-1386, Fasc.
150-20, B. - Garde et proprit, Prsomption de garde, page 6].
Relying on the above authority, learned Senior Counsel submitted that on the basis
of (a) respondent no. 2s admission of faute, (b) the learned trial Judges findings of no
lien de prposition between the appellant and respondent no. 2 and (c) Documents F, G
and H, the appellant could not have been presumed to have la garde of the vehicle.
Therefore, so submitted learned Senior Counsel, the learned trial Judge wrongly concluded
that only defendant no 1 as the registered owner of car CM 135 at the time of the accident
had la garde.

In determining the issue of custody, the learned trial Judge took into consideration
the evidence of the representative of the Road Transport Commissioner (the RTC) to the
effect that as at 13 September 2001 (date of the road accident), the appellant was the
registered owner of the vehicle and that ownership was only transferred to respondent no. 3
on 10 June 2004. She also took into account that neither was there a joint notification of the
change of ownership by the registered owner and the new owner to the RTC nor any
application made for a certificate of a gage sans dplacement in accordance with section
6(1)(a)(i) of the Road Traffic Act (the Act).

The learned trial Judge further took into

consideration evidence to the effect that the appellant did not inform the Mauritius Union
Assurance of any sale of the car but that at the expiry of the insurance policy which was not
renewed, the vehicle was insured from 16 March 2001 to 15 March 2002 with D. Jory & Co
Ltd and that the insurance policy holder was the appellant.
Based on the above and applying the legal principle governing la garde de la chose
as explained by Franois Terr (supra) that: le propritaire est prsum gardien de la
chose unless he establishes par tous moyens quau moment de laccident, il avait cess
dtre gardien, the learned trial Judge concluded that the appellant had failed to rebut that
presumption and he had accordingly la garde of the vehicle in the absence of evidence that
he no longer had lusage, la direction et le contrle of the car at the time of the accident.
We have considered the submissions of learned Senior Counsel for the appellant
and the authorities cited in support thereof but see no reason to disturb the findings of the
learned trial Judge with which we fully agree. As rightly pointed out by the learned trial
Judge, the appellant on whom lay the onus of rebutting the presumption that he had the
custody of the vehicle has failed to adduce evidence in rebuttal. The learned trial Judge was
fully justified in applying the presumption and her conclusion that custody of the car had
remained with the appellant is unimpeachable. The learned Judge was equally right not to
attach any weight to the entries in the Register of Motor Vehicles kept by the National
Transport Authority (the NTA) that respondent no. 3 came into possession of car CM 135 on
18 January 2001 as she accepted the evidence of the RTCs representative that such
information could not be verified.
The further submission of learned Senior Counsel for the appellant that the learned
trial Judge failed to consider that respondent no. 2 had exclusive custody of the car is
equally devoid of merit for as correctly submitted by learned Counsel for respondent no. 1,
this was not an issue which was either pleaded by the appellant or substantiated before the
learned trial Judge.

Grounds 2 and 5 must also fail.

Grounds 3 and 4 were also argued together and they read as follows:
3. The lower Court erred in holding that no credible weight could be
attached to the Register of Motor Vehicles kept by the National Transport
Authority and/or a certified extract thereof and/or sworn evidence from
the Representative of the National Transport Authority to establish and
prove the effective transfer of possession of vehicle bearing registration
number CM 135, especially after having inevitably acted on that same
evidence to find and hold that the Appellant (then Defendant No. 1) was
the registered owner of the said vehicle at the material time.
4.

The lower Court failed to attach any weight to the valid deed of sale
and/or sale transaction between the Appellant (then Defendant No. 1)
and Respondent No. 3 (then Defendant No. 2), establishing that there
had been an effective transfer of ownership and possession of motor
vehicle bearing registration CM 135 as at 18 January 2001 so that the
Appellant could not be and in fact was not the presumed guardian of
motor vehicle bearing registration CM 135 at the material time.

The submissions advanced in support of the above grounds were that, had the
learned trial Judge given full weight to Documents G and H, she would necessarily have
concluded that the effective transfer of possession of the vehicle to respondent no. 3 had
taken place on 18 January 2001 and for that reason the appellant could not have been the
gardien of the said vehicle at the time of the accident.
It was not disputed that as at 13 September 2001, the appellant was the registered
owner of car CM 135. In her analysis of the evidence and Documents F, G and H, the
learned Judge took into account that there was non-compliance of section 6(1)(a)(i) of the
Act by the appellant and the new owner of car CM 135. She accepted the evidence of the
RTCs representative that the information in Document G that respondent no. 3 came into
possession of the car on 18 January 2001 could not be verified. She also took into account
that ownership of the car was only transferred to respondent no. 3 on 10 June 2004,
more than three years after the alleged sale and after the occurrence of a serious road
accident involving the car before concluding that no credible weight could be attached to
Document G.
It is appropriate that we set out the contents of Documents F, G and H and section 6
of the Act. Document F is a letter dated 6 May 2005 from one Mr Luckhun on behalf of the
RTC addressed to the instructing attorney of respondent no. 1 in reply to a letter dated
30 March 2005 which the attorney had sent to the NTA. In his letter Mr Luckhun confirmed
that the NTA did not receive any notification of sale of vehicle CM 135 from the appellant.

It is also stated therein that the transfer of ownership from the appellant to respondent no. 3
was effected on 10 June 2004 and that as at 13 September 2001, the appellant was the
registered owner of the said vehicle.

Document G is a certificate from the Register of Motor Vehicles with particulars of the
vehicle, name of its previous and new owners and also the date of possession, date of
registration and date of transfer. The date of possession is given as 18 January 2001 and
the date of transfer as 10 June 2004.
Document H is a copy of a duplicate of a deed of sale of vehicle CM 135 dated
18 January 2001 witnessing the sale of the vehicle on 18 January 2001 to respondent no. 3.
Section 6(1)(a)(i) of the Act provides:
Change of Ownership
(1) (a) Subject to subsections (3) and (4), on the change of ownership of a
motor vehicle or trailer
(i) the registered owner and the new owner shall forthwith jointly give
notice by registered letter to the Commissioner of the change of
ownership, of the date of the change and of the name and address of
the new owner. (Underlining ours)
Although Document G was an official document from the NTA, the learned trial Judge
cannot be blamed for not attaching any weight to the particulars of the date of possession as
this was an information which, according to the evidence of the RTCs representative,
emanated from the vendor of the vehicle and was not gathered as a result of an independent
inquiry by the RTC. In so far as Document H was concerned, this was a document following
an alleged sale of the vehicle on 18 January 2001 from the appellant to respondent no. 3 but
in respect of which neither the appellant nor respondent no. 3 was called to give evidence.
On the other hand, it was quite proper for the learned Judge to act on the particulars
regarding the date of transfer of ownership as there was evidence that not only the
registered owner and the new owner had failed to comply with the provisions of section
6(1)(a)(i) of the Act but that also it was only on 10 June 2004, more than three years of the
alleged sale of the car, that formalities for the transfer of ownership of the vehicle were
effected at the NTA.

We therefore see no reason to disturb the findings of the learned trial Judge.
Grounds 3 and 4 must equally fail.
Ground 6 reads as follows:
The lower Court erred in holding that the registered owner and the new
owner did not apply for a certificate of gage sans deplacement as required
by section 6(1)(a)(i) of the Road Traffic Act when this is not the case.

We note that at the hearing of the appeal no submissions were offered in support of
this ground. We have looked at the skeleton arguments but have not been convinced that
there is any merit in the submissions that the learned trial Judge erred when she held that
Furthermore as regards the change of ownership of car CM 135, the registered owner
and the new owner did not jointly notify the Road Transport Commissioner and apply for a
certificate of gage sans dplacement as required by section 6(1)(a)(i) of the Road Traffic
Act In view of the provisions of section 6 of the RTA and the evidence of the RTCs
representative of non-compliance of that section by the appellant and the buyer of car
CM 135, the finding of the learned Judge cannot be assailed.
Ground 6 is therefore without merit.
We now turn to ground 7 which reads as follows
The lower Court erred in making an award for loss of earnings in excess of
the amount prayed for in the Plaint with Summons and failed to take into
account the pension which the Respondent No. 1 (then Plaintiff) admitted
receiving since 2001 in respect of his incapacity in the computation of the
amount to be awarded in respect of loss of earnings.
This ground of appeal refers to the claim of Rs 189,000 for loss of earnings from
13 September 2001 to 13 December 2003 under item (c) of paragraph 5 of the amended
plaint. There was also a claim for future loss of earnings under item (d) in the amount of
Rs 840,000. In assessing the amount of damages to be awarded under item (c), the learned
trial Judge acted on the unrebutted evidence that prior to the accident, respondent no. 1 was
earning a monthly salary of Rs 7,000. She also accepted that, as a result of the injuries
sustained in the accident especially to his right arm, respondent no. 1 has completely lost
the function of his right arm leaving him with a permanent incapacity of 70% and was
satisfied that respondent no. 1 had no prospect of being in gainful employment. She further
took into account that respondent no. 1 was 46 years old at the time of the accident and
would have attained retirement age in 2014.

10

Based on the above, she awarded respondent no. 1 a sum of Rs 1,092,000 made up
as follows (Rs 84,000 (Rs 7000 x 12) x 13). She also added that in view of the award made
under item (c), there was no need for her to consider item (d).
We do not share the views of learned Senior Counsel that in awarding an amount of
Rs 1,092,000 under item (c) and in discarding item (d), the learned Judge has awarded more
than what was claimed by respondent no. 1. In Armansin v Bassawon [1971 MR 64], the
Court held that when the plaintiff has been incapacitated as a result of an accident, he
should be entitled to full compensation for loss of earnings resulting from such incapacity
only when he proves to the court's satisfaction that he has actually suffered such loss, or
that there is a certainty that he will suffer such loss in future [vide also Manuel v
Government of Mauritius [1971 MR 112].
In the present case, the learned Judge was satisfied that by reason of his physical
incapacity due to the accident, respondent no. 1 had actually suffered a loss of earnings;
that there was evidence that he would suffer such loss in the future; and that such loss was
computable. We do not see anything amiss in her calculation of respondent no. 1s loss of
earnings, i.e. from the time of his accident until his retirement age, and do not agree that in
assessing the damages under item (c), the learned Judge has acted ultra petita.
Another submission made was that the learned Judge ought to have deducted the
amount of invalidity pension which respondent no. 1 has been receiving since 2001 in
respect of his incapacity. We have not been favoured with any authorities in support of this
proposition.
In Boodhoo v Ramsamy & Anor [1985 MR 1], it was held that sums paid under the
National Pensions Act cannot be equated to sums received under an insurance policy and
are statutory benefits. The Court referring to a passage from Max Le Roy, Lvaluation du
prjudice corporel, 7th Edition, at page 49 reached the decision that sums paid under the
National Pensions Act are avantages statutaires which cannot be taken into account in the
assessment of damages.
In V.P. Naran & Anor v Mon Tresor Mon Desert Ltd & Anor [2007 SCJ 250],
the Court referred to the decision in Boodhoo on the French Loi du 5 juillet 1985 by virtue of
which various organs of the State, (scurit sociale, caisses autonomes, Etat ayant vers
des prestations ses agents, etc.) can sue the tiers responsable to claim the payments
they had made to the victim. The Court went further and citing from Trait De Droit Civil Les Conditions de la Responsabilit, 2e Edition, 287, by Genevive Viney, Patrice

11

Jourdain, took the view that the jurisprudence in France has recognised that certain
payments made by tiers payeurs are in any case not deductible from the damages to be
awarded since they are
non indemnitaires par nature et par consquent intgralement cumulables
avec lindemnit due par le responsable. Cest le cas, par exemple de
lallocation aux adultes handicaps, et des prestations dassistance lies
des conditions de ressources comme, par exemple, le revenu minimum
dinsertion ou enfin des versements de caractre contractuel conscutifs aux
cotisations de la victime.
De mme, en cas de versements effectus en application de dispositions
statutaires ou conventionnelles dont lobjet consiste crer un avantage
spcial au profit des bnficiaires en cas de dommage corporel, on admet
que cet avantage ne doit pas priver lintress de tout ou partie de ses droits
contre le responsable. Genevive Viney, Patrice Jourdain, Trait De Droit
Civil Les Conditions de la Responsabilit, 2e Edition, 287. Les prestations
cumulables avec les dommages et intrts dus par le responsable.

The Court then held that, as opposed to contractual pension, the Invalids basic
pension, Carers Allowance and Child Allowance are in the nature of avantages statutaires
payable under the Act (National Pensions Act) and are, therefore, not deductible when
assessing the amount of damages
In the present case, the basic invalidity pension which respondent no. 1 has been
receiving under the National Pensions Act is an avantage statutaire and therefore not
deductible from the damages awarded.
Ground 7 must therefore fail.
Ground 8 reads:
The lower Court erred in its appreciation of the circumstances of the present
case and when it awarded interest at the rate of 15% as from 16 July 2006 on
material damages.
Learned Senior Counsel for the appellant relied on the chronology of events, which
we do not find necessary to recite, from the date of the lodging of the plaint on 24 February
2004 to 16 July 2014, the last date on which written submissions were filed by the parties. It
was submitted that in view of the chronology of events, the learned Judge ought to have
exercised her discretion and order payment of interest from the date on which the pleadings
were closed, which it was submitted was on 16 July 2014.

12

It is apparent from the court record that a first plaint with summons was lodged on
24 February 2004 and amended on 20 September 2005 and again amended on 18 July
2006. The case was heard on 14 October 2008, 7 May 2010 and then on 20 March 2012
and written submissions were filed on 9 and 16 July 2014. In between March 2012 and
July 2014, the case was called before the trial Court on numerous occasions and postponed
for diverse reasons including a motion by Counsel for respondent no. 1 to reopen latters
case in order to call the appellant on his personal answers (a course of action which Counsel
for respondent no. 1 would eventually abandon); a challenge before the Supreme Court by
way of judicial review of the trial Courts ruling granting that motion; and an unsuccessful
attempt by the parties to settle the case before the Mediation Division.
It is obvious that in deciding on which date interest of 15% should run, the trial Judge
considered the date on which the plaint was amended for a third time, except that she
referred to 16 instead of 18 July 2006, most likely a typo but of insignificant effect. Be that
as it may, we however disagree with the submissions of learned Senior Counsel that
pleadings were closed on 16 July 2014, date of the filing of the written submissions.
Pleadings were obviously closed on 29 May 2007, after the appellant, the second and third
respondents had filed their respective defence on 26 October 2006, 13 March 2007 and 29
May 2007 to the third amended plaint of respondent no. 1.
In awarding interest, the trial Judge referred to section 197A of the Courts Act which
provides for interest to be paid at 15 per cent as from the day the action was started unless
the Court is satisfied that there are good reasons for ordering such payment from the date
on which the pleadings were closed, up to the date of payment. She also referred to the
decision of the Judicial Committee in Sakoor Dawood Patel & Ors v Anandsing
Beenessreesingh and SICOM Ltd [2012] UKPC 18 on what would be good reasons
namely that In the great majority of cases these good reasons will consist in the
absence from the originating plaint of sufficient particulars, when taken together with other
knowledge available to the Defendants, to enable them to make a broad assessment of their
potential liability and concluded that the appellant and respondent no. 2 were well aware
of their potential liability as regards the material damages and awarded interest thereon at
the rate of 15% as from 16 July 2006.
We are unable to say that in awarding interest as from the date of the third amended
plaint, the learned Judge made a wrong exercise of her discretion.
Ground 8 accordingly fails.

13

Ground 9 reads:
The lower Court erred in law in awarding interests at the legal rate as from
16 July 2006 on moral damages.
Under ground 9, it was submitted that the learned trial Judge was wrong to have
awarded interest at the legal rate from the date of closing of the pleadings until final payment
on the amount of Rs 300,000 given that interest cannot be awarded on moral damages in
respect of any period prior to the date of judgment and, therefore, the order for payment of
interest at the legal rate from 16 July 2006 on moral damages should be quashed. Learned
Counsel relied on Swan Insurance Co Ltd v Saindrenan & Anor [2015 SCJ 30] in support
of his proposition.
Learned Counsel for respondent no. 1 has fairly conceded that interest on moral
damages ought to have been awarded from the date of judgment, that is, 29 October 2014
and not from the date of closing of the pleadings as stated by the learned trial Judge in her
judgment.
We agree that on the authorities of Patel and Swan, the learned Judge wrongly
awarded interest on moral damages from the date of the close of pleadings. We accordingly
amend the judgment of the learned Judge by substituting the words as from the date of
closing of the pleadings with as from the date of judgment.
The appeal is otherwise dismissed with costs.

K.P. Matadeen
Chief Justice

N. Devat
Judge
15 December 2016
Judgment delivered by Hon. N. Devat, Judge
For Appellant

Mr J. Gujadhur, Attorney-at-Law
Mr G. Glover, SC

14

For Respondent No. 1

Mrs Z. Sassa-Nooraully, Attorney-at-Law

Mrs S. Mootien-Roghbeer, of Counsel

For Respondent No. 3

Mr D. Luchmun, Attorney-at-Law
Mr R. Bhoyroo, of Counsel