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Alo v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 67; [1992] PNGLR 487 (7 December 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 487 - Imambu Alo v MVIT�

[1992] PNGLR 487

N1122

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IMAMBU ALO

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Wabag

Brown J

30 November 1992

7 December 1992

EVIDENCE - Motor vehicle accident - Claim for damages - Claim against authorised third party insurer - Absence of certificate of insurance and registration - Conflict of evidence - Necessity to prove elements of statutory prerequisites to claim under the Motor Vehicles (Third Party Insurance) Act - Sufficiency of proof.

NEGLIGENCE - Motor vehicles accident - Claim of contributory negligence at trial without notice rejected - Negligence of driver noted.

Facts

By statement of claim, the plaintiff seeks to recover damages for personal injuries suffered as the result of the negligent driving of one Elias Etalim. That driver gave oral evidence of a recent purchase of a motor vehicle at auction from P.T.B. Wabag. No receipts or terms of sale were elicited on hearing. While asserting that the vehicle was registered and insured, no certificates were produced from the proper authorities. A policeman gave evidence that his compilation of his motor traffic accident report setting out details of registration and insurance of the accident vehicle relied upon what he was told by the driver afterwards. There was a clear conflict of evidence between the driver and the policeman about the particulars of registration and insurance.

Held

N1>1.������ The plaintiff has failed to make out his case to show that the vehicle was registered and insured with the defendant, as alleged in his statement of claim.

N1>2.������ The fact of registration and insurance required strict proof, Ambon v Motor Vehicles Insurance (PNG) Trust (1992) N1116.

N1>3.������ In the absence of certificates of registration or insurance, the conflict of evidence left the Court with no basis for a presumption of insurance.

Cases Cited

Ambon v Motor Vehicles Insurance (PNG) Trust (1992) unreported N1116.

Kei v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 195.

Counsel

M Thoke, for the plaintiff.

A Kandakasi, for the defendant.

7 December 1992

BROWN J: This plaintiff aged 35 claims damages for personal injuries suffered by the negligence of a driver of a motor vehicle. The accident is alleged to have occurred on or about 30 March 1990 on the Sirunki road off the Highlands Highway near Laiagam, Enga Province. I should say that I am satisfied that the accident was caused by the driver's negligence, for he gave evidence of losing control when driving too fast, whereupon the vehicle overturned, throwing the plaintiff, who was a passenger on the tray of the utility, out onto the roadway.

I refused the defendant (hereinafter Trust) leave to amend its defence at the trial to allege contributory negligence. In its defence filed, the Trust denied the accident. Hence, it is inappropriate at the trial to now say, on the other hand, if there was an accident, the plaintiff was partly to blame for his injuries. If the fact of the accident was merely "not admitted", putting the plaintiff to proof, then an amendment seeking to allege contributory negligence may not come as such a surprise. But here, without notice, the defendant cannot now make that assertion. The plaintiff would be unfairly prejudiced at this late stage. He comes to Court to prove issues on the pleadings, but cannot expected to be ready to face issues not even raised obliquely by the defence.

I, consequently, refused to allow the amendment to the defence and the trial proceeded.

In his statement of claim, the plaintiff alleged:

N2>"(2)���� The plaintiff is a businessman aged about 25 years old, comes from Taiteges Village, Kandep, Enga Province and his claim is for injuries caused to him by use of motor vehicle Reg No AFR-605 insured by the defendant".

The issues raised then are the fact of registration and insurance of the vehicle by the Trust. These were denied by the Trust in its defence.

Now the driver, Elias Etalim of Tagui village gave evidence. He says he bought the vehicle a week before at an auction sale at P.T.B. yard Wabag. It was a white Land Cruiser, but he could not recall its registration number, although it had number plates. He said he registered it at Moku Company, an insurance agent. Further, he said he registered it at B.M.S. Wabag. Moku gave him a receipt, which he showed to the police. The police gave him a paper, which he stuck to the glass of the vehicle. At the time of the accident, he says, the glass was broken and onlookers took the sticker away, as well as several documents in the vehicle given him by B.M.S. No receipt was tendered in evidence. No evidence was brought of Moku to say they were insurance agents for the Trust and that they received an insurance premium from this man in respect of that vehicle.

The driver also said he let the car on hire to the plaintiff, and I find that he did. He says that after the accident he was charged by the police, bailed and released. It was not clear what happened in relation to the police charge. The plaintiff says he was released but did not recover his bail money. In any event, nothing turns on the issue of a conviction or not, for the driver admitted his negligent driving in this Court. The driver was not licenced to drive a passenger motor vehicle (PMV), but admitted running the Toyota as a PMV. The driver did pay customary compensation in an amount of K1,300 and 17 pigs.

Sergeant Kapilya Kalo of the traffic section Wabag was called. He investigated the accident. He says he obtained the registration certificate and insurance policy particulars from Elias, the driver. He says registration details were formerly kept at the Police Station Traffic Registry, but since some 3 years ago, have been the responsibility of the B.M.S office. He also said that he checked and confirmed registration at the B.M.S. office. The vehicle was sighted at the police station yard.

I asked the sergeant with whom he would check insurance details. He answered that he would check with the person involved, the driver and owner. Most of them produce the insurance papers to the police station. "When we don't see the insurance and registration certificate from the driver and owner", he said, "we go to the Traffic Registry office, B.M.S. and check with the registry clerk and obtain information from him. But we didn't have to do this, on this accident. Elias brought his papers".

The fact of change of ownership goes to evidence of purchase. While I may accept the evidence of Elias about a purchase at auction, the fact of registration and insurance goes to a document. No document has been produced.

I said in Ambon v Motor Vehicles Insurance (PNG) Trust (1992) unreported N1116 that the fact of registration and insurance required strict proof. While certificates could easily have been obtained in this case from the B.M.S., none had been forthcoming.

In Ambon's case, I said that other evidence on point, in the circumstances of the case, may be admissible. Here, the plaintiff seeks to rely on the particulars of registration and insurance set forth in the motor traffic accident report. This was clearly completed by the sergeant on information given him by the driver. Yet the driver gives a different version of events. He says he lost the documents. In this case, in the absence of proper certificates from the relevant authorities, (the B.M.S. for registration and the Trust for insurance), I am not prepared to make findings in favour of registration and insurance, even on the balance of probabilities. The conflict in evidence between the driver and the policeman leaves me such that, even on the civil onus, I cannot be satisfied.

This case clearly shows the problems associated with reliance on a motor traffic accident report for proof of registration and insurance. The policeman says he put in the details from what he was told by the driver. No certificates were produced. In effect, the assertion made to the policeman is placed before this Court, by virtue of the written traffic report as evidence of the truth of the matters stated. It cannot be. In Kei v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 195, I refused to allow tender of a police accident report in the face of objection, when the policeman was not called. Once the document is in, it is evidence of the matters in it. It is, by its nature, compiled on hearsay most of the time and is not the best evidence. Clearly, it sounds a warning where certificates from the proper authorities are not obtained. The vehicle was used for hire. Particular registration requirements apply pursuant to the Motor Traffic Regulations. Consequently, we do not know if this vehicle complied with the requirements and was registered, or not.

Section 54(1) of the Motor Vehicles (Third Party Insurance) Act Ch 295 provides for liability of the Trust in certain circumstances. Sections 49 and 50 of that act deal with insurance cover and the requirement for such cover before registration of a vehicle may be effected. None of these aspects have been addressed. I am not satisfied on either registration or insurance.

Consequently, the plaintiff has not discharged the onus of showing that the defendant is the authorised third party insurer of the vehicle in question, and the claim must fail. There shall be a verdict for the defendant with costs.

Lawyer for the plaintiff: Michael C Thoke Lawyers.

Lawyer for the defendant: Young & Williams Lawyers.