N1122

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 1285 OF 1990

IMAMBU ALO
Plaintiff

-V-

MOTOR VEHICLES INSURANCE (PNG) TRUST
Defendant

Wabag: Brown J.
1992: 30 Nov & 7 Dec

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 Vehicle (Third Party Insurance) Act - Sufficiency of proof.

Motor Vehicles (Third Party Insurance) Act ch 295 ss 49,50,54(1)

Motor Traffic Act ch 243 s 42.

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 circumstances in which information about these things was given the policeman.

Held: 

(a) 	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.

(b) 	In the absence of certificates of registration or insurance, the conflict of evidence left the Court with no basis for a presumption of insurance.

Hearing

Writ of Summons

Mr M. Thoke, for the plaintiff
Mr A. Kandakasi, for the defendant

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 the 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 loosing 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 referred to as the M.V.I.T) leave to amend its defence at the trial to allege contributory negligence. In its defence filed, the M.V.I.T 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 -

"(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 agent. Further he said he registered it at B.M.S. (Bureau of Management Services) 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 M.V.I.T and that they received an insurance premium from this man in respect of that vehicle.

The driver also said he hired the car 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 but 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 licensed to drive a passenger motor vehicle, but admitted running the Toyota as a P.M.V. The driver did pay customary compensation in an amount of K1,300.00 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 Traffic Registry Police Station 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 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, 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 Bepiwan Ambon v. M.V.I.T. (unreported decision given at Wabag November 1992) 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 M.V.I.T 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. Here 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 Garo Kei v. MVIT (unreported N1090) 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 Vehicle (Third Party Insurance) Act ch. 295 provides for liability of the M.V.I.T. 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.

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Lawyer for the Plaintiff: Michael C. Thoke Lawyers
Lawyer for the Defendant: Young & Williams Lawyers