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Kolya v Motor Vehicles Insurance Limited [2002] PGDC 21; DC263 (29 November 2002)

DC263

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 64 OF 2002

BETWEEN

Nish Kolya
Complainant

V

Motor Vehicles Insurance Limited
Defendant

Mt. Hagen: Appa, P.M.
2002: 8th & 11th October, 29th November

RULING

Civil jurisdiction – In the matter of an application pursuant to section 54 (6) (B) of the Motor Vehicles (Third Party Insurance) Act, Ch. No. 295 for extension of time to give notice of claim – "efficient cause".

Cases cited
Rundle v. MVIL [1988-89] PNGLR 20

COUNSEL
P. Kak for the applicant/Complainant
V.A. Mirupasi for the Respondent/Defendant

29th November, 1999.

APPA PM. This is an application for an extension of time to lodge claim for alleged injuries received in a Motor vehicle accident which occurred on or about 18th November 1997 (five years now). The complainant himself had filed an affidavit sworn on 5th September 2002 giving reasons why he was not able to give notice in time. He basically says that he was an uneducated villager who knew nothing about giving notice and to claim compensation for his injuries and that he had no money to engage a lawyer to act for him. He also stated that he had learnt from his now Dowa lawyers that other victims of the same accident were granted extension of time to give notice by the Insurance Commissioner so he should be no exception.

Defence objected to the application and relied on Hegoi Igo’s affidavit sworn on 9th October 2002. An interesting matter raised on paragraph two of his affidavit was that the applicant was not identified as a victim of that accident either on the Police Road Accident Report on the 32 list of victims. I have carefully studied those annexures and compared with copies of Police Road Accident Reports annexed to the applicant’s affidavit and found that the applicant’s name did appear in the copy of the Police Road Accident Report he produced but he was not listed as a victim in the Police Road Accident Report and the victims list produced by Mr. Igo. I can’t understood how this could happen because those documents produced by Mr. Igo on behalf of MVIL were the very same ones or supposed to be the same documents sent to them by the applicant’s lawyer.

Leaving that aside for the moment, we now refer to the requirements that are to be satisfied. They were clearly set out in Rundles case. Rundles v. MVIL [1988] PNGLR 20. The Supreme Court held that "sufficient cause" involved: -

(a) An explanation for the delay in giving notice within time.

(b) Establishing an arguable case

(c) Showing that no prejudice would be caused to MVIL.

We have heard the explanation given by the applicant for the delay in giving notice within time. I am not satisfied with the explanation given. He had not intention of making a claim until he heard from others. He made no attempts to find out at early stage. Ignorant of law is not excuse.

O the issue of whether there is an arguable case, this court is not bound to apply strict rules of evidence in such application under section 4(6), refer to Korowa Pup v. MVIL [1996] N1415. This is an issue to be decided at trial proper. However, I am still puzzled by the fact that applicant was not identified and included as a victim of the accident in all of the (Police) document produced in court by the parties. There ought to be explanation on it. At this stage, I give the benefit of doubt to the defendant.

On the issue of prejudice, its now almost five (5) years since the alleged accident occurred so in my view, with the lapse of time and changes, it is likely that MVIL may be prejudiced.

I therefore make the following orders:-

(a) The application for extension of time to give notice of claim to MVIL is refused.

(b) Cost be in the cause.

Paulus M. Dowa Lawyers: Complainant
Mirupasi Lawyers: Defendant