The court upheld the insurer's declaratory order, ruling that the plaintiff failed to prove fraud, thus the insurer is not liable for the judgment sum.

JUDGMENT

(Post-Trial)

Kenneth St James J:

Prelusion

[1] There was a motorcycle accident. The plaintiff (P) filed a suit against the rider and owner of the other motorcycle. The rider and owner of the other motorcycle were insured by the insurer (D).

[2] D (insurer), by the provision of s 96(3) of the Road Transport Act 1987 ( RTA ), applied for a s 96(3) declaratory order to declare that the contract (policy) of insurance between D and the rider and owner of the motorcycle was void and unenforceable. The Kuala Lumpur High Court granted the declaratory order.

[3] The effect of the s 96(3) Declaratory Order is that D (the insurer) does not have to pay the judgment sum, even if the rider and owner of the other motorcycle is found liable for tort against P.

[4] P now, after the event, filed this suit, in the Penang High Court , to impeach (challenge) the validity of the s 96(3) Declaratory Order, on the ground of fraud (on the part of the D (insurer)).

[5] Should the s 96(3) declaratory order be set aside or should it be sustained?

Chronology Of Pertinent Facts And Proceedings

[6] Foremost, I set out the pertinent facts and proceedings that are pertinent to this suit.

[7] 9 February 2016 — Mohd Fadzli Mohd Salleh (Fadzli) lodged his 1st police report, stating that he was in an accident on 7 February 2016. Fadzli was riding motorcycle PHF 2940 (Fadzli's motorcycle) when he had an accident with P and his motorcycle PLS 4299 (P's motorcycle). Fadzli did not fall, but P fell.

[8] 9 June 2017 — P filed the personal injury (tort) suit in Georgetown Magistrates Court (MC) Civil Suit PA-A73KJ-513-06/2017 (MC Suit 513). P sued the owner of Fadzli's motorcycle: Normah Hashim (Normah), and the rider of the motorcycle: Fadzli. Fadzli's motorcycle was insured with D.

[9] 19 October 2017 — D appointed the loss adjusters: Darmani Adjusters & Investigators (M) Sdn Bhd (Adjusters).

[10] 21 October 2017 (one year and eight months after his 1st police report) — Fadzli lodged his 2nd police report (Corrective Report). In the Corrective Report, Fadzli stated that, actually, he was not involved in the accident that occurred on 7 February 2016 referred to in his 1st police report. He averred that a friend asked him to lodge the 1st police report to make a false insurance claim.

[11] Note: Fadzli lodged this Corrective Report (dated 21 October 2017) about four and a half months after MC Suit 513 was filed (on 9 June 2017). It was likely that by this time (October 2017), he had known that he was made a defendant in MC Suit 513.

[12] 13 November 2017 — Normah lodged a police report stating that Fadzli's motorcycle was not involved in the accident on 7 February 2016.

[13] 24 November 2017 — D (insurer) filed an application to intervene in MC Suit 513.

[14] 12 December 2017 — D filed an application for what I will call a s 96(3) Declaratory Order, through Kuala Lumpur High Court Originating Summons No WA-24NCC-557-12/2017 (section 96(3) Declaration Suit).

[15] A s 96(3) Declaratory Order effectively declares that the contract (policy) of insurance between D (the insurer) and its insured is void and unenforceable. This means that if a judgment is entered against the insured in the personal injury tort suit — D (the insurer) does not have to pay the judgment sum ordered to be paid by the insured in the personal injury tort suit.

[16] P's grounds in the s 96(3) Declaration Suit include the following averments, supported by the following documentary evidence-

(1) Fadzli's 1st police report dated 9 February 2016 stated that he was involved in the accident on 7 February 2016 with the plaintiff in MC Suit 513 ie P here;

(2) But Fadzli's Corrective Report dated 21 October 2017 (which I reiterate — was lodged more than a year and eight months later) stated that "actually", he was not involved in the accident on 7 February 2016 between Fadzli's motorcycle and P's motorcycle. He also admitted that he was asked by a friend to make the 1st police report "for the purpose of making a