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2020 MarsdenLR 2098
HIGH COURT MALAYA SHAH ALAM
ETIQA TAKAFUL BERHAD – Appellant
Versus
CHONG MENG KOOI & ANOR – Respondent
[Civil Appeal No: BA-11ANCVC-52-11/2018]
An insurer's liability under the Road Transport Act hinges on compliance with specific conditions including valid policy issuance and timely notice of claims, which were not met in this case.
Headnote:(A) Road Transport Act 1987 – Section 117 – Evidence – The court addressed the validity of JPJ's records as prima facie evidence, noting that it does not constitute a registration certificate. Sections 91 and 96 mandate conditions for insurer liability; no insurance or consideration was provided for the car after its sale. (Paras 9, 12, 14, 19, 29)
(B) The court highlighted that the lack of a delivered insurance certificate and failure to notify the insurer constituted grounds for striking out the action. (Paras 20, 32)
Facts of the case: The plaintiffs, after a car accident, sought indemnity from the defendant, claiming it was a co-insurer. However, it was determined that the defendant's insurance policy had lapsed upon the sale of the car. The magistrate's court dismissed the strike-out application, later appealed by the defendant.
Findings of Court: The court found that there was no valid insurance policy in effect during the accident and ruled that the claim lacked merit.
Issues: Whether JPJ's records hold evidential weight; the validity of the insurer's liability under RTA given the lack of insurance policy and breaches of statutory obligations.
Ratio Decidendi: The court ruled that insurance claims must meet specific conditions under the RTA, emphasizing the necessity of a valid policy and timely notifications to the insurer.
Result: Appeal allowed with costs.
JUDGMENT
(Appeal To High Court Against Refusal Of Magistrate's Court To Strike Out Suit)
A. Background
[1] I will refer to parties as they are in the Magistrate's Court (MC).
[2] The first plaintiff (1st Plaintiff) is the owner of a car with the registration No WRB 1110 (Car).
[3] Encik Nafizal Bin Ahmad (Encik Nafizal) had filed Klang MC Suit No: A73KJ-915-10/2016 against the 1st Plaintiff (Klang Suit). In the Klang Suit, Encik Nafizal alleged as follows, among others:
(1) on 12 February 2016, there was an accident on the road from Kuala Selangor to Klang which involved a motorcycle ridden by Encik Nafizal and the Car driven by the 1st Plaintiff (Accident); and
(2) the 1st Plaintiff's negligence had caused the Accident which resulted in personal injuries to Encik Nafizal and damage to his motorcycle.
[4] On 4 October 2017, Encik Nafizal and the 1st Plaintiff entered into a consent judgment in the Klang Suit (Consent Judgment). According to the Consent Judgment, among others:
(1) without any admission as to liability, the 1st Plaintiff shall pay to Encik Nafizal a total sum of RM55,000.00 which consists of general damages, special damages, interest and costs (Judgment Sum); and
(2) the Consent Judgment is recorded without any prejudice to the right of the 1st Plaintiff's insurer of the Car, the above-named second plaintiff (2nd Plaintiff), to claim an indemnity from the defendant (Defendant) as a "co-insurer" of the Car.
[5] The 1st and 2nd Plaintiffs (collectively referred to in this judgment as the "Plaintiffs") have filed this suit in the MC against the Defendant (This Action). In This Action, the Plaintiffs have alleged as follows, among others:
(1) the 2nd Plaintiff is an insurer of the 1st Plaintiff's Car who has paid the Judgment Sum to Encik Nafizal. Accordingly, the 1st Plaintiff's rights under the insurance policy with the 2nd Plaintiff have been subrogated to the 2nd Plaintiff (Subrogation);
(2) the Defendant is a co-insurer of the Car against whom the 2nd Plaintiff can claim an indemnity for half of the Judgment Sum, namely an amount of RM27,500.00 (Sum). The Plaintiffs conducted a search of the records of "Jabatan Pengangkutan Jalan" (JPJ) regarding the Car and JPJ's "Maklumat Insurans Kenderaan" stated that the Defendant was an insurer of the Car from 3 March 2015 to 2 March 2016 [JPJ's Record (Car Insurance)]. As such, the Plaintiffs claim in This Action for the Defendant to pay the Sum to the 2nd Plaintiff (due to the Subrogation).
[6] The Defendant applied to MC to strike out This Action (Defendant's Application) on the following grounds:
(1) the Defendant had insured the Car for the benefit of one Ms Thulasimani A/P Suppayah (Ms Thulasimani) for a period of time from 3 March 2015 until 2 March 2016 [Defendant's Policy (Ms Thulasimani)]; and
(2) Ms Thulasimani had sold the Car in June 2015 (before the Accident). Hence, the Defendant was not a co-insurer of the Car at the time of the Accident.
[7] The learned Magistrate dismissed the Defendant's Application with costs in the cause (MC's Decision). As such, the Defendant appeals to this Court against MC's Decision (This Appeal).
B. Issues
[8] The following questions arise in This Appeal:
(1) what weight should be attached to JPJ's Record (Car Insurance) under s 117 of the Road Transport Act 1987 ( RTA )?; and
(2) whether the Defendant is liable as an co-insurer of the Car to the Plaintiffs under ss 91(1), (4) and 96(1) RTA when:
(a) there is no insurance policy issued by the Defendant to the 1st Plaintiff regarding the Car within the meaning of ss 91(1)(a), (b) and 96(1) RTA ;
(b) a certificate of insurance in the prescribed form has not been delivered by the Defendant to the 1st Plaintiff as required by ss 91(4) read with s 96(1) RTA ;
(c) contrary to s 96(2)(a) RTA , the 1st Plaintiff did not give notice of the Klang Suit to the Defendant before or within 7 days after the commencement of the Klang Suit;
