An insurer can intervene in litigation before judgment against the insured, allowing for a complete determination of disputes as per Section 96(1) of the Road Transport Act 1987.

[1] This is the plaintiff's appeal against the decision of the learned Sessions Court Judge in allowing the insurer of the defendant (Kurnia Insurance (M) Bhd) to be added as a 3rd defendant pursuant to the insurer's application to intervene.

[2] The plaintiff filed a claim in the Sessions Court against the defendants for damages for personal injury arising out of an accident involving a motor car driven by the plaintiff and a motor lorry driven by the 1st defendant. The 2nd defendant was the owner of the said motor lorry.

[3] In her police report, the plaintiff said that motor lorry trade plate No W1671A collided into the rear of her motor car. The 1st defendant in his police report also stated that he was driving motor lorry trade plate W1671A.

[4] During the course of the trial, evidence shows that the said motor lorry carried different trade plates for the front and the rear. The front carried trade plate No W1671A and the rear carried trade plate No W1411A. Trade plate W1671A was insured by Kurnia Insurance while trade plate No W1411A was insured by Berjaya Insurance.

[5] In support of the application to intervene, Kurnia Insurance alleged that the 1st defendant had falsely stated in his police report that the trade plate of the motor lorry was W1671A. The application to intervene is basically grounded on an allegation of fraud.

[6] It was submitted by learned counsel for the appellant (plaintiff) that the learned Sessions Court Judge erred in law in granting the order. The essence of the submission for the plaintiff is that as it stands now the plaintiff has not yet got judgment against the defendants and therefore their insurer has no direct part to play in the proceedings.

[7] The plaintiff's submission is that the contract of insurance is between the Insurance Company and the owner of the said motor lorry; that the plaintiff is not privy to that contract; that under s 96(1) of the Road Transport Act (RTA) 1987 the plaintiff's right against the insurers only arises after the plaintiff has taken judgment against the insurers involved; that if there is no judgment against the insurers, then the plaintiff has no course of action against the insurer.

[8] It was further submitted for the plaintiff that even when the plaintiff has taken judgment against the insured of the insurer, the insurer has defences provided to it by s 96(2) of the RTA which are:

(a) that the plaintiff must prove that the Certificate of Insurance under s 91(4) of the RTA 1987 has been issued and delivered to the insured.

(b) that before or within 7 days of filing of proceedings the plaintiff has given notice to the insurer of the defendants.

(c) an execution of the judgment has been allowed.

(d) if before the happening of the event the policy had been cancelled.

[9] Learned counsel for the plaintiff relied heavily on the decision of Vincent Ng J (as he then was) in the case of Badruzamani Azmi v. Kurnia Insurance (M) Bhd, 2001 MarsdenLR 1675 where his Lordship said at pg 487:-

"It is my considered opinion that a vehicle insurer's liability under s 96(1) of the Act is a contingent statutory liability - a liability wholly and exclusively created by statute and contingent upon judgment obtained by the claimant. Thus, during the currency of the proceedings between the claimant and the insured, there are no issues - not even fraud - that could be pleaded or litigated until the strict liability provision under s 96(1) of the Act is triggered into operation upon conclusion of the trial. The insurer's rights are not prejudiced even if they are not, at this stage, allowed to be made a party since they are not at all in law precluded from pleading fraud