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2021 MarsdenLR 2528
HIGH COURT SABAH & SARAWAK SIBU
SYARIKAT TAKAFUL MALAYSIA AM BERHAD – Appellant
Versus
KIPRAWI SHAHNI & ORS (ENCL 1) – Respondent
[Orginating Summons No: SBW-24-1/1-2021]
The court ruled that the insurer's request for a declaration of non-liability is premature due to an ongoing liability case regarding passenger coverage under the insurance policy.
Headnote:(A) Road Transport Act – Section 91 – Insurance Law – Interpretation of insurance policy terms – The court denied a declaration of non-liability by the insurer regarding passengers, emphasizing that ongoing trials should determine whether passengers were covered. The insurer's claim was deemed premature as the underlying liability case remained unresolved. (Paras 27-29)
(B) Conflict of Interest – The court highlighted the appearance of a conflict due to the insurer's counsel also representing the insured party, raising issues about fair legal representation. (Paras 21-23)
Facts of the case: The plaintiff sought a declaration on the non-liability of an insurance policy concerning a passenger injured in an accident involving the insured vehicle, where the insured did not oppose the claim. (Paras 1-5)
Findings of Court: The declaration was disallowed as the determination of coverage was contingent upon the outcomes of an ongoing liability trial addressing facts about passenger status. (Paras 27-28)
Issues: The court considered whether the insurer could seek declarations while a related liability case was still ongoing. (Paras 17-19)
Ratio Decidendi: The court ruled that declarations regarding insurance coverage were premature while liability trials were unresolved, adhering to precedent set in Chu Chu's case. (Paras 27-29)
Result: Enclosure 1 is dismissed with costs to the 3rd Defendant.
JUDGMENT
(Enclosure 1)
Enclosure 1 Originating Summons
[1] The Plaintiff sought in encl 1 Originating Summons in substance:
"A declaration that the Contract of Insurance through Certificate For Private Car Takaful Tariff Policy Number VPP-V0958855-10- BRO-17 covering the period from 10 July 2017 to 9 July 2018 and the Schedule (hereinafter collectively referred to as "the said Private Car Policy") which covered a motorcar bearing registration No QRE1447 (hereinafter referred to as "the Insured Vehicle") for the period of 10 July 2017 to 9 July 2018 does not cover liability to passenger in respect of bodily injuries, loss and damages allegedly suffered by the 3rd Defendant as a result of an accident which occurred on 27 March 2018 at or about 6.40 pm. at or along Jalan Sibu-Tanjung Manis which involved a motorcar bearing registration No QSW2616 and a motorcar of a unit of Perodua Myvi 1.3SX(M) bearing registration No QRE1447 whereby the late MOHD HAZLEE BIN KIPRAWI (WN KP: 830904-13-5921) was driving the Insured Vehicle and the 3rd Defendant was being carried as a mere passenger on the Insured Vehicle and/or not being carried by reason of or in pursuance of a contract of employment at the time of the accident;
A declaration that the Plaintiff is not obligated and/or not liable to comply with any order and/or pay any contribution/indemnity or set off in respect of any damages, and interest to be adjudged or adjudged to the 3rd Defendant arising out and/or derived from the civil suit in the Sibu Magistrates Court Suit No SBW-A73KJ-40/9-2018 (MC 2) and/or any other claims which arises from the road accident which occurred on 27 March 2018 instituted by the 3rd Defendant against the 1st and 2nd Defendants."
Brief facts
[2] On the 27 March 2018 at about 6.40pm the 3rd Defendant was travelling as a passenger on the Insured Vehicle and was, for a payment, travelling towards Tanjung Manis to deliver a package, whereby the Insured Vehicle driven by the late Mohd Hazlee Bin Kiprawi "(the Deceased").
[3] When the Insured Vehicle reached Jalan Sibu -Tanjung Manis, it was involved in a road accident involving a motorcar bearing registration No QSW2616 which was driven by the 2nd Defendant.
[4] On the 6 January 2021 the Plaintiff engaged the firm of Messrs David Teng & Co, Advocates to file this application to deny legal liability as it is not covered under the Private Car Policy issued by the Plaintiff to the 1st Defendant in relation to the Insured Vehicle.
[5] The Plaintiff had earlier engaged Messrs Terang, Manjit, Azmi & Hardip Singh (Kuching) to represent the defendant in the Sibu Magistrates Court Suit No SBW-A73KJ-40/9-2018 ("the Sibu Suit").
[6] The Plaintiff alleges that the Private Car Policy issued by them to the 1st Defendant does not cover the Insured Vehicle for liability to passengers travelling on the Insured Vehicle
Preliminary Objection
[7] The Plaintiff raised preliminary objection against the 3rd Defendant's on the basis that the Affidavit in opposition of the 3rd Defendant was deposed by one Joseph Kahell Baleng, the counsel for the 3rd Defendant. They cited the case of Malaysian Airlines System Bhd & Yang Lain v. Tan Sri Tajudin Ramli & Yang Lain, [2012] 5 CLJ 716, it states that:
"[6] Kedudukan undang-undang adalah jelas, merujuk pada kes Seng Huat Hang Sdn Bhd v. Chee Seng & Co Sdn Bhd, [1987] 1 MLJ 413; [1985] CLJ (Rep) 760 Edgar Joseph Jr H (beliau masa itu) menyatakan:
With respect, in matters where disputed questions of facts are involved, it is for the parties and not their solicitors to affirm affidavits relating thereto."
[8] Again in Million Group Credit Sdn Bhd v. Lee Shoo Khoon & Ors, ; [1985] CLJ (Rep) 575, M Shankar H ruled:
"... that the practice of solicitors themselves filing contentious affidavits in pending applications should be discouraged. The parties are the litigants and it is they who should be giving evidence."
Basis For The Declaration In The Originating Summons
[9] In support of the
