An insurer is not liable for claims if the insured fails to disclose material facts, rendering the insurance contract void under the Road Transport Act.

JUDGMENT

Kenneth St James JC:

( Section 96 Road Transport Act 1987 Declaration)

Prelusion

[1] The Plaintiff-Insurer (P) applies for a declaration under s 96(3) of the Road Transport Act 1987 ( RTA ) to declare that P is not liable to pay any Judgment sum in the personal injury claim the 1st Defendant (D1) filed against the 2nd Defendant (D2) (I will refer to this declaration as the "s 96(3) Declaration").

[2] P is D1's insurer. P seeks the s 96(3) Declaration on the ground that the insurance contract between P and D1 is "void or unenforceable".

[3] Should the s 96(3) Declaration be given to P?

Section 96 (3)

[4] The relevant parts of s 96, which disclose the terms of the s 96(3) Declaration, are set out below for reference (with the pertinent words highlighted in bold):

Section 96 . Duty of insurers to satisfy judgments against persons insured in respect of third party risks.

(1) If, after a certificate of insurance has been delivered under subsection 91(4) to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under para 91(1)(b) (being a liability covered by the terms of the policy) is given against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgments.

(3) No sum shall be payable by an insurer under subsection (1) if before the date the liability was incurred, the insurer had obtained a declaration from a court that the insurance was void or unenforceable:

Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action unless, before or within seven days after the commencement of that action, he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the grounds on which he proposes to rely, and any person to whom notice of such an action is so given shall be entitled if he thinks fit to be made a party thereto.

Pertinent Facts

[5] D1 is the owner and driver of the car with the registration KDF7402 (Car). D2 is the rider of the motorcycle with the registration KAU9516 (Motorcycle).

[6] D1 purchased insurance coverage for the Car. P issued the Cover Note No ASMA- 194788 (Cover Note), which was entitled "Confirmation Of Purchase Of Insurance", for the coverage from 17 October 2017 at 20:09:48 ie at 8.09 pm. in the evening. The Cover Note expressly states that the period of insurance was from "17 October 2017 at 20:09:48 to 16 October 2018 Midnight".

[7] The subject accident between D1's Car and D2's Motorcycle occurred on 17 October 2017 at 9.30 am. in the morning. The accident happened before P issued the Cover Note for the insurance coverage over the Car.

[8] P, as such, asserts that they were not the insurers of the Car when the accident occurred. In other words, D1's Car was not insured by P at the time of the accident.

D2's Alor Setar Magistrates court Personal Injury Suit

[9] D2 filed a personal injury suit against D1 through Alor Setar Magistrates court suit No KA-A73KJ-607-11/2020 (ASMC Suit 607). As required under the RTA , D2 notified P about the ASMC Suit 607 proceeding.

[10] As P takes the position that P did not insure D1's Car at the time of the accident, P now applies, by this Originating Summons (OS), for a s 96(3) Declaration that they are not liable for any Judgment or Order emanating from ASMC Suit 607.

D2's Grounds For Opposing This Os

[11] If D2 obtains an eventual Judgment against D1, D2 wants to be able