Court established that an insurer may be liable to indemnify a driver despite an exclusion clause regarding employee injuries, if the driver is not the insured's employee.

[1] This is an application by the 3rd defendant to inter alia set aside the default order obtained by the plaintiff dated 22 February 2017. I have allowed the application. These are the full reasons for my decision.

Salient Background Facts

[2] The plaintiff had issued an insurance policy in respect of motor lorry No WMU 9935 registered in the name of the 1st defendant for the period from 9 April 2013 to 8 April 2014 agreeing inter alia to indemnify the 1st defendant and its authorised drivers for the amount which the 1st defendant or its authorised drivers are legally liable to pay for accident caused by or arising out of the use of the vehicle for death or bodily injury to any person save exempted in the policy.

[3] The plaintiff received notification of an accident which occurred on 15 March 2014 between a lorry No. BHK 9596 and the 1st defendant's lorry which was at the material time driven by the 2nd defendant. The 2nd defendant is an authorised driver pursuant to the policy issued by the plaintiff.

[4] The 3rd defendant was the lorry attendant who sat beside the driver and he sustained injuries as a result of the accident.

[5] The 3rd defendant commenced legal proceedings against the 1st and 2nd defendants in the Temerloh High Court in respect of the injuries sustained by him.

[6] Meanwhile, the plaintiff filed an Originating Summons in this Court pursuant to s 96(1) and (3) of the Road Transport Act 1987 for a declaration that the policy issued by the plaintiff is unenforceable and that the plaintiff is not liable under any order or judgment that may be obtained by the 3rd defendant in proceedings filed in relation to the said accident.

[7] In the absence of the 3rd defendant, the plaintiff obtained an order in terms of its Originating Summons on 22 February 2017. The said order provided that the insurance policy issued by the plaintiff is unenforceable in respect of the said accident and that the plaintiff is not liable for any order or judgment pursuant to s 96 of the Road Transport Act 1987 which might be obtained by the 3rd defendant in relation to the said accident.

[8] By a notice of application filed on 8 March 2018, the 3rd defendant applied to set aside the order dated 22 February 2017.

[9] This application is made pursuant to O 28 r 4(1) of the Rules of 2012 ( ROC ).

The Law

[10] Order 28 r 4(1) ROC provides as follows:

O 28. Originating summons procedure

Directions by Court (O 28, r 4)

4. (1) The Court hearing an originating summons may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this para against a defendant who does not appear at the hearing, the Court, if satisfied that it is just do so, may rehear the originating summons.

Findings Of The Court

[11] The 3rd defendant alleged that the cause papers in the Originating Summons were not served on him. In support of its stand that the cause papers had been served on the 3rd defendant, the plaintiff had produced an AR Registered card but without any acknowledgement. The address of the 3rd defendant is the correct address. However, the 3rd defendant maintained that he did not have knowledge of the Originating Summons and was not served with the cause papers.

[12] The 3rd defendant relied on the case of Ali Jeman v. Indranika Jaya Sdn Bhd where the High Court had referred to the decision in Amanah Merchant Bank