A recovery action is not required for a third party to enforce a judgment against an insurer under the Road Transport Act.

JUDGMENT

Vazeer Alam Mydin Meera FCJ:

Introduction

[1] This appeal centres on the following main issues, namely:

(i) whether in the circumstances of this case, s 91(1)(b)(bb) of the Road Transport Act 1987 (" RTA ") operated to exclude the respondent's statutory liability under s 96(1) , such that it did not have to pay the appellant the benefit of a judgment he had obtained against the policy-holder at the Sessions Court ;

(ii) whether s 96(1) RTA permits the beneficiary of a judgment against an insured person to directly enforce the same against an insurer, in this case the respondent, without the need for a further judgment directly against the insurer/respondent by way of a recovery action; and

(iii) whether s 96(3) of the RTA provides the sole recourse to an insurer who intends to challenge its liability under s 96(1) of the ; and if answered in the affirmative; whether an insurer who has failed to obtain a declaration that an insurance policy was void and/or unenforceable under s 96(3) of the before liability was incurred, is barred from seeking any other relief to challenge or delay the insurer's liability under s 96(1) of the .

Background Facts

[2] The respondent, Berjaya Sompo Insurance Berhad, had issued a third-party risk motor insurance policy ("Policy") in relation to the use of a Toyota Camry motor vehicle bearing registration number WYC 8461 ("Vehicle"). The owner of the Vehicle and insured Policyholder was Tan Saw Kheng ("TSK"), the 2nd Defendant in the Sessions Court suit, and wife of the appellant in this appeal and plaintiff in the Sessions Court suit.

[3] On 16 June 2015, TSK authorised one Masri bin Tamin ("Masri"), who was the appellant's work colleague, to drive the Vehicle to Desaru with the appellant as a passenger on work-related travel. The appellant was working at Asia Aquaculture (M) Sdn Bhd, and on that fateful day, he was directed to travel to the employer's hatchery in Desaru to conduct an audit. Whilst on the road to Desaru, the Vehicle was involved in a collision with a motor lorry and the appellant was injured. The appellant instituted a proceeding in the Batu Pahat Sessions Court against the lorry owner, lorry driver, Masri and TSK claiming damages for negligence.

[4] After a full trial, the Sessions Court decided that Masri, as driver of the Vehicle, was 100% liable, and TSK as the owner of the Vehicle was vicariously liable on grounds that Masri was her authorised agent. Judgment was thus entered for the appellant against both Masri and TSK on 25 November 2019 ("Sessions Court Judgment"). Masri and TSK appealed against this judgment. However, the appeal was dismissed by the High Court on 12 April 2021 and the Court of Appeal on 25 January 2022. Hence, the issue of liability of Masri and TSK for the injury sustained by the appellant in the accident was determined with finality and damages quantified and awarded. In the circumstance, the respondent as insurer would ordinarily have had to satisfy the Sessions Court Judgment by virtue of their statutory liability under s 96(1) of the RTA .

Originating Summons At The High Court

[5] However, on 9 February 2021, the respondent, as plaintiff, in order to ultimately deny liability under s 96(1) of the RTA filed an Originating Summons in the High Court against the appellant, as 1st Defendant, and the insured TSK, as the 2nd Defendant, for the following orders:

(a) that the respond