JUDGMENT

Tengku Maimun J:

[1] The plaintiff insured the entire Diethelm and its associated companies under a Marine Open Cover Policy. The policy is for any loss or damage to Diethelm's goods being shipped as an export/import from any ports/airports and/or places in the world from warehouse to warehouse and also for all inland transit and transportation from any of Diethelm's premises to customers/principals/dealers/stockists and/or ports/airports and vice versa within Malaysia, Singapore, Brunei and Thailand. The policy covers the period of 1 January 2005 until 31 December 2005.

[2] Diethelm had a written transport and delivery agreement with Tomatrans (M) Sdn Bhd for the transportation of the goods belonging to Diethelm in the southern zones of West Malaysia. Tomatrans had taken out a Marine Cargo Insurance Policy with the defendant. The insured under the defendant's policy is Tomatrans and the nominated sub-contractors and the interest insured are "Goods Held in Trust". The territorial limit of the policy was within Peninsular Malaysia and Singapore and the period of insurance was from 18 March 2005 to 17 March 2006.

[3] As a result of two cases of theft and hijack of two lorries belonging to Tomatrans in Johor on 14 September 2005 and 11 October 2005 respectively, Diethelm made two claims to the plaintiff. After being verified by Crawford & Company Adjusters (Malaysia) Sdn Bhd, the plaintiff paid Diethelm the amounts of RM372,852.01 and RM158,454.59 respectively. The plaintiff is now claiming for contribution against the defendant for the sum of RM254,162.65.

[4] Miss Wo Yoke Fong (PW1) gave evidence that in the course of the investigation, the plaintiff found out that the policy taken out by Tomatrans was for the interest of the cargo owners of goods held in trust and the policy covers the period of Diethelm's loss; that there was double insurance on the goods; that the policies issued by the plaintiff and the defendant both covered the same goods; that the goods belonged to Diethelm; that both policies insure the same rights and interest in the damaged or lost property as both policies are all risks policies; and that a right of contribution exists in law. PW1 had also explained how the figure claimed for contribution was arrived at.

[5] The defendant did not lead any evidence but its pleaded case is as follows:

3. Defendan mempunyai polisi insuran untuk Tomatrans (M) Sdn Bhd (selepas ini dirujuk sebagai "Tomatrans") untuk perlindungan barangan yang dipegang di bawah amanah untuk barangan pelanggan Tomatrans yang meminta perlindungan insurans.

5. Tomatrans tidak mengeluarkan perlindungan insurans untuk Diethelm Logistic Services Sdn Bhd (selepas ini dirujuk sebagai "Diethelm").

Butir-butir

Diethelm telah memberitahu Tomatrans bahawa Diethelm tidak memerlukan perlindungan insurans daripada Tomatrans. Diethelm melalui surat-surat bertarikh 19hb Mei 2004 dan 30 Julai 2004 memaklumkan kepada Tomatrans bahawa Diethelm mempunyai insurans goods in transit sendiri dan Diethelm tidak akan membuat tuntutan gantirugi terhadap Tomatrans.

[6] The letters referred to in the statement of defence are reproduced below. The letter dated 19 May 2004 from Diethelm to Tomatrans states:

In regards to your enquiry on insurance coverage under taken by DLS, we have insurance for "Goods in Transit" of which we have a group wide coverage.

As is stated in our contract under 8/liability, DLS reserve the right to recover any loss etc from our carriers.

We carry our own insurance cover, we would determine on a case to case basis any claim. Should we take a claim under our insurance, there would not be any claim for re-imbursement, against you (resulting in double claim).

[7] Diethelm again wrote to Tomatrans vide a letter dated 30 July 2004 which reads:

In regards to your enquiry on insurance coverage under taken by DLS, we have insurance for "Good in Transit" of which we have a group wide coverage.

As stated in our contract under clause 8/liability, DLS reserve the r