Mohd. Azmi SCJ:

This appeal demonstrates the legal and practical difficulties that may be encountered by a victim of a road accident where even with reasonable diligence he could not during the period of limitation ascertain the identity of the insurance company which insures the driver of the vehicle involved under third party policy for the purpose of complying with the seven-days' notice, required to be served on the insurer under s. 80(2)(a) of the Road Traffic Ordinance 1958 (RTO) (now s. 96 of the Road Transport Act 1987) for the purpose of enforcing any judgment obtained against the negligent driver.

Section 80(1) and (2)(a) of the Road Traffic Ordinance 1958 states:

(1) If, after a certificate of insurance has been delivered under subsection (4) of s. 75 of this Ordinance 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. (b) of subsection (1) of s. 75 of this Ordinance (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 the provisions of 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.

(2) No sum shall be payable by an insurer under the foregoing provisions of this section:-

(a) in respect of any judgment, unless before or within seven days after the commencement of the proceedings in which the judgment was given the insurer had notice of the proceedings.

It seems to be suggested by Mr. D.C. Alfred, Counsel for the appellant motor cyclist that even if it is obvious that the tortfeasor is a man of straw, or is unwilling or unable to furnish the identity of the insurer of his vehicle, the injured plaintiff though unable to give the necessary notice under s. 80(2)(a) RTO to make the insurer liable for payment, should nevertheless commence proceedings within the limitation period, or face the consequences of having his action statute barred. To support such a legal proposition, it is necessary to consider relevant provisions of the Limitation Act 1953 in particular s. 6(1)(c) and s. 29(b) read in conjunction with s. 80(1)(b) of RTO 1958.

In this appeal, the facts of the case are by and large not in dispute. The plaintiff was lawfully walking along the edge of Jalan Ampang, Kuala Lumpur on 1 April 1977 when he was negligently knocked down by a motor cyclist (the appellant before us) who was riding a motor cycle bearing Registration Number AF 3571. Under s. 6(1)(a) of the Limitation Act, any action against the motor cyclist based on his negligence would become statute barred on 31 March 1983. Although the plaintiff had given instruction to his present solicitors in early 1982, no writ was filed until 22 May 1986 that is not until East West Insurance Bhd. was traced and positively identified as the insurer of the motor cycle at the relevant time of the accident, and was accordingly notified two days earlier on 20 May 1986 for the purpose of s. 80(2)(a) RTO.

Before the Magistrate, liability was admitted by the motor cyclist, and quantum of damages had also been agreed. The only issue in the Magistrate's Court was whether the plaintiffs claim filed on 22 May 1986 was time barred under s. 6(1)(a). The Magistrate held that the claim was time barred as he did not find the motor cyclist or the insurer guilty of any fraud to warrant the intervention of s. 29(b). On appeal Eusoff Chin J (as he then was) disagreed. In allowing the plaintiffs appeal, the learned Judge held that on the basis of s. 29(b) of the Limitation Act 1953 the period of limitation should be postponed due to the fraud o