Ajaib Singh J:

This is an appeal from the decision of the learned President of the Sessions Court who had given judgement in favour of the respondents against the appellant in the sum of $3,250 and costs.

The respondents are an insurance company having their registered office in Kuala Lumpur. In their statement of claim the respondents averred that the appellant insured his motor lorry with them for a period of one year from 11 July 1968 to 10 July 1969. On 13 November 1968 the lorry was involved in a motor accident while it was being driven by the servant or agent of the appellant resulting in damage and injury to a third party. The respondents averred further that one of the conditions in the policy of insurance was that the appellant should as soon as possible give notice of any accident involving the insured lorry to the respondents but that the appellant failed to comply with this condition and he did not give notice of the accident until 11 November 1970 almost two years after the accident. In due course the injured third party sued the appellant and the lorry driver who was an authorised driver within the terms of the policy. The respondents defended the suit and paid the sum of $3,000 as damages for personal injury and $250 costs to the third party on a judgment by consent entered in the legal Court against the appellant and his driver on 4 October 1971. The respondents averred that they were entitled to recover the sum of $3,250 from the appellant on the ground that they had repudiated liability on the policy for breach of the aforesaid condition.

In his defence the appellant admitted the condition referred to in the statement of claim but denied that he did not give notice of the accident to the respondents. He stated that on or about the day of the accident he informed Chin Kook Chen who at all material times was the agent of the respondents in Seremban and that the said agent undertook to inform the respondents. The appellant contended that he was thus made to believe that he had complied with the said condition, that the respondents were bound by the acts or omissions of their agent and that they were precluded from contending that the appellant had failed to notify the respondents as soon as possible after the accident. Further that the respondents never obtained the appellant's authority to engage solicitors to conduct the defence of the action in which the appellant was named as a defendant. The appellant denied that the respondents were under any duty to pay the sum of $3,250 to the injured third party and that if that sum was paid as alleged it was paid by the respondents voluntarily and not under any compulsion.

In the lower court the respondents called their insurance executive Ng Kwoi Heng as their only witness. This witness said that the respondents appointed Chin Kook Chen as a commission agent but he had no authority to receive any claim on their behalf. He was only to canvass business and collect premia. On 8 October 1970 the respondents received information of the accident involving the insured lorry from the solicitors of the injured third party and on the following day the respondents wrote to the appellant drawing his attention to the failure on his part to inform the respondents of the accident and telling him that he had thereby committed a breach of the terms of the policy thus giving the respondents the right to repudiate liability. He was also told that the respondents would hold him responsible for any loss that they might suffer arising out of any claim by the injured third party. Together with this letter the respondents enclosed their printed notice of accident form and requested that it be completed and returned to them for their attention without prejudice to their right of repudiation of liability. The respondents received no reply and they had to instruct their solicitors who on 28 October 1970 wrote to the appellant to act on their clients' letter of 9 October 1970. The ap