JUDGMENT

Hashim Yeop A Sani J:

This is a suit in which the plaintiff claims from the defendant insurance company for cost of repairs, loss of use, demurrage and depreciation in respect of motor-car Registration No. MC867 purporting to be covered by a comprehensive policy issued by the defendant insurance company. The defendants in their defence and counter-claim deny that they are liable and seek to avoid the policy on the grounds that the proposal made by the plaintiff and/ or his anent contains certain untrue statements and answers, misrepresentations, concealment and suppression of truth.

The facts contained in the statement of agreed facts are as follows:

"That by a Proposal and Declaration dated 6 November 1968 the plaintiff requested the Defendants to issue to him a Policy of Insurance to cover inter alia , loss of or damage to the plaintiff's said motor car No. MC 867.

That in pursuance of the said Proposal and Declaration and in consideration of the payment of the premium in the sum of $359.40 the Defendant issued to the Plaintiff a Policy of Insurance No. MC368231 on 25 November 1968.

That on 9 December 1968 between 7.30 p.m. and 9.50 p.m., the plaintiff parked his said motor car No. MC867 in front of the State Cinema, Petaling Jaya and the said motor car was subsequently found to be stolen. A report of the theft was made at the Petaling Jaya Police Station, vide Report No. 7131/ 68.

That the said motor car was subsequently recovered by the Police and several accessories were missing.

That the Plaintiff's said motor car was previously insured with the National Insurance Co. Ltd., of Kuala Lumpur.

That the Plaintiff submitted his claim for the loss of accessories to the Defendants but the Defendants denied the claim on the ground that the said Policy of insurance No. MC 368231 had been obtained by non-disclosure of material facts.

From the evidence adduced during the trial, the following additional facts came to light:

(1) The proposal form (Encl. C, 7 in the Agreed Bundle) was not signed by the plaintiff but by one Lim Keat Chye who was and still is an agent of the defendant company.

(2) A negative answer was given to each of the questions specified in the proposal form which read as follows:

Has any Company or Underwriter in respect of the insurance on any motor vehicle

(a) Declined to insure you?

(b) Refused to renew Insurance?

(c) Cancelled your policy?"

(3) On the 27 September 1968 that is, less than two months before the said proposal form was filled up, the plaintiff had been given notice of the cancellation of the comprehensive insurance policy in respect of the said car No. MC 867 by the National Insurance Co. Ltd. (Encl. 16 in the Agreed Bundle); the reason for this cancellation was that the company had discovered that the previous insurance company of the plaintiff had treated his vehicle as a Total Loss (evidence of DW3 and Encl. 16 in the Agreed Bundle).

Such being the evidence, there is very little left to be considered in this case. The issues left to be considered can, in my opinion, be summarised as follows:

(1) Whether the untrue answers to the questions referred to entitle the defendant company to avoid the contract; and

(2) Whether Lim Keat Chye, when he signed the proposal form, did so as an agent of the defendant company or an agent of the plaintiff.

As regards the first issue, like the usual proposal forms issued by insurance companies, there is at the bottom of the instant proposal form (encl 7 in the agreed bundle) a declaration in these terms:

I/We declare the above statements and particulars to be true and correct, and agree that they shall be the basis of the contract between the Company and myself (ourselves).