Salleh Abas FJ:

The respondent is a widower whose wife named Lakshmi Kanta a/p Krishnanswarni (hereinafter referred to as "the deceased") died on 26 January 1975. The deceased was employed by the first appellant whilst the second appellant was her co-worker employed by the same employer, first appellant. At about 8.30 a.m. on 26 January 1975 whilst the deceased was working at the work site of the first appellant at Jalan Timor, Petaling Jaya she was knocked down by a motor lorry No. BAN 3231 belonging to the first appellant and driven by the second appellant. She was knocked down whilst the second appellant was reversing the lorry. As a result of the injuries caused to the deceased, i.e. shock and haemorrhage and crushed injuries to head, she died almost instantaneously, leaving a widower, the respondent, and eight children whose ages were at the time of death 20, 17, 16, 14, 11, 7, 6 and 5 years. The deceased had been insured by the first appellant under the Employees' Social Security Act 1969 under Insurance No. 32/094346.

On 10 May 1976 the respondent sued the first and second appellants claiming damages under ss. 7and8 of the Civil Law Act 1956for the benefit of himself and the eight surviving children of the deceased on account of loss and damages suffered by them as a result of the deceased's death. The appellants denied liability. They claimed that they were not guilty of any negligence in the incident and in particular contended that they were not liable because the deceased being an insured person under the Employees' Social Security Act 1969 the respondent is barred under s. 31 of the Actfrom bringing this action.

The case came before Harun J on 29 November 1977, 2 December 1977 and 22 February 1978. A good deal of time was taken up before the learned Judge on the question whether or not s. 31is applicable to the suit. Finally the learned Judge held that the appellants were liable and made an order in the sum of RM15,500 as general damages with interest thereon at the rate of 6% from the date of the writ and RM200 as special damages with interest thereon at the rate of 3% from the date of the death of the deceased and also cost of the suit. The appellants appealed against this decision to us and likewise the issue which was argued before us was solely on the question whether or not s. 31 of the Social Security Act is applicable to bar the respondent from suing the appellants. The learned Judge wrote no grounds of judgment, but it is obvious from his decision that he must have held that s. 31 of the Employees' Social Security Actdoes not apply to this issue.

At the start of the hearing of this appeal Counsel for the appellants, having been apprised of the following two Federal Court decisions, conceded the point as regards the appeal by the second appellant, but continued to argue the appeal by the first appellant. We therefore dismissed the appeal by the second appellant with costs and thus proceeded to hear appeal by the first appellant only.

There are two previous decisions of the Federal Court on s. 31 of this Act. The first decision is the case of Che Noh bin Yacob v. Seng Hin Rubber (M) Sdn. Bhd.[1982] 1 MLJ 80 in which the Court held that ss. 31 and 42 bar an insured person from suing his employer in respect of an employment injury suffered by him. In the second decision in the case of Tan Peng Loh V. Lee Aik Fong & Anor [1981] CLJ 96 (Rep)the Court reiterated its earlier Judgment, and further held that although an insured person cannot sue his employer for damages in respect of employment injury, s. 31does not prevent him from suing a third party, such as his co-employee, whose negligence has caused injury to him.

The facts in the present case are in a way similar to those in Tan Peng Loh'scase in that the employer and the co-employee of an insured person were sued except that in the present case the insured person is dead and that the suit is instituted by her widower under ss. 7 and 8 of the Civil L