Abdul Malek Ahmad JCA:

We heard and decided on this appeal in Penang on 16 June 1997 and now give our reasons for dismissing it with costs and ordering the deposit to go to the respondent to the account of their taxed costs.

The appellant, as plaintiff and the widow of Chye Kee Jin, deceased, claimed a sum of twenty thousand dollars, which was the Malaysian currency at the time the statement of claim was filed in 1979, interest and costs, as the lawful nominee of the deceased under a Personal Accident Insurance Policy No. P57- 0009117 dated 24 June 1977 allegedly issued by the respondent, who was the second defendant in the trial court. The first defendant was Boo Teng Chuan (hereinafter "Boo") who according to the appellant was at all material times the respondent's employee, servant and agent.

As pleaded in the appellant's statement of claim, on 24 June 1977, the employer of the deceased paid the premium of one hundred and ninety five dollars by cheque which sum was accepted by the respondent through Boo on the same day. On the 26 June 1977, the deceased met with a fatal road accident in Dungun, Terengganu.

As nominee and beneficiary, the appellant had claimed the insured sum from Boo and the respondent. By letter dated 14 October 1977, they admitted liability and agreed to advance the sum of ten thousand dollars on approval of the claim and the balance upon extraction of the letters of administration. However, by letter dated 21 December 1977, they refused to pay the insured sum. Accordingly, on 12 May 1978, the appellant through her solicitors demanded the insured sum.

The respondent denied the issue of the policy and alternatively, if it was issued, it was conditional that no liability was undertaken until the proposal had been accepted and the premium paid in full. The said condition was stated on the proposal form submitted by the deceased.

The respondent had also pleaded in their statement of defence that the premium was received one day after the death of the deceased and payment was by cheque not issued by the deceased himself. Further, the proposal form was received by the respondent only on 30 June 1977 tour days after the death of the deceased. There was, therefore, no contract of insurance between the deceased and the respondent on the date the deceased passed away. Also, the appellant was neither a trustee under the alleged policy nor a personal representative of the estate and was not, therefore, competent to bring the action.

As regards the letter dated 14 October 1977, the respondent had explained that upon learning of the death of the deceased, they had written to the solicitors of the appellant and one Voon Swee Yew, alleged to be the administratrix of the deceased's estate, enclosing a certain form known as the claimant's statement to be completed by the appellant and requesting for certain documents in order for them to consider the claim by the appellant. They had never admitted liability at any stage especially when the signature on the proposal form was not similar to the specimen signature of the deceased. After considering the claim, they wrote to the appellant's solicitors on 21 December 1977 stating that they were not liable.

The learned Sessions Court judge had dismissed the claim after a full trial and on appeal, the learned High Court judge had dismissed the appeal with costs.

The policy document was never produced at the trial and the learned Sessions Court judge held that although a policy number was given, it was never issued. However, on the date fixed for decision, learned counsel for the appellant had sought to adduce further evidence to produce the policy document. The application was oral and not supported by any affidavit. It was refused by the learned Sessions Court judge following Ladd v. Marshall [1954] 1 WLR 1489 primarily on the consideration that there was no evidence to show that the policy document, presumably to be believed, could not have been obtained with re