Faiza Tamby Chik J:

This appeal is against the decision of the learned Sessions Court judge given on 22 April 1996 who after a full trial granted judgment as prayed to the plaintiff. A copy of the judgment appealed against is annexed to the "Rekod Rayuan Tambahan". The grounds of judgment of the learned Sessions Court Judge (at pp. 230-240 of the Record of Appeal) were delivered some two years ten months after her decision. The relevant pleadings are: The plaintiff's summons dated 13 December 1993 (pp. 224- 229 of the Record of Appeal, the re-amended defence dated 26 October 1994 (pp. 218-221 of the Record of Appeal), the documents tendered as exhibits to the court below are at Part C of the Record of Appeal (pp. 260-309 of the Record of Appeal).

In gist the facts are as follows: The defendant is a licensed insurer. The plaintiff is the daughter and lawful representative of Foo Chee Tuck, deceased ("the deceased"). By a proposal form dated 2 January 1991 (pp. 283-284 of the Record of Appeal) and a "Statement to the Medical Examiner" of the same date (pp. 286-287 of the Record of Appeal), the deceased applied to the defendant for a life insurance policy. The policy applied for was for an amount of RM40,000 (basic life) together with a supplementary rider of RM40,000. Pending the processing of the deceased's application and to acknowledge receipt of the first two months' premium, the deceased was issued with a conditional receipt also dated 2 January 1991 (p. 285 of the Record of Appeal). The deceased died on 7 January 1991 aged 48 years as a result of a motor vehicle accident before his application to the appellant was accepted. The plaintiff as the deceased's nominated beneficiary is now claiming (grounding her claim in contract) from the defendant payment of the full insured amount applied for of RM80,000. The defendant maintained that there was no sum payable on the policy to the plaintiff and based its defence on two separate and distinct grounds namely that the deceased had made an inaccurate or incorrect statement in his "Statement to the Medical Examiner" which formed part of his proposal form, thus entitling the defendant as insurer to avoid the policy ab initio(hereinafter referred to as the "Non-Disclosure" ground). This is pleaded at paras 4, 5 6 and 7 of the re-amended defence. Alternatively, no policy was in existence at the time of the deceased's death (the insured event) and therefore no monies are payable to the plaintiff (hereinafter referred to as the "Non-Existence of Policy" ground). A policy would have existed only in the event that the deceased met with the specific conditions imposed by para. A of the conditional receipt. In such an event, the conditional receipt deemed the policy to exist retrospectively to the date of the conditional receipt. The deceased did not meet with the said specific conditions. (This is pleaded at paras 8 and 9 of the reamended defence).

The first ground of defence is that of non-disclosure. The facts required to bear out this ground of defence are all agreed facts in that they are from documents which have all been agreed to. They are as follows: The following words are found at the bottom of the "Statement to the Medical Examiner" (pp. 286-287 of the Record of Appeal):

I affirm that the above answers were given by me in reply to the question put to me, confirm that they are full, complete and true and agree that they are a continuation of, and form part of my application and that the foregoing answers shall also form part of any policy contract that may be issued on the strength thereof.

The effect of this clause is inter alia, to incorporate the answers given in this statement as part of the proposal to the appellant. The following words are found at part IV of the proposal form (p. 284 of the Record of Appeal):

(b) All the foregoing statements and answers in this application together with those in any required medical examination, questionnaire or amendments, are fu