Edgar Joseph Jr FCJ:

[1] The sole question for decision in this appeal concerns the extent of the liability of the Appellants, as Insurers Against Third Party Risks ('the Insurers'), who had issued a Compulsory Motor Insurance Policy ('the Policy'), in a direct action brought against them by the Respondent, an Injured Third Party ('the Third Party'), for satisfaction of a judgment obtained in a running down action, pursuant to s 80(1) of the Road Traffic Ordinance 1958, ('the Ordinance') now s 96(1) of the Road Transport Act 1987 ('the Act').

[2] The essential facts underlying this appeal may be shortly stated.

[3] The Insurers had issued to Syarikat Kenderaan Central (M) Sdn Bhd ('the Insured'), the Policy pursuant to and in terms complying with s 75(1) of the Ordinance, now s 91(1) of the Act, whereby they had agreed to indemnify the Insured and any authorised driver in the event of accident caused by or arising out of the use of a motor lorry bearing registration No BAP 6167, of which the Insured was the registered owner, against all sums including claimant's costs and expenses which the Insured shall become legally liable to pay in respect of death or bodily injury to any person or damage to property.

[4] The Insurers had pursuant to s 75(4) of the Ordinance, now s 91(4) of the Act, duly delivered to the Insured, in respect of the Policy, a Certificate of Insurance in the prescribed form.

[5] On 14 October 1977, during the currency of the Policy and while the Certificate of Insurance was in full force and effect, the Third Party whilst travelling as a passenger in another motor lorry, to wit, NC 3467, driven by Yap Mun Chuan along the Kuala Selangor Road, Sg Piong, Kuala Selangor, sustained serious personal injuries as a direct result of a collision involving it and motor lorry No BAP 6167 driven by Chai Ten Wai alias Ah Kow an authorised driver of the Insured within the meaning of the Policy. The cause of the collision was due to the negligent driving of both the drivers.

[6] On 11 April 1981, the Third Party had brought an action in the High Court at Kuala Lumpur, being Civil Action No P 162/81, against the said Yap Mun Chuan, Chai Ten Wai and the Insured, citing them as the first, second and third defendants, respectively, to recover damages in respect of his personal injuries, loss and expenses and costs, and had duly given notice thereof in writing to the Insurers in terms complying with s 80(2)(a) of the Ordinance, now s 96(2)(a) of the Act.

[7] On 5 June 1986, Mr Justice Ajaib Singh had awarded a Consent Judgment in favour of the Third Party against Yap Mun Chuan, Chai Ten Wai and the Insured, for the sum of RM125,000 as general and special damages and for the sum of RM10,000 as costs and, lastly, ordered that liability was to be determined. By a Supplemental Consent Order dated 26 September 1991, awarded by Mr Justice Wan Mohamed bin Mustapha, it was further ordered that responsibility for the injury to the Third Party be apportioned equally between Yap Mun Chuan on the one hand, and Chai Ten Wai and vicariously the Insured, on the other,with a rider, that this order was in no way binding on the Third Party. In other words, the Third Party was not a party to the consent judgment to apportion responsibility as aforesaid.

[8] In these circumstances, the argument for the Third Party was that the liability of Chai Ten Wai and vicariously the Insured, under the Third Party the total sum payable under the Consent Judgment dated 5 June 1986 was covered by the terms of the Policy. Accordingly, it was contended that by reason of the provisions of s 80(1) of the Ordinance, the Insurers were liable to pay to the Consent Judgment dated 5 June 1986 and the amount of costs, following the Common Law rule that where the same or indivisible damage is the conjoined effect of separate and independent acts, the persons responsible are independent tortfeasors and each of them is responsible for the whole of the damages sustained by the