An accident occurred on 4 April 1992 between the plaintiff and one Zakaria bin Ithnin who was the owner/driver of a motor van, registered as JCD 6105. On 7 February 1994, the plaintiff filed an action against Zakaria at the magistrate's court. The action was filed as Summons No 73–19–94. A default judgment was obtained whereby Zakaria bin Ithnin was to pay the plaintiff RM22,000 as general damages, together with interest at 8% pa, from 27 December 1994 until realization. He was also ordered to pay special damages of RM1,778 and costs of RM3,229.

Prior to the court's proceedings which resulted in that judgment, the plaintiff had undertaken every possible step to identify the insurer, but to no avail. Only after judgment was obtained against Zakaria was it discovered that Talasco Insurance Sdn Bhd was the relevant insurer at the time of the accident. With that information and armed with the magistrate's court's order, the plaintiff filed an action against that insurance company ('the defendant') at the sessions court. It was registered as Sessions Court Summons No 52–234–97. The statement of claim before the sessions court judge, inter alia, claimed that pursuant to s 96(1) of the Road Transport Act 1987 ('the Act'), Talasco Insurance Sdn Bhd was required to indemnify and pay the adjudged sum to the plaintiff. On the hearing date of 14 November 1997, the defendant again showed indifference when it did not appear, in spite of having been served with a summons resulting in a judgment in default being entered against it. It was only after that default judgment was served on it that it began to view the matter seriously. The defendant filed an application vide a notis permohonan (RR8) before the same court to have the default judgment set aside, pursuant to O 28 r 8 of the Subordinate Courts Rules 1980.

Much to the defendant's chagrin, the application did not get the sympathy of the court, and was dismissed with costs. It subsequently filed an appeal, and the matter was heard on 30 October 1998.

Having heard the submissions of both parties, the main issues that were required to be resolved were whether:

(1) from the evidence adduced, there were sufficient grounds for me to allow the appeal and to set aside the default judgment of Summons No 52–234– 1997;

(2) in the event I find that the insurer had no notice of the proceedings of Summons No 73–19–94, before or within seven days after that proceeding, what would be the contagion effect;

(3) pursuant to s 96(2)(a) of the Road Transport Act 1987, it could be interpreted that the varied acts and countless steps undertaken by the plaintiff were sufficient enough to permit the court to construe that the insurer had notice of the proceedings; and

(4) if not, does it mean actual notice is mandatory, in that there must be actual service of the notice on the defendant.

Before deliberating on the appeal, I had to consciously remind myself that this was an appeal emanating from a setting aside application for the default judgment of 52–234–1997, and not of 73–19–1994. In spite of this awareness, I was placed in a rather awkward position as the defendant had invoked the protection of s 96(2)(a) of the Road Transport Act 1987. In gist, the defendant claimed that the default judgment obtained in 73–19–1994 was unenforceable against itself as it had no notice of the proceedings. In the event the court accepts that assertion, then the default judgment was in jeopardy. Regardless of the outcome to the defendant, that order as against Zakaria remains unscathed and thus remained good as against him. It therefore follows that if the judgment of 73–19–94 were found to be unenforceable against the defendant, primarily on the pretext of it not having had notice of the proceedings, then the subsequent default judgment of 52–234–97 would also invariably be unenforceable against it.

At the end of the hearing, I dismissed the appeal in spite of the invocation of s 96(2)(a) by the defendant. When scr