The appellate court underscored the insurer's failures to meet statutory disclosure obligations, ruling that without compliance, an insurance policy cannot be simply declared void for misrepresentation.

[1] On 28 November 2018, the High Court granted the respondent's application made pursuant to s 96(3) of the Road Transport Act 1987 , for inter alia a declaration that Insurance Policy No: 213-08116-004654 [said Policy] is void and unenforceable. The respondent was further granted several other declaratory reliefs exonerating it from liability for the accident on 28 October 2016 involving Motor-Van No: BEM 6573 and Motorcycle No: BKB 6097. The appellant was one of the persons involved in that accident.

[2] Upon appeal, we unanimously allowed the appeal and set aside the decision of the High Court.

Salient Facts

[3] These are the details of the accident and the insurance policy in issue. On 28 October 2016, Jayandran a/l Mathan [Jayandran], a minor, was riding pillion on Motorcycle No: BKB 6097. That motorcycle was involved in a collision with Motor-Van: BEM 6573 driven by the 1st defendant and owned by one Selvamani a/l Athimoolam (deceased) [Selvamani]. Jayandran was injured in that accident.

[4] His mother, Balamoney a/p Asoriah decided to sue on his behalf. As required under s 96(3) of the Road Transport Act 1987 [Act 333], she served a Notice on the insurer prior to the filing of the suit. Civil Suit No: BL- A53KJ-20-01-2018 was then filed at the Sessions Court at Klang [the said civil suit].

[5] In the said civil suit, the van driver and the estate of Selvamani were cited respectively as the 1st and 2nd defendants. The insurer instructed the solicitors to handle the said civil suit, and appointed adjusters to locate Selvamani and the driver of the motor-van.

[6] It was then discovered that Selvamani had actually passed away on 20 April 2016, well before the accident on 28 October 2016. In fact, he had passed away even before the insurance policy was renewed. It was also discovered that the insurance policy that Selvamani had taken with the insurers, that is, Policy No: 213-081-15-004895 had expired on 4 May 2016, after his demise. The policy was nevertheless renewed in Selvamani's name, from 10 May 2016 to 9 May 2017 vide Policy No: 213-081-16-004654.

[7] The insurer decided to file an Originating Summons before the High Court seeking declarator/orders to the effect that it is not the insurer of Motor-Van No: BEM 6573 at the time of the accident; and that Insurance Policy No: 213081-16-004654 was null and void by reason of a fundamental breach of the principle of uberrimae fidei or duty of utmost good faith, the breach of which entitles the insurer to void the insurance contract. The orders sought are as follows:

i. Satu deklarasi bahawa plaintif bukan penginsuran bagi motorvan No BEM 6573 pada 28 October 2016 kerana pemilik asalnya, Selvamani a/l Athimoolan telah mninggal dunia pada 20 April 2016;

ii. Satu deklarasi yang pemandu motorvan No BEM 6573 yang didakwa terlibat di dalam suatu kemalangan jalanraya pada 28 October 2016 tidak mempunyai kebenaran untuk memandu motorvan tersebut;

iii. Satu deklarasi yang Polisi No: 213-081-16-004654 yang dipohon dari plaintif untuk tempoh 10 Mei 2016 sehingga 9 May 2016 bagi melindungi motorvan No BEM 6573 adalah tidak sah (null and void) kerana ianya telah dipohon dengan menggunakan nama Selvamani a/l Athimoolan yang telahpun meninggal dunia;

iv. Satu deklarasi yang plaintif tidak bertanggungan bagi sebarang gantirugi yang dituntut oleh mana-mana pihak akibat kemalangan jalanraya yang telah berlaku pada 28 October 2016 melibatkan motor-van No BEM 6573; v. Satu deklarasi untuk menggantungkan prosiding di Mahkamah Sesyen sehingga pelupusan Saman Pemula ini.

[8] The driver of the motor-van, the estate of Selvamani and Jayandran, through his mother, were all cited as the defendants in the Originating Summons.

[9] Only Jayan