2011 MarsdenLR 1110

ABDULL HAMID EMBONG, ABDUL MALIK ISHAK, KANG HWEE GEE
LETCHUMANAN GOPAL – Appellant
Versus
PACIFIC ORIENT & CO SDN BHD – Respondent

An insurance company is not liable for death of a passenger unless there is a contract of service between the passenger and the vehicle operator, supported by insurance policy clauses restricting liability.

Headnote:(A) Road Transport Act, 1987 - Section 96(1) - Insurance policy liability - The deceased, a passenger of a lorry, was not an employee of the lorry's owner, establishing that the insurer could not be liable for his death due to exceptions in the policy - The High Court found the deceased not to be under a contract of service with the lorry's operator and therefore ruled that the insurer was not liable for damages related to the accident. (Paras 4, 13, 32-33)

(B) Legal principle regarding res judicata - The court examined whether the insurers could raise issues previously determined in a liability action, ruling that distinct nature of recovery and liability actions allows for fresh arguments regarding insurer's liability; hence, res judicata does not apply. (Paras 20-22)

Facts of the case:
A road accident occurred on 30 January 1996 involving a motorlorry where the deceased was a passenger. The Sessions Court found the motorlorry owner vicariously liable, but the High Court reduced damages and ruled that the insurer had no liability based on insurance terms.

Findings of Court:
The deceased was found not to be in a contract of service with the motorlorry operator; thus, the insurer was not liable.

Result: Appeal dismissed with costs to the respondent.