Gunn Chit Tuan SCJ:

R. Kathirvelu (hereinafter referred to as "the plaintiff") was a Superscale Technical Assistant in the Jabatan Kerja Raya in the State of Johore. Since 1977 he had been taking out a personal accident policy on a yearly basis with Pacific & Orient Insurance Co. Sdn. Bhd. (hereinafter referred to as "the defendant"). On 17 June 1983, the plaintiff was issued a renewal of the personal accident policy for the period 19 June 1983 to 18 June 1984, which provided `inter alia' for the payment to the plaintiff of a sum of RM200,000 on the terms and conditions contained in the said policy. In the said policy, it is provided that:

if during the period of insurance the insured shall sustain any bodily injury caused by violent external and visible means which injury shall solely and independently of any other cause result in his death or disablement the company will pay to the insured or to his legal personal representatives the sum or sums of money in accordance with the Table of benefits set forth in the Schedule.

The said policy was issued pursuant to a proposal form signed by the plaintiff on 14 June 1983, and is similar to one shown on pp. 134 and 135 of the appeal records. In the proposal form, there was a question No. 11(a) which required the plaintiff to answer whether to the best of his knowledge and belief he had ever had hernia, cancer, epilepsy, vertigo, paralysis, tuberculosis, diabetes, any form of rheumatism, any disorder or disease of the mental, nervous, genito-urinary, digestive, cardio-vascular systems or any other disease. That question was answered in the negative and all the other answers and particulars in the said proposal form were entered by an agent of the defendant after the plaintiff had signed a blank proposal form.

During the currency of the said policy, the plaintiff met with two accidents. The first was on 29 October 1983, when he fell down the stairs at the Johore Bahru General Hospital and injured his right hand. He was given out-patient treatment and medical leave for two weeks and after recovery went back to work on 12 November 1983. The second accident was on 19 November 1983, when the plaintiff met with a motor-vehicle accident and again suffered an injury to the same right hand. He was again given out-patient treatment and medical leave for six days and thereafter continued seeing the doctors at the Johore Bahru General Hospital where he was prescribed with some medication for his injured right hand but the swelling did not subside. He was given periodic medical leave continuously until 1 December 1984, when he was medically boarded out of the service.

On 27 December 1983, that is 38 days after the second accident, the plaintiff gave written notice to the defendant informing it of the two accidents. The defendant replied by letter dated 11 January 1984, forwarding a claim form for completion and return within 14 days by the plaintiff. The plaintiff was unable to complete that form as all the doctors were unable to diagnose his condition and the claim form was only returned to the defendant on 30 August 1984, with the words "still in the ward under treatment" and signed by the Orthopaedic Registrar of the Johore Bahru General Hospital. The plaintiff was re-admitted to the said hospital on 17 July 1984, and was examined by a Medical Board consisting of three specialists, namely the State Physician, State Surgeon and State Orthopaedic Surgeon, and it was not until 30 October1984, that they certified that he was suffering from `inter alia' Sudeck's osteodystrophy which is a rare condition. In the report of the Medical Board (p. 109 of the appeal records), it was stated that the plaintiff was suffering from:

(1) "Sudeck's Osteodystrophy" - Rt. Hand;

(2) Cervical Spondylesis;

(3) Labile Hypertension;

(4) Seronegative Arthritis;

(5) Oesophangitis;

(6) Duodenitis;

(7) Haemorrhoid.

A copy of a Medical Board's report was forwarded to the defendant by the plaintiff's solicitors thr