Gill J:

This is a suit for a declaration under s. 80(3) of the Road Traffic Ordinance, 1958 that the policy of insurance issued by the plaintiff company to defendant in respect of motor vehicle BD 862 is void for non-disclosure of material facts.

The defendant bought the motor vehicle from Eu Tong Sen Finance (M) Ltd of Kuala Lumpur on hire-purchase. He signed the hire- purchase proposal form, and the acceptance of the proposal was signed by one Wong Peng Wah on behalf of the finance company, on 8 December 1960. The motor vehicle was then lying in front of the office of the finance company and it was described in the hire-purchase proposal form as a Volkswagen "Station Wagon". This proposal form was filled in by Wong Peng Wah who apparently entered the description of the motor vehicle in the form on his own initiative, but the defendant furnished the particulars about his identity card, his driving licence, his address and his business or occupation. His occupation was entered as that of an advertiser.

After the hire-purchase proposal form had been signed, Wong Peng Wah suggested to the defendant to take out an insurance policy in respect of the motor vehicle from a company of which Eu Tong Sen Finance (M) Ltd were the agents. The defendant agreed and asked Wong Peng Wah to fill in the proposal form for insurance, which he subsequently signed. He now says that he does not know English and that Wong Peng Wah, before filling in the form, did not ask him what type of body the vehicle had but saw the vehicle himself. He further says that, apart from the driver's seat, there were two rows of seats inside the vehicle for persons to sit on. Those two rows of seats were there when the insurance proposal form (P2) was signed. The seats could be taken out.

Under the column headed "`make of vehicle and type of body" in the insurance proposal form the words filled in were "Volkswagen Station Wagon", and in answer to the question, "State clearly for what purpose the above vehicle is to be used", was the word "Private". As I have stated above, this insurance form was filled in by Wong Peng Wah who represented the Finance Co. from whom the vehicle was obtained on hire-purchase and who were also the insurance agents for the plaintiff company. On 10 December 1960 the plaintiffs issued a policy of insurance numbered as MC/02018, whereby they agreed, inter alia, and subject to the conditions and exceptions therein set out, to indemnify the defendant against all sums which the defendant should become legally liable to pay in respect of accidental bodily injury or damage to property caused by the vehicle of which a description was set out in the schedule to the policy of insurance. This policy was headed as "Private Car Policy".

An accident occurred on 7 May 1961, when the defendant was driving the said vehicle, in consequence of which injury and loss were caused to certain passengers in the vehicle including one Chang Chow Tai (spinster) who on or about 7 November 1962 commenced in the High Court at Kuala Lumpur in Civil Suit No. 871 of 1962 an action against the defendant for damages in respect of the injury and loss sustained by her. The defendant claimed to be entitled to indemnity against the plaintiffs under the provisions of the said policy of insurance in respect of the claim made by Chang Chow Tai and any other liability arising out of the said accident, whereupon the plaintiffs commenced this suit on 22 January 1963. Thus the suit has been brought within the period stipulated in the Ordinance.

The issues in this action are:

(1)Whether the defendant applied for insurance from the plaintiffs;

(2)Whether he completed the proposal form for such insurance; and

(3)Whether there was any misrepresentation or non-disclosure in the proposal for insurance.

On the evidence before me it is quite clear, and this is not denied by the defendant, that the proposal form for the insurance was completed by Wong Peng Wah at the defendant's