An insurer's prior knowledge of a claim suffices for liability under s 96 RTA, negating the need for fresh notice in subsequent suits based on the same facts.

JUDGMENT

Wong Kian Kheong JCA:

A. Introduction

[1] This judgment discusses the conflicting High Court decisions regarding the interpretation of s 96(2)(a) of the Road Transport Act 1987 ( RTA ). The construction of s 96(2)(a) has a direct impact on the scope of an insurer's liability under s 96(1) to pay a judgment sum obtained by a claimant in a suit against a person insured by the insurer based on the insured's tort of negligence which had caused loss and/or damage to the claimant in an incident involving a "motor vehicle" (as defined in s 2 ).

B. Background

[2] We shall refer to parties as they were in the High Court.

[3] On 28 June 2014, the 1st Defendant was riding a motorcycle (registration No PCW 6859) when the 1st Defendant met with an accident (Accident) involving a car (Registration No PLM 1767) driven by Encik Mohd Sakri bin Muhamad (Insured).

[4] As a result of the Accident, the 1st Defendant suffered severe injuries and permanent disabilities. The 1st Defendant has registered himself with the Social Welfare Department as a "Disabled Person".

[5] The plaintiff company (Plaintiff) is the insurer of the Insured.

[6] In accordance with s 96(2)(a) RTA , the 1st Defendant's solicitors, Messrs Jega Kumar & Partners (Messrs JKP), served a notice dated 22 September 2015 on the Plaintiff regarding the 1st Defendant's claim against the Insured for damages (1st Defendant's Claim) due to the alleged negligence of the Insured in respect of the Accident [1st Defendant's Notice (1st Suit)]. The Plaintiff had acknowledged receipt of the 1st Defendant's Notice (1st Suit) by a "RECEIVED" stamp of the Plaintiff dated 30 September 2015 {Plaintiff's Acknowledgement of Receipt [1st Defendant's Notice (1st Suit)]}.

[7] Subsequent to the 1st Defendant's Notice (1st Suit), on 9 July 2018, the 1st Defendant filed Suit No: PA-A53KJ-125-07-2018 in the Sessions Court against the Insured regarding the 1st Defendant's Claim (1st Suit).

[8] In the 1st Suit:

(1) the Plaintiff, as the Insured's insurer, in the exercise of the Plaintiff's right of subrogation under the insurance policy taken out by the Insured, appointed Messrs Harjit Singh Sangay & Co (Messrs HSS) to defend the Insured;

(2) on behalf of the Insured, Messrs HSS had filed defence to resist the 1st Suit; and

(3) on 23 April 2019, the 1st Suit was discontinued by the 1st Defendant with liberty to file afresh.

[9] On 23 May 2020, Suit No: PA-B53KJ-3-05-2020 was filed in the Sessions Court against the Insured (2nd Suit) by the 1st Defendant together with the 2nd and 3rd defendants ("2nd Defendant" and "3rd Defendant"). In this judgment, we shall refer to the 1st, 2nd and 3rd Defendants collectively as the "Defendants".

[10] In respect of the 2nd Suit:

(1) Messrs JKP acted for the Defendants;

(2) Messrs JKP sent an email on 2 July 2020 to the Plaintiff's solicitors which attached the 1st Defendant's Notice (1st Suit); and

(3) Messrs JKP did not serve a fresh notice under s 96(2)(a) RTA regarding the 2nd Suit on the Plaintiff.

C. Originating Summons Filed By Plaintiff Against Defendants (OS)

[11] The Plaintiff filed the OS in the High Court against the Defendants for, among others, a declaration that the Plaintiff was not liable pursuant to s 96(2)(a) RTA to pay any judgment sum which may be obtained by the Defendants against the Insured in the 2nd Suit (Declaration).

[12] The learned High Court Judge granted the Declaration with costs of RM2,500.00 to be paid by the Defendants to the Plaintiff (High Court's Decision). The Defendants have appealed to the Court of Appeal against the High Court's Decision (This Appeal).

[13] According to the learned High Court Judge's "grounds of judgment", s 96(2)(a) RTA mandatorily required the Defendants to serve a fresh notice of the 2nd Suit on the Plaintiff "before or within seven days" after the commencement of the 2nd Suit. The High Court relied on the judgment of Lamin Mohd Yunus J (as he then was) in the High Court case Chan Sow Ying v. Pacific & Oriental Und