James Foong JCA:

Introduction

[1] The High Court has dismissed the appellant's recovery claim with costs against the 1st respondent (Talasco) made under s 96(1) of the Road Transport Act 1987 (RTA). It also dismissed Talasco's third party claim against the 2nd respondent (Proton) with costs to be paid by the appellant. Dissatisfied with this decision, the appellant appealed to us.

Background

[2] On 6 May 1989 the appellant was a passenger in a motor car no. WBK 398. While it was travelling along the Kuantan - Kemaman Highway at or about 2.30am it was collided into by another motor car no BCQ 8343. At the material time, BCQ 8343 was driven by one Wan Din bin Hussin (Wan Din). As a result of this accident, the appellant was severely injured.

[3] On 14 April 1994, the appellant filed a civil action in the High Court at Kuantan against Wan Din as 1st defendant who negligently drove the motor car BCQ 8343 and against Proton, as 2nd defendant, for being the owner of the said car

[4] This civil action was subsequently transferred to the Sessions Court at Kuala Terengganu bearing number 53-100-98. I shall refer to this civil action as Civil Action 53-100-98.

[5] On 27 July 1999, the Sessions Court at Kuala Terengganu after hearing allowed the appellant's claim against Wan Din (Wan Din having failed to defend the action) and awarded her a sum of RM554,979.26 as damages, interest and costs. The appellant's claim against Proton was dismissed.

[6] On 10 September 1991, the appellant gave notice under s 96(2) RTA to Talasco, the insurer of BCQ 8343 at the material time of the accident. This was soon followed by this civil suit against Talasco for the recovery of the judgment sum handed down in Civil Action 53-100-98.

[7] Talasco, the defendant in this civil suit, brought in Proton as third party under s 95 RTA to recover from Proton any sum Talasco may be ordered to pay the appellant.

Principal Issue: Previous Finding Of Proton Not Being Vicariously Liable

[9] Proton in their pleadings supported the stand taken by Talasco. In addition, it highlighted the decision in Civil Action 53-100-98 which dismissed the appellant's claim against Proton as owner of the said car This implies that Proton was not vicariously liable to the appellant when Wan Din, not being its servant and/or agent, was driving the said car without the order or permission of Proton.

The Law

[10] To fully appreciate arguments in this appeal, it is necessary to first set out the law.

[11]Section 90(1) RTA specifies that:

it shall not be lawful for any person to use or to cause or permit any other person to use, a motor vehicle unless there is in force in relation to the user of the motor vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part.

[12]Section 91(1)(b) RTA insists that such a third party risks insurance policy must be a policy which:

insures such person, or class of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle or land implement drawn thereby on a road:...

[13] Then under s 96(1) RTA:

If, after a certificate of insurance has been delivered under subsection (4) of s 91 to the person by whom a policy has been effected, judgement in respect of any such liability