JUDGMENT

1. This is an application of the plaintiff by way of Originating Motion dated 6.4.1998 to remit and/or set aside the final award of the learned arbitrator given on the 25.2.1998.

2. It must be pointed out from the outset that the provisions to remit an award and to set aside one are provided under different sections of the Arbitration Act 1952. Section 23 of the Arbitration Act provides that:-

"23 Power to remit award

(1) ;In all cases of reference to arbitration, the High Court may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrator or umpire.

(2) ;......................." [2]

Whereas for setting aside an award, section 24(2) of the said Act says:-

"24 Removal of arbitrator

......................

(2) ;Where an arbitrator or umpire has misconducted himself or the proceedings, or an arbitration or award has been improperly procured, the High Court may set the award aside."

3. In this case, the plaintiff is the owner of one unit of Nissan Tadano Crane bearing registration No. QKC 8951. The said Tadano Crane was insured under a Commercial Motor Policy No. KG 395TG007887 with the defendant for a sum of RM550,000.00. This crane was involved in an accident on 28.1.1996. On that day, the plaintiff used the Tadano Crane and another crane known as the Sumitomo Crawler Crane to jointly lift a water tank weighing about 30 tons for positioning onto another similar tank for engineering works. During the exercise and in the process of lowering the water tank, the driver of the Sumitomo Crawler Crane lowered it at a faster pace than the Tadano Crane, resulting in the water tank to swing in the direction of the Tadano Crane. The driver of the Tadano Crane, one Bong Chit Fatt, realising the impending danger of being hit by the swinging water tank, took evasive action to avoid the anticipated impact by rotating the boom of the Tadano Crane to the left. During the process of the sudden rotation, the third section of the boom buckled, leading the water tank to crush onto a generator and other construction materials on the ground.

4. Consequently, a claim was duly made by the plaintiff against the defendant under the Commercial Motor Policy but the defendant repudiated liability on the ground that the damage that was caused to the Tadano Crane did not come under the perils insured against and therefore, outside the terms and conditions specified in the said Policy. In view of the repudiation and pursuant to the arbitration clause in the insurance policy, both parties agreed [3] to refer the question of the defendant's liability herein for arbitration and the sole question to be determined by the learned arbitrator as mutually agreed by both the plaintiff and defendant is as mentioned below:-

"The question to be determined by the Arbitrator is whether the accident as described above is covered by the policy, in particular, whether it is covered:-

(a) ;By accidental collision or overturning or collision or overturning consequent upon mechanical breakdown or consequent upon wear and tear; or

(b) ;By malicious acts; or

(c) ;By impact damage caused by falling objects provided no convulsion of nature is involved; or

(d) ;By any of the perils set out in the Policy."

5. After having heard the witnesses in the arbitration proceedings together with the evidence and submissions of the learned counsels for both parties, the learned arbitrator in his final award held and adjudged that the defendant was not liable to the plaintiff under any of the terms and conditions of the Commercial Motor Policy taken out by the plaintiff in respect of the Tadano Crane.

6. Being dissatisfied with the final award, the plaintiff applied to remit and/or set aside the said award on the ground that, "the said award is bad on the face of it, and/or that the principle therein stated as principle of law according to which the said arbitrator proffered to make his award is erroneously stated or applied."

7. As stated earlier