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2024 MarsdenLR 3325
HIGH COURT MALAYA KUALA LUMPUR
ETIQA GENERAL TAKAFUL BERHAD – Appellant
Versus
MOHD KHAIRUL IRMAN MOHD ZIN & ORS – Respondent
[Originating Summons No: WA-24NCC-611-11-2023]
Insurance policy issued after an accident is void; the duty of disclosure lies with the insured, and failure to disclose vitiates the contract.
Headnote:(A) Road Transport Act 1987 - Section 96(3) - Insurance policy validity - Application by insurer to declare policy void as it was purchased after the accident occurred - The court found the policy was issued at 3:49pm on the same day as the accident at 3:45pm, establishing no coverage existed at the time of the accident. (Paras 1, 25, 37, 68)
(B) Duty of Disclosure - The insurer’s obligation to inquire about prior accidents was discussed, emphasizing that failure to disclose by the insured voided the policy. (Paras 40-51)
Facts of the case:
The accident involved a motor vehicle and motorcycle, with the insurance policy being obtained on the same day as the accident. The policy was issued after the accident, leading to the application for a declaration of its void status. (Paras 2-12)
Findings of Court:
The court determined that the insurance policy was void as it was not in effect at the time of the accident, and the insurer was not liable for claims arising from the accident. (Paras 68a, 68b)
Issues: The main issues were whether the policy was valid at the time of the accident and whether the insurer waived its right to void the policy due to non-disclosure. (Paras 25, 40)
Ratio Decidendi: The court ruled that the insurance policy specified a commencement time, thus coverage did not exist during the accident. The court also held that the insured's failure to disclose prior accidents nullified the policy. (Paras 29-37, 51)
Result: Application allowed, policy declared void and unenforceable.
JUDGMENT
[1] Before the court is an application by an insurance company under s 96(3) of the Road Transport Act 1987 for declarations that a motor insurance policy is void and unenforceable in relation to a road accident and that the insurer bears no liability for claims arising from that accident. The core issue is whether the policy, which was purchased on the same day as the accident, had come into effect at the time the accident occurred, with the evidence suggesting the policy was issued at 3:49pm while the accident took place earlier that afternoon. Central to the court's determination are questions about when insurance coverage commences when both issuance and accident occur on the same day, whether the insurer waived its rights by not making specific inquiries before issuing the policy, and whether voiding the policy would undermine the protective purpose of the .
Background Facts
[2] On 23 December 2022, a road traffic accident occurred involving a motor car bearing registration number WXE 6746 and a motorcycle bearing registration number BQU 1570. The motor car was owned by the 1st Defendant, Mohd Khairul Irman bin Mohd Zin, and was being driven by the 2nd Defendant, Nurul Azera binti Ahmad, at the material time. The motorcycle was being ridden by the 3rd Defendant, Mohamad Afiq bin Ahmad.
[3] On the same day, 23 December 2022, the 1st Defendant obtained an insurance policy (Policy No. 85606544) from the Plaintiff, Etiqa General Takaful Berhad ("Etiqa") for the motor car WXE 6746. The Certificate of Takaful and Schedule indicated the period of coverage as being from 23 December 2022 to 22 December 2023. The policy was issued at 3:49pm on 23 December 2022.
[4] On 27 December 2022 at 12:52pm, the 3rd Defendant made a police report (Report No. Shah Alam/035235/22) stating that the accident had occurred on 23 December 2022 at approximately 3:45pm.
[5] Later on the same day, 27 December 2022, at 5:32pm, the 2nd Defendant made her first police report (Report No. Shah Alam/035267/22) also stating that the accident had occurred on 23 December 2022 at approximately 3:45pm.
[6] Subsequently, on 27 December 2022 at 6:11pm, the 2nd Defendant made a correction police report (Report No. Shah Alam/035269/22) amending the time of the accident to 2:47pm on 23 December 2022.
[7] Etiqa appointed an adjuster to investigate the circumstances of the accident. During the investigation, the adjuster obtained photographs from both the 2nd and 3rd Defendants. Two photographs of motorcycle BQU 1570 shared via WhatsApp by the 2nd Defendant showed a timestamp of 2:45pm on 23 December 2022. Additionally, two photographs showing the 3rd Defendant's injuries, shared via WhatsApp by the 3rd Defendant, displayed a timestamp of 3:32pm on 23 December 2022.
[8] Subsequently, the 3rd Defendant filed a civil action against the 1st and 2nd Defendants under suit number BA-A73KJ-672-07/2023.
[9] Etiqa then filed an Originating Summons seeking declarations that Policy No. 85606544 was void and unenforceable in relation to the accident that occurred on 23 December 2022 and that Etiqa was not liable to satisfy any claims arising from the accident.
[10] These proceedings were heard before the High court, with Mr Sean Denis appearing for Etiqa and Mr S. Ganesh appearing for the 3rd Defendant. The 1st and 2nd Defendants did not appear at the hearing despite being served with notice.
The Plaintiff's Application
[11] Etiqa filed an Originating Summons seeking the following declarations: (a) an extension of time (if necessary) to file the Originating Summons; (b) that Policy No. 85606544 covering motor car WXE 6746 for the period 23 December 2022 to 22 December 2023 was void and unenforceable in relation to the accident that occurred on 23 December 2022 involving motor car WXE 6746 and motorcycle BQU 1570; (c) that Etiqa was not liable to bear any claims arising from the said accident; (d) any further orders or directions deemed appropriate by the
