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2025 MarsdenLR 316
HIGH COURT MALAYA KUALA LUMPUR
ALLIANZ GENERAL INSURANCE COMPANY (MALAYSIA) BERHAD – Appellant
Versus
MOHD SHAHRIZAM LAZIM & ORS – Respondent
[Originating Summons No: WA-24NCC-393-08/2024]
An insurer is not liable for passenger injuries unless carried pursuant to a contract of employment, as upheld by statutory provisions and clear policy exclusions.
Headnote:(A) Road Transport Act 1987 - Section 91 - Motor insurance policy - Exclusion of liability for death/injury to passengers - Insurer sought to avoid liability following an accident involving a passenger not carried under a contract of employment, as provided in the policy terms, supported by relevant case law. (Paras 8, 10, 21, 22, 51)
(B) Interpretation of insurance policy - Clear and unambiguous policy terms upheld, distinguishing between ordinary passengers and those covered under specific arrangements as per the statutory framework. (Paras 19, 24, 25, 26)
Facts of the case:
The Plaintiff, an insurance company, filed for a declaration of non-liability following an accident involving a passenger who died. It contended the policy did not cover passengers not carried under a contract of employment. (Paras 3, 5, 6)
Findings of Court:
The policy was found to validly exclude liability for passengers not carried for hire or reward or pursuant to a contract of employment. (Paras 25, 51)
Issues: Whether the Plaintiff was liable under the policy for the death of a passenger not carried for hire, and the relevance of non-disclosure of policy terms. (Paras 12, 28)
Ratio Decidendi: The court held the Plaintiff was not liable since no evidence supported that the deceased was transported under any contractual employment obligation. Interpretation of the policy was consistent with statutory provisions allowing such exclusions under the Road Transport Act 1987. (Paras 22, 36, 47)
Result: Plaintiff's application for a declaration of non-liability granted, and the policy declared void concerning the accident. Costs ordered against the Third and Fourth Defendants.
| Table of Content |
|---|
| 1. details of the accident and insurance policy. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. plaintiff's argument regarding policy exclusions. (Para 8 , 9 , 10 , 11) |
| 3. third and fourth defendants' counterarguments. (Para 12 , 13 , 14 , 15 , 16 , 17) |
| 4. court's findings on policy coverage for passengers. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27) |
| 5. court analysis of non-disclosure issue. (Para 28 , 29 , 30 , 31 , 32) |
| 6. court's rejection of strict liability claim. (Para 33 , 34 , 35 , 36 , 37 , 38) |
| 7. discussion on qualifications of plaintiff's deponent. (Para 39 , 40 , 41 , 42 , 43) |
| 8. court's view on the timing of the application. (Para 44 , 45 , 46 , 47 , 48 , 49 , 50) |
| 9. final declaration of plaintiff's liability under the policy. (Para 51 , 52) |
Introduction
[1] Before the court is an Originating Summons filed by the Plaintiff, Allianz General Insurance Company (Malaysia) Berhad, seeking a declaration that it has no liability under a motor insurance policy in respect of a claim arising from an accident involving a passenger in the insured motor vehicle.
Background Facts
[2] The Plaintiff is an insurance company which issued Policy No 20VKL0001846-01 ("the Policy') in respect of a motorpickup bearing registration number WRD2298 ("the Vehicle") under the name of the Second Defendant, Hasmah binti Yusoff, forthe period from 8 February 2021 until 7 February 2022.
[3] On 23 December 2021, the Vehicle, driven by the First Defendant, Mohd Shahrizam bin Lazim, was involved in an accident at Jalan AKS-Sg Dua. One Mohd Ek Zamri bin Ajis ("the Deceased"), who was a passenger in the Vehicle at the material time, died in the accident.
[4] The Third and Fourth Defendants, who are the parents and dependants of the Deceased, subsequently filed a civil action in the Sessions court at Kuala Pilah (Saman No NB- B53KJ-4-02/2024) against the First Defendant and another, claiming damages for the death of the Deceased.
[5] The Plaintiff initially appointed solicitors to defend the First Defendant in the suit. However, upon reviewing the terms of the Policy, the Plaintiff took the position that the Policy does not cover liability for death or injury to passengers in the Vehicle except for passengers being carried in pursuant to a contract of employment.
[6] As such, the Plaintiff has filed this Originating Summons seeking a declaration that it is entitled to avoid liability under the Policy in respect of the Deceased who was a passenger in the Vehicle, and that the Policy is void and/or unenforceable in relation to the accident on 23 December 2021.
[7] It is pertinent to note that the Plaintiff has also separately applied to be an intervener in the Sessions court action, which application was allowed on 4 October 2024.
The Plaintiff's Submissions
[8] The Plaintiff submits that by virtue of Part IV of the Road Transport Act 1987 (" RTA "), specifically s 91, a motorist is not compelled by law to insure against injury to passengers, except in cases where passengers are carried for hire or reward, or by reason of or in pursuance of a contract of employment.
[9] The Plaintiff contends that the Policy, in accordance with the RTA , expressly excludes liability for death or injury to passengers unless the passenger was being carried in the Vehicle by reason of or in pursuance of a contract of employment. This exclusion is contained in Section B of the Policy, specifically cl 1b(iv).
[10] The Plaintiff argues that there is no evidence before this court that the Deceased was travelling in the Vehicle by reason of or in pursuance of a contract of employment at the material time of the accident. As such, the Plaintiff contends that it is not liable to satisfy any judgment obtained by the Third and Fourth Defendants against the First and Second Defendants in the Sessions court proceedings.
[11] The Plaintiff relies on the case of Hong Liang Ting & Ors v. China Insurance Co Ltd [1984] 2 MLRH 63; [1984] 2 MLJ 327 (HC), where
