Ravinthran JC:

[1]This is an appeal against the decision of the sessions court judge to add the insurance company as a co-defendant. The application to intervene and be added as a co-defendant was made by the insurance company. The plaintiff objected to the application. In this judgment, I shall refer to the plaintiff as the appellant and the insurance company who is the second defendant as the respondent.

BRIEF FACTS

[2]The claim of the appellant is based on an alleged collision that occurred between a car and a van on 7 March 2005. The appellant was a passenger in the car. The first defendant was the driver of the van. The appellant suffered serious injuries. The respondent who is the insurer of the van applied to the sessions court to intervene in the suit as a co-defendant. The grounds of intervention can be stated as follows. Under s 96Road Transport Act 1987 (‘RTA’)respondent’s main ground to intervene as a co-defendant is the alleged collusion between the appellant and the first defendant to commit fraud by lodging false police reports. In the pleadings and the police report, the appellant stated that the accident occurred on 7 March 2005 at 11pm. The appellant sustained serious injuries which resulted in the amputation of his right leg below the knee. The appellant, however, only lodged a police report in respect of the accident about two years later on 14 April 2007. Curiously, the first defendant also lodged his police report on the very same day as the appellant. The other alleged suspicious circumstance highlighted by counsel for respondent is this. The alleged accident occurred at 29th Mile, Kuching Serian Road which is 47km from Sarawak General Hospital, Kuching. The medical case note prepared by the Sarawak General Hospital states that the patient was treated at the Serian Hospital before being transferred to the Sarawak General Hospital on 7 March 2005. If this is true, the argument of the respondent is that the accident did not occur on the evening of 7 March 2005 due to the distance between Serian and Kuching. The third ground canvassed by the respondent to argue that the claim is fraudulent is the statement alleged to have been made by the first defendant to the loss adjuster that he was not involved in the collision on 7 March 2005 as he was home at the material time. The written statement is exhibited in the affidavit in support of the respondent.

ISSUESIntervention as co-defendant

[3]The application to intervene was made under O 8 r 6(2)(b) of the Subordinate Courts Rules 1980 which is similar to O 15 r 6 of the RHC 1980. The provision:

6(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application —

(a)…

(b)order any of the following persons to be added as a party, namely —

(i)any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii)any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

[4]It must be noted that in sub-para (ii) intervention is allowed where a party to an action claims relief or a remedy which will materially affect the non-party-intervener’s rights (see Dato’ Dr Haji Mohamed Haniffa bin Haji Abdullah & Ors v Koperasi Doktor Malaysia Bhd & Ors and another appeal s 96RTAPegang Mining Co Ltd v Choong Sam & Ors

Whether s 96 of the RTA prevents insurers from intervening?

[5]Section 96(1) which obliges the insurer to satisfy any judgment obtained against an insured reads as follows:

96 Duty of insurers to satisfy judgements against persons ins