JUDGMENT

Azmi LP:

By a policy of motor insurance between them, the defendant company agreed to insure the plaintiff's motor car No PH 2793 valued at $12,000 against damage or loss, inter alia, by theft, for the period between 2 September 1967 and 1 September 1968. On 29 September 1967 the said motor car was stolen while it was parked by the plaintiff in Jalan Pantai, Butterworth. The plaintiff reported the loss the same day at the police station and duly notified the defendant company of the said loss, and claimed to be indemnified under the said policy but the defendant company failed to do so. The plaintiff then brought this suit against the defendant company for the value of the motor car.

The defendant company did not seriously dispute the theft but resisted the claim in para. 4 of its statement of defence on the ground that the plaintiff in his proposal form Exh. P1 had made a declaration false in several aspects, namely as follows:

(1)In answer to question No. 6(A) in the proposal form:

Have you ever made a claim under any motor vehicle policy?", the plaintiff answered in the negative.

(2)In answer to question 6(B):

Are you now or have been insured in respect of any other motor vehicle?"

the answer given was in the affirmative and the name of the company given was: "Commercial Union Insurance Co. Ltd."

In his reply to the defence above, the plaintiff in his pleadings averred as follows:

(2) As regards to para. 4 of the statement of defence the plaintiff avers that he informed the defendant's agents that he had made claims before but the said agents said that as the claims were more than three years prior to the proposal there was no necessity to disclose them in the proposal form, for reason, so said the agents, that the plaintiff was entitled to the no claim bonus, if no claim had been made prior to three years.

As regards para. (b) of the particulars the plaintiff avers that the defendant's agents explained to him that the relevant question was only in respect of insurance with other companies".

The plaintiff gave evidence. In his evidence he explained how the answers to the questions 6(A) and 6(B) in the proposal form were made. According to him Mr. Hoe Kon Thut, then part-time agent of the defendant company assisted him in filling up the form and in the course of that Mr. Hoe explained to the plaintiff that in reference to question 6(A), that the plaintiff was only to concern himself with any claim made within the last three years and that it was not necessary to refer to the two previous claims made by plaintiff against the defendant company about six years previously. That was the reason why the negative answer was given to the question 6(A). With regard to question 6(B) the plaintiff stated that he did not tell Mr. Hoe to put in the name of the defendant company because he left the matter entirely to Mr. Hoe. Besides he was not able to read or speak English.

Mr. Hoe gave evidence for the plaintiff. He corroborated the evidence of the plaintiff as to what happened at the time when the form was being filled up. He, however, went further to state that before the proposal form was completed he spoke to Mr. Lee, DW1, alone in his office and told him of the previous claims made by the plaintiff. Mr. Lee then said it would be in order to-enter the answer "No" to the question 6(A) as the claims had been made so long ago but would impose an excess clause of $600 instead of the usual sum of between $200 and $300. He was questioned by the Court on this matter and his reply was as follows:

Normally the excess clause would be between $200 and $300. This compulsory excess of $600 imposed by the defendants was high but it was because I had explained about two previous claims.

Mr. Lee, DW1, the manager of the defendant company in his evidence, denied that Mr. Hoe saw him about the proposal form in this case and also denied that he had said that the negative answer to question 6(A) would be in order since the previous