Syed Agil Barakbah J

The appellants, the QBE Insurance Limited, are the successors of the Bankers and Traders Insurance Co. Ltd. on whom leave was granted by the Magistrate, Jitra on April 3, 1978 to the second defendant in Civil Action No. 80 of 1978, to issue and serve a Third Party Notice and for them to be added as such. The said Order was granted on an ex parte application. In the civil action the two infant plaintiffs filed a writ suing through their father and next friend, against the defendants claiming damages for injuries sustained as a result of an accident which occurred while they were riding a bicycle from the direction of Jitra towards Kodiang, when they were knocked down by a motor van KA 7558 driven by the first defendant, as agent of the second defendant, the Ketua Pengarah Pelajaran, State of Kedah.

The appellants subsequently applied to set aside the Order but the application was dismissed by the learned Magistrate. They have now appealed against the whole of the said decision.

There are four grounds of appeal as the second ground was not proceeded with.

Grounds (1) and (3) are dealt with together i.e. whether the second defendant has any locus standi or legal right to apply for the issue and service of such notice since the Government of Malaysia is the true and legal owner of the motor van. As the latter has not been joined as a party to the civil action, it was submitted such action is therefore not properly before the court and it cannot thereby be judicially adjudicated upon according to law and legal procedure.

Now, from the affidavit of the Federal Counsel in the Attorney-General's Chambers filed in the court below (page 12 paragraph 3) and other undisputed facts, the said vehicle belongs to the Government of Malaysia and is registered in the name of the Chief Education Officer, Kedah, (the second defendant) who loaned it to the Headmaster of the Sekolah Menangah Sultan Abdul Halim, Jenan, Jitra, Kedah. The said vehicle was insured at all material times with the Bankers and Traders Insurance Co. Ltd. against third party risks, by the said school authorities as the insured. The first defendant was also employed by the Government and seconded to the said school as driver and indirectly is the employee of the school.

In the light of the above I think it is immaterial whether the Government of Malaysia or the Chief Education Officer, Kedah is made a party to the action. As an employee of the former and the registered owner of the vehicle involved in the accident the latter has a locus standi or a legal right to apply for the service of a Third Party Notice. The civil action is properly before the court and can thereby be judicially adjudicated upon.

The other two grounds are more important. It was submitted that in granting the order to issue and serve upon the appellants a Third Party Notice and in dismissing the application by the latter to set aside the order, the learned Magistrate misconstrued the provision of section 80(1) of the Road Traffic Ordinance, 1958. The subsection states:—

"80.(1) If, after a certificate of insurance has been delivered under subsection (4) of section 75 of this Ordinance to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of subsection (1) of section 75 of this Ordinance (being a liability covered by the terms of the policy) is given against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgments."

The law as to the insurers' statutory ob