GROUNDS OF JUDGMENT.

FACTS.

The initial action.

On 11.9.84 one Tan Tok Nam and Tan Peng Hin T/A Chin Heng as the driver and owner (and as 1st and 2nd plaintiffs ) respectively of [Page 1] motorlorry PQ 2931 sued one Lim Ah Chim (Lim) as the owner of motorcar PM 9379 at all material times in the Penang High Court vide Civil Suit No. 310/84. It was the case of the plaintiffs that on 26.7.83 the 1st Plaintiff was driving the said motorlorry along the Butterworth/Simpang Empat Road and in the direction of Butterworth when he was collided into by motorlorry AT 4012 which was forced to encroach into the 1st plaintiff s path by the negligence of Lim and/or his servant and/or his agent/or an authorised driver in the management and control of the said motorcar PAM 9379 which came out without stopping from a side road on the plaintiff's right. Various particulars of negligence were pleaded. The 1st plaintiff sustained personal injuries and claimed damages [Page 2] for pain and suffering and for special damages. The 2nd plaintiff s claim was only in respect of special damages being the cost of the lorry which was beyond repairs, amounting to KM 35,000.00 and for loss of earnings at RM 8,000.00 per month for 5 months amounting to RM 40,000.00.

By his defence filed on 22.9.84 Lim admitted that at all material times he was the registered owner of the said motorcar PAM 9379. He went on to plead that it was not the negligence of the driver of the said motorcar PAM 9379 which led to the collision but that the collision was caused solely and/or substantially contributed to by the negligence of the driver of motorlorry AT 4012 and the 1st plaintiff. He then went on to plead various [Page 3] particulars of negligence against both the drivers.

Parties filed an Agreed Statement of Facts in which inter alia Lim admitted being the driver of the said motorcar PAM 9379 at all material times. Lim's solicitors then proceeded to take out a Summons for Leave to issue a Third party notice against the driver and owner respectively of motorlorry AT 4012 and obtained the said order on 9.10.85. The third party then filed their defence. On 27.9.88 the solicitors for Lim obtained an order discharging themselves as solicitors and a new firm of solicitors appeared for Lim as of 24.5.90. In the meantime, the 2nd plaintiff having died on 22.2.1978, his Administrator substituted himself as the 2nd plaintiff.

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The case having been transferred to the Sessions Court at Butterworth and upon hearing the evidence of the plaintiff and his witnesses and in the absence of Lim or the third party, the Court on 4.11.93 ordered Lim to pay the plaintiff the sum of RM 12,000.00 as general damages with interest at 8 % p.a. from the date of service of the writ and RM 710.00 as special damages with interest at 4% from the date of accident to date of judgment. The defendant was also ordered to pay the 2nd plaintiff the sum of RM 25,000.00 as special damages with interest at 4% from the date of accident to date of judgment. The total cost was assessed at RM 4,785.00.

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Recovery action against the Insurers.

Having obtained judgment against the defendant Lim, the plaintiffs sought recovery against the insurers of the defendant's motorcar PM 9379 at the material time. By way of a civil action commenced at the Butterworth Sessions Court (52-240-94) the plaintiffs sued Pan Global Insurance Sdn.Bhd (Pan Global) to recover the full judgment sum with interest and costs. A search made by the plaintiffs upon the Registrar & Inspector of Motor Vehicles, Pulau Pinang (RIMV) showed that Pan Global were the insurers of PM 9379 from 1.6.83 to 31.5.84 and that the insured was Lim and the cover note number was 514034. However the Policy of Insurance in respect of the same [Page 6] vehicle in the Appeal Record showed that the said motorcar PM 9379 was insured with United Oriental Assurance Sdn.Bhd.(UOA) as from 26.7.83 to 25.1.84 and that the insured was one Tan Chai Kim.

In its defence to