The court established that an insurance policy commencing post-accident is unenforceable, upholding the right to declare it invalid under statutory provisions.

[1] This is an application by the Plaintiff for a declaration that the provisions of an insurance policy No JDV4007517 issued in respect of a motorcycle No WB 8810 T for the period commencing 12.43 pm on 8 August 2017 until 7 August 2018 is null and void and unenforceable against the Plaintiff in respect of an accident which occurred on 8 August 2017 at approximately 7.30 am and, further, that the Plaintiff was not liable in respect of any claim or judgment as a result of the said accident. I have allowed the application. These are the full reasons for my decision.

Salient Background Facts

[2] The 1st Defendant was at all material times the registered owner of a motorcycle bearing Registration No WB 8810 T.

[3] The 2nd Defendant was at all material times the rider of motorcycle No AHY 5080 and was involved in an accident with the 1st Defendant's motorcycle on 8 August 2017 at 7.30 am.

[4] The Plaintiff is the insurer of the 1st Defendant's motorcycle vide insurance policy No JVD4007517 which was issued on 8 August 2017 but at 12.43 pm, that is, after the accident had already occurred.

[5] By letter dated 16 November 2017, the 2nd Defendant's solicitors Messrs S Y Namasoo & Company gave the required notice under s 96 of the Road Transport Act 1987 ("the Act") to the 1st Defendant and the Plaintiff before filing a writ claiming damages in respect of the accident. In the said notice, the date and time of the accident was specifically mentioned as 8 August 2017 at 7.30 am.

[6] The Plaintiff with reference to the statutory notice date4d 16 November 2017 confirmed cover by a "without prejudice" letter dated 7 December 2017 stating expressly "We are the insurer of vehicle number WB 8810 T at the material time of the accident."

[7] After confirmation of cover by the Plaintiff the 2nd Defendant filed a writ action No AA - A53KJ-334-09/2018 dated 21 September 2018 against the 1st Defendant in Ipoh Sessions Court for damages arising from the said accident. The 2nd Defendant herein was the Plaintiff and the 1st Defendant herein was the Defendant in the Ipoh Sessions Court suit.

[8] By letter dated 5 October 2018 the Plaintiff informed the 2nd Defendant's solicitors of the appointment of M/S Kenneth William & Associates as solicitors to protect the interest of the 1st Defendant as well as the Plaintiff in the Ipoh Sessions Court and this was confirmed by letter dated 5 October 2018 from M/S Kenneth William & Associates.

[9] The 2nd Defendant closed his case in the Ipoh Sessions Court when the matter proceeded for hearing as fixed on 1 February 2019 with the Investigating Officer and the 2nd Defendant himself giving evidence on behalf of the Plaintiff. The 1st Defendant closed his case after giving evidence on his own behalf.

[10] The Ipoh Sessions Court then fixed the matter for decision on 26 March 2019.

[11] The Plaintiff served the present Originating Summons on the 2nd Defendant personally by letter dated 15 March 2019 together with the Notice stating the grounds relied on by the Plaintiff to seek the declaration herein pursuant to s 96(3) of the Act. The Originating Summons and the Notice were only received by the Plaintiff on 19 March 2019.

[12] Because the declaration sought under s 96(3) of the Act must be obtained prior to judgment being delivered in the Ipoh Sessions Court, the Plaintiff filed a certificate of urgency and on 22 March 2019 obtained an ex parte order from the Court that all proceedings in the Ipoh Sessions Court be stayed pending the disposal of the Originating Summons.

[13] The Plaintiff seeks the decla