JUDGMENT

Syed Othman J:

On 17 July 1962, on a proposal by the first defendant, the plaintiffs who are insurers, insured the first defendant's station wagon and the first defendant against the usual third party risks for the period from 17 July 1962 to 23 November 1962. On 8 October 1962 during the currency of the insurance, one Cheong Moi while driving the vehicle on the first defendant's order or with his permission was involved in an accident in which one Abdon bin Haji Dahalan was killed. On 20 October 1963 the dependants of the deceased issued a writ in the High Court at Johore Bahru claiming damages against Cheong Moi for negligence. The policy covers such liability.

The insurers now seek a declaration that they are entitled to avoid the insurance on the ground "apart from any provision contained in the policy, the policy was obtained by non-disclosure of material facts and/ or representation of a fact which was false in some material particular." One of the questions contained in the proposal is "4. Have you or any person who to your knowledge will drive, been convicted during the past five years of any offence in connection with the driving of any motor vehicle?". The answer given is "No".

The insurers say that the representation of fact contained in the answer was false in particulars which it was material to be known to them in or about the said policy, namely, that in truth and in fact the first defendant himself had been convicted during the past five years of offences in connection with the driving of motor vehicles.

They also say that the first defendant by the answer failed to disclose facts material to be known to them in or about the making of the said policy. He was convicted in the Magistrate's Court at Johore Bahru of five offences in all under the Road Traffic Ordinance 1958, on 8 March 1960 and 14 March 1961.

The first defendant did not enter appearance to the writ of summons. On 28 December 1967 leave was granted to the insurers to set down a notice for judgment. A notice of motion filed early in 1968 was fixed for hearing on 29 February 1968 but the motion was withdrawn. On 4 July 1968 an amended statement of claim was filed joining the second defendants a party pursuant to an order of Court dated 18 March 1964.

The defence of the second defendant, the widow of the deceased involved in the accident, is that she had no knowledge of the allegations contained in the statement of claim.

During the trial the assistant manager of the insurers was the only witness who gave evidence. No evidence was adduced on behalf of the second defendant but Mr. Williams, appearing for her, made submissions on points of law.

The assistant manager's evidence in substance is that on receiving the transfer of the policy from the original insured to the first defendant he approved it and that if the answer to question four had been "Yes" the transfer would have been refused as the convictions showed that the insured was an irresponsible person. He also says that the most insurers would not issue a policy to a person like the first defendant on usual terms.

In cross-examination he says that the proposal was dealt with by the insurance agents, who had received it. He cannot say if the first. defendant signed the form.

The submissions of Mr. Williams are to the effect that: first, there was no proof that the first defendant had signed the proposal as it came from the agents and not the first defendant; secondly, the insurers have not complied with the proviso to sub-section (3) of s. 80 of the Road Traffic Ordinance 1958 thirdly, assuming evidence concerning the proposal can be accepted, the offences which the first defendant had committed cannot be said to be connected with the actual driving of a motor vehicle; fourthly, the first defendant was not the person who had driven the car when the accident occurred and the insurance also covered other persons authorized to drive by the first defendant.

As to the first submissio