Syed Agil Barakbah J

The Plaintiff's claims against the defendants are for damages for personal injuries and consequential losses suffered by him due to the negligence of the first defendant as the servant or agent of the second defendant in driving motorlorry No. KA 4100 along Sg. Tiang/Pendang Road, Kedah on January 12, 1976. According to the Statement of Agreed Facts the plaintiff was at all material times employed by the second defendant, the registered owner of the vehicle, as an attendant. The first defendant was employed by the same as a driver. The said motorlorry had a "C" Carrier Licence Serial No. 179685 and was insured with Third Party Risks under Commercial Vehicle Policy No. GP 2/342952 issued by the Asia Insurance Company. The defendants have filed a claim against the said insurance company as Third Party for whatever damages and costs which the defendants may be called upon to pay to the plaintiff. By consent the plaintiff has obtained judgement against the defendants for the sum of $65,000/- in damages together with interest and costs to be taxed. The only issue as agreed is whether the insurer has to indemnify the first and second defendants on the judgement entered for the plaintiff by virtue of the insurance policy taken up by the second defendant as the insured on the said motorlorry.

The undisputed facts of the case were that on January 12, 1976 the plaintiff whilst travelling as the attendant and in the course of his employment in the second defendant's lorry driven by the first defendant was injured when the said lorry went off the road and landed in a ditch due to the negligence of the first defendant in driving the said lorry. The lorry was authorised to carry timber owned by the second defendant under the carrier's licence (page 1 of Ex. B). The plaintiff was seated next to the first defendant in the driver's cabin at the material time.

With regard to the main issue, I refer to the relevant provisions of the insurance policy filed in the Agreed Bundle of Documents (Ex. B). Section II deals with "Liability to Third Parties" and paragraphs 1 & 2 thereof state as follows:—

"1 The Company will subject to the Limits of Liability indemnify the Insured in the event of accident caused by or arising out of the use of the Motor Vehicle or in connection with the loading or unloading of the Motor Vehicle against all sums including claimant's costs and expenses which the Insured shall become legally liable to pay in respect of:

(a) death of or bodily injury to any person

(b) damage to property.

2. In terms of and subject to the limitations of and for the purpose of this Section the Company will indemnify any Authorised Driver who is driving the Motor Vehicle provided that such Authorised Driver.

(i) shall as though he were the Insured observe fulfil and be subject to the Terms of this Policy insofar as they can apply.

(ii) is not entitled to indemnity under any other policy."

The policy also provides eight exceptions to Section II of which exceptions (ii) and (iii) are material.

"The Company shall not be liable in respect of

(ii) death of or bodily injury to any person in the employment of the Insured arising out of and in the course of such employment

(iii) death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or getting on to or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises …"

Construing Section II it is clear that the policy covers two different individuals i.e., the main insured who, in this case, is the second defendant, and secondly, any authorised driver of the vehicle, who is the first defendant. It is also clear that the exceptions to Section II and in particular paragraphs (ii) and (iii) stated above refer to the main insured incurring liability for which a policy of insurance against third party risks is required for his own protect