1. ) Mohd Suhairi Bin Alias (Seorang Yang Kurang Upaya Dan Membawa Tindakan Ini Melalui Ibu Yang Sah Danwakil Litigasi Beliau Iaitu /pencelah Kedua) 2. ) Rasmawati Binti Yaacob 1. ) TUNE INSURANCE MALAYSIA BERHAD 2. ) TUAN SOM BINTI TUAN KA

1. ) Mohd Suhairi Bin Alias (Seorang Yang Kurang Upaya Dan Membawa Tindakan Ini Melalui Ibu Yang Sah Danwakil Litigasi Beliau Iaitu /pencelah Kedua) 2. ) Rasmawati Binti Yaacob 1. ) TUNE INSURANCE MALAYSIA BERHAD 2. ) TUAN SOM BINTI TUAN KA

The Court held that the High Court correctly found as a fact the accident occurred before the policy was issued and that coverage commences from the time of issuance as stated in the cover note; consequently the insurer was entitled to a declaration under s.96(3) RTA that the policy did not cover the accident. Originating summons was the proper procedure because there was no triable dispute of fact on the critical timing issue. Arguments on waiver, uberrima fides and Article 8 discrimination were rejected.

Citation
W-02(NCC)(A)-1160-06/2021 (Mahkamah Rayuan)
Parties
First Appellant (disabled; Represented by Litigation Representative): MOHD SUHAIRI BIN ALIAS; Second Appellant (litigation Representative/mother): RASMAWATI BINTI YAACOB; First Respondent (insurer): TUNE INSURANCE MALAYSIA BERHAD; Second Respondent (registered Owner of Car): TUAN SOM BINTI TUAN KADIR; Third Respondent (driver/defendant in Original Suit): ZURINA BINTI OTHMAN
Court
NCC
Jurisdiction
Malaysia
Judgment Date
13 January 2025
Case Number
W-02(NCC)(A)-1160-06/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) / Judgment (determination of Appeal From High Court Decision Granting S.96(3) Declaration)
Outcome
Appeal dismissed; High Court decision affirmed
Legal Topics
Enforceability of Motor Insurance Policy, Section 96(3) Road Transport Act 1987, Commencement/time of Cover (cover Note), Originating Summons Vs Trial/triable Issues, Utmost Good Faith/uberrima Fides and Disclosure (fsa Schedule 9), Waiver, Equality Under Article 8 Federal Constitution
Source Language
Malay/English
Insurance Law Road Transport Law Civil Procedure Constitutional Law Enforceability of Motor Insurance Policy Section 96(3) Road Transport Act 1987 Commencement/time of Cover (cover Note) Originating Summons Vs Trial/triable Issues +3 more

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Parties

MOHD SUHAIRI BIN ALIAS

First Appellant (disabled; Represented by Litigation Representative)

RASMAWATI BINTI YAACOB

Second Appellant (litigation Representative/mother)

TUNE INSURANCE MALAYSIA BERHAD

First Respondent (insurer)

TUAN SOM BINTI TUAN KADIR

Second Respondent (registered Owner of Car)

ZURINA BINTI OTHMAN

Third Respondent (driver/defendant in Original Suit)

Procedural Posture

Civil Appeal (court of Appeal) / Judgment (determination of Appeal From High Court Decision Granting S.96(3) Declaration)

Legal Issues

  1. 1 Whether originating summons was the proper mode for s.96(3) declaration
  2. 2 Whether triable issues existed making originating summons inappropriate
  3. 3 Whether the insurance policy was in force at the time of the accident (time of commencement of cover)

Ratio Decidendi

The Court held that the High Court correctly found as a fact the accident occurred before the policy was issued and that coverage commences from the time of issuance as stated in the cover note; consequently the insurer was entitled to a declaration under s.96(3) RTA that the policy did not cover the accident. Originating summons was the proper procedure because there was no triable dispute of fact on the critical timing issue. Arguments on waiver, uberrima fides and Article 8 discrimination were rejected.

Court Disposition

Appeal dismissed; High Court decision affirmed

Orders

  • Appeal dismissed
  • Costs of RM5000.00 to be paid by the appellants subject to allocatur