ETIQA GENERAL TAKAFUL BERHAD 1. ) Thavani A/p Krishnan 2. ) P KRISHNASAMY A/L PATCHAYAPPAN 3. ) XXXX

WA-24NCC-64-02/2021 Kand. 34 13/04/2022 10:14:09 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA ORIGINATING SUMMONS NO: WA-24NCC-64-02/2021 In the matter of Section 96(1) and (3) Road Transport Act 1987. And In the matter of Section 41 Specific Relief Act 1950. And In the matter of insurance policy/cover note No. K6542955 which covers m/car No. BHM 5893. And In the matter of an accident which was reported on 25/4/2017 involving m/car No. BHM 5893 and m/car No. NBE 1846 at KM 12 Jalan Gemas – Rompin, Negeri Sembilan. And In the matter of Sessions Court Seremban Civil Action No. NA-A53KJ- 171-04/2020. S/N pYxjgJuPKUeCO6FNQsCOA 1 **Note : Serial number will be used to verify the originality of this document via eFILING portal BETWEEN ETIQA GENERAL TAKAFUL BERHAD (COMPANY NO.: 1239197-A) …PLAINTIFF AND 1. THAVAMANI A/P KRISHNAN (I/C NO.: 810927-01-6708) 2. P KRISHNASAMY A/L PATCHYAPPAN (I/C NO.: 710129-05-5341) 3. NARESHWAR A/L P KRISHNASAMY (I/C NO.: 100818-05-0599) (A minor sued through his father and litigation representative, P Krishnasamy A/L Patchyappan …DEFENDANTS GROUNDS OF DECISION Introduction [1] Vide the Originating Summons (“the OS”) documented in Enclosure 1, the Plaintiff sought for a declaration pursuant to Section 96 (3) of the Road Transport Act 1987 (“the RTA”) that the Insurance Policy No. K6542955 (“the Policy”) issued by the Plaintiff for the coverage of motor vehicle BHM 5893 (‘the S/N pYxjgJuPKUeCO6FNQsCOA 2 **Note : Serial number will be used to verify the originality of this document via eFILING portal Vehicle’) for the period between 3.6.2016 until 2.6.2017 is void and unenforceable with respect to the accident on 25.4.2017 involving motor vehicle No. NBE 1846 and the Vehicle driven by the 1st Defendant while carrying the 3rd Defendant as the passenger. [2] Having heard from parties, this Court allowed the application. Dissatisfied, the 2nd and 3rd Defendants filed an appeal against the decision of this Court. [3] The following are the reasons of this Court in allowing the application. Background facts [4] This case arose out of an unfortunate accident on 25.4.2017 at Jalan Gemas - Rompin, Negeri Sembilan, involving the Vehicle. At the material time, the Vehicle was driven by the 1st Defendant wherein her children Dhaneshwar a/I P Krishnasamy (NRIC No: 031116-05-0221) (hereinafter referred to as “the 1st deceased”), Vharshiena a/p P Krishnasamy (NRIC No: 060111-05-0452) (hereinafter referred to as “the 2nd deceased”), Dhenissha a/p Krishnasamy (NRIC No: 080322-05-0338) (hereinafter referred to as “the 3rd deceased”) and the 3rd Defendant who were minors were travelling as passengers in the Vehicle. [5] The 2nd and 3rd Defendants then instituted an action against the 1st Defendant in the current suit for negligence vide Seremban Session S/N pYxjgJuPKUeCO6FNQsCOA 3 **Note : Serial number will be used to verify the originality of this document via eFILING portal Court’s Suit No NA-A53KJ-171-04/2020 (“Suit 171”) claiming inter alia for bereavement, general damages and special damages caused by the said accident. [6] It is worth noting that the 1st Defendant is the wife of the 2nd Defendant. Despite their relationship and because of the belief that the insurance policy covers the claim, the 1st Defendant in her affidavit strongly supported 2nd and 3rd Defendants’ claim against her in Suit 171. [7] The present OS was filed on 15.2.2021 for a declaration that the Policy is unenforceable pursuant to Section 96(3) of the RTA. [8] On the same date, an application to intervene was also filed by the Plaintiff in Suit 171 at the Seremban Sessions Court. The Plaintiff’s contention [9] It is the Plaintiff's contention that the Policy does not provide coverage to passengers of the said Vehicle. As such, the 2nd and 3rd Defendants’ claim in respect of the said accident are not covered under the Policy and the Plaintiff is not statutorily liable under the RTA to indemnify the 1st Defendant or pay to the 2nd and 3rd Defendants any judgment sum obtained by them against the 1st Defendant. S/N pYxjgJuPKUeCO6FNQsCOA 4 **Note : Serial number will be used to verify the originality of this document via eFILING portal The Defendants’ contention [10] In resisting the OS, the 1st Defendant contended that - a) the Plaintiff has a statutory and contractual duty to indemnify the 1st Defendant as the insured against any third-party claims. Even when accidents arose from various circumstances, the Plaintiff is still to be held liable in line with the intention of the RTA which does not allow the insurer to avoid liability in any circumstances; b) the Policy particularly Clause 1b (ii) and (iv) of Section B is contradictory and inconsistent. Hence any ambiguity must be interpreted in favor of the 1st Defendant and against the insurer; c) the OS which was filed concurrently with the application to intervene, is a wrongful and a two-pronged attempt to evade liability against the 2nd and 3rd Defendants’ claim vide Sessions Court Suit 171; and d) the OS is premature and an abuse of the court’s process as Suit 171 is still ongoing in determining the liability of the Plaintiff as the insurer. [11] In support of the 1st Defendant, the 2nd and 3rd Defendants argued that - a) the OS is premature; S/N pYxjgJuPKUeCO6FNQsCOA 5 **Note : Serial number will be used to verify the originality of this document via eFILING portal b) the Policy under “SECTION B: LIABILITY TO THIRD PARTIES” covers the 2nd and 3rd Defendants; c) the 1st, 2nd and 3rd deceased as well as the 3rd Defendant were part of the household; and d) the Policy must be read subject to the relevant provisions in the RTA. Analysis The issue: Whether an insurer can repudiate liability via a declaration that the Policy is unenforceable pursuant to Section 96(3) of the Road Transport Act 1987 for a claim made by passengers of a vehicle involved in an accident when the passengers were not carried for (i) hire or reward or (ii) by reason or in pursuance of a contract of employment. The applicable provision of the RTA [12] It apposite to begin the analysis for this case by laying down the relevant provision under the RTA which governs passenger liability. This is found in Section 91 of the RTA. S/N pYxjgJuPKUeCO6FNQsCOA 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal [13] Section 91 of the RTA provides that - Section 91. Requirements in respect of policies. (1) In order to comply with the requirements of this Part, a policy of insurance must be a policy which - (a) … (b) insures such person, or class of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle or land implement drawn thereby on a road: Provided that such policy shall not be required to cover – (aa) liability in respect of the death arising out of and in the course of his employment of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment; or (bb) except in the case of a motor vehicle in which passengers are carried for hire or reward or by reason or in pursuance of a contract of employment, liability in respect of the death of or bodily injury to persons being carried in or upon or entering or getting onto or alighting from the motor vehicle at the time of the occurrence of the event out of which the claim arises; S/N pYxjgJuPKUeCO6FNQsCOA 7 **Note : Serial number will be used to verify the originality of this document via eFILING portal [14] The proviso (bb) found in Section 91(1) of the RTA can be simplified to mean that a policy shall not be required to cover liability for death of or bodily injury to any persons being carried in the vehicle except passengers who are carried: (i) for hire or reward; or (ii) by reason of or in pursuance of a contract of employment [15] Section 96 of the RTA on the other hand provides what a judgment would pay for. It reads as follows: - Section 96. Duty of insurers to satisfy judgements against person insured in respect of third party risk. (1) If, after a certificate of insurance has been delivered under subsection 91(4) to the person by whom a policy has been effected, judgement in respect of any such liability as is required to be covered by a policy under paragraph 91(1)(b) (being a liability covered by the terms of the policy) is given against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgement any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgements. (2) No sum shall be payable by an insurer under subsection (1)- (a) in respect of any judgement, unless before or within seven S/N pYxjgJuPKUeCO6FNQsCOA 8 **Note : Serial number will be used to verify the originality of this document via eFILING portal days after the commencement of the proceedings in which the judgement was given, the insurer had notice of the proceedings; (b) in respect of any judgement, so long as execution thereon is stayed pending an appeal; or (c) in connection with any liability, if before the happening of the event which was the cause of the death or bodily injury giving rise to the liability the policy was cancelled by mutual consent or by virtue of any provision contained therein and either- (i) before the happening of the said event the certificate was surrendered to the insurer or the person to whom the certificate was delivered made a statutory declaration stating that the certificate had been lost or destroyed; (ii) after the happening of the said event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer or the person to whom the certificate was delivered made such a statutory declaration as aforesaid; or (iii) either before or after the happening of the said event, but within the said period of fourteen days, the insurer has commenced proceedings under this Part in respect of the failure to surrender the certificate. (3) No sum shall be payable by an insurer under subsection (1) if before the date the liability was incurred, the insurer had obtained S/N pYxjgJuPKUeCO6FNQsCOA 9 **Note : Serial number will be used to verify the originality of this document via eFILING portal a declaration from a court that the insurance was void or unenforceable: Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgement obtained in proceedings commenced before the commencement of that action unless, before or within seven days after the commencement of that action, he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the grounds on which he proposes to rely, and any person to whom notice of such an action is so given shall be entitled if he thinks fit to be made a party thereto. (4) If the amount which an insurer becomes liable under this section to pay in respect of a liability of a person insured by a policy exceeds the amount for which he would, apart from this section, be liable under the policy in respect of that liability, he shall be entitled to recover the excess from that person . (5) In this section, the expression "material" means of such a nature as to influence the judgement of a prudent insurer in determining whether he will take the risks, and if so at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy. (6) In this Part, reference to a certificate of insurance in any provision relating to the surrender or the loss or destruction of a certificate of insurance shall, in relation to policies under which more than one certificate is issued, be construed as references to all the S/N pYxjgJuPKUeCO6FNQsCOA 10 **Note : Serial number will be used to verify the originality of this document via eFILING portal certificates and shall, where any copy has been issued of any certificate, be construed as including a reference to that copy. [16] Section 96(1) of the RTA provides that an insurer is liable to pay for judgment in respect of any such liability as is required to be covered by a policy based on the requirements laid down under Section 91(1)(b) of the RTA. This essentially is a liability covered by the terms of the Policy itself. [17] Emphasis is be made to the term "being a liability covered by the terms of the policy" found in Section 96(1) of the RTA which clearly shows that the Parliament did not intend for the insurers to be liable beyond what they had bargained for. [18] In the case of Mary Colete John v South East Asia Insurance Bhd [2010] 6 MLJ 733 the Federal Court held that: “[45] Nevertheless what should not be overlooked are the words in parenthesis. It must be a liability covered by the terms of the policy.” (Emphasis added) [19] It is clear that statutorily an insurer is only liable to pay for judgment in respect of liability which is required to be covered by Section 91(1)(b) of the RTA and covered by the terms of the policy. [20] In this case, Clause 1b (iv) Section B of the Policy is consistent with proviso (bb) Section 91(1)(b) of the RTA wherein liability to passenger is excluded unless the passenger is carried by reason S/N pYxjgJuPKUeCO6FNQsCOA 11 **Note : Serial number will be used to verify the originality of this document via eFILING portal of or in pursuance to a contract of employment which is not the case here. [21] An insurer is only liable to pay for judgment in respect of liability which is required to be covered by a policy under paragraph 91(1)(b) of the RTA. However, proviso (bb) of Section 91(1)(b) of the RTA, clearly states such policy shall not be required to cover – (aa) … (bb) ................................................ liability in respect of the death of or bodily injury to persons being carried in..... the motor vehicle .................. except in the case of a motor vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment; [22] In their attempt to persuade this Court to agree with their proposition, Counsel for the Defendants had expediently left out the proviso contained in Section 91(1) of the RTA. Whether it was inadvertent or a tactical maneuver, neither motivations assisted them. The reading of Section 91(1) of the RTA must be with the proviso in particular proviso (bb). [23] From the facts, the 1st, 2nd and 3rd deceased and the 3rd Defendant are the children of the 1st Defendant and they were not travelling in the Vehicle by reason of or in pursuance of a contract of employment at all material time. Neither were they passengers who hired the services of the 1st Defendant on the fateful day. S/N pYxjgJuPKUeCO6FNQsCOA 12 **Note : Serial number will be used to verify the originality of this document via eFILING portal [24] The contention that Section 91(1) of the RTA provides for passenger liability is therefore rejected. The Policy [25] The Policy which the Defendants base their claim on reads as follows: SECTION B: LIABILITY TO THIRD PARTIES 1a: What is Covered? You and/or Your Authorized Driver will be indemnified for the amount which You and/or Your Authorized Driver are legally liable to pay any third party (including third party's costs and expenses) for: (a) death or bodily injury to any person except those specifically excluded under this Certificate: (b) … 1b: What is Not Covered? The exceptions are specific to Section B and are in addition to the to the Exceptions stated in Section D of this Certificate and any other Endorsement. We will not pay for: i) death or bodily injury to any passenger being carried for hire or reward; ii) death or bodily injury to any person where such death or injury arises out of and in the course of employment of such person by You or Your Authorized Driver; S/N pYxjgJuPKUeCO6FNQsCOA 13 **Note : Serial number will be used to verify the originality of this document via eFILING portal iii) damage to property belonging to or in the custody of or control of or held in trust by Your or Your Authorized Driver and/ or any member of Your or Your Authorized Driver Household; iv) liability to any person being carried in or upon or entering or getting onto or alighting from Your Car unless he/she is required to be carried in or on Your Car by reason of or in pursuance of his/her contract of employment with You or Your Authorized Driver and/or his/her employer; v) Liability caused by a passenger travelling in or alighting from Your Car; vi) any claims brought against You by any driver of Your Car, whether authorized or not; vii) any claims brought against any person in any country in courts outside Malaysia, the Republic of Singapore or Negara Brunei Darussalam; and/or viii) all legal cost and expenses which are not incurred in or recoverable in Malaysia, the Republic of Singapore and negara Brunei Darussalam. [26] Section B Clause (1b) (iv) of the Policy expressly excludes any liability to passenger unless or except where the passenger is required to be carried in the vehicle by reason of or in pursuance of his/her contract of employment. [27] In this case, the 1st, 2nd and 3rd deceased and the 3rd Defendant were not travelling in the Vehicle for hire or reward or by reason of or in pursuance of a contract of employment. They were minors and travelling as mere passengers in the Vehicle driven by their mother, the 1st Defendant. S/N pYxjgJuPKUeCO6FNQsCOA 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal [28] Consistent with Section 91(1) of the RTA, the Policy laid down the exceptions to coverage. From a perusal of the Policy exhibited in the Affidavit in Support of the Plaintiff, there are eight (8) exceptions under Clause 1b Section B of the Policy and each exception is specific for a particular situation. [29] Clause 1b (ii) excludes liability where a person is injured or died in the "course of employment'. It covers a situation for instance where a bus conductor or a co-worker in the employment of the insured or the authorized driver is injured while performing his/her job as a result of an accident with the insured vehicle. Clause 1b (ii) Section B of the Policy is consistent with proviso (aa) of Section 91(1)(b) of the RTA. [30] On the other hand, Clause 1 b (iv) excludes liability to any person being carried in the vehicle (i.e. passenger) unless the person is required to be carried in the vehicle "by reason of or in pursuance of a contract of employment'. For instance, a factory worker who is required by his/her contract of employment to travel to and from the factory in the insured vehicle which is used as factory van/bus. Clause 1 b (iv) of the Policy is consistent with proviso (bb) of Section 91 (1)(b) of the RTA. [31] It is clear that the Policy mirrored provisions of the RTA. Such a style of drafting cannot be said to be in any manner contradictory or inconsistent as contended by the 1st Defendant. The argument of the 1st Defendant is therefore rejected. S/N pYxjgJuPKUeCO6FNQsCOA 15 **Note : Serial number will be used to verify the originality of this document via eFILING portal Whether the deceased and the 3rd Defendant are part of the “household” [32] Counsel for the 2nd and 3rd Defendants also claimed that pursuant rd to Clause 1b (iii) of the Policy, the deceased and the 3 Defendant who were passengers in the Vehicle and children of the 1st Defendant would fall under the category of 'household' and therefore covered under the Policy. [33] In dealing with this contention, this Court is only required to look at the policy itself. [34] Clause 1b (iii) Section B of the Policy reads as follows: We will NOT PAY for. (iii) Damage to property belonging to or in custody of or control of or held in trust by You or Your Authorized Driver and/or any member of Your or Your Authorized Driver's Household. [35] This Court is unable to fathom how exclusion of liability to pay for damage to property belonging to the insured, the authorized driver or their household members is construed as coverage for passengers who are household members of the insured as submitted by the 2nd and 3rd Defendants. It is clear that the Policy simply does not provide what the 2nd and 3rd Defendants contend. [36] Proviso (bb) Section 91(1)(b) of the RTA and Clause 1b(iv) Section B of the Policy, are consistent wherein liability to passenger is S/N pYxjgJuPKUeCO6FNQsCOA 16 **Note : Serial number will be used to verify the originality of this document via eFILING portal excluded unless the passenger is carried by reason or in pursuance to a contract of employment. nd [37] In this case, it has been admitted that the 1st, 2 and 3rd deceased and the 3rd Defendant were minors at the time of the accident and they were carried in the vehicle driven by the 1st Defendant as mere passengers. Not only did the Policy was devoid of such coverage, it is also not provided by law. [38] As previously discussed, even when considering Section 96(1) of the RTA an insurer is liable to pay for judgment in respect of any such liability as is required to be covered by a policy under paragraph Section 91(1)(b) of the RTA. Therefore, if the Policy does not provide such coverage, the Defendants are not entitled to demand anything out of the Policy. The development of case laws [39] Case laws on passenger coverage is well settled. The Federal Court in the case of Tan Keng Hong & Anor v Fatimah Binti Abdullah & Ors [1974] 1 MLJ 156, had held that: “From the above it is clear that the insurers are liable to indemnify the defendants if Ibrahim bin Kimpal was a passenger carried on the lorry by reason of or in pursuance of a contract of employment between him and his employer not being the second defendant. On the authority of Baker v Provident Accident and White Cross Insurance Co Ltd [1939] 2 All ER 690, a decision of Cassels J., we hold that a person is carried "by reason of" a contract of employment if, S/N pYxjgJuPKUeCO6FNQsCOA 17 **Note : Serial number will be used to verify the originality of this document via eFILING portal for instance, he is directed by his employer to travel in a vehicle, and the employer is able to give that direction because of the relationship of employer and employee; and that a person is carried "in pursuance of" a contract of employment if it is a term of the contract that he shall be carried. There was no evidence that it was a term of the contract of employment between the deceased and the Forestry Department that he shall be carried in the second defendant's lorry, so it cannot be said that at the time of the accident he was being carried on the lorry "In pursuance of" a contract of employment between him and his employers, the Forestry Department. . . . but there was no evidence that the deceased was on the lorry on the fatal day on official duty, and in the face of the learned trial judge's positive finding that the deceased was then getting merely a free lift to Seremban, we are respectfully of the opinion that the learned judge was right in holding that the insurers are not liable under the policy to indemnify the defendants. (Emphasis added) [40] The Federal Court's decision was upheld on appeal to the Privy Council in Tan Keng Hong & Anor v New India Assurance Co Ltd [1978] 1 MLJ 97: (1) “the words "by reason of his contract of employment" must be read in conjunction with the words "in pursuance of" and properly construed, mean because the contract of employment expressly or impliedly requires the employee or gives him the right to travel in the motor vehicle concerned. It does not mean that the passenger was being carried because the driver of the vehicle thought that by reason of the passenger's employment he might gain some business advantage by doing S/N pYxjgJuPKUeCO6FNQsCOA 18 **Note : Serial number will be used to verify the originality of this document via eFILING portal the passenger the favor of giving him a lift. (2) in the present case there was no term of the forester's contract of employment, express or implied, which required or entitled him to travel on the second appellant's lorry and therefore the insurers were rightly held not to be liable under the policy.” (Emphasis added) [41] Similarly, the Federal Court in Mary Colete John v South East Asia Insurance Bhd (supra), in dismissing the passenger's appeal had held: “[13] As already observed by the Court of Appeal, the appellant was travelling as a mere passenger and as admitted by her she was self-employed and the insured (Angel) was not her employer. However, it is the case here that the term in the insurance policy has employed the same language as found in s 91(1} of the RTA namely liability is incurred if the person is being carried 'by reason of or in pursuance of a contract of employment. [14] The key words in dispute here are the words 'contract of employment'. However, one is not to lose sight that this is not simply a case whether a particular person is the employee of the insured for the purposes of an employer's liability policy, but rather what is the risk that is to be covered for passengers carried in a vehicle as opposed to any other injured third parties. This is a question of the liability of the insurers. … S/N pYxjgJuPKUeCO6FNQsCOA 19 **Note : Serial number will be used to verify the originality of this document via eFILING portal [28] An appraisal of the precedents cited above and relied upon by the appellant establish that the words 'by reason of or in pursuance of' were really being examined in the context of there being 'a contract of employment'. It is manifest that in the context of this appeal, the term 'contract of employment' is important. It is only after a 'contract of employment' is established that the question then ensues whether the appellant was being carried by reasons of or in pursuance of a contract of employment.” (Emphasis added) [42] In Hong Liang Ting & Ors v China Insurance Co Ltd [1984] 2 MLJ 327 Siti Norma Yaacob J (as she then was) held that: “I shall now consider whether the deceased's presence on the lorry at the time of the accident was by reason of or in pursuance to a contract of employment. It is not disputed that the deceased was not employed by the insured or for that matter by anybody else. He was at the smoke house regularly as he had some business arrangements with the insured as to the use of the smoke house to dry his wet rubber sheets and to transport his own smoked sheets to Ayer Tawar by using the insured's lorry. As far as I can see, this business arrangement particularly with regard to the use of the insured's lorry concerned the transportation of the deceased's own goods to Ayer Tawar and it did not relate to a contract of employment at all. That being the case, the deceased's presence on the lorry at the time of the accident cannot be said to be by reason of or in pursuance to a contract of employment. Since he was not covered by the policy, the defendants cannot be held liable to satisfy the judgment obtained by his personal representatives against the insured." (Emphasis added) S/N pYxjgJuPKUeCO6FNQsCOA 20 **Note : Serial number will be used to verify the originality of this document via eFILING portal [43] Where liability was expressly excluded by the terms of the policy the insurers are not liable. The Federal Court in lskandar bin Mohd Nuli v AmGeneral Insurance Bhd [2017] 5 MLJ 25 held: “[11] To encapsulate, Zuraini would be unable to enforce the consent Judgment she has obtained against the respondent as the policy issued does not include, cover for passenger liability and no liability would ensue. The extent to which an insurer under a motor insurance policy would be liable under the said policy was considered by the Privy Council when hearing an appeal from Malaysia in Bankers and Traders Insurance Co Ltd v National Insurance Co Ltd [1985] 1 WLR 734 wherein Their Lordships decided that – an insurer could not be rendered liable in law for a liability which he had not agreed to insure under the terms of the policy. If the liability was expressly excluded by the terms of the policy the insurers were not liable.” (Emphasis added) [44] Based on the above authorities, it is apparent unless the passenger is carried in the vehicle by reason of or in pursuance to a contract of employment, the insurer shall not be liable to indemnify its insured in respect of death or bodily injury claim and also shall not be liable to pay any judgment sum obtained by the passenger. [45] It follows that the Plaintiff is not liable to indemnify the 1st Defendant or pay any judgment sum obtained by the 2nd Defendant for claims such as bereavement for the demise of his children and any S/N pYxjgJuPKUeCO6FNQsCOA 21 **Note : Serial number will be used to verify the originality of this document via eFILING portal judgment sum obtained by the 3rd Defendant for bodily injury sustained in the accident. [46] The Defendants relied on several cases during the course of submissions. The Defendants have referred to the case of Malaysian Motor Insurance Pool v Tirumeniyar Singara Veloo [2020] 1 MLJ 440 ("Tirumeniyar"). It was argued that the Federal Court has put to rest the law of "employees in the course of employment". [47] Upon reading the case as a whole, this Court agrees with the interpretation of the Plaintiff in holding that the case of Tirumeniyar is irrelevant. [48] In Tirumeniyar a lorry attendant was injured when the lorry driven by 1st defendant (a co-worker) reversed and hit him. The insurer sought a declaration that the policy is unenforceable as Tirumeniyar sustained the injury in the course of employment with the 2nd defendant (the owner of the lorry). The insurer also referred to proviso (aa) Section 91(1) RTA. The Federal Court in dismissing the action had held that the policy covers the insured and the authorized driver separately. As Tirumeniyar was in the course of employment of the insured i.e. the 2nd Defendant, the exception applies. However, as Tirumeniyar was not an employee of the authorized driver i.e. the 1st Defendant, the said exception does not apply to driver's coverage. S/N pYxjgJuPKUeCO6FNQsCOA 22 **Note : Serial number will be used to verify the originality of this document via eFILING portal [49] There is nothing before this Court, of whether the 1st, 2nd and 3rd deceased and the 3rd Defendant were in the course of employment. The sole issue before this Court is non-coverage to passenger who were not carried by reason or in pursuance to a contract of employment pursuant to proviso (bb) Section 91(1)(b) of the RTA and Clause 1b (iv) Section B of the Policy. Hence, the case of Tirumeniyar has no application and is irrelevant to this case. [50] Similarly, the case of Union Insurance (M) Sdn Bhd v Chan You Young [1999] 1 MLJ 593 ("Union Insurance"), does not favor the Defendants but instead cements the position in law on the principle of coverage being applicable if the passenger was carried “by reason or in pursuance to a contract of employment”. In Union Insurance, the passenger was injured whilst she was travelling to her place of work at a market. At the material time she was employed by one Tharmarajoo and the motorcar was driven by her son who was an authorized driver. As she was carried in the insured motorcar pursuant to her contract of employment with Tharmarajoo, the court held that the insurer was liable to indemnify her. [51] The decision of the Court of Appeal in Pacific & Orient Insurance Co Bhd v Kamacheh a/p Karuppen [2015] 4 MLJ 218 (“Kamacheh”) was also referred to by the Defendants. Kamaceh is one of the decisions where the court emphasized the social legislation aspect of the RTA. However, the facts culminating in such a finding was based on peculiar circumstances. Foremost, the failure of the insurer to obtain a declaration that the policy was void or unenforceable prior to judgment. S/N pYxjgJuPKUeCO6FNQsCOA 23 **Note : Serial number will be used to verify the originality of this document via eFILING portal [52] The facts revolved around Kamacheh being injured when the pillion rider astride the insured's motorcycle attempted to snatch her handbag. As a result, Kamacheh who was resisting fell off her motorcycle and sustained injuries. Kamacheh then commenced an action against the insured and the insured's son the authorized rider. The insurer Pacific & Orient Insurance Co Bhd (“P&O”) resisted the claim on the premise that the policy does not cover criminal use of the motorcycle. Kamacheh obtained judgment in default against the insured and his son and subsequently commenced a recovery action against P&O. [53] The Court of Appeal in holding that the policy was enforceable although the vehicle was used in criminal activities, among others, held that P&O would be able to avoid its payment obligation if had obtained a declaration from the court that the insurance was void or unenforceable before judgment is entered against the insured persons. P&O did not obtain a declaration before judgment in default was entered against the insured and his son and this resulted in the insurers not being able to escape coverage. As such, Kamacheh did not in any manner assist the Defendants. [54] There is also no value in the reliance by the Defendants to Section 95(k) of the RTA. The provision basically restricts the insurer from denying liability when the motor vehicle is being used for a purpose other than the purpose stated in the policy. [55] Paragraph (k) is irrelevant in the current case. The Plaintiff is not seeking to enforce any terms of the policy which restricts the use of S/N pYxjgJuPKUeCO6FNQsCOA 24 **Note : Serial number will be used to verify the originality of this document via eFILING portal the Vehicle. The sole issue before this Court is strictly on passenger coverage and not how the Vehicle was used at the material time. Whether the OS was premature [56] The Defendants' contention that this OS is premature is rejected by this Court. This Court finds the Plaintiff acting consistent with the provision of Section 96(3) of the RTA which strictly provides that a declaration that a policy is void or unenforceable must be obtained before judgment in the accident suit. [57] Section 96(3) of the RTA reads as follows: “(3) No sum shall be payable by an insurer under subsection (1) if before the date the liability was incurred, the insurer had obtained a declaration from a court that the insurance was void or unenforceable” [58] It is also consistent with the decision in Kamacheh as well as the Court of Appeal decision in Ahmad Nadzrin Abd Halim & Anor v Allianz General Insurance Company (M) Bhd [2015] 9 CLJ 821 wherein to avoid liability the insurer must obtain a declaration before judgment. [59] Whether or not a case must first be determined at trial must depend on the facts of each case. In Court of Appeal decision of Chu Chu @ Moksin bin Amlih v AmGeneral Insurance (Malaysia) Bhd & Ors [2017] MLJU 779 (“Chu Chu”), there was a dispute whether Chu Chu was a passenger, a stranger, a pedestrian, a rescuer or an employee under a contract of employment with the insured. Due S/N pYxjgJuPKUeCO6FNQsCOA 25 **Note : Serial number will be used to verify the originality of this document via eFILING portal to the uncertainty and the dispute of facts, the court ordered that the issue of whether Chu Chu was carried by reason of a contract of employment with the insured or the driver to be determined in the accident suit. [60] Contrasting the issue in Chu Chu with the current case, it is evident that there is no disputable factual finding that must be made by the Court. Instead it is an undisputed fact that the unfortunate accident involved a vehicle driven by a mother who was an authorized driver. The deceased and the injured party were her children and minors at the time of the incident. The trial will not disclose anything more in terms of the status of the parties. [61] Further, Chu Chu does not bar the insurers' right to commence an action for declaration before judgment in the accident suit. Instead, it was held by the Court of Appeal that in clear cut cases the court can grant declaration under Section 96(3) of the RTA. Conclusion [62] The hands of the courts are tied to the plain letter of the law irrespective of how unpalatable the outcome is. More so, when clear precedent has been established by the apex courts. [63] This is an unfortunate incident. However, the law cannot come to the aid of the aggrieved parties. The law must be interpreted as it is. S/N pYxjgJuPKUeCO6FNQsCOA 26 **Note : Serial number will be used to verify the originality of this document via eFILING portal [64] For the above reasons, the application in Enclosure 1 is allowed with no orders as to costs. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 20th March 2022 S/N pYxjgJuPKUeCO6FNQsCOA 27 **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsels Raymond Sivasothey for Plaintiff Messrs Kenneth William & Associates, Petaling Jaya, Selangor Yudhistrevarman Inthiran for D1 Messrs Saaran & Co, Seremban, Negeri Sembilan Dato’ Jasbeer Singh together with Nur Hakimah for D2 & D3 Messrs Jasbeer, Nur & Lee, Kuala Lumpur S/N pYxjgJuPKUeCO6FNQsCOA 28 **Note : Serial number will be used to verify the originality of this document via eFILING portal