MALAYSIAN MOTOR INSURANCE POOL JIVARATHINAM A/P BALASUBRAMANIAM

PA-24NCvC-745-10/2020 Kand. 24 21/04/2022 08:21:32 DALAM MAHKAMAH TINGGI MALAYA DI GEORGETOWN DALAM NEGERI PULAU PINANG, MALAYSIA SAMAN PEMULA NO. PA-24NCvC-745-10/2020 Dalam perkara mengenai Aturan 7 dan Aturan 92 Kaedah-Kaedah Mahkamah 2012 Dan Dalam perkara mengenai Part IV Akta Pengangkutan Jalan 1987 Dan Dalam perkara Seksyen 41 Akta Relif Spesifik 1950 Dan Dalam perkara mengenai kemalangan yang didakwa berlaku pada 18.8.2014 yang melibatkan motorvan No. WCQ 4309 dan motorsukal No. WJJ 8402 Dan Dalam perkara sivil di Mahkamah Majistret Bukit Mertajam Saman No. PC-A73KJ-512-08/2020 1 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal Antara Malaysian Motor Insurance Pool (MMIP) (Administered by MMIP Services Sdn Bhd) (No. Syarikat: 727804-H) ... Plaintif Dan Jivarathinam a/p Balasubramaniam (sebagai isteri, wakil diri yang sah dan Pentadbir kepada harta pusaka si mati, Sureskumar a/l Sybramaniam) ... Defendan JUDGMENT Introduction [1] In this originating summons an insurance company seeks a declaration that it is not liable to pay any judgment sum, under section 96(1) of the Road Transport Act 1987 (“RTA”), obtained by a third party against its insured in proceedings brought for such purpose, after the earlier proceedings for the same purpose had been withdrawn, on the ground that the third party did not 2 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal serve the requisite statutory notice stipulated under section 96(2)(a) of the RTA. [2] On 31.1.2022, I allowed the declaration sought by the plaintiff. This judgment contains the reasons for my decision. Background facts [3] On 23.3.2016, Messrs Subramaniam & Shafiq had served the plaintiff the requisite statutory notice under section 96(2)(a) of the RTA indicating that one Sureskumar a/l Subramaniam, the rider of motorcycle No. WJJ 8402, intends to institute legal proceedings for damages in respect of an alleged road accident on 18.8.2014 involving motorvan WCQ 4309. The motorvan was insured by the plaintiff. The legal proceedings commenced was Bukit Mertajam Magistrate’s Court Civil Suit PC-A73KJ-1123- 10/2016 (“the 1st civil suit”). On 22.5.2017, the 1st civil suit was struck out for the failure to proceed with the trial. [4] In such a situation, Sureskumar a/l Subramaniam was entitled to commenced a fresh civil suit in respect of the same accident and did so on 6.6.2017 at the Bukit Mertajam 3 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal Magistrate’s Court vide Civil Suit PC-A73KJ-554-06/2017 (“the 2nd civil suit”). The plaintiff alleged that it was not served with requisite statutory notice under section 96(2)(a) of the RTA and that is the reason the Magistrate’s Court, on 14.9.2017, entered judgment in default in favour of Sureskumar a/l Subramaniam and on 23.11.2017 awarded damages after carrying out an assessment of damages. [5] The plaintiff alleged that only upon being served with proceedings to enforce the judgment in default did it have knowledge of the 2nd civil suit. The plaintiff reacted by moving the High Court of Penang vide originating summons No. PA- 24NCvC-670-08/2018 for a declaration that the judgment in default and damages obtained against its insured was unenforceable against the plaintiff for failure to serve the requisite statutory notice under section 96(2)(a) of the RTA. [6] The originating summons was opposed on the ground that such statutory notice dated 1.6.2017 was in fact served on the plaintiff. The validity of the statutory notice was the issue before the High Court. The plaintiff had produced an expert’s report from the Department of Chemistry and pursuant to a notice of 4 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal application the expert was cross-examined. Suffice to say that, on 18.12.2018, the High Court refused the declaration and dismissed the originating summons. The plaintiff appealed to the Court of Appeal. It appears that the parties resolved the appeal by consent as is clearly reflected in the order of the Court of Appeal dated 3.9.2019. The relevant parts of the order are reproduced below: RAYUAN INI ditetapkan untuk pendengaran pada hari ini dalam kehadiran JS Naicker dan Imavathi Subramaniam peguamcara bagi pihak Perayu dan Siva Subramaniam peguamcara bagi pihak Responden DAN SETELAH MEMBACA Rekod Rayuan yang difailkan di sini DAN SETELAH MENDENGAR hujahan peguam-peguam tersebut MAKA ADALAH DIPERINTAHKAN DENGAN PERSETUJUAN bahawa: (a) Pihak Responden Pertama akan menarik balik segala tindakan menerusi Saman No. A73KJ-554- 06/2017 dan penghakiman bertarikh 14.9.2017 dan 23.11.2017 dibatalkan tanpa kos. 5 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) Responden Pertama diberi kebebasan memfail semula suatu guaman baru sebelum had masa kausa tindakan luput (tindakan baru tersebut) dan res judicata tidak akan timbul. (c) Segala jumlah penghakiman yang telah dibayar oleh Perayu kepada Peguamcara Defendan Pertama dipegang sebagai stakeholder (interest bearing account) sehingga tahap rayuan di Mahkamah Tinggi (jika ada) untuk tindakan baru tersebut. (d) Perayu dibenarkan untuk “set-off” amaun sebanyak RM6,760.00 (bagi kesemua kos yang diawardkan melalui Lampiran 1, 3 dan 36) yang dibayar melalui Saman Pemula No. PA-24NCvC- 670-08/2018 sekiranya Defendan Pertama mendapat pampasan menerusi tindakan baru tersebut. [7] The above consent order shows that the 2nd civil suit was withdrawn and the orders obtain therein set aside. Sureskumar 6 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal a/l Subramaniam was given liberty to commence a fresh civil suit within the period of limitation. It appears that Sureskumar a/l Subramaniam passed away before he could commence a fresh civil suit. [8] On 3.8.2020, the defendant, who is the administrator of the estate of Sureskumar a/l Subramaniam commenced a fresh civil suit in respect of the accident at the Bukit Mertajam Magistrate’s Court vide Civil Suit PC-A73KJ-512-08/2020 (“the 3rd civil suit”). The stand taken was that a fresh notice was not required to be served on the plaintiff as the plaintiff had already been served with the said notice before the 2nd civil suit was commenced. The plaintiff took the view that a fresh notice must be served and proceeded to filed the instant originating summons for the said declaration. Decision of the Court [9] The starting point in this appeal would be the relevant provisions of section 96 of the RTA that are reproduced below: 7 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal (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. (emphasis mine) (2) No sum shall be payable by an insurer under subsection (1) – 8 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) in respect of any judgement, unless before or within seven days after the commencement of the proceedings in which the judgement was given, the insurer had notice of the proceedings; (emphasis mine) (b) … (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: 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 judgment 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 9 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal 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. (emphasis mine) [10] It is the intention of the legislature that before an insurer is liable to satisfy any judgment sum obtained by a third party against its insured, the third party is required to serve the requisite statutory notice under section 96(2)(a) of the RTA on the insurer. The notice must be served either before the commencement of the proceedings or within seven days after the commencement of the proceedings in which the judgement sum was obtained. The failure to serve the stipulated statutory notice will disentitle the third party to recover the judgment sum from the insurer, if the insurer: (a) has obtained a declaration from the court stating that the insurance was unenforceable for that reason; and 10 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) that the said declaration was obtained before the date liability was incurred, that is to say, before the date judgment is obtained or pronounced by the court in which proceedings were commenced against the insured (Ahmad Nadzrin Abd Halim & Anor v. Allianz General Insurance Company (M) Bhd [2015] 6 MLJ 223 and Jayakumar Rajoo Mohamad v. CIMB Aviva Takaful Bhd [2019] 9 CLJ 552) [11] In situations where the insurer has obtained such declaration, the proviso to section 96(3) of the RTA provides that, the declaration will be of no effect in respect of a judgment obtained by a third party in proceedings commenced before the commencement of the action in which the declaration was obtained unless, before or within seven days after the commencement of that action, notice and the grounds relied on for such action is served on the third party. [12] Suffice to state that this proviso was not in issue before this Court as it was not applicable on the on the facts and circumstances of the instant originating summons. 11 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal The issue [13] The specific issue in this case is whether a third party who has commenced a fresh civil suit after the earlier civil suit is withdrawn is required to serve afresh the notice under section 96(2)(a) of the RTA on the insurer. [14] In this case the 3rd civil suit was commenced after Sureskumar a/l Subramaniam had withdrawn the 2nd civil suit at the hearing of the plaintiff’s appeal at the Court of Appeal. The appeal was against the dismissal of the plaintiff’s application for a declaration that it was not liable to pay the judgment sum which was obtained by Sureskumar a/l Subramaniam on the ground of the failure to serve the requisite statutory notice under section 96(2)(a) of the RTA. Arguments of the parties [15] The plaintiff argued that a fresh notice must be served as it is expressly stipulated in section 96(2)(a) of the RTA and that the defendant cannot rely on the notice dated 1.6.2017 for the 3rd civil suit. It was prayed that the declaration sought ought to granted 12 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal as the plaintiff has satisfied all the conditions for such declaration to be granted. [16] The defendant contended that the parties only consented to the 2nd civil suit being withdrawn but not the notice dated 1.6.2017. In the circumstances, it is argued that the notice dated 1.6.2017 remains valid and is applicable for the purposes of the 3rd civil suit. It was further argued that there is no need for a fresh notice to be served as only the 2nd civil suit and not the notice was withdrawn. Decision [17] After considering the cause papers, arguments and authorities cited by counsel, I allowed the declaration sought by the plaintiff. I am of the opinion that a civil suit filed afresh after the earlier civil suit is withdrawn requires a fresh section 96(2)(a) notice to be served on the insurer. Failure to do so would entitle the insurer to seek for and obtain a declaration to avoid satisfying any judgment sum subsequently obtained in the fresh proceedings commenced against the insurer’s insured. 13 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal [18] The words of section 96(2)(a) of the RTA are clear and unambiguous. The legislature used of the words “unless before or within seven days after the commencement of the proceedings” and “the insurer had notice of the proceedings” clearly requires the statutory notice that is served on the insurer must refer to the specific proceedings that are to be commenced or have been commenced and under which judgment is to be obtained. The critical words is the word “the” in the provisions. In this regard it is useful to refer to Bindra’s Interpretation of Statutes (9th Ed) at pp 1597–1598 where it is stated: ‘The’ is the word used before nouns, with a specifying or particularizing effect as opposed to the indefinite or generalizing force of ‘a’ or ‘an’. It determines what particular thing is meant, that is, what particular thing we are to assume to be meant. ‘The’ is always mentioned to denote a particular thing or a person (Shri Ishar Alloy Steels Ltd v Jayaswals Naco Ltd [2001] 3 SCC 609). [19] In the circumstances, the reliance on the notice dated 1.6.2017 is misconceived. The notice dated 1.6.2017 can only 14 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal refer to the 2nd civil suit. It does not refer to the 3rd civil suit. The 2nd suit is no more or does not exist after it has been withdrawn. If the third party intends to commence a fresh civil suit or has commenced a fresh civil suit a fresh statutory notice must be issued referring to the said proceedings. [20] The words “notice of the proceedings” would mean the notice of the 3rd civil suit which will be the proceedings in which judgment will be given for the purposes of section 96(1) of the RTA. Section 96(2)(a) of the RTA therefore requires that the insurer is given notice of this particular proceedings and no other. Thus, in the instant case the particular proceedings that must be referred to specifically in the statutory notice is the 3rd suit that is to be filed or has been filed. The High Court in Liberty Insurance Berhad v. Mohamed Fayadh Abdul Gaffoor & Ors [2021] 1 LNS 2022 in a similar situation held as follows: When the first suit was withdrawn the notice dated 22.9.2015 ceased to have effect. In my judgment it is incumbent upon the defendants' solicitors to issue a fresh notice to the plaintiff. 15 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal [21] As a second and separate reason the wordings of the consent order of the Court of Appeal in substance means that there was no service of a valid statutory notice under section 96(2)(a) of the RTA. That is the effect of the consent order as the validity of the statutory notice relied by the defendant the only issue at the said appeal. Otherwise, there was no reason to withdraw the 2nd civil suit and file a fresh civil suit in respect of the accident. The withdrawal of the 2nd civil suit has the effect of there being no longer in existence a judgment in default and judgment sum under the 2nd civil suit. The consent order at the Court of Appeal also has the effect of substituting the High Court decision that was under appeal. [22] I agree with counsel that the defendant having agreed to consent to the plaintiff’s appeal at the Court of Appeal would tantamount to the defendant agreeing that there was no notice served or that the notice was tampered with. It does not make any sense for the defendant to agree to the plaintiff’s appeal and withdraw the 2nd civil suit after obtaining judgment in default, an award of damages and succeeding at the High Court. 16 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal Conclusion [23] I am satisfied that the plaintiff has met the requirements of section 96(3) of the RTA. There is no judgment has been pronounced by the Magistrate’s Court where the 3rd civil suit is filed. [24] For the above reasons I allowed the originating summons. …………………sgd………………… Amarjeet Singh Serjit Singh Judicial Commissioner High Court Penang Dated: 20th April 2022 Counsel for the Applicant: Imavathi D/O Subramaniam [NAICKER & ASSOC. (BUTTERWORTH)] Counsel for the Respondent: Siva Subramaniam A/L M. Shanmugam [SUBRAMANIAM & SHAFIQ (KUALA LUMPUR)] 17 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal Cases referred to: 1. Ahmad Nadzrin Abd Halim & Anor v. Allianz General Insurance Company (M) Bhd [2015] 6 MLJ 223 2. Jayakumar Rajoo Mohamad v. CIMB Aviva Takaful Bhd [2019] 9 CLJ 552 3. Liberty Insurance Berhad v. Mohamed Fayadh Abdul Gaffoor & Ors [2021] 1 LNS 2022 18 S/N uMvqwZ/Y8kWkWeabVGmYug **Note : Serial number will be used to verify the originality of this document via eFILING portal