MOHAMED FARID BIN ALI AKBAR ( wakil diri dan benefisiari kepada ZURITA BINTI MOHAMED TAIB) ETIQA TAKAFUL BERHAD

JA-22NCvC-186-11/2019 Page 1 of 8 Kand. 122 16/10/2023 09:54:45 MALAYSIA IN THE HIGH COURT IN MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM CIVIL SUIT NO.: JA-22NCVC-186-11/2019 BETWEEN MOHAMED FARID BIN ALI AKBAR (No. K/P: 631205-01-5371) (wakil diri dan benefisiari kepada ZURITA BINTI MOHAMED TAIB No. K/P: 641023-06-5510) simati) …PLAINTIFF AND ETIQA TAKAFUL BERHAD (266243D) …DEFENDANT JUDGMENT [1] The Plaintiff’s claim is based on the Group Mortgage Term Reducing Takaful (MRTT) which is a group takaful where Malayan Bank Berhad (MBB) is the group takaful participant and the deceased, who had applied for a housing loan with Maybank Islamic Bhd (MIB), is the person covered and was issued a Certificate of Assurance. After hearing the witnesses in this case, the court dismissed the plaintiff’s claim with costs. Hence this appeal by the plaintiff to the Court of Appeal. S/N 9P3d5tGa8kmkxY8iQ0zBQw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 2 of 8 [2] The three main issues in this case were as follows: “(i) the Plaintiff has no capacity to sue as the deceased was not the participant under the takaful certificate but only a person covered. First, there was no privity between the deceased and the Defendant as result thereof. Secondly, the Plaintiff was named as the ‘wakil diri and benefisiari’ of the deceased in the writ. In fact, he was not the administrator of the estate of the deceased and neither did Borang E under the Small Estate (Distribution) Act 1955 give him the power to administer the estate of the deceased; (ii) there was misrepresentation on the part of the deceased in not disclosing that she was suffering from cancer when she signed a declaration in the Conditional Acceptance knowing fully well that she was suffering from cancer and was receiving treatment for it at the time of signing it. She was also suffering from lung disease/disorder, namely tuberculosis at the time of signing the Application Form and was receiving treatment for it which she denied; (iii) waiver/estoppel in that the Plaintiff had received notice of repudiation by the Defendant dated 25.01.2019 and a full refund of the contributions paid and to date had not made any attempts to challenge the repudiation or refund the contributions.” [3] The facts of the case as gleaned from the defendant’s submission are: “i. The deceased applied for a financing facility from Maybank Islamic Berhad dated 26.8.2016 and 7.10.2016 i.e., “Commodity Murabahah Home/Shophouse Financing-I” in the amount of RM356,028.00 in respect of the house she bought which is held under H.S.(D) 294927 PTD 70946 at Mukim Tebrau Daerah Johor Bahru, Johor. S/N 9P3d5tGa8kmkxY8iQ0zBQw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 8 ii. Further, the financing facility provided by Maybank Islamic Berhad included Mortgage Reduction Team Takaful (MRTT) and the contribution for which was RM9,083.00 (6,028.00 being the original contribution and RM3,065.00 being the loading) which was paid to the Defendant. iii. The Application Form was signed by the deceased on 26.8.2016. Several relevant questions were asked as to the state of health of the deceased which were all answered in the negative. iv. As a matter of procedure to clarify her medical condition further, the Defendant requested a more recent blood test report from the deceased. The deceased had submitted the report as requested. v. A Conditional Letter of Acceptance was then issued by the Defendant and was signed and accepted on 25.4.2017 by the deceased wherein she declared that since the date of the takaful application (26.8.2016) there has been no change of family history, state of health and had not suffered any illness. It is also declared that the declaration and the application for takaful shall be the basis of the contract. vi. A Letter of Acceptance issued on 11.5.2017 provided in a special provision: “….. the proposal will be reviewed if:- a) at the time of the payment the age of the person covered has increased from the quoted age. b) any changes in the health of the person(s) covered. c) any circumstances affecting the proposal.” vii. The deceased was required to pay an additional loading of RM3,065.00 due to her condition and blood test result which showed that she had an enlarged heart and hypertension. S/N 9P3d5tGa8kmkxY8iQ0zBQw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 8 viii. The deceased passed away on 5.11.2017 (about 5 months after the issuance of the coverage) due to lung cancer as stated in the Death Certificate under the column of “Cause of Death”. ix. After assessing the claim, a Repudiation Letter dated 25.1.2019 was sent to the Plaintiff and informing him that the Defendant will not be paying the claim for reasons set out therein and refunded of the contribution of RM9,093.00 which was debited to the account of the deceased at Maybank Bank Berhad. The Plaintiff did object or raise an issue as regards the repudiation or refund of the contributions until to- date. x. The Plaintiff via his solicitors Messrs Suzana Farikah & Co had issued a letter of demand dated 14.10.2019 to the Defendant to pay on the policy. xi. On 07.11.2019, the Plaintiff has filed a writ summons against the Defendant to claim for a Declaration Order that the Mortgage Takaful between the Defendant and Zurita Binti Mohamed Taib (the Deceased) to be valid and enforceable and the balance Financing amount to be paid to Maybank Islamic Berhad to finance the house held under HSD 294927 PTD 70946, Mukim Tebrau, Daerah Johor Bahru, Negeri Johor.” [4] The agreed facts between parties was as per enclosure 45 and to avoid tautology I will not restate it here. [5] The main issue that prompted the court to dismiss the plaintiff’s claim, as submitted by the defendant, is as follows: “ISSUE 2: WHETHER THE DECEASED HAS BREACHED THE DUTY OF DISCLOSURE S/N 9P3d5tGa8kmkxY8iQ0zBQw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 5 of 8 i. A contract of insurance is a contract uberrimae fides or of the utmost good faith, imposing a duty on the person who wants to be insured to disclose all that is relevant to the insurer’s decision whether to accept the risk being proposed or on what terms to accept that risk. ii. The Deceased has signed the proposal form on 26/08/2016 and thereafter the Letter of Conditional Acceptance on 25/04/2017 and she is bound by their contents and it is immaterial she had read the document or not iii. The need to exercise good faith in disclosing known facts to the insurer. iv. From the evidence it is clear that at the time of signing the Application Form i.e. on 26/8/2016, the deceased was already suffering from chronic cough and shortness of breath, investigations were done by way of x- rays and bronchoscopy. She had seen 2 respiratory specialists and TB was suspected and anti TB treatment was suggested. It is abundantly clear that at the time of submitting the Application Form, the deceased:- (a) had been diagnosed with, or been treated for an illness/disease/disorder/condition, directly or indirectly related lungs (including pneumonia, tuberculosis); (b) that prior to the filling of the Application Form, she had or had been advised to undergo investigations/screening; (c) was receiving medical treatment/advice and have been referred to or admitted to a hospital or medical facility. v. The answers to the questions at 2(b), 2(c) and 2(d) in the Application Form are clearly false and deliberately made, as the deceased was undergoing all the treatment and investigations necessary for the lung disorder that she was suffering from prior to and at the time of filling the Application Form. As specific questions were asked in the Application S/N 9P3d5tGa8kmkxY8iQ0zBQw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 8 Form, these are relevant matters in so far as the Defendant is concerned whether to accept cover or not (Para. 7(8) of the Schedule 9 of IFSA). vi. Further, the deceased made a declaration in the Letter of Acceptance that there has been no change in her occupation, family history, state of health and that she did not suffer from any illness, bodily injury or physical impairment of any kind and she agreed that the declaration shall be form of basis of the takaful contract between MBB and the Defendant. This was signed on 25/4/2017. vii. Based on the facts and evidence tendered by the medical witnesses involved in the diagnosis and treatment of the deceased it clearly shows that the deceased was suffering from cancer of the lungs as early as January 2017 and had the knowledge of the same when she signed the Conditional Acceptance on 25/4/2017. She hid this fact from the Defendant with the hope that the Defendant will settle off her housing loan should anything happen to her. This clearly falls within the definition of deliberate and reckless misrepresentation under Schedule 9 of the IFSA. viii. The statements made in the Application Form and the Conditional Acceptance are clearly untrue and relates to a matter which was relevant to the Defendant (Para 7(3) of Schedule 9). This cannot be denied by the Plaintiff as the documents speak for themselves. There is no allegation raised by the Plaintiff of any undue influence, duress or any other factors to challenge the circumstances leading to the signing of the declaration or the application form. Thus, the Plaintiff is not challenging the voluntariness of the deceased in signing. ix. There was misrepresentation on the part of the deceased in not disclosing that she was suffering from cancer when she signed a declaration in the Conditional Acceptance knowing fully well that she was suffering from cancer and was receiving treatment for it at the time of signing it. She was also suffering from lung disease/disorder, namely S/N 9P3d5tGa8kmkxY8iQ0zBQw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 7 of 8 tuberculosis at the time of signing the Application Form and was receiving treatment for it which she denied. She was clearly in breach of her duty to disclose as stated in Para. 5(2) of Schedule 9. Specific questions were asked by the Defendant as to her health in the application form which are matters that are relevant (Para. 7(8) of Schedule 9). By giving false or untrue answers in the Application Form and the making a false declaration in the Letter of Acceptance on matters that are relevant to the Defendant as insurer, the deceased has made a deliberate or reckless misrepresentation thereby entitling the Defendant to avoid the cover given to the deceased and refuse all claims under Para 15(1) of Schedule 9.” [6] As for the other two issues in this case, id est that the plaintiff has no locus standi to bring this action against the defendant and that there was waiver and or estoppel against the plaintiff, it is unnecessary to discuss them as I have already decided this matter based on the second issue above which has determined this case. [7] Ergo cadit quaestio. Dated: 15th October, 2023 Signed (ASLAM B ZAINUDDIN) Judge High Court In Malaya Johor Bahru Note: This judgment is subject to correction of typographical errors, grammatical mistakes and editorial formatting, if any S/N 9P3d5tGa8kmkxY8iQ0zBQw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 8 of 8 COUNSEL For the Plaintiff: Suzana Farikah Messrs. Raihan, Suzana & Partners Advocates & Solicitors 32-01, Jln Perjiranan 2 Bandar Dato’ Onn 81100 Johor Bahru (SF/CIV/78/2019/faa) For the Defendant: Mithran Poobalan Messrs. Dass, Jainab & Associates Wisma Mariamah No. 14 Jln 65C Off Jln Pahang Barat Pekeliling Business Centre 53000 Kuala Lumpur (SD/33042/ETIQA-70/ZURITA/1219 gm) mydoc/az/mtjb-ja22ncvc-186-11/2019-fmak-etiqa/r78-1819 S/N 9P3d5tGa8kmkxY8iQ0zBQw **Note : Serial number will be used to verify the originality of this document via eFILING portal