MUHAMMAD NUR AIZZAT BIN MOHD YUNOS 1. AMIR HAMZAH BIN ABD RAZAK 2. MD. RIZAL BIN KARSO PENCELAH PACIFIC & ORIENT INSURANCE CO BERHAD

MUHAMMAD NUR AIZZAT BIN MOHD YUNOS 1. AMIR HAMZAH BIN ABD RAZAK 2. MD. RIZAL BIN KARSO PENCELAH PACIFIC & ORIENT INSURANCE CO BERHAD

The High Court upheld the Sessions Court's acceptance of the Second Version as more inherently probable because independent witnesses and medical evidence corroborated it, the plaintiff failed to discharge the burden of proof on a balance of probabilities and discrepancies indicated suppression amounting to fraud thereby excluding insurer liability; statutory declarations and later-emerging witness accounts were admissible and s153 Evidence Act did not apply; the First Defendant rode without consent so s91 Road Transport Act barred insurer liability; appeal dismissed with costs.

Citation
JA-12B-33-03/2020 (Mahkamah Tinggi)
Parties
Appellant / Plaintiff: Muhammad Nur Aizzat bin Mohd Yunos; Respondent / First Defendant: Amir Hamzah bin Abd Razak; Respondent / Second Defendant: Md. Rizal bin Karso; Intervener: Pacific & Orient Insurance Co Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
31 March 2021
Case Number
JA-12B-33-03/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (motor Vehicle Personal Injury) / Appeal to High Court Against Sessions Court Judgment on Liability and Damages Assessment (grounds of Judgment)
Outcome
Appeal dismissed
Legal Topics
Negligence, Fraudulent Insurance Claim, Admissibility of Statutory Declarations, Burden of Proof, Vicarious Liability, Insurer Liability Under Road Transport Act S91, Exclusionary Rule S153 Evidence Act
Source Language
Malay/English
Tort Insurance Law Evidence Road Transport Law Civil Procedure Negligence Fraudulent Insurance Claim Admissibility of Statutory Declarations +4 more

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Parties

Muhammad Nur Aizzat bin Mohd Yunos

Appellant / Plaintiff

Amir Hamzah bin Abd Razak

Respondent / First Defendant

Md. Rizal bin Karso

Respondent / Second Defendant

Pacific & Orient Insurance Co Berhad

Intervener

Procedural Posture

Civil Appeal (motor Vehicle Personal Injury) / Appeal to High Court Against Sessions Court Judgment on Liability and Damages Assessment (grounds of Judgment)

Legal Issues

  1. 1 Which version of events (First Version or Second Version) is more inherently probable
  2. 2 Whether the statutory declarations of SD3, SD4 and SD5 are inadmissible under s73A(3) Evidence Act as statements by interested persons
  3. 3 Whether s153 Evidence Act excludes the Second Version as impermissible contradictory evidence

Ratio Decidendi

The High Court upheld the Sessions Court's acceptance of the Second Version as more inherently probable because independent witnesses and medical evidence corroborated it, the plaintiff failed to discharge the burden of proof on a balance of probabilities and discrepancies indicated suppression amounting to fraud thereby excluding insurer liability; statutory declarations and later-emerging witness accounts were admissible and s153 Evidence Act did not apply; the First Defendant rode without consent so s91 Road Transport Act barred insurer liability; appeal dismissed with costs.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs to respondents
  • Affirmation of the Sessions Court judgment dismissing the plaintiff's claim on liability