Mohamad Zulkarnain bin Mustafa 1. Allianz General Insurance Company (M) Bhd 2. Ainon binti Ishak 3. Mohamad Mukriz bin Che Morat

Mohamad Zulkarnain bin Mustafa 1. Allianz General Insurance Company (M) Bhd 2. Ainon binti Ishak 3. Mohamad Mukriz bin Che Morat

The Court upheld the High Court finding that the insured and insured rider made false police reports and failed to make full and frank disclosure; because their statutory declarations and affidavits were credible and unchallenged and the 3rd defendant did not apply to convert the originating summons or to cross-examine, the insurer was entitled under s96(3) RTA 1987 to a declaration that the policy was void and unenforceable in respect of the accident.

Citation
W-02(IM)(NCC)-1676-08/2017 (Mahkamah Rayuan)
Parties
Appellant (3rd Defendant Below): Mohamad Zulkarnain bin Mustafa; 1st Respondent (plaintiff Below): Allianz General Insurance Company (M) Bhd; 2nd Respondent (insured): Ainon binti Ishak; 3rd Respondent (claimant in Sessions Court): Mohamad Mukriz bin Che Morat
Court
IM
Jurisdiction
Malaysia
Judgment Date
20 March 2019
Case Number
W-02(IM)(NCC)-1676-08/2017 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal From High Court Originating Summons Under Road Transport Act 1987 / Court of Appeal Judgment on Appeal From High Court (originating Summons); Related Sessions Court Tort Proceedings Exist
Outcome
Appeal dismissed
Legal Topics
Repudiation of Insurance Policy, Utmost Good Faith (uberrimae Fidei), Non Disclosure and Fraud, Originating Summons Procedure, Use of Affidavits Vs Viva Voce Evidence
Source Language
Malay/English
Insurance Law Road Transport Law Civil Procedure Evidence Law Repudiation of Insurance Policy Utmost Good Faith (uberrimae Fidei) Non Disclosure and Fraud Originating Summons Procedure +1 more

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Parties

Mohamad Zulkarnain bin Mustafa

Appellant (3rd Defendant Below)

Allianz General Insurance Company (M) Bhd

1st Respondent (plaintiff Below)

Ainon binti Ishak

2nd Respondent (insured)

Mohamad Mukriz bin Che Morat

3rd Respondent (claimant in Sessions Court)

Procedural Posture

Civil Appeal From High Court Originating Summons Under Road Transport Act 1987 / Court of Appeal Judgment on Appeal From High Court (originating Summons); Related Sessions Court Tort Proceedings Exist

Legal Issues

  1. 1 Whether insurer was entitled to a declaration that the motor policy was void and unenforceable under s96(3) Road Transport Act 1987
  2. 2 Whether the High Court could decide the originating summons on affidavits and statutory declarations where allegations of fraud/non-disclosure existed without viva voce evidence or cross-examination
  3. 3 Whether the third party (claimant in Sessions Court) was entitled to seek indemnity under the insurance contract

Ratio Decidendi

The Court upheld the High Court finding that the insured and insured rider made false police reports and failed to make full and frank disclosure; because their statutory declarations and affidavits were credible and unchallenged and the 3rd defendant did not apply to convert the originating summons or to cross-examine, the insurer was entitled under s96(3) RTA 1987 to a declaration that the policy was void and unenforceable in respect of the accident.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • High Court declaration that the motor policy relating to motorcycle no. AHW 5937 is void and unenforceable in respect of the accident on 21.12.2015 affirmed