Shiva Kumar Day Allianz Life Insurance Malaysia Berhad & 1 Lagi

Shiva Kumar Day Allianz Life Insurance Malaysia Berhad & 1 Lagi

The court found that under the policies liability for TPD accrued from the commencement of disability and the Plaintiff’s disability and claim submission dates meant the cause of action arose well before the writ; the claims were therefore statute-barred under Limitation Act s6(1)(a); s29 did not postpone limitation because fraud/forgery allegations were bare, unsupported by police report or the alleged recording, and thus the claims were plainly unsustainable and properly struck out under O.18 r.19.

Citation
WA-22NCC-415-09/2020 (Mahkamah Tinggi)
Parties
Plaintiff: Shiva Kumar Day; First Defendant: Allianz Life Insurance Malaysia Berhad; Second Defendant: Thong Juen Sean
Court
High Court
Jurisdiction
Malaysia
Judgment Date
16 March 2021
Case Number
WA-22NCC-415-09/2020 (Mahkamah Tinggi)
Procedural Posture
Commercial Division Insurance Dispute (tpd Claim) / Striking Out Applications Under Order 18 R.19 and Order 92 R.4; Judgment on Enclosures 15 and 17
Outcome
Enclosures 15 and 17 allowed; Writ and Statement of Claim struck out and action dismissed as time-barred
Legal Topics
Total and Permanent Disability (tpd) Cover, Accrual of Cause of Action, Limitation Act S6 and S29, Alleged Fraud and Forgery by Agent, Strike Out Under O.18 R.19
Source Language
Malay/English
Insurance Law Limitation of Actions Contract Law Tort (negligence) Civil Procedure Total and Permanent Disability (tpd) Cover Accrual of Cause of Action Limitation Act S6 and S29 +2 more

Case Brief

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Parties

Shiva Kumar Day

Plaintiff

Allianz Life Insurance Malaysia Berhad

First Defendant

Thong Juen Sean

Second Defendant

Procedural Posture

Commercial Division Insurance Dispute (tpd Claim) / Striking Out Applications Under Order 18 R.19 and Order 92 R.4; Judgment on Enclosures 15 and 17

Legal Issues

  1. 1 When does an insured's cause of action under an indemnity policy accrue (date of loss/commencement of disability, date of claim, or date of repudiation)?
  2. 2 Whether the Plaintiff's claims are statute-barred under Limitation Act 1953 s6(1)(a)
  3. 3 Whether s29 Limitation Act (postponement for fraud) applies given alleged discovery of forgery/fraud

Ratio Decidendi

The court found that under the policies liability for TPD accrued from the commencement of disability and the Plaintiff’s disability and claim submission dates meant the cause of action arose well before the writ; the claims were therefore statute-barred under Limitation Act s6(1)(a); s29 did not postpone limitation because fraud/forgery allegations were bare, unsupported by police report or the alleged recording, and thus the claims were plainly unsustainable and properly struck out under O.18 r.19.

Court Disposition

Enclosures 15 and 17 allowed; Writ and Statement of Claim struck out and action dismissed as time-barred

Orders

  • Enc.15 (1st Defendant) allowed; writ and statement of claim struck out as time-barred
  • Enc.17 (2nd Defendant) allowed; writ and statement of claim struck out as time-barred