1. ) Therumoorthi A/L Appalanaidu v 1. ) Public Bank Berhad (WA-22NCC-528-07/2023)

THERUMOORTHI A/L APPALANAIDU …PLAINTIFFS (IC No.: 530903-08-6123) (MENTUNTUT SENDIRI DAN SEBAGAI PENTADBIR BAGI ESTET VISHNU

ANJELAI DEVI A/P MANIAM (IC No.: 580316-05-5504) AND 1) PUBLIC BANK BERHAD ...DEFENDANTS (Company No.: 6463-H) 2) AIA BERHAD (Company No.: 790895-D)

This is a trial heard over 3 days on 07-02-2025, 16-04-2025 and 18-04-2025. The plaintiffs are Therumoorthi A/L Appalanaidu [Suing In Person And As Administrator For The Estate Of Vishnu Murthy A/L Therumoorthi (Si Mati)] and Anjelai Devi A/P Maniam.

They sued Public Bank Berhad [“Public Bank”] and AIA Berhad. The suit against Public Bank the 1st defendant had been struck out. The trial proceeded against AIA Berhad the 2nd defendant [“AIA Berhad”].

Oral submissions by counsel were held before me on 23-07-2025. On conclusion of oral submissions, I had dismissed the suit with costs of RM 10,000 subject to allocatur. My Broad Grounds for dismissing the suit [Enclosure 144 Amended SOC] were-Broad Grounds

In my view, the 2nd Health Question in the Application Form is not confined to the period of 6 months before the date of the Application Form.

The evidence presented in court shows that the deceased had several material medical histories, which were acute hepatitis, major depression and young hypertension, prior to the application for the insurance policy.

In breach of the principle of utmost good faith (uberrima fides) and the Financial Services Act 2013 (Act 758) [“FSA”], the deceased failed to disclose these material medical histories in his proposal for the insurance policy. In fact, he had given a wrong answer of ‘Negative’.

The deceased is a medical doctor. I therefore do not accept the submission of the plaintiffs that the case of Pacific & Orient Insurance Co Sdn Bhd v Kathirvelu [1992] 1 MLJ 249, SC, supports the plaintiffs’ case. That case is premised on the finding by the Supreme Court that the illness in question did not fall within the notification clause based on the ejusdem generis rule of interpretation.

AIA Berhad is entitled to repudiate the policy.

An appeal was filed by the plaintiffs on 20-08-2025 to the Court of Appeal. These are my Grounds of Judgment.

The 1st plaintiff is the father of the late Dr. Vishnu Murthy A/L Therumoorthi ("Deceased"). He is also the Administrator of the Estate of the Deceased pursuant to the Letter of Administration issued by the High Court of Kuala Lumpur on 27-10-2016 through Civil Suit No. (WA-31NCVC-1354-08/2016).

The 2nd plaintiff is the mother of the Deceased.

AIA Berhad is a life insurance company.

The Deceased served as a doctor at Kuala Lumpur General Hospital until 18-05-2016. He tragically passed away on 18-05-

Deceased obtained a Mortgage Decreasing Term Assurance (“MDTA”)

Prior to his passing, the Deceased had purchased a property. To do so, he applied for a loan from Public Bank to finance the said purchase. [Ref: Facilities Agreement dated 30-03-2016 at pages 15 – 90 of Bundle B4 [Enclosure 83]].

A condition precedent for the release of the loan was the requirement for the Deceased to obtain a MDTA for the sum insured of RM 500,000 solely under the Deceased’s name, with the benefit coverage for 23 years. [Ref: Letter of Offer dated 05- 02-2016, specifically at page 13 of Bundle B3 [Enclosure 127]].

Vide an ‘Application Form for Credit Life Term Assurance’ dated 29-02-2016 (“Application Form”), the Deceased applied and/or proposed to AIA Berhad for the MDTA for the sum insured of RM 500,000. [Ref: Application Form at pages 101 – 106 of Bundle B4 [Enclosure 83]].

In the Application Form, the Deceased was informed of his statutory pre-contractual duty of disclosure as follows [Ref: Application Form at page 101 of Bundle B4 [Enclosure 83]]: IMPORTANT NOTICE “Under Paragraph 5 of Schedule 9 of the Financial Services Act 2013, you are required to take reasonable care not to make any misrepresentation when answering any questions asked by AIA i.e. you should answer the questions fully and accurately / correctly. Please note that all the questions that are asked by AIA are relevant to AIA’s decision whether to accept the risk or not and the rates and terms to be applied. If there are any changes to the answers given in the application / proposal form between the time of submission of the application / proposal form and time the contract is entered into, you are also required to disclose to AIA fully and accurately / correctly such changes. In addition to answering the questions in the proposal form fully and accurately / correctly, you are also required to take reasonable care to disclose to AIA fully and accurately / correctly any other matters which you know to be relevant to AIA’s decision on whether to accept the risk or not and the rates and terms to be applied. If you do not understand your obligation / duty as stated above or if you need any further explanation, you can contact AIA or Bank’s Certified Sales Personnel.” [Emphasis Added]

In the Application Form, the Deceased answered “NO” to the following specific question in the Application Form [Ref: Question 2 of Part 2 of the Application Form at page 102 of Bundle B4 [Enclosure 83]]: - “2. Have you been medically advised by any medical officers or practitioners or been diagnosed, treated, or given any medication for any one / more of the following: heart disease; stroke; cancer; tumour of any kind; HIV infection; AIDS; high blood pressure; diabetes; asthma or other respiratory disorders; urinary or kidney disease; hepatitis; liver diseases; blood disorders; mental or nervous disorders; epilepsy; back or neck pain; any other serious or prolonged illness or injury; any physical defects?” [Emphasis Added]

In the Application Form, the Deceased had also declared that [Ref: Application Form at page 103 of Bundle B4 [Enclosure 83]: - DECLARATION AND AUTHORISATION “‘a) I am aware that it is my pre-contractual duty of disclosure that I must exercise reasonable care not to misrepresent i.e. to give false answers / information when answering any questions asked by AIA and that I am to answer the questions fully and accurately / correctly; b) I have read and understood the contents of the application / proposal form including all warnings and notices therein and I have fully and accurately answered all the questions in the application / proposal form and the other questions asked by AIA, if any, after having fully read and understood the questions. c) I am aware that I must inform AIA of any change to the answers given in the proposal form if the change occurred after I have submitted the proposal form but before the contract is entered into; d) I fully understand that my answers and / or statements given in respect of the questions asked by AIA, and any other relevant documents completed by me in connection with the application / proposal and in any medical report or amendments (collectively referred to as “the information”) are relevant to AIA in deciding whether to accept my application / proposal or not and the rates and terms to be applied; e) I am aware that if any of my answers or statements or information given by me is not accurate / correct, the policy may be avoided, my claim denied or reduced, the terms of the policy changed or varied, or the Policy terminated.” [Emphasis Added]

Pursuant to the answers provided in the Application Form submitted by the Deceased, the Deceased’s application was accepted by AIA Berhad at “standard rate” with standard premiums payable.

Upon the receipt of the single premium by AIA Berhad on 22.04.2016, a MDTA Certificate of Insurance No. 80856554 (“COI”) was issued on 25-04-2016 with the sum insured of RM 510,115.00. The effective date of coverage was 22-04-2016. [Ref: COI at page 1 of Bundle B1 [Enclosure 82]] The plaintiffs’ claim

The Deceased passed away on 18-05-2016. On 29-06-2016, AIA Berhad received a death claim form executed by the 2nd plaintiff (as the nominee of the COI) on 28-06-2016 (“Death Claim”). [Ref: Death Claim Form at pages 107 – 109 of Bundle B4 [Enclosure 83]].

The Death Certificate Registration No. J011439 (“Death certificate”), states the Deceased passed away from “heart failure with cardiogenic shock and septic shock” at Institut Jantung Negara on 18-05-2016. [Ref: Death Certificate at page 1 of Bundle B3 [Enclosure 127]]. AIA Berhad repudiated the Death Claim

In the course of reviewing the Death Claim, AIA Berhad discovered the Deceased had not disclosed in his Application Form that he had been seeing doctors for treatment of various medical issues in 2013 and 2014.

As such, by a letter dated 24-02-2017, AIA Berhad repudiated the plaintiffs’ Death Claim, cancelled the COI from inception and refunded the premium. [Ref: Repudiation letter dated 24-02-2017 at pages 3 – 4 of Bundle B1 [Enclosure 82]]. The plaintiffs filed a suit against the defendants

The plaintiff filed a writ against the defendants claiming for, inter alia, the sum of RM 500,000, being the insured sum under the COI. [Ref: Plaintiffs’ prayers at paragraph 14 of SOC at Bundle IP [Enclosure 126]].

The following witnesses testified during the trial for the plaintiffs: - i. 1st plaintiff - PW1; and ii. 2nd plaintiff - PW2

AIA Berhad called these witnesses- i. Norhashimah Binti Misdi - DW1; ii. Dr. Khoo Ching Soong - DW2; iii. Dr. Chong Kam Pui - DW3; iv. Dr. Eni Rahaiza Binti Mohd Ramli - DW4; v. Goh Chet Kee - DW5; and vi. Lum Mei Kuan-DW6 The plaintiffs’ submissions

The plaintiffs’ counsel submits the following arguments in their written submissions-i. The health questions in part 2 of the Application Form clearly states 6 months; ii. The Application Form was not thoroughly explained to the Deceased by witness (DW1), the Public bank officer in charge; iii. AIA Berhad has failed to send the Deceased for medical check-up even though the insurance sum is more than RM 500,000.00; iv. All the medical reports tendered as evidence are very much more than 6 months; v. The Deceased and the plaintiffs have not concealed any information and have been truthful since the beginning;

From the plaintiffs’ submissions the issues are-i. Whether the 2nd Health Question in Part 2 of the Application Form is confined to the period of 6 months before the application for insurance; ii. Assuming the Application Form was not thoroughly explained to the Deceased by witness (DW1), the Public bank officer in charge, what is the legal significance to the claim against AIA Berhad; iii. Does AIA Berhad have a duty to send the Deceased for a medical check-up when the insurance sum is more than RM 500,000.00; iv. Can the medical reports that were tendered be used as evidence since they are dated more than 6 months prior to the date of the Application Form; v. Is it true the Deceased and the plaintiffs have not concealed any information and have been truthful since the beginning. Courts’ analysis

During the oral submissions, counsel for the plaintiffs informed me that the plaintiffs will be relying on issue 1. However, for completeness, I shall also consider the rest of the issues.

I shall now proceed to consider the issues. Issue 1 - Whether the 2nd Health Question in Part 2 of the Application Form is confined to the period of 6 months before the application for insurance

To my mind, Part 2 of the Application Form [Ref: Application Form at page 102 of Bundle B4 [Enclosure 83]] contained 2 clear, separate and specific Health Questions. They are: - “Part 2 – Health Questions

In the past 6 months, have you had or been advised to have any one / more of the following: treatment / hospitalisation / diagnostic tests (including but not limited to X-Rays, ECG, CT Scan, Ultrasound), other than for pre-employment screenings / routine company or visa application medical check-ups, for any medical condition(s)?

Have you been medically advised by any medical officers or practitioners or been diagnosed, treated, or given any medication for any one / more of the following: heart disease; stroke; cancer; tumour of any kind; HIV infection; AIDS; high blood pressure; diabetes; asthma or other respiratory disorders; urinary or kidney disease; hepatitis; liver diseases; blood disorders; mental or nervous disorders; epilepsy; back or neck pain; any other serious or prolonged illness or injury; any physical defects?”

The 2 Health Questions are 2 separate questions that are independent of each other. They appear in two separate paragraphs and each requires a separate answer. This interpretation is supported by the fact that a question mark (?) is used at the end of each Health Question, which signifies the end of each Health Question.

This interpretation is fortified by the absence of the phrase ‘In the past 6 months’ at the beginning of the 2nd Health Question. The 2nd Health Question is thus not confined to ‘In the past 6 months’. Issue 2 - Assuming the Application Form was not thoroughly explained to the Deceased by witness (DW1), the Public Bank officer in charge, what is the legal significance to the claim against AIA Berhad;

This issue is irrelevant as AIA Berhad is not responsible for any act or omission of any officer from Public Bank to advise the Deceased.

Further, the plaintiffs’ suit against Public Bank has been struck out. On 14-07-2022, Public Bank had filed an application pursuant to Order 14A of the Rules of Court 2012, to determine the following preliminary issue: - Whether the 1st defendant, in its capacity as a lender, owes any duty to advise Vishnu Murthy A/L Therumoorthi (the deceased) on his Mortgage Reducing Term Assurance (MRTA) insurance policy?”

This Court had decided that Public Bank does not owe any duty of care to advise the Deceased on his MDTA insurance policy, and thus, the plaintiffs’ claim against Public Bank was dismissed. An appeal to the Court of Appeal was also dismissed. Leave to appeal to the Federal Court was denied. Hence, the allegation of breach of duty of care to advise the Deceased by Public Bank is res judicata. [Ref: D1’s NOA and AIS in Enclosure 16 and Enclosure 19 and Ref: Court Order dated 08-12-2022 in Enclosure 69].

In addition, the Public Bank officer in charge of attending to the Deceased, Puan Norhashimah Binti Misdi (DW1), was called and gave evidence that she had – i. informed the Deceased of his duty to answer all the questions in the Application From fully, frankly and accurately and requested him to read the “IMPORTANT NOTICE” at the first page of the Application Form in respect of his duty not to make any misrepresentation; ii. asked the Deceased if he had any medical conditions, medications, treatments, hospitalisations or diagnostic tests; iii. explained to the Deceased that he needed to disclose this information to AIA Berhad, as failure to do so may affect his policy and/or cause the policy to be voided; and iv. requested the Deceased to double check and confirm all the details and answers in the Application Form were correct, and after having done so, requested the Deceased to initialled on each and every page of the Application Form and signed at the signing page under “Signature of Applicant”. [Ref: Q&A 4 and 5 of WS - DW1 at page 2 of Enclosure 145].

DW-1 maintained her answers during cross-examination: - “EMANUELL Madam Norashimah I refer you to your Witness Statement Q & A 4, you said you explained to him about the Mortgage Decreasing Term Assurance, correct? Yes. EMANUELL Did you explain to him one by one? Yes. EMANUELL So, you are saying that you explain everything thoroughly to fill up and everything, yes or no Puan? Yes.” [Ref: From line 17 of page 108 to line 6 of page 109 of the NOP [Enclosure 161].

In conclusion, I dismiss this argument of the plaintiffs. Issue 3 - Does AIA Berhad have a duty to send the Deceased for a medical check-up when the insurance sum is more than RM 500,000.00;

When I asked counsel for the plaintiffs to show me any contractual provision or caselaw that imposed such a duty on AIA Berhad, counsel candidly there is no contractual provision or caselaw.

I consider the following propositions to be settled by authority.

An insured’s duty to disclose material information to an insurer constitutes a duty which exists independently of any proposal form. The insurer need not ask for the information. [See Tan Mooi Sim & Anor v United Overseas Bank (M) Bhd & Anor [2011] 6 CLJ 937, HC, at 24 - 29].

The insurer is entitled to rely on the answers provided in the proposal form before issuing the policy and there is no duty on the insurer to investigate the answers provided by the insured. [See Siva Prakash a/l Ramasamy (As Executor and Trustee for the Estate of Jachiswaran a/l Duroy Selvam) v MCIS Insurance Bhd [2024] MLJU 2196, HC, Atan Mustaffa J].

A contract of insurance is one that imposes a mutual duty on the parties to it to act uberrima fides [or in its genitive form uberrimae fides] [Latin for "utmost good faith"] towards each other. The insured must make full disclosure of all material facts. It is not for him or her to decide in his or her own mind what is material. It does not matter whether the insurer asks any questions of the insured. The duty is on the insured to make full disclosure of material facts within his knowledge. [See Leong Kum Whay v QBE Insurance (M) Sdn Bhd & Ors [2006] 1 MLJ 710, CA, at [15 - 16].

In an instructive judgment in Leong Kum Whay v. QBE Insurance (M) Sdn Bhd & Ors [2006] 1 MLJ 710, CA, Gopal Sri Ram JCA said- [15] It is settled beyond dispute that a contract of insurance is one that imposes a mutual duty on the parties to it to act uberrimae fides towards each other. On the part of the insured, he or she must make full disclosure of all material facts. It is not for him or her to decide in his or her own mind what is material. It does not matter whether the insurer asks any questions of the insured. The duty is on the insured to make full disclosure of material facts within his knowledge. Whether a particular fact is material is a question of fact (see Mann Macneal & Steeves Ltd v Capital & Counties Insurance Co Ltd [1921] 2 KB 300). But the duty to make full disclosure of all material facts is not an implied term of a contract of insurance. There is in fact no contract at the point at which the duty arises; the parties being still at the stage of negotiations. It is therefore a pre-contractual duty imposed by the common law. I take these propositions to be settled by authority. [16] I begin with Rozanes v Bowen (1928) 32 L1L Rep 98 at p 102 where Scrutton LJ said this: As the underwriter knows nothing and the man who comes to him to ask him to insure knows everything, it is the duty of the assured, the man who desires to have a policy, to make a full disclosure to the underwriters without being asked of all the material circumstances, because the underwriter knows nothing and the assured knows everything. That is expressed by saying that it is a contract of the utmost good faith — uberrima fides. (Emphasis added.)

In conclusion, I dismiss this argument of the plaintiffs. Issue 4 - Can the medical reports that were tendered be used as evidence since they are dated more than 6 months prior to the date of the Application Form;

The answer is Yes based on my answer to issue [1] above. Issue 5 - Is it true the Deceased and the plaintiffs have not concealed any information and have been truthful since the beginning.

In my view, it is an irrelevant fact whether or not the plaintiffs have not concealed any information and have been truthful since the beginning. Is AIA Berhad entitled to repudiate the policy under the FSA?

The issue is whether the Deceased had made any misrepresentation in his Application Form that entitles AIA Berhad to repudiate the policy under the FSA. Duty of disclosure under the FSA

The common law duty of disclosure on the part of a person purchasing an insurance policy was codified in Malaysia in the Insurance Act 1996 which has now been repealed by the FSA [which replaced several existing laws to consolidate regulation under a single framework] which lays down the duty of disclosure for all insurance contracts.

The Insurance Act 1996 and now the FSA have restricted to a certain extent the right of insurers to use the common law principle of uberrima fides to repudiate a policy of life insurance for misrepresentation. In essence, the FSA’s restriction is based on whether the contract of life insurance has been in effect for a period of two years or less or more than two years - i. For a consumer insurance contract of life insurance which has been effected for a period of two years or less, if a misrepresentation was deliberate or reckless, a licensed insurer may avoid the consumer insurance contract and refuse all claims. [See FSA Schedule 9 Part 2 paragraph 7 and Part 3 Division 2 paragraphs 14 and 15]. ii. Where a contract of life insurance has been in effect for a period of more than two years during the lifetime of the insured, such a contract shall not be avoided by a licensed life insurer on the ground that a statement made or omitted to be made in the proposal for insurance or in a report of a doctor, referee, or any other person, or in a document leading to the issue of the life policy, was inaccurate or false or misleading unless the insurer shows that the statement was on a material matter or suppressed a material fact and that it was fraudulently made or omitted to be made by the policy owner or the insured. [See FSA Schedule 9 Part 3 Division 1 paragraph 13[2]].

In the case before me, the COI came into effect on 22-04-2016 and the Deceased passed away less than 1-month later on 18-05-

As such, the COI has been effected for a period of less than 2 years.

For a case on repudiation of a policy more than two years based on fraud relying on the old section 147(4) of the repealed Insurance Act 1996 which failed due to failure to prove fraud one can refer to the judgment in Tan Mooi Sim & Anor v United Overseas Bank (M) Bhd & Anor [2011] 6 CLJ 937, HC, at [30].

The FSA came into force on 01-01-2015. section 129(1) FSA states – “Schedule 9 sets out the pre-contractual duty of disclosure and representations for contracts of insurance in Part 2, and the remedies for misrepresentations relating to contracts of insurance in Part 3”.

As the COI in the case before me is a consumer insurance contract, Schedule 9 Part 2 paragraph 5 of the FSA is applicable. It reads as follows-Pre-contractual duty of disclosure for consumer insurance contracts “(1) Before a consumer insurance contract is entered into or varied, a licensed insurer may request a proposer who is a consumer to answer any specific questions that are relevant to the decision of the insurer whether to accept the risk or not and the rates and terms to be applied.

It is the duty of the consumer to take reasonable care not to make a misrepresentation to the licensed insurer when answering any questions under subparagraph (1). …

A licensed insurer shall, before a consumer insurance contract is entered into, varied or renewed, clearly inform the consumer in writing of the consumer’s pre-contractual duty of disclosure under this paragraph, and that this duty of disclosure shall continue until the time the contract is entered into, varied or renewed.

Subject to subparagraphs (1) and (3), a consumer shall take reasonable care to disclose to the licensed insurer any matter, other than that in relation to subparagraph (1) or (3), that he knows to be relevant to the decision of the insurer on whether to accept the risk or not and the rates and terms to be applied.

Nothing in this Schedule shall affect the duty of utmost good faith to be exercised by a consumer and licensed insurer in their dealings with each other, including the making and paying of a claim, after a contract of insurance has been entered into, varied or renewed.” [Emphasis added]

In the event of misrepresentation, the remedies available to the insurer are set out in Schedule 9 Part 2 paragraph. 7(1)(b), 7(2) and Part 3 Division 2 paragraph 15 of the FSA which read-Part 2 “(7)(1)(b) Part 3 of this Schedule - in Division 2, sets out the remedies available to a licensed insurer for a misrepresentation made in respect of-

a consumer insurance contract of life insurance which has been effected for a period of two years or less; and

(ii) a consumer insurance contract of general insurance.” “(7)(2) The remedies set out in Division 2 shall be available to a licensed insurer for a misrepresentation made by a consumer before a consumer insurance contract referred to in subsubparagraph (1)(b) was entered into, varied or renewed if –

the consumer has made a misrepresentation in breach of his duty under subparagraph 5(2) or (4); and

the licensed insurer shows that had it known the true facts, it would not have entered into the contract, or agreed to the variation or renewal, or would only have done so on different terms.” …

Deliberate or reckless misrepresentation is defined in Schedule 9 Part 2 paragraph 7(4) of the FSA as: - “(4) A misrepresentation is deliberate or reckless if the consumer knew that-

it was untrue or misleading, or did not care whether or not it was untrue or misleading; and

the matter to which the misrepresentation related was relevant to the licensed insurer, or did not care whether or not it was relevant to the insurer.” [Emphasis added]

It is trite that a person is bound by his signature on a document and the terms therein regardless of whether he is ignorant of the language it is written in or whether he has read the document. [See Polygram Records Sdn Bhd v The Search & Anor [1994] 3 CLJ 806, HC]. Application to facts

I now consider whether AIA Berhad is entitled to repudiate the Death Claim submitted by the plaintiffs. AIA Berhad must prove the following elements on the balance of probabilities: - i. the Deceased did have the medical conditions / diagnoses / treatment [“True Facts”]; ii. there was misrepresentation(s) on the part of the Deceased in his application for the MDTA policy where he failed to disclose the True Facts; iii. the True Facts are ‘relevant’ and ‘material’ to the underwriting of the Deceased’s application; and iv. the misrepresentation(s) was made ‘deliberately’ and/or ‘recklessly’. True Facts existed

I am satisfied the True Facts existed. The evidence shows as follows-i. Between 24-06-2013 to 26-06-2013, the Deceased was admitted into Hospital Ampang wherein the Deceased was diagnosed with Acute Hepatitis TRO Chronic Liver Disease and he was prescribed with medications for the same such as ‘T. Rabeprazole 20mg BD x 2/12’, ‘T. Essentiale 1/1 TDS’, and ‘T. Perindopril 2 MG OD’; [Ref: Medical Report from Hospital Ampang dated 24-09-2014 at pages 91 – 92 of Bundle B4 [Enclosure 83]]; ii. The Deceased had several consultations with a Consultant Psychiatrist, Dr. Eni Rahaiza Bt Muhamed Ramli of Jabatan Psikiatri & Kesihatan Mental from Hospital Taiping, and was subsequently diagnosed with ‘Major Depression’ and was prescribed with medications such as ‘T Sertraline 25mg nocte’ wherein the dosage of this medication was later increased to ‘50 mg nocte’; [Ref: Medical Report from Hospital Taiping dated 12-11-2014 at pages 93 – 95 of Bundle B4 [Enclosure 83]; and iii. The deceased was a ‘chronic smoker and alcoholic drinker, with underlying young hypertension. [Ref: Medical Report from Hospital Ampang dated 24-09-2014 at pages 91 – 92 and the Medical Report from Hospital Selayang at page 96 of Bundle B4 [Enclosure 83]].

When I posed the question to Dr. Chong DW3 what is ‘young hypertension’, Dr. Chong replied ‘young hypertension’ means a person diagnosed with hypertension before the age of 40 years old, which is considered young. [See NOP page 142 line 20 to page. 143 line 4].

The True Facts can be seen from the medical reports from Hospital Ampang, Hospital Taiping and Hospital Selayang which I have set out above. The reports can be found at pages 91 to 96 of Bundle B4 [Enclosure 83].

The makers of the medical reports were also called as witnesses to confirm the contents of their reports: - i. Dr. Khoo Ching Soong (DW-2) Ref: Q&A 8 at page 3 of WS-DW2 in Enclosure 141; ii. Dr. Chong Kam Pui (DW-3) Ref: Q&A 4 and 5 at page 2 of WS-DW3 in Enclosure 139; and iii. Dr. Eni Rahaiza Binti Muhamed Ramli (DW-4) Ref: Q&A 4 at page 3 of WS-DW4 in Enclosure 140. Misrepresentation(s) on the part of the Deceased in completing the Application Form

The Deceased is bound by the answers and declarations provided by him, regardless of whether he fully understood the same. [See Polygram Records Sdn Bhd v The Search & Anor [1994] 3 CLJ 806, HC]

In my view, the Deceased fully understood the terms and declarations made in the Application Form when he executed the same because being a doctor, he was an educated and literate person who was capable of reading and understanding the terms and declarations contained in the Application Form.

I am further of the view the Deceased had made misrepresentation(s) in completing the Application Form as he had answered ‘No’ to the question- “2. Have you been medically advised by any medical officers or practitioners or been diagnosed, treated, or given any medication for any one / more of the following: heart disease; stroke; cancer; tumour of any kind; HIV infection; AIDS; high blood pressure; diabetes; asthma or other respiratory disorders; urinary or kidney disease; hepatitis; liver diseases; blood disorders; mental or nervous disorders; epilepsy; back or neck pain; any other serious or prolonged illness or injury; any physical defects?” The True Facts are ‘relevant’ and ‘material’ to the underwriting of the Deceased’s application

At Schedule 9 Part 2 paragraph 7(2) of the FSA, it is provided that: - “(2) The remedies set out in Division 2 shall be available to a licensed insurer for a misrepresentation made by a consumer before a consumer insurance contract referred to in subsubparagraph (1)(b) was entered into, varied or renewed if-

the consumer has made a misrepresentation in breach of his duty under subparagraph 5(2) or (4); and

the licensed insurer shows that had it known the true facts, it would not have entered into the contract, or agreed to the variation or renewal, or would only have done so on different terms.” [Emphasis added]

There is a statutory presumption in Schedule 9 Part 2 paragraph 7(8) of the FSA that all information requested in the Application Form is relevant to the decision of the insurer whether to accept the risk (by issuing the COI) or not and the rates and terms to be applied. [See Tan Siew Wei v Great Eastern Life Assurance (Malaysia) Berhad [2021] MLJU 1909, HC, at [49 - 51]].

Schedule 9 Part 2 paragraph 7(8) of the FSA reads as follows-

Unless the contrary is shown, it is to be presumed that the consumer knew that a matter about which the licensed insurer asked a clear and specific question was relevant to the insurer. [Emphasis added]

AIA Berhad is entitled to rely on this presumption. This presumption has not been rebutted by the plaintiffs in this case.

Further, DW6 Lum Mei Kuan who is an underwriter of AIA Berhad has testified that the True Facts were indeed relevant and material to the underwriting decision in that: - i. “The True Facts are material and/or relevant facts / matters for AIA to consider in the process of deciding whether to issue the COI and provide cover to the Deceased and if so, on what terms as they will impact the risk of insuring / covering the deceased, and accordingly the insurance terms and/or coverage to be offered to him, negatively”; and ii. “In this regard, if the True facts were made known to AIA before the issuance of the COI, AIA would not have issued the COI and provided cover to the deceased at “standard rate” but would have instead called for additional medical reports and medical investigation test results to determine risk acceptance. If the aforesaid reports / results were not provided, the deceased’s application vide the Application Form will be rejected.” [Ref: Q&A 8 of WS-DW6 at page 7 of Enclosure 133]

DW6 also explained that the Deceased’s application for the MDTA policy was accepted at ‘standard rate’ as there was no adverse information provided in the Application Form. [Ref: Q&A 6 of WS-DW6 at page 6 of Enclosure 133]

The evidence of DW6 was unchallenged by the plaintiffs. No evidence was called by the plaintiffs on the issue of materiality and/or the underwriting rates. In Takako Sakao v Ng Pek Yuen [2009] 6 MLJ 751, FC, the Federal Court has held at [4] that in the absence of one party’s evidence proving contrary against another party’s evidence, it is the duty of the judge to accept the latter’s evidence as true. The Misrepresentation(s) was made ‘deliberately’ and/or ‘recklessly’

Deliberate or reckless misrepresentation is defined by paragraph 7(4) of Schedule 9 of the FSA as: - “(4) A misrepresentation is deliberate or reckless if the consumer knew that-a) it was untrue or misleading, or did not care whether or not it was untrue or misleading; and b) the matter to which the misrepresentation related was relevant to the licensed insurer, or did not care whether or not it was relevant to the insurer.”

Mr. Wong Hok Mun, lead counsel for AIA Berhad, submits forcefully that the True Facts occurred not that long before the signing of the Application Form. Being a doctor, the Deceased would have full knowledge and understanding of his medical problems. I have to agree with Mr. Wong. The Deceased in fact had been diligently seeking treatment from medical specialists for his medical issues. AIA Berhad’s counsel submits the misrepresentation was deliberate or reckless as defined in paragraph 7(4) of Schedule 9 of the FSA. In my view, the misrepresentation if not deliberate was at least reckless.

In conclusion, I hold that repudiation of the plaintiffs’ Death Claim and the cancellation of the COI from inception was validly made in accordance with the terms of the policy as well as the law.

Lastly, I thank both counsel and their teams for their helpful submissions.

For the reasons above, I dismiss the suit with costs of RM 10,000 subject to allocatur. I awarded low costs as counsel for the plaintiffs informed me that he is acting pro bono [Latin for "for the public good"] and requested for low costs which Mr. Wong responded graciously to leave the quantum to my discretion. Dated: 04th September 2025 ………(signed)……… Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiff: Kavimani Muthayam and Emanuell Premdas. Kavi & Co. (Kuala Lumpur) Counsel for defendants: Wong Hok Mun and Leong Cing Ee. Wong Hok Mun Partnership (Kuala Lumpur) CASES REFERRED TO: 1) Leong Kum Whay v QBE Insurance (M) Sdn Bhd & Ors [2006] 1 MLJ 710, CA. 2) Mann Macneal & Steeves Ltd v Capital & Counties Insurance Co Ltd [1921] 2 KB 300. 3) Pacific & Orient Insurance Co Sdn Bhd v Kathirvelu [1992] 1 MLJ 249, SC. 4) Polygram Records Sdn Bhd v The Search & Anor [1994] 3 CLJ 806, HC. 5) Rozanes v Bowen (1928) 32. 6) Siva Prakash a/l Ramasamy (As Executor and Trustee for the Estate of Jachiswaran a/l Duroy Selvam) v MCIS Insurance Bhd [2024] MLJU 2196, HC. 7) Tan Mooi Sim & Anor v United Overseas Bank (M) Bhd & Anor [2011] 6 CLJ 937, HC. 8) Tan Siew Wei v Great Eastern Life Assurance (Malaysia) Berhad [2021] MLJU 1909, HC. LEGISLATION REFERRED TO: 1) Financial Services Act 2013, section 129(1). 2) Repealed Insurance Act 1996, section 147(4). 3) Rules of Court 2012, Order 14A.