Abu Talib Bin Baba v Tokio Marine Insurans (M) Berhad (JB-12BNCvC-12-06/2025)

MOHD AZWAN BIN SABTU (NO. K/P: 860616-30-5157)(L) NO. 2783, BATU 8 RUMAH AWAM PAYA RUMPUT

KANISSHHA LOGISTICS (DITUNTUT SEBAGAI FIRMA) 16/01/2026 16:28:30 JB-12BNCvC-12-06/2025 Kand. 20 (NO. PENDAFTARAN: Ma0206804-V) JA 5425 TAMAN DESA SELANDAR

JEFFREY TEO JEE ONN (NO. K/P: 941218-01-6135)(L) NO. 6800, JALAN SRI PUTI 12/4 TAMAN PUTRI,

COUNTRY GARDEN PACIFICVIEW SDN BHD (NO. PENDAFTARAN: 1044344-D) 3rd FLOOR PHOENIX HOTEL JALAN FOREST CITY 1 PULAU SATU

TOKIO MARINE INSURANS (M) BERHAD (NO. SYARIKAT: 149520-U) … RESPONDEN-RESPONDEN DALAM MAHKAMAH SESYEN DI BATU PAHAT DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN SIVIL NO.: JC-A53KJ-173-10/2021 ANTARA ABU TALIB BIN BABA [No. K/P: 54803-04-5227 (L)] Sebagai Wakil Diri Estet Dan Bapa Kepada Muhammad Fazrul Hakim Bin Abu Talib (Si Mati) Kampung Hailam, Pengkalan Balak, 78300 Masjid Tanah, Melaka … PLAINTIF

MOHD AZWAN BIN SABTU (No. K/P: 860616-30-5157)(L) No. 2783, Batu 8

KANISSHHA LOGISTICS (Dituntut Sebagai Firma) (No. Pendaftaran: Ma0206804-V)

JEFFREY TEO JEE ONN (No. K/P: 941218-01-6135)(L) No. 6800, Jalan Sri Puti 12/4 Taman Putri, 81000, Kulai, Johor

COUNTRY GARDEN PACIFICVIEW SDN BHD (No. Pendaftaran: 1044344-D) 3rd Floor Phoenix Hotel Jalan Forest City 1 Pulau Satu 81550 Gelang Patah, Johor

TOKIO MARINE INSURANS (M) BERHAD (No. Syarikat: 149520-U) … DEFENDAN-DEFENDAN

This is an appeal by the Appellant (Plaintiff in the court below) against the decision of the Learned Sessions Court Judge after a full trial in dismissing the Appellant’s claim against the 5th Respondent and allowing the 5th Respondent’s counterclaim against the Appellant.

An accident occurred on 24.9.2020 along the North-South Expressway, Johor, involving a lorry owned by the 2nd Defendant and driven by the 1st Defendant (authorized driver of the lorry) and a car owned by the 4th Defendant and driven by the 3rd Defendant. As a result of the accident, Muhammad Fazrul Hakim, who was employed as a lorry attendant (kelindan) by the 2nd Defendant, died (Deceased). It is not in dispute that at the material time, he was travelling in the lorry in the course of his employment when the collision occurred, resulting in his death. The Appellant, being a dependent and representative of the deceased’s estate, sued the first and second Defendant for negligence before the Sessions Court in Muar. The 5th Defendant, the insurer of the lorry of the 2nd Defendant under Commercial Vehicle Policy, intervened in the proceedings and filed a counterclaim. The reliefs sought by the 5th Defendant in the counterclaim include, among others, a declaration that the 5th Defendant is not liable to satisfy any judgment obtained by the Plaintiff and that the 5th Defendant is entitled to avoid liability under the said insurance policy because the Plaintiff falls within the exception provided by law where the Insurer is entitled to avoid liability under the insurance policy and has no obligation to pay the Plaintiff’s claim since the deceased is an employee of the 2nd Defendant.

The Learned Sessions Court Judge found the 1st and 2nd Defendants are 100% liable in negligence for the accident. He, however, dismissed the Plaintiff’s claim against the 5th Defendant, i.e., the insurers of the lorry belonging to the 2nd Defendant, and allowed the 5th Defendant’s counterclaim against the Plaintiff.

The Appellant contends that the statutory duty under Section 96(1) of the Road Transport Act 1987 (RTA) is mandatory, requiring the 5th Defendant to satisfy the judgment obtained against the 1st and 2nd Defendants in respect of 3rd party risks. Any exclusion clause purporting to deny liability in respect of such a third-party risk is rendered ineffective by Section 95 of RTA and cannot form the basis of a counterclaim.

However, the 5th Defendant contends that the provision in the said policy, in particular the exception in Section B of the insurance policy, will apply, which states: - EXCEPTIONS TO SECTION B We will NOT pay for:

…

Death or bodily injury to any person where such death or bodily injury arises out of and in the course of the employment of such person by You or Your authorized driver. ISSUES

The issues to consider here are whether the 5th Defendant (Insurer) is liable under the Policy and whether the 5th Defendant is entitled to a declaration under the counterclaim.

There appears to be confusion regarding whether insurers are liable under the policy before the Federal Court decision in Malaysian Motor Insurance Pool v Tirumeniyar a/l Singara Veloo [2020] 1 MLJ 440.

The Federal Court decision of Tirumeniyar (supra) was one of the most anticipated decisions in respect of the RTA 1987, as it involved the construction of the motor insurance policy and Section 91 (aa) and (bb) of the RTA 1987. The facts in Tirumeniyar (supra) are nearly identical to those in the present case. The decision significantly contributes to the approach a court must take when a policy is issued under the RTA. The common law must be considered and construed, for the law does not exist in a vacuum. All the factors that need to be considered in interpreting the relevant provisions in the RTA, being a social piece of legislation, must reflect the objectives of the RTA. In a well-written decision, the Federal Court refers to all the relevant cases cited and admirably examines in detail the relevant sections of the RTA, upholding the “one policy two covers” concept introduced in the English cases.

Counsel for the 5th Respondent contended that the above case should be distinguished in that in Tirumeniyar (supra), the policy wording did not have the amended wording “Your Authorized Driver” in the policy. In support, he cited the High Court case of Lonpac Insurance Bhd v Ridzuan Rahim (lpoh High Court Civil Appeal No 12BNCVC-18-03-2015 (unreported).

However, I am not in agreement with the counsel’s submission on the following grounds: - The Federal Court decision of Tirumeniyar (supra) decided the following important principles: - a) There was no reason to depart from the common law position, which had settled the law on the construction of exception (ii) to section B of the policy and its statutory equivalent, s. 91(1) (aa) of the RTA which was affirmed by the Supreme Court in United Oriental Assurance Sdn Bhd v Lim Eng Yew [1991] 3 MLJ 429. b) The Court adopted the “two contract approach” or “one policy two covers” in that there may be two or separate enforceable coverages in respect of the policyholder on the one hand, and the authorized driver on the other. However, the overall coverage must still be subject to the limitations and exceptions contained in the policy. c) As far as the contract of indemnity between the Insurer and the authorized driver was concerned, exception (ii) of the policy did not apply. Therefore, the Insurer was liable statutorily (under the RTA) and contractually (under the policy) to indemnify the authorized driver. Even if it was assumed that there was in the policy and that exception (ii) applied to the authorized driver since it applied to the policyholder, such a construction clearly ran afoul of the contra proferentum rule, which stated that where a term was ambiguous, such ambiguity ought to be construed against the party who prepared it. If the Insurer intended to exclude coverage of this kind for the authorized driver, it should have simply included that exemption in the policy. Where, in the case of motor insurance contracts, there were two interpretations possible-one that favored coverage and one that did not-the court ought to take the interpretation that favored coverage.

Based on the principles as stated in the above Federal Court decision, the following will apply to this case: -

One policy, two covers will apply. One for the policyholder (2nd Defendant) and one for the authorized driver (1st Defendant).

The Plaintiff will fall under the exclusion as far as the policyholder coverage is concerned because the deceased was an employee of the policyholder.

Plaintiff will not fall under the exclusion as far as the authorized driver coverage is concerned because the deceased was not the employee of the authorized driver. As such, the Insurer will be liable to indemnify the authorized driver coverage and pay the claim to the Plaintiff.

Since there was no clear wording for such exclusions, the contra proferentum will apply.

Further, the High Court decision cited by counsel did not have the benefit of the Federal Court decision of Tirumeniyar (supra), which was decided much later.

Two articles written by eminent authors on the subject matter namely, “Are insurers liable if an employee of the insured or authorized driver is injured or dies in an accident whilst travelling as a passenger in the insured motor vehicle in the course of his employment” by S Santhana Dass (2017) 1 CLJ xi and “One policy two covers-Commentray on Tirumeniyar and other related cases” by G Naidu (2020) 1 LNS(A)xxx illustrates and supports the findings of this court.

I have also read the grounds of judgment of the learned Sessions Court Judge, but was unable to see his reasoning on this aspect. Further, there was no mention of the case of Tirumeniyar (supra).

In the final analysis, the decision of Tirumeniyar (supra) is on all fours, a Federal Court decision which this court is bound to follow.

Based on the above, the appeal is allowed, whereby the Declaration granted to the 5th Respondent by the Sessions Court is set aside, and the 5th Respondent is liable to satisfy the judgment. Costs of this appeal (RM 5,000.00) and the court below are awarded to the Appellant. Dated 12th December 2025 t.t. KALYANA KUMAR SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellant : Manjeet Kaur Nijar with Zaidatul Azira Binti Yusrizal Messrs Nijar & Nijar For the 5th Respondent : Samreet Singh Sagoo