.. [30] As can be seen from the above terms of Schedule 9, there is quite an elaborate regime on how this duty of disclosure is to be dealt with, the matter of misrepresentation and more importantly, how applications for declarations under section 96(3) of Act 333 are to be dealt with - see subparagraph 1(3). [31] On the question of whether Schedule 9 applies to the insurance contract under consideration, paragraph 1 of Schedule 9 states that the Schedule does not affect a "contract of insurance" entered into, varied or renewed before section 129 and Schedule 9 came into operation, that is, contracts which were entered into, varied or renewed before 1.1.2015. The term "contract of insurance" is not defined but the term "consumer insurance contract" is. [32] We note that Schedule 9 makes a distinction between contracts of insurance with consumer insurance contracts, the latter being defined in paragraph 2 as "a contract of insurance entered into, varied or renewed by an individual wholly for purposes unrelated to the individual's trade, business or profession." It would appear that the policy in this appeal, that is, Policy No. 213-081-16-004654 which was renewed from 10.5.2016 to 9.5.2017 is a consumer insurance contract. Consequently, and by necessary implication, Act 758 applies to the present appeal in that section 129 and thereby Schedule 9 will apply to all consumer insurance contracts which were either entered into or renewed after 1.1.2015. [33] Further, and in any event, subparagraph 1(3) specifically provides that Schedule 9 "shall apply" to determine where the insurer, such as the respondent, is in Court for a declaration under section 96(3) of Act 333 so as to avoid providing cover for risks to third parties such as the appellant on the ground of misrepresentation. In other words, in the determination of the respondent's application for a declaration under subsection 96(3) that the respondent is entitled to avoid liability to the appellant for third party risks under the renewed policy due to Selvamani or whoever's misrepresentation, the Court is obliged to apply the specific regime in Schedule 9. [34] Two further provisions require mention. By virtue of paragraph 1(2) of Schedule 9, section 129 and Schedule 9 will prevail and override the provisions of the Contracts Act 1950 in the event there is any conflict or inconsistency between these two laws. Pursuant to subparagraphs 3(1) and (2), there cannot be any contracting out of the application of Schedule 9 on matters relating to disclosure and representations and on the non-contestability and remedies. [35] These comprehensive provisions deal with how an application for a new contract or a renewal of a contract of insurance is to be dealt with; what happens when there has been non-compliance by either party to this statutory regime and, of great importance, the operation of the doctrine of waiver by law; distinguishing as we said earlier between contracts of insurance and consumer insurance contracts. In relation to the policy in question, it being a consumer insurance contract, paragraph 5 applies. The new statutory regime recognizes in subparagraph 5(9), the mutual duty of utmost good faith or uberrimae fidei that is owed at all times by both parties to the insurance contract, whether on the part of the insurer or the insured; whether it is in relation to a new insurance contract or a renewal of the same. [36] On the part of the insurer, the new statutory regime gives the insurer the right to request answers by posing questions, either specific or general. In the case of a new contract or one which is being varied, the insurer may request or pose to the customer questions to elicit answers or information which will assist the insurer on whether it will accept the risks, and what rates and terms it is to impose - see subparagraph 5(1). Where the insurer undertakes this exercise, the consumer owes a corresponding duty to take reasonable care not to make any misrepresentations to the insurer when answering any of the questions posed - see subparagraph 5(2). The consumer must always answer truthfully and completely - subparagraph 5(9). [37] This duty of utmost good faith does not end with the imposition of duty on the consumer. In relation to the insurer, the doctrine of waiver operates. Where the insurer does not undertake the exercise of posing questions when considering whether or not to assume risks and enter the contract of insurance with the consumer, the insurer is deemed to have waived the right to complain that there has been a failure of disclosure - subparagraph 5(5). [38] The insurer is also deemed to have waived its right to complain in the second situation where questions are posed but the consumer has come up short in their responses or have simply failed to respond to those questions. Now, if either of those situations arise, that is where the consumer fails to answer, or where the consumer gives an incomplete or irrelevant answer, it is implied in subparagraph 3(6) that the insurer is to follow up with the consumer on such failure. Where the insurer itself fails to do so, where it does not pursue the matter, the consumer's duty of disclosure "shall be deemed to have been waived by the insurer" under subparagraph 5(6). [39] The above deals with new contracts of insurance or contracts which are being varied. There are also specific provisions dealing with renewals of the insurance policy. In such a case, subsubparagraphs 5(3)(a) and (b) apply. [40] In such a situation, the insurer may pose one or specific questions, once again, for the purpose of ascertaining whether to assume the risks, and what rates or terms are to be imposed. Alternatively, the insurer may give to the consumer a copy of any matter previously disclosed by the consumer in relation to the contract and request the consumer to either confirm or amend any change to the matter. [41] When asked by the insurer, the consumer is required to respond. And, once again, if the insurer fails to respond, be it to confirm or to amend any matter queried by the insurer, the insurer is expected to pursue the matter. If it fails to do so, just like the case of new contracts of insurance, the insurer will be deemed to have waived its rights to require disclosure by the consumer - see subparagraph 5(6). [42] Thus, whether it is a case of a new consumer insurance contract or a renewal of such contract, the consumer is always under a duty to take reasonable care not to make any misrepresentations to the insurer - see subparagraphs 5(2) and (9). The consumer must ensure that there is no misrepresentation, whether deliberate or reckless, careless or even innocent. [43] It is apparent from these provisions, that where the insurer is itself in breach either by not pursuing or safeguarding its own interests and obligations, it will not be open to the insurer to approach the Court for a declaration under section 96(3) of Act 333 to void the insurance contract. This becomes clearer when Parts 2 and 3 are examined closely. [44] Subparagraphs 7(3) to (8) found in Part 2 of the Schedule, spell out when misrepresentation may be properly regarded as misrepresentation for the purpose of securing a declaration under section 96(3) of Act 333. It is only where the conditions laid down in these provisions are met that there is misrepresentation for which the insurer may avail itself to the particular remedies spelt out in Part 3. Those remedies involve the insurer returning any premiums paid, especially where the insurer is asserting that it would not have entered into or renewed the insurance policy in the case of innocent or careless misrepresentation is alleged. [45] As can be seen from subparagraph 7(4), much will depend on knowledge on the part of Selvamani or whoever renewed the insurance policy at the material time. Whether misrepresentation exists is therefore very much fact sensitive, confirming our earlier opinion on the unsuitability of how the whole application was conducted by the High Court. The burden is on the respondent to prove the existence of misrepresentation; that it would not have entered into or renewed the insurance policy had it been aware of the true facts; and we have no information as to when the policy was actually submitted for renewal and the circumstances of the renewal. [46] We can appreciate this new statutory regime under section 129 and Schedule 9; that consistent with the intent of the statutory regime emplaced under sections 90 and 96 of Act 333 to ensure the meaningful presence of assumption of minimum third party risks, there must be a balanced and mutual duty of utmost good faith owed by all parties to the contract, whether it is a contract of insurance or a consumer insurance contract. [47] In the case of third party risks, it is almost impossible for innocent third parties who are involved in road traffic accidents to be in possession of any knowledge of the contract of insurance or the consumer insurance contract, let alone the conditions or circumstances under which such contracts were made. The enactment of the statutory regime that we now see in Schedule 9 evens out or balances that duty of utmost good faith and makes the safeguards under Act 333 more meaningful and its social intent or objectives of minimum compulsory insurance, respected and achieved. [48] Applying the above provisions to the renewed policy in question, it is without doubt that it was a policy which was renewed in which case, subparagraph 5(3) applies. And, as was pointed out earlier, we find that the respondent has not discharged its burden of proof under section 129 read together with Schedule 9 of Act 758 so as to be entitled to these discretionary remedies. It never posed any questions to Selvamani or whoever was renewing the policy. We do not see how just the fact that Selvamani was deceased ipso facto invalidates the renewed policy. In our view, this is incorrect. The whole process or procedure under Schedule 9 must be complied with and answered, something which we have already pointed out was not undertaken by the High Court. [49] Under subsubparagraphs 5(3)(a) and (b), the respondent may do either of two things when there is an application to renew the insurance policy. The respondent may request Selvamani or whoever was renewing the insurance policy to answer one or more specific questions in accordance with subparagraph (1). The questions asked being specific questions that are relevant to the respondent's decision whether or not to accept the risk, and the rates and terms to be imposed. Alternatively, the respondent may give Selvamani or whoever was renewing the insurance policy, a copy of any matter previously disclosed by Selvamani in relation to the contract and request Selvamani or whoever was renewing the insurance policy, to confirm or amend any change to the matter. [50] Where the respondent makes either of these requests, Selvamani or whoever was renewing the insurance policy, has a duty under subparagraph 5(4) "to take reasonable care not to make a misrepresentation to the licensed insurer when answering any questions under sub-subparagraph (3)(a), or confirming or amending any matter under sub-subparagraph (3)(b)". [51] If there is any breach of this duty of disclosure, whether by reason of incomplete disclosure, failure to disclose or by giving any irrelevant answers, subparagraph 5(6) obliges the respondent to follow up on that failure or on that incomplete answer. If the respondent does not do so, then the respondent shall be deemed to have waived the right to complain about Selvamani's failure to comply with his duty of disclosure; this is the second instance where the principle of waiver operates. [52] From the grounds of decision, it is apparent that this whole exercise was never undertaken or considered by the learned Judge. It is our firm view that paragraph 1(3) must be complied with as its terms are couched in mandatory language. The failure of the learned Judge to apply section 129 and Schedule 9 is sufficient reason for this Court to intervene and set aside the decision of the learned Judge granting the declaration sought under section 96(3) of Act 333. [53] Having examined the records of appeal and the submissions made, we find that the respondent has also failed to satisfy the burden imposed and its application ought to have been dismissed. There is no evidence at all of the respondent doing any of the matters that are mentioned in Schedule 9, especially subparagraph 5(3) nor of the Judge addressing these critical matters. Under such conditions, it was not open to the respondent to approach the Court and complain that there was misrepresentation. All that we can find in the records of appeal is the allegation that there was misrepresentation by Selvamani and this arises by deduction and surmisation on the part of the respondent. [54] According to the affidavit filed in support of the application, the respondent contended that it discovered through its adjusters that Selvamani had already passed away on 20.4.2016. It learnt of this only after the appellant had filed the civil claim for the accident on 28.10.2016 when Selvamani and the driver, the $ ^{1st} $ defendant, failed to attend their lawyers' office for case preparation. The respondent claimed that it also discovered that the insurance policy was renewed on 10.5.2016, after Selvamani had passed away and this renewal in Selvamani's name must have been by someone other than Selvamani. It is under these circumstances and for these reasons that the respondent alleged that since the insurance policy was renewed by misrepresentation by someone other than Selvamani without disclosing the material fact that Selvamani had already passed away, the insurance policy is null and void for fundamental breach of the principle of uberrimae fidei or utmost good faith and it is entitled to void that insurance contract. [55] There is, however, no information at all as to when or how exactly the application for renewal of the insurance policy was made, and what questions were raised by the respondent. On the contrary, it may be reasonably concluded that the respondent did none of the matters or undertook any of the steps mentioned, that it did not ask any questions or sought any confirmation or amendment at the material time of renewal of the insurance policy. [56] Against such a factual backdrop, we find that the learned Judge was not entitled to make the findings and arrive at the conclusion that he did. We find that there was absolutely no basis for the learned Judge to conclude "that the policy was renewed by misrepresentation and trickery" or that it was "an illegal policy". [57] We are deeply troubled by such findings in the face of glaring evidence to the contrary in that there was absolutely no evidence led by the respondent to show the various procedural steps that it was required to undertake under Schedule 9. That in compliance with its duty of utmost good faith, it had posed to Selvamani or whoever was renewing the insurance policy certain questions or had requested Selvamani to confirm or amend certain matters learnt from its earlier contract of insurance; that there were either no answers or incomplete answers despite its follow-up with Selvamani. It is only under such conditions that the Court can properly and justifiably grant the declaratory orders sought by the respondent. [58] What the learned Judge did was to find that since Selvamani had already passed away before the insurance policy was renewed, the renewal must have been processed by means of "misrepresentation and trickery". According to the learned Judge, "the very fact that the Insured in this case had already passed away before the renewal offer was made on 10 May 2016, clearly reflect that the said renewal was made by a Third Party without disclosing the fact that the Insured has already passed away"; that such a contract itself "is a breach of section 150(1) Insurance Act 1996 (Act 553) [repealed by the Financial Services Act 2013 (Act 758)]"; that the respondent was thus "well within time to seek the declaratory reliefs as prayed herein as an aggrieved party ...because there is clearly a breach of contract under the utmost good faith representation principle on the fact of the contract in view of the Insured's death (20 April 2016) prior to the issuance of the policy (10 May 2016)". The learned Judge further added that "one cannot having breached the principles of uberrimae fidei ...and by trickery expect the Plaintiff (Insurer) to be liable under an illegal policy." [59] With respect to the learned Judge, that whole reasoning is without basis. Having been aware that section 150(1) of the Insurance Act was already repealed by the Financial Services Act 2013, it was no longer open to him to consider the matter under that provision, and worse, to find that there was a breach of that repealed provision and describe it as an "illegality". Instead, the Court must now proceed to consider the application under the terms of Act 758. [60] In our view, that was a serious error of law on the part of the learned Judge. Devoid of any compliance of the mandatory requirements emplaced under section 129 and Schedule 9 of Act 758, we are firmly of the view that the respondent was not at all entitled to the orders granted by the High Court. It would be in direct contravention of section 129 and Schedule 9 of Act 758 were this Court to condone such breaches. To not do so will bring untold injustice and prejudice to innocent third parties such as the appellant in this appeal, the parties we believe were the intended recipients of the benefits behind sections 90 and 96 of Act 333 and section 129 of Act 758. [61] The authorities such as the Federal Court decision in Pacific & Orient Insurance Co Berhad v Hameed Jagubar Syed Ahmad [supra] and the Court of Appeal decision in Jayakumar Rajoo Mohamad v CIMB Aviva Takaful Berhad [2015] 9 CLJ 552, cited by the respondent were decided under the old law and were concerned with contracts of insurance made prior to the coming of operation of section 129 and Schedule 9 of Act 758 on 1.1.2015, and are thus, not applicable. [62] We would not be wrong to suggest that the law must have been amended to address the hardship that third parties, like the appellant before us, face in cases where the validity of the insurance policies are challenged and the court is asked to grant declarations under section 96(3) of Act 333. The third parties are simply not in the position to address any of the issues that may arise like the appellant and have in fact arisen as we see in this appeal. This then whittles down to naught the very benefit and purpose that was intended under section 90 of Act 333 and section 129 of Act 758. [63] Under such circumstances, there was no basis for the exercise of discretion in granting the declarations sought by the respondent. In fact, it would be unjust for the Court to grant such orders - see Ahmad Nadzrin Abd Halim & Anor v Allianz General Insurance Co (M) Bhd. [2015] 6 MLJ 223. [64] Consequently, we must allow this appeal and set aside the decision of the High Court and we dismiss the amended Originating Summons in enclosure 15 with costs of RM10,000.00 here and below subject to the payment of Allocatur fees. Dated: 14th October 2019 (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia Counsel/Solicitors For the appellant: Ramesh a/l Namasivayam Messrs. Sivaraja & Co No. 32A, Jalan Sri Sarawak 18 Taman Sri Andalas 41200 Klang Selangor For the respondent: Shanmugam Ramasamy (Sharmini Thiruchelvam with him) Messrs. Francis Pereira & Shan Suite 8A, Wisma TCT 516-1, 3rd Mile, Jalan Ipoh 51200 Kuala Lumpur