NON CONTRIBUTION CLAUSE This insurance does not cover any loss or damage which at the time of the happening of such loss or damage is insured by or would but for the existence of this Policy be insured by any other existing Policy or Policies except in respect of any excess beyond the amount which would have been payable under such other Policy or Policies had this insurance not been effected. [101] Having examined the NCC, it appears to me that this GIT Policy does not cover any losses or damages that, at the time of the loss or damage, are insured by or would, but for the existence of this policy, be insured by any other existing policy or policies, except for any excess in excess of what would have been payable under such other policies had the insurance not been effected. [102] Returning to Pantrans's arguments, Pantrans argues that it could have avoided the NCC from being triggered by BLG's knowledge of the correct claims procedure by advising BMW Malaysia not to claim from Lonpac due to the existing GIT Policy adopted by Pantrans. BLG could have informed BMW Malaysia that it would initiate a claim from the GIT Policy procured by BLG, but this was not done, according to Pantrans. Therefore, BLG's failure to comply with the claims procedure under the GIT Policy amounts to a waiver of indemnity. [103] On this issue, BLG argues that Pantrans's obligation to compensate BLG is not governed by, or subject to, the terms, conditions and/or limitations in the GIT Policy. According to the BLG, Articles 10.2 and 10.4 of the Transportation Agreement are not subject to the GIT Policy adopted by Pantrans from Tokio Marine. As such, it is BLG's position that given that Articles 10.2 and 10.4 of the Transportation Agreement are clear, unambiguous and unmistakable, this Court has no power to improve the terms agreed upon between the parties by imposing the dependability of the GIT Policy, since the Transportation Agreement is merely to be interpreted by the Court based on its plain and obvious wording. Due to the absence of references to the GIT Policy in Articles 10.2 and 10.4 of the Transportation Agreement, the Transportation Agreement is not bound by such a policy. [104] In addition, BLG asserts that the GIT Policy is one between Pantrans and Tokio Marine, and not one involving BLG directly. Moreover, when BLG requested a copy of the GIT Policy, Pantrans only sent the cover note. Pantrans did not send the GIT Policy, and there is no evidence that they did. Therefore, BLG was unaware of the terms and effects of such a policy. In addition, BLG asserts that Tokio Marine was fully aware of the entire course of events throughout the survey process. In fact, the procedure laid out by Pantrans to BLG was that Tokio Marine would only pay for damage and/or loss to the BMW vehicles if BLG had already paid for the damage and/or loss to the BMW Vehicles. [105] Having appreciated the parties' arguments, I will now consider their merits. [106] To begin with, I must recognise that the GIT Policy is only between Pantrans and Tokio Marine. In this regard, BLG was not directly related. As evidence would have shown, BLG was not mentioned by Pantrans in the GIT Policy at the time of the incident. As a matter of fact, it was only in 2019 that BLG was named in the GIT Policy. [107] Taking a closer look at this issue, I will next examine the nature and effect of Articles 10.2 and 10.4 of the Transportation Agreement. This will be accomplished by relying on their interpretations, which I have already discussed extensively in the previous segment. Hence, for the purpose of determining this issue, I will simply rely on the earlier findings and apply them accordingly here. [108] In light of that, and specifically on this issue, I find that BLG's claim is not subject to the terms and conditions of the GIT Policy, which Pantrans and Tokio Marine entered into. In particular, I find that the provisions of Articles 10.2 and 10.4 of the Transportation Agreement are clear, unequivocal, and unmistakable. This conclusion is based on the fact that the two (2) provisions make no reference to any GIT Policy and are not governed by it. [109] On the basis of the evidence presented to the Court, it appears that the GIT Policy was not forwarded to BLG in its entirety. According to Pantrans's email dated 1 February 2018, what BLG received was on the GIT Cover Note. Under cross-examination, even DW3 admitted that there is no document proving that the full policy was forwarded to BLG. Thus, BMW Malaysia was forwarded the same Cover Note by BLG. [110] Based on this aspect of the issue, I believe it is impossible to conclusively say that BLG was aware of the NCC. Thus, even if Pantrans had argued that BLG has been aware or should have been aware of the procedure on how to initiate a claim on the GIT Policy, I still find that this cannot stand up in any way since, first, and as I mentioned earlier, Articles 10.2 and 10.4 of the Transportation Agreement do not stipulate that a claim must be triggered by the GIT Policy, and secondly, Pantrans has not produced any documentary evidence supporting this argument. As a matter of fact, BLG has fulfilled the requirements of Tokio Marine by paying for the damage and loss to the BMW Vehicles as per the procedure set out by Pantrans. [111] In CIMB Bank Bhd v Anthony Lawrence Bourke & Anor [2019] 2 MLJ 1, His Lordship Balia Yusof FCJ observed that the court has no power to improve upon the instrument it has been asked to construct: [28] It is also trite that an agreement must be construed by the words used in the agreement and the court is not empowered to improve upon the instrument which it is called upon to construct. This we have stated in Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 where it was reiterated: The court has no power to improve upon the instrument which it is called upon to construct, whether it be a contract, a statute or article of association. It cannot introduce terms to make it fairer or more reasonable. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning to a reasonable person having all the background knowledge which would reasonable be available to the audience to whom the instrument is addressed; See Investors Compensation Scheme Ltd v West Bromwich Building Society. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament or the intention of whatever person or body was or is deemed to have been the author of the instrument. [112] There is also one issue worth considering. Continuing on this topic, Pantrans argues that BLG cannot rely on their arguments as alluded to above. According to Pantrans, this is because the applicable contract between the parties was the BMW Transportation Agreement, specifically Article 12.2(d), in which Pantrans was required to purchase a GIT Policy when contracting with BLG. Specifically, BLG has been accused of actively specifying Pantrans's type of insurance policy and coverage value. In the light of this, Pantrans believes that if BLG now asserts that the GIT Policy does not bind Pantrans's payment obligation, BLG appears to have gone against its previous practice of thoroughly detailing the insurance policy. Despite this, BLG allegedly did not raise any issues regarding the inadequacies of the GIT Policy to allow Pantrans to purchase a policy with a wider scope of coverage. [113] As far as this issue is concerned, I agree with Pantrans only on the issue that the BMW Transportation Agreement is the applicable contract. I will not elaborate further on this except to say that BLG is relying on the Mercedes Transportation Agreement while the BMW vehicles were involved in the incident. Having BMW vehicles as the subject matter is sufficient to determine which Transportation Agreement is applicable. Concerning this issue raised by Pantrans, I will still rely on my findings above, including the fact that Articles 10.2 and 10.4 of the Transportation Agreement did not stipulate that Pantrans's liability was limited to the GIT Policy. In addition, Pantrans, in its letter dated 17 June 2019, had invited BLG to forward the official receipt of RM2,298,943.39 to prove that BLG had paid WK Webster. No mention was made of the imposition of the NCC. Only one warning or reminder was given by Pantrans, and that is that if BLG fails to produce the same, then the claim will be delayed or denied. In any case, Pantrans's admission here is yet another reason to hold Pantrans liable. [114] As His Lordship George J observed the relevant estoppel position at p 176 in MAA Holdings Sdn Bhd & Anor v Ng Siew Wah & Ors [1986] 1 MLJ 170, if one party leads another to believe that the strict rights arising under the contract will not be insisted upon by his conduct, then the first party cannot later insist on strict legal rights when doing so would be inequitable: Having silently stood by and allowed the purchasers to find and pay the balance of the purchase price and then wait for another 38 days before insisting on compliance of the requirement to apply the FIC although the parties had expressly agreed that whether the FIC approval was obtained or not was not to have any effect on the contract is I think the height of inequity. Robert Goff J. stated the principle of this aspect of equitable estoppel in Societe Italo-Belge v. Palm Oils thus: "The fundamental principle is that stated by Lord Cairns LC. viz. that the representor will not be allowed to enforce his rights where would be inequitable having regard to the dealings which have thus taken place between the parties. To establish such inequity, it is not necessary to show detriment; indeed, the representee may have benefited from the representation, and yet in may be inequitable, at least without reasonable notice, for the representor to enforce his legal rights. Take the facts of Central London Property Trust Ltd. v. High Trees House Ltd (1946) (195611 An E.R. 256. (19471 K.B. 130, the case in which Denning J breathed new life into the doctrine of equitable estoppel. The representation was by a lessor to the effect that he would be content to accept a reduced rent. In such a case, although the lessee has benefited from the reduction in rent, it may well be inequitable for the lessor to insist on his legal right to the unpaid rent, because the lessee has conducted his affairs on the basis that he would only have to pay rent at the lower rate; and a court might well think it right to conclude that only after reasonable notice could the lessor return to charging rent at the higher rate specified in the lease. Furthermore it would be open to the court, in any particular case, to infer from the circumstances of the case that the representee must have conducted his affairs in such a way that it would be inequitable for the representor to enforce his rights, or to do so without reasonable notice.” Lord Denning in W.J. Alan & Co. Ltd, v. El Nasr Export & Import Co. said: "If one party by his conduct, leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on strict legal rights when it would be inequitable for him to do so." Whether BLG is entitled to compensation from Pantrans when it failed to obtain its own insurance policy? [115] Another issue needs to be addressed in order to resolve the dispute between Pantrans and BLG. This issue has been raised by Pantrans. This issue concerns whether BLG is entitled to compensation from Pantrans for alleged failure, refusal, or neglect to obtain its own insurance for BMW vehicles to be delivered by Pantrans under the Vehicle Distribution Logistics Services contract between BMW Malaysia and BLG. [116] To support its arguments on this issue, Pantrans argues that under the Vehicle Distribution Logistic Services Contract between BLG and BMW Malaysia, BLG was obligated to take out its own insurance cover for BMW vehicles that Pantrans would transport. Under clause 13 of the said contract, BLG would be required to provide BMW Malaysia with adequate insurance to cover its obligations and liabilities arising under the contract by naming BMW Malaysia as a beneficiary. Moreover, the clause states that if BLG is unable to provide evidence of such insurance to BMW Malaysia upon request or BMW Malaysia reasonably believes that the insurance policy does not cover BLG's obligations thereunder, BMW Malaysia may, at its sole discretion, arrange for such insurance and recover the cost from BLG by demanding immediate reimbursement or deducting such costs from any payment due to BLG under this contract. Aside from that, BLG shall also have the necessary insurance in place to cover any arrangement with Pantrans. According to Pantrans, BLG has not fulfilled the obligations it had agreed to undertake under the said clause. Here, BLG failed or omitted to obtain its own separate insurance cover as required under the Vehicle Distribution Logistic Services Contract between BLG and BMW Malaysia. [117] As a further support for its arguments, Pantrans relies on the testimony of DW2, who, at all material times, was BLG's Managing Director. DW2 testified that BLG was required by the Transportation Agreement to acquire a back-to-back insurance policy to supplement Pantrans's own GIT policy. A witness for BLG, PW5, was also said to have acknowledged such a requirement. [118] BLG, on the other hand, argues that Pantrans has no right to raise this issue since Pantrans is not privy to the contract between BLG and BMW Malaysia, therefore it cannot enforce it against BLG. Furthermore, BLG contends that any negotiations or agreements are superseded by the Transportation Agreements. [119] I must now make my determination based on the arguments presented by the parties. [120] To begin with, it is obvious that the Vehicle Distribution Logistic Services Contract was entered into only between BLG and BMW Malaysia. Next, I must ask to what extent Pantrans, not being a party to the same contract, can attempt to enforce clause 13 against BLG and therefore rely on it to defend BLG's claim. [121] As I have examined the contract between BLG and BMW Malaysia, it is my first observation that the issue of privity of contract will automatically apply. In this regard, I find that Pantrans is not privy to the said contract that it intends to enforce now. In my opinion, Pantrans does not have the right to raise the question of whether BLG failed or not on that account. In such a context, BMW Malaysia is definitely the right party to raise this issue, but BMW Malaysia is neither a party to the action nor has there been any allegation of a breach by BLG to that effect. [122] Despite the above observation, and having assessed further evidence, I can also conclude that there is no breach by BLG in the manner suggested by Pantrans. By carefully examining clause 13, I also find that BMW Malaysia's position has been well protected. As a result, even if BLG did not procure its own independent insurance coverage, clause 13 allows BMW Malaysia to do so at BLG's expense. BMW Malaysia has, in fact, secured its own insurance through Lonpac in this instance. So far as BMW Malaysia and BLG are concerned, the situation has been remedied accordingly. [123] As for back-to-back coverage, I have also observed that DW2 appeared to agree that although there has been discussion to that effect during negotiations between BLG and Pantrans, it has not been incorporated into the Transportation Agreements. In this situation, the application of Articles 18, 19 and 32 takes effect automatically to defeat Pantrans's argument. [124] In more detail, Article 18 refers to the agreement between the parties that the Transportation Agreement contains the whole agreement between the parties and would not be based on any oral or written representation made to any party. Meanwhile, Article 19 states that the Transportation Agreements supersede any prior oral or written agreements between the parties. For Article 32, it is a superseded communication clause, which means that all previous communication, whether written or oral, will be superseded. [125] In the case of Aster Bina Sdn Bhd & Ors v Lebar Daun Development Sdn Bhd and another appeal [2024] 6 MLJ 95, His Lordship Azizul Azmi Adnan JCA observed, at pp 106 & 107, that an entire agreement clause will preclude all prior negotiations or agreements unless there is a collateral contract available: [25] We are of the view that the contents of the letter dated 8 September 2017 could not have formed part of the concluded contract between the parties. This was because the SPA contained an ‘entire agreement’ clause, which superseded any prior term, representation or warranty negotiated between the parties. [26] The entire agreement clause was contained in cl 18.1 of the SPA, which reads as follows: