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SHIELA A/P VEDIAPPAN DEFENDANT JUDGMENT Introduction [1] Through this originating summons, the plaintiff sought to obtain a declaration under s. 96(3) Road Transport Act 1987 („RTA 1987‟), and also to declare that it will not be liable for any judgment obtained by the third defendant in the Bahau Magistrates Court (summons no. A73KJ-102-10/2016), in respect of a claim made by the third defendant against the first and second defendants. 2 [2] Although the summons has been served on all three defendants, only the third defendant participated and contested. The third defendant had only filed one affidavit in opposition. [3] I had only allowed the plaintiff‟s application for a declaration under s. 96(3) RTA 1987. The reasons for the decision shall be elaborated in this judgment. Brief facts [4] The plaintiff is an insurance company. The second defendant is the registered owner of a car with the registration number NBM 8998, and had taken up the usual insurance policy with the plaintiff. [5] The second defendant had on the 23 October 2015, sent his car to the workshop called „Pusat Ekzos Shen Kong Trading‟ to replace the front windscreen. He had on the same day returned to the workshop to collect his car. However, he was told that by the first defendant, who was the workshop‟s proprietor that his car had been sent for repairs to the bumper, as it had been scratched. [6] Unknown to the second defendant, his car had been involved in an accident. Apparently, the first defendant had driven his car to buy spare parts from another shop located in Taman Megah in Bahau. The first defendant got into an accident during the journey involving the third defendant, who was on 3 a motorcycle. The second defendant only came to know of the accident when he received a letter from the plaintiff dated 16 March 2016, informing him that this car had been involved in an accident on the 23 October 2015. [7] The third defendant then filed a suit against the first and second defendant at the Bahau Magistrates Court („the Bahau suit‟). The suit had not gone for trial yet when this matter was heard. [8] The second defendant reiterated that he never knew that the first defendant had driven his car, and that he was never informed of the accident. The second defendant contended that the first defendant was an unauthorised driver, as he had never given any permission for him to drive his car. The second defendant had also affirmed a statutory declaration dated 21 February 2017 reflecting his stand. This statutory declaration was attached as an exhibit to the plaintiff‟s affidavit in support. [9] The plaintiff had also appointed an adjuster to investigate. The adjuster‟s report is of not much significance, as it did not conclude whether the first defendant had been authorised to drive the second defendant‟s car. The report however mirrors the version of facts as set out by the second defendant. [10] The plaintiff‟s move to obtain a declaration under s. 96(3) RTA 1987, was to exonerate itself from any liability arising from its policy, and the claim by the third defendant. The 4 plaintiff relied on clause 12 of the policy under the title “Unauthorised Driver” where it states as follows:- We will not pay for any incident, loss, damage or liability caused, sustained or incurred whilst your car, in respect of which indemnity is provided by this policy, is being driven by any person other than an authorised river or person driving on your order or with your permission. [11] It is the plaintiff‟s case that it the first defendant had driven the second defendant‟s car without his consent or knowledge, and that the first defendant was therefore an unauthorised driver. The plaintiff in relying on clause 12 of the policy takes the position that it would not be liable for any claim made on the policy, as an unauthorised driver drove the car when it met with the accident. [12] The plaintiff had also sought to obtain a declaration, that it should not be liable for any order or judgment obtained by the third defendant or any individual in the Bahau suit, pertaining to the accident involving the second defendant‟s car. The third defendant’s response [13] The third defendant in challenging the second defendant‟s assertion that he had no knowledge of the accident on the day that it occurred, questioned why did the second defendant not take any action when the first defendant told 5 him that his car had been sent for repairs, to repair the car‟s bumper. The third defendant contended that the second defendant should have lodged a police report if he took the position that the first defendant had driven his car without permission. It was submitted that the second defendant‟s statutory declaration, which was made sixteen months after the accident, denotes an afterthought, and that the second defendant had knowledge of the accident from the onset. [14] The case of Ng Thoong Chen v Kedah Marble Sdn Bhd [2003] MLJU 368, was cited in support, where the court held that the statutory declaration made one year and three months, and the police report lodged nine months after the event, goes to show that they were afterthoughts by the respondent. [15] The third defendant‟s counsel in urging this court not to attach much weight to the second defendant‟s statutory declaration, submitted that the third defendant is unable to cross-examine the second defendant, as the statutory declaration was attached as an exhibit to the plaintiff‟s affidavit. The case of Hong Leong Bank Bhd v Asakura Industry Sdn Bhd [2011] 9 MLJ 723 was cited in support, where the court held that although the police report and statutory declaration were admitted in evidence, the weight attached to them were slight, in the absence of an opportunity to cross-examine. 6 [16] The third defendant‟s counsel also submitted that the second defendant had in leaving his car at the first defendant‟s workshop, gave an implied authority for the latter to drive the car. The case of Dato’ Othman bin Hashim v KKW Auto Centre [2012] 5 MLJ 756 was referred to in support. In that case, the plaintiff had sent his car to the defendant‟s workshop to change its engine. The plaintiff however was not satisfied with his car‟s condition, and had instructed for the car to be sent for balancing and alignment. The defendant then sent the car to another workshop and met with an accident on the way, which resulted in the car being declared a total loss. The plaintiff‟s insurance company sued the defendant through the plaintiff. The court there held that the defendant‟s worker is deemed as an insured person when he drove the car, and not an unauthorised driver as alleged by the plaintiff. [17] The third defendant‟s counsel cited the Federal Court of Singapore‟s decision in China Insurance Co Ltd v Ang Bay Kang [1969] 1 MLJ 142. In gist, the Federal Court held that it is implied that a car owner would have either directly or indirectly given authority to the workshop proprietor to test the car after repair work has been done. Findings [18] I would firstly address the allegation that the second defendant‟s statutory declaration was an act of afterthought, as it was prepared months after the accident. The second 7 defendant had clearly stated that he had only come to know of the accident after the plaintiff notified him. On the day that he had gone to collect his car, the car was not at the first defendant‟s workshop. He was told that the car had been sent for repairs to the bumper due to scratches. It would have been a different scenario had the second defendant been informed of the truth, in that the car was involved in an accident. I take the view that the allegation of afterthought would have more substance to it, had he known of the accident. In this case, second defendant had only come to know of the accident way after it had occurred, and that too when he was notified by the plaintiff of the third defendant‟s claim. The case of Ng Thoong Chen v Kedah Marble Sdn Bhd (supra) is also not helpful to the third defendant‟s proposition, as that case concerned a winding-up petition, where the factual matrix is not the same as this case. [19] I also do not find any merits to the third defendant‟s contention that that there should be little, or no weight attached to the second defendant‟s statutory declaration, as she was unable to subject him to cross-examination. The third defendant could have sought seek leave to cross-examine the deponent to the plaintiff‟s affidavit. Since it was the plaintiff‟s deponent that had relied on the second defendant‟s statutory declaration, he could be compelled to substantiate the second defendant‟s version. In any event, the first defendant had already been served with the cause papers, and chose not to defend the plaintiff‟s claim. The 8 plaintiff‟s claim and the allegations supporting its claim against the first defendant are therefore uncontested. [20] The final point raised is the proposition that the first defendant had the implied authority to drive the second defendant‟s car. I am in total agreement with the Singapore‟s Federal Court‟s decision in China Insurance Co Ltd v Ang Bay Kang (supra). Surely a workshop„s proprietor or worker is impliedly given the authority to „test-drive‟ a car after having done repairs to it. In this case however, there was no need for the first defendant to drive the car, as the second defendant did not send it for mechanical repairs. He had merely required for the car‟s window to be replaced. [21] Furthermore, the first defendant did not take the car for a test drive. He had instead used the second defendant‟s car to go and buy spare parts from another shop. This was clearly not within the scope of work that the second defendant had entrusted him with. On this basis, I cannot find any reasons to support the proposition that the first defendant was given the implied authority to drive the second defendant‟s car. I would have reached a different conclusion, if the first defendant had driven the car to test it after having done mechanical repairs. Even if this was the case, the first defendant could not be said to have been given an implied authority to drive the car to buy spare parts for his own use. The first defendant had clearly used the second defendant‟s car for his own personal usage that had no benefit for the second defendant. 9 [22] The facts of Dato’ Othman bin Hashim v KKW Auto Centre (supra) are clearly distinguishable. In that case, it was the plaintiff who had directed the defendant to send his car to another shop for wheel alignment and balancing upon the plaintiff‟s instruction. In this case, there was no such instruction given by the second defendant to drive his car. In any event, as I have highlighted earlier, the first defendant had used the first defendant‟s car for his own usage. Conclusion [23] I am satisfied that the plaintiff has managed to establish its case that the policy is not enforceable for the purposes of the third defendant‟s claim against it. I therefore grant an order in terms of prayer (1) of the Originating Summons. I am however not prepared to grant prayer (2). I make no order as to costs. Dated: 30 November 2017. -sgd- (Mohamed Zaini Mazlan) Judge Kuala Lumpur High Court (Commercial Division) Counsel for the plaintiff C.M Maran [Messrs Kenneth William & Associates] 10 Counsel for the third defendant Mandeep Singh [Messrs V. Gobi & Associates]