Rosalind Goh Lee Ling v Great Eastern Life Assurance (Malaysia) Berhad (BA-22NCC-27-02/2022)

GREAT EASTERN LIFE ASSURANCE (MALAYSIA) BERHAD

HENG AIK JOON

TAN YEE VON (NRIC NO.: 800721-14-5708) … DEFENDANTS GROUNDS OF JUDGMENT

This is the Plaintiff’s claim against the Defendants arising from the repudiation of her medical insurance claim and the subsequent rescission of her policy by the First Defendant, Great Eastern Life Assurance (Malaysia) Berhad. The Plaintiff alleged that she had made full and honest disclosures of her medical history during the proposal stage and that the repudiation and rescission were wrongful.

The Plaintiff also alleged negligence or mistake on the part of the Second and Third Defendants for failing to include her medical history in the proposal form submitted to the First Defendant. She further claimed that she was induced to surrender her existing Prudential policy based on representations made by the Third Defendant.

The Plaintiff’s relief against the Defendants are, inter alia for the First Defendant to reinstate the Plaintiff’s insurance policy which the First Defendant repudiated for non-disclosure of medical history for bronchitis and GERD; for the First Defendant to approve and pay to the Plaintiff a sum of RM20,327.90 being the hospitalisation and surgical costs incurred by the Plaintiff under the insurance policy; and for the First, Second and Third Defendants to jointly and/or severally be liable to pay general damages for the pain and suffering, emotional and psychological distress and insomnia to be assessed.

The Defendants denied the Plaintiff’s claims. The First Defendant argued that the Plaintiff failed to disclose material medical information and was therefore in breach of her duty of disclosure. The Second and Third Defendants denied receiving such disclosures and also denied any wrongdoing.

At the conclusion of the trial, and after considering all the evidence and submissions, I dismissed the Plaintiff’s claim against all the Defendants. My reasons are set out below. S/N LtjsePYDqkenCLvlBmzTaw

The Plaintiff, Rosalind Goh Lee Ling, was previously covered under a medical insurance policy issued by Prudential Assurance Malaysia Berhad (the PRU Policy), effective from 1 July 2009. The PRU Policy provided comprehensive coverage with annual and lifetime limits of RM62,500.00 and RM625,000.00, respectively, and her employer paid the premiums as part of her employment benefits.

On 12 July 2018, the Plaintiff was approached at her workplace by the Third Defendant, Tan Yee Von, an insurance agent with the First Defendant. The Third Defendant was promoting the First Defendant’s “SmartProtect Essential Insurance 2” policy (the GE Policy) to the Plaintiff, her employers, and several colleagues. The Third Defendant’s husband, the Second Defendant, Heng Aik Joon, was also an agent of the First Defendant, and both the Second and Third Defendants were operating from the same agency as a team. The Third Defendant was the agent who directly engaged with the Plaintiff, whereas the Second Defendant was named in the GE Policy as the issuing agent, a matter which became contentious later.

On the same day, the Plaintiff signed and submitted a proposal form for the GE Policy. The First Defendant subsequently accepted the Plaintiff’s proposal, and on 30 July 2018, issued Policy No. 1029266144 in favour of the Plaintiff. The policy was delivered to the Plaintiff and consisted of a voluminous compilation of documents (collectively referred to as “the Policy Book”), including: S/N LtjsePYDqkenCLvlBmzTaw a. The policy contract, benefits, terms and conditions; b. The proposal form; c. A supplementary investment strategy form; d. Confirmation of advice and customer fact-find forms; e. Confirmation and agreement by the life to be assured/proposer of electronically submitted proposal form (e-confirmation form) and a policy acknowledgement slip; f. A benefit illustration and supplementary sheet.

Apart from the e-confirmation form and acknowledgement slip, which bore the Plaintiff’s manual signatures, the rest of the forms are in digital format and do not require manual signatures. The Plaintiff did not raise any complaints or disputes at any point regarding the accuracy or completeness of the information in the various forms in the Policy Book.

According to the First Defendant, the Plaintiff answered “No” to all relevant questions in the health declaration and lifestyle sections of the proposal form, including questions concerning whether she had ever been diagnosed with or treated for respiratory conditions such as ‘bronchitis’ and digestive conditions such as ‘gastroesophageal reflux disease’ (GERD).

Approximately 18 months later, in February 2020, the Plaintiff submitted two claims under the GE Policy for medical treatment and hospitalisation: a. The first claim was related to a consultation on 3 January 2020 at Thomson Hospital with Dr Gan Ing Earn, where the Plaintiff stated the diagnosis as “GERD gastric polyp”. b. The second claim was related to consultations on 25 December 2019 and 3 January 2020 with Dr Tan Wee Yong and Dr Sia Sheau Fung, respectively, for “headache”.

As the claims were submitted within two years of the policy’s inception, the First Defendant initiated routine background checks pursuant to its standard practice for early claims. This included obtaining medical records from doctors who had previously treated the Plaintiff, particularly those located near her residence. Two medical reports were obtained: a. From Dr Tan Lan Eng of Thomson Hospital, dated 17 April 2020, confirming that the Plaintiff was diagnosed and treated for ‘bronchitis and GERD’ on multiple occasions in 2017, specifically on 18 September 2017, 26 September 2017 and 17 October 2017. Dr Tan stated that the Plaintiff was informed of these diagnoses and was admitted to Thomson Hospital on 19 September 2017 for bronchitis and GERD, during which an oesophago-gastro-duodenoscopy (OGDS) procedure was performed for GERD. S/N LtjsePYDqkenCLvlBmzTaw b. From Dr Hazirah Begum Binti Abdul Rahman of Poliklinik Prima, dated 1 May 2020, which indicated that the Plaintiff had a history of sore throat and cough. The Plaintiff was diagnosed with pharyngitis from 2010 to 2019.

Upon reviewing these medical records, the First Defendant noted that the Plaintiff had not disclosed her pre-existing conditions, particularly her bronchitis and GERD diagnoses, along with her hospital admission, despite being explicitly asked in the proposal form at part V, question 6 (c) and (f). The relevant section of the form included targeted questions requiring the disclosure of any past or ongoing medical conditions, to which the Plaintiff had responded in negative.

In light of the findings, the First Defendant’s Healthcare Services Department concluded that the Plaintiff had failed to disclose material facts in her insurance proposal. On 29 July 2020, a formal letter was issued to the Plaintiff, informing her that the submitted medical claims were repudiated due to this non-disclosure.

Following that, on 14 August 2020, the First Defendant’s Policy Processing Department issued a further letter to the Plaintiff notifying her that the GE Policy was rescinded ab initio, that is, treated as null and void from inception, based on her breach of the statutory and contractual duty of disclosure. The premiums paid under the policy were refunded to her.

The Plaintiff, through letters and emails, appealed against the repudiation and rescission decisions. She maintained that she had S/N LtjsePYDqkenCLvlBmzTaw disclosed her relevant medical history, namely her hospitalisation and OGDS procedure in 2017, to the Third Defendant at the time of submitting her proposal. According to the Plaintiff, she handed over her medical records concerning bronchitis and GERD to the Third Defendant at her workplace on 13 July 2018, in the presence of her colleagues. She contended that any failure to transmit this information to the First Defendant was attributable to the Third Defendant’s negligence or omission.

The First Defendant reviewed the appeal through its Healthcare Services Department but found the explanation unconvincing and declined to reinstate the policy. By letter dated 10 September 2020, the Plaintiff was informed that her appeal had been rejected.

In response to the Plaintiff’s allegations that the Third Defendant had failed to disclose material facts to the First Defendant despite having been informed, the matter was further referred to the First Defendant’s Market Conduct and Investigation Department. After conducting internal inquiries, including a review of agency procedures and statements from the Second and Third Defendants, the First Defendant found no evidence to support the Plaintiff’s assertions. The Plaintiff was notified of this by letters dated 8 January 2021 and 31 May 2021.

Meanwhile, the Plaintiff also alleged that she had surrendered her PRU Policy in November 2019 upon the Third Defendant’s advice and assurances regarding the adequacy of the GE Policy. This was disputed by the Third Defendant, who explained that she merely informed the Plaintiff that some of the GE Policy’s coverage would S/N LtjsePYDqkenCLvlBmzTaw only commence after 120 days and denied giving any advice to surrender the PRU Policy. The Third Defendant added that such advice would have been against her own financial interest due to the Replacement of Policy (ROP) rules that could disqualify agents from receiving commissions.

Further, the Plaintiff contended that she was unaware of the Second Defendant’s involvement and objected to the Second Defendant being named as the issuing agent in her policy documents. The Third Defendant, however, clarified that she had informed the Plaintiff that her husband (the Second Defendant) was listed as the issuing agent and that she would remain the primary servicing agent. The Third Defendant also recorded her name and contact number in the policy documents when delivering the hard copy to the Plaintiff, along with her manager’s details, to facilitate future contact and support.

Ultimately, the Plaintiff, being dissatisfied with the First Defendant’s repudiation and rescission of the policy, and disputing the alleged non-disclosure, commenced the present action. She sought, among others, declarations that the GE Policy was valid and enforceable, damages amounting to RM20,327.90 for the rejected claims, and ancillary reliefs arising from her alleged reliance on the representations made by the Third Defendant.

The Agreed Issues to be Tried are as follows: S/N LtjsePYDqkenCLvlBmzTaw i.

Whether the Third Defendant had given guarantee to the Plaintiff that the GE Policy will offer better medical benefits than her existing Prudential Policy.

If yes, whether such guarantee had caused the Plaintiff to buy the GE Policy from the First Defendant and surrender the Prudential Policy within 120 days after the GE Policy had become effective? ii. Whether the Plaintiff made an honest and full disclosure in the proposal form and if so, whether the Second and/or the Third Defendants were negligent/ failed/ omitted to fill in the Plaintiff’s Second Medical History into the proposal form for the GE Policy that is in accordance with the medical report submitted by the Plaintiff. iii. Whether the Plaintiff can sue the First Defendant as principal and the Second and Third Defendants as agents for the same cause of action and if so, whether the First Defendant as an insurance company is also required to be fully responsible for the negligence/ omissions/mistakes made by the Second or Third Defendants as its own insurance agents under Clause 12, Part 2, Division 2, Schedule 9, Section 129, Financial Services Act 2013. iv. Whether the First Defendant is entitled to repudiate the Plaintiff’s insurance claim and rescind the GE Policy, if:

The non-disclosure of the said medical history was fully caused by the negligence/omission of the Second and Third Defendants.

The GE Policy has been effective for more than Two (2) years of incontestability period under Paragraph 13, Division 1 Part 3, Schedule 9, Financial Services Act 2013. v. Whether the Plaintiff is considered to have accepted the validity of the policy contract by not returning the GE Policy or raising any issues regarding the GE Policy during the free-look period, and whether the Plaintiff was estopped from complaining that the proposal form is complicated. WITNESSES

A total of nine (9) witnesses testified on behalf of the parties during the trial.

The Plaintiff’s witnesses are: a. Low Beng Huat (PW1) - the Plaintiff’s employer who owns Profmatic Electrical Engineering Sdn Bhd. b. Leong Lee Fong (PW2) - the Plaintiff’s colleague. c. Rosalind Goh Lee Ling (PW3) – the Plaintiff herself.

The First Defendant’s witnesses are: a. Zaleha Binti Zulkifli (DW1) – Executive in the Policy Processing Department at the First Defendant. b. Lau Tze Hung (DW2) - Assistant Vice President at the First Defendant’s Customer Service Department. c. Yap Sheau Wen (DW3) - Assistant Vice President in the Healthcare Services Department of the First Defendant. d. Eng Syuh Wan (DW4) - Assistant Vice President in the Healthcare Services Department of the First Defendant.

The Second and Third Defendants’ witnesses are: a. Heng Aik Joon - the Second Defendant himself (DW5) b. Tan Yee Von - the Third Defendant herself (DW6)

This Court finds that the central issue for the Court to consider and determine is whether the Plaintiff disclosed and provided her medical history of bronchitis and GERD to the Third Defendant. If so, the next question is whether the Third Defendant failed to disclose and submit the said medical history in the proposal form submitted to the First Defendant on 12 July 2018, which was subsequently approved on 30 July 2018.

Before examining the evidence adduced by the parties on the above-stated issue, it is first necessary to outline the applicable legal principles that govern the facts of the present case.

Under common law, a foundational doctrine applies to insurance contracts, namely, the duty of utmost good faith, also known by its Latin term, uberrimae fidei. This doctrine imposes two key obligations on both parties to an insurance contract (refer: para [490.182], Halsbury’s Laws of Malaysia, Vol. 20, 2017 Reissue): a. Each party is required to disclose all material facts; or b. Each party must refrain from misrepresenting any material fact, even if the misrepresentation is made honestly or innocently.

This common law duty is also codified in Part 3, Schedule 9 of the Financial Services Act 2013 (“FSA 2013”). Schedule 9, which came into force on 1 January 2015, introduced a new standard governing disclosure and representations by consumers when proposing, altering, or renewing insurance contracts. According to the explanatory note accompanying the FSA 2013 Bill, this new duty obliges consumers to exercise reasonable care to avoid any form of misrepresentation in the pre-contractual stage. Specifically, consumers must provide accurate and complete answers to questions posed by the insurer. Where a consumer is found to have made a deliberate or reckless misrepresentation, the insurer is empowered to rescind the insurance contract and refuse to honour any claims.

In the present matter, the policies in question fall under the category of “consumer insurance contracts.” Accordingly, the relevant legal requirement concerning the Plaintiff’s duty of disclosure prior to contract formation is found in Paragraph 5, Schedule 9 of the FSA 2013, which provides: “5. (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). .…

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]

The standard by which a consumer’s conduct is assessed is set out in Paragraph 6 of Schedule 9, which adopts the benchmark of the “reasonable consumer.” This standard corresponds to that of an ordinary, prudent individual, akin to the hypothetical “man on the Clapham omnibus.” Paragraph 6(2) provides: S/N LtjsePYDqkenCLvlBmzTaw “(2) Subject to subparagraph (3), the standard of care required of the consumer under subparagraphs 5(2) and (4) shall be what a reasonable consumer in the circumstances would have known.” [emphasis added]

Furthermore, Paragraph 5 (8) of Schedule 9 of the FSA 2013 imposes an additional duty on consumers to disclose any information, beyond what is specifically requested in the proposal form, that they know to be relevant to the insurer’s decision on whether to accept the risk and on what terms and rates. Paragraph 5(8) states that: “(8) 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.”

Additionally, the FSA 2013 establishes a statutory presumption in Paragraph 7(8) of Schedule 9, whereby questions posed in a proposal form by the insurer are presumed to be relevant for risk assessment. The provision states: “(8) 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]

In the present case, the Plaintiff purchased a life insurance policy which provided the Plaintiff with coverage for death, critical illnesses and medical bills which she incurred.

The dispute in this case began when the Plaintiff submitted two claim forms to the First Defendant on 6 February 2020, relating to a medical consultation and a hospital admission. The claim forms in question are: a. From Thompson Hospital on 3 January 2020, treated by Dr Gan Ing Earn – diagnosed for “GERD gastric polyp” b. From Thompson Hospital on 3 January 2020, treated by Dr Sia Sheau Fung, and on 25 December 2019, treated by Dr Tan Wee Yong – diagnosed for “headache”

Since the claims were made within two years of the start of the policy, the First Defendant, as part of its usual practice, carried out random checks with nearby clinics and hospitals. In doing so, it obtained feedback and medical reports from two doctors who had treated the Plaintiff. The reports are: a. Medical report dated 17 April 2020 by Dr Tan Lan Eng from Thompson Hospital, informing that the plaintiff was treated and diagnosed with bronchitis and gastroesophageal reflux disease (GERD) on 18 September 2017, and bronchitis on 26 September 2017 and 17 October 2017. Dr Tan stated that the Plaintiff was informed of the diagnosis on these dates and revealed that the Plaintiff was admitted on 19 September 2017 S/N LtjsePYDqkenCLvlBmzTaw for bronchitis and GERD. The Plaintiff also underwent an oesophageal-gastro-duodenoscope (OGDS) for GERD. b. Report dated 1 May 2020 by Dr Hazizah Begum Binti Abdul Rahman from Poliklinik Prima, stating that the Plaintiff had a sore throat and cough and was diagnosed with pharyngitis from 2010-2019.

Upon cross-checking the medical information provided in the Plaintiff's proposal form, the First Defendant discovered that the Plaintiff had failed to disclose her 2017 diagnoses of bronchitis and GERD, despite being explicitly asked to do so in the health details and lifestyle section of the proposal form.

Therefore, vide letter dated 29 July 2020 to the Plaintiff, the First Defendant’s Healthcare Services Department decided that there was a non-disclosure of material facts, which is material to the First Defendant’s underwriting decision. Hence, the First Defendant repudiated the Plaintiff’s claim.

Consequently, vide letter dated 14 August 2020, the First Defendant issued a letter informing that the Plaintiff’s policy was rendered null and void from the inception due to the said breach of non-disclosure. Therefore, the premium amount of RM15,286.13 was refunded to the Plaintiff.

The Plaintiff contended that she had disclosed and submitted the medical history on bronchitis and GERD, including her admission to Thompson Hospital in 2017, to the Third Defendant at the time the S/N LtjsePYDqkenCLvlBmzTaw proposal forms were submitted. It is pertinent to note that the Plaintiff did not deny having a medical history of bronchitis and GERD, and that these conditions were not disclosed in the proposal form.

The Third Defendant, on the other hand, contended that upon the Plaintiff deciding to take up the GE Policy, the Third Defendant had assisted the Plaintiff to submit the application for the First Defendant to proceed with the underwriting process. The Third Defendant had asked the Plaintiff a series of questions regarding her personal information, current and medical history information and other relevant details. The Third Defendant explained that at the time of submission of the Plaintiff’s proposal form, the Plaintiff only disclosed to the Third Defendant about her first medical history, that is, the removal of her uterus and ovary at SJMC by Dr Ang in 2011 or 2012 and that she had fully recovered by then. Subsequently, on the First Defendant’s request for further information via ‘Standard Letter of Query’ dated 13 July 2018, regarding her uterus and ovary removal, the Plaintiff then gave the Third Defendant the Histopathology Report dated 25 October 2011. The Third Defendant denied being informed about the Plaintiff’s medical history of bronchitis and GERD, and being given the said medical report by the Plaintiff.

As mentioned above, Schedule 9, Part 2: Paragraph 5 – pre-contractual duty of disclosure for consumer insurance contract has imposed a statutory duty on the consumer to take reasonable care not to make a misrepresentation to the insurer when answering any specific questions asked by the insurer that are relevant to the S/N LtjsePYDqkenCLvlBmzTaw decision of the insurer whether to accept the risk or not and the rates and terms to be applied. The principle of uberrimae fidei applies to parties entering into an insurance contract. The standard of care required of the consumer is ‘reasonable consumer’. Therefore, the Plaintiff, as the consumer, had a duty of utmost good faith to make full and frank disclosure of all material facts within her knowledge. In Leong Kum Whay v QBE Insurance (M) Sdn. Bhd. & Ors [2006] 1 MLJ 710), the Court of Appeal held as follows: “[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. The duty is on the insured to make full disclosure of material facts within his knowledge.” [emphasis added]

The rationale for this requirement is easy to discern. Taking on an insurance risk would become onerous if the insurer cannot rely on the full and fair disclosure of the insured regarding facts material to the risk, which are within the knowledge of the party seeking insurance coverage. Without such information, the insurer will be unable to properly assess the risk it is undertaking and whether to accept the risk and, if so, at what rate to set the premium. It would be unfair to require the insurer to take on the risk without all the relevant facts.

In this case, as previously stated, the primary and indeed the only relevant issue is whether the Plaintiff disclosed her bronchitis and S/N LtjsePYDqkenCLvlBmzTaw GERD medical conditions and provided the medical report to the Third Defendant. Given the conflicting evidence from both parties, the credibility of the witnesses becomes crucial in resolving this matter.

It is undisputed that the First Defendant upon receiving the Plaintiff’s claim forms, on 8 March 2020, requested that the Plaintiff to provide information including copies of all routine blood tests, x-ray, ultrasounds and health screening reports in the past five (5) years and the full name and address of regular treating doctors for the past five (5) years.

It is undisputed that on 12 March 2020, the Plaintiff provided the details of the regular clinics, namely, Poliklinik Prima and Poliklinik & Surgeri Sungai Buloh.

Further, in responding to the First Defendant’s request, in the said letter, the Plaintiff only enclosed signed letters of authorisation and a set of medical reports as in B9 pages 250–260. She chose to submit the following reports:

An Examination Report dated 18 September 2017 from

A Mammogram Report dated 15 March 2016 from Damai

A Blood Test Report dated 11 November 2019 from Clinpath

A Bronchoscopy Report dated 19 September 2017 from

Two Laboratory Reports dated 23 September 2017 from Quantum, and

A Microbiology Report dated 21 September 2017 from Pantai

It is also undisputed, separately, for this trial, that the Plaintiff produced a different set of medical records found in B2 pages 5-18 to support her claim that she had disclosed her medical history, including the diagnoses of bronchitis and GERD, to the Third Defendant in 2018.

Accordingly, two sets of medical records are now before the Court. A comparison of the two reveals that the medical report at B2 pages 7–10, which records a diagnosis of GERD on 19 September 2017, was not included among the documents submitted by the Plaintiff to the First Defendant in her letter dated 12 March 2020 (which are in B9 pages 250–260).

Hence, it is undisputed that the Plaintiff did not disclose the consultation at Thompson Hospital in 2017, which diagnosed her bronchitis and GERD, both of which are well within the past five (5) years from the date of the First Defendant’s letter dated 8 March

However, when questioned in cross-examination as to why it S/N LtjsePYDqkenCLvlBmzTaw was not disclosed, the Plaintiff’s answer was just “I do not know, I am not sure”.

If the Plaintiff had genuinely informed the Third Defendant in 2018 about her medical records with Dr Tan at Thomson Hospital for the diagnosis of bronchitis and GERD, it would have been logical for her to mention those consultations in her reply letter dated 12 March

The fact that she left them out suggests only one reasonable conclusion: that the Plaintiff knew all along that these medical conditions were important for the First Defendant to consider in deciding whether to approve her insurance proposal. Yet, she chose to conceal this information. Even after learning that the First Defendant was investigating her claim, she still did not disclose her consultations at Thomson Hospital.

Moreover, if the Plaintiff’s assertion is true, that she had disclosed her GERD diagnosis to the Third Defendant in 2018, it would have been natural and expected for her to provide the same medical report in 2020 when the First Defendant requested her complete medical history for the preceding five (5) years.

Therefore, it can be concluded that the Plaintiff deliberately withheld the GERD report dated 19 September 2017 from the First Defendant in her 12 March 2020 correspondence because she was fully aware that she had failed to disclose this diagnosis during the proposal stage in 2018. By March 2020, she clearly recognised that this information was both relevant and material to the First Defendant’s assessment of her insurability.

This Court finds that the Plaintiff’s omission of the GERD report in 2020 reflects a conscious decision to suppress that information, consistent with her failure to disclose it during the proposal stage in

In the absence of any reasonable explanation from the Plaintiff, this is the only logical conclusion. Notably, when this omission was raised during cross-examination, the Plaintiff was unable to offer a satisfactory explanation, and no clarification was given during re-examination.

Furthermore, it is also undisputed that the Plaintiff did not take any action to rectify the Attending Physician’s statement by Dr Gan Ing Earn. Dr Gan had diagnosed the Plaintiff to have ‘GERD gastric polyp’ on 3 January 2020. However, Dr Gan in the Attending Physician’s Statement – to question 6- which asked the following questions - “Had the patient previously received any medical consult for the above symptoms Dr Gan’s answer was ‘no’. Question 13 – “has the patient previously been treated outpatient or hospitalised for this or any other disease” Dr Gan’s answer was also ‘No’.

To this point, the Plaintiff in her cross-examination admitted that both the answers by Dr Gan were incorrect. However, the Plaintiff chose not to disclose this to the First Defendant when the Third Defendant was preparing her Claimant’s statement.

It is apparent that there were conflicting testimonies between the Plaintiff and the Third Defendant on the issue at hand. However, after evaluating both accounts, I find the Plaintiff's version of events to be less credible than that of the Third Defendant. My reasons are as follows: S/N LtjsePYDqkenCLvlBmzTaw a. It is clear that the Plaintiff failed to disclose her medical history of bronchitis and GERD, despite it being recorded within the past five (5) years, in her letter dated 12 March 2020. When questioned during cross-examination, the Plaintiff could not provide any cogent reason for this non-disclosure, nor was any explanation offered during re-examination. b. I agree with the First Defendant's argument that if the Plaintiff had provided these reports to the Third Defendant in 2018, she would have disclosed them again in 2020. The only reasonable conclusion for this omission is that the Plaintiff deliberately withheld the information. c. This inference is further fortified by the fact that the Plaintiff was able to produce the relevant medical history during this trial. d. Additionally, I find that the Plaintiff lacks credibility as a witness. My reasons are: i. The Plaintiff denied having a history of prolonged cough in her examination-in-chief, but conceded to this fact during cross-examination. ii. The Plaintiff vehemently denied that she had signed the form of Exhibit P1 and insisted that she had signed on a tablet, until the original was produced in Court. S/N LtjsePYDqkenCLvlBmzTaw iii. The Plaintiff has falsely accused the Third Defendant of persuading her to surrender her PRU Policy in 120 days, when in fact the PRU Policy was only surrendered in November 2019, which was way beyond 120 days.

I agree with the Defendants’ argument that the Plaintiff’s claim that she signed the e-confirmation form on a tablet cannot be brushed off as a mere mistake. During cross-examination by counsel for the Second and Third Defendants, before Exhibit P1 was shown, she did not merely reiterate her story; she added more detail. She clearly stated that she did not use a pen but a “stick” (referring to a stylus), and that the form she signed was smaller in size than the printed copy found at B2 pages 174-175.

However, once Exhibit P1 was produced, the Plaintiff changed her testimony and said she was mistaken. It became clear that her account of events was untrue. Her story about using a tablet and a stylus was fabricated. This shows that the Plaintiff was willing to lie under oath, which seriously undermines the honesty of her testimony.

Although her statements about how the form was signed may not directly affect the issue of whether she disclosed her medical history of bronchitis and GERD, her willingness to lie about this small but significant detail casts doubt on her overall credibility. If she could lie about how she signed a form, it is not unreasonable to think she might also have lied about giving her medical records to the Third Defendant.

It is also worth noting that the Plaintiff did disclose her uterus removal in the supplementary sheet of the proposal form. If she had informed the Third Defendant about her bronchitis and GERD and handed over those records, it makes no sense why the Third Defendant would only leave out that part but include the uterus removal. There would have been no reason for the Third Defendant to selectively conceal one medical condition but not the other, unless the Plaintiff never gave her those details in the first place.

Additionally, the Plaintiff’s history of a prolonged cough, recorded by Dr Tan from Thomson Hospital as “cough for one month”, may not be central to the issue of non-disclosure. However, it further illustrates the inconsistencies in the Plaintiff’s testimony, even regarding her own symptoms. In her witness statement, the Plaintiff denied ever having a prolonged cough. Yet, during cross-examination by the learned counsel for the First Defendant, she contradicted herself by admitting that she had suffered from a prolonged cough as early as 8 January 2017.

This Court has noted several other inconsistencies in the Plaintiff's evidence. After thoroughly evaluating the Plaintiff's testimony, I find that the Plaintiff is not a credible witness.

I agree with the learned counsel for the Defendants’ submission that the Plaintiff’s allegations are not corroborated by PW2’s evidence. PW2 contended that she saw the Plaintiff submitting a bundle of medical reports to the Third Defendant. However, PW2 admitted that she could not confirm whether the bundle included the medical history of bronchitis and GERD, and she could not recall when she S/N LtjsePYDqkenCLvlBmzTaw saw the Plaintiff hand over the bundle of medical reports to the Third Defendant.

The Plaintiff’s argument that the Third Defendant independently marked 'No' to the questions regarding bronchitis and GERD does not hold water. The Plaintiff had the opportunity to review the Policy Book, which was provided to her on 17 August 2018. The cover letter to the Policy Book explicitly advised the Plaintiff to carefully check the contents and notify the First Defendant if any inaccuracies or incorrect answers were found, including those related to her medical condition. At the trial, the Plaintiff admitted that she did not go through the Policy Book as advised by the First Defendant.

Aditionally, the Plaintiff’s claim that it was unreasonable to expect her, as an ordinary consumer, to ensure full disclosure in the allegedly complex proposal form listing over 200 medical conditions cannot be sustained. It is a well-established principle that a person is bound by the contents of a document they sign, unless there is evidence of fraud or forgery. By signing the e-confirmation form, the Plaintiff confirmed the accuracy of the information submitted. More importantly, as insurance is a contract uberrimae fidei (of utmost good faith), the duty to disclose all material facts lies squarely with the person seeking to be insured, regardless of whether the form was technical or complex. In the case of Tan Mooi Sim & Anor v United Overseas Bank (M) Bhd & Anor [2011] 8 MLJ 556, the Court held that: ... It is also trite law that because a contract of insurance is a contract uberrimae fides or of the utmost good faith, S/N LtjsePYDqkenCLvlBmzTaw there is a duty on the person who wants to be insured to disclose all that is relevant to the insurer’s decision whether to accept the risk being proposed. ... The court also finds that as the deceased had signed the MRTA form, he is bound by the terms and conditions of the form and it is immaterial whether he had read the document or not. [emphasis added]

Furthermore, the Plaintiff had a 15-day free-look period to raise any concerns with the First Defendant, which she failed to do.

Therefore, given the statutory presumption imposed that all matters asked in a proposal form are material (schedule 9, Paragraph 7(8), along with the Plaintiff’s Pre-contractual duty of disclosure (Paragraph 5), the Plaintiff cannot now shift the blame onto the Third Defendant, the agent who submitted her proposal forms. The burden to disclose material facts always rests with the Plaintiff as the consumer.

With regard to the Plaintiff’s contention that the repudiation of claim and rescission of the policy fall within the incontestability period pursuant to Paragraph 13, Division 1, Part 3, Schedule 9 of the FSA 2013, I find the letter dated 29 July 2020 by the First Defendant had clearly indicated the decision to repudiate the Plaintiff’s policy. The subsequent letter, dated 14 August 2020, was an extension of the decision letter dated 29 July 2020. Therefore, it is my considered view that the repudiation was made within the two (2) year contestability period.

However, even if the second letter were taken into account, the evidence presented before this Court clearly established that the First Defendant had, on a balance of probabilities, proven that the Plaintiff knowingly withheld or suppressed a material fact with fraudulent intent. As such, the First Defendant was entitled to repudiate and void the Plaintiff’s policy under Paragraph 13, Division 1, Part 3, Schedule 9 of the FSA 2013, even during the incontestability period.

72.

I agree with the learned counsel for the First Defendant that the wording defining “material fact” in Paragraph 13 of Schedule 9 of the FSA 2013 (under Part 3 of the Schedule) has the same meaning as the wording in Paragraph 5 of Schedule 9 of the FSA 2013 (under Part 2 of the Schedule): the fact would lead to and is relevant to the decision of the insurer whether to accept or refuse the risk, and the rate and terms imposed would be less favourable.

Paragraph 7(8) of Schedule 9 (under Part 2) goes further by stating that if the insurer asks a clear and specific question, it is presumed that the customer understands the matter is important to the insurer. I agree with the Defendants’ contention that, based on this, any clear and specific question asked by the insurer should also be treated as referring to a “material fact” under Paragraph 13.

DW4, the claims assessor responsible for evaluating the Plaintiff’s claims, testified that the omission of bronchitis and GERD from the proposal form constituted a material non-disclosure.

In this case, the First Defendant had clearly asked health-related questions about bronchitis and GERD in the proposal form at part V, questions 6 (c) and (f). The Plaintiff answered “no” to those questions. This fact is undisputed.

In the case of Ulaganathan Muthiah v. Prudential Assurance Malaysia Bhd. [2020] 9 CLJ 435, Ong Chee Kwan JC (as his Lordship then was) held as follows: “[52] However, the deceased had failed to disclose the splenectomy operation, ultrasound and diagnosis in the proposal form despite having been asked the respective clear and specific questions in the proposal form. It can hardly be said that the deceased would have no knowledge of these matters. [53] Clearly, the deceased knew that his answers to the questions in the proposal form were untrue or misleading. He did not care whether or not they were untrue or misleading and had acted in breach of his duty of uberrimae fidei. His answers were relevant to the defendant for its assessment of the risks and whether to accept the risks.” [emphasis added]

Hence, based on the evidence, the documents produced and the relevant law, I find that the medical histories of Bronchitis and GERD constitute “material facts” and the Plaintiff had failed to disclose the said material facts.

The next question is whether the Plaintiff knowingly and/or deliberately withheld or suppressed this material fact with fraudulent intent.

Section 17 of the Contracts Act 1950 defines fraud as follows: “17. “Fraud” includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

the suggestion, as to a fact, of that which is not true by one who does not believe it to be true;

the active concealment of a fact by one having knowledge or belief of the fact;

a promise made without any intention of performing it;

any other act fitted to deceive; and

any such act or omission as the law specially declares to be fraudulent.” [emphasis added]

It is settled that the standard of proof for fraud in a civil case is on the balance of probabilities. The Federal Court in Sinnaiyah & Sons Sdn. Bhd. v. Damai Setia Sdn. Bhd. [2015] 7 CLJ 584 held: “Held (4) - The correct principle to apply is as explained In re B (Children) where it was stipulated that at law, there are only two standard of proof, namely beyond reasonable doubt for criminal cases and on the balance of probabilities for civil cases. As such, even if fraud is the subject in a civil claim, the standard of proof is on the balance of probabilities. There is no third standard. Therefore, it is up to the presiding judge, after hearing and considering the evidence adduced as being done in any other civil claim, to find whether the standard of proof has been attained. The criminal aspect of the allegation of fraud and the standard of proof required is irrelevant in the deliberation.” [emphasis added]

Fraud may be inferred from surrounding circumstances, provided there is a factual foundation to support the inference and not merely a bare suspicion. In the case of CGU Insurance Bhd. v Asean Security Paper Mills Sdn. Bhd. [2006] 3 MLJ 1, Gopal Sri Ram JCA (as his Lordship then was) held: “While mere suspicion is insufficient, it is not the law that a litigant who alleges fraud must unravel each and every act of the person accused of fraud. Like any other fact, fraud may be inferred from circumstantial evidence with the added proviso that there must be a foundation of evidence and not mere suspicion. We would, in this context refer to Satis Chandra Chatterji v Satish Kantha AIR 1923 PC 73 where Lord Atkinson said: S/N LtjsePYDqkenCLvlBmzTaw Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who make them — proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unraveled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape.” [emphasis added]

In the Federal Court case of P.J.T.V. Denson (M) Sdn. Bhd. & Ors v Roxy (Malaysia) Sdn. Bhd. [1980] 2 MLJ 136, Raja Azlan Shah CJ (as his Highness then was) expressed as follows: - “Whether fraud exists is a question of fact, to be decided upon the circumstances of each particular case. Decided cases are only illustrative of fraud. Fraud must mean “actual fraud, i.e. dishonesty of some sort” for which the registered proprietor is a party or privy. “Fraud is the same in all courts, but such expressions as ‘constructive fraud’ are…inaccurate;” but “‘fraud’… implies a wilful act, on the part of one, whereby another is sought to be deprived, by unjustifiable means, of what he is entitled.” (per Romilly M.R. in Green v Nixon (1857) 23 Beav. 530 & 535; 53 E.R. 208)” [emphasis added]

Assessing the Plaintiff’s conduct from the perspective of a reasonable consumer and in light of section 17 of the Contracts Act 1950, it would amount to fraud if she knew or believed that her diagnosis of bronchitis and GERD was material yet chose to withhold it. Based on the evidence before the Court, I find that the Plaintiff was fully aware of her medical condition but intentionally failed to disclose it when she had four (4) opportunities to do so. I must reiterate, though at the risk of repetition, as it is necessary to do so. The four opportunities are as follows: a. In July 2018, when submitting her insurance application to the First Defendant, the Plaintiff did not inform the Third Defendant about her past diagnoses of bronchitis and GERD, nor did she provide any medical reports relating to those conditions from 2017. b. On 12 March 2020, in response to the First Defendant’s request for further documents to assess her medical claim, the Plaintiff submitted medical reports to the Third Defendant, but these did not include the 2017 report by Dr. Gan Ing Earn, which had diagnosed her with GERD. c. In the Attending Physician’s Statement dated 2 February 2020, obtained by the Plaintiff, Dr. Gan Ing Earn stated that the Plaintiff had never been treated for GERD gastric polyp, either as an outpatient or while hospitalised. The Plaintiff knew this information was incorrect but chose not to inform either the Third Defendant or the First Defendant when the Third S/N LtjsePYDqkenCLvlBmzTaw Defendant was assisting her in preparing her Claimant’s Statement dated 6 February 2020. d. When asked by the First Defendant to provide the names and addresses of her regular treating doctors over the past five (5) years, the Plaintiff failed to mention that she had previously been treated by Dr. Tan Lay Eng and Dr. Gan Ing Earn for bronchitis and GERD in September and October 2017.

As such, these deliberate omissions supported a clear inference of fraudulent intent. Therefore, on the balance of probabilities, the First Defendant had proven that it was entitled to repudiate and void the said policy.

I find that the First Defendant had pleaded and stated the necessary particulars and material facts in respect of the Plaintiff’s fraud.

Regarding the argument that fraud was not specifically mentioned in the letters dated 29 July 2020 and 14 August 2020 by the First Defendant, upon reviewing the letter dated 29 July 2020, I find that the First Defendant had stated that: “The grounds of repudiation above are non-exhaustive and we reserve the right to rely on other reasons/grounds for rejecting your claim not particularized above. The non-inclusion of these other grounds is not a waiver of our rights, which are expressly reserved.” S/N LtjsePYDqkenCLvlBmzTaw Hence, the First Defendant is not precluded from raising the issue of deliberate and fraudulent non-disclosure of material facts in their Defence.

I find that the Plaintiff did not produce any evidence to show negligence or omission by the Second and Third Defendants in the submission of the Plaintiff's proposal forms.

The Plaintiff's claim that the Third Defendant guaranteed the GE Policy would offer better medical benefits than her existing PRU Policy is baseless, as there is insufficient evidence to support this assertion. Furthermore, the evidence shows that the Plaintiff did not surrender the PRU Policy within 120 days of the GE Policy becoming effective. Instead, she only surrendered the PRU Policy in November 2019, 457 days later. Therefore, the Plaintiff's allegations are entirely unfounded.

Therefore, having considered the evidence adduced before this Court in its totality, I am satisfied that the Plaintiff has failed to prove her claim on a balance of probabilities.

For the foregoing reasons, I, therefore, ordered that the Plaintiff’s claim be dismissed. Plaintiff to pay costs of RM50,000 to the First Defendant and RM50,000 to the Second and Third Defendants. S/N LtjsePYDqkenCLvlBmzTaw Dated: 26 June 2025 -sgd-JAMHIRAH ALI JUDGE High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : Ng Kian Nam & Melvin Kong Jiun Yuan (Messrs Ng Kian Nam & Partners) For the 1st Defendant : Andrew Teh & Tan Chong Pei (Messrs Wong Lu Peen & Tunku Alina) For the 2nd & 3rd Defendants : Harold Tan Kok Leng & Jessica Wong Yi Sing (Messrs Harold & Lam Partnership)

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 S/N LtjsePYDqkenCLvlBmzTaw 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.

For the purposes of subparagraph (2), “material matter” or “material fact” means a matter or fact which, if known by the licensed life insurer, would have led to its refusal to issue a life policy to the policy owner or would have led it to impose terms less favourable to the policy owner than those imposed in the life policy.” [emphasis added]