Siva Prakash A/L Ramasamy v Mcis Insurance Berhad (WA-22NCC-399-09/2021)

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1 IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR CIVIL SUIT NO: WA-22NCC-399-09/2021 BETWEEN SIVA PRAKASH A/L RAMASAMY (NRIC No: 830321-14-5255) (As Executor and Trustee for the Estate of Jachiswaran a/l Duroy Selvam (“the said Estate”) through Probate dated 21.7.2020) ... PLAINTIFF AND MCIS INSURANCE BERHAD (Company No: 435318-U)

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Schedule 9 of the FSA imposes a statutory duty on consumers in insurance contracts to exercise reasonable S/N 0t0s2y393Uaz/bj4yf0whg care in avoiding misrepresentation, particularly when responding to specific questions posed by the insurer, with the principle of uberrimae fidei requiring the insured to fully disclose all material facts, as these are crucial for the insurer’s underwriting decisions. Jamhirah Ali JC stated as follows: “Furthermore, para. 5 of Schedule 9 of the FSA, which pertained to the precontractual duty of disclosure for consumer insurance contracts, imposed a statutory duty on the consumer to exercise reasonable care in avoiding any misrepresentation to the insurer. This duty was especially significant when responding to specific questions posed by the insurer, which were essential in the insurer’s determination of whether to accept the risk and in establishing the applicable rates and terms. The principle of uberrimae fidei remained applicable to the parties involved in an insurance contract and, based on this principle, the life assured, as the consumer, bore the duty of utmost good faith, necessitating full disclosure of all material facts within his knowledge. The existence of the three AIA policies constituted a ‘material fact’; their disclosure would have had a negative impact on the defendant’s underwriting decision.” [42] Therefore, such marketing campaigns or underwriting practices do not negate the insured’s fundamental duty to provide truthful and accurate information in the proposal form. [43] In conclusion, the Deceased’s statements about his occupation and income in the proposal forms constituted material misrepresentation. S/N 0t0s2y393Uaz/bj4yf0whg Nature of Non-Disclosure/Misrepresentation [44] The Plaintiff contends that even if there were inaccuracies in the Deceased’s answers regarding his medical history and income, these were not deliberate or reckless but at most careless or innocent misrepresentations. The Plaintiff argues that the Deceased may not have fully understood the scope of the questions or considered his previous accident and injuries to be relevant, given that he had recovered. Regarding the income discrepancies, the Plaintiff submits that the Deceased’s variable income from multiple sources explains the differences in declarations across policies. The Plaintiff further contends that the Defendant’s failure to seek clarification on these matters amounts to a waiver of the right to rely on any misrepresentation under Paragraph 5(6) of Schedule 9, FSA. Additionally, the Plaintiff argues that the Defendant’s campaign waiving medical examinations for policies under RM2 million created a reasonable expectation that such information was not material. [45] The Defendant submits that the Deceased’s failure to disclose his 2015 accident and subsequent hospitalisation, as well as the significant discrepancies in declared income across multiple policies, were deliberate and reckless misrepresentations made to induce the policies. The Defendant argues that the Deceased, having been assisted by experienced insurance agents (PW1 and PW2) in completing the forms, would have been well aware of the S/N 0t0s2y393Uaz/bj4yf0whg relevance and importance of disclosing his medical history and providing accurate income information. The Defendant contends that the magnitude and consistency of the misrepresentations across multiple policies preclude any possibility of mere carelessness or innocent mistake. The Defendant relies on Paragraph 7(4) of Schedule 9, FSA, arguing that these misrepresentations meet the definition of deliberate and reckless non-disclosure, entitling the Defendant to avoid the policies. Paragraph 7(4) of Schedule 9, FSA states that a misrepresentation is considered deliberate or reckless if the consumer knew that it was untrue or misleading, or was indifferent to its truthfulness, and also knew that the matter related to the misrepresentation was relevant to the licensed insurer, or was indifferent to its relevance to the insurer. [46] After careful consideration of the evidence and submissions, I find that the non-disclosure and misrepresentations were indeed deliberate and reckless. The evidence clearly demonstrates that the Deceased was assisted by experienced insurance agents (PW1 and PW2) in completing the proposal forms. PW1 testified that he had known the Deceased for more than 10 years and had explained the contents and questions in the proposal forms to him. PW2 similarly confirmed her role in assisting the Deceased with the proposals. Given this assistance from knowledgeable professionals, it is inconceivable that the Deceased would not have understood the importance and S/N 0t0s2y393Uaz/bj4yf0whg relevance of disclosing his 2015 accident and subsequent hospitalisation. [47] The accident, which resulted in skull fracture and ICU admission, occurred on 24.2.2015, only months before the Deceased took out policies P1 and P2 in 2016. The proximity in time makes it implausible that the Deceased could have forgotten or considered this event immaterial. A fact is material if a prudent insurer would want to know it, even if it would not decisively influence the decision to insure (Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd). The Deceased’s recent serious accident and hospitalisation undoubtedly falls into this category. [48] Further, PW1 and PW2 themselves admitted in cross-examination that they knew the Deceased had met with the accident in 2015, suffered injuries and was hospitalised. In light of this, the Deceased’s negative answers to Questions 7 and 14 in the proposal form for P4 were clearly untrue and amounted to a misrepresentation of his medical history. [49] The Plaintiff argued that the Defendant should have investigated the Deceased’s answers in the proposal form before issuing the policy. This is misplaced. Under the FSA, it is the duty of the consumer to take reasonable care not to make a misrepresentation to the licensed insurer when answering any questions. Paragraph 5(2) of Schedule 9 FSA provides: S/N 0t0s2y393Uaz/bj4yf0whg “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).” [50] Where the insurer asks clear and specific questions as the Defendant did here, it is presumed that the consumer knew that the matter was relevant to the insurer. Paragraph 7(8) of Schedule 9 FSA provides: “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.” [51] The duty is on the consumer to answer honestly and accurately. The insurer is not obliged to verify the answers before issuing a policy. That would go against the very concept of utmost good faith in insurance contracts and render the insured’s disclosure duties meaningless. [52] On the facts here, I am satisfied that the misrepresentation by the Deceased was fraudulent, or at the very least, made recklessly without any care for its truth. DW3’s evidence, which was not challenged, was that had the Defendant known about the accident and hospitalisation, it would have rejected the Payor Benefit Rider under P1 and P2, and imposed a 75% loading on the premiums for P4 in view of the injuries suffered by the Deceased (DW3’s evidence). Applying Paragraph 15 of Schedule 9 of the FSA, the Defendant was therefore entitled to avoid the policy and S/N 0t0s2y393Uaz/bj4yf0whg refuse all claims. Paragraph 15 of Schedule 9 of the FSA provides: “If a misrepresentation was deliberate or reckless, a licensed insurer may avoid the consumer insurance contract and refuse all claims.” [53] The Plaintiff also contends that the Defendant ‘shot themselves in the foot’ when they failed to send a Notice to the Deceased to ask for verification on the Deceased’s source of income and type of employment, failed to call the Deceased to obtain his signature verification if there were inconsistencies in the Proposal Forms, failed to appoint DW1 to investigate into the Deceased’s source of income and employment before issuing P4, and failed to give the Deceased the opportunity to submit a Proposal with another Insurer by rejecting the proposals for P1, P2 and P4. [54] I find the Plaintiff’s reliance on the Defendant’s alleged failure to send notices or investigate the Deceased’s source of income, employment and signature is misguided. There was no such legal duty on the part of the Defendant, as an insurer, to do so. The duty was on the Deceased as the consumer to make full and honest disclosure. Further, it was not pleaded by the Plaintiff that the Defendant had such duties to investigate or that it had breached the same. Therefore, no issue arises on this point. [55] It is trite that the burden lies on an insurer seeking to avoid a policy to prove the elements of its defence, in this case S/N 0t0s2y393Uaz/bj4yf0whg misrepresentation and forgery, on a balance of probabilities. However, the insurer is not required to take additional steps at the pre-contractual stage, such as making further inquiries or requiring signature verification, before it is entitled to raise such defences to a claim. The focus of the court must be on whether the elements of the defences have been made out based on the evidence adduced. [56] Here, the Defendant has clearly pleaded and particularised the material misrepresentations made by the Deceased in the proposal forms. The Deceased’s negative answers to Questions 7 and 14, which related to his medical history and hospitalisations, were indisputably untrue as he had been hospitalised due to a road accident in 2015. The Plaintiff’s own witnesses, PW1 and PW2, admitted to knowledge of this in cross-examination. There is therefore no merit to the argument that the Defendant failed to request disclosure of facts - the relevant facts were asked for in the proposal form but the Deceased failed to disclose the same. [57] Regarding the income discrepancies, the variations are too significant and consistent across multiple policies to be attributed to mere carelessness or misunderstanding. The Deceased declared himself as a Business Owner earning RM12,000 in P1 and P2, an Administrator earning RM5,000 in P3, and a Store Manager earning RM15,000 in P4. These declarations stand in stark contrast to the evidence provided by the Deceased’s actual employer, showing he was a store S/N 0t0s2y393Uaz/bj4yf0whg supervisor earning a basic salary of RM6,000 per month. The magnitude of these discrepancies, coupled with the changing job titles, strongly suggests a deliberate attempt to misrepresent his financial situation. [58] The case of Ulaganathan Muthiah v Prudential Assurance Malaysia Bhd [2020] 9 CLJ 435 is particularly relevant here. In that case, the High Court held that insurers can avoid policies for deliberate or reckless misrepresentation under the FSA. The court stated: “The deceased failed to disclose the splenectomy, ultrasound and diagnosis in the proposal form despite having been asked the respective clear and specific questions in the proposal form. It could hardly be said that the deceased would have no knowledge of these matters. 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.” [59] The court then held: “Pursuant to paras. 7(1)(b), 7(2), 7(4), 7(8) and 15 of Schedule 9 of the FSA, the defendant is entitled to avoid the policy and to refuse all claims under the policy by reason of the deceased's breach of his duty of uberrimae fidei and to reject the death claim.” [60] Similarly, in the present case, the Deceased’s failure to disclose his recent accident and hospitalisation, coupled with the significant and consistent income S/N 0t0s2y393Uaz/bj4yf0whg misrepresentations, demonstrate a clear disregard for the truth and accuracy of his answers. [61] The Plaintiff’s argument that the Defendant’s failure to seek clarification amounts to a waiver under Paragraph 5(6) of

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Schedule 9, FSA is not tenable. This provision applies when a consumer fails to answer or gives incomplete or irrelevant answers. In this case, the Deceased gave clear but false answers. [62] A plain reading of Paragraph 5(6) of Schedule 9 FSA shows that the insurer’s duty to pursue further information from the consumer only arises in 3 situations - where the consumer fails to answer any questions posed by the insurer, gives an incomplete answer, or provides irrelevant information. [63] This provision creates a duty for insurers to follow up on incomplete or irrelevant answers provided by consumers. If the insurer fails to pursue clarification, they are deemed to have waived the consumer’s duty of disclosure for that particular matter. [64] The facts here do not fall into any of the prescribed situations under Paragraph 5(6). It is not disputed that the Deceased had answered “No” to Questions 7 and 14 in the proposal form for Policy P4. There is nothing incomplete or irrelevant about his answers. Short of an allegation of fraud or forgery (which is a separate issue), the Defendant was entitled to take the Deceased’s answers at face value S/N 0t0s2y393Uaz/bj4yf0whg without needing to embark on a verification exercise with the information in its prior records. [65] To impose such an exhaustive duty of cross-checking on the insurer each time a proposal form is received, as the Plaintiff is effectively contending, would be unduly onerous and finds no basis in Paragraph 5(6) of Schedule 9 FSA. Insurance contracts are contracts of utmost good faith. The primary duty is still on the consumer to make full and frank disclosure of all material facts within his knowledge when answering questions in the proposal form. [66] In conclusion, I find that the non-disclosure of the Deceased’s 2015 accident and hospitalisation, as well as the significant misrepresentations regarding his occupation and income, were deliberate and reckless. These actions clearly fall within the definition provided in Paragraph 7(4) of

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Schedule 9, FSA, which states that a misrepresentation is deliberate or reckless if the consumer knew that it was untrue or misleading and that the matter to which it related was relevant to the insurer. The Deceased, with the assistance of experienced agents, would have known the relevance of these matters to the insurer’s decision. Consequently, these deliberate and reckless misrepresentations entitle the Defendant to avoid the policies under Paragraph 15 of Schedule 9, FSA. S/N 0t0s2y393Uaz/bj4yf0whg Defendant’s Statutory Duties Clarity of Questions [67] The Plaintiff argues that Questions 7 and 14 in the proposal forms were vague and ambiguous, failing to specifically mention road accidents or injuries that had fully healed. The Plaintiff contends that the questions were not sufficiently clear to prompt disclosure of the Deceased’s 2015 road accident and subsequent hospitalisation. Specifically, the Plaintiff argues that Question 7, which asks about “physical deformity or infirmity or health impairments or congenital abnormalities” or if the proposer has “suffered from any physical injury or had surgical operation”, could be interpreted as referring only to ongoing health issues or permanent disabilities. Similarly, the Plaintiff argues that Question 14, which asks if the proposer has “attended or admitted to any hospital or clinic or had any specialist tests or examinations including those of a routine or minor nature in the last five (5) years”, could be understood to exclude brief hospitalisations from which the proposer had fully recovered. The Plaintiff further submits that the principle of contra proferentem should apply, with any ambiguity in the questions being construed against the Defendant as the drafter of the proposal form. [68] The Defendant contends that the questions were clear and unambiguous in asking about any physical injury, hospitalisation or medical tests. The Defendant argues that S/N 0t0s2y393Uaz/bj4yf0whg Questions 7 and 14 were broadly worded to capture any relevant medical history, including injuries and hospitalisations resulting from road accidents. The Defendant submits that a reasonable person would understand these questions to encompass the Deceased’s 2015 accident, which resulted in skull fracture and ICU admission. The Defendant relies on Paragraph 5(1) of

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Schedule 9, FSA, which allows insurers to “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”. The Defendant argues that the questions posed were specific and relevant to their underwriting decision. [69] After careful consideration of the evidence and submissions, I find that the questions in the proposal forms were sufficiently clear and specific as required by Paragraph 5(1) of Schedule 9, FSA. Questions 7 and 14 were broadly worded to capture any relevant medical history, which is entirely appropriate and necessary for the insurer’s risk assessment. The absence of specific mention of road accidents does not render them unclear or ambiguous. A reasonable person would understand these questions to encompass injuries and hospitalisation resulting from a road accident. [70] It is trite that a contractual term is considered ambiguous if it is reasonably capable of more than one meaning. The S/N 0t0s2y393Uaz/bj4yf0whg contra proferentem rule stipulates that any ambiguity in a contract term should be resolved against the party who drafted the contract. This rule is of particular significance in standard form contracts such as insurance policies where the consumer has little to no opportunity to negotiate the terms. [71] Be that as it may, the starting point is still to construe the term in question based on its natural and ordinary meaning, having regard to the purpose and context of the provision. Ambiguity does not arise simply because a party asserts that a contractual term is confusing or unclear. [72] Here, Question 7 asks “Do you have any physical deformity or infirmity or health implements or congenital abnormalities or have you suffered from any physical injury or had surgical operation? If yes, please provide full details.” Question 14 reads “Ever attended or admitted to any hospital or clinic or had any specialist tests or examination including those of a routine or minor nature in the last five (5) years.” [73] Applying the plain, ordinary meaning to the words used, I struggle to see any ambiguity in the above questions. They are drafted in simple language and the information sought is specific. If the proposer has any of the conditions listed in Question 7 or had been admitted to hospital or underwent tests in the last 5 years, he just has to answer “Yes” and S/N 0t0s2y393Uaz/bj4yf0whg provide details. Otherwise, he answers “No”. It is a straightforward choice between two answers. [74] Notwithstanding that the words “accident” or “road accident” are not specifically mentioned in Q7 and Q14, the clear intent of the said questions is to elicit information about any prior physical injuries, surgical operations and hospital admissions. A reasonable insured would have understood the questions as such. I find that by answering in the negative, the Deceased clearly failed to disclose material facts, i.e. the injuries sustained in the 2015 accident and the resulting hospitalisation, which were well within his knowledge. [75] I am unable to agree with the Plaintiff’s contention that there was any ambiguity or uncertainty in the questions. The argument that the non-disclosure was not material as the Deceased had recovered from the injuries is also misconceived. The law requires full and honest disclosure of all material facts, not an insured’s subjective assessment of what is material or serious. [76] The Plaintiff has not identified any particular word or phrase in the questions which may be susceptible to more than one meaning. Neither has the Plaintiff explained how an ordinary person of reasonable intelligence would have difficulty understanding what the questions mean. In the absence of such ambiguity, there is no basis to invoke the contra proferentem principle. S/N 0t0s2y393Uaz/bj4yf0whg [77] The Plaintiff relied on the changes made to the corresponding questions in the Defendant’s new Health Declaration Form as an admission that the previous questions were ambiguous. However, the Plaintiff’s comparison with the new Health Declaration Form is quite beside the point. Regardless of the purpose and context of that form, it cannot retrospectively render Questions 7 and 14 ambiguous when there was none to begin with. In any event, I accept the evidence of DW2 and DW3 that the Health Declaration Form was intended for reinstatement of lapsed policies only, not as a replacement for the questions in the proposal form. The presence or absence of the word “accident” in the Health Declaration Form does not change the fact that the proposal form questions were crystal clear in asking for disclosure of hospitalisations and injuries, regardless of the cause. I therefore find that the Plaintiff’s preoccupation with the investigation process and the semantics of the questions is merely a distraction from the established non-disclosure by the Deceased. [78] The Plaintiff cited the Federal Court decision in Malaysian Motor Insurance Pool v Tirumeniyar Singara Veloo [2019] 10 CLJ 731 on the contra proferentem principle in insurance contracts. However, this case does not assist the Plaintiff. While the Federal Court recognised the applicability of the contra proferentem rule in insurance contracts, that was in the context of inherently inconsistent policy terms. The question of ambiguity must still be established first before the rule can be applied as an interpretive aid to resolve the S/N 0t0s2y393Uaz/bj4yf0whg ambiguity against the insurer. The Plaintiff has failed to cross that threshold here. [79] For these reasons, I find that the Plaintiff has not shown that Questions 7 and 14 in the proposal forms are vague or ambiguous. There is therefore no room for the application of the contra proferentem rule. [80] In conclusion, I find that Questions 7 and 14 in the proposal forms were sufficiently clear and specific. They were broadly worded to capture any relevant medical history, which is appropriate and necessary for the insurer’s risk assessment. A reasonable person would understand these questions to encompass injuries and hospitalisation resulting from a road accident. The Deceased’s failure to disclose his 2015 accident and subsequent hospitalisation in response to these questions cannot be justified on the grounds of ambiguity in the questions. Informing of Pre-Contractual Duty [81] The Plaintiff submits that the Defendant failed to properly inform the Deceased of his pre-contractual duty of disclosure as required by Paragraph 5(7) of Schedule 9 of the FSA. The Plaintiff argues that this failure is a fundamental breach of the Defendant’s statutory obligations and should invalidate any attempt to avoid the policies based on non-disclosure or misrepresentation. The Plaintiff contends that the notice provided in the proposal forms was S/N 0t0s2y393Uaz/bj4yf0whg inadequate, buried within other text, and did not sufficiently highlight the importance of the disclosure duty. Furthermore, the Plaintiff asserts that the Defendant has not produced any evidence of additional steps taken to ensure the Deceased understood his disclosure obligations, such as verbal explanations or separate written notices. [82] The Defendant, on the other hand, argues that the required notice under Paragraph 5(7) of Schedule 9 was clearly stated on the first page of the proposal forms for policies P1, P2, and P4. The Defendant contends that this notice was prominently displayed, written in clear language, and sufficient to fulfill its statutory duty. The Defendant points to the specific wording used in the notice, which explicitly informed the Deceased of his duty to disclose all material facts and the potential consequences of non-disclosure or misrepresentation. The Defendant further argues that the Deceased, having been assisted by experienced insurance agents (PW1 and PW2) in completing the forms, would have been well aware of his disclosure obligations. The Defendant maintains that it is not required to take additional steps beyond providing the written notice in the proposal form to fulfill its duty under Paragraph 5(7). [83] After careful consideration of the evidence and arguments presented, I find in favor of the Defendant on this issue. Paragraph 5(7) of Schedule 9 of the FSA states: S/N 0t0s2y393Uaz/bj4yf0whg “A licensed insurer shall, before a consumer insurance contract is entered into, varied or renewed, clearly inform the consumer in writing of the consumer’s pre-contractual duty of disclosure under this paragraph, and that this duty of disclosure shall continue until the time the contract is entered into, varied or renewed.” [84] The evidence before the court shows that the Defendant included a clear written notice on the first page of each proposal form for policies P1, P2, and P4. This notice explicitly informed the Deceased of his duty to disclose all material facts and the potential consequences of non-disclosure or misrepresentation. The exact wording of this notice was presented as evidence and appears to fulfill the requirements of Paragraph 5(7). The notice states: “NOTIS/NOTICE: -Menurut Penggal 2, Jadual 9, Seksyen 129 Akta Perkhidmatan Kewangan 2013, anda dikehendaki menyatakan dalam borang cadangan ini dengan lengkap dan benar, segala fakta yang anda ketahui atau sepatutnya tahu, jika tidak polisi yang dikeluarkan di bawah ini boleh menjadi tidak sah./ Pursuant to Part 2, Schedule 9, Section 129 of the Financial Services Act 2013, you are required to disclose in this proposal form fully and faithfully, all the facts which you know or ought to know, otherwise the policy issued hereunder may be invalidated. Di bawah Perenggan 5

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Jadual 9 Akta Perkhidmatan Kewangan 2013, anda dikehendaki untuk mengambil langkah yang sewajarnya untuk tidak membuat gambaran yang salah ketika menjawab soalan yang kami tanyakan, iaitu anda perlu menjawab soalan dengan lengkap dan tepat/benar. Sila maklum bahawa semua soalan yang ditanyakan oleh kami adalah berkaitan dengan keputusan kami sama ada untuk menerima risiko atau tidak dan kadar serta terma yang akan dikenakan./ Under Paragraph 5 of Schedule 9 of the Financial Services Act 2013, you are required to take reasonable care not to make any S/N 0t0s2y393Uaz/bj4yf0whg misrepresentation when answering any questions asked by us, i.e., you should answer the questions fully and accurately/correctly. Please note that all the questions asked by us are relevant to our decision whether to accept the risk or not and the rates and terms to be applied. Selain menjawab soalan dalam borang cadangan ini, anda juga dikehendaki untuk mengambil langkah yang sewajarnya untuk mendedahkan kepada kami apa-apa perkara yang anda ketahui relevan dengan keputusan kami sama ada untuk menerima risiko tersebut atau tidak dan kadar serta terma yang akan dikenakan. Kewajipan pendedahan di atas akan terus berjalan sehingga kontrak ini dimasukkan. /In addition to answering the questions in the proposal form, you are also required to take reasonable care to disclose to us any matter which you know to be relevant to our decision on whether to accept the risk or not and the rates and terms to be applied. Your above duty of disclosure shall continue until the time the contract is entered into. /Jika anda tidak memahami kewajipan/tugas anda seperti yang dinyatakan di atas atau jika anda memerlukan penjelasan lanjut, anda boleh menghubungi kami atau ejen kami./ If you do not understand your obligation/duty as stated above or if you need any further explanation, you can contact us or our agent.” [85] While the Plaintiff argues that the notice was inadequate or unclear, they have not produced any evidence to support this contention. The court has examined the notice and finds it to be sufficiently prominent and clear in its language. The fact that the notice appeared on the first page of the proposal form further supports its visibility and importance. [86] The case of Leong Kum Whay v QBE Insurance (M) Sdn Bhd, though decided before the FSA, underscores the insured’s duty to fully disclose all material facts in insurance contracts as part of the principle of utmost good faith S/N 0t0s2y393Uaz/bj4yf0whg (uberrima fides), a long-standing requirement in English law for all types of insurance policies. [87] While the FSA has modified the duty of disclosure for consumer insurance contracts, the principle that the insured must be informed of their duty remains crucial. The Defendant’s inclusion of the written notice in the proposal forms aligns with this principle and the specific requirements of Paragraph 5(7). [88] Furthermore, the evidence shows that the Deceased was assisted by experienced insurance agents (PW1 and PW2) in completing the proposal forms. These agents, as professionals in the field, would have been familiar with the duty of disclosure and its importance. The Deceased would have been well aware of this duty. Their involvement provides additional support for the conclusion that the Deceased was adequately informed of his pre-contractual duty of disclosure. [89] In light of these considerations, I find that the Defendant fulfilled its duty under Paragraph 5(7) of Schedule 9 to inform the Deceased of his pre-contractual disclosure obligations. The written notice provided in the proposal forms was clear, prominent, and sufficient to meet the statutory requirement. The Plaintiff has not presented compelling evidence or legal arguments to suggest that additional steps beyond the written notice were necessary to fulfill this duty. S/N 0t0s2y393Uaz/bj4yf0whg [90] This finding does not, in itself, determine the validity of the policies or the Defendant’s right to avoid them. It merely establishes that the Defendant met its obligation to inform the Deceased of his duty of disclosure. The materiality and consequences of any non-disclosure or misrepresentation must be considered separately in light of the specific facts and circumstances of this case. Waiver of Duty of Disclosure [91] The Plaintiff contends that the Defendant’s failure to make further enquiries about the Deceased’s medical history or income, despite having access to previous policy information, amounts to a waiver of the duty of disclosure under Paragraph 5(6) of Schedule 9 of the FSA. The Plaintiff argues that the Defendant had in its possession information from previous policies P1, P2, and P3 that showed discrepancies in the Deceased’s declared income and occupation. Furthermore, the Plaintiff submits that the Defendant’s computerised system, as evidenced by DW2’s testimony, contained all the relevant information from previous policies. The Plaintiff asserts that the Defendant’s failure to cross-reference this information or to seek clarification from the Deceased regarding these discrepancies triggers the waiver provision in Paragraph 5(6). The Plaintiff also points to the Defendant’s nationwide campaign waiving medical examinations for policies under RM2 million as evidence of the Defendant’s relaxed S/N 0t0s2y393Uaz/bj4yf0whg approach to risk assessment, arguing that this further supports the application of the waiver doctrine. [92] The Plaintiff further submitted that Paragraphs 4(2) and 5(5) of Schedule 9 of the FSA operate to waive the Deceased’s duty of disclosure as the Defendant insurer had failed to ask specific questions pertaining to the Deceased’s health and medical history in the proposal forms for Policies P1, P2 and P4. The Plaintiff contended that the burden rests on the Defendant to request particulars from the Deceased and relied on the rulings in Toh Kim Lan & Anor v Asia Insurance Co Ltd [1995] 4 MLRH 687 (HC), Joel v Law Union And Crown Insurance Company [1908] 2 KB 863 (English CA) and Pacific & Orient Insurance Co Sdn Bhd v Kathirvelu [1992] 1 MLJ 249 (SC) to argue, inter alia, that the duty of disclosure should be confined to serious illnesses only and questions in proposal forms must be construed in a fair and reasonable manner. The Plaintiff also cited Tan Guat Lan v Aetna Universal Insurance Sdn Bhd [2003] 1 MLJ 438 (HC) that the onus is on insurers to ensure their documents are unambiguous. [93] The Defendant submits that Paragraph 5(6) of Schedule 9 only applies where the consumer fails to answer or gives incomplete answers to specific questions posed by the insurer, which was not the case here as the Deceased gave clear but false answers. The Defendant argues that the duty of disclosure remains with the insured, and the insurer is entitled to rely on the answers provided in the proposal form S/N 0t0s2y393Uaz/bj4yf0whg without being obligated to cross-check against previous policies or other information in its possession. The Defendant contends that the questions in the proposal forms for P1, P2, and P4 were clear and specific, and the Deceased’s answers to these questions were unambiguous, albeit allegedly false. The Defendant further submits that its nationwide campaign waiving medical examinations does not negate the insured’s fundamental duty to provide truthful and accurate information in the proposal form. The Defendant relies on the principle of utmost good faith (uberrima fides) as a cornerstone of insurance contracts, arguing that this principle places the onus on the insured to disclose all material facts regardless of whether the insurer makes further enquiries. [94] After careful consideration of the evidence and arguments presented by both parties, I find in favor of the Defendant on this issue. The key provision in question, Paragraph 5(6) of

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Schedule 9 of the FSA, provides that if a consumer fails to adequately respond to an insurer’s request for information, and the insurer does not pursue the matter further, the insurer is deemed to have waived the consumer’s duty of disclosure regarding that particular information. [95] The language of this provision clearly indicates that it is intended to apply in situations where the consumer either fails to answer, gives incomplete answers, or provides irrelevant information in response to specific requests from the insurer. In the present case, the evidence shows that S/N 0t0s2y393Uaz/bj4yf0whg the Deceased provided clear and unambiguous answers to the questions posed in the proposal forms for P1, P2, and P4. The fact that these answers may have been false does not trigger the application of Paragraph 5(6). [96] The principle of utmost good faith in insurance contracts, as reaffirmed in Leong Kum Whay v QBE Insurance (M) Sdn Bhd, supports this interpretation. The Court of Appeal in that case stated that it is the insured’s duty to disclose all material facts to the insurer, who knows nothing. [97] While the FSA has modified the duty of disclosure for consumer insurance contracts, it has not eliminated the fundamental principle that the insured bears the primary responsibility for disclosing material facts. The Defendant’s failure to cross-check against previous policies or to make further enquiries does not, in this context, amount to a waiver of the Deceased’s duty of disclosure. [98] Furthermore, the case of Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd, although not binding on this court, provides persuasive guidance on the materiality of facts in insurance contracts. The House of Lords held that a fact is material if a prudent insurer would want to know it, even if it would not decisively influence the decision to insure. This principle underscores the importance of the insured’s duty to disclose all potentially relevant information, regardless of whether the insurer makes further enquiries. S/N 0t0s2y393Uaz/bj4yf0whg [99] The Plaintiff contended that the Court of Appeal decision in Balamoney a/p Asoriah v MMIP Services Sdn Bhd [2020] 1 CLJ 476 establishes the legal position that an insurer who fails to undertake the necessary inquiries and verifications before granting cover would be estopped from subsequently seeking to repudiate the policy for non-disclosure or misrepresentation. The Plaintiff relied on paragraphs 5(5) and 5(6) of Schedule 9 of the FSA, which provides that an insurer is deemed to have waived compliance with the insured's duty of disclosure if the insurer does not ask any specific questions or fails to pursue any incomplete answers given. Applying this principle, the Plaintiff submitted that by failing to seek further information or clarification from the Deceased despite having access to his previous policies, the Defendant is precluded from relying on any alleged non-disclosure to repudiate liability. [100] However, I am unable to accept the Plaintiff's arguments. The Balamoney case is clearly distinguishable and does not assist the Plaintiff. In Balamoney, the insurer had failed to ask any questions whatsoever before renewing the policy. That situation falls squarely within Paragraph 5(5) of

Schedule

Schedule 9 which provides that the insured's duty of disclosure is deemed waived if no questions are asked by the insurer. By contrast, in the present case, the evidence clearly shows that the Defendant did ask specific questions in the proposal form for P4 and did not leave any answers unverified. There is no question of any waiver under Paragraph 5(5). Paragraph 5(6) is equally inapplicable as S/N 0t0s2y393Uaz/bj4yf0whg that only applies where the insured had failed to answer or gave incomplete or irrelevant answers which were not pursued by the insurer. Here, the Deceased had unequivocally answered 'No' to the questions posed. In the premises, the Plaintiff's attempt to rely on Balamoney is misconceived and I reject the same. [101] Now I deal with the the Plaintiff’s argument that Paragraphs 4(2) and 5(5) of Schedule 9 of the FSA waive the Deceased’s duty of disclosure due to the Defendant insurer’s failure to ask specific health-related questions in the proposal forms for Policies P1, P2, and P4 on the ground that the burden to request particulars rested on the Defendant. [102] Paragraph 4(2) of Schedule 9 FSA reads: “The duty of disclosure does not require the disclosure of a matter— (a) that diminishes the risk to the licensed insurer; (b) that is of common knowledge; (c) that the licensed insurer knows or in the ordinary course of business ought to know; or (d) in respect of which the licensed insurer has waived any requirement for disclosure.” [103] Paragraph 5(5) of Schedule 9 FSA reads: “If the licensed insurer does not make a request in accordance with subparagraph (1) or (3), as the case may be, compliance with the consumer’s duty S/N 0t0s2y393Uaz/bj4yf0whg of disclosure in respect of those subparagraphs, shall be deemed to have been waived by the insurer.” [104] I find that cases of Toh Kim Lan and Pacific & Orient Insurance v Kathirvelu were misapplied as they dealt with the interpretation of differently worded questions in the context of personal accident policies, unlike the present case. The passages reproduced from the cases turned on the specific language of the questions posed in those proposal forms. In particular, the reference to “serious illnesses” in those questions was pivotal to the courts’ finding that the insured was not obliged to disclose medical conditions that did not cross that threshold of seriousness. The same reasoning cannot apply here as the relevant questions in the proposal forms for P1, P2 and P4 do not contain any such qualification or reference to the seriousness of injury or illness. Questions 7 and 14 are drafted in plain terms that would cover any hospitalisation, injury or surgical procedure. [105] There is also no merit in the argument that the Defendant had waived the Deceased’s disclosure obligations by not requiring a medical examination. Paragraph 5(5) of

Schedule

Schedule 9 FSA only provides that if the insurer does not request any information under subparagraphs 5(1) and 5(3), the insured’s duty of disclosure shall be deemed waived. [106] Paragraph 5(1) of Schedule 9 FSA reads: S/N 0t0s2y393Uaz/bj4yf0whg “Before a consumer insurance contract is entered into, varied or renewed, 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.” [107] Paragraph 5(3) FSA of Schedule 9 reads: “Before a consumer insurance contract is renewed, a licensed insurer may either— (a) request a consumer to answer one or more specific questions in accordance with subparagraph (1); or (b) give the consumer a copy of any matter previously disclosed by the consumer in relation to the contract and request the consumer to confirm or amend any change to that matter.” [108] On the facts, the Defendant did request for the Deceased’s health information and medical history vide Questions 7 and 14 in the proposal forms. The decision not to insist on a medical examination on top of that does not amount to a waiver of the disclosure duty. Questions 7 and 14 still required the Deceased to honestly disclose his prior hospitalisations and injuries. [109] The Defendant’s nationwide campaign waiving medical examinations for policies under RM2 million, may demonstrate a more relaxed approach to certain aspects of risk assessment, it does not negate the insured’s fundamental duty to provide truthful and accurate information in the proposal form. The duty of disclosure and the principle of utmost good faith remain cornerstones of S/N 0t0s2y393Uaz/bj4yf0whg insurance contracts, as recognised in Malaysian case law and reaffirmed in the FSA. [110] As for the principle in Joel, I accept the Defendant’s point that the insured there was not liable for non-disclosure of facts which he did not know about. Here, it is clear from the evidence of PW1 and PW2 that the Deceased was aware of his accident in 2015 and the injuries and hospitalisations that followed, but he did not reveal these in the proposal forms. The situation is quite different and the ratio in Joel is thus inapplicable. [111] Neither am I persuaded that the Deceased had been disadvantaged by any ambiguity in the proposal forms. Despite the Plaintiff’s assertions to the contrary, no evidence was led as to how Questions 7 and 14 were unclear or how else the Deceased could have reasonably interpreted them such that his negative answers were justified. In the absence of any patent or latent ambiguity, the plain and ordinary meaning of the words used in those questions must be given effect. In any event, if the Deceased was in doubt as to what the questions required of him, it was incumbent on him to seek clarification, not to simply regard his medical history as immaterial and answer in the negative. [112] In conclusion, I find that Paragraph 5(6) of Schedule 9 of the FSA does not apply in this case to waive the Deceased’s duty of disclosure. The Deceased provided S/N 0t0s2y393Uaz/bj4yf0whg clear, albeit allegedly false, answers to the questions posed in the proposal forms. The Defendant’s failure to cross-check against previous policies or to make further enquiries does not amount to a waiver of the Deceased’s fundamental duty of disclosure. The duty remains on the insured to provide truthful and accurate information, and the principle of utmost good faith continues to underpin insurance contracts in Malaysia, albeit modified by the specific provisions of the FSA. [113] The Defendant is not precluded from invoking the Deceased’s non-disclosures as a ground for repudiating the claims under Policies P1, P2 and P4. To hold otherwise would undermine the statutory framework on pre-contractual disclosure duties set out in Schedule 9 FSA and render the clear questions in the proposal forms otiose. The Defendant's defence of forgery [114] The Defendant's second defence to the Plaintiff's claim was that the Deceased's signature on the proposal form for policy P4 was a forgery. [115] The allegation of forgery regarding the Deceased's signature on the P4 proposal form was not raised in the letter of repudiation dated 21.4.2021 or in any correspondence before the filing of the Defence on 9.8.2021. In the Defence it was pleaded: S/N 0t0s2y393Uaz/bj4yf0whg “Tandatangan simati didalam semua borang cadangan adalah berbeza dan Pihak Defendan mengatakan bahawa tandatangan simati dalam borang borang cadangan adalah dipalsukan dan Pihak Plaintif tidak boleh bergantung kepada apa-apa manfaat dibawah polisi polisi yang diperolehi dengan tandatangan yang dipalsukan.” [116] A police report was lodged by the Defendant on 10.2.2023 in respect of the forgery, and subsequently, a document examiner and handwriting expert (DW4) was appointed to analyse the disputed signatures in the P4 proposal form. [117] Although initially the forgery defence was raised in respect of the proposal forms for all the four policies being claimed on, i.e. P1, P2, P3 and P4, prior to the trial, the Defendant informed the court that it was abandoning the forgery defence for P1, P2 and P3 and will only be relying on the same for P4. [118] The timing of the forgery allegation may not be ideal, but this does not render the defence inadmissible or inappropriate. The Defendant has explained the timing credibly, with supporting witness testimony and a logical chain of events. [119] It is a well-established principle that insurance companies have a duty to thoroughly investigate claims, and it is not uncommon for new information or concerns to arise during this process. The Plaintiff has had ample opportunity to address this allegation during these proceedings, mitigating S/N 0t0s2y393Uaz/bj4yf0whg any potential prejudice. The court notes that both parties have presented expert evidence on this issue, therefore the late introduction of the allegation has not materially prejudiced the Plaintiff's ability to contest it. [120] It is a fundamental principle of civil litigation that parties have a duty to bring forward their whole case at trial. This principle extends to the Defendant's duty to raise all valid defences when they come to light, as part of their obligation of utmost good faith in insurance contracts. [121] In considering the admissibility of evidence and defences, the court's primary focus must be on the substance of the allegation and the evidence supporting it, rather than solely on the timing of its introduction. This approach ensures that all relevant information is considered in reaching a just decision. [122] The forgery allegation is properly before the court and will be considered on its merits alongside the other defences raised by the Defendant. Summary of expert evidence [123] DW4, Mr. Lim Yok Chaw, was called by the Defendant to give expert evidence to establish the forger. DW4 is a handwriting expert who was the former Director of the Chemistry Department of Malaysia and the Chief Document Examiner there. He has given expert evidence in court on S/N 0t0s2y393Uaz/bj4yf0whg 86 occasions between 2000 and 2004, 51 of which were during his tenure with the Chemistry Department. He has also given evidence in his private capacity in 35 out of 75 cases handled. DW4's reports are found in Enclosures 162 and 163 (“DW4’s Report”). [124] The document which was alleged to have been forged was the Proposal Form for P4 dated 23.7.2019 together with a Customer Fact Find Form and a Details of Proposal Form bearing the same date. [125] DW4 examined the original of these documents and compared the signatures therein purporting to be that of the Deceased against 21 specimen signatures of the Deceased in the following documents: NO. DESCRIPTION DATE 1. Passport Malaysia No. A28118990 11.1.2013 2. Proposal Form MCIS Insurance Berhad No. UL201601251132) (16 pages) Customer Fact Find Form 07. MCIS Insurance Bhd (8 pages) 11.2016 3. Friendly Loan Agreement between Jachiswaran a/l Duroy Selvam & R. Krishnan a/l N. Ramasamy 21.3.2019 4. Last Will and Testament of Jachiswaran a/l Duroy Selvam 1.3.2020 S/N 0t0s2y393Uaz/bj4yf0whg [126] The 7 disputed signatures in P4 were collectively marked as “Q1” to “Q7”, whereas the 21 specimen signatures were marked as “S1” to 'S21”. [127] DW4 prefaced his report by stating that he did not find any limitations in the documents provided for examination. The disputed and specimen signatures were all original signatures rather than photocopies. There was also a sufficient number of specimen signatures (21 in total) for comparison with the 7 disputed signatures. The specimen signatures also spanned a sufficient length of time, with the earliest being from 2013 and the latest from March 2020, which was sufficiently close in time to the disputed signatures dated 23.7.2019. [128] Although the Deceased appeared to be a variable writer, DW4 observed that the specimen signatures can be grouped into two based on their design characteristics: a) Group 1 - Specimens S10, S17 and S21 were simple 'J' shaped signatures b) Group 2 - Specimens S1 to S9 and S11 to S16 had a more complex 'J' shape with additional strokes or loops. [129] DW4 then compared the disputed signatures against the above two groups. His findings were as follows: S/N 0t0s2y393Uaz/bj4yf0whg a) The disputed signatures were written in two separate strokes with a clear pen lift in between the first and second stroke. This was a fundamental difference from all the specimen signatures which were written in a single continuous stroke with no pen lift. b) The terminal stroke of the disputed signatures had a more upward slant compared to the specimens. c) The disputed signatures had a diacritic dot at the end which was absent in the specimens. d) The strokes in the disputed signatures were more angular compared to the rounded strokes in the specimens, indicating a difference in writing skill. e) The line quality of the first stroke in the disputed signatures were poorer compared to the specimens, indicating a slower writing speed and more hesitation. [130] Despite the variations in style among the specimen signatures, DW4 observed that the basic structure of the letter 'J' was the same throughout and they were written with a good and smooth line quality. [131] Based on the above, DW4 concluded that there were fundamental and significant differences between the disputed and specimen signatures and they could not have S/N 0t0s2y393Uaz/bj4yf0whg been written by the same person. He eliminated the possibility that the writer of the specimen signatures was the same writer of the disputed signatures. [132] DW4 disagreed with PW3's assertions about the disputed signatures being in “printed form”. He clarified that the letter 'J' in the disputed signatures were written in cursive style, just like the specimens, albeit with a slightly different formation. The only difference was that they were written in two strokes instead of one continuous stroke. As such, DW4 was of the view that there was no issue with comparing the disputed signatures and the specimens. [133] DW4 also disagreed with PW3's suggestion that he had not considered the range of variations in the Deceased's signatures. He explained that he had in fact assessed all the specimens individually and collectively to identify the features that were consistent between them. Those features formed the basis for comparison with the disputed signatures. [134] DW4 took the view that the differences he identified were not something that can be explained away by natural variations. The differences were simply too fundamental and significant and appeared consistently across all the disputed signatures. This strongly indicated that the disputed signatures were written by a different person who had a different writing habit. The pictorial similarity between the disputed and specimen signatures did not detract from S/N 0t0s2y393Uaz/bj4yf0whg this conclusion, as such superficial similarities are to be expected if someone was trying to forge a signature. [135] PW3, Ms. Tay Eue Kam, was called by the Plaintiff to give an expert opinion on the allegation of forgery. PW3's report is found in Enclosure 155 (“PW3’s Report”). [136] As a starting point, PW3 prefaced her report with a number of limitations. She noted that the specimen signatures marked 'S1' from 2008 and 'S2' from 2013 were too far back in time to be considered contemporaneous with the disputed signatures. She also stated that in a case like the present where the disputed signature only has a single letter 'J', there were insufficient characteristics to determine the authenticity of the signature. [137] PW3 observed that the Deceased was not a consistent writer and there were at least 5 different designs or styles to his signature from 2008 to 2020. She referred to these as 'Design 1' to 'Design 5'. [138] PW3 opined that no meaningful comparison could be done between the specimen signatures and the disputed signatures as they were completely different in structure and design. PW3 took the view that the disputed signatures were written in “printed form” whereas all the specimen signatures were in cursive writing. The comparison had to be of 'like to like', i.e. comparing printed writing with printed writing and cursive writing with cursive writing. PW3 stated S/N 0t0s2y393Uaz/bj4yf0whg that while some similarities can be observed, there may not be sufficient material to make a definite finding on authorship. [139] PW3 disagreed with DW4's approach of separating the specimens into two groups based on their design. She considered that the Deceased had too wide a range of variations between 2008 to 2020 to enable such groupings to be done. [140] PW3 also stated that she did not find any signs of forgery such as tremors, pen lifts or retouching in the disputed signatures. The fact that the disputed signature was just a single letter 'J' also made it difficult to conclusively determine if it was written by the same person as the specimen signatures. [141] In PW3's view, the specimens 'S5-1' to 'S5-4b' from 2020 had some design characteristics that were similar to the 'J' in the disputed signatures. However, there were also differences in the way the 'J' was written, i.e in two strokes in the disputed signatures as opposed to one continuous stroke in the specimens. [142] PW3 concluded that given all the limitations identified, and the differences and dissimilarities observed between the disputed and specimen signatures, she was unable to form any conclusive opinion on authorship. She neither confirmed nor excluded the possibility that the writer of the S/N 0t0s2y393Uaz/bj4yf0whg specimen signatures and the disputed signatures were the same person. Analysis and findings of expert evidence [143] The central issue before this court is whether the signatures on the proposal form for Policy P4 are genuine signatures of the Deceased or forgeries. The Plaintiff contends the signatures are authentic, while the Defendant alleges they are forged. Both parties have presented expert evidence to support their respective positions as elaborated above. [144] The Plaintiff's case rests primarily on the expert testimony of PW3 and the factual evidence of PW1 and PW2. PW3 opined that the results of her examination were inconclusive due to several limitations. She identified five distinct signature styles in the specimen signatures spanning from 2008 to 2020, indicating the Deceased was an inconsistent or “variable” writer. Given this wide range of variation, PW3 posited that the questioned signatures in P4 could potentially represent a sixth variation of the Deceased's signature style. [145] PW3 also highlighted difficulties in comparing the questioned and specimen signatures as she viewed the former to be in “printed form” whereas the specimens were in cursive writing. She maintained that a meaningful comparison could only be done between signatures in the same format or style. PW3 further noted that the specimen S/N 0t0s2y393Uaz/bj4yf0whg signatures contemporaneous to P4 were limited and insufficient for a definitive conclusion to be drawn. [146] In addition to PW3's expert testimony, the Plaintiff relied on the evidence of PW1 and PW2, who claimed to have personally witnessed the Deceased signing the proposal form for P4. The Plaintiff submitted that this direct factual evidence should be accorded greater weight than handwriting expert opinions. [147] Conversely, the Defendant's case is founded on the expert evidence of DW4, who has impressive credentials as the former Chief Document Examiner of the Department of Chemistry Malaysia and extensive experience in document examination. DW4 conducted a detailed analysis of the 7 questioned signatures in P4 against 21 specimen signatures of the Deceased found in various documents. [148] DW4 employed a two-step approach in his analysis. First, he studied all the specimen signatures to discern the dominant identifying characteristics that recur across the specimens, establishing a “master pattern” of the Deceased's signature. He then compared the features of the questioned signatures against this master pattern to determine if they were written by the same person. [149] While acknowledging the Deceased's signature style varied considerably over time, DW4 identified several features in the specimen signatures that were fundamentally different S/N 0t0s2y393Uaz/bj4yf0whg from the questioned signatures. These included the presence of a pen-lift and a higher degree of angularity in the questioned signatures which were absent from the specimens. DW4 also noted the presence of a diacritic dot at the end of the questioned signatures that was not found in any of the 21 specimens. [150] DW4 disagreed with PW3's characterisation of the questioned signatures as being in “printed form”. He clarified that the questioned signatures were in fact in cursive form except that the strokes were not joined up. As such, he saw no issues with comparing them to the admittedly cursive specimen signatures. Based on the material differences observed, DW4 concluded that the writer of the questioned signatures was not the same as the writer of the specimen signatures. [151] In evaluating the expert evidence, I am guided by the Court of Appeal's decision in Majukan Sdn Bhd v Barclays Bank PLC [2014] 9 CLJ 337, which held that “a judge who is not an expert himself, should defer to expert opinion unless that evidence is obviously indefensible and is not supported by the basic facts of the case.” While this principle does not require blind acceptance of expert testimony, it suggests that significant weight should be given to expert opinion, particularly when it is well-reasoned and supported by the evidence. S/N 0t0s2y393Uaz/bj4yf0whg [152] Having carefully evaluated the evidence, I prefer the expert evidence of DW4 over that of PW3. DW4's approach of discerning a “master pattern” in the specimen signatures and comparing it to the questioned signatures is logical, systematic, and grounded in scientific principles. DW4 has convincingly identified a number of material and fundamental dissimilarities between the questioned signatures and the specimen signatures which cannot be explained away by natural variations. The specific characteristics of pen-lifts, diacritic dots, angularity of strokes, and poorer line quality are not present in any of the 21 specimen signatures. These differences go towards the core features of the signature rather than superficial discrepancies. [153] Conversely, I find PW3's evidence to be less persuasive. Her finding of “inconclusiveness” does not assist the court very much. I do not think the mere fact that a person has a variable signature style ipso facto precludes any meaningful comparison from being carried out, especially when there are a substantial number of specimens spanning a considerable length of time. As DW4 has shown, even with variability, there are still enduring characteristics that can be discerned with careful and systematic analysis. [154] I also do not agree with PW3's reluctance to compare the questioned signatures with the specimens merely because she viewed the former as being in “printed form”. DW4's evidence, which I accept, was that both the questioned and S/N 0t0s2y393Uaz/bj4yf0whg specimen signatures were in fact in cursive writing except for the connectivity of the strokes. PW3's own concession during cross-examination that the questioned signatures were not purely printed but rather a “cursive formation” or “semi-cursive” in nature significantly weakens her contention that the signatures are so fundamentally different as to preclude comparison. [155] The case of CC Land Resources Sdn Bhd & Anor v Geo Win Sdn Bhd [2023] CLJU 1206 is instructive. In that case, the High Court preferred the expert evidence of Mr. Lim Yok Chaw (who is incidentally also DW4 in the present case) on the issue of forgery in relation to signatures on a company resolution. The High Court approved of Mr. Lim's methodology of first discerning the essential features of a signature as a whole before comparing against the disputed signatures. The court stated: “[34] Having considered the affidavits, the opinion of both witnesses and their testimony during cross-examination, I am of the opinion that the methodology adopted by the Plaintiffs' witness is correct and I therefore find that the said signatures appearing in the resolutions are those of Encik Mohd Puteh. [35] I find that the methodology adopted by the Defendant's witnesses skewed the finding in favour of not recognising the validity of the said signatures. Instead of identifying the essential characteristics of the signatures of Encik Mohd Puteh, the said expert had instead immediately identified the differences that appear between the impugned signatures and the samples that were chosen. I find, as identified by the Plaintiffs expert, the method adopted by the Defendant's expert did not identify the essential features of the signatures S/N 0t0s2y393Uaz/bj4yf0whg of Encik Mohd Puteh as a whole. This is an important step that should have been taken, especially when Encik Mohd Puteh sample signatures changes and as agreed by them, he is a variable writer.” [156] DW4 employed precisely this approach in the present case by studying the 21 specimen signatures to establish the master pattern before comparing against the questioned signatures in P4. PW3 did not carry out this crucial step in her analysis. [157] As for the evidence of PW1 and PW2, I am mindful of the principle enunciated by the Federal Court in Dr Shanmuganathan v Periasamy & Ors [1997] 3 MLJ 61 that handwriting expert evidence must be approached with caution and must not be used to displace direct factual evidence without good reason. However, I find that there are good reasons for rejecting the evidence of PW1 and PW2 in this case. They are not disinterested witnesses and have an interest in the outcome of the case. PW1 is the named trustee under P4 and PW2 is the insurance agent who sold P4 to the Deceased. More importantly, their evidence must be viewed in light of the possibility that they were complicit in the alleged forgery of the Deceased's signature. This was alluded to by the Defendant in its pleadings where it contended that the premiums for P4 were paid for by PW2 as the Deceased could not have afforded it. S/N 0t0s2y393Uaz/bj4yf0whg [158] While it was never put to PW1 and PW2 that they had colluded with the Deceased to commit a forgery, it would be naïve to ignore such a possibility given their intimate involvement in the procurement of P4 and their relationship with the Deceased. The mere fact that PW1 and PW2 claimed to have witnessed the signing does not in itself preclude forgery if they are not telling the truth. I make no finding as to whether PW1 and PW2 were in fact involved in any forgery. Suffice to say that the possibility that they are not neutral witnesses is sufficient for this court to scrutinise their evidence with circumspection. [159] When weighed against the strength of DW4's evidence on the characteristics of the signatures, I am satisfied that there are ample grounds for preferring the expert evidence over that of PW1 and PW2. The fundamental differences noted by DW4, especially the pen lifts and diacritics, align with the principle emphasised in Dr Shanmuganathan v Periasamy that “the fundamental differences between the disputed and admitted signatures” are of “vital importance.” When there is a sharp conflict between the direct testimony of a disinterested witness and the opinion of a handwriting expert regarding the genuineness of a document's execution, it is generally safer for a court to prefer the direct evidence. [160] I am not persuaded by PW3's argument that the differences observed between the questioned signatures and the specimen signatures can be attributed solely to the S/N 0t0s2y393Uaz/bj4yf0whg Deceased's highly variable signature style. While the specimen signatures do demonstrate a degree of variability, as evidenced by the five signature designs identified by PW3, I agree with DW4 that the differences observed in the questioned signatures exceed what can be reasonably attributed to normal variation. [161] The fact that the pen lifts and diacritic marks appear consistently in all the questioned signatures, yet are entirely absent from the wide array of specimen signatures spanning over a decade, is particularly compelling evidence of different authorship. These features represent fundamental differences in the construction and fluency of the signatures, rather than mere stylistic variations. As noted in Sarkar on Evidence (14th Edition), the test of genuineness ought to be the resemblance not to the formation of letters in some other specimen, but to the general character of the writing which is impressed on it as the involuntary and unconscious result of constitution, habit or other permanent cause. [162] The presence of personal characteristics, mannerisms, peculiarities in spelling, the formation of a loop in some letters, fixed pen habits, embellishments, and other characteristics which enter into the handwriting as personality are crucial in the comparison of handwriting. The pen lifts and diacritic marks appear to be ingrained habits in the questioned signatures that are starkly absent in S/N 0t0s2y393Uaz/bj4yf0whg the specimens, suggesting a fundamental difference in the writer's unconscious habits and mannerisms. [163] PW3 places heavy reliance on the principle that “no comparison can be made between printed script and cursive writing” to argue that the questioned and specimen signatures are simply incomparable. However, as noted earlier, PW3 ultimately conceded under cross-examination that the questioned signatures were not purely printed, but rather a “cursive formation” or “semi-cursive” in nature: “DC: As opposed to which is like you said in the Questioned signatures, right? You say the Questioned signatures are printed form because they are two strokes. That's what you are saying? PW3: Yes. That's your evidence, right. So printed form is because is two strokes. But you do agree that in fact what it looks like in the Questioned signatures is not a printed form 'J' but a cursive or semi-cursive 'J'? PW3: Yang Arif the one in the Specimen are actually in a cursive formation because is a continuation stroke. Yes. So we can agree now that we can discard the notion of being a pure printed form of 'J'? PW3: Yeah. Yes? Answer please. PW3: Again, sorry? So we can now discard the notion that is purely a printed form of 'J'? S/N 0t0s2y393Uaz/bj4yf0whg PW3: You are talking about the one in the Questioned? Yes. PW3: Yes.” [164] This significantly weakens PW3's contention that the signatures are so fundamentally different as to preclude comparison. [165] Another critical aspect raised by PW3 is the presence of “external influences” that may impact an individual's writing style over time. However, PW3 does not point to any specific external influences that could account for the drastic and consistent differences seen in the questioned signatures. Merely raising the possibility of external influences, without demonstrating their actual impact, does little to explain the specific differences at hand. [166] DW4's evidence indicates that he had sufficient contemporaneous specimen signatures to conduct a proper comparison. He received 21 specimen signatures spanning from 2013 to 2020, providing a range of samples both before and after the 2019 date of the questioned signatures. This included a 2013 passport, a 2016 proposal form, a 2019 loan agreement, and a 2020 will, giving him multiple contemporaneous examples to establish a baseline. Notably, DW4 did not mention any limitations regarding the quantity or contemporaneity of the specimens in his report, implying he found them sufficient. S/N 0t0s2y393Uaz/bj4yf0whg [167] In the circumstances, I find that the Defendant has established on a balance of probabilities that the signatures on the proposal form for P4 were forged by a person other than the Deceased. This conclusion is founded on the clear, cogent, and compelling expert evidence of DW4 which has not been successfully discredited. The Deceased's variable signature style does introduce a degree of complexity to the handwriting analysis. However, the differences observed in the questioned signatures, particularly the pen lifts and diacritic marks, go beyond what can be reasonably explained by normal variation alone. The consistent presence of these features in all questioned signatures, coupled with their complete absence in all the specimen signatures spanning over a decade, provides compelling evidence of different authorship. [168] Any weaknesses or shortcomings in PW3's evidence are not material, as the burden is on the Plaintiff to prove the authenticity of the signatures, not on the Defendant to prove forgery. The evidence of PW1 and PW2, for reasons explained above, are insufficient to surmount DW4's findings. [169] In the final analysis, I am satisfied that DW4's clear and convincing expert evidence establishes, on a balance of probabilities, that the signatures on the P4 proposal form were forged. PW3's opinion of inconclusiveness, while honest, was based on an overly restrictive view of the limitations and did not assist the court. Accepting DW4's S/N 0t0s2y393Uaz/bj4yf0whg evidence, I find that the Defendant succeeds in their defence that the P4 policy is void for forgery. [170] Accordingly, I find that the proposal form for P4 was not signed by the Deceased and is therefore invalid. The Defendant is entitled to avoid the policy pursuant to the relevant provisions of the FSA. The proposal form for P4 remains marked as ID and cannot be accepted as an exhibit in this case. Legal effect of the forgery [171] The legal effect of the forgery being proven is significant and far-reaching in this case. It fundamentally undermines the validity of the P4 insurance policy and the Plaintiff's claim under that policy. [172] Firstly, a forged signature on the proposal form means that there was no genuine offer or acceptance to enter into the insurance contract for P4. A contract, including an insurance contract, is based on the mutual agreement of the parties involved. As stated in 2(b) Contracts Act 1950, a contract is formed when there is an offer made by one party and an acceptance of that offer by the other party (“When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted; a proposal, when accepted, becomes a promise.”). If the signature on the proposal form is a forgery, it means there S/N 0t0s2y393Uaz/bj4yf0whg was no authentic acceptance by the Deceased of the terms of the insurance policy. This lack of genuine consent vitiates the formation of a valid insurance contract. [173] Secondly, the forged signature constitutes a fraud perpetrated on the insurer. Fraud, as a matter of contract law and insurance law, is a ground for voiding a contract. As per Section 17 of the Contracts Act 1950, fraud includes any act committed with the intent to induce another party to enter into a contract. A forged signature on the proposal form is a clear instance of fraud, as it is a deception intended to induce the insurer to issue the policy. [174] Thirdly, the forged signature breaches the insured's duty of utmost good faith (uberrimae fidei), a fundamental principle in insurance law. This principle requires both the insurer and the insured to disclose all material facts and refrain from any misrepresentation or deception. A forgery is a blatant violation of this duty by the insured party. As stated in Carter v Boehm [1766] 97 ER 1162, a breach of the duty of utmost good faith entitles the innocent party to avoid the contract ab initio. [175] Lastly, the forgery, being a fraud, nullifies the incontestability clause in the insurance policy. Incontestability clauses typically preclude the insurer from disputing the policy after a specified period, usually one or two years. However, these clauses invariably make an exception for fraud. Paragraph 4 Schedule 9 of the FSA S/N 0t0s2y393Uaz/bj4yf0whg upholds this, stating that a policy shall be incontestable after 2 years “except for fraud or non-payment of premiums.” Thus, even if the policy had been in force for more than 2 years, the proven forgery allows the insurer to contest and avoid the policy. [176] Section 147(4) of the Insurance Act 1996 further reinforces the legal position that the proven forgery renders the P4 policy void ab initio. This section states: “A life policy shall not be called in question on the ground of misrepresentation after two years from the date it was effected, unless the insurer shows that such misrepresentation was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the misrepresentation was false or that it suppressed facts which it was material to disclose.” [177] The forgery of the signature on the proposal form squarely falls within the ambit of this provision. It constitutes a fraudulent misrepresentation on a material matter, i.e., the authenticity of the insured's consent to the policy. The forger, whether the policy-holder or someone acting in collusion with the policy-holder, would have known that the misrepresentation was false. Thus, even though the policy was effected more than two years ago, the insurer is entitled to call the policy in question and treat it as void due to the proven fraud. S/N 0t0s2y393Uaz/bj4yf0whg [178] The Indian Supreme Court's judgment in Mithoolal Nayak v Life Insurance Corpn. of India AIR 1962 SC 814 is highly instructive in this context. The facts of Mithoolal Nayak bear striking similarity to the present case. The insured had suppressed material information about his health in the proposal form. After his death, when a claim was made, the insurer discovered the suppression and denied the claim. The Supreme Court, interpreting a provision similar to Section 147(4), held that the insurer was justified in repudiating the claim even after two years because the suppression was fraudulent. The court elucidated: “... the second part of Section 45 [similar to Section 147(4)] entitles the company to repudiate the contract even after the expiry of two years if three conditions are fulfilled viz. (a) the statement was on a material matter or there was suppression of facts which it was material to disclose; (b) the suppression was fraudulently made by the policyholder, and (c) the policyholder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.” [179] All three conditions are fulfilled in the instant case. The forged signature was on a material matter, i.e., the insured's consent to the policy. It was fraudulently made by the policyholder or someone acting in concert with the policyholder. And the fraudster must have known that it was a false representation. [180] Importantly, the Mithoolal Nayak court also held that in such a case of fraudulent misrepresentation, the insurer is not S/N 0t0s2y393Uaz/bj4yf0whg obligated to refund the premiums collected. The court reasoned that the policy itself stipulated that in case of fraud, all premiums would belong to the insurer. This principle applies with equal force here. The Defendant insurer is not only entitled to avoid the policy but also to retain the premiums. [181] In light of Section 147(4) and the principles laid down in Mithoolal Nayak, it is abundantly clear that the proven forgery of the signature on the P4 proposal form gives the Defendant the right to treat the policy as void ab initio, reject the claim in its entirety, and retain the premiums paid. The Plaintiff's claim under P4, therefore, cannot succeed. [182] In conclusion, the proven forgery of the signature on the P4 proposal form renders the insurance contract void ab initio. It means the contract is treated as invalid from the outset, as if it had never been entered into. Consequently, the Plaintiff's claim under the P4 policy, being based on a void contract, must fail. The insurer is entitled to avoid the policy and reject the claim in its entirety. This is the inexorable legal consequence of the forgery being established in this case. S/N 0t0s2y393Uaz/bj4yf0whg Defendant’s investigation process Flawed investigation [183] The Plaintiff submitted that the investigation carried out by DW1, the Defendant's appointed investigator, was flawed and lacked credibility in several respects. Firstly, DW1 failed to make further inquiries into the Deceased's other employment in a scrap metal business. The Plaintiff contended that had DW1 pursued this line of inquiry, it could have established that the Deceased had another source of income to justify the insurance coverage applied for. [184] Additionally, the Plaintiff argued that DW1's statement that the Deceased suffered a 'severe head injury' from an accident in 2015 was hearsay and not corroborated by medical reports. The Plaintiff submitted that DW1 did not interview the doctors who treated the Deceased or obtain medical records to support this conclusion. Moreover, DW1 did not ask family members whether the Deceased had any serious disability in 2020 as a result of the 2015 accident, which could have ruled out any ongoing health issues. [185] The Plaintiff further criticised DW1 for not interviewing the Plaintiff (PW1) and the insurance agent (PW2) regarding the Deceased's medical condition at the time of his application for P4, nor did he ascertain whether they witnessed the Deceased sign the P4 proposal form. The S/N 0t0s2y393Uaz/bj4yf0whg Plaintiff argued that DW1's purported reason for not interviewing PW1 and PW2, namely the principle of “separation of duty,” was fictitious and contradicted his own stated methodology of document review and leaving no stone unturned. [186] Another point of contention raised by the Plaintiff was that DW1 did not interview DW2, the Defendant's underwriting personnel, to determine whether she had access to the Deceased's information from P1-P3 and why inconsistencies were not detected earlier. The Plaintiff submitted that this failure to investigate the Defendant's own processes was a significant omission. [187] The Plaintiff contended that these alleged shortcomings in the investigation process rendered DW1's report biased and designed to repudiate the Plaintiff's claim at all costs. It was argued that a more thorough and impartial investigation would have revealed that the fraud issues raised by the Defendant were non-starters. [188] The Plaintiff also took issue with the lack of a written mandate or instructions from the Defendant to DW1. It was submitted that this made it difficult to ascertain DW1's exact mandate and raised doubts about the impartiality of the investigation report. [189] In response, the Defendant submitted that what DW1 discovered is important, regardless of the methodology S/N 0t0s2y393Uaz/bj4yf0whg employed. The Defendant argued that if the information uncovered by DW1 is false, the onus is on the Plaintiff to rebut it by direct evidence rather than complaining about the investigation methodology. The Defendant contended that no such rebuttal evidence was adduced by the Plaintiff. [190] On the issue of the Deceased's earnings, the Defendant submitted that the burden was on the Plaintiff to prove the Deceased's real earnings, not for the investigator or Defendant to do so. The Defendant pointed out that it had proven the Deceased's earnings by way of a letter from his employers, which was provided by the Plaintiff himself. The Defendant argued that the Plaintiff and PW2, being close to the Deceased, would have been better placed to provide evidence of additional income rather than complain about the investigations. [191] Having considered the rival submissions, I find that the complaints about the investigation carried out by DW1 do not assist the Plaintiff's case. The legal burden is on a plaintiff to prove his case on a balance of probabilities. In an insurance claim, this burden extends to rebutting any defences raised by an insurer to resist the claim. [192] In the present case, the Defendant has raised the defence of misrepresentation and non-disclosure of material facts by the Deceased in his proposal form. The facts allegedly not disclosed or misrepresented relate to the Deceased's health and medical history, particularly injuries suffered in an S/N 0t0s2y393Uaz/bj4yf0whg accident in 2015, as well as inconsistencies in his declared income and occupation in the various policies. [193] The Defendant contends that the questions on these matters in the proposal form were clear, and the Deceased's answers were untrue, which entitled the Defendant to repudiate the policy. This defence was supported by evidence from the insurer's witnesses and documents. [194] The Plaintiff has not adduced any evidence to rebut the falsity of the Deceased's answers as contended by the Defendant, whether through documents or witness testimony. Instead, the main thrust of the Plaintiff's case on this issue was to attack the investigation carried out, contending that it was somehow incomplete and not impartial. [195] With respect, I do not see how the alleged shortcomings in the investigation assist the Plaintiff in rebutting the defence of misrepresentation and non-disclosure. The relevant questions in the proposal form are clear and straightforward, asking whether the Deceased had suffered any physical injury or been admitted to hospital in the last five years. The Defendant's evidence shows that the Deceased was involved in an accident in 2015 and suffered injuries requiring treatment in hospital, including in the ICU. However, the Deceased answered “No” to these questions. S/N 0t0s2y393Uaz/bj4yf0whg [196] PW1 and PW2, who were insurance agents involved in arranging some of the Deceased's policies, did not dispute in evidence that the Deceased had been involved in the 2015 accident and was hospitalised. It is also not disputed that the answers given to these questions were untrue. [197] What the Plaintiff is essentially arguing is that notwithstanding the falsity of the answers, the Defendant should have uncovered these matters themselves before issuing the policy, whether through their internal records or external investigations. With respect, I cannot agree with this contention. [198] The duty of utmost good faith in insurance law requires a high standard of honesty and disclosure on the part of the insured. This is because the insured is in the best position to know all the facts relevant to the insurer's decision to accept the risk and if so, on what terms. The insurer is entitled to rely on the truth and completeness of the answers and declarations given by an insured in the proposal form. [199] The insured's duty to disclose and not misrepresent material facts is a strict one. It is not open to an insured to say that the insurer should have investigated further or uncovered the matters independently. The law does not impose a corresponding duty on the insurer to carry out checks or due diligence on the accuracy of the insured's answers. Short of the insurer having actual knowledge that S/N 0t0s2y393Uaz/bj4yf0whg the answers are untrue, the insured is bound by the proposal submitted. [200] That is not to say insurers have no obligations at all. Since 2013, the FSA has introduced a more balanced statutory regime for consumer insurance contracts like the present ones. However, even under this regime, the primary duty remains on the consumer to take reasonable care not to make a misrepresentation when answering questions posed by an insurer. Of course, if no questions are asked on a particular matter, the consumer's duty of disclosure on that matter is deemed waived. But that is not the case here. [201] I also find no merit in the submission that the insurer failed to provide relevant information to the investigator to allow an objective investigation. The whole purpose of having the Deceased fill up and sign a proposal form is to obtain the relevant information on the risk profile directly from the insured himself. It is not for the insurer to feed information to the investigator to investigate the insured. That would be putting the cart before the horse. [202] In my judgment, the Plaintiff's focus on the details and methodology of the investigation detracts from the real issues to be determined. The alleged deficiencies in the investigation do not address or rebut the Defendant's core defence that the Deceased had misrepresented and failed to disclose material facts in his proposal form. S/N 0t0s2y393Uaz/bj4yf0whg [203] The authorities are clear that an insurer is entitled to avoid an insurance contract for material non-disclosure or misrepresentation. I find no reason to disturb the Defendant's decision to repudiate the policy in the present case. The answers given by the Deceased to the questions posed were undisputedly incorrect and related to material facts relevant to the underwriting decision. [204] Even if DW1's investigation could have been more thorough in certain respects, I find that on the whole, the Defendant has proven sufficient facts to sustain its defence of non-disclosure of material facts. The burden to rebut those facts remained with the Plaintiff, which burden has not been discharged. [205] For these reasons, I find that the Plaintiff has not shown any sustainable grounds to challenge the investigations carried out by the Defendant in respect of the defence of non-disclosure and misrepresentation. The alleged flaws in DW1's investigation are not sufficient to nullify the Defendant's decision to repudiate the claim under Policy P4. [206] In conclusion, the complaints of procedural unfairness and lack of thoroughness in the investigations do not address or overcome the underlying defence raised on the facts. The Plaintiff's submissions on this point must therefore be rejected. S/N 0t0s2y393Uaz/bj4yf0whg DW3's alleged “cold calls” [207] The Plaintiff takes issue with the evidence of DW3, the Defendant's Claims Manager, contending that her testimony regarding “cold calls” to various hospitals to investigate the Deceased's medical history was not substantiated by any documentary proof. [208] On an objective evaluation of DW3's evidence, I find that this criticism does not detract from the strength of the Defendant's case. It is not disputed that DW3 proceeded to process the Deceased's insurance claims upon receiving the claim notification, and that as part of this process, sought further information on the Deceased's medical history by contacting various hospitals. DW3's evidence was that this was a standard part of the claims procedure. [209] Whether or not such “cold calls” were made is, to my mind, not a material issue. There is no strict legal requirement for such calls to be made or for records of the same to be produced as evidence. The far more pertinent fact is that DW3 did eventually obtain the medical reports from University Malaya Medical Centre and Pantai Hospital Cheras which confirmed the Deceased's hospitalisation following the road accident in 2015. [210] The lack of documentary proof for these alleged “cold calls” does not negate the fact that DW3 ultimately obtained the relevant medical information through proper channels. This S/N 0t0s2y393Uaz/bj4yf0whg information, which contradicted the Deceased's answers in his proposal form for Policy P4, entitled the Defendant to investigate the matter further. [211] Accordingly, I find no merit in this complaint against DW3's evidence or the Defendant's investigative process. The absence of documentary proof for the initial “cold calls” does not undermine the validity of the medical information subsequently obtained, nor does it impact the core issue of the Deceased's misrepresentation in the proposal form.” Defendant’s Conduct in Handling Claims Estoppel [212] The Plaintiff contends that the Defendant is estopped from denying the claims for policies P1, P2, and P4 after admitting liability for policy P3. The Plaintiff argues that the Defendant’s conduct in initially admitting liability for P1 and P2, and subsequently making payment for P3, created a legitimate expectation that all policies would be honored. The Plaintiff relies on the principle of estoppel by conduct, asserting that the Defendant’s actions induced the Deceased to believe that all policies were valid and would be paid out in the event of a claim. The Plaintiff further submits that it would be unconscionable for the Defendant to now repudiate the policies after the Deceased had relied on the Defendant’s representations and continued to pay premiums. In support of this argument, the Plaintiff cites the S/N 0t0s2y393Uaz/bj4yf0whg case of Boustead Trading Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, which held that estoppel may assist a plaintiff in enforcing a cause of action by preventing the defendant from denying the existence of some fact which would destroy the cause of action. [213] The Defendant contends that the payment of one policy (P3) does not create an estoppel for other policies, especially where fraud or forgery is subsequently discovered. The Defendant argues that each policy is a separate contract and must be assessed individually. The Defendant submits that the initial admission for P1 and P2 was conditional and subject to further investigation. The Defendant maintains that P4 was never admitted, and the claim was always under investigation. The Defendant relies on the principle that estoppel cannot be used to give effect to fraud or forgery. The Defendant cites evidence of material non-disclosure and misrepresentation in the proposal forms for P1, P2, and P4, as well as expert evidence suggesting forgery of signatures on P4, which came to light after the payment of P3. The Defendant distinguishes Boustead Trading on the basis that in the present case, there is evidence of fraud and forgery which would negate any estoppel. [214] After careful consideration of the submissions and evidence presented by both parties, I find no basis for estoppel in this case. The doctrine of estoppel is indeed a flexible principle aimed at preventing injustice, but it cannot be applied in a S/N 0t0s2y393Uaz/bj4yf0whg manner that would effectively condone or give effect to fraudulent conduct. While Boustead Trading recognises the potential for estoppel to assist a plaintiff in certain circumstances, it does not suggest that estoppel can be invoked to override clear evidence of fraud or forgery. [215] Firstly, it is important to note that each insurance policy represents a separate contract, with its own terms and conditions. The payment or admission of liability for one policy does not automatically create an obligation to honor all other policies, particularly where there are specific grounds for repudiation relating to individual policies. This is consistent with the principle that estoppel operates as a rule of evidence and does not create new causes of action, as clarified in Boustead Trading. [216] I accept the view stated by the learned author S. Santhana Dass, in The Law of Life Insurance in Malaysia (2nd edn) at pg.515 who opined: “Even if the insurer has met claims under the policy, which on its correct interpretation, are outside its ambit, this does not reasonably lead to the inference that they will continue to meet similar claims under the policy - payment may have been made through negligence or by inadvertence or ex-gratia and accordingly they are not estopped from alleging that similar claims are not covered by the policy. The fact that the insurer has previously paid a claim under similar circumstances does not stop them from raising, as a defence to a subsequent claim, that the loss is not within the risk covered by the contract of insurance. A previous payment does not S/N 0t0s2y393Uaz/bj4yf0whg establish that the insurer is liable in respect of that claim for which payment is made and does not reasonably lead to the inference that the insurer will continue to pay like claims under the same or similar policy.” [217] In the present case, the fact that the Defendant had initially admitted the claims on Policies P1 and P2, and made payment on Policy P3, does not preclude it from changing its position upon unearthing further material which justified the repudiation of those policies and the denial of the claim on Policy P4. The law does not require an insurer to be correct from the outset or to know all facts entitling it to avoid a policy at the time it first processes a claim. This is distinguishable from the situation in Boustead Trading, where there was no suggestion of any new material or evidence coming to light after the initial representation. [218] On the evidence, it is clear that the Defendant’s decision to pay out on Policy P3 in November 2020 was made at a time when its investigations were still ongoing. It was upon receiving the medical reports from University Malaya Medical Centre on 9.12.2020 that the Defendant felt it necessary to appoint DW1 as an external investigator in January 2021 to probe further. This is clear from the testimony of DW3 (the Defendant’s Claims Manager) during the trial. In my view, this was an entirely reasonable course of action and I see no bad faith or sinister motive on the part of the Defendant. The Defendant's conduct in this regard is consistent with the duty of an insurer to investigate claims thoroughly, and does not amount to the kind of unequivocal S/N 0t0s2y393Uaz/bj4yf0whg representation that could give rise to an estoppel as discussed in Boustead Trading. [219] Further, in respect of Policies P1 and P2, the initial admission of liability communicated in the Defendant’s letter dated 10.11.2020 was made subject to an express condition that all outstanding premiums had to first be paid up. This condition was repeated in the Defendant’s subsequent letter dated 21.4.2021 when liability was denied. It is not in dispute that as of the date of denial, the premiums remained outstanding. As such, there was no unequivocal admission of liability on Policies P1 and P2 which could now estop the Defendant from maintaining its repudiation of the same. This conditional admission is markedly different from the unconditional representation in Boustead Trading which was found to create an estoppel. [220] The evidence shows that the initial admission for P1 and P2 was conditional and later retracted once misrepresentation was discovered. This is consistent with the insurer’s right to investigate claims and avoid policies where there has been a breach of the duty of utmost good faith. As for P4, the evidence indicates that it was never admitted and was always subject to investigation. Nothing in Boustead Trading suggests that an insurer is precluded from investigating and repudiating claims where there is evidence of misrepresentation or fraud, even if liability had been conditionally admitted earlier. S/N 0t0s2y393Uaz/bj4yf0whg [221] The payment for P3 does not, in my view, create an estoppel that prevents the Defendant from contesting the other policies. This is particularly so given the evidence of potential fraud and forgery that has come to light in relation to P1, P2, and P4. The principle that estoppel cannot be used to give effect to fraud is well-established in law. The principle that estoppel cannot be used to give effect to fraud, which was acknowledged in Boustead Trading, is directly applicable here. [222] On the argument of the Plaintiff that the Defendant should be estopped from repudiating Policy P4 due to its prior admission of liability under Policies P1, P2, and P3 thereby inducing the Deceased to continue paying premiums, I agree with the Defendant that the doctrine of estoppel is inapplicable to the facts of this case. Estoppel is essentially a rule of evidence that prevents a party from denying or asserting a fact in legal proceedings to the prejudice of another party who has been led to alter his position in reliance on the assumption of that fact induced by the first party’s representation or conduct. While Boustead Trading recognises this principle, it also makes clear that there must be sufficient evidence from which an inference of reliance and detriment can be drawn. [223] In the present case, apart from the bare assertion, there was absolutely no evidence led by the Plaintiff to prove the essential ingredients of estoppel, namely: S/N 0t0s2y393Uaz/bj4yf0whg a) that the Defendant had represented to the Deceased that there was no issue with P4; b) that the Deceased had relied on this representation to continue paying premiums for P4; c) that the Deceased had suffered detriment as a result of this reliance. [224] This lack of evidence is fatal to the Plaintiff's estoppel argument, as Boustead Trading makes clear that the onus is on the party asserting estoppel to adduce sufficient material to support the inference of reliance and detriment. [225] The Plaintiff’s own pleaded case is that the Defendant had expressly informed the Plaintiff vide letter dated 10.11.2020 that the claim on P4 was still under investigation when it paid out on P3. I fail to see how this amounted to any clear or unequivocal representation by the Defendant that there was no issue with P4, such as to induce any reliance or change of position by the Deceased. The same letter in fact stated that the claim for P3 was admitted due to a non-contestability clause, which did not apply to the other policies. This negates any representation that the claims under all the policies would necessarily be paid. The Defendant's express reservation of its position on P4 distinguishes this case from Boustead Trading, where there was an unqualified representation. S/N 0t0s2y393Uaz/bj4yf0whg [226] The fact that P4 may share the same terms and conditions as the other policies does not by itself preclude the Defendant from raising different defences to a claim under P4 based on the specific facts applicable to that policy. It is not uncommon for an insurer to have different underwriting considerations for separate policies taken out by the same insured. [227] The Defendant’s witnesses have given sufficient explanation as to why the claims under the different policies were treated differently, in particular that the claim on P4 was not admitted from the outset pending investigation, while the initial conditional admissions on P1 and P2 were subsequently revoked upon discovery of material non-disclosures and fraudulent misrepresentation. [228] In the circumstances, no estoppel can possibly arise to prevent the Defendant from repudiating liability under P4. The Plaintiff appears to have laboured under a misconception that the mere fact of having admitted other claims would automatically bind the Defendant to admit the claim under P4. There is absolutely no legal basis for this assumption. [229] The Plaintiff’s oblique suggestion that the Defendant had changed its position based on the advice of its re-insurers is wholly speculative and unsubstantiated by evidence. The true position is simply that the Defendant uncovered valid S/N 0t0s2y393Uaz/bj4yf0whg grounds to repudiate the policies upon investigation of the claims. [230] In addressing this matter, I am guided again by the principle of utmost good faith (uberrima fides) in insurance contracts, as emphasised in Leong Kum Whay v QBE Insurance (M) Sdn Bhd, which reaffirms the insured's duty to voluntarily disclose all material facts to the insurer, recognising the inherent information asymmetry in insurance relationships and the critical importance of transparency in maintaining the integrity of such agreements. This principle of utmost good faith, which underlies the entire law of insurance, takes precedence over any estoppel that might arise from the insurer's conduct. Boustead Trading, being a case on general contract law principles, does not displace this fundamental insurance law doctrine. [231] This principle of utmost good faith applies not only at the inception of the policy but continues throughout the life of the policy and during the claims process. Where there is evidence of a breach of this duty, as alleged by the Defendant in this case, it would be inappropriate to apply estoppel in a manner that would negate this fundamental principle of insurance law. To do so would be to allow the Plaintiff to benefit from the Deceased's own breach of the duty of utmost good faith [232] Furthermore, the case of Malaysian Assurance Alliance Bhd v Chong Nyuk Lan [2002] 6 MLJ 648 supports the position S/N 0t0s2y393Uaz/bj4yf0whg that even where there is an incontestability clause in a policy, the insurer retains the right to contest the policy on grounds of fraud. By extension, this principle can be applied to the current situation, where the Defendant is alleging fraud and forgery in relation to specific policies. This fraud exception to incontestability is consonant with the principle in Boustead Trading that estoppel cannot be used to give effect to fraud. [233] In conclusion, while I acknowledge that the Defendant’s conduct in paying out P3 and initially admitting liability for P1 and P2 may have created certain expectations, this does not rise to the level of estoppel that would prevent the Defendant from contesting the policies where there is credible evidence of misrepresentation, non-disclosure, and potential forgery. The principle of estoppel cannot be applied in a manner that would effectively override the fundamental principles of insurance law, particularly the duty of utmost good faith. Each policy must be assessed on its own merits, and the Defendant retains the right to investigate and, where appropriate, repudiate policies based on evidence of fraud or material non-disclosure. The principle of estoppel, as articulated in Boustead Trading, cannot be applied in a manner that would effectively override the fundamental principles of insurance law, particularly the duty of utmost good faith. Each policy must be assessed on its own merits, and the Defendant retains the right to investigate and, where appropriate, repudiate policies based on evidence of fraud or material non-S/N 0t0s2y393Uaz/bj4yf0whg disclosure. Boustead Trading does not compel a different conclusion on the facts of this case. Waiver of Medical Examinations [234] The Plaintiff contends that the Defendant’s nationwide campaign waiving medical examinations for policies under RM2 million precludes it from relying on non-disclosure of medical information. The Plaintiff argues that this campaign, which was in effect when the Deceased applied for Policy P4 (valued at RM1.5 million), created an implied waiver of the Defendant’s right to rely on medical non-disclosure. The Plaintiff submits that by implementing this campaign, the Defendant effectively communicated to potential policyholders, including the Deceased, that medical history was not a material consideration for policies under RM2 million. The Plaintiff further argues that this waiver should extend to the questions in the proposal form relating to medical history, as these questions were rendered superfluous by the campaign. [235] The Defendant argues that waiving medical examinations as part of a marketing campaign does not negate the insured’s duty to answer questions in the proposal form truthfully and accurately. The Defendant contends that the waiver of medical examinations was a separate issue from the duty of disclosure in the proposal form. The Defendant submits that the questions in the proposal form remained relevant and material to their underwriting decision, S/N 0t0s2y393Uaz/bj4yf0whg regardless of whether a medical examination was required. The Defendant emphasises that the duty of utmost good faith, including the obligation to disclose all material facts, is a fundamental principle of insurance law that cannot be waived by a marketing campaign. The Defendant further argues that the waiver of medical examinations was intended to streamline the application process, not to absolve applicants of their duty of disclosure. [236] After careful consideration of the submissions and evidence presented by both parties, I find the Defendant’s arguments more persuasive on this issue. The waiver of medical examinations as part of a marketing campaign does not absolve the insured of the fundamental duty to provide truthful and accurate information in the proposal form. [237] The duty of utmost good faith (uberrima fides) remains a cornerstone of insurance contracts, requiring the insured to fully disclose all material circumstances to the insurer, as reaffirmed by the Court of Appeal in Leong Kum Whay v QBE Insurance (M) Sdn Bhd. [238] Paragraph 5 of Schedule 9 of the FSA codifies the consumer's pre-contractual duty of disclosure by requiring them to take reasonable care not to make a misrepresentation when answering questions from the licensed insurer. S/N 0t0s2y393Uaz/bj4yf0whg [239] The waiver of medical examinations does not override this statutory duty. The questions in the proposal form remain a crucial part of the insurer’s risk assessment process, even in the absence of a medical examination. The insurer is entitled to rely on the answers provided in the proposal form to make underwriting decisions. [240] The case of Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd established that a fact is material if a prudent insurer would want to know it, even if it does not decisively influence the decision, and the medical history questions in the proposal form clearly fall into this category, regardless of the need for a medical examination. [241] The Plaintiff’s argument that the campaign created an implied waiver of the right to rely on medical non-disclosure is not supported by the evidence or the law. An insurer’s decision to waive medical examinations for certain policies does not equate to a waiver of its right to receive truthful and complete information in the proposal form. Such an interpretation would undermine the fundamental principles of insurance law and the statutory framework established by the FSA. [242] The Defendant’s campaign relate to the Defendant’s internal practices which do not detract from the Deceased’s fundamental duty to make truthful representations when entering into an insurance contract. There was nothing preventing the Defendant from still relying on the S/N 0t0s2y393Uaz/bj4yf0whg Deceased’s representations even if it did not independently verify the same at the time. The Plaintiff’s suggestion that the Defendant is precluded from raising non-disclosure and forgery in defence, in the absence of such verification, is plainly unsustainable. [243] Moreover, the case of Chong Lai Keng v Prudential Assurance Malaysia Bhd reaffirms that insurers can avoid policies for deliberate or reckless misrepresentation under the FSA. This right is not negated by marketing campaigns or promotional offers. [244] Further, there is a distinction between the underwriting objectives of a medical examination and the questions in the proposal form. This was explained by DW2, the Defendant’s Underwriting Manager, during the trial. I accept her evidence that a medical examination is intended to identify any pre-existing medical conditions of the prospective insured which would affect the insurability of the risk. This is separate and distinct from Questions 7 and 14 in the proposal form, which specifically ask the insured to disclose any hospitalisations, injuries or surgical operations. The purpose of these questions is clearly to ascertain the insured’s past incident record and exposure to certain risks, even if such incidents may not have resulted in any long-term health conditions. [245] I find that there is no basis for the Plaintiff’s contention that a waiver of medical examination somehow translates into a S/N 0t0s2y393Uaz/bj4yf0whg waiver of the insured’s duty to truthfully answer the questions in the proposal form. There is nothing in the language of Questions 7 and 14 to suggest that the insured need not disclose the required information if he is not required to undergo a medical examination. The notice on the first page of the proposal form and Paragraph 7(8) of

Schedule

Schedule 9 of the FSA also make it clear that all questions asked in the proposal form are deemed relevant for underwriting purposes. [246] In the present case, it is not disputed that the Deceased’s answers to Questions 7 and 14 in the proposal form for Policy P4 were false. He had, in fact, been hospitalised due to a road traffic accident in 2015 and suffered physical injuries. The medical reports from University Malaya Medical Centre and Pantai Hospital Cheras, as well as the testimony of the Plaintiff’s own witnesses PW1 and PW2, confirm this. I therefore find that the Deceased clearly failed to discharge his duty of disclosure in the proposal form, even if he was not required to attend a medical examination. [247] Accordingly, the Defendant was well within its contractual and statutory rights to avoid Policy P4 for the non-disclosure and misrepresentation by the Deceased, pursuant to the terms of the policy and Paragraph 15(1) of Schedule 9 of the FSA. The fact that no medical examination was required for this particular policy does not assist the Plaintiff’s case. The Defendant did not “blow hot and cold”, as the Plaintiff S/N 0t0s2y393Uaz/bj4yf0whg contends, but merely relied on the Deceased’s false answers in the proposal form, which it is entitled to do as a matter of law. [248] In conclusion, while the Defendant’s campaign waiving medical examinations for policies under RM2 million may have simplified the application process, it did not create a blanket waiver of the insured’s duty to disclose material facts or answer questions truthfully in the proposal form. The duty of utmost good faith, as enshrined in both common law and statute, continues to apply. The Deceased remained under an obligation to provide accurate and complete information in response to the questions in the proposal form, regardless of whether a medical examination was required. Therefore, the Defendant is not precluded from relying on non-disclosure or misrepresentation of medical information in the proposal form as a basis for avoiding the policy. Overall Conduct [249] The Plaintiff alleges that the Defendant acted in bad faith by denying the claims for policies P1, P2, and P4, and by not adequately considering the interests of the beneficiaries. The Plaintiff contends that the Defendant’s conduct was unconscionable, particularly in light of its initial admission of liability for P1 and P2, and the payment made for P3. The Plaintiff argues that the Defendant’s subsequent investigations and repudiation of the policies were S/N 0t0s2y393Uaz/bj4yf0whg motivated by a desire to avoid payment rather than a genuine concern about misrepresentation or forgery. The Plaintiff submits that the Defendant’s actions, including the appointment of an investigator and handwriting expert, were undertaken with the predetermined intention of denying the claims. Furthermore, the Plaintiff asserts that the Defendant’s failure to cross-check information from previous policies and to make further enquiries at the proposal stage demonstrates a lack of good faith in its dealings with the Deceased and his estate. [250] The Defendant maintains that its investigations and decisions were justified based on credible evidence of misrepresentation and forgery. The Defendant argues that it has a duty to thoroughly investigate claims, especially where there are indications of potential fraud or misrepresentation. The Defendant contends that its initial admission of liability for P1 and P2 was conditional and subject to further investigation, which is a standard practice in the insurance industry. The Defendant submits that the appointment of an investigator and handwriting expert was a necessary and reasonable step in light of the discrepancies discovered in the Deceased’s medical history and financial information. The Defendant argues that its actions were in accordance with the principles of utmost good faith that underpin insurance contracts, and that it has a responsibility to protect the interests of all policyholders by preventing fraudulent claims. S/N 0t0s2y393Uaz/bj4yf0whg [251] After careful consideration of the submissions and evidence presented by both parties, I find the Defendant’s overall conduct in investigating and deciding the claims was reasonable and justified. The evidence reveals material misrepresentations in the proposal forms and convincing expert testimony of forgery for P4. The Defendant was not only entitled but indeed obligated to investigate these issues thoroughly before making payment. [252] The principle of utmost good faith (uberrima fides) is a fundamental tenet of insurance law, as reaffirmed in Leong Kum Whay v QBE Insurance (M) Sdn Bhd. This principle applies not only to the insured but also to the insurer. In this case, the Defendant’s actions in investigating the claims and uncovering potential misrepresentations and forgery are consistent with its duty to act in good faith. [253] The FSA, particularly Paragraphs 5 and 7 of Schedule 9, sets out the pre-contractual duty of disclosure for consumer insurance contracts and the consequences of misrepresentation. The Defendant’s investigations and subsequent decisions align with these statutory provisions. The case of Chong Lai Keng v Prudential Assurance Malaysia Bhd further supports the Defendant’s right to avoid policies for deliberate or reckless misrepresentation under the FSA 2013. [254] The Defendant’s appointment of an investigator and handwriting expert was a prudent step in light of the S/N 0t0s2y393Uaz/bj4yf0whg discrepancies discovered. The Federal Court in Letchumanan Chettiar Alagappan v Secure Plantation Sdn Bhd [2017] 5 CLJ 418 established that the standard of proof for forgery in civil cases is on a balance of probabilities. The Defendant’s reliance on expert evidence to support its forgery allegation is therefore appropriate and in line with legal principles. [255] Moreover, the Supreme Court of India case of Mithoolal Nayak v Life Insurance Corpn of India [supra], while not binding, provides persuasive authority that fraudulent suppression of material facts allows an insurer to repudiate a policy even after two years. This principle supports the Defendant’s right to investigate and potentially repudiate policies where there is evidence of fraud or material non-disclosure, regardless of the time that has elapsed since the policy was issued. [256] The Plaintiff’s argument that the Defendant failed to consider the interests of the beneficiaries is not compelling in the face of evidence suggesting misrepresentation and forgery. As stated by the High Court in Jamilah bt Hj Ali & Anor v Bank Simpanan Nasional & Anor [2020] 7 MLJ 314, non-disclosure of material facts allows for the avoidance of an insurance contract. The consideration of beneficiaries’ interests cannot override the fundamental principles of insurance law where fraud or misrepresentation is established. S/N 0t0s2y393Uaz/bj4yf0whg [257] In assessing the overall conduct of the Defendant, I am mindful of the principle laid down by the Supreme Court in Eastern & Oriental Hotel v Ellarious George Fernandez [1989] 1 MLJ 35, which emphasises the importance of considering objective facts and overall probabilities. The Defendant’s actions, when viewed in the context of the evidence of misrepresentation and potential forgery, appear reasonable and justified. [258] In conclusion, while the Defendant’s investigations and decision to repudiate the policies may have caused distress to the Plaintiff and the beneficiaries, these actions were within the Defendant’s rights and obligations as an insurer. The evidence of material misrepresentations in the proposal forms and the expert testimony suggesting forgery for P4 provided sufficient grounds for the Defendant’s conduct. The Defendant was entitled, and indeed obligated, to investigate these issues thoroughly before making payment. The consideration of beneficiaries’ interests, while important, cannot override the fundamental principles of insurance law where there is credible evidence of fraud or misrepresentation. Therefore, I find that the Defendant’s overall conduct in this matter was reasonable, justified, and in accordance with established legal principles governing insurance contracts. S/N 0t0s2y393Uaz/bj4yf0whg Defendant’s unconscionable conduct [259] The Plaintiff contended that the Defendant’s repudiation of Policies P1, P2 and P4 due to the Deceased’s alleged non-disclosure and misrepresentation amounts to unconscionable conduct. The Plaintiff relied on section 24B of the Consumer Protection Act 1999, the Court of Appeal decision in Saad Marwi v Chan Hwan Hua & Anor [2001] 3 CLJ 98, and the doctrines of inequality of bargaining power and unconscionability. The Plaintiff submitted that Questions 7 and 14 in Section 3 of the proposal forms drafted by the Defendant were not sufficiently specific for the Deceased to comprehend, leading him to interpret them based on his own understanding. The Plaintiff argued that the Defendant’s “high-handed approach” in repudiating the policies for non-disclosure after collecting premiums is both unconscionable and inequitable. [260] The Defendant countered that insurance policies do not fall within the ambit of the Consumer Protection Act 1999. The Defendant cited the decision of Peh Swee Chin FCJ in Public Finance Bhd v Scotch Leasing Sdn Bhd [1996] 2 MLJ 369 (FC) where it was held that insurance policies, being choses in action, are excluded from the definition of “goods” under the Act. The Defendant also referred to excerpts from S. Santhana Dass, “General Principles of Contract Law” (2nd Ed) on this point. S/N 0t0s2y393Uaz/bj4yf0whg [261] The Defendant further argued that the decision of the High Court in Fui Lian Credit & Leasing Sdn Bhd v Kim Leong Timber Sdn Bhd & Ors [1991] 1 CLJ 522 sets a high threshold for establishing unconscionability, requiring the Plaintiff to show that the Defendant had imposed an objectionable term in a morally reprehensible manner or procured the bargain by unfair means. The Defendant submitted that the mere allegation that Questions 7 and 14 lack specificity cannot amount to unconscionable or unfair conduct on the Defendant’s part. [262] Having considered the submissions of both parties, I am inclined to agree with the Defendant that the Consumer Protection Act 1999 has no application to this case as it does not extend to insurance contracts. The Court of Appeal decision of Saad Marwi, while recognising the doctrines of inequality of bargaining power and unconscionability in the context of contracts, did not concern an insurance policy. Neither did the Plaintiff refer me to any provision in the FSA or the Insurance Act 1996 to support its invocation of these concepts. [263] In any event, even if these equitable principles could apply, I find that the Plaintiff has failed to cross the high threshold of showing that the Defendant had acted unfairly or unconscionably in repudiating the policies. As stated in Fui Lian Credit & Leasing, it is insufficient to merely assert that a contractual term is unreasonable. There must be evidence that the Defendant had taken undue advantage of the S/N 0t0s2y393Uaz/bj4yf0whg Deceased in a morally reprehensible manner, either in the way the proposal form was drafted or how the policies were sold. [264] On the facts, the Plaintiff’s complaint is only that Questions 7 and 14 were not specific enough for the Deceased to properly comprehend, as a result of which he answered them based on his own understanding and interpretation. With respect, the plain wording of those questions in the proposal form do not support such an assertion. The information sought in those questions are straightforward and specific. If the Deceased was in doubt as to what the questions meant, there was nothing preventing him from seeking clarification before answering them and submitting the proposal form. [265] In the circumstances, I do not think it can be said that the Defendant had imposed the questions in an unfair manner or that it had taken unconscionable advantage of the Deceased in underwriting the policies. The Deceased was not under any disability or special disadvantage that the Defendant exploited. The Deceased had every opportunity to read and understand the proposal form before signing it. It is also not the Defendant’s duty to ensure that the Deceased’s subjective interpretation of the questions aligned with his answers. [266] As for the Defendant’s repudiation after receiving premiums, this contractual right is recognised by long-standing S/N 0t0s2y393Uaz/bj4yf0whg principles of insurance law where there has been a non-disclosure or misrepresentation of material facts by the insured at the pre-contractual stage. The exercise of this right per se cannot constitute unconscionable conduct on the Defendant’s part. [267] For these reasons, I find no merit in the Plaintiff’s argument that the Defendant had engaged in unconscionable conduct in repudiating the policies. The claim on this ground is dismissed. CONCLUSION [268] For the reasons set out above, I find in favour of the Defendant. The Plaintiff’s claim is dismissed with costs of RM40,000.00 to be paid by the Plaintiff to the Defendant. The Defendant has established on a balance of probabilities that: a) The deceased materially misrepresented and failed to disclose crucial information regarding his medical history, prior injuries/hospitalisations, occupation, and income details in the insurance proposal forms. b) The non-disclosures and misrepresentations by the Deceased were deliberate and reckless, entitling the Defendant to avoid the policies under Paragraph 15 of Schedule 9 of the FSA. S/N 0t0s2y393Uaz/bj4yf0whg c) The Defendant fulfilled its statutory duties by asking clear questions and adequately informing the Deceased of his disclosure obligations. d) Based on the expert evidence, the signatures on the proposal form for Policy P4 were forged, rendering the policy void ab initio. e) While the Defendant's investigation process had some shortcomings, these were not significant enough to invalidate its decision to repudiate the policies. f) The Defendant is not estopped from denying claims on policies P1, P2 and P4 after admitting liability for P3, as each policy represents a separate contract. g) The Defendant's waiver of medical examinations for policies under RM2 million does not preclude it from relying on no-disclosure of medical information. h) The Defendant's overall conduct in handling the claims was reasonable and justified, and did not amount to bad faith. i) The Defendant did not engage in unconscionable conduct in repudiating the policies, as its actions were based on established principles of insurance law. S/N 0t0s2y393Uaz/bj4yf0whg [269] The Plaintiff has failed to rebut these findings with credible evidence. While one can sympathise with the position of the beneficiaries, this cannot override the fundamental principles of insurance law where material misrepresentation and forgery are established. The Defendant is entitled to avoid the policies in these circumstances. 2 September 2024 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Siva Subramaniam (Messrs Subramaniam & Shafiq) For the Defendant: P Mithran with S Dass and Doris Lee Pui See (Messrs. Dass Jainab & Associates) S/N 0t0s2y393Uaz/bj4yf0whg