The Pacific Insurance Berhad v Asia Country Construction Sdn Bhd (WA-24NCC-513-10/2024)

1.

HA KUI MENG (No. K/P: 750912-08-5337)

TANG YOON LAI … DEFENDAN - (No. K/P: 690901-08-6149) DEFENDAN

This is the Plaintiff’s application by way of Originating Summons in Enclosure 1 pursuant to section 96(3) of the Road Transport Act 1987 (“RTA 1987”) (“the application”).

The Plaintiff seeks declarations that Commercial Vehicle Insurance Policy No. V0591482 issued in respect of excavator No. WC 2921 S for the period 6.4.2018 to 5.4.2019 is unenforceable against it and that it is not liable to satisfy any judgment obtained by the 3rd Defendant arising from the accident on 2.1.2019.

It is important to note that the 1st and 2nd Defendants did not appear at the hearing of this application and did not file any affidavit in opposition. The application was therefore not challenged by them. In contrast, only the 3rd Defendant appeared through counsel and actively opposed the relief sought by the Plaintiff. A]

The Plaintiff is the insurer which issued Commercial Vehicle Insurance Policy No. V0591482 to the 1st Defendant in respect of excavator No. WC 2921 S for the period 6.4.2018 to 5.4.2019 (“the policy”).

Under the policy, the 2nd Defendant was an authorised driver.

On 2.1.2019 at about 5.30 pm, an accident occurred at a machinery store in Simpang Pulai, Ipoh, Perak, involving excavator No. WC 2921 S (“the excavator”). At the material time, the excavator was being operated by the 2nd Defendant. According to the 2nd Defendant police report, he was manoeuvring the excavator to make way for a lorry when he heard a sound from beneath the machine and discovered that the 3rd Defendant, his co-worker, had been run over by the excavator. The 3rd Defendant sustained injuries and was subsequently taken to Hospital Raja Permaisuri Bainun for treatment.

It is not disputed that: i) the 3rd Defendant was an employee of the 1st Defendant; and ii) The excavator was driven or operated by the 2nd Defendant, who was an authorised driver under the policy issued by the Plaintiff to the 1st Defendant.

Following the accident, the 3rd Defendant commenced proceedings against the 1st Defendant and 2nd Defendant in the Ipoh Sessions Court vide Civil Suit No. AA-A53-3-04/2021, claiming for the injuries and losses arising from the said accident.

The Plaintiff thereafter filed the present application seeking declaratory relief prior to any liability being imposed pursuant to section 96(3) of the Road Transport Act 1987. B]

The Plaintiff submissions are summarised as follows: i) Clause 6(b) of the policy excludes liability for bodily injury sustained by a person arising out of and in the course of his employment; Page 5 of 30 ii) The exclusion is expressly permitted by section 91(1)(b)(aa) of the RTA 1987; iii) The Federal Court in Iskandar bin Mohd Nuli v. AmGeneral Insurance Berhad [2017] 5 MLJ 25 confirms that an insurer is not liable for risks it has not undertaken; and iv) The accident did not occur on a “road”, and therefore the statutory regime under the RTA 1987 does not apply. C]

The 3rd Defendant’s submissions are summarised as follows: i) The policy covers the 2nd Defendant an authorised driver; ii) The exclusion clause should not defeat the statutory protection afforded under the RTA 1987; and iii) Reliance is placed on Malaysian Motor Insurance Pool v. Tirumeniyar Singara Veloo [2019] 10 CLJ 731 and the Court of Appeal decision in Lailin Sinin v. Zurich General Takaful Malaysia Berhad & Ors (Appeal No: W-O2(NCCJ(A)-1395-09/2023) to contend that the RTA 1987 applies and that the accident location constitutes a “road” under section 2. Page 6 of 30 D]

The issues for determination are: i) whether the Plaintiff is entitled to rely on the exclusion clause in the policy to avoid liability; and ii) whether the accident occurred on a “road” within the meaning of section 2 of the RTA 1987. E] ISSUE 1: CONSTRUCTION OF THE POLICY AND

Under Section B of the policy (Enclosure 30), the Plaintiff undertakes to indemnify the insured and the authorised driver, subject to the exclusions in Clause 6.

Section B, Clause 1 on liabilities to Third Parties and Section B, Clause 6 on Exclusions to Section B of the Plaintiff’s policy provide as follows: “SECTION B: LIABILITY TO THIRD PARTIES

We will Indemnify You or Your authorized, driver lor the amount which You or Your authorised driver are legally liable to pay (including claimants' costs and expenses) for accident caused by or arising out of the use of the use of Your Vehicle or in connection with the loading or unloading therefrom for:-

death or bodily injury to any person except these specifically excluded under Exceptions to Section B.

damage to property as a result of an accident arising out of the use of Your Vehicle provided Your authorised driver also complies with all the terms and conditions of the policy that You are subject to.” …….

Exceptions to Section B We will NOT pay for:

…..

death or bodily injury to any person where such death or injury arises out of and in the course of the employment of such person by You or by Your authorized driver.” (emphasis added)

Clause 6(b) excludes liability for bodily injury arising out of and in the course of employment of such person by “You or Your authorised driver”.

It is not disputed, the 3rd Defendant was an employee of the 1st Defendant and was injured in the course of his employment. The exclusion therefore directly applies.

As a matter of law, an insurer is entitled to define the scope of the risks it undertakes, subject to statutory requirements.

This principle is affirmed by the Federal Court in Iskandar (supra), where it was held that an insurer cannot be rendered liable for a risk it has not agreed to insure and where liability is expressly excluded, the courts will not rewrite the contract. The Federal Court held as follows: “[11] To encapsulate, Zuraini would be unable to enforce the consent judgment she has obtained against the respondent as the policy issued does not include, cover for passenger liability and no liability would ensue. The extent to which an insurer under a motor insurance policy would be liable under the said policy was considered by the Privy Council when hearing an appeal from Malaysia in Bankers and Traders Insurance Co Ltd v National Insurance Co Ltd [1985] 1 WLR 734 wherein Their Lordships decided that an insurer could not be rendered liable in law for a liability which he had not agreed to insure under the terms of the policy. If the liability was expressly excluded by the terms of the policy the insurers were not liable. This proposition was adopted in the case of Tan Chik bin Ibrahim v Safety Life & General Insurance Sdn Bhd [1987] 1 MLJ 217 and we refer to the judgment of CJ Borneo Lee Hin Hoe (as he then was) at p 220 para A-C right hand column refers and we quote and agree: In our view, the word ’liability’ used in s 80(1) of the Ordinance means ‘liability covered by the term of the policy’. Moreover, the Page 9 of 30 right of the third party to enforce a judgment given against an insured person is a right given to him by statute and not under the common law. As such the right of the third party is subject to the terms and conditions of the insurance policy. (See Austin v Zurich General Accident and Liability Insurance Co Ltd) and the relevant provisions of the statute, viz s 80 of the Ordinance). It is also important that s 80 of the Ordinance should be interpreted subject to s 10(1) and (2) of the Civil Law Act 1956 in order to bring it in harmony with the development of the law. (Emphasis added.)” (emphasis added)

Section 91(1)(b)(aa) of the RTA 1987 expressly provides that a policy is not required to cover liability in respect of bodily injury sustained by a person arising out of and in the course of his employment. Section 91(1) is reproduced below: “(1) In order to comply with the requirements of this Part, a policy of insurance must be a policy which-

is issued by a person who is an authorised insurer within the meaning of this Part; and

insures such person, or class of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person Page 10 of 30 caused by or arising out of the use of the motor vehicle or land implement drawn thereby on a road: Provided that such policy shall not be required to cover- (aa) liability in respect of the death arising out of and in the course of his employment of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment; or (bb) except in the case of a motor vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, liability in respect of the death of or bodily injury to persons being carried in or upon or entering or getting onto or alighting from the motor vehicle at the time of the occurrence of the event out of which the claims arise; or

(cc) any contractual liability.” (emphasis added)

Accordingly, such exclusion clauses are not prohibited but are expressly permitted by statute.

The wording “by You or Your authorised driver” in Clause 6(b) extends the exclusion to employees of both the insured and Page 11 of 30 the authorised driver. This falls squarely within the statutory permission under section 91(1)(b)(aa).

The 3rd Defendant relied on the Federal Court decision in Tirumeniyar (supra) to contend that the policy provides coverage on the basis that the 2nd Defendant was an authorised driver. In particular, the 3rd Defendant relied on the proposition that where a policy extends coverage to an authorised driver, it gives rise to two separate and independent contracts of indemnity - one between the insurer and the policyholder, and another between the insurer and the authorised driver - such that an exclusion applicable to the insured does not necessarily apply to the authorised driver. The 3rd Defendant relied on the following passages from Tirumeniyar (supra): “The Position Of The English Common Law [28] Before examining the English authorities on this issue, we think it necessary to set out the relevant provisions of the UK Road Traffic Act 1930, which was the law in force at the time these cases were decided. ……. [36] Principally, the English Court of Appeal was of the view that based on the wording of the policy (which is almost identical to the wording in the instant insurance policy) there were two separate contracts of coverage. One in respect of the policyholder and another in respect of Page 12 of 30 the authorised driver. Since the injured person was not an employee of the authorised driver, the injured person was therefore not excluded from coverage vis-a-vis the authorised driver.” ….. [44] The net result of Their Lordships’ construction indicated that they considered the relevant clause in the insurance policy in that case as creating a separate contract between the authorised driver and the insurer. In fact, Lord Wright opined that there was as between the authorised driver and the insurer a ‘new contract’. And to Lord Porter, these separate contracts are simply manifested in that one document called the insurance policy.” (emphasis added)

However, I agree with the Plaintiff that such reliance is misplaced when the policy is properly construed. The Federal Court in Tirumeniyar (supra) did not lay down any absolute rule that the involvement of an authorised driver automatically gives rise to coverage notwithstanding an applicable exclusion. Rather, the Federal Court emphasised that the outcome depends on the precise wording of the policy in question, and that each policy must be read carefully in accordance with its terms.

In this regard, Tirumeniyar (supra) is distinguished on the basis of the policy wording. In Tirumeniyar (supra), the Page 13 of 30 exclusion clause was confined to injuries sustained by a person in the employment of the insured. The relevant provision of the insurance policy in Tirumeniyar (supra) is reproduced below: “SECTION II - LIABILITY TO THIRD PARTIES

The Pool will subject to the Limits of Liability indemnify the Insured in the event of accident caused or arising out of the use of the Motor Vehicle or in connection with the loading or unloading of the Motor Vehicle against all sums including claimant’s costs and expenses which the Insured shall become legally liable to pay in respect of

death of or bodily injury to any person

damage to property

In terms of and subject to the limitations of and for the purposes of this Section the Pool will indemnify any Authorised Driver who is driving the Motor Vehicle provided that such Authorised Driver

shall as though he were the Insured observe and fulfil and be subject to the Terms of this Policy insofar as they can apply

(ii) is not entitled to Indemnity under any other policy... EXCEPTIONS TO SECTION II The Pool shall not be liable in respect of … Page 14 of 30

(ii) death of or bodily injury to any person in the employment of the Insured arising out of and in the course of such employment

(iii) death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon entering or getting on to or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises ... (emphasis added)” (emphasis added)

It is apparent from the above that the “Liability to Third Parties” provision in the policy in Tirumeniyar (supra) is materially different from that in the present case (see paragraph 14 above). In particular, the policy in Tirumeniyar (supra) does not contain the qualifying words “by You or Your Authorised Driver”, whereas the Plaintiff’s policy in the present case expressly does so.

Therefore, by contrast, in the present case, Clause 6(b) expressly excludes liability for bodily injury arising out of and in the course of employment “by You or Your authorised driver”. This broader formulation brings the present case squarely within the exclusion, even if the 2nd Defendant is treated as an authorised driver.

Further, Clause 6(b) mirrors the statutory position under section 91(1)(b)(aa) of the Road Transport Act 1987, which expressly permits exclusion of liability in respect of employees Page 15 of 30 injured in the course of employment. The policy therefore does not attempt to avoid the statutory scheme, but instead adopts it.

Finally, it bears emphasis that the Federal Court in Tirumeniyar (supra), at paragraphs 107 and 108 of its judgment, expressly rejected the Court of Appeal’s characterisation of the policy as giving rise to “two contracts of insurance”, holding that such an approach was erroneous and misconceived. The relevant passages of the Federal Court in Tirumeniyar (supra) are reproduced below: “Conclusion [107] In conclusion, we are constrained to agree with the Court of Appeal when it allowed the appeal of the plaintiff and set aside the decision of the High Court. We are however of the view that the Court of Appeal’s observation that “It is now well established that the terms of the insurance policy under consideration has at least two contract of insurance ... To put it in simple terms, one contract is to cover the mandatory coverage requirement under the RTA and the other contract to cover the common law liability to some extent”, is not an accurate statement of the law in this area. [108] In light of what we have already stated, there is no such thing as a ‘common law liability’ in this context. The insurance policy and its exceptions are both modelled after the RTA. All liability is therefore contractual and read subject to the statutory provisions in the RTA. Page 16 of 30 The common law is applicable in so far as it has interpreted those provisions of the RTA (which is for the most part in pari materia with the relevant law in UK and Singapore) and to the extent that the insurance policy herein was substantially the same as those in the said English, Singaporean, and Malaysian decisions. This is not to say that there exists some sort of common law ‘liability’. [109] As for the leave question, we are mindful of the words of Gunn SCJ in Lim Eng Yew ‘it is therefore necessary in each case to examine the wording of the policy in question’. In view of what we have said thus far it unnecessary for us to answer the leave question.” (emphasis added)

Accordingly, even accepting the 3rd Defendant’s reliance on the “two contracts” analysis in Tirumeniyar (supra), that analysis does not support the 3rd Defendant’s case in the present application. This is because the policy here expressly extends the employment exclusion to cover both the insured and the authorised driver. In such circumstances, there is no separate avenue of coverage available through the authorised driver.

In this regard, in the recent case, The Pacific Insurance Berhad v. MSM Food Industries Sdn Bhd & Ors [2024] CLJU 270, the High Court applied the Federal Court decision in Tirumeniyar (supra). In that case, the High Court emphasised that the question of whether an insurer is liable Page 17 of 30 where an authorised driver is involved depends on the specific wording of the policy, and that Tirumeniyar (supra) does not lay down any general rule that coverage must be afforded in all such situations. The Court in MSM Food Industries (supra) recognised that where the exclusion clause is drafted more broadly - including in respect of employees connected to the authorised driver — the insurer is entitled to rely on such exclusion.

For these reasons, Tirumeniyar (supra) does not assist the 3rd Defendant, and the Plaintiff is entitled to rely on Clause 6(b) to exclude liability.

Further, I am of the view that it is helpful to consider the purpose underlying both the statutory scheme and the policy exclusion. The compulsory motor insurance regime under the Road Transport Act 1987 is intended to protect third parties involved in road traffic accidents. However, the Act expressly provides that a policy need not cover liability for injury or death arising out of and in the course of employment (see section 91(1)(b)(aa) of the RTA 1987).

This reflects a clear distinction: an employee injured in the course of employment is ordinarily covered under the employment framework, whereas motor insurance is meant to protect third parties under the RTA 1987 framework.

In this light, it is both logical and commercially sensible for an insurer to exclude claims by an employee of the insured, even if such claim is framed as a third party claim. To allow such a claim would blur the distinction between these two forms of protection and may give rise to overlapping or double recovery for the same injury.

In the present case, the 3rd Defendant, as an employee of the 1st Defendant, has recourse to remedies arising from his employment. However, he is not entitled, on the facts and the terms of the policy in the present case, to invoke the statutory protection under the Road Transport Act 1987 where the policy, consistently with section 91(1)(b)(aa), expressly excludes such liability. To hold otherwise would undermine the contractual allocation of risk and potentially permit overlapping recovery in respect of the same injury.

Accordingly, where the injured party in a motor vehicle accident is an employee acting in the course of his employment, his recourse will ordinarily lie within the employment framework, and any claim under a motor insurance policy of his employer must depend on the terms of that policy. This is consistent with the principle in Tirumeniyar (supra), where the Federal Court rejected the proposition that one contract serves to satisfy the mandatory requirements under the Road Transport Act 1987 while a separate contract independently covers common law liability. The Court emphasised that such a formulation is not an accurate Page 19 of 30 statement of the law, and that the insurer’s liability must ultimately be determined by the terms of the policy, including any applicable exclusions. F] ISSUE 2: WHETHER THE ACCIDENT OCCURRED ON A “ROAD”

The Plaintiff contends that the accident did not occur on a “road” within the meaning of section 2 of the RTA 1987 and therefore is not covered under the policy.

The policy adopts the definition of “road” under section 2 RTA 1987, which provides as follows: "road" means –

any public road and other road to which the public has access and includes bridges, tunnels, lay-bys, ferry facilities, interchanges, roundabouts, traffic islands, road dividers, all traffic lanes, acceleration lanes, deceleration lanes, side-tables, media strips, overpasses, underpasses, approaches, entrance and exit ramps, toll plazas, service areas and other structures and fixtures to fully effect its use;

for the purposes of sessions 70 and 85, also includes a road under construction; and

for the purpose of sections 41, 42, 43, 44, 45, and 45A, also includes a parking place.” (emphasis added)

The requirements that must be fulfilled for an insurance policy to be issued are set out in section 91(1) RTA 1987, which provides as follows: “91. Requirements in respect of policies.

In order to comply with the requirements of this Part, a policy of insurance must be a policy which—

is issued by a person who is an authorized insurer within the meaning of this Part; and

insures such person, or class of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle or land implement drawn thereby on a road:” (emphasis added)

The term “use” under Section 2 means “use on any road”.

This means that it is a specific requirement under section 91 of the RTA 1987 that the insurance policy issued must cover the insured in respect of liability “caused by or arising out of the use of” the insured vehicle “on a road” (see the Law of Motor Insurance by S. Santhana Dass at paragraph 2.8).

In the following cases, the Courts have held that the following do not constitute a “road” within the meaning of section 2 of the RTA 1987 (and its equivalent provisions): i) a highway which has not yet been opened for public use (Yap Weng Ken & Anor v. Mohd Hero & Ors [2018] MLJU 109); ii) a gated construction site which is not accessible to or used by the general public (RHB Insurance Bhd v. Twe Lai Poh (trading in the name and style of ‘Twe Lai Poh’) & Ors) [2022] MLJU 3070); iii) a private road a road which had an obstruction and is not open to the public (AmGeneral Insurance Bhd v. Wakil Diri Kepada Harta Pusaka Amir Farris bin Ahmad, Simati dan satu lagi [2019] MLJU 2097); iv) car parks (Cutter v. Eagle Star Insurance Co Ltd; Clarke v. Kato and others [1998] 4 All ER 417); and Page 22 of 30 v) a forecourt, being an unpaved private area of land in front of the shop, situated between the premises and the public highway (Thomas v. Dando [1951] 2 KB 620).

The 3rd Defendant relied on the Court of Appeal decision in Lailin Sinin v. Zurich General Takaful Malaysia Berhad & Ors (Appeal No: W-O2(NCCJ(A)-1395-09/2023), which overruled Zurich General Insurance Malaysia Berhad v. Lailin Sinin & Anor & Another case [2024] CLJU 212. The Court of Appeal held that the road within the army camp (Kem Syed Sirajuddin) constituted a “road” within the meaning of the Road Transport Act 1987.

In light of the Court of Appeal’s decision in Lailin (supra), there appear to be two Court of Appeal decisions which define “road” under the RTA 1987 differently. The other is Twe Lai Poh (supra), a High Court decision upheld on appeal. In Zurich General (supra), which was subsequently reversed in Lailin (supra), the Court had applied Twe Lai Poh (supra) and the earlier cases referred to in paragraph 42 above.

In Twe Lai Poh (supra), the Court held: “[20] Based on above authorities, it is clear that for a place to qualify as a 'road’, it must fulfill the following criteria:

has a physical character of a defined or definable route;

(ii) it is used as a means of access and open to the general public; and

(iii) it connects from one place to another.

The 3rd Defendant further relied on the decision in Gopal Nagaiah v. Am General Insurance Berhad [2015] 1 CLJ 118; [2015] 2 MLRH 191 to submit that the term “road” under the Road Transport Act 1987 should be given a broad and functional interpretation. In this regard, it was contended that a location does not cease to be a “road” merely because it is situated within a private or restricted area, and that the critical consideration is whether the place is used for vehicular movement as a means of passage. On that basis, the 3rd Defendant submitted that the accident location in the present case falls within the meaning of a “road” notwithstanding any limitation on access.

Gopal Nagaiah (supra) was cited and applied in Lailin (supra).

Having given due consideration to the above authorities, I do not find that the Court of Appeal decision in Lailin (supra) assists the 3rd Defendant’s arguments on this issue. This is because in its Broad Grounds of Judgment the Court of Appeal held that the accident location within Kem Syed Sirajuddin constituted a “road” under the Road Transport Act 1987 because two critical factual elements were established: Page 24 of 30 i) First, there existed a definable and identifiable road system within the camp, including a named road, supported by the evidence demonstrating a route connecting one point to another. ii) Secondly, the Court of Appeal found that members of the public had access to the location, albeit with express or implied permission. Army personnel, their families, visitors, and persons with legitimate business dealings were permitted entry. Army personnel, their families, visitors, and persons with legitimate business dealings were permitted entry. The Court emphasised that public access need not be open, absolute, or unrestricted, and adopted the approach in Gopal Nagaiah (supra) that permission-based access is sufficient, provided it is established on the evidence.

In this regard the Court of Appeal in Lailin (supra) held as follows: “[14] In our view however, it is clear from the judgment of the Court in Gopal Nagaiah that the element of public access was considered as a requirement that must be fulfilled. And this is perfectly understandable because it is part of the definition of "road" under the RTA 1987 anyway. For context, the High Court in Gopal Nagaiah stated that we need only to determine if it is a public road or any other road to which the public has access. The moment it can be shown that Page 25 of 30 the public has access to it, it does not matter that ordinarily the road is a private road maintained by private persons. [15] Importantly, a more careful scrutiny of the analysis made by the Court in Gopal Nagaiah will reveal that the element of public access accepted and applied by the Court in that case was not in terms of access which is absolutely or unconditionally open to the public but in that case was access which is dependent on consent or fulfilment of certain conditions. … “ ……. [17] In the appeals before us, army personnel and their families reside in the area. They must have had the permission, express or implied to be in the area, and with that the right to be there. There is a road system in the camp. There is even a name for the road on which the accident occurred. Surely even if this is not a public road, it cannot be a road where the public have no access to. We reiterate that with the requisite permission, the general public could still have access to Kern Syed Sirajuddin, even if it is argued that the army camp is a protected area.” (emphasis added)

The facts of the present case are materially distinguishable to Lailin (supra) for the following reasons: Page 26 of 30 i) The accident occurred within a machinery storage and worksite area. There is no evidence of any identifiable road or road system, or even a named road. This is evident from the 3rd Defendant’s own averment in his Affidavit in Reply (Enclosure 3), where he stated at paragraph 3: “Merujuk kepada perenggan 3 Afidavit Sokongan Plaintif tersebut, saya mengatakan saya telah terlibat dalam suatu kemalangan yang melibatkan m/excavator No. WC 2921 S yang dipandu oleh Defendan Kedua pada 2/1/2019 lebih kurang 5.30 p.m. di sepanjang suatu jalan tidak bertar di mana terletaknya stor menyimpan mesin Defendan Pertama di Simpang Pulai, Ipoh, Perak. Stor simpan mesin ini adalah sebenarnya kontena-kontena di mana mesin-mesin kecil serta alat-alat ganti disimpan dan kontena ini adalah terletak di kawasan terbuka di tepi jalan tidak bertar tersebut. (own emphasis added) ii) The 3rd Defendant did not state whether he had permission to be at the area where the accident occurred. In any event, even if such permission (whether express or implied) is assumed, the area where the accident occurred cannot be described as a “road system” as contemplated in Lailin (supra), namely one which “connects from one place to another” (Twe Lai Poh (supra)). The 3rd Defendant’s description of the area, as set out above (paragraph 51 Enclosure 3), is Page 27 of 30 consistent with that stated in his police report dated 9.1.2019.

Accordingly, the facts of the present case are similar to those in Yap Weng Ken (supra), Twe Lai Poh (supra), and AmGeneral Insurance Bhd v. Wakil Diri Kepada Harta Pusaka Amir Farris bin Ahmad (supra), where the locations in question were not open to the public and did not constitute “roads” within the meaning of the Road Transport Act 1987. In particular, Twe Lai Poh (supra) which case involved a construction site with restricted access.

In the circumstances, I find that the accident location in the present case does not fall within the meaning of a “road” under section 2 of the Road Transport Act 1987. G]

Based on the aforesaid, I find that the Plaintiff is entitled to rely on Clause 6(b) of the policy, which excludes liability in respect of bodily injury sustained by the 3rd Defendant in the course of his employment.

I further find that the accident did not occur on a “road” within the meaning of section 2 of the Road Transport Act 1987, and accordingly the statutory regime under the Act is not engaged.

In any event, even if I am mistaken on either of the above findings, the other is sufficient to dispose of the 3rd Defendant’s claim against the Plaintiff.

For the reasons stated above, the Plaintiff’s application in Enclosure 1 is allowed with no order as to costs. Dated this 24th day of April, 2026 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Page 29 of 30 COUNSEL FOR THE PLAINTIFF : Samreet Singh Sagoo Messrs Lovelace & Hastings Unit 5-2, 5th Floor, Wisma Bandar, No. 18, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur Tel: 03-2698 1166 Email: kl@lovelacehastings.com COUNSEL FOR THE 3RD DEFENDANT : Harbans Singh a/l Budh Singh (Azmah Hanim Binti Abd Aziz together with him) Messrs Gurdev Dalgit Su & Co. No. 1, Jaln Dato’ Sagor, 30000 Ipoh, Perak Tel: 05-2544 636 Email: gurdevdalgitsu@yahoo.com LEGISLATION / RULES CITED Road Transport Act 1987 ▪ Section 2 ▪ Section 91(1); 91(1)(b)(aa) ▪ Section 96(3)

AmGeneral Insurance Bhd v. Wakil Diri Kepada Harta Pusaka Amir Farris bin Ahmad, Simati dan satu lagi [2019] MLJU 2097

Cutter v. Eagle Star Insurance Co Ltd; Clarke v. Kato and others [1998] 4 All ER 417

Gopal Nagaiah v. Am General Insurance Berhad [2015] 1 CLJ 118; [2015] 2 MLRH 191

Iskandar bin Mohd Nuli v. AmGeneral Insurance Berhad [2017]

Malaysian Motor Insurance Pool v. Tirumeniyar Singara Veloo [2019] 10 CLJ 731

RHB Insurance Bhd v. Twe Lai Poh (trading in the name and style of ‘Twe Lai Poh’) & Ors) [2022] MLJU 3070

The Pacific Insurance Berhad v. MSM Food Industries Sdn Bhd & Ors [2024] CLJU 270

Thomas v. Dando [1951] 2 KB 620

Yap Weng Ken & Anor v. Mohd Hero & Ors [2018] MLJU 109

Zurich General Insurance Malaysia Berhad v. Lailin Sinin & Anor & Another case [2024] CLJU 212