High Court rules that the policy was issued at 3.49pm on Dec 23, 2022, when a police report stated that the accident occurred at 3.45pm.
The High Court has allowed a declaration sought by an insurance company to invalidate a motor insurance policy as it was purchased directly after an accident.
Justice Atan Mustaffa Yussof Ahmad said Etiqa General Takaful Bhd was not liable for satisfying claims arising from the accident in 2022.
The judge said the policy was issued at 3.49pm on Dec 23, 2022, but that the victim of the accident, motorcyclist Afiq Ahmad, filed a police report stating that the mishap happened at 3.45pm the same day.
“We have contemporaneous documentary evidence establishing the critical timeline. The testimony of the first defendant (Khairul Irman Zin) and second defendant (Nurul Azera Ahmad) cannot alter these objective facts about timing,” he said in his 24-page judgment.
Khairul, the owner of the car, obtained the policy from Etiqa while Azera was driving the vehicle at the time of the accident with Afiq.
Afiq’s lawyer S Ganesh submitted that the policy should be deemed to have taken effect from midnight of Dec 23, 2022, by default, which the court disagreed with.
Atan said there was no evidence Etiqa was made aware that an accident had already occurred earlier that day.
The judge said it would be unreasonable to expect Etiqa to routinely ask each and every proposer about same-day accidents before issuing vehicle insurance policies.
Etiqa was entitled to rely on Khairul’s implied representation that the vehicle was not tainted by any prior mishaps, he said.
“I hold that Etiqa has not waived its entitlement to void the policy for pre-contractual non-disclosure, and its omission to ask about a pre-existing accident does not preclude the present application to void the policy under Section 96(3) of the Road Transport Act 1987,” he said.
The judge said the existence of this provision demonstrated that Parliament had envisioned situations where an insurer’s contractual rights would take precedence over a third-party claimant.
In any event, Atan said, voiding this policy would not leave Afiq without any remedy as he would still have an avenue to pursue his claim directly against Khairul and Azera as the culpable tortfeasors.
He said Afiq could not claim the benefit of the vitiated policy.
The accident occurred on Dec 22. Five days later, Afiq filed a police report in Shah Alam, saying the accident occurred at 3.45pm.
The same day, Azera filed a report to state that the accident occurred at 3.45pm, but she later amended it to say it happened at 2.47pm.
Etiqa appointed an adjuster to investigate the circumstances of the accident. During the investigation, the adjuster obtained photographs from Azera and Afiq.
Azera sent two photographs of the motorcycle with the adjuster via WhatsApp at 2.45pm on Dec 23, 2022. Afiq sent photographs of his injuries via WhatsApp at 3.32pm the same day.
Afiq had filed a negligence suit against Khairul and Azera.
Etiqa, represented by Sean Denis, proceeded to file an originating summons seeking declarations that the insurance policy was void and unenforceable, and that it was not liable to satisfy any claims arising from the accident.
Khairul and Azera did not appear at the hearing despite being served with notices.
