Fresh Notice Not Required For Refiled Motor Negligence Suit Court Rules

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The Court of Appeal has ruled that Liberty Insurance must honour a judgment obtained by Fayadh Abdul Gaffor and his parents over an accident 10 years ago.PUTRAJAYA: The Court of Appeal has ruled that an insurer is not entitled to fresh notice of proceedings under the Road Transport Act 1987 (RTA) if a claimant is required to refile his suit in a motor negligence claim.
Justice Wong Kian Kheong said although there is no privity of contract, the insurer has statutory liability for a judgment by virtue of Section 96(1) of the Road Transport Act 1987 (RTA).
He said the insurer’s statutory liability is fortified by the long title of the RTA, which is “to make provision for the protection of third parties against risks arising out of the use of motor vehicles”.
“It is hoped that the insurer’s statutory liability (will not be) circumvented when an insurer already has knowledge of a negligence suit which may be filed by a claimant against an insured,” he said when allowing an appeal by accident victim Fayadh Abdul Gaffor and his parents.
Also on the bench hearing the appeal were Justices Kamaludin Said, who chaired the panel, and Hashim Hamzah.
In a 50-page judgment released earlier this week, Wong noted the Court of Appeal had, in a previous decision, described the RTA as a piece of social legislation.
As such, he said, the phrase “notice of the proceedings” in Section 96(2)(a) of the RTA must refer to an insurer’s knowledge of a claimant’s suit.
“In view of our interpretation of Sections 96(1) and 96(2)(a), the learned High Court judge had committed an error of law which has caused an injustice to the claimants and warrants appellate intervention,” he said.
On June 28, 2014, Fayadh, then 18, was riding a motorcycle in Paya Terubong, Penang, when he collided with a car driven by Sakri Muhamad whose vehicle was insured by Liberty Insurance Bhd.
Fayadh suffered severe injuries and permanent disabilities.
His solicitors filed a suit against Sakri in 2015 and served notice of it on Liberty, receipt of which was duly acknowledged.
The suit was withdrawn in the sessions court, but with the liberty to file afresh.
A second suit was filed by Fayadh’s lawyers in 2020, but no fresh notice was served under Section 96(2)(a) of the RTA, although an email was sent to the insurer.
Liberty sought a declaration from the High Court that it was not liable on any judgment obtained by Fayadh against Sakri.
The High Court issued the declaration, holding that Section 96(2)(a) was a mandatory requirement which required notice of the second suit to be served “within seven days” of the commencement of the action.
The decision was reversed on appeal.
Lawyer K Saravana Kumar said Fayadh’s suit will be reinstated following the Court of Appeal’s decision.
Counsel GK Ganesan Kasinathan, Geetha Kesavan Nair, TP Vaani and JN Lheela also appeared for Fayadh.
Lawyers Imavathi Subramaniam, JS Naicker and Dhanaraj K Naidu represented Liberty. - FMT

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