A three-member bench chaired by Justice Wong Kian Kheong ruled that the policy could not be enforced under Sections 91(1)(aa) and (bb) of the Road Transport Act 1987 (RTA) and Clauses 6(b) and (c) in Section B of the policy for a claim due to death or personal injury.
In dismissing an appeal by Amir Danial Roslan, Wong said the High Court was right in granting a declaration sought by AXA Affin General Insurance Bhd that it would not be liable for any judgment obtained by the appellant.
Justices Alwi Abdul Wahab and Ahmad Kamal Shahid also heard the appeal.
The accident involving two lorries occurred at KM301.7 of the North-South Expressway near Ipoh, Perak, on Jan 16, 2019. Amir was the attendant in the lorry driven by Musa Yaman.
The vehicle owner, Anuar Sani, who operates a transport business under the name Medigo Consultancy and Services, had taken out insurance coverage with AXA Affin, now known as Generali Insurance Malaysia Bhd.
In the road accident, Amir sustained serious injuries to his head and body which led to the amputation of his left arm.
Amir, 24, filed a RM5 million negligence suit against Anuar, Musa, and the other lorry owner and driver in the Ipoh sessions court in July 2020. He also asked the court to award him compensation for the purchase of a prosthetic arm and loss of earnings.
AXA Affin intervened and obtained a stay of proceedings in the sessions court.
The insurance company also filed an originating summons in the High Court in Kuala Lumpur to seek a declaratory order under Section 96(3) of the RTA, which it obtained in 2022. The company said that the policy could not be enforced and/or did not cover Amir’s claim, and that it would not be liable for any judgments obtained by him.
Amir then filed an appeal in the Court of Appeal.
It is understood that Amir still has the option to file a claim against Anuar and Musa in their personal capacities, while the suit against the other lorry owner and driver may proceed.
Lawyers Harjit Singh and Rosshatika Abdul Rahman represented Amir, while CM Maran and Kee Wei Liang acted for the insurance company.