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DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU

DI DALAM NEGERI JOHOR DARUL TA’ZIM


SAMAN PEMULA NO. (MT-1) 24-2642-2006

Dalam perkara Perjanjian Sewa-Beli bertarikh 15.12.2005

Dan

Dalam perkara Polisi Insurans (cover-note) oleh Kurnia


Insurans (Malaysia) Berhad bertarikh 03.02.2005

Dan

Dalam perkara motorcar nombor berdaftar JHX 3685

Dan

Dalam perkara Akta Insurans

Dan

Dalam perkara Akta Sewa-Beli dan Peraturan, 1967

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ANTARA

TAN KOK HOE


… PLAINTIF

DAN

KURNIA INSURANS (M) BERHAD


… DEFENDAN

DI DALAM KAMAR
DI HADAPAN Y.A. TUAN VERNON ONG LAM KIAT
PESURUHJAYA KEHAKIMAN

GROUNDS OF JUDGMENT
 

In February 2005 the plaintiff “Tan” purchased a new motor car


(Mercedez Benz E200K) for RM460,373.60 from N.Z.Wheels Sdn Bhd.
The car was registered in Tan’s name on 5.2.2005. To finance his
purchase Tan entered into a hire purchase agreement with Public Bank
Bhd on 15.2.2005. Tan was required to take up a policy of insurance to
insure his car against fire, theft and other risks. Tan took up a policy of
insurance on 3.2.2005 for RM450,000.00. The premium of RM12,434.00
was also paid. In acknowledgement thereof the defendant (Kurnia
Insurans) issued to Tan a ‘Confirmation Of Purchase Of Insurance Slip”
(Cover Note) on 3.2.2005. On 25.2.2005 Tan’s car was lost and he lodged
a police report at the Masai police station. On 6.4.2005 Tan submitted a
claim form to Kurnia Insurans.

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Kurnia Insurans is not disputing Tan’s claim under the insurance
policy. The only issue of contention is the quantum to be paid out to Tan.
Tan is claiming for the sum of RM450,000.00. Learned counsel for Kurnia
Insurans submitted that the compensation payable is equivalent to the
market value of the car according to the ‘Private Car Policy” (exhibit ‘TYK-
1’) On the other hand, Tan contends that the compensation is the sum
insured, i.e., RM450,000.00.

The issues to be determined in this case are as follows:


(i) Whether the terms and conditions of the ‘Private Car Policy’ are
applicable?
(ii) Whether the compensation payable is the insured value or the market
price?
(iii) Whether interest should be awarded on the compensation calculated
with effect from the date of the Originating Summons or from the date
of loss?

Findings of the Court


(i) Whether the terms and conditions of the ‘Private Car Policy’ are
applicable?
The Cover Note makes no mention or reference to the Private Car
Policy. Kurnia Insurans did not issue a policy of insurance to Tan. There is
no evidence to show that the Private Car Policy is applicable to the Cover
Note or to the insurance taken up by Tan. There is also no evidence that
the policy of insurance of the Private Car Policy have been served on Tan
or brought to Tan’s attention and knowledge. In the premises, the terms
and conditions of the Private Car Policy cannot be inferred into the policy of
insurance taken up by Tan. The terms and condition of the Private Car
Policy are therefore not applicable.

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(ii) Whether the compensation payable is the insured value or the
market price?
Based on the above findings, the amount payable is the sum insured
stated in the Cover Note and that is RM450,000.00 (see Supreme QBE
Insurance Berhad v Foo Yin Toh [1987] 2 CLJ 466 (CA); Allianz General
Insurance Malaysia Bhd v Navis Shim Lee Hiong [2004] 1 MLJ 437 (CA);
Chop Eng Thye Co. v Malaysia National Insurance Sdn Bhd [1977] 1 MLJ
161).

(iii) Whether interest should be awarded on the compensation


calculated with effect from the date of the Originating Summons or
from the date of loss?
The claim on the policy of insurance is not in dispute. The Cover
Note was issued by Kurnia Insurans. There is no reference in the Cover
Note to the terms and conditions of the Private Car Policy. In the premises
Kurnia Insurans is bound to honour its obligations on the terms contained in
the Cover Note. The Cover Note stipulates the sum insured as
RM450,000.00 and it is this sum which must be paid within a reasonable
time after a claim is made. Kurnia Insurans’ refusal to pay the said sum is
contrary to the terms and conditions of the Cover Note. Having regard to
the total circumstances of the case it is the Court’s view that interest on the
judgment sum should be calculated with effect from the date of the loss
(see Wong Cheong Kong Sdn Bhd v Prudential Assurance Sdn Bhd [1998]
1 CLJ 916).

For the reasons adumbrated above the Court granted an order in terms of
prayers (1), (2) and (3) of enclosure 3.

(VERNON ONG LAM KIAT)


JUDICIAL COMMISSIONER
HIGH COURT MALAYA
JOHOR BAHRU
DATED : 25TH MARCH, 2009.
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COUNSEL

K.M. Ong - Tetuan K.M. Ong, Lee & Co., Johor Bahru – for Plaintiff.

Maizun – Tetuan Aru Anita & Associates, Kluang, Johor – for Defendant.

VO-nk-24-2642-2006/2009/mj/nb

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