620 Current Law Journal [2009] 3 CLJ

RAMLAH ABDULLAH A

v.

TALASCO INSURANCE SDN BHD & ANOR

COURT OF APPEAL, PUTRAJAYA B

JAMES FOONG JCA
ZALEHA ZAHARI JCA
KN SEGARA JCA
[CIVIL APPEAL NO: T-02-65-2006]
23 JANUARY 2009 C

CIVIL PROCEDURE: Res judicata - Finality of earlier decision -

Issue earlier decided in subordinate court - No appeal lodged against
decision - Subsequent attempt to relitigate issue in fresh action in the High
Court - Whether res judicata applicable D

EQUITY: Estoppel - Res judicata - Issue earlier decided in subordinate

court - No appeal lodged against decision - Subsequent attempt to relitigate
issue in fresh action in the High Court - Whether res judicata applicable

INSURANCE: Motor insurance - Motor Insurers’ Bureau - Uninsured E

driver - Action not instituted or pleaded against Motor Insurers’ Bureau
- Whether indemnity recoverable from Motor Insurer’s Bureau

TORT: Damages - Road accident - Uninsured driver - Action not

instituted or pleaded against Motor Insurers’ Bureau - Whether indemnity F
recoverable from Motor Insurer’s Bureau

TORT: Vicarious liability - Road accident - Whether vicarious liability

only confined to master and servant relationship - Whether vicarious
liability included acts of agent G

The appellant was seriously injured in an accident whilst traveling

in a car owned by Proton and insured by Talasco (‘the said car’).
The said car was meant for the use of a Proton executive. The
executive had lent the car to an acquaintance who had in turn
asked his brother – Wan Din – to drive the said car. The accident H

occurred whilst Wan Din was driving the said car. The appellant
sued Wan Din as driver and Proton as owner for damages in the
Sessions Court. The Sessions Court allowed the appellant’s claim
against Wan Din but dismissed the claim against Proton. The
appellant thereafter issued notice under s. 96(2) of the RTA to I

Talasco, as insurer of the said car and then filed a civil suit in the
High Court against Talasco to recover the judgment sum awarded
 Ramlah Abdullah v.
[2009] 3 CLJ Talasco Insurance Sdn Bhd & Anor 621

A in the Sessions Court. Talasco argued that it was not obliged to

settle the judgment sum as its policy did not cover Wan Din.
Proton, added as a third party also argued that as the claim
against it was dismissed, this implied that it was not vicariously
liable to the appellant for the negligent driving of Wan Din. The
B High Court dismissed the suit against Talasco and also dismissed
Talasco’s Third-Party claim against Proton with costs to be paid
by the appellant. The appellant also claimed an indemnity, albeit
unsuccessfully from the Motor Insurers’ Bureau (‘MIB’). The
appellant thus appealed to the Court of Appeal.
C
Held (dismissing the appeal)
Per James Foong JCA delivering the judgment of the court:

(1) The appellant’s pleaded case against Talasco was based solely
on s. 96(1) of the RTA. MIB was never included as a party
D
to the proceedings nor was the appellant’s claim framed
against MIB. If at all the appellant desired to claim against
MIB, she should have pleaded this and included MIB as a
party to the proceedings Ramli Shahdan & Anor v. Motor
Insurer’s Bureau of West Malaysia & Anor (refd).
E
(2) Vicarious liability is not confined to a master and servant
situation. It includes master and servant and/or agent. The
appellant had clearly pleaded that Wan Din was driving the
said car as Proton’s agent. Thus the Sessions Court’s finding
F that there was no vicarious liability on the part of Proton
meant that no order or permission was ever given by Proton
to Wan Din to drive the said car.
(3) Since the vicarious liability issue had been decided by the
G Sessions Court and there had been no appeal against the
decision, res judicata would apply. The policy of insurance
issued by Talasco to Proton was ineffective since it did not
cover Wan Din – a person driving without the order or
permission of the policyholder – Proton. Hartecon JV Sdn Bhd
H & Anor v. Hartela Contractors Ltd (folld)

Bahasa Malaysia Translation Of Headnotes

Sewaktu dalam perjalanan di dalam sebuah kereta Proton yang

diinsurankan oleh Talasco (“kereta tersebut”), pihak perayu telah
I terlibat di dalam suatu kemalangan dan mengalami kecederaan.
Kereta tersebut bertujuan untuk digunakan oleh eksekutif Proton.
Eksekutif tersebut telah meminjamkan kereta tersebut kepada
622 Current Law Journal [2009] 3 CLJ

seorang kenalannya dan kenalannya pula telah meminta saudara A

lelakinya – Wan Din – untuk memandu kereta tersebut.
Kemalangan berlaku sewaktu Wan Din memandu kereta tersebut.
Pihak perayu telah menyaman Wan Din sebagai pemandu dan
Proton sebagai tuanpunya untuk gantirugi di Mahkamah Sesyen.
Mahkamah Sesyen telah membenarkan tuntutan perayu terhadap B
Wan Din tetapi telah menolak tuntutannya terhadap Proton.
Perayu kemudiannya telah mengeluarkan notis di bawah s. 96(2)
Akta Pengangkutan Jalan terhadap Talasco, sebagai penginsuran
kereta tersebut dan kemudiannya telah memfailkan suatu guaman
sivil di Mahkamah Tinggi terhadap Talasco untuk mendapat jumlah C
penghakiman yang diawardkan di Mahkamah Sesyen. Talasco
mempertikaikan obligasinya untuk menyelesaikan jumlah penghakiman
tersebut atas alasan bahawa polisi mereka tidak merangkumi Wan
Din. Proton, sebagai pihak ketiga juga telah mempertikaikan
liabilitinya kepada perayu dengan mengatakan bahawa D
memandangkan tuntutan perayu terhadapnya telah ditolak,
implikasinya adalah bahawa mereka tidak bertanggungan secara
vikarius kepada perayu untuk kecuaian memandu Wan Din.
Mahkamah Tinggi telah menolak tuntutan terhadap Talasco dan
juga tuntutan pihak ketiga Talasco terhadap Proton dengan kos E
terhadap perayu. Perayu juga telah menuntut untuk tanggung rugi
daripada Biro Penanggung Insuran Kereta (‘MIB’) yang mana tidak
dibenarkan. Perayu kemudiannya telah membuat rayuan kepada
Mahkamah Rayuan.
F
Diputuskan (menolak rayuan perayu)
Oleh James Foong HMR menyampaikan penghakiman
mahkamah:

(1) Kes perayu terhadap Talasco hanya berdasarkan s. 96(1) Akta

G
Pengangkutan Jalan. MIB tidak pernah disertakan sebagai parti
kepada prosiding dan kes perayu tidak pernah ditujukan
kepada MIB. Sekiranya perayu bertujuan membuat tuntutan
terhadap MIB, ianya seharusnya memplidkan fakta ini dan
menyertakan MIB sebagai parti kepada prosiding Ramli
H
Shahdan & Anor v. Motor Insurer’s Bureau of West Malaysia &
Anor (dirujuk).

(2) Tanggungan vikarius tidak terhad kepada situasi yang

melibatkan hubungan majikan dan pekerja sahaja. Ianya
termasuk majikan dan pekerja dan/atau agen. Perayu telah I
memplidkan dengan jelas bahawa Wan Din telah memandu
kereta tersebut sebagai agen Proton. Maka keputusan
 Ramlah Abdullah v.
[2009] 3 CLJ Talasco Insurance Sdn Bhd & Anor 623

A Mahkamah Sesyen bahawa tiada tanggungan vikarius di pihak

Proton bermakna bahawa Proton tidak pernah memberi arahan
atau kebenaran kepada Wan Din untuk memandu kereta
tersebut.

B (3) Memandangkan bahawa isu tanggungan vikarius telahpun

diputuskan oleh Mahkamah Sesyen dan tiada rayuan difailkan
terhadap keputusan tersebut, prinsip res judicata terpakai. Polisi
insuran yang dikeluarkan oleh Talasco kepada Proton tidak
mempunyai kesan kerana ianya tidak merangkumi Wan Din –
C seorang yang telah memandu kereta tersebut tanpa kebenaran
pemegang polisi – Proton. Hartecon JV Sdn Bhd & Anor v.
Hartale Contractors Ltd (diikuti)
Case(s) referred to:
Hartecon JV Sdn Bhd & Anor v. Hartela Contractors Ltd [1997] 2 CLJ 104
D CA (foll)
Rafiah Bakar v. East West-UMI Insurance Bhd [1993] 1 CLJ 431 HC
(refd)
Ramli Shahdan & Anor v. Motor Insurer’s Bureau of West Malaysia & Anor
[2006] 1 CLJ 224 CA (refd)
E
Legislation referred to:
Road Transport Act 1987, ss. 90(1), 91(1)(b), 95, 96(1), (2)

For the appellant - Americk Sidhu; M/s Isharidah Ho Chong & Menon
For the 1st respondent - Mohd Fuad Husaini; M/s Othman Hashim & Co
F For the 2nd respondent - S Nantha Balan (Daya Nair with him); M/s Nik
Saghir & Ismail

[Appeal from High Court, Kuala Terengganu; Civil Suit No: 22-08-2000]

[Editor’s note: For the High Court judgment, please see Ramlah Abdullah lwn.
G Talasco Insurance Sdn Bhd; Perusahaan Otomobil Nasional Bhd (Pihak
Ketiga) [2007] 10 CLJ 674.]

Reported by Andrew Christopher Simon

JUDGMENT
H
James Foong JCA:

Introduction

[1] The High Court has dismissed the appellant’s recovery claim
I with costs against the 1st respondent (Talasco) made under
s. 96(1) of the Road Transport Act 1987 (RTA). It also dismissed
624 Current Law Journal [2009] 3 CLJ

Talasco’s third party claim against the 2nd respondent (Proton) A

with costs to be paid by the appellant. Dissatisfied with this
decision, the appellant appealed to us.

Background
B
[2] On 6 May 1989 the appellant was a passenger in a motor
car no. WBK 398. While it was travelling along the Kuantan –
Kemaman Highway at or about 2.30am it was collided into by
another motor car no. BCQ 8343. At the material time, BCQ
8343 was driven by one Wan Din bin Hussin (Wan Din). As a
C
result of this accident, the appellant was severely injured.

[3] On 14 April 1994, the appellant filed a civil action in the

High Court at Kuantan against Wan Din as 1st defendant who
negligently drove the motor car BCQ 8343 and against Proton, as
2nd defendant, for being the owner of the said car. D

[4] This civil action was subsequently transferred to the Sessions

Court at Kuala Terengganu bearing number 53-100-98. I shall
refer to this civil action as Civil Action 53-100-98.
E
[5] On 27 July 1999, the Sessions Court at Kuala Terengganu
after hearing allowed the appellant’s claim against Wan Din (Wan
Din having failed to defend the action) and awarded her a sum of
RM554,979.26 as damages, interest and costs. The appellant’s
claim against Proton was dismissed.
F
[6] On 10 September 1991, the appellant gave notice under
s. 96(2) RTA to Talasco, the insurer of BCQ 8343 at the material
time of the accident. This was soon followed by this civil suit
against Talasco for the recovery of the judgment sum handed
down in Civil Action 53-100-98. G

[7] Talasco, the defendant in this civil suit, brought in Proton

as third party under s. 95 RTA to recover from Proton any sum
Talasco may be ordered to pay the appellant.
H
Principal Issue: Previous Finding Of Proton Not Being
Vicariously Liable

[8] Talasco’s main defence is that they are not liable to the
appellant since the insurance policy which they issued to Proton
for the use of the said car is ineffective. The policy only covers I

“Persons or classes of persons entitled to drive (are) Any person

who is driving on the Policyholder’s order or with their
 Ramlah Abdullah v.
[2009] 3 CLJ Talasco Insurance Sdn Bhd & Anor 625

A permission”. Since Wan Din was not permitted by Proton to drive

BCQ 8343, Talasco is not obliged under s. 96(1) RTA to settle
the judgment sum in favour of the appellant obtained in Civil
Action 53-100-98.

B [9] Proton in their pleadings supported the stand taken by

Talasco. In addition, it highlighted the decision in Civil Action 53-
100-98 which dismissed the appellant’s claim against Proton as
owner of the said car. This implies that Proton was not vicariously
liable to the appellant when Wan Din, not being its servant and/
C or agent, was driving the said car without the order or permission
of Proton.

The Law

[10] To fully appreciate arguments in this appeal, it is necessary

D to first set out the law.
[11] Section 90(1) RTA specifies that:
it shall not be lawful for any person to use or to cause or permit
any other person to use, a motor vehicle unless there is in force
E in relation to the user of the motor vehicle by that person or that
other person, as the case may be, such a policy of insurance or
such a security in respect of third party risks as complies with
the requirements of this Part.

F
[12] Section 91(1)(b) RTA insists that such a third party risks
insurance policy must be a policy which:
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
G caused by or arising out of the use of the motor vehicle or land
implement drawn thereby on a road: ...

[13] Then under s. 96(1) RTA:

If, after a certificate of insurance has been delivered under
H subsection (4) of section 91 to the person by whom a policy has
been effected, judgement in respect of any such liability as is
required to be covered by a policy under paragraph (b) of
subsection (1) of section 91 (being a liability covered by the terms
of the policy) is given against any person insured by the policy,
then notwithstanding that the insurer may be entitled to avoid or
I
cancel, or may have avoided or cancelled the policy, the insurer
shall, subject to this section, pay to the persons entitled to the
626 Current Law Journal [2009] 3 CLJ

benefit of the judgement any sum payable thereunder in respect A

of the liability, including any amount payable in respect of costs
and any sum payable in respect of interest on that sum by virtue
of any written law relating to interest on judgements.

Facts
B
[14] It is not in dispute that the registered owner of BCQ 8343
was Proton at the material time of the accident. This car was
used by one of its executive known as Ang Yew Jin (Ang). Ang
lent this car to one Ahmad (Ahmad) for the latter’s journey to
Terengganu. Ahmad is the brother of Wan Din. During the C
journey on 6 May 1989, Ahmad felt tired and requested Wan Din
to take over the wheels. It was while Wan Din was driving the
said car that the accident occurred.

[15] It is the contention of Proton that though Ang had allowed D

Ahmad to drive the said car, Ang has never consented to permit
Wan Din to use it. And this issue of consent has been dealt with
in Civil Action 53-100-98 when the Sessions Court dismissed the
appellant’s claim against Proton for being vicariously liable for the
acts of Wan Din. And there was no appeal by the appellant E
against this decision.
[16] Proton then added that since Wan Din was not an
authorized or permitted driver of the said car, Talasco should not
be made to pay the appellant under s. 96(1) RTA. Consequently,
F
this third party claim should be dismissed when no money is to
be paid out to the appellant under the provisions of this Act.

High Court

[17] Though Talasco has pleaded res judicata in their defence, the G
High Court did not address this issue. Instead, the High Court
deliberated on the evidence and arrived at a conclusion that since
there was no express or implied consent given by Proton to Wan
Din to drive the said car the third party risks policy taken out by
Proton from Talasco is ineffective. When such policy is ineffective, H
the appellant’s recovery claim against Talasco under s. 96(1) RTA
must fail.

[18] In addition, the High Court decided that it will not entertain
any claim by the appellant against Motor Insurance Bureau of
I
West Malaysia (MIB) on the ground that this was not pleaded by
the appellant.
 Ramlah Abdullah v.
[2009] 3 CLJ Talasco Insurance Sdn Bhd & Anor 627

A Issues

[19] By virtue of the circumstances of this case, we are of the

opinion that the issues before the Court of Appeal are as follows:

(1) Has the High Court erred in refusing to entertain the

B
appellant’s claim against MIB?

(2) Is the third party risks insurance policy effective?

1st Issue: Has The High Court Erred In Refusing To
C Entertain The Appellant’s Claim Against MIB

[20] First it is necessary to ascertain the origin and functions of

MIB. A description of these is comprehensively set out in the
Court of Appeal judgment of Ramli Shahdan & Anor v. Motor
Insurer’s Bureau of West Malaysia & Anor [2006] 1 CLJ 224 @ 227:
D
Historical Background

The Motor Insurers Bureau of Malaysia was conceived in social

justice and was born into the then, Road Traffic Ordinance 1958
(now The Road Traffic Act 1987). The basis of this provision in
E
the said ordinance was to recognize to some extent the
unfortunate position of victims of road accidents, where experience
has shown, by reason of legal technicalities, that innocent victims,
despite the requirements of Compulsory Third Party Insurance,
failed to obtain any compensation. See New Indian Assurance Co.
F Ltd v. Simirah [1966] 2 MLJ p. 4.

Mechanism Involved In The Setting Up Of Motor Insurers

Bureau

The Motor Insurers Bureau does not exist as an Insurance

G Company, but is premised on an agreement entered into on 15
January 1968, between the Bureau and the Minister of Transport.
It states in so far as is material, that:

... the Bureau will, subject to the provisions of these

presents, pay or cause to be paid to the person or persons
H in whose favour such judgment was given any sum payable
or remaining payable thereunder in respect of the aforesaid
liability including taxed costs ... or satisfy or cause to be
satisfied such judgment.

[21] The agreement referred to above signed by the Minister of

I
Transport and MIB is commonly referred to as the Principal
Agreement. There is another agreement among insurance
628 Current Law Journal [2009] 3 CLJ

companies in West Malaysia contributing towards the funds of A

MIB. This subsequent agreement is commonly termed as the
Domestic MIB Agreement.

[22] This issue concerning a claim against MIB arose in Talasco’s

Defence. Paragraph 19 and 20 of this defence state: B

19. Selanjutnya, berdasarkan Perjanjian Motor Insurers’ Bereau,

pihak Motor Insurers’ Bureau of West Malaysia adalah juga
bertanggungjawab untuk mengindemniti liabiliti Encik Wan Din bin
Hussin, sebagai pemandu yang tidak berinsurans, di dalam
kemalangan yang material. C

20. Defendan akan membawa tindakan pihak ketiga terhadap

Encik Wan Din bin Hussin serta pihak Motor Insurers’ Bureau
of West Malaysia atas alasan-alasan yang telah dinyatakan di dalam
perenggan 17, 18 dan 19 di atas.
D
[23] When the appellant attempted to rely on these issues to
formulate its claim against Talasco, the High Court ruled:
Di peringkat ini saya ingin menegaskan adalah jelas bahawa plaintif
dalam plidingnya tidak memplidkan pemakaian perjanjian domestik
E
(Domestic Agreement) di antara Motor Insuran’s Bureau of West
Malaysia (MIB) dengan defendan bertarikh 30.1.1974 atau
perjanjian di antara MIB dengan Menteri Pengangkutan bertarikh
15.1.1968 yang telah diganti dengan perjanjian MIB yang baru
bertarikh 25.3.1992. Oleh itu walaupun isu-isu mengenai perkara
ini ada disenaraikan dalam kandungan 93D, dan walaupun dalam F
penghujahan mereka pihak-pihak ada menyentuh tentang perkara-
perkara tersebut, Mahkamah ini tidak akan membuat keputusan
tentang isu-isu tersebut.

[24] We are in full agreement with the views expressed by the

G
trial judge. The pleaded case of the appellant against Talasco is
based solely on the statutory provision of s. 96(1) RTA. The
appellant has only insisted that since Talasco had issued an
insurance policy against third party risks for the said car, Talasco
should settle the judgment sum ordered against Wan Din in Civil
H
Action 53-100-98 under this provision of the law. The appellant
has never sought recovery under the Principal Agreement which
MIB had with the Minister of Transport or under the MIB
Domestic Agreement. And if at all the appellant desired to mount
such a claim in this manner, she should have pleaded this and
I
included MIB as a party to this proceedings see the case of Ramli
Shahdan & Anor v. Motor Insurer’s Bureau of West Malaysia & Anor
(supra). In this case, MIB was never included as a party to the
 Ramlah Abdullah v.
[2009] 3 CLJ Talasco Insurance Sdn Bhd & Anor 629

A proceedings nor were the appellant’s claim framed in the nature of

a claim against them. The trial judge has therefore arrived at a
correct finding on this issue.

2nd Issue: Is The Third Party Risk Insurance Policy

B Effective?

[25] To answer the question posed in the second issue, s. 91(1)

RTA must first be examined. This section makes it mandatory for
the use of any motor vehicle to have an insurance policy against
third party risks covering “such person, or class of persons as
C
specified in the policy in respect of 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 the road”. In this instance,
Talasco has issued to Proton such a policy to cover a class of
D
persons “who is driving on the Policyholder’s holder (Proton)
order or with their permission”. So if a person who drove the said
car is not within this class of persons, then the said policy is not
effective on such occasion. Whether Wan Din fell within this
range of persons depended on evidence. For certain, not being an
E
employee of Proton, he could not have presumed to have such
order or consent from Proton. But could an implied order or
permission be given to him by persons who were allowed by
Proton to use the said car thereby making him an agent of Proton
when he drove the car? If such consent was given then the policy
F
is effective.

[26] The trial judge has answered this in the negative with these
reasons:

G (1) Wan Din has admitted that he did not have permission from
Proton to drive the said car at the material time.

(2) Although Ang has lent the car to Ahmad, there is no evidence
to indicate that Ang has also agreed to allow Wan Din to
drive it.
H
(3) When confronted with evidence from Ahmad that Ang did not
impose upon Ahmad any restriction on the use of the said car,
the trial judge dismissed this by declaring this as hearsay when
Ang did not personally testify at the trial.
I
630 Current Law Journal [2009] 3 CLJ

[27] But what was stressed upon us by Talasco and Proton A

during this appeal was not the findings of the High Court.
Instead, emphasis was on the decision of the Sessions Court in
Civil Action 53-100-98. Talasco and Proton submitted that this
issue was already decided by the Sessions Court when it dismissed
the appellant’s claim that Proton was vicariously liable for the act B
of Wan Din. This same issue now raised should not be decided
twice over.

[28] Against this argument, the appellant’s counsel gave the feeble
excuse that the findings of the Sessions Court was based on the C
non existence of a master and servant relationship between Proton
and Wan Din. It did not include a situation where the driver of
the said car was not authorized to drive by Proton.

[29] We are of the view that this perspective of the appellant is

D
devoid of merit. Vicarious liability is not confined only to a master
and servant situation. It includes master and servant and/or agent.
Agent was included in the pleaded case of the appellant in Civil
Action 53-100-98 where at para 2 says:
Defendan Pertama adalah pada sepanjang masa material pemandu E
kereta yang didaftarkan dengan nombor BCQ 8343 yang
memandu kereta tersebut sebagai ejen, pengkhidmat atau orang
yang memandu dengan keizinan Defendan kedua.

[30] So when agent was included for the purpose of determining

F
whether consent or permission was granted to Wan Din to drive
the said car, a finding on the absence of vicarious liability on the
part of Proton would inevitably mean that no such order or
permission was ever given by Proton to Wan Din at the material
time to drive the said car.
G
[31] When this issue has been decided and there was no appeal
against it then the principle of res judicata applies. The rational and
effect of this is best explained by Gopal Sri Ram JCA in Hartecon
JV Sdn Bhd & Anor v. Hartela Contractors Ltd [1997] 2 CLJ 104:
H
The principle of res judicata is based on the need of giving a
finality to judicial decisions. What it says is that once a res is
judicata, it shall be not adjudged again. Primarily it applies as
between past litigation and future litigation. When a matter –
whether on a question of fact or a question of law – has been
I
decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher
Court or because the appeal was dismissed, or no appeal lies,
 Ramlah Abdullah v.
[2009] 3 CLJ Talasco Insurance Sdn Bhd & Anor 631

A neither party will be allowed in a future suit or proceeding

between the same parties to canvass the matter again. This
principle of res judicata is embodied in relation to suits in s. 11 of
the Code of Civil Procedure; but even where s. 11 does not
apply, the principle of res judicata has been applied by Courts for
the purpose of achieving finality in litigation. The result of this is
B
that the original Court as well as any higher Court must in any
future litigation proceed on the basis that the previous decision
was correct.

The principle of res judicata applies also as between two stages in

C the same litigation to this extent that a Court, whether the trial
Court or a higher Court having at an earlier stage decided a
matter in one way will not allow the parties to re-agitate the
matter again at a subsequent stage of the same proceedings.

A decision given by a Court at one stage on a particular matter

D or issue is binding on it at a later stage in the same suit or in a
subsequent suit. (See Peareth v. Marriott [1883] 22 Ch. D 182,
Hook v. Administrator-General of Bengal and Others LR 48 IA 187
and In the Matter of the Trusts of the Will of Tan Tye (Deceased) Yap
Liang Neo v. Tan Yew Ghee and Another [1936] MLJ 141, 147-
151). Parties cannot raise a second time in the same suit an issue
E
that has already been determined either expressly or by necessary
implication. (See Louis Dreyfus v. Aruna Chalayya LR 58 IA 381).
(emphasis added.)

A failure to adhere to the principle expressed in the judgment of

F Sharma J just quoted may lead to chaos in the conduct of civil
proceedings.

[32] One may argue that though the appellant and Proton may
be common parties in Civil Action 53-100-98 as in this suit, but
not Talasco. The simple answer to this is that in a recovery
G
proceeding under s. 96(1) RTA, the role of Proton as the insured
is assumed by the insurance company which issued the third party
risks policy – see Ramli Shahdan & Anor v. Motor Insurer’s Bureau
of West Malaysia & Anor (supra) and Rafiah bte A. Bakar v. East
West-UMI Insurance Bhd [1993] 1 CLJ 431. By this, Talasco is
H
considered a party in the said civil action.

[33] So irrespective of the findings of the trial judge in this case,

the issue on whether Proton had ordered or given permission to
Wan Din to drive the said car at the material time has already
I been decided by the Sessions Court in Civil Action 53-100-98.
Relying on the principle of res judicata, this same issue should not
be litigated again. This matter has been decisively determined and
632 Current Law Journal [2009] 3 CLJ

there was no appeal against it. When this finding has a binding A
effect, it is our view that the policy of insurance issued by Talasco
to Proton is ineffective (since it does not cover a person who is
driving without the order or permission of the policyholder) for the
purpose of this recovery claim.
B
Conclusion

[34] Upon this ground, we would dismiss this appeal with costs
to both the respondents. The deposit to the respondents to
account of taxed costs.
C
[35] Since Proton’s counsel has brought to our attention that the
High Court has inadvertently awarded costs against the appellant
when dismissing Talasco’s third party proceeding against Proton
which should be borne by Talasco, the order of the High Court
is varied to the effect that the costs below be paid by Talasco to D
Proton on the dismissal of Talasco’s third party claim against
Proton.