Insurance 2 written

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Information about Insurance 2 written

Published on March 13, 2014

Author: AhmadFarouqAmir




Hj Din entered into a contract with Jaya Insurance for a personal accident insurance policy cover worth RM100 000. The policy guaranteed payment in the event of injury or death of the insured arising from an accident. On1.4.2006, he heard cries for help. A neighbour’s house was on fire. Hj Din grabbed a pail of water to put out the fire. On his third trip, he stumbled on the uneven ground and fell down. His head struck the floor and he died. The autopsy report revealed that the cause of death was a heart attack. Hj Din’s widow, Fatimah, submitted the claim to Jaya Insurance. It refused to honour the claim and referred to the exclusion clause. It read as follows: Once an eligible individual has been accepted under the Jaya Personal Accident Insurance plan, his coverage will not be effective for the following: 1. War or acts of war 2. Self inflicted injuries 3. Insanity 4. Suicide 5. Disease/infection 6. Intoxication (by alcohol or drugs) 7. Hazardous sports This plan excludes coverage for death, permanent disablement or medical expenses due to injury resulting directly or indirectly from the above mentioned list. Accidents arising from the above mentioned list are not convered and the insurer is not liable to pay. Pn Fatimah decided to sue Jaya Insurance. You are the magistrate hearing this claim brought by Pn Fatimah in her capacity as the administrator of her husband’s estate. State the grounds of your decision.

The first issue is whether Fatimah as the administrator of Hj Din’s estate has the capacity to claim from Jaya Insurance. The general rule to claim is that the right to claim exists upon the occurrence of the insured even. Only a proper claimant can make a claim. Section 44(5) of the Insurance Act states that proper claimant includes executor, widower/widow, parents, child, brother, sister, nephew and niece. Next, section 167(2) of the Insurance Act states that muslim nominee who receives policy money as executor and must distribute the money in accordance with Islamic Law which is also known as Faraid principles. In applying this to Fatimah’s situation, since Fatimah is the widow of Haji Din and also the executor of his estate, she has the capacity to bring this case to the court and claim for the policy money. Also taken into account is her religion. Since Fatimah and Haji Din are both muslims, they are also governed by section 167(2). Therefore, the policy money claimed by Fatimah must then be distributed in accordance with Islamic law. Moving on to the second issue of whether Fatimah can prove that the death of Haji Din does not fall under the exclusion clause. It is not sufficient, in order that an insured should recover for a loss, that the loss falls within the cover provided as a matter of construction or definition. He must also show that the loss was proximately cause by an insured peril. The proximate cause does not, however, mean the last cause but the effective, dominant or real cause. In accident cases where there are two or more cass, the relevant case is Winspear v Accident Insurance1 where the insured had a personal accident policy which covered death by accidental, external and visible means. It excluded death from existing illness. In this case, the insured had a fit which was not covered by the insurance policy and fell down while crossing a shallow river which was an insured peril. It was held that the drowning was the proximate cause of the death and not the fit. Proximate cause is definied as the real, dominant and sufficient cause of loss. 1 Birds ‘ Modern Insurance Law. Determining the proximate cause. Page 250

The next relevant case is the case of Amanah Raya (estate of Devia Nathan) v Jerneh Insurance. In this case, there was a claim for RM122 000 arising from personal accident insurance policy. The policy guaranteed payment in the event that an injury or death occurred from an accident except where exclusion clause applied. The deceased died after he tried to put out fire at his neighbour’s house. The cause of death was a heart attack suffered by the deceased. The exclusion clause in this policy is the death caused by disease or infection. The court held that the heart attack suffered by the deceased is a mere link in the chain initiated dominantly and effectively by the fall. The accident is therefore the proximate cause of his death. In the case of Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd2 states that even where there is an exception relating to disease, it is inapplicable where the death or disablement, though ultimately was caused by the disease, is nevertheless proximately caused by accident, the disease being merely a link in the chain initiated dominantly and effectively by the accident. In Jason v Batten3 , the policy provided benefits to the insured if he sustained in any bodily injury resulting in and being independently of all other causes, the exclusive, direct and immediate cause of the injury. There was an exception in respect of death, injury or disablement directly or indirectly caused by or arising or resulting from any physical defect or infirmity that existed prior to the accident. It was held that the loss fall within the exception because the insured suffered coronary thrombosis even before the accident. Therefore, the insurer is not liable. In applying this to Fatimah’s current situation regarding her husband’s estate, it can be seen that the proximate cause of the death of Haji Din was caused by the fall on the uneven ground. Without the fall, Haji Din would not have gotten a heart attack which had caused him to die. The heart attack did not cause him to fall. In fact, it was the other way round where the fall had caused Haji Din to get the heart attack. Therefore, Jaya Insurance is liable and must pay to Fatimah. 2 Birds’ Modern Insurance Law. Detemining the proximate cause. Page 249 3 Birds’ Modern Insurance law. Page 251


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