Judicial Commissioner Warns Insurance Company
By Ignatius Stephen

Bandar Seri Begawan - Brunei's insurance companies should not go over lawyers' heads and offer direct settlement to parties in trying to circumvent damages awarded, the High Court has ruled.

"The amount that was given to the infant's father was considerably lower than the- amount that was assessed by the court. In addition, the monies have already been spent by the infant plaintiff's father, whether the monies were used to the benefit and upkeep of the plaintiff this is not known ... the way in which the monies were handed over to the infant's father was very dubious in that the [appellant] did not make an offer to Counsel and instead went directly to the infant's father... the [appellant's] approach to settling is greatly discouraged and frowned upon by this court."

Judge Findlay in supporting what the Registrar said: "I agree with these remarks. When I made similar comments to Mr Foo (YT.Foo, the insurance company lawyer), his response was that the appellant had made `a commercial decision'.

"It may have been 'a commercial decision' but it smacks of overreaching; some might say the appellant's behaviour verged on dishonesty. I do not believe that the appellant is to be trusted as an approved insurer. I believe that the Registrar's ruling and my reasons should be sent by the respondent's counsel to the authority that approves insurers to consider whether the appellant is fit to continue as an approved insurer," the court remarked. On May 4, 2004, the lawyers for the child issued a writ against the insurance company. On September 14, 2005, the child obtained judgment against the insurance company and, on October 17, 2005, the damages were assessed to be B$27,280.48. After obtaining this judgment, the lawyers for the child wrote to the appellant as insurers calling upon it to satisfy - the judgment. The appellant failed to do so.

Accordingly, the respondent, commenced proceedings against the appellant seeking an order that the appellant satisfy the judgment obtained against its insured.

The appellant entered appearance to defend this action and the respondent sought summary judgment under Order 14. The appellant opposed this application on the basis that the appellant had reached a compromise settlement with the respondent on October 23, 2004 and the sum of B$6,943 was paid to the respondent's father. The respondent filed evidence in the application maintaining that there was no valid settlement because the court's approval had not been obtained. The appellant responded to this by saying that the settlement sum was fair, reasonable and adequate and the matter was settled speedily before the issue of the writ.

The registrar heard this application on September 13, 2006 and, on October 16, 2006, held that the appellant had not raised any trial able issue and ordered that summary judgment be entered against the appellant.

The insurance company then appealed against that decision. On November 23, 2006, after hearing Mr Foo the judge dismissed the appeal with costs, and ordered that the judgment stand.

Takaful Islamic Development Bank of Brunei Sendirian Berhad (Takaful Idbb Sdn Bhd) was the Appellant. Mohammad Abdul Mirza bin Rusian (an infant suing by his father and next friend, Rusian bin Haji Marusin), was the Respondent.

Mr YT Foo of Irene Appaduray and Y. T. Foo were for the Appellant and Ms Naz Parveen Hj Rashid of Sandhu & Co. represented the Respondent. -- Courtesy of Borneo Bulletin

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