Claiming from the insurance of Palestine embassy's car

Plaintiff Donisyah Putra Amry sued the Palestinian ambassador to Malaysia’s son - Mohammed WA Abuali - who was named as the first defendant, over a road accident.

The Palestinian embassy was named as the second defendant in the same suit.

It was not disputed that the first defendant was driving a car bearing a diplomatic registration plate at the time.

Today, the media reports that in dismissing the plaintiff’s claim against both defendants, the court held that the first defendant was not liable to be sued as he had diplomatic immunity. Hence, the second defendant was not vicariously liable too.

In coming to the said decision, the learned judicial commissioner (JC) ruled that both defendants successfully proved their protection under the Diplomatic Privileges (Vienna Convention) Act 1966 (Act 636) and the Consular Relations (Vienna Convention) Act 1999 (Act 595).

She also ruled that since there was no waiver under Article 32 of the Schedule, the diplomatic immunity of the first defendant remained intact.

Under international law, a waiver may invalidate any diplomatic immunity provided such a waiver must be explicitly expressed.

I am of the view that the learned JC was right in holding that Act 636 and Act 595 duly apply in this case.

The learned JC also decided that the embassy’s car involved was insured, thus - according to the learned JC - the plaintiff had the right to claim from the insurance company of the registered vehicle.

With the greatest respect, I disagree with the learned JC on this point. In my view, the learned JC erred in law when she decided that the plaintiff had the right to claim from the insurance company of the registered vehicle.

Since the learned JC already held that both defendants were not liable, I am of the view that there is no issue at all for the plaintiff to claim from the insurance company of the registered vehicle which was driven by the first defendant at the material time.

In a tort claim involving a road accident, the real defendant in such a case, in actual fact, is the insurance company. Nevertheless, in reality, the insurance company has never been made a defendant.

In court, only the insured is being made as a defendant. Therefore, if the court dismisses the claim by the plaintiff against the insured, the plaintiff’s claim against the insurance would not be sustainable either.

Be that as it may, I am of the view that the plaintiff in this case cannot claim from the insurance company of the registered vehicle - which was driven by the first defendant - as suggested by the learned JC.

After all, she already dismissed the plaintiff’s claim against the defendants. Assuming the defendants in this case were held to be liable, it was the insurance company which was actually responsible for paying the plaintiff. - Mkini

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MOHAMED HANIPA MAIDIN is a former deputy minister in the Prime Minister’s Department (law).

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.