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A version of this article was published in The Malaysian Insider and can be found here.
It was 1991. My classmates and I were punished for being noisy in class. We were told to stand up and remain silent for the rest of the lesson. The silence was deafening until Cikgu stormed towards the back of the classroom and barked, “Why are you smiling?! Is this supposed to be funny?”
Alarmed, we all turned around to find out who had the misfortune of inciting Cikgu’s sudden outburst. It was Lee, the boy who hardly spoke during lessons. If anything could be said about Lee, he stayed away from trouble and wore a pleasant demeanour on his face.
Cikgu repeated her question. This time with greater force. Puzzled, Lee had no choice but to answer, “Err… no. But, but, but is it a crime to smile?”
I was stunned because I didn’t know Lee had it in him to speak up against a figure of authority.
“Ohhhhh… you think you’re so smart, is it? Stand on your chair now!” Cikgu decided to play the power card. They always did when they had no answers to smart questions.
Lee did as he was told and the smile disappeared from his face.
Many of us still remember this incident and Lee will always be remembered as the guy who got punished simply because he smiled.
Recently, when my husband got into a minor fender-bender with a taxi driver, I was reminded of this story. As the article unfolds, I hope it will serve as a cautionary tale for all.
It’ll serve you well to know that if your car has been hit by a vehicle used for carriage of passengers for hire or reward (or what is commonly known as a taxi, rental car, public bus, school bus and factory bus) to be referred to as “public vehicle” hereafter, you are not entitled to make a No-Fault Own Damage (ODN) or Knock-For-Knock (K-F-K) claims, even if you have a police investigation report proving that the other party is at fault.
The only claims you can make are of your own insurance, which will then affect your No Claim Bonus (NCB) or to claim directly from the perpetrator’s insurance, which can be an insurmountable task if the latter is not co-operative.
Now, this is alarming news to me because I did not know, as I suspect many of you don’t either, about this. It got my husband and I very concerned. How and where can we find out more information? Could this be an explanation why taxi and bus drivers drive as recklessly as they do here?
Dissatisfied with my motor insurance company’s response, I’ve since then made multiple enquiries to different insurance companies, the Road Transport Department, the General Insurance Association of Malaysia (PIAM), Bank Negara and even three motor workshops.
The calls and Internet searches I made generated a lot of frustration and failed to answer satisfactorily why public vehicles are exempted from ODN and K-F-K claims. Only one person came up with a direct response (although not necessarily plausible or reliable) in an online public forum.
According to this person, the measure was taken to discourage people from driving private cars. See it as some form of vice tax, if you like. I’m not entirely sure whether this is indeed the rationale behind this ridiculous policy but at least someone offered an opinion other than just re-iterating what has suddenly become an obvious policy.
The Road Transport Department said that they are not responsible for insurance regulation and referred me to the Ministry of Finance. I did not pursue with the latter.
I had to make four telephone calls to obtain a written policy stating the exemption from AXA Affin Malaysia. The first call was answered by someone whose standard response seemed to be “cannot.” Period.
My husband and I have taken to calling these people Ms/Mr Cannot and they seem to dominate the service industry in Malaysia. Before you can even explain what you’re asking for, they’ll tell you with great certainty and conviction that you cannot.
Kurnia Insurans Malaysia and Etiqa Insurance have the same policy on their websites. AIA Malaysia’s telephone operator said that this should not be true but was unable to confirm. She also said that all motor insurance policy should apply across the board because they are being regulated by Bank Negara. When I called Bank Negara, there was no one who could answer my query. They promised to call me back but they haven’t.
Zurich Insurance Malaysia Berhad informed me that they, too, practise the same policy. According to their officer, the policy is a result of an agreement made by all the insurance companies. Although I was disappointed by the answer, I was pleased that they were helpful enough to explain what I could do instead.
“You can claim third party insurance directly from the taxi. If you don’t want to go through the hassle of doing this, some workshops will help you. You just need to obtain the police investigation reports,” she said.
“How do you make a claim directly from the taxi? I don’t have his insurance details?”
The taxi driver had conveniently claimed ignorance when I asked for his insurance details. He said he had to call his company to find out and until today, I haven’t managed to get an answer from him. I was told by several people that this is to be expected.
“I hope you have his registration number. As long as you have it, you can find out from JPJ.”
“Does the workshop charge a fee for this service and if yes, how much?” I asked.
“Yes, I think they charge a fee but I really don’t know how much. What I can do is to give you a contact. You can call them and enquire.”
I called the number and to my great surprise, the lady who answered the phone said they don’t charge anything if I can furnish them with all the relevant documents. If I am unable to do so, they will charge a runner fee of RM150.
I’ve also talked to another workshop recommended by someone else and according to the workshop, as long as I send my car to my insurance panel workshop, I can make a KFK claim.
My insurance panel workshop offered us two solutions: 1) submit a ODN claim but our NCB will be forfeited and our insurance will cover the cost of repair, or 2) submit a third party claim but we’ll have to pay for the NCB adjuster fee and cost of repair first. We may be able to get it reimbursed by the taxi’s insurance later but it is entirely up to the latter’s discretion.
My husband and I haven’t quite decided yet what to do with our car. Although no injuries were inflicted (albeit a huge bruise to our morale), the simple principle of justice remains that we shouldn’t be paying for other people’s mistake. It isn’t just about the cost of repair but the time spent on dealing with it.
In my attempt to find answers, I’ve remained utterly confused and defeated. My French husband has cheekily asked me, “Why didn’t I marry a Swede? Why do you have to be Malaysian? It’s the first time I’ve heard of such stupid policies.”
Just like my friend, Lee, who shouldn’t have smiled, we shouldn’t have rejoiced so quickly with the knowledge that it was someone else’s fault when the accident happened. Just like Lee who asked the question “Is it a crime to smile?” and was then punished without any clear reason whatsoever, we are being punished in a similar fashion.
How safe can you be on the road if the rules do not punish those who inflict damage and injury to others? I can be a responsible and safe driver but it doesn’t protect me against those who aren’t. Something’s clearly wrong and how do we get to the bottom of this?
If you ever encounter an accident with a public vehicle (which I sincerely hope you won’t), it’ll be wise to obtain the vehicle’s insurance information immediately.
Meanwhile, do stay safe on the road.
After this article was posted, I received a private response from an insurance agent, Sandra Shao, who has kindly explained the following.
There are two options in cases like this:
1) File a 3rd party claim. Submit all relevant documents (police investigation report) to the 3rd party insurance. If you do not have the details of the 3rd party’s insurer, you’ll need to run a JPJ search. (If your workshop has experience in dealing with cases like this, they will be able to assist you to run the search). Meantime, you’ll have to pay for all the repair work first.
In the meantime, do hire a Loss Adjustor who will prepare a report on the extent of the damage and he/she will put in a Loss of Use timeframe. Loss of Use is the estimated repair time but does not include any waiting time; i.e. delay in obtaining spare parts, etc. The report will take about seven days depending on various factors.
You can hire a Loss Adjustor directly or through your workshop’s contacts. The fee is based on a schedule. Some may tend to inflate the cost of repair but the Insurer will send a representative to verify the damages claimed.
With this option, your NCB is maintained.
2) File a Own Damage claim. Bring your car to your panel workshop and your insurance will pay for the damage. However, your NCB will start from 0% again at the time of renewal of your insurance.
Sandra recommends the first option although the procedure is tedious but it’s worth doing as you get to keep your NCB, especially if it’s already at 55%.
According to Sandra, many people choose the easiest way out, with as little inconvenience as possible. Upon discovery that they’ve lost their NCB and asked to pay a higher premium, they often argue that these options were not explained to them. The bottom line is, it is never an easy way to deal with accidents of this nature, but if you handle it properly from the start, it’ll save you from a rude awakening when you renew your insurance.
Sandra provided insights on the different standards applied to insurance claims for private and public vehicles. According to her, they are both assessed separately. Public vehicles are on the road frequently and hence, the possibility of being involved in an accident is higher. This translates to higher risk which prompted insurance companies to deal with them separately. Likewise, the premiums for both types of vehicles are different.
Another difference is that private vehicles are not required to be inspected by PUSPAKOM annually. It’s easier to renew road tax for private vehicles while public vehicles can only renew their road tax with JPJ, only upon certification from PUSPAKOM. The road tax rate also differs.
Sandra cautioned that an accident with a motorcycle is even more complicated.
The drafting of insurance laws in Malaysia follows those in the United Kingdom. So, Malaysia is not unique in having such regulations. She is unsure whether such law has been amended in the United Kingdom.