LAST November, a lorry from Tawau heading towards Semporna veered into the opposite lane and crashed into a tour bus, killing a passenger. The bus was on its way to Tawau Airport with 15 tourists from China. The collision sent the bus skidding and landed on its side.
Last Monday at Jalan Semporna-Tawau, an out-of-control trailer lorry swung into the opposite lane and crashed into an oncoming tour van carrying five Singaporeans and one Vietnamese. The impact sent the van crashing to the roadside and turned turtle with its wheels in the air.
Tragically, two passengers were killed on the spot. Another two passengers and the van driver were seriously injured, and two more tourists escaped with minor injuries. The trailer lorry driver was not physically hurt but was arrested by the police to assist investigations.
If charged under Section 41 (1) of the Road Transport Act 1987 and found guilty, the driver will be facing no less than five years and not more than 10 years of imprisonment and a minimum fine of RM20,000 not exceeding RM50,000.
But injured passengers or families of the deceased will get no compensation other than from their own life insurance or personal accident cover that includes travel insurance if any.
This is because passengers in taxis, buses and tour vans are not covered by motor vehicle insurance.
Although all passenger-carrying commercial vehicles are automatically insured for legal liability to passengers, it does not cover the passengers directly but only the driver’s liability to passengers in the event he was at fault in accidents and passengers are injured.
Should the driver be at fault, the motor insurance company will not pay compensation automatically and is in no hurry to do so, unlike normal life or accident insurance which does not need to establish which party was at fault, and the amount covered is specified and limited.
If the tour van driver was not at fault, it would be pointless to sue him even though there was no breach of the cover for legal liability to passengers when all licences for the tour van and the driver were valid and he was not driving under the influence of drugs or alcohol.
The injured passengers and families of the deceased will have to sue the trailer lorry driver for compensation, and the amount differs according to the extent of injuries, medical expenses incurred and loss of income, which can vary greatly from manual workers to professionals.
If all the licences of the trailer lorry and the driver are in order and the vehicle was not driven under the influence of drugs or alcohol, the injured passengers and families of the deceased are likely to receive compensation awarded by the court from the trailer lorry’s insurance company.
But if any of the terms and conditions of the motor insurance policy were breached, the insurer will try to repudiate cover and not pay compensation. And if the driver has no means to pay, plaintiffs may win only a paper judgment but may receive no compensation.
Lawyers for the plaintiffs are likely to sue the owners of the trailer lorry and tour van and both drivers just in case the court finds that the van driver was partially contributory to the collision and will have to bear compensation proportionately.
Tour operators are required to attend the Travel and Tours Enhancement Course before they can renew their business licence with the Tourism, Arts and Culture Ministry. In one of the modules, they get to learn more about insurance and be more professional with their services.
They ought to make greater efforts to get customers covered by travel insurance during the travel period, especially for those without personal accident insurance policies, which are renewable annually and compensations are normally paid out speedily.
Whereas to receive compensation from insurance companies for legal liability to passengers or third-party claims usually takes a few years before claimants are finally awarded compensation by the court, which can be further delayed if contested by the insurance company.
Over the past decades, local tour operators have been telling overseas outbound tour operators that their passengers travelling in Malaysian tour buses, vans and cars are insured when no one, including the driver, is insured, except for his liability to passengers when he is at fault. – March 13, 2024
YS Chan is the master trainer for Mesra Malaysia and Travel & Tours Enhancement Course. He is an Asean Tourism Master Trainer and a tourism and transport business consultant.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
Main pic credit: Fire and Rescue Department
