1. Denasvaran A/L Chandrasekar v 1. Rich Bonus Sdn BHD(185868-U) (BA-11B-76-10/2016)

LOGESVARI A/P SAIMAN …PERAYU-PERAYU

MOHD MUTTAKHIR BIN RAMLI … RESPONDEN-RESPONDEN (Dalam Perkara Mahkamah Majistret di Sepang Dalam Negeri Selangor Darul Ehsan, Malaysia

RICH BONUS SDN BHD(185868-U) … PLAINTIF PERTAMA

MOHD MUTTAKHIR BIN RAMLI … PLAINTIF KEDUA

DENASVARAN A/L CHANDRASEKAR …DEFENDAN PERTAMA

LOGESVARI A/P SAIMAN …DEFENDAN KEDUA) 2 GROUND OF JUDGMENT Introduction [1] This is an appeal against the Magistrate’s decision of 30.5.2016 by the Appellants (1st Defendant and 2nd Defendant) which allowed the Respondents’ (1st Plaintiff and 2nd Plaintiff) claims derived from one road accident case. At the hearing before this Court, the Appellants withdraw their appeal on liability and proceed to submit on quantum, focusing on special damages which are, the cost of repair of the motorcar taxi, the cost of adjustor’s fees and loss of usage of the motorcar taxi. [2] In terms of liability, the Magistrates Court decided that the Appellants are wholly liable for the cause of the accident. The Magistrate awarded the Respondents special damages of RM24,914.97 for the cost of motorcar taxi repair and for the cost of adjustor’s fees. [3] In this judgment, the parties will be known as they were in the Magistrates Court. At times, the Appellants will be known as the ‘1st Defendant’ and ‘2nd Defendant’ or ‘the Defendants’ and the Respondents will be known as the ‘1st Plaintiff’ and ‘2nd Plaintiff’ or ‘the Plaintiffs’. Brief Facts [4] The relevant facts leading to this appeal can be briefly stated as follows: 3

On the night of 16.7.2014 at 20.30hrs (8.30pm), an accident occurred between a motorcar taxi bearing registration number HWD 1797 of model Proton Waja owned by the 1st Plaintiff, at the material time driven by the 2nd Plaintiff and a motorcar bearing registration number NCR 5534 of model Toyota Vios owned by the 1st Defendant, driven by the 2nd Defendant. The collision occurred while the 1st Plaintiff’s motorcar taxi was stationed at the traffic lights junction of Jalan Baru Dengkil/Salak Tinggi where out of a sudden the 2nd Defendant hit the rear of the 1st Plaintiff’s motorcar taxi.

The Plaintiff claimed that the total repair are as pleaded and had been proven as provided in the Statement of Claim and had been particularised according to the Adjustor’s Report (pages 49-54 of Appeal Record), with the photos of the damage, invoices and receipts of the adjustor together with the invoices and receipts of the car workshop. The Plaintiff’s total special damages claimed is RM27, 788.63 (paragraph 7 of the Statement of Claim, page 19 of Appeal Record).

The Plaintiffs’ claimed that the Magistrate had scrutinised and assessed the details of the Plaintiffs’ claims and dismissed some items from the Recommended Parts of the Adjustor’s Report (items 1, 2, 75 and 76) on the ground based on Plaintiffs’ witness SP2 that the said items can be repaired and the Magistrate also dismissed the RM1,000.00 for Miscellaneous Items. The total amount claimed allowed is 4 RM24,015.97 in comparison to the actual cost of repair claimed, RM25,929.63. Defendants’ submission [5] The learned counsel for the Defendants advanced several grounds of appeal on the claim allowed by the learned Magistrate. The main ground of appeal revolves around the principle that special damages must be strictly proven. Based on the arguments meted out at pages 10-13 of Defendants’ counsel’s written submission, briefly, on the purported payment for the cost of repair, the Defendants’ counsel averred that the out of pocket expenses made by the 1st Plaintiff lacks proof. Regarding cost of repair of RM25,929.63, the Defendants’ counsel submitted that the amount claimed differs from the Adjustor’s Report which is 30% of cost of repair amounting to RM7,778.88 (page 83 of Appeal Record). In relation to the Adjustor’s fee, the receipt was issued by the car workshop as proof of payment. [6] The counsel for the Defendants submitted on the proof of payment of the three instalments (Notes of Evidence at pages 32 and 33) where the amount of RM25, 929.63 claimed by Plaintiffs were paid to the car workshop (page 83 of Appeal Record). The counsel for the Defendants averred that the three instalments did not show up in the Income Statement (pages 83-84 of Appeal Record) and that the claim for the repair which is a special damages claim must be strictly proved and relied on the authority decided by the Federal Court, the case of Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 MLRA 200. 5 [7] The Defendants’ counsel averred that the Plaintiffs’ witness also said that there is no documentary evidence that the 1st Plaintiff made the payment and that the receipts by the company which the Plaintiffs may have submitted do not show where the money came from and the Magistrate erred in accepting Plaintiffs claim. It was brought to the Court’s attention that at the trial, the Plaintiffs’ witness only showed the computer printed copy without any endorsement and admitted during the cross-examination that the printed copy could be generated by just anyone and no documentary evidence by 1st Plaintiff that it actually advanced the RM25,929.63 to repair the motorcar taxi as claimed. [8] The counsel for the Defendants also submitted that the cost claimed by 1st Plaintiff is not the actual cost of damage for car bumper and the rear as the payment to Adjustor was made by the car workshop and not by the 1st Plaintiff. Referring to the oral evidence of the Adjustor whom was asked whether the 1st Plaintiff will make an overdraft (OD) or 3rd party claim, the Adjustor testified that it will be by a 3rd party and yet the Adjustor did not include the current market value of the motorcar taxi. It is submitted that the motorcar taxi is of five years old, a model of 2009 and the market value at RM30,000.00 should have been included and requested the Court for the claim of RM25, 929.63 to be set aside. Plaintiffs’ submission [9] The learned counsel for the Plaintiffs submitted that the Plaintiffs through their witness, SP4, the representative of the 1st Plaintiff, testified that it had proven that the 1st Plaintiff had made out of pocket expenses the 6 amount of RM25, 929.63 to pay for the 1st Plaintiff’s motorcar taxi repair which are money collected daily by the company’s taxi drivers. As such, there was no specific evidence for instance a copy of the cheque by the 1st Plaintiff or statement of accounts of the 1st Plaintiff to prove payment. The Plaintiffs’ counsel submitted that the Plaintiffs had proven the out of pocket expenses based on the invoice and receipts issued by the car workshop (pages 79 and 80 of Appeal Record) that had been verified by the representative from the car workshop, SP5. The Plaintiffs’ counsel submitted its reliance on the case of Pang Ah Chee (M.W.) (the Administratix of the Estate of Chia Soy Moy @ Chai Ho Kiam, deceased) v Chong Kwee Sang [1985] 2 CLJ 221 where the claim for cost of repair supported by receipt produced not by repairer but by the plaintiff is good evidence and was allowed in that case. [10] The Plaintiffs’ counsel submitted that the Defendants did not bring any witnesses to prove otherwise. The Plaintiffs’ counsel relied on the provision of section 114(g) of Evidence Act 1950 and relied on the case of Jaafar Bin Shaari v Tan Lip Eng [1997] 3 MLJ 693 where only the Plaintiffs’ witnesses were present to testify and therefore the Plaintiffs’ statement is deemed to be the truth. [11] The Plaintiffs’ counsel averred that the invoice and receipts issued by the Adjustor and sent to Plaintiffs’ witness SP4, by the car workshop and were paid to the car workshop is a strong evidence that out of pocket expenses were made by the Plaintiffs. 7 [12] It is submitted that the Magistrate did not allow the full sum as pleaded where some parts of the motorcar taxi were rejected and only awarded RM24, 015.97 in total instead of RM25,929.63. [13] It is submitted by the Plaintiffs’ counsel that the appellate court should only interfere if the trial judge has acted on wrong principle of law and referred to the Federal Court cases, Mahmod Bin Kailan v Goh Seng Choon & Anor [1976] 2 MLJ 239 and Jamiah Bt. Holam v Koon Yin [1983] 1 MLJ 103. Decision of the Sessions Court [14] The Session Judge allowed the Plaintiff’s claim where the judgement is reproduced in parts as follows: “[26] Berdasarkan keterangan saksi-saksi dan ekshibit-ekshibit yang telah dikemukakan, Mahkamah berpuas hati di atas imbangan kebarangkalian bahawa jumlah RM25,929.63 telah dibayar oleh Plaintif Pertama kepada pihak bengkel. Walau bagaimanapun, Mahkamah menolak 4 item iaitu item 1,2, 75 dan 76 yang mana telah turut dicadangkan ditukar baru tetapi masih boleh diperbaiki menurut keterangan SP2. Bagi Miscellaneous Items pula, setelah meneliti hanya jumlah RM1,000 sahaja yang dibenarkan. Oleh yang demikian, bagi kos membaiki motorteksi tersebut, jumlah sebanyak RM24,015.97 sahaja yang dibenarkan oleh Mahkamah. b) Kos Yuran Penyelaras 8 [27] Mahkamah telah membenarkan keseluruhan kos yuran penyelaras sebanyak RM899.00 kerana Mahkamah berpuas hati apabila SP5 menerangkan bahawa yuran penyelaras telah dibayar kepada pihak bengkel kerana pihak bengkel telah membayar yuran tersebut terlebih dahulu kepada penyelaras sewaktu laporan penilaian penyelaras diserahkan kepada bengkel. Ekshibit P5 (invois) dan P6 (resit) dirujuk sebagai bukti bayaran. Plaintif-Plaintif telah menanggung kos yuran penyelaras tersebut. … c) Kos Kehilangan Kegunaan: [29] Mahkamah menolak jumlah tuntutan kos kehilangan kegunaan mototeksi yang berjumlah RM960.00 (RM60 x 16 hari). Bagi kos ini, ianya tidak dibuktikan malahan ianya juga diakui oleh Plaintif-Plaintif di dalam Hujahannya bahawa Plaintif-Plaintif tidak dapat mengemukakan bukti bagi tuntutan ini. ………” APPEAL [15] It is trite law that the appellate court tend to be slow to disturb the facts finding of the trial judge. There are a number of great authorities and this Court had the benefit to peruse the cases submitted by both counsels, the Federal Court case of Mahmod Bin Kailan v Goh Seng Choon & 9 Anor [1976] 2 MLJ 239 and the case of Jamiah Bt. Holam v Koon Yin [1983] 1 MLJ 103 attributed by the Plaintiffs’ counsel and the Court of Appeal case of Mega Airconditioning Sdn Bhd v Sppedfam Co Lts [2001] 4 CLJ 261 by the Defendants’ counsel. [16] This Court holds the view that where liability had been decided and the Plaintiff is claiming for damages for loss, the loss must still be proven. For a trial judge to hear claim for damages for loss, it is incumbent upon that trial judge to evaluate the facts and the evidence before arriving at a decision. In the event that the appellate court discovers there is a lack of judicial evaluation of the facts and evidence and an award of damages has been made by the trial judge, such an award is liable to be set aside as decided in the Federal Court case of Gan Yoke Chin v Lee Ing Chin [2005] 2 MLJ 1 where it was held that: “ …a Judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any of the evidence placed before him. The Court of Appeal further reiterated the principal central to appellate intervention ie, that a decision arrived at, by a trial court without judicial appreciation of the evidence might be set aside on appeal.” [17] I also refer to the English case of Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 where Lord Wright remarked that, 10 “In effect the court, before it interferes with an award of damages, should be satisfied that the Judge had acted on the wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.” [18] In this instant appeal, the claim for special damages is brought by the Plaintiffs. Following section 101 of the Evidence Act 1950, it is the plaintiff who bears the burden to prove as decided by the Federal Court case, Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014 which illustrates the burden of proof is on the party who asserts, the plaintiff and that once the burden is discharged by the plaintiff, the burden to prove and the onus to adduce evidence shift to the Defendant. [19] In this instant case, the Plaintiffs who are claiming for the cost of repair, submitted the Adjustor’s Report as a basis for cost of repair. Reverting to the facts and the evidence adduced, the Adjustor inspected the motortaxi 6 days after the accident which is on 22.7.2014. Upon careful perusal of the documents before this Court, this Court finds that firstly, the claim for cost of repair is RM25,929.63 without particularization of the car parts to be repaired in the Statement of Claim (page 19 of Appeal Record). The Adjustor’s Report is dated 29.7.2014 (pages 49-76 of Appeal Record) but the receipt was issued earlier which is on 24.7.2014 (page 48 of Appeal Record). The car workshop generally listed out the description of repairs on 16.8.2014 where the total cost of repair amounts to RM25,929.63 (page 79 of the Appeal Record). The Plaintiffs claimed that the cost of repair had 11 been advanced by the 1st Plaintiff as out of pocket expenses where the receipts were issued by the car workshop (page 80 of Appeal Record). [20] In relation to the receipt for Adjustor’s Report issued first followed by the Adjustor’s Report, this Court sought clarification from both counsels as to the facts pertaining to the claims and payment made purportedly by the 1st Plaintiff. The counsel for the Defendants submitted that the car repairer or car workshop will normally submit an estimation first and then compare with the Adjustor’s Report. The receipts by the car workshop for repair are dated 30.7.2014, 7.8.2014 and 16.8.2014 (page 80 of Appeal Record). Based on the Adjustor’s Report, it is stated that the estimated repair is 16 days (page 49 of Appeal Record) with the proposed amount as RM7,778.88 being 30% of cost for repair and highlighted to the Court how could then the receipts be issued before the expiry of the inspection. [21] The Plaintiffs’ counsel on the other hand, explained that the Adjustor’s Report is of a later date as it is the practice for the Adjustor’s Report to be issued a few days later. In relation to the car workshop receipts, the Plaintiffs’ counsel submitted that the car workshop needed some money to buy the spare parts first. [22] It is the Plaintiffs’ averment that the Plaintiffs had suffered loss by making out of pocket expenses for the repair. The 1st Plaintiff claimed that the payment advanced was based on daily collection by taxi drivers of 1st Plaintiff and on that basis, no proof could be submitted for instance copy of cheque or invoice. 12 [23] Upon careful perusal of the documents submitted, this Court finds that the losses claimed for cost of repair and related expenses are not reflected in the Income Statement of the 1st Plaintiff (pages 83-84 of Appeal Record) nor are the instalments purportedly made by 1st Plaintiff. In addition, not even one taxi driver of the 1st Plaintiff other than the 2nd Plaintiff, was called to testify to affirm the averment of the 1st Plaintiff. I find that I am unable to ascertain the basis for the Magistrate’s consideration in allowing the claim by the Plaintiffs as there are no evidence to prove that the 1st Plaintiff actually made the out of pocket expenses for the repair and to claim for the cost of repair. On that basis alone, I viewed that the Plaintiffs’ claim for cost of repair and Adjustor’s fee must fail. [24] The Plaintiffs submitted the Adjustor’s Report but the claim for the repair differs from the suggested 30% cost of repair. Based on the testimony of the Plaintiffs’ witnesses, a number of discrepancies in the evidence submitted are found where among others, the Plaintiffs did not bring the damaged motorcar taxi to the investigating police officer after the accident where it was pleaded that the damage is mostly on the rear of the motorcar taxi (page 19 of Supplementary Appeal Record). The engine of the motorcar taxi was not ruined (page 15 of Appeal Record). The photos taken by the Adjuster are photos taken six days after the accident (pages 55 – 76 of Appeal Record). The Adjustor’s Report did not include the market value of the motorcar taxi nor the mileage at the time of the accident in order to make a comparison with the cost of repair for all motorcar parts of the motorcar taxi as suggested by the Adjustor (page 15 of Supplementary Appeal Record). The Plaintiffs did not seemed to prove that the motorcar parts claimed for repair are linked to the accident. 13 [25] In relation to the adjustor’s fees, it was based on the invoice issued by the Adjustor but during the cross-examination, it was the car workshop which appointed the Adjustor and not the 1st Plaintiff. The 1st Plaintiff did not produce any evidence that the payment for the Adjustor’s fees was advanced by the 1st Plaintiff and agreed that the 1st Plaintiff did not make the Adjustor’s fees payment. The Income Statement of the 1st Plaintiff submitted did not reflect the Adjustor’s fee purportedly made by the 1st Plaintiff. [26] In view of the evidence adduced by the Plaintiffs, tested against the oral evidence of the Plaintiffs, following the Court of Appeal case of Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19, seemed inconsistent. The case Pang Ah Chee (supra) referred by the Plaintiff’s counsel must be distinguished where it was held that the receipts produced not by the repairer but by the plaintiff is allowed. In this case, the receipts for repair were produced by the repairer and not the 1st Plaintiff, where the repairer appointed the Adjustor (page 13 of Appeal Record). I hold the view that the Plaintiffs’ claim had yet to be proven. [27] This Court viewed that there was a clear misdirection of law and findings by the Magistrate and it is incumbent upon this Court to intervene and correct the findings: Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323. This is based on the documents and testimony of the Plaintiffs leading to the decision of the Magistrate where the facts and evidence were not considered according to section 101 of Evidence Act 1950 and the Federal Court case of Letchumanan Chettiar (supra). The 14 Plaintiffs failed to prove its claim for cost of repair and the Adjustor’s fees, therefore following the Federal Court case of Gan Yoke Chin (supra), the Plaintiffs’ claim for this special damages should be set aside. In light of the above reasons, I allow the appeal with cost. Dated: 28 February 2018 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 15 SOLICITOR FOR THE APPELLANT / DEFENDANT SILVA VELU Tetuan Silva Velu & Co. Peguambela & Peguamcara Room 109, 1st Floor Bangunan Loke Yew Jalan Mahkamah Persekutuan 50050 Kuala Lumpur [Ref: SV/850(4)TMI/261/11/15] Tel: 03-2691 5309 / 03-2691 8528 Fax: 03-2694 4566 SOLICITOR FOR THE RESPONDENT / PLAINTIFF WAN ASMA’ BINTI WAN BURHADIN Tetuan H.S. Tay, Baharin & Partners Peguambela & Peguamcara No. 38A &38B, Jalan Datuk Haji Eusoff Kompleks Damai Off Jalan Ipoh 50400 Kuala Lumpur [Ref: MV/S43/329/T/0814)