1. ERWAN BIN ISMAIL v 1. NORIHAN BT SAMSUDDIN (Plaintif Pertama adalah (BA-12B-135-08/2016)

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1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: BA-12B-135-08 TAHUN 2016

Lampiran

Lampiran 2) and tendered evidence of the company’s payments received based on the Statement of Account of Dizat Enterprise (pages 201-203 Appeal Record Lampiran 2), and the voucher payments received from JMY Hajat Construction to Dizat Enterprise with accompanying cheques (pages 245-247 of Appeal Record Lampiran 2), collectively showed that construction works is the main income of Dizat Enterprise (pages 267-268 of Appeal Record). The counsel averred that on this basis, the Session Judge relied on the evidence adduced for Dizat Enterprise together with the evidence of the deceased’s wife and only allowed RM7,000.00. [7] The Plaintiffs’ counsel submitted that all evidence were produced and based on the case of Abdul Ghani Bin Hamid v Abdul Nasir Bin Abdul Jabbar & Anor [1995] 4 CLJ 317 and the case of Renhome Bricks Factory Sdn Bhd & Anor v Watah Umpin [2009] 9 CLJ 494, averred that the deceased’s earnings is legal, only that he did not pay his income tax and urge this Court to allow Plaintiffs’ claim for loss of earnings. 5 [8] The Plaintiff’s counsel also relied on section 7(3)(i) of Civil Law Act 1956 and submitted that even if there were insurance coverage or whatever benefits that the Plaintiffs received, they should not be taken into account. Defendants’ case [9] The learned counsel for the Defendants averred that for loss of earnings the deceased being the sole proprietor of the company Dizat Enterprise failed to provide sufficient evidence to prove the deceased’s earnings. It was argued by the counsel that the evidence adduced by the Plaintiffs on deceased’s company’s profits without documentation of proof even on deceased’s net monthly income for instance income tax return, company’s expenses, RPF and SOCSO instead of the company’s bank account statement. The Defendant’s counsel averred that the Session Judge had erred by allowing loss of earnings at the rate of RM7,000.00 per month when there was no actual proof of the deceased’s monthly income. [10] The Defendants’ counsel further averred that the Plaintiffs called witness SP1, the main contractor to the deceased’s company which is led by the deceased’s assistant, one Encik Nazri whom the Plaintiffs should have called to verify the company’s revenue and the income of the deceased. It was brought to the Court’s attention that the Plaintiffs’ witness, SP1, the main contractor to the deceased’s company testified that several payments had been made to the deceased’s company as follows: 6 - May 2015: RM104,600.00 - June 2015: none - July 2015: RM 177,819.00 [11] The Defendants’ counsel averred that the Plaintiffs’ witness SP2, having filed only the bank account statement of the deceased’s company (page 201 -217 of the Appeal Record), with no document of balance of account, proves to show that the deceased did not pay income tax which tantamounts to illegal earnings. The counsel relied on two articles written on illegal earnings as against public policy and referred to two cases, the Court of Appeal case of Chua Kim Suan v Government of Malaysia [1994] 1 CLJ 321 and the High Court case of Putri Ayu Ismail & Anor v Raulammah Nooraiah [2016] 5 CLJ 439. In the case of Putri Ayu Ismail (supra), JC Collin Lawrence Sequerah (now a High Court Judge) allowed the appeal by setting aside the Sessions Court’s award for Dependency Claims as the claims were founded on “claimant’s own illegal or immoral acts”. [12] The counsel for the Defendants submitted that the Plaintiffs did not call the deceased’s company’s assistant to prove on the income of the company and invoked section 114(g) of Evidence Act 1950. The counsel further averred that the Plaintiffs listed out its expenses and claim at the rate of RM12,000.00 however without proof and proposed that the dependency claim if any should be at the rate of RM2,500 which is not excessive and a fair rate, with the multiplicand of 5 years, times with 12 months, totaling RM150,000. As the deceased failed to declare its monthly income tax, the counsel for the Defendants relying on the two mentioned 7 cases urged this Court not to allow for the illegal earnings to be used as a basis for loss of earnings. APPEAL [13] In the case of quantum, before this Court could intervene, it must be satisfied that the trial judge had acted on the wrong principle of law or misapprehended the facts or has made a wholly erroneous estimate of the damage, based on the Federal Court case of Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857 and the recent Court of Appeal decision of Lay Hong Food Corporation Sdn Bhd v Tiong Nam Logistics Solutions Sdn Bhd [2017] 1 LNS 708 which made reference to the English case of Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601. [14] This suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78- 10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. 8 [15] The main ground of appeal advanced by the Defendants’ counsel is that the Session Judge had erred in granting the award without any evidence (paragraphs 1-2, Memorandum of Appeal, pages 5-6 of Appeal Record Lampiran 2). This Court viewed that based on the facts and evidence, there was a clear misdirection of law and findings by the trial judge and it is incumbent upon this Court to intervene and correct the findings: Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323. [16] The crux of the matter in this instant appeal is the claim for loss of earnings. Claims for loss of earnings had been decided in many decisions and I rely on the Federal Court case of Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ 294 which was referred by the Court of Appeal in the case of Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489 that loss of earnings are pre-trial loss which is an actual amount of earnings lost by a plaintiff as a result of an accident caused by the defendant. [17] I viewed that it would be pertinent to decide the actual amount of earnings lost based on evidence of earnings or expenses incurred. The Session Judge had in its written judgment stated that the award is allowed at the rate of RM7,000 per month although agreed with the Defendants’ counsel’s submission that that the deceased’s actual earnings could not be proven by the Plaintiffs (paragraphs 28-29, Supplementary Appeal Record (2)) and the income received by the deceased’s company Dizat Enterprise, cannot be considered as deceased’s earnings. The Session Judge relied on the oral evidence of SP2, the wife of the deceased and the 5th Plaintiff who is the mother of the deceased and decided that although no prove or 9 evidence was adduced, the Session Judge considered RM7,000.00 to be reasonable. [18] Based on this fact finding by the Session Judge and based on the trite law of the burden of prove which rests with the Plaintiffs, this Court is of the concern, the evidence relied or the basis of the Session Judge in determining the actual loss of earnings by the Plaintiffs. I stand to be guided by a number of cases decided by the Federal Court. The case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 1 PIR [16] held that where in assessing damages, it must be proved by evidence and not on mere speculation. [19] In Inas Faiqah Mohd Helmi (supra) case, the Federal Court Judge Abdull Hamid Embong (as he then was) had occasion to say, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sumpathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future. Such a lower degree to be attached is best termed by the word “possibility”, “chance”, “risk”, “danger” or “likelihood”, but regardless of the words used and 10 their semantics, they must also essentially be a substantial one and not speculative.” [20] In the case of Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324 attributed by the Defendants’ counsel, the Federal Court deliberated on the case of Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd [1982] 2 MLJ 71 where the amount of loss was proved by evidence and the Federal Court decided that the figure pleaded should be ignored and the effect of such evidence entitled the court to increase the amount. [21] Referring to the Court of Appeal case of Lay Hong Food Corporation Sdn Bhd (supra), Justice Zabariah Mohd Yusof (CAJ) had this to say, “It has been established time and again that a claim for damages for loss has to be proven, in the absence of which, the claim falls. For a Judge hearing the claim for damages for loss, it is incumbent upon that Judge to evaluate the facts and the evidence before arriving at a decision as to whether to allow or dismiss such claims. In cases where there has been a lack or the absence of such judicial evaluation of the facts and evidence, and an award of damages has been made by presiding Judge, such an award is liable to be set aside. This was reiterated in the Federal Court case of Gan Yoke Chin v Lee Ing Chin [2005] 2 MLJ 1. …” [22] Upon careful perusal of the documents before this Court and the oral evidence of the witnesses, there was clearly no evidence adduced by the 11 Plaintiffs to show the earnings nor the monthly expenses incurred by the Plaintiffs. The Plaintiffs listed down all their items of claim but without receipts or supporting documents to prove the claim (paragraphs a-k, pages 12-13 written submission of Plaintiffs’ counsel) for instance receipts of University and tuition fees which the Session Judge himself stated as no proof. In essence, the only evidence available is the existence of the deceased’s company led by the deceased’s assistant, however the company’s assistant being the material witness to the Plaintiffs’ pleaded case was not called to testify. [23] Based on the foregoing, the Plaintiffs’ claim for loss of earnings must fail. I therefore allow the appeal with cost. Dated: 26 January 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 12 COUNSEL FOR THE APPELLANTS/PERAYU TAMILARASI A/P RAJENDRAN Tetuan S.G. Lingam & Co. No. 27, Jalan Bukit Desa 5, Taman Bukit Desa 58100 Kuala Lumpur [Ruj: A10-01-01-4886-16] Tel: 03-79847771 Fax: 03-79847772 COUNSEL FOR THE RESPONDENTS/RESPONDEN PANJACHARAM K. SUBRAMANIAM Tetuan Siva Dharma & Associates 51A, Tingkat 1, Jalan Batu Tiga 41300 Klang, Selangor Ruj: RSD/6666/15/wz Tel: 03-33440021 Fax: 03-33443211