Khatijah Binti Mohd ( Menuntut Sebagai Isteri Dan Anak-anak Yang Sah Serta Orang Tanggungan, Simati (Mohd. Fairuz Bin Mislahon) Dan Juga Untuk Kecederaan Diri (Plaintif Pertama) v Che Hui Ling (BA-12B-23-03/2025)

KHATIJAH BINTI MOHD (NO. K/P: 810403-11- 56680) ISTERI DAN ANAK-ANAK YANG SAH SIMATI (MOHD. FAIRUZ JUGA UNTUK KECEDERAAN DIRI

MUHAMMAD FATTAH NAUFAL MOHD.

NUR KHAIRINA FAIHANA

NUR KHALILAH FAIQAH (NO. K/P: 120810-14-0678) ANAK-ANAK YANG SAH SIMATI (MOHD. MENUNTUT MELALUI IBU, KHATIJAH BINTI MOHD) …PERAYU-PERAYU

CHE HUI LING

CHE HUI SHAN (NO. K/P: 850524-10-5120) …RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO: BA-B53KJ-25-08/2023

KHATIJAH BINTI MOHD (NO. K/P: 810403-11- 56680) ISTERI DAN ANAK-ANAK YANG SAH SIMATI (MOHD. FAIRUZ JUGA UNTUK KECEDERAAN DIRI

MUHAMMAD FATTAH NAUFAL MOHD.

NUR KHAIRINA FAIHANA

NUR KHALILAH FAIQAH (NO. K/P: 120810-14-0678) ANAK-ANAK YANG SAH SIMATI (MOHD. MENUNTUT MELALUI IBU, KHATIJAH BINTI MOHD) … PLAINTIF-PLAINTIF

CHE HUI LING

CHE HUI SHAN (NO. K/P: 850524-10-5120) …DEFENDAN-DEFENDAN)

This is an appeal against the decision of the learned Sessions Court Judge (SCJ) in a fatal accident claim arising from a road traffic accident. The claim was brought under section 7 of the Civil Law Act 1956 on behalf of the dependents of the deceased, Mohd Fairuz bin Mislahon.

The Plaintiffs are the widow and three children of the deceased, namely Khatijah binti Mohd, Muhammad Fattah Naufal bin Mohd Fairuz, Nur Khairina Faihana binti Mohd Fairuz, and Nur Khalilah Faiqah binti Mohd Fairuz. The Defendants are Che Hui Ling and Che Hui Shan.

The parties will be referred to as they were in the Sessions Court.

The SCJ entered judgment in favour of the Plaintiffs and made an award for, among others, loss of dependency. Dissatisfied with the quantum awarded, the Plaintiffs filed this appeal.

After hearing both parties, considering the appeal record, and reading the written submissions filed, I dismissed the appeal with costs. These are my grounds.

The material facts are drawn from the submissions and the documents in the Record of Appeal.

The accident occurred on 13 February 2022 at about 8.45 pm at KM 10.4 of the Elite Highway. The deceased, Mohd Fairuz bin Mislahon, was riding a motorcycle at the material time.

The 1st Defendant was driving a motor vehicle along the same highway. From the evidence of the investigating officer, the 1st Defendant was travelling in the right lane and had given a signal to change lane.

There were motorcycles travelling behind the 1st Defendant’s vehicle, including the motorcycle ridden by the deceased. The evidence shows that more than one motorcycle was in the vicinity at the time of the incident.

The evidence from the police investigation refers to statements recorded from witnesses, including other motorcyclists. These statements suggest that the 1st Defendant had attempted to change lanes shortly before the collision. There were differing accounts as to the precise sequence of events leading to the collision.

What is not in dispute is that a collision occurred involving the motorcycle ridden by the deceased, and that the deceased sustained fatal injuries as a result.

The records also show that the 1st Defendant was charged in relation to the accident, pleaded guilty, and was fined.

I note that the detailed apportionment of fault is not a live issue in this appeal. Liability was agreed at the trial, and no challenge on liability is before this court. The background facts are therefore set out only to provide context to the claim for loss of dependency.

In the absence of written grounds of judgment from the SCJ, the basis of this appeal is gathered from the Memorandum of Appeal and the submissions filed by both parties.

The Plaintiffs contend that the SCJ erred in the assessment of loss of dependency. The complaints can be grouped as follows.

First, the Plaintiffs contend that the SCJ erred in fixing the multiplicand. They say the figure adopted does not reflect the actual income of the deceased, and that the evidence, in particular the employer’s evidence and the oral testimony on earnings and contribution, supports a higher monthly income.

Second, the Plaintiffs contend that the SCJ erred in making deductions in arriving at the deceased’s monthly contribution. They argue that the deductions were not supported by the evidence, and that there was no cross-examination on living expenses.

Third, the Plaintiffs contend that the SCJ erred in declining to include EPF contributions as part of the loss of dependency.

Fourth, the Plaintiffs contend that the SCJ failed to properly appreciate the evidence, in particular the oral evidence relating to the deceased’s income and contribution.

Taken together, the central issue is whether the SCJ had properly assessed the evidence in determining the loss of dependency, or whether the assessment discloses an error of principle or a misapprehension of the evidence warranting appellate intervention.

The law on appellate intervention is settled. An appellate court does not interfere merely because it may have arrived at a different conclusion on the same evidence. Intervention is only warranted where it is shown that the trial court has acted on a wrong principle of law, misapprehended the evidence, or where the decision is plainly wrong.

In this regard, I am guided by the principles set out in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor (2003) 2 CLJ 19, where the Court of Appeal explained the approach to judicial appreciation of evidence. The trial judge must assess, weigh, and test the evidence against the contemporaneous documents and the overall probabilities of the case. A failure to undertake such an exercise may justify appellate intervention.

Similarly, as observed in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] CLJU 119, greater weight should generally be given to contemporaneous documentary evidence rather than subsequent oral recollection, particularly where the two are inconsistent.

These principles apply equally in an appeal on quantum. The assessment of damages, including loss of dependency, is an evaluative exercise. Unless it is shown that the trial court has taken into account irrelevant matters, failed to consider relevant evidence, or arrived at a figure that is plainly wrong, the appellate court should not interfere.

I now turn to the issues raised in this appeal.

The Plaintiffs submit that the SCJ erred in fixing the multiplicand and ought to have accepted a higher figure based on the oral evidence, including the employer’s evidence and the widow’s testimony on the deceased’s contribution. The Defendants submit that the SCJ was entitled to rely on documentary proof of income.

The position of the law is clear. The court must assess and weigh the evidence, and where there is a conflict between oral testimony and contemporaneous documents, greater weight is to be given to the documents. This was explained by the Court of Appeal in Lee Ing Chin and affirmed in Tindok Besar Estate Sdn Bhd.

In the present case, I find that the SCJ preferred the documentary evidence of income. There is nothing to show that the SCJ misread those documents or failed to consider any material evidence. The Plaintiffs’ complaint is, in substance, that the SCJ ought to have given greater weight to oral evidence.

That is a matter of evaluation. It does not, without more, disclose any error of principle. An appellate court is not entitled to substitute its own view merely because it would have reached a different conclusion on the same evidence (see Ng Hoo Kui & Anor v Wendy Tan Lee Peng & Ors [2020] 6 MLRA 193).

I therefore find no basis to interfere with the multiplicand adopted by the SCJ. Deductions for living expenses

The Plaintiffs contend that the SCJ erred in making deductions for living expenses, particularly in the absence of cross-examination on that issue. The Defendants submit that such deductions are necessary to arrive at the true dependency.

It is trite that in a claim for loss of dependency, the court must assess the net financial benefit to the dependents, not the gross income of the deceased. This requires a deduction for the deceased’s own living and personal expenses. The Federal Court in Chan Chin Ming v Lim Yok Eng [1994] 3 MLJ 233 made clear that the multiplicand must reflect the net loss to the dependents.

The position of the law is also that the court is entitled to make a reasonable estimate of such expenses even in the absence of precise evidence. The Court of Appeal in Ibrahim bin Ismail v Mohd Radzi bin Hamzah [2010] 3 MLJ 18 held that the court cannot assume that the deceased spent nothing on himself, and must make an appropriate deduction.

The absence of cross-examination on living expenses does not alter this position. The court is still required to carry out its statutory duty to assess dependency based on the evidence as a whole (refer to Chan Chin Ming).

In the present case, the Plaintiffs have not shown that the deduction made by the SCJ is excessive or outside the permissible range. There is also no clear evidence placed before the court to establish the deceased’s actual personal expenditure.

In those circumstances, I am not satisfied that the SCJ acted on a wrong principle or that the deduction made is plainly wrong. EPF contributions

The Plaintiffs submit that EPF contributions ought to have been included as part of the loss of dependency. The Defendants submit that EPF is not automatically recoverable and must be proved.

The position of the law is that contributions to a provident fund may, in principle, form part of a loss of dependency. This was recognised in Singapore Bus Service (1978) Ltd v Lim Soon Yong [1985] 1 MLJ 158, where such contributions were held to constitute a pecuniary benefit which dependents may reasonably expect to receive.

However, it was also decided by the Court of Appeal in Goh Chai Huat v Lee Mui Ping & Ors [2000] 1 MLJ 143 that a claim for such contributions must be strictly proved. The court will not assume the existence or quantum of contributions in the absence of documentary evidence.

In the present case, while the Plaintiffs assert that EPF should be included, I do not find sufficient evidence placed before the court to establish the contributions and how they would translate into the financial benefit lost by the dependents.

In the absence of such proof, the SCJ was entitled to decline to include EPF contributions. This is not a rejection of EPF as a matter of law, but a finding based on the evidential position in this case.

I therefore find no error on the part of the SCJ in this regard. Overall assessment

Taking the issues together, I find that the Plaintiffs have not demonstrated that the SCJ acted on a wrong principle of law, misapprehended the evidence, or arrived at a figure that is plainly wrong.

The challenge mounted by the Plaintiffs is, in substance, directed at the weight given to the evidence and the conclusions drawn from it. That falls within the domain of the trial court. Absent a clear error, this court ought not to interfere.

Accordingly, I find that the threshold for appellate intervention has not been met.

For the reasons set out above, I find no basis to interfere with the assessment of loss of dependency made by the SCJ.

The appeal is therefore dismissed.

Costs of RM3,000.00 are awarded to the Defendants, subject to the allocator. Dated this: 20th April 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representatives: For the Appellants : S. Murali Messrs Sivaruben & Co. For the Respondents : Nur Hidayah binti Zainuddin Messrs Gan, Ho & Razlan Hadri