1. ) Nai Tong Loi v 1. ) Ayu Aqiera Binti Amran (MC-A73KJ-165-06/2025)

NAI TONG LOI (mendakwa sebagai bapa dan tanggungan kepada NAI CHOON SEONG, simati)

CHEE FAH MOY (mendakwa sebagai ibu kandung dan tanggungan kepada NAI CHOON SEONG, simati) ... PLAINTIFFS

AFFENDI BIN TALIB ... DEFENDANTS GROUNDS OF JUDGMENT (ENCL. 5 and ENCL. 17)

This case concerns a road accident of the deceased which happened in Jalan Kemuning, Padang Sebang on 19.3.2022 around 7:15 pm where he was riding his bicycle along and/or around Jalan Kemuning, when suddenly a motor car bearing registration number WKF 3709 that was registered under the name of the Second Defendant and being driven by the First Defendant, coming from the same direction colliding into the bicycle ridden by the deceased. The First and Second Plaintiff are the biological father and mother of the deceased who had suffered in the fatal accident which has taken place on Jalan Kemuning, Padang Sebang, Alor Gajah, Melaka.

By way of Enclosure 5 dated 11.8.2025, the Defendants applied to strike out the Plaintiffs’ claim. The striking out application was made under Order 18 rule 19(1)(b) or (d) of the Rules of Court 2012 (“ROC 2012”). On 31.10.2025, I allowed the Defendants’ striking out application and struck out the Plaintiffs’ suit. Here are the grounds of my decision.

The Plaintiffs claimed that the said road accident was caused wholly and/or partly by the negligence and carelessness of the Defendants in the driving/handling of motor car no. WKF 3709, and was contributed to by the Second Defendant being the owner of motorcar No. WKF 3709, who had given permission to the First Defendant to drive and/or operate the said motor car.

The grounds of the Defendant’s striking out application (Encl. 5) are as follows:- a) The First and Second Plaintiffs, who are the biological father and mother of Nai Choon Seong (“the deceased”), filed this action to claim damages under Section 7 of the Civil Law Act 1956, namely damages for bereavement and grief, as well as special damages arising from a fatal accident that occurred on 19.3.2022, involving a bicycle which was ridden by the deceased and motor car No. WKF 3709 which was driven by the First Defendant; b) In this action, the First and Second Plaintiffs, through their solicitors Messrs JJ Lee, Ooi & Co, filed a Writ of Summons dated 5.6.2025 and a Statement of Claim dated 3.6.2025 in the Magistrates’ Court of Alor Gajah via Civil Suit No: MC-A73KJ-165-06/2025, which was filed more than three years after the date the cause of action accrued, namely the date of the road accident between the deceased and the Defendants; c) In their Statement of Claim dated 3.6.2025, the Plaintiffs also pleaded that the said road accident occurred on 19.3.2022 at about 7:15 pm; and d) As such, the claim by the First and Second Plaintiffs against the First and Second Defendants is barred under the Limitation Act 1953 from being brought before this Court.

The Plaintiffs submitted that the Defendants failed to put forth any of their affidavits filed at Enclosures no. 6 and no. 8, to demonstrate whether the Plaintiffs’ action is scandalous, frivolous or vexatious within the paragraph (b), or whether the Plaintiffs’ action could prejudice, embarrass or delay the fair trial of the action within the paragraph (c), or whether the Plaintiffs’ action is an abuse of the process of the Court within the paragraph (d).

In addition, the Plaintiffs submitted that prior to the expiration of the limitation period for filing this legal suit, the Plaintiffs had sent a notice under section 96(2) of the Road Transport Act 1987 (“RTA 1987”) with reference made to the case of Mohd Azlan bin Hazilman v Jacky Soh Chew Wei & Anor [2022] MLJU 3346 (“Mohd Azlan”), High Court. It was held in that case of Mohd Azlan (supra) that it is an accepted practice in accident cases for a would-be plaintiff to write in to the insurer and attempt to secure an out of court settlement after serving the said notice to a defendant’s insurer pursuant to same section 96(2) of the RTA 1987. The Plaintiffs further contended that where a reasonable settlement can be reached, then there would be no necessity to file any legal action.

In light of that, the Plaintiffs stressed that the deceased was a disabled person who had been raised under care from his birth by his parents (the Plaintiffs) and the Plaintiffs were deeply grieved by loss of their beloved child with all due respect. Hence, the Plaintiffs averred that filing of the Writ and Statement of Claim outside the limitation period does not prejudice against the cause of action in the current case.

In the Defendants’ application at Enclosure 5, the striking out application was made pursuant to Order 18 rule 19(1)(b) or (d) of the ROC 2012. However, in their written submission at Enclosure 9, paragraph 6, the Defendants stated that the application was made under Order 18 rule 19(1)(b), (c) or (d) of the ROC 2012, thereby adding paragraph (c), which is, “it may prejudice, embarrass, or delay the fair trial of the action.” Nevertheless, this Court will only consider the relevant paragraphs (b) and (d) as expressly stated in the prayer of the application at Enclosure 5 by the Defendants.

The Defendants’ counsel contended that since this case involved a dependency claim arising from a death, the Plaintiffs’ filing of the cause of action exceeded the limitation period prescribed by law for claims relating to death. Referring to section 7(5) of the Civil Law Act 1956, the Defendants argued that this provision allows no exception, and the claimants must strictly comply with it.

The Defendants further submitted that there was no dispute in regard to the material fact that the deceased passed away on 19.3.2022, with the Writ of Summons and Statement of Claim filed by the Plaintiffs on 5.6.2025. The Defendants, therefore, submitted that the Writ of Summons filed on 5.6.2025 exceeded the limitation period as stipulated under section 7(5) of the Civil Law Act 1956, which mandates such an action be filed on or before 19.3.2025 as contended by the Defendants themselves, within three years from the date of death of the deceased (although the fact that it must be filed on or before 18.3.2025).

As such, the Defendants submitted that the claim be struck out as the cause of action was filed by the Plaintiffs on 5.6.2025, out of the prescribed limitation period.

A plea of limitation need not be pleaded for section 7(5) Civil Law

In the Defendants’ written submission filed at Encl. 9, paragraph 20, they submitted that the limitation period constitutes a valid and strong defence available to the Defendants, and that it would be prejudicial to them if the Plaintiffs failed to comply with it. It must, however, be borne in mind that the Defendants in the current case did not file a defence to raise the issue of limitation. This is because, in the current case, it is noted that a plea of limitation was not required to be raised, nor was this a case where a defence based on limitation must be clearly and specifically pleaded (Traczone Machinery Sdn Bhd v MG Ngu & Sons Sdn Bhd & Ors [2025] MLRSU 448, SC; Lee Lee Cheng v Seow Peng Kwang [1959] 1 MLRA 246, CoA).

As observed, the Plaintiffs who were in fact suing through the parents of the deceased, were claiming compensation under section 7(5) of the CLA 1956 for loss arising from the death of their child allegedly caused by the negligent driving of a motor vehicle owned by the Second Defendant and driven by the First Defendant. Even though no defence was filed by the Defendants, the terms of section 7(5) of CLA 1956 are absolute and contain no exceptions. The section expressly provides that as follows: - “7. Compensation to persons entitled for loss occasioned by death

Not more than one action shall be brought for and in respect of the same subject matter of complaint, and every such action shall be brought within three years after the death of the person deceased.“ (Emphasis added)

This provision of section 7(5) of CLA 1956 merely prescribes a period of limitation and does not contain a condition precedent or any qualification of that nature. In essence, the limitation period prescribed is absolute. There is no uncertainty as to when it begins to run as it runs from the date of death of the person upon whose support the Plaintiffs here were the dependents. In this situation, the cause of action arises at the time of death (Kuan Hip Peng v Yap Yin & Anor [1964] CLJU 69; [1964] 1 LNS 69; [1965] 1 MLJ 252, FC; Lee Cheng Yee v Tiu Soon Siang & Anor [2004] 1 MLJ 670, CoA).

It is trite law that a plea of limitation need only be pleaded where the limitation is not absolute, such as under the Limitation Act

However, it does not apply to a statute of limitation that is absolute and without exception, as in the current case. Accordingly, although limitation constitutes a defence, in this situation where no defence was filed, this Court found that it is neither improper nor prejudicial to the Plaintiffs, since the operation of section 7(5) of CLA 1956 itself is sufficient to give notice to the Plaintiffs of the absolute nature of the prescribed three-year limitation period, and there was no necessity for the Defendants to specifically plead limitation.

At the same time, the Plaintiffs’ counsel, in their written submission filed at Encl. 11, did not question that limitation which was not specifically pleaded in the Defendants’ defence. This Court appreciates the prudence of both parties and reiterates that, in the circumstances, the Defendants are entitled to rely on limitation in their application to strike out the claim, even though it was not specifically pleaded, given that this is a dependency claim governed by section 7 of CLA 1956.

Distinguished from the case of Mohd Azlan (supra)

It is submitted that, the plaintiffs here relied heavily on the case of Mohd Azlan (supra), to submit a motor vehicle accident happened on 13.5.2015 and later on 22.5.2021 where a plaintiff instituted an action against the defendants. Sometime later, the defendants applied to strike out the plaintiff’s claim who had sued the defendants for negligence from a motor vehicle accident, under the Order 18 rule 19(1)(b) or (c) or (d) of ROC 2012, on the pretext that the said plaintiff’s claim was statute-barred, to section 6 of Limitation Act 1953, as the claim had been filed nine days after the expiry period.

The Plaintiffs in the current case argued that before the expiry of the limitation period, the plaintiff in Mohd Azlan (supra) had sent to the defendant’s insurer a notice pursuant to section 96(2) of RTA 1987, containing facts similar to the current case.

As for the case cited by learned counsel for the Plaintiffs, namely Mohd Azlan (supra), this Court is entitled to consider the circumstances of that case, which are materially distinguishable from the current case in the following respects: a) The most obvious and glaring distinction lies in the fact of Mohd Azlan’s case (supra) that the defendant’s insurer replied on 9.3.2021 stating that it was willing to make a direct settlement with the plaintiff, provided the issue of dual representation by another firm of solicitors could first be resolved. The insurer insisted that the issue of “dual representation” be resolved before any settlement offer could be made. In contrast, exhibits (LJJ-1) annexed to the affidavit in reply of the Plaintiffs at Encl. 7 clearly showed that the Plaintiffs’ notice under section 96(2) of RTA 1987 dated 24.02.2025, which was sent via email to one “CCC-Kurnia” on the same date. The email was then forwarded, and by 28.2.2025 the correspondence showed the involvement of Liberty General Insurance Berhad. On 3.3.2025, Ms. Nur Umira Mustafa, Sr. Admin Assistant, Shared Services of Liberty General Insurance Berhad, acknowledged receipt of the said email and indicated that a confirmation would be given within three working days, by 6.3.2025. Nevertheless, no further email correspondence was exhibited by the Plaintiffs thereafter. The entire chain of correspondence clearly demonstrated that the Defendants’ insurer which known as Liberty General Insurance Berhad, never reverted with any offer for settlement. Further, there was no evidence that the Plaintiffs’ counsel made any follow-up inquiry or received any reply from the insurer after the acknowledgement by the said Ms. Nur Umira Mustafa. Therefore, the Plaintiffs’ unilateral claim that the acknowledgement of receipt itself indicated the Defendants’ intention to settle the matter amicably is baseless. It bears no resemblance to Mohd Azlan’s case (supra), where there was a positive indication of willingness to settle from the words of the Defendants. In the absence of any such confirmation or settlement communication, there was no necessity to delay filing a court action on the assumption that the matter could be resolved amicably; and b) In the case of Mohd Azlan (supra), learned counsel for the defendants contended that the plaintiff’s claim was statute-barred under section 6 of the Limitation Act 1953, as it was filed nine days after the expiry of the limitation period. Pursuant to section 6(1) of the Limitation Act 1953, the limitation period for bringing an action in tort is six years from the date the cause of action accrued. The collision occurred on 13.5.2015, and thus the plaintiff’s cause of action would have been statute-barred by 12.5.2021. However, in Mohd Azlan’s case (supra), the plaintiff commenced the action ten days after the expiry of the limitation period, although the defendants contended it was nine days. The Court in the said case of Mohd Azlan (supra) held that the grounds relied upon by the defendants did not substantiate the striking out application, as the plaintiff should be given the opportunity to pursue the pending settlement rather than be compelled to institute legal action merely to achieve the same objective. In contrast, in the current case, the Plaintiffs’ claim was filed out of time, contrary to the express and mandatory requirements of section 7(5) of CLA 1956. The limitation under this section 7(5) is absolute in nature, unlike the limitation under section 6 of the Limitation Act 1953 as relied upon in Mohd Azlan’s case (supra). As stated in Joseph Anthony & Anor v. Dr. Muhammad Arif Mohamad Rasat & Ors [2023] 6 MLRH 599 by Leong Wai Hong JC, High Court, the limitation under the Limitation Act 1953 shall not operate as a bar unless it is specifically pleaded as a defence. A defendant who wishes to rely on limitation under the Limitation Act 1953 must therefore expressly plead it, as the limitation periods under the Limitation Act 1953 are not absolute and may admit exceptions. In short, Mohd Azlan’s case (supra) concerned a striking out application under section 6 of the Limitation Act 1953, whereas the current case involved a limitation issue arising under section 7(5) of CLA 1956 which is mandatory and absolute in nature.

Paragraph (b) of Order 18 rule 19(1) of ROC 2012 20. Under paragraph (b) of Order 18 rule 19(1) of ROC 2012, the question arises whether the Plaintiffs’ claim is scandalous, frivolous or vexatious. Broader in scope, this ground targets pleadings which may appear to disclose a cause of action but are in substance unsustainable, devoid of merit, or pursued for an improper purpose. The term “scandalous” pertains to irrelevant or offensive matters that unnecessarily prejudice the opposing party; “frivolous” refers to claims lacking any reasonable basis, and “vexatious” to those instituted with the intent to harass or annoy. Under this limb, this Court may consider affidavit evidence in determining whether the pleading should be struck out (Ooi Swee King v Standard Chartered Saadiq Berhad & Another Appeal [2025] MLRHU 1668, HC; Hamzan Hamzah v. Dr Ahmad Zul Fikri Mohamad [2025] MLRHU 1643, HC).

This Court is unable to agree with the submission of learned counsel for the Plaintiffs that the Plaintiffs’ act of sending a notice under section 96(2) of RTA 1987 on 24.2.2025, which they contended was within the limitation period expiring on or before 18.3.2025, could be regarded as sufficient compliance with the statutory limitation requirement. The Defendants’ insurer never replied with any offer of settlement that could have given rise to a legitimate expectation on the part of the Plaintiffs that the matter could be settled without resorting to legal proceedings.

It is a trite principle that the limitation period begins to run from the date the cause of action accrues and applies to the filing of the action in the Court of competent jurisdiction. The mere act of sending a notice under section 96(2) of RTA 1987 to the defendant’s insurer in a motor vehicle accident case, without the insurer making any offer of settlement, cannot substitute or extend the statutory period for filing the action in Court.

In addition, the last email exhibited was dated 3.3.2025, from Ms. Nur Umira Mustafa as Sr. Admin Assistant, Shared Services from Liberty General Insurance Berhad, indicating that a confirmation would be given within three working days (which was within 6.3.2025). From that date of 6.3.2025 until 18.3.2025, there remained “13 days” for the Plaintiffs to take the necessary steps to confirm the insurer’s position and to file the action in Court within time. However, the Plaintiffs failed to do so. Application To Adduce Fresh Evidence Under Enclosure 17 24. On 29.10.2025, at the very last minute, the Plaintiff’s counsel filed an application under Encl. 17 to adduce fresh evidence, which consisted of an email reply from the insurance company. The content of the email merely stated that the company needed to appoint a lawyer to handle out-of-court negotiations on 3.3.2025 and requested 14 days to do so. In this regard, the Court is disappointed to note that, although the issue of limitation should be well within the knowledge of learned counsel, the plaintiff’s counsel appeared to place lesser concern on calculating the limitation period from the date of the accident to the filing of the action in court. It appears as though the fundamental principles of law and procedure were not regarded as essential in this context. This Court had fixed 31.10.2025 for the delivery of the decision on Encl. 5 and proceeded accordingly. As such, Encl. 17 became academic and was accordingly struck out with no order as to cost.

In the considered view of this Court, the defence of limitation as submitted by the Defendants constitutes a complete defence afforded by section 7(5) of CLA 1956. This Court therefore found that the Plaintiffs’ claim against the Defendants is barred by the limitation period prescribed under section 7(5) of CLA 1956. Consequently, the Plaintiffs’ claim must inevitably fail, and is properly characterised as frivolous.

26.

Paragraph (d) of Order 18 rule 19(1) of ROC 2012 27. Under paragraph (d) of Order 18 rule 19(1) of ROC 2012, it concerns situations where it is otherwise an abuse of the process of the Court, as applied by the Defendants in the current case. On the question of whether the Plaintiff’s action amounts to an abuse of the Court’s process, this Court agrees with the Defendants that it was open to them, in an application to strike out the action as an abuse of process, to show that the Plaintiff’s cause of action was statute-barred.

As explained in Ooi Swee King’s case (supra), the said sub-paragraph (d) of Order 18, ROC 2012 is directed at abuses of the Court’s process, such as duplicative proceedings, the relitigation of determined matters, or the use of the litigation process for collateral purposes. In line with this reasoning, the current case does not advance a genuine claim but instead opens the floodgates to unnecessary complexity in the proceedings. The Plaintiff’s counsel was aware of the limitation period and had sufficient time, from 6.3.2025 to 18.3.2025, to take the necessary steps confirming any settlement offer with the Defendants’ insurer and filing the claim in Court within the prescribed period. However, the Plaintiffs failed to do so, and now seek to rely on the sending of the section 96(2) notice of RTA 1987 to the Defendants’ insurer as a means to avoid the limitation issue and to create an unfounded exception to the absolute limitation prescribed under section 7(5) of CLA 1956.

In the considered view of this Court, such a practice would risk and prejudice the administration of justice by encouraging the refiling of cases on the same facts and for collateral purposes, thereby rendering the absolute limitation legislation ineffective. It would allow parties to modify the statutory standard at their discretion by merely sending a notice to the insurer instead of filing the action within the prescribed limitation period, effectively carving out baseless exceptions and exemptions. More importantly, this should not be treated as a precedent nor as a rule that the mere sending of such notice under section 96(2) of RTA 1987 within the limitation period is sufficient to prevent the limitation period from expiring when an accident claim is filed out of time.

This Court must remain vigilant in exercising its judicial discretion. In the circumstances, since the Plaintiff’s action was not filed within the timeline prescribed by section 7(5) of CLA 1956 as mentioned above, this Court is of the considered view that it constitutes an abuse of Court’s process, and accordingly, the Plaintiff’s claim should be struck out.

Since the limbs under Order 18 rule 19(1) of ROC 2012 are disjunctive (Datuk Ir Che Amran bin Mohd Yusoff v Yayasan Melaka & Ors [2003] MLJU 7, HC), in the circumstances prevailing before me, the Defendants are accordingly entitled to invoke the said Order 18 rule 19(1)(b) or rule 19(1)(d) to strike out the claim on the basis that it is frivolous and plainly an abuse of the process of the Court.

In the upshot, based on the reasons adumbrated above, this Court has carefully examined and considered the details of the Plaintiffs ’ claim as well as the applicable principles of law of striking out in the exercise of the Court’s powers. In my considered view, the Defendants have successfully made out a case under paragraph

or (d) of Order 18 rule 19(1) of ROC 2012. This Court found that the grounds relied on by the Defendants as averred in the affidavits have substantiated the application according to these two paragraphs of Order 18.

In the premise, this Court allows the Defendants' application in Encl. 5 and strikes out the Plaintiffs’ Writ and Statement of Claim with costs of RM1,000.00 payable by the Plaintiffs to the Defendants. Dated this 31 October 2025 SGD ------------------------------ TEOH SHU YEE MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH FOR THE PLAINTIFFS : LEE JING JAU TETUAN JJ LEE, OOI & CO (MELAKA) FOR THE DEFENDANTS : MUHAMMAD MUTTAQIN BIN NOOR AZMI