1. Personal Representative of the Estate of v 1. Mazli Bin Nuruddin (PA-12B-9-01/2019)

Personal Representative of the Estate of

Tan Poh Keat

Mazli Bin Nuruddin (NRIC No: 640411-07-5441)

Latifah Binti Osman (NRIC No: 640411-07-5441) [Suing as dependents of Mohamad Irfan Bin Mazli (deceased) under Section 7 and 8 Civil Law Act 1956] ...Respondents JUDGMENT [1] The appeal before me was solely against the quantum awarded for loss of support under section 7 of the Civil Law Act 1956. The Sessions Court, according to the order dated 18.1.2019, had awarded RM2,000.00 a month to the dependants who were the parents of the deceased aged 24 years and unmarried at the time of his death. 2 [2] On 11.9.2019 after reading the cause papers of the appeal and the submissions of the parties I dismissed the appeal. Thereafter on 8.10.2019 the appellants filed an appeal against that decision. These are my reasons for dismissing the appeal. [3] The evidence of an officer from the Employees Provident Fund (SP2) established that monthly contributions were made by Etika Bina Enterprise for the deceased until his death. The amount of monthly contributions according to SP2 would translate to the deceased earning RM3,500.00 a month. The deceased was also a partner in Etika Bina Enterprise and the other partner of this enterprise produced the deceased payment voucher salary confirming a monthly allowance of RM3,500.00 a month. This amount then was the base figure used by the appellants, respondents and the Sessions Court Judge to calculate the monthly loss of support. [4] The appellants submitted that since the deceased was unmarried and has his own expenses any support in monetary terms to his parents would not exceed 1/3 of his 3 salary of RM3,500.00 or RM1,166.00 a month. It was submitted by counsel that this is the amount that should be awarded as the monthly loss of support. The respondents who had filed a cross-appeal submitted that the evidence shows that the deceased gave his parents RM3,000.00 a month. [5] The Sessions Court Judge, on the other hand and as stated above arrived at a figure of RM2,000.00 as loss of support from the inflated figure of RM3,000.00. I find that the Sessions Court Judge had not acted on a wrong principle or misapprehended the facts that were proved during the trial. It was established that the deceased living expenses were RM300.00 a month, namely, on food and transport. This is a reasonable amount considering the fact that he lived with his parents and also ate at home. The 1st respondent (the deceased father and dependant) testified that he and his wife suffered loss of support on upon the death of the deceased in the form of monthly medical expenses and utilities bills for the house which was borne by the deceased. 4 [6] In respect of the loss of support for the parents it was merely suggested to the 1st respondent in cross-examination that the said expenses were not incurred. The effect of ‘suggesting’ something means that the evidence of the witness is unbelievable or inherently incredible. In an article, “Putting and Suggesting in Cross-Examination” Mahadev Shankar J (January 1984 MLJ xi) had this to say: It is well established that when matters are ‘put’ in cross-examination by defence counsel it is implied that positive evidence will be called to prove the matters put. On the other hand when all that is done is to ‘suggest’ to a witness that a fact is not so, then what is meant is that the assertions of the witness is inherently incredible but that no positive evidence will be called to contradict the statement. [7] There was no cross-examination on the loss of support apart from the bare suggestion by the appellants. In my judgment there is nothing inherently incredible of such evidence. Usually, foundation is laid before such a suggestion is made by a series of questions at the end of 5 which it is suggested to the witness that his assertions are unbelievable or inherently incredible unless of course the evidence is in itself inherently incredible that no one would believe. [8] I have combed the evidence and found that there was no foundation laid for the making of the suggestion to the 1st respondent. The evidence of the witness is credible and there is no basis to reject the evidence of the 1st respondent. [9] Accordingly for the reasons stated above I dismissed the appeal. ………………Sgd………………….. Amarjeet Singh Serjit Singh Judicial Commissioner High Court of Malaya at George Town Dated: 14thOctober 2019 6 Counsel for the Appellant: Habib Rahman [ MOHD IMTIAZ CHOONG & PARTNERS (PENANG) ] Counsel for the Respondent: Ooi Kim Ing [ MANJIT & CO. (BUKIT MERTAJAM) ]