Annamary A/P Balasamy (K/P No. 650517-01-5985) v 1. Yip Jian Hui (K/P No. 950517-01-5985) (JA-12A-4-03/2020)

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YIP JIAN XIANG (K/P NO. 921020-07-5605) …RESPONDEN-RESPONDEN Dalam Mahkamah Sesyen di Johor Bahru Guaman No. JA-B53KJ-220-11/2018 ANNAMARY A/P BALASAMY (K/P NO. 650517-01-5985) sebagai ibu yang sah kepada MARGREAD A/P JAIJIN, simati dan membawa tindakan ini untuk dirinya dan juga pihak estate simati dibawah Seksyen 7 & 8 Akta Undang-Undang Sibil 1956, dan juga bagi gantirugi berifmen … Plantif

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YIP JIAN XIANG (K/P NO. 921020-07-5605) Defendan-Defendan 2 GROUNDS OF JUDGMENT Introduction [1] The Plaintiff had filed a dependency claim pursuant to sections 7 and 8 of the Civil Law Act 1956 (the Act) against the Defendants. The Defendants filed an application under Order 14A and Order 18 Rule 19

(b) and (d) Rules of Court 2012 to strike out the Plaintiff’s claim. The application to strike out was allowed by the Sessions Court. The Plaintiff’s appeal to the High Court was dismissed. This is the Plaintiff’s appeal against the decision of the High Court. Background facts [2] The Plaintiff is the mother of the deceased who passed away from a road accident on 7.3.2016 while the 1st Defendant is the driver of the motor vehicle involved. According to the Plaintiff, she had earlier filed a claim JA-B53KJ-67-04/2018 against the Defendants in April 2018. The same solicitors representing the Defendants in this claim were also acting for the Defendants in that earlier claim. That claim was withdrawn with liberty to file afresh. This current claim was filed on 17.11.2018. [3] Prior to that, on 29.9.2017 the husband of the deceased, one Easwaran Letchmanan, filed a dependency claim for himself and his two children vide JA-53KJ-576-09/2017. Consent judgment was entered on 26.11.2018. 3 Issue [4] The primary issue which arises and forms the premise of the striking out application is whether section 7(5) of the Act bars the Plaintiff from bringing this dependency claim when an earlier dependency claim had been filed by the husband of the deceased which resulted in a consent judgment being entered. Analysis and finding [5] The Defendants submitted section 7(5) of the Act was a complete bar. The Plaintiff contended otherwise and referred in particular to section 7(8) of the Act. [6] The relevant provisions of section 7 are reproduced: “FATAL ACCIDENTS AND SURVIVAL OF ACTIONS

Compensation to the family of a person for loss occasioned by his 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.

If there is no executor of the person deceased or there being an executor no action as in this section mentioned has, within six calendar months after the death of the person deceased, been brought by the executor, the action may be brought by all or any of the persons, if more than one, for whose benefit the action would have been brought if it had been brought by the executor, and every action so to be brought shall be for the benefit of the same person or persons and shall be subject to the same procedure as nearly as may be as if it was brought by the executor. 4 [7] It was the Court’s considered opinion that a plain reading of section 7(5) of the Act clearly means that there can only be one claim in respect of the same subject matter of complaint. The subject matter here is the dependency claim and in which there is to be “not more than one”. There can be no two dependency claims filed arising from the road accident. [8] Here it is very clear that the husband of the deceased had earlier filed his dependency claim on 29.9.2017 and a consent judgment entered on 26.11.2018. This was even prior to the first filing of JA-B53KJ-67- 04/2018 against the Defendants in April 2018 which was withdrawn with liberty. [9] The issue raised that the Defendants’ counsel was already representing the Defendants then and ought to have known of the Plaintiff’s claim in April 2018 when they were negotiating with the husband of the deceased for a settlement or could have applied to consolidate this claim with that filed by the husband of the deceased, are matters which this Court is unable to consider. Likewise too of another instance when two dependency claims were brought vide B53KJ-51-03/2018 and A53KJ- 736-11/2016 where the same firm representing the Defendants did not apply to strike out. This is because the Court only considers the legal aspects of the application, or otherwise, of section 7(5) of the Act. [10] Support for there not being not being more than one claim can be found in Amaravathy v Abdullah [1960] 26 MLJ 298 where it was stated: “It stands to reason from the wording of section 7(2) that since every action must be for the benefit of wife, husband, parent and children they alone can claim. Since the subject matter of the complaint is the same, to bring more than one action for or in respect of the same subject matter would be unnecessary. … It is therefore unnecessary and undesirable for there to be more than one 5 action. The provisions contained in section 7(5) therefore are designed to prevent a multiplicity of actions since all the persons named in section 7(2) have the same interest. … I think that the wording of section 7(5) therefore must mean that not more than one action may be brought to the final finding or award..” [11] The Plaintiff’s dependency claim being more than one, could therefore be struck out. [12] It was submitted by the Plaintiff that the claim could not be dismissed under section 7(5) of the Act as it only relates to instances where an executor had been appointed. In this instance, no executor was appointed. It is the Court’s finding that no such qualification as suggested is to be found in section 7(5). In fact that provision starts with the words “Not more than one action shall be brought”. [13] The Plaintiff’s other contention is that its claim falls under section 7(8) of the Act. This was because it dealt with a situation of there being no executor. The words “as nearly as may be” in that provision show that the procedure for an action as an executor is not identical to bringing an action as one of the beneficiaries under section 7(8). The Court finds that what section 7(8) means is that if the Plaintiff wanted to avail herself to the application of that provision, she has to bring her action “as nearly as may be” to that brought by an executor. In fact the earlier words “every action so to be brought” must necessarily refer to the action brought by “all or any of the persons”. The word “or” would mean that the action may be brought by “all the persons” for whose benefit the action would be brought, in which instance section 7(5) would not apply. If it is brought by “any of the persons”, section 7(5) would apply to limit the action to only one. Hence this provision does not permit multiple actions. 6 [14] It was further submitted that in Amaravathy, an executor was appointed and therefore section 7(8) did not apply. The court there instead applied section 7(5). A perusal of that case would show there was nothing specifically stating that section 7(5) can only apply in situations involving executors. Limitation in section 7(5) of the Act not pleaded [15] The Plaintiff also raised the issue that limitation in section 7(5) of the Act was not pleaded. In this regard the Court agreed with the Defendants that this was an instance of multiplicity of proceedings in the form of dependency claims. This could be raised by way of a striking out application. Conclusion [16] For the above reasons, the Plaintiff’s appeal was dismissed. (SEE MEE CHUN) Judge Dated: 28 June 2021 For the Appellant/Plaintiff: 7 Ms Chandrika Jaganathan Messrs Zaman & Associates Johor Bahru For the Respondents/Defendants Ms Kala Lakshimi a/p Annamalai Messrs Othman Hashim & Co Johor Bahru