Cheah Cheng Huat v Aig Malaysia Insurance Berhad (PA-12BNCvC-18-07/2023)

The Plaintiff/Appellant is a veterinarian who procured several medical insurance policies from the Defendant/Respondent. Claims were subsequently made pursuant to those policies. It is well settled that an insurer's liability is circumscribed by the express terms, conditions, and exclusions of the policy in question. In the present case, the Defendant/Respondent disputes the Plaintiff/Appellant's entitlement to the claims on that basis.

The Sessions Court dismissed the Plaintiff/Appellant's claims after full trial. Being dissatisfied with that decision, the Plaintiff/Appellant has appealed to this Court. The task before this Court is therefore to determine whether the learned Sessions Court erred in fact and/or in law in rejecting the claim, such as to justify appellate intervention.

Unless otherwise stated, the parties shall be referred to as they were in the court below.

The overriding issue in this appeal is whether the Plaintiff's claims fall within the coverage of the policies when properly construed.

Following from this are these two pertinent questions, namely whether the Plaintiff has produced evidence to prove the said accident happened on 15 June 2012; and second, whether the Plaintiff's injuries are covered by the policies.

The background facts and the Plaintiff's claims in the Sessions Court may be gleaned from the following paragraphs of grounds of judgment of the learned Sessions Court Judge. [2] Plaintif merupakan seorang Doktor Veterinar dan Defendan merupakan seorang Pelindung Insurans. [3] Plaintif telah mengambil beberapa polisi "Personal Accident" daripada Defendan iaitu:

SCB Acciguard - No polisi: 261524 dan 270388

(ii) SCB Sunshine - No Polisi: 022244. [4] Plaintif juga telah mengambil beberapa polisi di bawah "Daily Hospital Income Benefit" seperti berikut:

Medi-care Policy - No Polisi: 203981;

(ii) Sunshine Plan Policy - No Polisi: 022244;

(iii) AAM Medi-max Plus Policy - No Polisi: 0211M-220 [5] Pada 15/6/2012 semasa Plaintif sedang berjalan dan berlari menuruni curam di Royal Lake Club, Kuala Lumpur, Plaintif telah terjatuh dan mengalami kecederaan di bahagian bahu dan kaki di mana Plaintif telah mengalami kecederaan berikut:

Post Traumatic right shoulder acromioclavicular joint injury with rotator cuff tendonitis;

Post traumatic bilateral hip osteoarthritis [6] Akibat daripada kecederaan tersebut Plaintif menyatakan beliau dimasukkan ke Hospital hampir 87 hari. [7] Plaintif kemudiannya membuat tuntutan di bawah polisi-polisi tersebut. [8] Namun begitu, Defendan telah enggan membuat sebarang bayaran pampasan di bawah polisi tersebut.

In dismissing the Plaintiff's claims with costs of RM5,000.00,the learned Sessions Court Judge reasoned as follows. D. DAPATAN MAHKAMAH i. Liabiliti [18] Defendan mempertikaikan tentang kejadian tersebut sama ada Plaintif benar-benar terjatuh pada hari tersebut. Plaintif menyatakan beliau jatuh pada 15/6/2012 di Kuala Lumpur dan kemudian menerima rawatan di Hospital Seberang Jaya yang memerlukan beliau membuat perjalanan yang jauh. Defendan menghujahkan adalah lebih munasabah untuk Plaintif mendapatkan rawatan di Hospital berhampiran. Oleh itu, Plaintif mempertikaikan kejadian tersebut. Di samping itu tiada sebarang saksi atau CCTV yang dikemukakan untuk membuktikan kejadian itu. [20] Plaintif menyatakan beliau menerima rawatan Di Jabatan Kecemasan dan Trauma, Hospital Seberang Jaya pada 15/6/2012. Namun begitu berdasarkan laporan perubatan yang dikemukakan kepada mahkamah didapati Plaintif telahpun sebelum itu menerima rawatan dari Dr Eng Chee Khoon pada 5/6/2012 dan kemudian hanya diberi ubat-ubatan iaitu analgesic pada 8/6/2012. SP2 juga mengesahkan bahawa Plaintif telah mengalami kesakitan di bahu 2-3 hari sebelum tarikh 8/6/2012. Oleh itu, Defendan menghujahkan fakta bahawa Plaintif telah mendapatkan rawatan sebelum kejadian pada 15/6/2012 menunjukkan Plaintif sebenarnya mengalami kesakitan bukan disebabkan terjatuh pada 15/6/2012 tetapi ianya telahpun wujud sebelum kejadian itu. Malahan di dalam laporan perubatan tersebut didapati tiada sebarang "history of trauma" yang terlibat di dalam kes ini. [22] Malahan jika diteliti kesemua laporan perubatan dan klarifikasi bertulis di dalam kes ini tidak ada satu pun laporan perubatan bertarikh 15/6/2012 dikemukakan di mahkamah dan terdapat sejarah (history) kepada insiden/kemalangan bahawa Plaintif telah terjatuh dan mendapat kecederaan tersebut. ii. Quantum [25] Plaintif di dalam kes ini membuat tuntutan gantirugi seperti berikut:

Gantirugi am berjumlah RM120,000

Gantirugi Khas

Gantirugi teruk (Aggravated Damages) [26] Plaintif di dalam kes ini memplidkan bahawa mereka menuntut gantirugi am untuk:

Gantirugi kesakitan (Pain and suffering)

(ii) Tuntutan kecederaan berdasarkan ketiga-tiga polisi personal accident [27] Manakala bagi Gantirugi Khas Plaintif menyatakan beliau telah dirawat di hospital selama hampir 87 hari. Oleh itu, Plaintif menuntut Gantirugi Khas seperti berikut:

Tuntutan untuk kos perubatan berdasarkan ketiga-tiga polisi medical benefit (RM305 x 87 hari)

(ii) Kos ulang alik dari rumah ke hospital (RM 10 x 87)

(iii) Kos rawatan susulan sehingga kini

Gantirugi am [30] Keterangan di dalam kes ini menunjukkan Plaintif masih bekerja dan kecederaan Plaintif tidak terjatuh di bawah kategori yang diberikan seperti di dalam jadual. Oleh itu, tuntutan Plaintif untuk gantirugi am adalah ditolak.

(ii) Gantirugi Khas [31] Bagi gantirugi khas, keterangan menunjukkan Plaintif sebenarnya tidak pernah dimasukkan ke wad dan ini disokong oleh keterangan SP2 sendiri bahawa Plaintif memang langsung tidak pernah dimasukkan ke wad. Maka tuntutan Plaintif bagi gantirugi ini adalah ditolak.

(iii) Gantirugi teladan [32] Plaintif tidak membuktikan bahawa beliau layak untuk apa-apa gantirugi teladan. Maka, tuntutan Plaintif atas isu ini juga adalah ditolak. E. KESIMPULAN [33] Setelah mendengar keterangan-keterangan dan hujahan-hujahan yang dikemukakan mahkamah mendapati Plaintif gagal membuktikan tuntutan mereka atas imbangan kebarangkalian, maka dengan ini tuntutan Plaintif adalah ditolak dengan kos RM5,000. The Case for the Plaintiff

The Plaintiff's case on appeal is essentially that the learned Sessions Court Judge misapprehended both the facts and the evidence, and consequently fell into error in dismissing the claims.

First, the Plaintiff contended that the learned Sessions Court Judge erred in failing to properly consider contemporaneous documentary evidence emanating from Hospital Seberang Jaya, in particular the Accident and Emergency ("A&E") record, X-ray records, and medical certificates said to be dated 15 June

It was submitted that these documents constitute official hospital records and ought to have been accorded probative value in establishing that the Plaintiff had indeed suffered an accident on that date. The Plaintiff further argued that it was unfair to expect the production of eyewitnesses or CCTV footage so many years after the alleged incident, especially when contemporaneous medical documentation was available.

Second, the Plaintiff argued that the learned Sessions Court Judge misapprehended the evidence relating to the dates on which the Plaintiff first sought treatment. Reliance was placed on the medical report dated 5 November 2012 prepared by Dr Wong Him Yau (SP3). The Plaintiff submitted that the learned SCJ wrongly accepted that the Plaintiff had consulted a doctor on 5 June 2012 and received analgesic treatment on 8 June 2012 for the same condition. In this regard, the Plaintiff pointed to SP3's testimony clarifying that the first consultation date should have been recorded as 15 June 2012, and that the numeral "8" appearing in item 6 of the report was in fact a "5". It was contended that the learned Sessions Court Judge failed to give due weight to this clarification by the maker of the medical report himself.

Third, the Plaintiff submitted that the learned Sessions Court Judge erred in law and in fact by rejecting the testimony of Dr Abd Aziz bin Haji Yahaya (SP2) on the basis that he was not the treating physician. It was argued that SP2's evidence was based on hospital records kept in the ordinary course of business and should not have been lightly disregarded. Similarly, the Plaintiff maintained that insufficient weight was given to the evidence of SP3, despite his role as the author of the medical report relied upon.

Fourth, the Plaintiff argued that the learned Sessions Court Judge failed to properly consider the nature and extent of his injuries and their coverage under the policies. The Plaintiff maintained that the injuries suffered, including post-traumatic right shoulder acromioclavicular joint injury with rotator cuff tendonitis and post-traumatic bilateral hip osteoarthritis, resulted in permanent total disablement within the meaning of the policies. Reliance was placed on his own testimony that he was no longer able to perform his duties as a veterinarian due to his inability to lift and handle animals. It was further contended that the policies expressly cover permanent total loss of use of limbs, and that shoulder injuries fall within that definition.

Finally, the Plaintiff submitted that the learned Sessions Court Judge erred in concluding that he had failed to discharge the burden of proof on a balance of probabilities. It was argued that in cases involving accidents, direct evidence such as eyewitness testimony or CCTV footage may not always be available, and that the Court ought to have accepted the totality of the documentary and medical evidence in support of the claim.

The Defendant's position is that the appeal is entirely without merit and that the learned Sessions Court Judge was correct in dismissing the Plaintiff's claims.

At the forefront of the Defendant's case is the contention that there was no credible evidence to establish that the Plaintiff had suffered an accident on 15 June 2012 as alleged. The Defendant emphasised that the burden lay squarely on the Plaintiff to prove the occurrence of an accident within the meaning of the insurance policies, and that this burden was never discharged.

The Defendant pointed to the medical report dated 5 November 2012, which records that the Plaintiff had sought consultation on 5 June 2012 and was given analgesic treatment on 8 June 2012, prior to the alleged accident. It was submitted that this evidence clearly demonstrates a history of shoulder and leg pain predating 15 June 2012, and strongly suggests the existence of pre-existing medical conditions rather than injuries arising from an accident.

The Defendant further relied on the fact that the medical report expressly stated that there was no history of trauma. It was argued that if the Plaintiff had indeed suffered a fall as alleged, some indication of trauma would reasonably have been expected in the contemporaneous medical records. The absence of such evidence, coupled with the Plaintiff's own admissions of pain prior to 15 June 2012, undermines the claim that the injuries were accident-related.

In response to the Plaintiff's reliance on alleged A & E records and X-ray documentation, the Defendant submitted that such hospital file records were never formally tendered as evidence during the trial and were therefore not properly before the Court. In any event, the Defendant argued that even if an X-ray had been taken on 15 June 2012, this does not negate the fact that the Plaintiff had already been receiving treatment for similar complaints earlier in June 2012.

The Defendant also disputed the Plaintiff's claim for hospitalisation benefits, pointing out that the Plaintiff was never admitted as an inpatient. This was expressly found by the learned Sessions Court Judge and was supported by the evidence of SP2. As such, the criteria for hospital income benefits under the policies were never met.

Further, the Defendant contended that the Plaintiff's claims for general and special damages are wholly misconceived, as the policies are contractual in nature and do not provide for such heads of damages. Compensation, if any, is strictly confined to the benefits stipulated in the compensation tables, which the Plaintiff neither properly pleaded nor proved.

Finally, the Defendant submitted that the Plaintiff's alleged injuries do not fall within the injuries enumerated in the compensation schedules under the Acciguard policies. In the absence of proof of an accident and of an insured injury within the policy terms, the Defendant maintained that the appeal must fail and that the learned Sessions Court Judge's decision ought to be affirmed.

In the course of this appeal, various statutory provisions and case law authorities were cited and relied by the parties.

The Plaintiff relied on, inter alia, section 35 of the Evidence Act 1950, which provides as follows: Relevancy of entry in public record made in performance of duty

An entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which the book, register or record is kept, is itself a relevant fact. and cases such as Gopinathan Subramaniam v Timbalan Menteri Dalam Negeri & Ors [1999] 7 CLJ 558; [1999] 3 MLRH 277, Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 1 LNS 119; [1979] 1 MLRA 81; [1979] 2 MLJ 229, Grace Shipping Inc & Anor v CF Sharp & Co (Malaysia) Pte Ltd [1986] 1 LNS 60; [1986] 1 MLRA 572; [1987] 1 MLJ 257, LCY v TWY [2019] 7 CLJ 158; [2019] 4 MLJ 203; [2019] 4 MLRA 310; [2019] 2 AMR 642, Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453; [2015] 2 MLJ 441; [2015] 2 MLRA 247; [2015] 2 AMR 601, Sarmiina Sdn Bhd v Gerry Ho & Ors [2023] 7 CLJ 349; [2023] 6 AMR 237; [2023] 5 MLRA 159; [2023] 4 MLJ 870, Malaysia Land Properties Sdn Bhd v Waldorf & Windsor Joint Management Body [2014] 6 CLJ 821; [2014] 3 MLJ 467; [2014] 3 AMR 591; [2014] 3 MLRA 396, Roswan Ismail v Universiti Pendidikan Sultan Idris (UPSI) [2023] CLJU 2704; [2023 MLJU 2941; [2023] AMEJ 2746; [2024] 2 MLRH 789, Nik Mohd Suhaimi Ahmad Ghazali v Siti Fairuz Shamsuri & Ors [2023] CLJU 2534 and Zakaria Mad Isa Lwn Othman Lah & Satu Lagi [2022] SMCU 279; [2022] MLJU 3286; [2022] MLRSU 306 for various propositions of law in support of this appeal.

On the side of the Defendant, references were made to cases such as Ratnam v Cumarasamy [1965] 1 MLJ 228; [1964] 1 MLRA 599; [1964] CLJU 237, Cocoa Suchi Sdn Bhd v Pinebrook Holding Sdn Bhd [2016] 6 MLJ 381; [2016] 3 MLRA 56; [2016] AMEJ 0195; [2015] CLJU 1555, Tiow Weng Theong v Melawangi Sdn Bhd [2018] 5 AMR 465; [2018] 6 MLJ 761; [2018] 6 MLRA 52; [2019] 2 CLJ 655, Jerneh Insurance Corp Sdn Bhd v Amanah Raya Bhd [1998] 7 MLJ 115; [1998] 4 MLRH 823; [1998] CLJU 305; [1999] 2 AMR 1612, Pacific Orient Insurance Co Sdn Bhd v Kathirvelu [1992] 1 MLJ 249; [1992] 1 MLRA 266, American International Assurance Co Ltd v Nadarajan a/l Subramaniam [2013] MLJU 361; [2013] 5 CLJ 697; [2013] 4 MLRA 531, Leo Hua Moi v Jerneh Insurance Bhd [2011] MLJU 862; [2011] CLJU 1235; [2012] MLRHU 318; [2012] 1 AMCR 231, Sawarn Singh a/l Mehar Singh (Named as a Nominee) v RHB Insurance Bhd [2013] MLJU 596; [2013] 6 CLJ 790; [2013] 2 AMCR 424; [2013] MLRHU 352 and Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors [2018] 1 MLJ 784; [2018] 3 MLRA 488; [2017] CLJU 500; [2017] AMEJ 1911.

On the evidence adduced, this Court has not lost sight of the contractual definition of "Permanent Total Disablement" under the policies. As set out at page 11 of RR/J3/B-C [Enclosure 21], the policies define permanent total disablement as a disablement which entirely prevents the insured person from attending to any business or gainful occupation for which he is reasonably qualified by education, training or experience, or from attending to duties normally carried out in daily life.

The Plaintiff's evidence on this issue came primarily from his own testimony as SP1. At page 12 of RR/J1/B-B [Enclosure 20], SP1 testified that as a result of the injuries sustained, he suffered a permanent total loss of use of both shoulders, arising from soft tissue injury, right shoulder acromioclavicular osteoarthritis, joint disruption and rotator cuff tendonitis. He further testified that these injuries rendered him unable to perform his duties as a veterinarian, in particular the lifting and handling of animals, which formed an essential part of his professional work.

That evidence must, however, be examined together with the compensation table and schedule under the Acciguard policies (Enclosure 21, pages 11-12 and 15-16). The policies provide for specified injuries and losses attracting compensation. Whether the Plaintiff's alleged injuries fall within those stipulated categories is not a matter of sympathy but of strict contractual construction.

A central plank of the Plaintiff's appeal is the reliance on contemporaneous medical documentation to establish both the occurrence of the accident and the causal link between the accident and the injuries complained of.

In this regard, the medical report at item 2(b) (RR Jilid III, page 74) assumes particular significance. This document records that the Plaintiff had received consultation and/or treatment prior to the alleged accident date of 15 June 2012. The report also notes the absence of a recorded history of trauma.

The Plaintiff contended that the trial court failed to properly reconcile this report with other contemporaneous records, including the AE card, X-ray records, and medical certificates dated 15 June 2012, and that undue emphasis was placed on isolated entries without appreciating the evidence as a whole.

The Defendant, on the other hand, maintained that the medical report is conclusive in showing that the Plaintiff had pre-existing shoulder and leg pain prior to the alleged fall, and that the absence of a documented history of trauma undermines the Plaintiff's case that the injuries were caused by an accident within the meaning of the policies. Evaluation of the Evidence and Decision of this Appeal

This Court is of the considered view that it is not sufficient for the Plaintiff merely to assert functional incapacity. The injuries relied upon must be shown, on the evidence, to correspond to or fall within the categories of loss expressly insured under the policies. The Court's function is not to assess hardship, but to determine whether the contractual requirements for liability have been satisfied.

In evaluating the evidence, it is important to underscore that contemporaneous medical records are relevant and admissible under section 35 of the Evidence Act 1950. However, relevance does not equate to conclusiveness. Such documents must be assessed in their proper context and weighed together with oral testimony and the surrounding factual circumstances.

The real question before this Court is therefore not whether there exists some evidence of prior pain or treatment, but whether the learned Sessions Court Judge failed to give due and balanced consideration to all material evidence, including the explanations offered by the medical witnesses, before concluding that the alleged accident on 15 June 2012 was not proven and that the injuries complained of were pre-existing.

Having approached this appeal by way of re-hearing, and having carefully considered the cause papers and the evidence placed before this Court, I am satisfied that no such failure has been demonstrated. The learned Sessions Court Judge did not err in fact or in law in arriving at his findings.

In particular, the medical report dated 5 November 2012 is a crucial contemporaneous document. It expressly records that the Plaintiff consulted a medical practitioner on 5 June 2012 and received treatment on 8 June 2012, both dates preceding the alleged accident of 15 June 2012. The report also records no history of trauma. The Plaintiff failed to satisfactorily reconcile these entries with his pleaded case or to establish, on a balance of probabilities, that the accident occurred as alleged.

With respect to the claim for permanent total disablement, this Court agrees with the learned Sessions Court Judge that the Plaintiff's alleged conditions, namely rotator cuff tendonitis and bilateral hip osteoarthritis, do not constitute "Permanent Total Disablement" as defined under the policies. The Plaintiff did not adduce cogent medical evidence demonstrating that these conditions entirely prevented him from engaging in any gainful occupation for which he was reasonably qualified. In any event, both conditions fall outside the injuries stipulated in the Compensation Table under the policies.

As regards the claim for Daily Hospital Income Benefit, the policy terms are clear and unambiguous. Entitlement is contingent upon the insured being warded or hospitalised. The evidence of SP2, who was the Plaintiff's own witness, confirmed that the Plaintiff was never admitted to a hospital ward. The claim for RM305 per day for 87 days is therefore devoid of any contractual basis.

Taking the evidence as a whole, this Court is satisfied that the conclusions reached by the learned Sessions Court Judge were well supported by the evidence and were neither perverse nor plainly wrong. The totality of the evidence supports the dismissal of the Plaintiff's claim.

The Plaintiff's appeal is accordingly dismissed in its entirety with costs assessed at RM7,500.00. Dated: 11 May, 2026 (CHOONG YEOW CHOY) JUDGE HIGH COURT OF MALAYA, PENANG PENANG HIGH COURT 2 Counsel: For the Applicant Chai Shi Hong Chuah Wei Bing Teoh Jin Zong (Messrs Chuah, Tan & Co.) For the Respondent WL Wong Alvin Kua Tze Min (Messrs Azim, Tunku Farik & Wong)