Chong Seen Hong v 1. Liau Lian Kwai (BA-11BNCVC-15-06/2016)

DAN LIAU LIAN KWAI (No. K/P: 580330-04-5142)

MCIS INSURANCE BERHAD (dahulu dikenali sebagai MCIS ZURICH INSURANCE BERHAD (No. Syarikat: 435318-U) … RESPONDEN-RESPONDEN [DALAM MAHKAMAH MAJISTRET DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN

ANTARA LIAU LIAN KWAI (No. K/P: 580330-04-5142)

MCIS INSURANCE BERHAD (dahulu dikenali sebagai MCIS ZURICH INSURANCE BERHAD (No. Syarikat: 435318-U) … PLAINTIF-PLAINTIF DAN CHONG SEEN HONG (No. K/P: 670118-05-5449) (Berniaga atas nama dan gaya “BENGKEL BBM TWO”) (No. Pendaftaran Perniagaan: 001883139-A) … DEFENDAN] 2 GROUND OF JUDGEMENT Introduction [1] This is an appeal by the Appellant (Defendant) against the Magistrate whom allowed the Respondents’ (1st Plaintiff and 2nd Plaintiff) claim for an insured stolen car which was under the name of the 1st Plaintiff. [2] In this judgment, the parties will be referred to as they were in the Magistrates’ Court. At times, the term ‘1st and 2nd Plaintiffs’ will be referred to as ‘the Plaintiffs’ or ‘the 1st Plaintiff’ or the ‘2nd Plaintiff’, interchangeably. Brief Facts [3] The relevant factual background leading to this appeal based on both counsels’ written submissions can be summarised as follows:

The 1st Plaintiff is the owner of the motor car model Mitsubishi Lancer 2.0EX bearing registration number MCC 3533 (the Vehicle).

The 2nd Plaintiff is an insurance company, having its registered address at Wisma MCIS, Jalan Barat, 46200 Petaling Jaya, Selangor Darul Ehsan. The 2nd Plaintiff, at all material time, is the insurer for the Vehicle under the insurance policy ZM-PMV- 2733818 (Policy Insurance) and takes a subrogation action against the Defendant for the stolen Vehicle. 3

The Defendant is the owner of Bengkel Bersatu Motor, a vehicle repair workshop. The workshop is a 1 ½ storey light industrial terrace factory located at Pusat Perindustrian Sg Chua, 43000 Kajang, Selangor Darul Ehsan.

On 18.10.2012, the 1st Plaintiff claimed that the 1st Plaintiff’s son, Chan Yong Meng (IC No.: 851129-04-5513) (the 1st Plaintiff’s son), had driven and sent the Vehicle to the Defendant’s workshop to be repaired as the Vehicle was involved with a road accident on 18.10.2012 with another car registration number NCJ 7342.

On 19.10.2012, at around 5.08pm, the 1st Plaintiff’s son had reported to the Police Traffic Kajang (police report 017415/12) of the accident.

The Plaintiffs’ claimed that after the repairs were done on the Vehicle, the 1st Plaintiff’s son had taken the Vehicle from the Defendant’s workshop but then found out that there are still minor repairs to be carried out. On 20.11.2012, at around 2.30pm, the 1st Plaintiff’s son sent the Vehicle to Defendant’s workshop for minor repairs and gave the Vehicle’s keys to the Defendant and /or to the servant or agent of the Defendant.

On 23.11.2012, the 1st Plaintiff’s son contacted the Defendant and was informed that the Vehicle needed some repairs and will be ready on the evening of 24.11.2012. 4

The Plaintiffs claimed that on 24.11.2012, at around 3.30pm, the Defendant informed the 1st Plaintiff’s son that the Vehicle that was parked outside the Defendant’s premise had been stolen or lost during the care or control of Defendant. The 1st Plaintiff’s son made a police report on 24.11.2012 for the lost Vehicle (report number Kajang/038601/12).

The Defendant on the other hand claimed that on 23.11.2012, the 1st Plaintiff’s son sent the Vehicle back to the Defendant’s workshop to check and effect some minor repairs pursuant to the collision repairs completed earlier. The Defendant stated that the minor repair works involved the tyre, rim and/or suspension on the front right side of the Vehicle. The Defendant claimed that the repairs were duly completed later on the same day and the 1st Plaintiff’s son was informed via telephone where the Defendant was informed that the 1st Plaintiff’s son will be coming to collect the Vehicle later in the evening.

The Defendant claimed that after the Vehicle was repaired, the Defendant’s employee proceeded to park the Vehicle near the workshop, for the 1st Plaintiff’s son to collect. The Defendant claimed that the Vehicle was locked and the Vehicle’s keys were kept securely in the office of the Defendant’s workshop.

The Defendant claimed that the 1st Plaintiff’s son failed to come and collect the Vehicle as he said he would and he did not inform the Defendant that he is unable to come and collect the 5 Vehicle. The Defendant was at all material times not required to keep the Vehicle overnight as it was repaired and there is no agreement between the Defendant and the 1st Plaintiff’s son to keep the Vehicle overnight or to arrange storage for the Vehicle.

The Defendant claimed that the Vehicle went missing sometime between the time after the workshop closes, at 8.00pm and the next morning on 24.11.2012.

The 2nd Plaintiff brought an action of subrogation against the Defendant. The Session Judge allowed the Plaintiffs’ claims, that is the 2nd Plaintiff’s claim for the value of the Vehicle of RM88,000.00, the Adjustor’s fee, interests and cost.

The Defendant claimed that during the trial, the 1st Plaintiff and the 1st Plaintiff’s son, who are the material witnesses, failed to appear at the Magistrates’ Court to give testimony. The Plaintiffs’ solicitor requested for a continuance to obtain a warrant of arrest for the 1st Plaintiff and the 1st Plaintiff’s son, which was granted by the learned Magistrate. However, despite the warrant of arrest, the 1st Plaintiff and the 1st Plaintiff’s son refused to attend Magistrates’ Court. 6 Plaintiffs’ case [5] Briefly, the learned counsel for the Plaintiffs averred that the Defendant failed to answer the main issue and failed to discharge its burden of proof where the Defendant claimed that the Vehicle was “stolen” but state it as “lost” instead (paragraph 11 of Defence, page 15 of Appeal Record) and during the cross-examination admitted that there is a duty of care which the Magistrate found that the Vehicle was stolen due to Defendant’s negligence. [6] The Plaintiffs’ counsel averred that the suit is brought under the principle of subrogation where the 2nd Plaintiff is entitled to claim for compensation for loss of Vehicle against the Defendant. The Plaintiffs’ counsel further averred that the witness, SP1, confirmed the purchase of the Policy Insurance which was not disputed by the Defendant. It is submitted that the issue of non-attendance of the 1st Plaintiff is not relevant under the principle of subrogation and relied on the case of Rothmans of Pall Mall (M) Bhd v Neo Kim Har and Another [1989] 2 CLJ (Rep) 404 and the case of Teo Kim Kien & Ors v Lai Sen & Anor [1980] 2 MLJ 125. [7] The Plaintiffs’ counsel further submitted the authority on subrogation based on Halsbury’s Laws of Malaysia Volume 4 Insurance Law which states as follows: “Generally speaking, by subrogation, the insurer steps into the shoes of the insured. The insurer will be entitled to the advantage of all the rights and remedies which the insured possesses against third parties 7 in respect of the subject matter. Subrogation applies even to a statutory liability. The right does not arise until the insurers have admitted their liability to the assured and have paid the amount of the loss. Settlement of insured’s claim by the insurer. The right of subrogation does not arise unless the insurer had indemnified the insured. Insurer to sue in the name of the insured. Unless there is a formal assignment of the right of action, the insurer would be unable to sue the third party in its own name. Hence, proceedings are brought in the name of insured. The insured cannot refuse the bringing of such proceedings in his name if he receives a proper indemnity against cost. Extent of right. The insurer is entitled to the advantage of every right of the insured. It should be noted that the insurer’s rights cannot be affected by any contract made by the insured with another insurer or any other person” (Counsel’s own emphasis) [8] The Plaintiffs’ counsel submitted the Court of Appeal case of Kementerian Pertahanan Malaysia & Anor v Malaysia International Shipping Corporation Bhd & Ors [2007] 4 CLJ 820 which held that the insurer stands in the shoes of the assured when the insurer indemnified an insured for the loss. It is further submitted that the Plaintiffs’ counsel had 8 taken all the measures to ensure the attendance of the 1st Plaintiff and the 1st Plaintiff’s son to court whereby subpoena had been granted by the Magistrate and relied on a number of authorities, arguing that the principle under section 114(g) of Evidence Act 1950 would be inapplicable in this case. [9] The Plaintiffs’ counsel further submitted that the 1st Plaintiff had signed the document ‘Receipt, Discharge, Release and Subrogation Form’ submitted to the 2nd Plaintiff and the owner RHB Islamic Bank Berhad had countersigned and accepted the sum of RM88,000.00 which could not be denied by the Defendant. [10] The Plaintiffs’ counsel averred that the cases relied by the Defendant, the case of Metro Tyre Service Centre Sdn Bhd v Wilfred Jolly [2003] 8 CLJ 376 and Credit Corporation (M) Sdn Bhd v The Malaysia Industrial Finance Corpm. & Anor [1976] 1 MLJ 83 are not relevant to this appeal which do not deal with the principle of subrogation. [11] The Plaintiffs’ counsel averred that the Magistrate found that a Bailor-Bailee relationship exists between the Defendant and the 1st Plaintiff based on the fact that the Vehicle was sent to the Defendant’s workshop which entails a duty of care element. The Plaintiffs’ counsel further submitted that no evidence was adduced that the Vehicle’s keys were given to the Defendant’s employee and no evidence on the security service at the workshop which proves that the Defendant failed to prove under section 101 of Evidence Act 1950 and following the case of Tai Seng Glass Sdn. Bhd. v Jasa Kita Warehousing Service Sdn. Bhd. [2010] 9 CLJ 161. 9 [12] The Plaintiffs’ counsel averred that the burden to prove as bailee shifted to the Defendant based on the authority of Jaya Jusco Stores Sdn Bhd v Sime Darby Securoty Sdn Bhd & Ors [2000] 5 MLJ 107. It is submitted that based on the Federal Court decision of Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 277, the Defendant failed in his duty of care towards the Plaintiff and caused losses to the Plaintiff. [13] In relation to the hearsay claim by the Defendant, the Plaintiffs’ counsel submitted that the Plaintiffs’ witness, the Adjustor is not categorised as hearsay and he came to court to testify and signed the report himself which is the theft investigation report (page 212 to 232 of the Appeal Record). [14] It is submitted that the Adjustor was asked whether there was space at the Defendant’s workshop to keep the Vehicle if the Defendant wished to and the Adjustor affirmed that it could be done which was agreed by the Defendant during the oral evidence (page 15 of the Appeal Record and page 160 of Appeal Record). Defendant’s case [15] Briefly, the learned counsel for the Defendant submitted that the 1st Plaintiff failed to attend the trial at the Magistrates’ Court while the 2nd Plaintiff claims for subrogation and raised the issue whether the claims by the Plaintiffs could hold water. It is submitted that through the doctrine of subrogation, the 1st Plaintiff being the insured, must prove her case first against the Defendant to enable the 2nd Plaintiff being the insurer to be 10 compensated. The Defendant’s counsel referred to the case of Teo Kim Kian & Ors v Lai Sen & Anor [1980] MLJ 125 where at page 126 stated, “This case clearly is concerned with the doctrine of subrogation under which an insured must bring an action against the wrong doer if he is called upon by his insurer to do so and is indemnified against the cost, but it is his own cause of action, not that of his insurer that he sues on; as against the wrong doer the insurer has no cause of action of his own: per Lord Diplock in Hobbs v Marlowe at page 37.” [16] It is also submitted that if the 1st Plaintiff and the 1st Plaintiff’s son who was the driver did not attend court to testify, that would mean all that happened as claimed by the 1st Plaintiff is a hearsay evidence. It is also further averred that the 2nd Plaintiff has no action against the Defendant and the case should be dismissed. [17] The counsel for Defendant submitted that the Magistrate had erred in deciding that the doctrine of subrogation allows the 2nd Plaintiff to enter against the Defendant without the evidence by the 1st Plaintiff. It is submitted that the case relied by the Plaintiffs and the Magistrate, the case of Rothmans Of Pall Mall (M) Sdn Bhd v Neo Kim Har & Anor [1989] 2 CLJ (Rep) 404, can be distinguished from the current case as in that case, the insured attended court to give evidence to prove their case. The counsel for the Defendant averred that in the present case, the 1st Plaintiff failed to testify together with the 1st Plaintiff’s son who was the driver, despite a warrant of arrest issued on them. 11 [18] The Defendant’s counsel further argued that the principle of adverse inference under section 114 (g) of Evidence Act 1950 should be invoked against the 1st Plaintiff following the case of Anne Lim Kheng See (trading as Golden Kintex-sole Proprietorship) v Malayan Banking Berhad [2009] 9 MLJ 502 HC, where the plaintiff in that case failed to be present at trial which the court found the plaintiff’s case remained unproven and was dismissed. [19] The Defendant’s counsel submitted that the 2nd Plaintiff insisted on subrogation action however, did not submit the executed Policy Insurance between the 1st Plaintiff and the 2nd Plaintiff. [20] It was further averred by the Defendant’s counsel that the discharge certificate (page 387 of Appeal Record) by RHB Islamic Bank Berhad failed to subrogate the insurer as the amount paid was insufficient. It was brought to this Court’s attention that the 2nd Plaintiff stated that they had paid

RM88,000.00 to RHB Islamic Bank but the settlement amount is RM110, 99 and the owner of the Vehicle is still RHB Islamic Bank Berhad as the 1st Plaintiff had not paid in full. [21] The Defendant’s counsel submitted that the learned Magistrate failed to consider that RHB Islamic Bank Berhad is still the owner of the Vehicle and therefore the Plaintiffs have no right to take action against the Defendant. [22] In relation to the issue of bailment, the Defendant’s counsel argued that there was no agreement to keep the Vehicle by the Defendant. It is 12 further averred that the 1st Plaintiff’s son had been informed that the minor repairs will be completed and to collect the Vehicle that same evening. The Defendant’s counsel submitted that the Defendant’s workshop is a small 1 ½ storey terrace factory and is not gated and guarded compound and the 1st Plaintiff’s son is aware as it was not the first time he came to the Defendant’s workshop. [23] It is submitted that the testimony given by the Plaintiffs’ witness, the Adjustor (PW2) with regards to the statements recorded by him on the events leading to the bailment and disappearance of the Vehicle are hearsay and inadmissible, relaying on the authority of Subramanian v PP [1956] 1 WLR 965. The Defendant’s counsel asserted that there was never an agreement to keep the Vehicle in a gated and guarded compound and this expectation is of the 2nd Plaintiff’s and not the 1st Plaintiff or the 1st Plaintiff’s son who drove the Vehicle to the Defendant’s workshop. In addition, it is argued that there are no discrepancies in the security receipts and should be accepted and marked as an exhibit. APPEAL [24] Briefly, this Court viewed that the heart of the matter is whether the Defendant is negligent and should be held liable for the lost Vehicle based on three main legal issues as follows:

principle of subrogation claimed by 2nd Plaintiff who is the insurer; 13

ownership and hirer of the Vehicle under the Hire Purchase Act; and

the bailor - bailee relationship claimed by the Plaintiffs between 1st Plaintiff and Defendant. [25] This is the Plaintiffs’ pleaded case. The 1st Plaintiff admitted liability to the stolen Vehicle and paid off for the Vehicle and allowed the 2nd Plaintiff to take subrogation action against the Defendant. In a civil suit, a plaintiff taking action against the Defendant bears the burden of proof based on section 101 of Evidence Act 1950 and following the Federal Court case of Letchumanan Chettiar Alagappan @ Alagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697. The Federal Court deliberated extensively on the burden of proof and the standard of balance of probabilities and the onus to rebut which keeps shifting between the parties. [26] The Plaintiffs also pleaded in its Statement of Claim that the Defendant was negligent in causing the Vehicle to be stolen (pages 10-11 of Appeal Record). This Court viewed that where negligence is pleaded, the burden rests with the plaintiff to prove that he or she was not negligent. This Court places reliance on the Federal Court case of Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175 where the onus of proof rests on the plaintiff whether or not the defendant gives evidence, in an action of negligence. 14 [27] Reverting to the facts, it is undisputed that the Vehicle was outside the Defendant’s workshop when the Defendant discovered that the Vehicle was missing or stolen. The Vehicle was not in the Defendant’s workshop as the minor repairs had been carried out and the 1st Plaintiff’s son had been informed to collect the Vehicle, as claimed by the Defendant. The Plaintiffs’ contention is that the Vehicle was in the Defendant’s care when it was stolen after the Vehicle was sent by the 1st Plaintiff’s son at the Defendant’s workshop. [28] It was brought to this Court’s attention that the 1st Plaintiff and the 1st Plaintiff’s son were not present at the Magistrate’s Courts to testify. The Plaintiffs’ counsel averred that the 2nd Plaintiff is entitled to bring the action against the Defendant under the principle of subrogation where the 1st Plaintiff will bring the action on behalf of the 1st Plaintiff and is therefore entitled to be compensated by the Defendant. [29] The principle of subrogation can be found in a number of authorities submitted by both counsels. This Court also looked at the authority found in Daulat Rasm Prem, H. K. Saharay, ‘Prem & Saharay’s, Judicial Dictionary of Words And Phrases’, Second Edition, Volume IV, 2016 at page 4671 which stated to mean among others, “1. The substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor. For example ….. 2. The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to 15 the insured against a third party with respect to any loss covered by the policy. Black’s Law Dictionary, 7th edn. Subrogation simply means substitution of one person for another, that is, one person is allowed to stand in the shoes of another and assert that person’s rights against the defendant. …” [30] The Court of Appeal case of Tiong Nam Trading & Transport (M) Sdn Bhd v Commercial Union Assurance (Malaysia) Sdn Bhd [2008] MLJU 494 deliberated on the principle of subrogation based on a contract of insurance where Justice Abdul Malik stated that, “..a contract of insurance arises when one party (the insurer) promises in return for a money consideration (the premium) to pay to the other party (the insured) a sum of money or provide him with some corresponding benefit, upon the occurrence of one of more specified events,” [31] The principle of subrogation clearly spelt out that the insurer may bring an action on behalf of the insured, being placed in the shoes of the insured, however the cause of action is still by the insured. This would mean that the insurer being the 1st Plaintiff in this case, bears the burden to prove on the balance of probabilities, on the liability and the claims against the Defendant. [32] This is pertinent as evidence is required to be adduced by the 1st Plaintiff and the 1st Plaintiff’s son, where both are material witnesses for the Plaintiffs to prove their case, more so when the issues of ‘duty of care’ and 16 negligence had been pleaded. The factual statements for instance the Vehicle was sent twice to the Defendant’s workshop or whether the keys to the Vehicle were not proven to be given by the 1st Plaintiff’s son to the Defendant nor the unexplained fact of the existence of the Vehicle’s spare key, without the 1st Plaintiff and the 1st Plaintiff’s son’s attendance in court, could not be challenged nor rebut the Defendant’s testimony. [33] In addition, the verification on the arrangement to collect the Vehicle or for storing at the Defendant’s workshop could not be challenged where the 1st Plaintiff’s son as the main witness who is fully conversant of the facts, refused to testify. It would therefore be appropriate at this juncture for me to accept the Defendant’s testimony to be true based on the principle enunciated in the case of Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 as attributed by the Defendant’s counsel. [34] In addition, the law on the burden of proof is embedded in sections 101 – 103 of Evidence Act 1950 whereby section 102 of Evidence Act 1950 clearly stipulated that, “132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” [35] This Court had the benefit of perusing the case of Teo Kim Kian & Ors v Lai Sen & Anor [1980] MLJ 125 and the case of Rothmans of Pall Mall (M) Sdn BHd v Neo Kim Har & Anor [1989] 2 CLJ (rep). In the case of Teo Kim Kian (supra) which was decided by the Federal Court, it’s observation as to the doctrine of subrogation, at page 126, to mean, 17 “…under which an insured must bring an action against the wrong-doer if he is called upon by his insurers to do so and is indemnified against the costs, but it is his own cause of action, not that of his insurer that he sues on; as against the wrong-doer the insurer has no cause of action of his own: per Lord Diplock in Hobbs v Marlowe at page 37.” [36] In that case, it involves a claim where the 2nd respondent having followed the instruction of the 1st respondent to return the 1st respondent’s car after a car wash to the car wash shop when 2nd respondent cannot find 1st respondent at the given address, met into an accident on its way back to the car wash. The appellants testified at the court on the defence that the 2nd respondent was the agent of the 1st respondent. The Federal Court finds the evidence that the 2nd respondent is still the employee of the appellants and therefore the claim under the doctrine of subrogation entered by the 1st respondent and the insurer was maintainable. [37] The case of Rothmans Pall Mall (supra) dealt with the absence of an assignment for the insurance company in bringing a suit under doctrine of subrogation, which decided that, as there is evidence that the insurance company had paid under the insurance policy, it was entitled to the benefit of all rights possessed by the insured. It gives the entitlement to bring a suit in the insured’s name but the cause of action is still by the insured. [38] In this instant case, it is the pleaded case of the Plaintiffs to claim against the Defendant and this Court viewed that before the 2nd Plaintiff is 18 entitled to be reimbursed, the 1st Plaintiff’s cause of action against the Defendant must be proven. [39] I do not wish to repeat myself but where negligence is pleaded, the burden rests on the plaintiff. The Magistrate pointed out in its written judgment at page 6 of Second Supplementary Appeal Record that the Defendant “had failed to prove that the lost of the car was not due to his negligence” and also made findings on the unexplained discrepancies of the receipts by the Defendant and the statutory declaration by Defendant’s employee that was made without the court’s leave. This Court finds that the Magistrate did not scrutinise the burden of proof of the 1st Plaintiff. The failure on the Magistrate not to consider that it is the 1st Plaintiff’s part to prove its cause of action is a misdirection of facts and law which amounts to a miscarriage of justice that warrants this Court to intervene: Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1, FC. [40] In such circumstances, this Court viewed that the Magistrate should also invoke the principle of adverse inference against the 1st Plaintiff in refusing to testify, following section 114(g) of Evidence Act 1950 and in reliance of the Federal Court case of Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751. [41] The failure of the Plaintiffs to call upon the 1st Plaintiff’s son who is certainly a key witness and who could throw some light on the circumstances of the missing Vehicle. Non-production of the material witness is clearly suppressing or withholding evidence from important and 19 material on the vital issue in this suit that is whether the loss suffered by Plaintiffs were due to Plaintiffs’ negligence. [42] In the case of Thunderfish Electric Sdn Bhd v Kawalan Keselamatan Anugerah Sdn Bhd [2011] 1 LNS 968, a case involving a house break-in and issue of negligence by the security guards, it was decided that the plaintiff’s failure to adduce evidence by calling its security guards who are the material witnesses, proves to show that the plaintiff was suppressing the evidence and the principle of adverse inference under section 114(g) of Evidence Act 1950 was held should be invoked by the session judge. [43] This Court also bears in mind the fact that the Vehicle was not fully settled where the sum RM88,000.00 is the sum insured and is not the full settlement of the Vehicle purchased which means the property of the Vehicle had not passed to the hirer of the 1st Plaintiff in this case following the authority enunciated in the case of Credit Corporation (M) Bhd v The Malaysia Industrial Finance Corp. & Anor [1976] 1 MLJ. This is further corroborated by the fact and evidence of the 2nd Plaintiff’s witness statement that the owner of the Vehicle, RHB Islamic Bank Berhad, by a letter of 23.9.2013 to the 2nd Plaintiff confirmed that the full settlement is RM110,410.99 (page 47 of Appeal Record). [44] It is not disputed that the owner of the Vehicle is RHB Islamic Bank Berhad. This Court had the opportunity to scan through the Islamic Hire Purchase-i (AITAB) Agreement (Agreement) between the 1st Plaintiff who is the hirer (First Schedule, page 294 of Appeal Record) and the owner who 20 is RHB Islamic Bank Berhad dated 23.8.2011 (pages 281 – 296 of Appeal Record) to which the Agreement is objected by the Defendant having no knowledge of the contents. [45] This Court reiterated that the contents of the Agreement, clause 8 and clause 10 of the Agreement, particularly on the election to complete the Agreement earlier could not be proven as the 1st Plaintiff failed to adduce the evidence. I must agree with the Defendant’s counsel’s pleaded grounds of appeal that the Magistrate erred on law and facts for not considering that the 1st Plaintiff did not testify nor produce evidence that full settlement for the Vehicle under the Agreement had been made to obtain the ownership of the Vehicle (page 29 of Appeal Record). [46] The bailor and bailee relationship or bailment is provided under our Contracts Act 1950 by virtue of section 101 which states, “A “bailment” is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the “bailor”. The person to whom they are delivered is called the “bailee”.” [47] A bailment is also defined as “the transfer of the possession of goods by the owner (the bailor) to another (the bailee) for particular purpose” following the authority Daulat Rasm Prem, H. K. Saharay, ‘Prem & Saharay’s, Judicial Dictionary of Words And Phrases’, Second Edition, 21 Volume I, 2016 at page 611. The same author provides examples of bailment and further defined at pages 611-612, “..the hiring of goods, the loan of goods, the pledge of goods, and the delivery of goods for carriage, safe custody, or repair. … An action against a bailee can be regarded as an action on its own, suigeneris, arising out of the possession had by the bailee of the goods. …. A bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them….” [48] This Court holds the view that the burden to prove as bailee claimed to have shifted to the Defendant by the Plaintiff based on the authority of Jaya Jusco Stores Sdn Bhd v Sime Darby Securoty Sdn Bhd & Ors [2000] 5 MLJ 107 cannot be satisfied for the simple reason that the 1st Plaintiff did not adduce any evidence. In addition, Jaya Jusco (supra) case must be distinguished from this instant appeal as there was an agreement entered between the plaintiff and defendant in that case, for armed guard services for the collecting and delivering of plaintiff’s valuables. In this case, this Court perused the Defendant’s evidence and finds that there was no arrangement for the Vehicle storage pursuant to section 101 of Contracts Act 1950 and the claim that the 1st Plaintiff’s son will come to collect the Vehicle had not been rebutted. [49] In the absence of any special contract, if the argument that the Defendant is a bailee, pursuant to section 105 of Contracts Act 1950, the 22 Defendant is not responsible for the loss of the thing bailed, if he has taken the amount of care of it under section 104 of Contracts Act 1950. Section 104 states that, “In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality, and value as the goods bailed.” [50] It is the Plaintiffs’ pleaded case alleging that the Vehicle had been stolen and the burden to prove that it was in the control of the Defendant in order to claim bailment, had not been shifted to the Defendant. The fact that the Defendant parked the Vehicle outside his workshop after the repairs had been carried out which the vicinity is outside the control of the Defendant, remained an unrebutted fact. [51] This Court is not satisfied that the Plaintiffs had proven its case. For the foregoing reasons, I allow the appeal by the Defendant with cost. Dated: 24 April 2018 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 23 COUNSEL FOR THE APPELLANT DENNIS TEOH Messrs K S Teoh & Co. Advocates & solicitors No. 46A, Jalan Lumut Kompleks Damai 50400 Kuala Lumpur [Ref: 2.63] Tel: 03-4045 6236, 03-4045 6286 Fax: 03-4045 6526 COUNSEL FOR THE RESPONDENTS JEI SOORIA V.P. Messrs Othman Hashim & Co. Advocates & solicitors 6th Floor, Wisma Kah Motor 566, Batu 3 ½, Jalan Ipoh 51200 Kuala Lumpur [Ref: LT/MCIS-49650/OHC/2014/hfz]