Etiqa General Takaful Berhad v Yeoh Seang Hee (PA-12A-9-07/2025)

YEOH SEANG HEE (NO. K/P: 771212-07-5537)

TEOH PECK CHUN (NO. K/P: 791121-08-5498) ...RESPONDEN KEDUA (DALAM MAHKAMAH SESYEN DI GEORGETOWN DALAM NEGERI PULAU PINANG, MALAYSIA SAMAN NO: PA-A53KJ-218-10/2021 ANTARA YEOH SEANG HEE (NO. K/P: 771212-07-5537) ...PLAINTIF TEOH PECK CHUN (NO. K/P: 791121-08-5498) ...DEFENDAN ETIQA GENERAL TAKAFUL BERHAD ...PEMOHON/BAKAL PENCELAH GROUNDS OF JUDGMENT

This involves an appeal by the insurer against the dismissal of an application to intervene in a personal injury suit arising from a motor vehicle accident.

Following a motor vehicle accident on 17.08.2019 @ 11 a.m along Jalan Free School, Pulau Pinang involving Yeoh Seang Hee ("the Plaintiff"), rider of motorcycle No. PNT 8528 and Teoh Peck Chun ("the Defendant"), the legal registered owner of motorcar No. PLH 5175, a personal injury claim was filed on 06.10.2021 in the Georgetown Sessions Court in Pulau Pinang vide Suit No. PA-A53KJ-218-10/2021 ("Suit 218").

As the insurer of motorcar No. PLH 5175, the Appellant appointed Messrs. Agusti Ismadi & Karu, a law firm, to defend them in Suit 218.

Suit 218 commenced in Georgetown Sessions Court, where the Plaintiff closed his case on 16.04.2025 after five (5) witnesses were called.

Two (2) days prior, on 14.04.2025, the Appellant filed an application to intervene (Enclosure 40) on the grounds of fraud and/or collusion by the Defendant, who allegedly submitted false claims to the Appellant.

The sealed application of Enclosure 40 was only served onto the Plaintiff's Solicitors after the Plaintiff closed his case.

On 03.07.2025, the learned Sessions Court Judge dismissed the said application with costs. Hence, this appeal.

Was the delay in Enclosure 40 justified?

(ii) Was there a basis to file Enclosure 40? ANALYSIS AND FINDINGS

It is undisputed that there was a delay in the filing of Enclosure 40.

First and foremost, the application to intervene derives from O 15 Rules of Court 2012 (ROC 2012).

Notwithstanding the provisions state that the application may be made at any stage, case laws have shown that intervener application must be made at the first instance at the earliest opportunity where the intervener had knowledge of the proceedings and the opportunity to take steps (see Federal Court decision of Chong Fook Sin v Amanah Raya Bhd & Ors [2010] 7 CLJ 917, Desaminium Jaya Sdn Bhd & Anor v Tan Ai Lin & Ors; Tan Ting Keat (Proposed Intervener) [2024] CLJU 1033).

Reference is also made to the case of Badruzamani Azmi v Kurnia Insurans (M) Bhd [2001] 4 CLJ 280 where it was held that an application to intervene made over one year and after the close of Plaintiff's case was held to be inordinate delay and fatal.

Coming back to this appeal, the chronology of events reveals the following.

The Appellant was duly informed of the said motor vehicle accident via a notice issued under s.96(2) Road Transport Act, 1987 ("RTA 1987"). Following the accident, the Defendant lodged a police report vide Trafik Timur Laut No. 002643/2020 on 30.01.2020, and the Plaintiff subsequently filed Suit 218 on 06.10.2021. The Appellant was duly informed of the same via a notice issued under s.96(2) RTA 1987, whereupon the Appellant appointed an adjuster to investigate the said motor vehicle accident.

However, the Appellant only filed Enclosure 40 in 2025—nearly four (4) years after the Plaintiff commenced Suit 218, and a mere two (2) days before the Plaintiff closed his case.

Applying the legal principles enunciated in the aforementioned authorities, this Court finds the delay inordinate and fatal to the Appellant's application. Consequently, the learned Sessions Court Judge did not err in dismissing Enclosure 40 on the grounds of delay.

Even on the assumption that the delay was justified, was there any basis for the Appellant to file Enclosure 40?

The Appellant argues that the allegations of fraud and/or collusion by the Defendant are evidenced by the following-

Defendant's police report vide Trafik Timur Laut No. 002643/2020 states the accident had already occurred when he passed by the location.

(ii) The adjuster's investigations revealed Defendant was at the office at 10.00 a.m.

(iii) Defendant's police report states no damage to the Defendant's car which is inconsistent with the injuries suffered by the Plaintiff.

(iv) Photographs adduced by the Plaintiff depicted the Defendant's car and Plaintiff at two (2) different locations.

The adjuster's investigations and photographs also revealed two (2) different locations.

(vi) Injuries to the Plaintiff not only did not support the mechanism of accident but also contradict the photographs adduced by the Plaintiff as well as the Plaintiff's testimony in court.

It is important to note that in the pleadings, the Defendant completely denies involvement in the alleged accident.

As such, the Appellant's assertions of fraud and collusion between the primary parties are entirely baseless. A plea of collusion could only be sustained if the Defendant had admitted to the accident while merely disputing liability.

Accordingly, the arguments advanced by the Appellant cannot legally sustain Enclosure 40.

Ultimately, the Plaintiff bears the primary burden under s.101 of the Evidence Act 1950 to prove on a balance of probabilities that the Defendant caused the accident. Only when the Plaintiff establishes a prima facie case does the evidential burden shift to the Defendant.

If the Plaintiff's case collapses due to the material inconsistencies highlighted by the Appellant, the Defendant is under no legal obligation to adduce evidence to repair or plug the gaps in the Plaintiff's case (see The Carbon Company Sdn Bhd v Ng Lee Hoon [2017] 6 CLJ 189).

The Appellant's contentions regarding the conflicting accident locations, the discrepancy between the Plaintiff's injuries and the mechanics of the accident, and the inconsistencies within the police report are strictly matters of evidence. These issues fall squarely within the purview of the learned Sessions Court Judge to evaluate when determining the final outcome of the main suit.

In any event, as the Defendant denies any involvement in the said motor vehicle accident, the Defendant's Solicitors would have naturally conducted the trial along that line of defence / argument. Furthermore, the Defendant's own police report corroborates this total denial of involvement.

For instance, the Appellant's argument regarding the inconsistencies between the Defendant's police report (stating there was no vehicle damage) and the injuries sustained by the Plaintiff is strictly a matter of submission to be ventilated by the Defendant's Solicitors at the conclusion of the trial.

Similarly, the contention that the Plaintiff's photographs depict two (2) entirely different locations—the location of the car versus the actual scene of the accident—constitutes an issue of weight and credibility for the trial court to determine. Consequently, these factual disputes fall squarely within the trial proper and do not provide a basis for the Appellant's intervention.

Furthermore, the Appellant's arguments concerning the adjuster's findings constitute pure hearsay. No adjuster's report was exhibited, nor was any affidavit from the investigator filed to support Enclosure 40. Devoid of original evidentiary backing, these bare assertions cannot support an application to intervene. (see Federal Court decision in Lori Malaysia Bhd v. Arab Malaysian Finance Bhd [1999] 2 CLJ 997).

Prior to the Defendant pleading non-involvement in the accident, the Appellant, as the insurer, would have conducted all necessary investigations and forwarded its findings to the Defendant's Solicitors before the Statement of Defence was filed.

In other words, before pleading a total denial, the Defendant's Solicitors would have naturally relied on the Appellant's initial investigative findings rather than accepting the Defendant's words blindly.

The Statement of Defence was thus clearly framed and filed based on those very investigations. The Appellant cannot now claim surprise or seek to intervene on issues its own panel solicitors have actively defended since the inception of the suit, further demonstrating that this late intervention is entirely unmeritorious.

Moreover, during the various case management sessions leading up to the trial, the Solicitors for both the Plaintiff and the Defendant would have systematically exchanged, studied, and analyzed all relevant documents e.g. photographs and police reports. This meticulous process is precisely why the documents were classified and compiled in Parts A, B, and C of the Common Bundle of Documents.

Consequently, the Defendant's Solicitors would have detected any inconsistencies, doubts, or concerns at that preliminary stage, at which point an application to intervene could—and should—have been made.

Furthermore, the exchange of witness statements would have raised an immediate red flag had there been any genuine suspicion of fraud or collusion as now alleged by the Appellant.

The fact that no intervention was sought at that critical juncture completely defeats the Appellant's intervener application (Enclosure 40).

The Appellant's failure to act until nearly four (4) years after the Plaintiff commenced the suit, and a mere two (2) days before the Plaintiff closed his case, underscores the afterthought nature of Enclosure 40.

The notes of evidence reveal that the witness statement of the investigating officer (PW1) was adduced as early as 05.07.2023, while the Plaintiff's (PW4) witness statement was prepared in October 2024.

Significantly, the Defendant's Solicitors raised no objection regarding the service of PW4's statement, unlike the late service involving PW1.

Consequently, the Appellant had more than ample time to file an application to intervene. The evidence and testimonies of both PW1 and PW4 were already well within the knowledge and sight of the Defendant's Solicitors.

In other words, any suspicion of fraud or collusion would have surfaced as early as July 2023 or October 2024.

Even assuming the Defendant's Solicitors had somehow failed to detect these issues during pre-trial case management—where they routinely exchanged, studied, and analyzed the photographs and police reports—such suspicions would have certainly been triggered by these witness statements and conveyed in their routine case updates to the Appellant.

To file Enclosure 40 at the eleventh hour supported by arguments which this Court finds as non-starters-is clearly an abuse of the court process, which further prejudices the Plaintiff by unnecessarily prolonging the trial.

Consequently, this Court agrees with the learned Sessions Court Judge that the Appellant will not suffer any prejudice since the Defendant has at all material times expressly denied any involvement in the alleged motor vehicle accident.

Based on the aforesaid, this Court finds no reasons to interfere with the decision of the learned Sessions Court Judge. The appeal is dismissed with costs of RM5,000-00 subject to allocatur fees. Decision of the learned Sessions Court Judge affirmed. Counsel(s): Mr. Zamri Ali Hassan from Messrs Othman Hashim & Co for the Appellant. Mr. Baljit Singh a/l Jigiri Singh from Messrs Baljit Singh & Co. for the 1 $ ^{st} $ Respondent. Dato' Kiru together Diveena Malairaja from Messrs. Agusti Ismadi & Karu for the 2 $ ^{nd} $ Respondent. Case(s) referred to: Chong Fook Sin v Amanah Raya Bhd & Ors [2010] 7 CLJ 917; Desaminium Jaya Sdn Bhd & Anor v Tan Ai Lin & Ors; Tan Ting Keat (Proposed Intervener) [2024] CLJU 1033); Badruzamani Azmi v Kurnia Insurans (M) Bhd [2001] 4 CLJ 280; The Carbon Company Sdn Bhd v Ng Lee Hoon [2017] 6 CLJ 189; Lori Malaysia Bhd v. Arab-Malaysian Finance Bhd [1999] 2 CLJ 997.