Great Eastern Life Assurance (Malaysia) Berhad v Prakasa Rao A/L Samachulu (W-04(NCC)(W)-212-05/2018)

1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-04(NCC)(W)-212-05/2018 BETWEEN GREAT EASTERN LIFE ASSURANCE (MALAYSIA) BERHAD ...APPELLANT AND PRAKASA RAO A/L SAMACHULU ...RESPONDENT (In the matter of the High Court of Malaya in Kuala Lumpur Civil Appeal No: WA-12 NCC-27-08/2017 Between Prakash Rao A/L Samachulu ...Appellant And Great Eastern Life Assurance (Malaysia) Berhad ...Respondent) CORAM AHMADI HAJI ASNAWI, JCA ABDUL KARIM ABDUL JALIL, JCA SURAYA OTHMAN, JCA 2 JUDGMENT The Background Of The Case [1] The appellant is an insurance company and is the defendant in the original suit at the Session Court. The respondent is the insured party under a life insurance policy provided by the appellant and is the plaintiff in the original suit. Both of the parties will hereinafter be referred to respectively as the plaintiff and the defendant. [2] The plaintiff had claimed from the defendant for what is commonly known in the insurance industry as a claim for ‘Total and Permanent Disability’ (“TPD”) benefits. Between the years 1999 until 2008, the plaintiff had subscribed to a total of 11 life insurance policies provided by the defendant. Under those policies, he would be entitled to claim for TPD benefits to the total amount of RM746,700.00, the amount of which, in the High Court and also before us, is not in dispute. [3] The plaintiff’s claim was dismissed by the learned Session Court judge (“SCJ”) and his appeal against the said decision to the High Court was allowed. Thus, the appeal before us by the defendant. 3 [4] It should be noted from the outset that the only issue in this appeal and also in courts below is this: whether or not the plaintiff had suffered a ‘Total and Permanent Disability’ (“TPD”) as defined under the said life insurance policies, and thus entitled to the TPD benefits under those policies amounting to a total sum of RM746,000.00? The Brief Facts [5] The plaintiff claimed to be a self-employed mechanic, running his own motor workshop. Between the years 1999 until 2008, he had subscribed to a total of 11 life insurance policies provided by the defendant. On 14.4.2010, he had an accident while working at his workshop and suffered an injury to his neck. The subsequent course of events culminated in his claim for TPD benefits arising from the said insurance policies. [6] On 26.4.2011, the defendant received the plaintiff’s claim for the TPD benefits and thereafter, by a letter dated 14.6.2012, the defendant rejected the plaintiff’s claim on account that the plaintiff’s alleged condition does not fall within the policy definition of “total and permanent disability” as provided 4 by the said insurance policies. Hence, the plaintiff’s action at the Session Court. [7] A total of 13 witnesses had testified, 5 of whom are doctors i.e. PW2 (Dato Dr. Ramanathan @ Manickam a/l Ramiah); PW5 (Dr. Raveendran a/l S. Kandiah); PW6 (Dr. Anbanandan a/l S. Subramaniam); PW7 (Professor Vickneswaran a/l Mathaneswaran); and DW5 (Dr. Harwant Singh a/l Hacharan Singh Tara). Their testimonies were summarized by the learned JC at pp. 22 to 30 of her grounds of judgment, Bahagian A, Jilid 1, Rekod Rayuan (“RR”). Decision Of The Session Court [8] The decision of the learned SCJ is best encapsulated through the following excerpts of the judgment (at paras. 16-24 of the grounds of judgment, Bahagian D, Jilid 3A RR): “[16] Setelah saya meneliti keterangan saksi-saksi kedua belah pihak, eksibit-eksibit yang dikemukakan, laporan-laporan perubatan ke atas Plaintif dan hujahan bertulis kedua belah pihak, saya memutuskan di tahap imbangan kebarangkalian Plaintif telah gagal untuk membuktikan tuntutannya. Berdasarkan keterangan yang ada, saya mendapati Plaintif telah gagal membuktikan beliau mengalami hilang upaya kekal (TPD) seperti yang ditakrifkan di bawah polisi insurans tersebut. 5 [17] Di bawah takrifan polisi-polisi insurans tersebut, untuk berjaya di dalam tuntutannya, Plaintif perlulah membuktikan yang dia tidak boleh melakukan apa-apa kerja akibat dari kecederaan yang dialaminya atau pun dia telah mengalami kecederaan yang tidak boleh disembuhkan yang menyebabkan dia tidak boleh melakukan tiga dari aktiviti harian yang dinyatakan di bawah polisi tersebut walaupun dengan bantuan alat-alat bantuan. Dengan lain perkataan, kehilangan upaya kekal di bawah polisi ini tidak hanya merujuk kepada ketidakbolehan Plaintif kembali ke pekerjaan asalnya. Ianya merangkumi ketidakupayaan Plaintif untuk melakukan apa-apa kerja. …… [19] Keterangan yang ada hanya menunjukkan Plaintif tidak boleh kembali bekerja sebagai mekanik akibat kecederaan yang dialaminya. Di bawah polisi insurans tersebut keadaan ini adalah tidak memadai untuk membolehkan Plaintif mendapat faedah hilang upaya kekal di bawah polisi-polisi insurans tersebut. …… [24] Berdasarkan semua keterangan-keterangan ini, saya berpendapat Plaintif telah gagal untuk membuktikan dia mengalami kehilangan upaya kekal seperti yang ditakrifkan di bawah polisi-polisi insurans yang dikeluarkan oleh Defendan. Keterangan yang ada hanya menunjukkan Plaintif hanya tidak boleh kembali bertugas sebagai mekanik akibat dari kecederaan yang dialaminya. Oleh yang demikian, tuntutan Plaintif adalah ditolak dengan kos sebanyak RM20,000.00.” (emphasis added) Decision Of The High Court [9] The learned Judicial Commissioner (“JC”) had reversed the decision of the Session Court, apparently based solely upon the decision of the Supreme Court in Pacific & Orient Insurance Co Sdn Bhd v R Kathirvelu [1992] 1 CLJ (Rep) 251 (“Kathirvelu’s case”). We reproduce here 6 in extenso the relevant parts of the judgment of the learned JC (at paras. 38- 42 of the grounds of judgment, at pp. 40 – 42, Bahagian A, Jilid 1, RR) for purposes of clarity: “38. However, I am of the view that the Sessions Court judge had erred in one respect. He did not consider the decision of the Supreme Court in Pacific & Orient Insurance Co Sdn Bhd v R Kathirvelu [1992] 1 CLJ (Rep) 251 where it was held as follows: “As for the plaintiff’s incapacity due to the injury, we would prefer to follow Pocock’s case (supra) and looking at the whole policy hold that the definitions section therein, in particular that clause defining permanent total disablement as “absolute disablement from engaging in or giving attention to profession or occupation of any kind”, should be understood in the context of the actual business or occupation of the plaintiff. Moreover it is quite clear from the evidence in this case that the plaintiff would never again be able to resume his occupation as a technical assistant in the Jabatan Kerja Raya and was therefore permanently and totally disable (sic) within the meaning of the policy. Having considered the evidence and the submissions of Counsel on the first issue, we would agree with the learned Judge’s finding that the bodily injury suffered by the plaintiff was solely and independently caused by the two accidents in the sense that they were the proximate cause of his permanent total disablement in this case and had prevented him from continuing this occupation as a technical assistant in the Jabatan Kerja Raya.”

39. The above said decision is binding on this Court. The actual occupation of the Plaintiff is that of a mechanic. The Sessions Court judge found that to be the case. His Honour also found it to be the case that the evidence shows that the Plaintiff could not return to his work as a mechanic. Based on the said case of Pacific & Orient Insurance, the Sessions Court judge ought to be held [sic] that the Plaintiff had suffered a TPD. …… 7

41. Notwithstanding the medical evidence that the Plaintiff is not precluded from carrying out work which is supervisory or administrative in nature, there is also no evidence led by the Defendant as to exactly what, if any, job the Plaintiff could actually carry on. To say merely that the Plaintiff could give orders to his workers in the workshop from a wheelchair and is therefore not suffering from TPD is not logical. A person could not be said to attend to business simply because he was capable of doing, perhaps rather badly, some minor part of the work involved in that business. (see Pocock v Century Insurance Company Ltd [1960] 2 Lloyd’s Report 150).

42. Due to the aforesaid reasons, I am of the view that the Sessions Court Judge had erred in dismissing the claim of the Plaintiff. In the circumstances, I allow the appeal and grant judgment in favour of the Plaintiff as prayed in his claim with costs of RM 5,000.00 subject to allocator. The parties have confirmed that if liability is in favour of the Plaintiff, the quantum of his claim is not in dispute.” (emphasis added) The Submissions Before Us [10] Learned counsel for the defendant had submitted before us, inter alia, as follows:

(ii) the learned JC had erred in fact and in law in deciding that the plaintiff was totally and permanently disabled based on the decision in Kathirvelu’s case. It was submitted that Kathirvelu’s case has no binding effect upon this case, based on the following grounds:

(iii) the definition of “total and permanent disability” must be interpreted in the context and construction of the terms in the policy; unlike the Kathirvelu’s case, the disability referred to in the policies subscribed to by the plaintiff is not confined to his ability to return to his original occupation, but rather his ability to do any work at all. 9 [11] Learned counsel for the respondent on the other hand submitted that:

(ii) the learned JC was right in relying on the decision in Kathirvelu’s case. Our Decision [12] As the learned JC had departed from the finding of the learned SCJ on the issue of what constitutes TPD based upon the ruling in Kathirvelu’s case, which she opined is binding upon the lower courts, and consequent thereto, since the learned SCJ had found it to be the case that the evidence shows that the plaintiff could not return to his former work as a mechanic, the learned SCJ then ought to have ruled that the plaintiff had indeed suffered TPD, it is hence imperative upon us to look at the definition of TPD assigned by the insurance policies purchased by the plaintiff. 10 [13] The plaintiff had purchased the following life insurance policies from the defendant: Policy No. Commencement Date

25.11.1999

(ii) 81663109

26.9.2001

(iii) 8527833-4

11.7.2002

(iv) 8667266-9

23.12.2002

28.4.2003

(vi) 87687351

28.4.2003

(vii) 9120991-0

27.2.2004

(viii) 9120991-0

27.2.2004

(ix) 9456261-5

22.3.2005

30.6.2008

(xi) 100058454-6

30.6.2008 [14] What amounts to TPD will be subject to and dependent upon the definition of TPD in the policy contract. The sustainability of the plaintiff’s 11 case would stand or fall upon whether the plaintiff is totally and permanently disabled in accordance with the definition of TPD as provided for under the policies. [15] The policy definition for TPD under the policies purchased by the plaintiff are almost identical. In a nutshell, it provided for a state of incapacity which:

(ii) is deemed to be caused by total and irrecoverable loss of both eye sight, loss of use of two limbs at or above the wrist or ankle or total and irrecoverable loss of sight of one eye and loss of use of one limb at or above the wrist or ankle. [16] Meanwhile, Policy No. 9456261-5 and Policy No. 1000058454-6 (items

(ix) and (x) of para. 13, above) provided a further alternative definition where TPD is also a state of incapacity which renders the insured disable to such 12 an extent as to be totally and permanently unable to perform at least three of the listed Activities of Daily Living even with the use of mechanical equipment, special devices or other aids and adaptation used by disable persons. The word ‘permanent’ means beyond the hope of recovery with current medical knowledge and technology. [17] Accordingly, ‘Activities of Daily Living’ as provided by the policies means:

(ii) the ability to move from room to room without physical assistance;

(iii) the ability to voluntarily control bowel and bladder functions and to maintain personel hygiene;

(iv) dressing and undressing;

(vi) eating. 13 [18] Unlike the instant case before us, the insurance policy referred to in Kathirvelu’s case was a personal accident policy. [19] As can be digested from the citation, the personal accident policy taken by the respondent in Kathirvelu’s case provided, inter alia, for the payment to the respondent of a sum of RM200,000.00 on the terms and conditions contained in the policy. It stated that: “if during the period of insurance the insured shall sustain any bodily injury caused by violent external and visible means which injury shall solely and independently of any other cause result in his death or disablement the company will pay to the insured or to his legal personel representatives the sum or sums of money in accordance with the table of benefits set forth in the schedule”. [20] One of the issues raised in the said case during the trial was: has the plaintiff/respondent suffered bodily injury which has resulted in permanent total disablement as defined in the policy? [21] The policy in a separate interpretation section defined Permanent Total Disablement as “absolute disablement from engaging in or giving attention to profession or occupation of any kind”. 14 [22] On appeal, the then Supreme Court ruled that: “As for the plaintiff’s incapacity due to the injury, we would prefer to follow Pocock’s case (supra) and looking at the whole policy hold that the definition section therein, in particular that clause defining permanent total disablement as “absolute disablement from engaging in or giving attention to profesion of any kind”, should be understood in the context of the actual business or occupation of the plaintiff. Moreover it is quite clear from the evidence in this case that the plaintiff would never again be able to resume his occupation as a technical assistant in the Jabatan Kerja Raya and was therefore permanently and totally disable within the meaning of the policy”. (emphasis added) [23] It is apparent that in the instant case, the plaintiff cannot rely on the alternative meaning of TPD in respect of irrecoverable loss of sight of both eyes or either one nor on the loss of use of both limbs or either one of them. [24] Nor can the plaintiff rely on the further alternative meaning of TPD under policies no. 9456261-5 and 1000058454-6 on account of non-production of evidence that he was totally and permanently unable to perform at least three of the listed Activities of Daily Living even with the aid of mechanical equipment or special devices or other aids used by disable persons. 15 [25] The plaintiff’s only recourse is to prove his total and permanent in-capacity to ever sufficiently do or engage in any work, occupation or profession to earn or obtain any wages, compensation or profit. [26] In the event, how is the said clause, as enumerated in para. 15(i) above, to be interpreted or construed? [27] We do not think that we are bound by the decision in Kathirvelu’s case, contrary to the view of the learned JC, who opined that she is bound by the decision in the said case, for the simple reason that the definition of TPD therein and in the instant case were differently worded. [28] Nevertheless, there were common distinguishing characteristics in both the definitions. In the instant case, in a nutshell, the incapacity must be total and permanent, preventing the insured from doing or engaging sufficiently in any work, occupation or profession to earn wages or compensation or profit. Whereas in Khathirvelu’s case it envisages a situation where there was absolute disablement from engaging in or giving attention to a profession or occupation of any kind. 16 [29] In our view, in both the definitions, though worded differently, the paramount underlying consideration is the total and permanent or absolute disablement of the insured to do or engage in any work, occupation or profession. The two definitions carried the same ultimate meaning that the insured is incapacitated from doing any work, occupation or profession due to the injury or injuries sustained by the insured. [30] Hence, the next issue is what kind of work, occupation or profession is envisaged or anticipated in the context of the surrounding circumstances? Does it revolve around the incapacity of the plaintiff to do or engage in just about any other kind of work as suggested by the learned SCJ or his incapacity to return to his former work as a mechanic (in his own workshop) as found by the learned JC, based on Kathirvelu’s case? [31] Having regard to the fact that the underlying consideration of the definition of TPD in the instant case is the total and permanent disability to do or engage in any work occupation or profession, almost akin to the definition in Khathirvelu’s case, we found the decision in Khathirvelu’s case very persuasive and would thus associate ourselves with the said decision 17 and unequivocally find that the clause or definition therein “should be understood in the context of the actual business or occupation of the plaintiff”. Hence, the incapacity to do or engage in any work or occupation must relate to the plaintiff’s former or actual occupation. It must thus be related to his incapacity to work in his former occupation as a mechanic. After all as the evidence shows, that was the only job the plaintiff had ever done all his life. [32] Hence, the corresponding issue for determination is whether the plaintiff had suffered bodily injury which has resulted in the permanent and total disability or incapacity of the plaintiff to do or engages in any work, occupation or profession in accordance with the provisions of the policies purchased by him. [33] The learned SCJ found that the evidence shows that the plaintiff, due to the injury suffered by him, could not return to his work as a mechanic but is able do other kind of work or engage in other occupation, physically less consuming. Likewise the learned JC found that the plaintiff was working as a mechanic prior to the accident and the evidence suggests that he could 18 not work as a mechanic after the accident but that he could do work of a supervisory or administrative in nature, and based on Kathirvelu’s case, the plaintiff had indeed suffered from TPD in accordance with the provisions of the policies purchased by him. [34] Upon perusal of the evidence adduced and having particular regard to the medical evidence, we are on all fours with the findings of both the learned SCJ and JC that the plaintiff has been incapacitated from going back to his former occupation as a mechanic on account of the injury suffered by him in the accident. Hence, pursuant to our ruling enumerated in paras 28, 29, 30 and 31, above, we are in agreement with the learned JC’s finding that the plaintiff had indeed suffered from TPD in accordance with the policies purchased by him. We would unhesitantly associate ourselves with the sentiments expressed by the learned JC as reiterated below: “41. Notwithstanding the medical evidence that the plaintiff is not precluded from carrying out work which is supervisory or administrative in nature, there is also no evidence led by the defendant as to exactly what, if any, job the plaintiff could actually carry on. To say merely that the plaintiff could give orders to his workers in the workshop from a wheelchair and is therefore not suffering from TPD is not logical. A person could not be said to attend to business simply because he was capable of doing, perhaps rather badly, some minor part of the work involved in that business. (see Pocock v Century Insurance Company Ltd [1960] 2 Lloyd’s Report 150)”. 19 [35] In addition, we opined that it is of no relevance that the insurance policy referred to in Kathirvelu’s case was a personal accident policy. What is of relevance is the purport of the definitions of TPD in both the insurance policies (in the instant case and in Kathirvelu’s case) which we have duly concretized in the preceding paragraphs. Conclusion [36] We dismissed the appellant’s appeal for the reasons enumerated above in its entirety with cost, assessed at RM20,000.00 here and below. The decision of the learned JC is hereby affirmed. DATED: 26th July 2019 ( AHMADI BIN HAJI ASNAWI ) Judge Court of Appeal Malaysia 20 For the Appellant: Andrew Teh, Tan Chong Pei & Azura Abrar Tetuan Wong Lu Peen & Tunku Alina Peguambela & Peguamcara For the Respondent: Venkateswara Kandasamy Tetuan M. Ravendran & Associates Peguambela & Peguamcara