Hamidon Bin Ramli v 1. Cheng Wee Ming (WA-11BNCVC-25-04/2018)

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CHENG CHIN SIAN … RESPONDENTS (IN THE MAGISTRATES’ COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR CIVIL SUIT NO.: WA-A73KJ-2337-08/2017)

1.

CHENG CHIN SIAN … PLAINTIFFS AND HAMIDON BIN RAMLI … DEFENDANT 2 GROUNDS OF JUDGMENT INTRODUCTION [1] The civil suit which was filed in the court below on 25.8.2017 arises from a road accident which occurred on 7.2.2017. The parties had, by consent, recorded liability on 13.2.2018 to be apportioned at 10% Respondents: 90% Appellant. The trial was thus to determine the issue of quantum only. The learned Magistrate on 19.4.2018 awarded the total sum of RM32,117.38 on the basis of 100% liability where RM31,154.90 is for the costs of repairs and RM962.48 for the Adjuster’s fees. Interest at the rate of 2.5% per annum on special damages from the date of the accident until the date of judgment and interest at the rate of 5% per annum from the date of judgment until full settlement, and costs of RM4,362.00 were also awarded (‘said Judgment’). [2] The Appellant lodged his Notice of Appeal against the said Judgment on the same date that the learned Magistrate delivered her decision. I heard oral submissions by learned counsels representing the parties 3 on 14.9.2018 and having read the Record of Appeal and written submissions filed, I dismissed the appeal on 28.9.2018 with costs of RM3,000.00 subject to the payment of allocatur fees. [3] The Appellant has since obtained leave from the Court of Appeal on 21.2.2019 to appeal against my entire decision. [4] For purposes of these grounds of judgment, I shall refer to the Appellant and the Respondents as they were in the court below, namely as the “Defendant” and the “Plaintiffs”, respectively. BACKGROUND FACTS [5] On 7.2.2017 at around 4.30 p.m., the 2nd Plaintiff was driving a Nissan Serena MPV 2.0 registration number WD9700C (‘said motorcar’) belonging to the 1st Plaintiff along Jalan Kia Peng, Kuala Lumpur from the direction of Grand Hyatt heading towards Mandarin Oriental Hotel when all of a sudden, a motorcar bearing registration number VG 6944 that was on the 2nd Plaintiff’s left side had, without 4 any indication and/ or warning, turned right and collided into the left side of the 2nd Plaintiff’s motorcar. [6] The Plaintiffs claimed that the accident occurred as a result of and/ or contributed by, the Defendant’s negligence, which was of course denied by the Defendant in his Defence. Nonetheless, as mentioned at the outset, the parties had reached an agreement on the issue of liability and this appeal concerns the issue of quantum only. [7] In reply to the Plaintiffs’ pleadings on quantum, the Defendant in his Defence made no admission as regards the items of damages claimed and the Plaintiffs were put to strict proof. PROCEEDINGS AT THE MAGISTRATES’ COURT [8] Three witnesses were called to testify for the Plaintiffs, namely the 2nd Plaintiff (PW1), the Adjuster, Lee Kah Hoe (PW2) and the supervisor from the workshop, Ho Choon Leong (PW3). The Defendant elected 5 not to call any witness. The findings of the learned Magistrate are set out in paragraph 6 of her rather brief Grounds of Judgment: “[6] Mahkamah setelah mendengar keterangan kesemua saksi-saksi Plaintif dan setelah meneliti dokumen yang dikemukakan membuat dapatan seperti berikut:- i) SP2 telah memeriksa motorkar Plaintif secara fizikal dan membuat taksiran terhadap kerosakan yang dialami Plaintif di Dyco Global Workshop. ii) Kos alat ganti dan kos pembaikian motorcar Plaintif dinilai berdasarkan satu sistem iaitu sistem merimen yang diluluskan oleh Bank Negara dan diguna pakai oleh semua syarikat insurans dan penyelaras untuk membuat penilaian kerosakan sesebuah motorkar. 6 iii) Selepas pemeriksaan dan penaksiran dibuat, SP2 mengeluarkan laporan penilaian dengan kos pembaikian sebanyak RM31,154.90. iv) SP1 menyatakan pembayaran telah dibuat kepada pihak bengkel dan resit telah dikeluarkan kepadanya. v) SP1 juga mengakui telah membayar yuran penyelaras sebanyak RM962.48. vi) SP3 mengesahkan SP1 menghantar kereta ke bengkelnya untuk dibaiki dan mengesahkan SP1 telah menjelaskan kos membaiki motorkar tersebut dan resit telah dikeluarkan kepada SP1.”. [9] Out of RM33,197.38 claimed as special damages for three items, the learned Magistrate awarded the total sum of RM32,117.38 on the basis of 100% liability consisting of RM31,154.90 for the costs of repairs and RM962.48 for the Adjuster’s fees while the sum of 7 RM1,080.00 for loss of use of the motorcar for 18 days was not allowed. THE MEMORANDUM OF APPEAL [10] In essence, the grounds of appeal by the Defendant as set out in the Memorandum of Appeal are that the learned Magistrate erred in law and in fact when –

she allowed the Plaintiffs’ claim without taking into account the evidence by the Plaintiffs’ own witnesses that the documentary evidence tendered during the trial is not valid;

she failed to consider that the Plaintiffs had failed to discharge the burden of proof on them to establish their case on a balance of probabilities such that the burden had not shifted to the Defendant to answer or rebut the Plaintiffs’ claim; and 8

she failed to conduct an independent judicial appreciation of the evidence and instead accepted the Plaintiffs’ evidence and submissions in toto. THE DEFENDANT’S SUBMISSIONS [11] Learned counsel for the Defendant, Mr. Samreet Singh relied on the Federal Court decision in Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609 in support of the contention that just because the Defendant elected not to call any witness, and even if the Plaintiffs’ evidence is unopposed, this does not necessarily mean that the Plaintiffs have discharged the burden of proving their case on a balance of probabilities. The evidence adduced by the Plaintiffs must be sufficient to prove the claim for special damages. Therefore, even though the Defendant had taken the position that there is “no case to answer”, the trial court still has a duty to consider the entire evidence adduced by the Plaintiffs, including the answers given by the witnesses under cross- 9 examination, in order to determine whether the Plaintiffs have adequately discharged his burden. [12] The Defendant further argued that, at the trial in the court below, the Plaintiffs had failed to discharge the legal burden upon them due to the following reasons:

the Plaintiffs have failed to establish that the 1st Plaintiff, as owner of the said motorcar, had authorised the repairs on the same;

the Plaintiffs have failed to proof that the costs of repair as pleaded reflects the actual costs incurred to repair the Plaintiffs’ motorcar, as opposed to merely being an estimated cost for the same;

the Plaintiffs have not proven that they had paid for the repairs to the said motorcar; and

the Adjuster’s Report and photographs submitted by the Adjuster, and the official receipt issued by the workshop are 10 invalid for non-compliance with the express remarks in the Adjuster’s Report as to the need of having the print code on all estimate pages of the Report and dates on the photographs. The absence of any signature and company chop on the workshop’s receipt renders it invalid as well. THE PLAINTIFFS’ SUBMISSIONS [13] The Plaintiffs submitted that there was no error on the part of the learned Magistrate, whether in law or on the facts, in her findings and conclusion on the quantum of damages. Three witnesses had given oral evidence for the Plaintiffs. The documents produced during the hearing were all admitted as evidence and marked as Plaintiffs’ exhibits. By submitting that there is no case to answer, the Defendant has failed to rebut the oral and documentary evidence produced by the Plaintiffs during the trial, which had fulfilled the requirements under subsection 101(1) Evidence Act 1950 [Act 56] (‘EA 1950’) and the legal principles on proof of special damages as established in cases such as Lee Tai Kau v Rajanderan Manickam [1995] 4 MLJ 11 163; Chin Hooi Nan v. Comprehensive Auto Restoration Service Sdn. Bhd. & Anor. [1995] 1 BLJ 25; Syarikat Chin Seng Supermarket v. MUI Continental Insurance Sdn. Bhd. [1997] 2 CLJ Supp 377; and Pang Ah Chee (M.W.) (the Administratix of the Estate of Chia Soy Moy @ Chai Ho Kam, deceased) v. Chong Kwee Sang [1985] 2 CLJ

[14] It was further submitted by the Plaintiffs’ counsel, Ms. Wan Asma’, that any admission by the Plaintiffs’ witnesses to the suggestions which were put to them during cross-examination was as a result of continuous questioning by the Defendant’s counsel. This led the witnesses to change their answers according to what the Defendant’s counsel wanted to hear although they had initially given the intended responses. [15] As regards the issues raised in respect of the Adjuster’s Report and photographs, the Plaintiffs’ counter argument is that those issues are merely technicalities which did not affect the accuracy of the contents of the said Report and the amount which was in fact received by the workshop for repairs to the said motorcar. 12 THE LEGAL PRINCIPLES [16] The learned Magistrate, upon whom lies the primary task of evaluating the evidence, has had the benefit of hearing the oral testimony by the three witnesses and observing their demeanor in the witness box. Generally, her finding ought not to be disturbed unless this Court, as the appellate court, is convinced that it is wrong in the sense that no reasonable judge, on the evidence on record, could have reached the conclusion of the trial judge. Another principle central to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence, including as to whether the burden of proof on a party has been discharged, may be set aside on appeal (see Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 39 ; Arab-Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors [2003] 1 CLJ 585; Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309; Ming Holdings (M) Sdn Bhd v. Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857; UEM Group Berhad v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785; MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn 13 Bhd [2016] 4 CLJ 665; and Exocitic Skyline Sdn Bhd v. Hamid Naib & Ors and Another Appeal [2018] 1 LNS 510). [17] The aforesaid legal principles are equally applicable in the award of damages by the trial court and the Plaintiffs’ counsel had referred to two authorities on this aspect, namely Mahmod Bin Kailan v. Goh Seng Choon & Anor. [1976] 2 M.L.J. 239 and Jamiah Bt. Holam v. Koon Yin [1983] 1 M.L.J. 103. In the former case, Suffian L.P. had cited the following passage from the judgment of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. (see also, the judgment of the Federal Court in Rasidin Bin Partorjo v. Frederick Kiai [1976] 2 MLJ 214) when delivering the judgment of the Federal Court: “Where the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a 14 question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer L.J. in Flint v. Lovell. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of the excess or insufficiency.”. [emphasis added] [18] Additionally, it is trite law that it is the duty of plaintiffs in any case to establish that they have suffered damages as stated in the often quoted passage by Lord Goddard in Bonham-Carter v. Hyde Park Hotel [1948] 64 T.L.R. 177 and cited by Thomson C.J. in Lee Sau Kong v. Leow Cheng Chiang (1961) 27 M.L.J. 17 in these words: 15 “Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: ‘This is what I have lost; I ask you to give me these damages.’ They have to prove it.”. [19] Since the Defendant had made a submission of no case to answer at the close of the Plaintiffs’ case in the Magistrates’ Court, it is appropriate for me at this juncture to refer to the decision of the Federal Court in Syarikat Kemajuan Timbermine Sdn Bhd (supra). The Defendant relied on this high authority in persuading this Court that the legal burden to prove the heads of claim for special damages lies throughout with the Plaintiffs and that the Plaintiffs have failed to discharge this burden. Thus, the Defendant claimed that his submission that there is no case for him to rebut is absolutely justified. The relevant excerpt from the judgment of Azahar Mohamed FCJ at pages 633 - 634 is as follows: 16 “[56] … On these submissions we have two observations to make. The first is that the principle on which an appellate court could interfere with findings of fact by the trial court is the plainly wrong test … And, the second is that the burden of proof at all times is of course borne by the plaintiff to establish on the balance of probability the existence of a legally enforceable settlement agreement … In other words, it was upon the plaintiff itself, and certainly not the defendant, to discharge the burden of showing the settlement agreement had come into existence. It is for the plaintiff to prove its case and satisfy the court that its claim is well-founded before the court grants judgment on the claim. … It is true that in the present case the defendant elected not to call any witnesses. However, it is imperative to bear in mind that from the outset the legal burden of the existence of the settlement agreement was with the plaintiff as the claimant in the present action. By reasons of the legal principles, the fact that the defendant led no evidence or call not witnesses did not absolve the plaintiff from discharging its burden in law. 17 In this regard, in adopting the approach of the case of Storey v Storey [1961] P 63, Suriyadi JCA (as His Lordship then was) in Mohd Nor Afandi bin Mohamed Junus v Rahman Shah Alang Ibrahim & Anor [2008] 3 MLJ 81; [2008] 2 CLJ 369 recognised this to be the case as can be seen from the following passage of His Lordship’s judgement: There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff’s evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged. [57] We therefore agree with the submission of learned counsel for the defendant to the effect that despite the fact the defendant did not call any witness and that even if 18 the plaintiffs’ evidence is unopposed (and therefore presumed to be true), this does not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the Plaintiff must still be sufficient to prove the existence of the settlement agreement. …”. [emphasis added] [20] There is a final legal principle that requires mention and that relates to the burden of proof. Subsection 101(1) EA 1950 provides that “Whoever desires any court to give judgement as to any legal right or liability, dependent on existence of facts which he asserts, must prove that those facts exist.”. Section 102 of the same statute then states that “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.”. 19 [21] Although the words “legal burden of proof” and “evidential burden of proof” are not found in EA 1950, decisions which have utilised these terms are aplenty, for example, Vernon Ong J (now JCA) in Tey Moon Kim v Hon Siew Mei [2013] 7 MLJ 528 at page 537 – 538 held that - “[23] In law, the party who desires the court to give judgement as to any legal right or liability bears the burden of proof (s 101(1) of the Evidence Act 1950). The burden of proof is on that party is twofold: (i) the burden of establishing a case; and (ii) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required of the plaintiff is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence. In this respect it is the plaintiff who must establish its case. If the plaintiff fails to do so, it will not do for the plaintiff to say that the defendant 20 has not established its defence (Selvaduray v Chinniah [1939] 1 MLJ 253 (CA); s 102 of the Evidence Act 1950). It should also be noted that there must be some preponderance in the plaintiff’s favour at the conclusion of the whole case. Even if the plaintiff established a prima facie case, but at the conclusion of the trial the court found that the position was exactly even, then any preponderance in favour of the plaintiffs had ceased to exist. If that happens, then the plaintiff has failed to discharge the burden of proof which is upon it, and the plaintiff must necessarily fail (Abrath v The North Eastern Railway Company (1883) 11 QBD 79 (CA)).” [emphasis added] (see too, Tan Kim Khuan v Tee Kee Kiat (M) Sdn Bhd [1998] 1 MLJ 697; Tenaga Nasional Bhd v Marwin Industries Sdn Bhd [2012] 2 MLJ 421 and paragraph 11 of the judgment of the Court of Appeal as delivered by Vernon Ong JCA in Pengerang Farm Sdn Bhd v Pentadbir Tanah Daerah Kota Tinggi [2017] MLJU 214). 21 [22] Mariette Peters (now JC) in her book “Law of Evidence in Malaysia” (Lexis Nexis, 2013) at pages 23 – 24 had quoted Lord Devlin’s expression of reservation with the term “evidential burden” in the case of Jayasena v R [1970] AC 618 as being confusing and misleading since it can be discharged by the production of evidence that falls short of proof. The learned author then opined that “evidential burden” is in fact a contradiction in terms as it is not at all a burden to prove, and it is accepted that the expressions “burden to prove” and “burden of proof” found in EA 1950 must necessarily refer to the legal burden of proof. [23] With the aforementioned legal principles in mind, I now proceed to address the issues raised by the Defendant in this appeal. EVALUATION & DECISION OF THE COURT - Did the 1st Plaintiff authorise the repairs to the said motorcar? 22 [24] In her Witness Statement marked as WS P-1, the 2nd Plaintiff stated that “Motokar saya mengalami kerosakan pada bahagian kiri iaitu pintu kiri depan/tengah, rim tayar kiri, fender kiri, body belakang kiri, bumper belakang, bumper belakang dan lain-lain kerosakan.”. The details of the repairs as recommended by Motor Jasa Adjusters Sdn Bhd are set out in the Adjuster’s Report marked as exhibit P1 [see pages 46 – 51 Record of Appeal (‘RoA’)]. [25] The 1st Plaintiff as the registered owner of the said motorcar was not called as a witness at the trial. During cross-examination of the 2nd Plaintiff and PW3, the Defendant’s counsel sought to challenge their evidence regarding the repairs to the said motorcar by putting to them that the 1st Plaintiff did not authorise the repairs to be carried out. It is the Defendant’s submission that the Plaintiffs have failed to discharge the burden on them to prove that the 1st Plaintiff had indeed authorised the repairs to the said motorcar. [26] The learned Magistrate’s conclusion on this issue is as follows: 23 “[11] Plaintif pertama tidak hadir ke Mahkamah dan memberi keterangan juga telah dibangkitkan oleh Defendan. Mahkamah menilai dan berpandangan bahawa individu yang terlibat dalam kemalangan dan memandu motorkar milik Plaintif pertama adalah Plaintif kedua. Plaintif kedua yang menguruskan motorkar ke bengkel dan bersetuju untuk pihak bengkel melantik pegawai penyelaras untuk menilai kos pembaikan berdasarkan kerosakan yang dialaminya. Plaintif kedua juga yang meluluskan isu pembaikan kerosakan dan membayar kos pembaikan kepada pihak bengkel.”. [27] I have scrutinised the Notes of Evidence (‘NoE’) in the Additional RoA and apart from what the learned Magistrate had set down in her Grounds of Judgment, I find that there are other facts which were established in the course of the hearing, namely that –

the 1st Plaintiff is the 2nd Plaintiff’s father and the 2nd Plaintiff lives with her parents in the same house; 24

PW3 testified that he had called the 2nd Plaintiff after the said motorcar was sent to the workshop to obtain approval on the parts to be changed and the cost of repairs, and that the 2nd Plaintiff had discussed with the 1st Plaintiff on the subject; and

the 2nd Plaintiff gave evidence that she went to collect the said motorcar with her father after repairs were completed. [28] It has not escaped my attention that there was a part of PW3’s testimony when he said that there was no approval by the owner of the said motorcar for the repairs to be done. I also note that under the heading “AUTHORIZATION” in exhibit P1 at page 47 RoA, the Adjuster states that “We have not authorized repairs but shall leave the final decision to the owner.”. Following the thread of evidence, the logical conclusion is that the repairs would not have been executed if the 2nd Plaintiff did not inform the workshop of her agreement as to the parts to be changed and the costs involved. An extract from the NoE is re-produced below: 25 “SSS So, memandangkan itu, saya cadangkan kamu tidak dapat apa-apa approval dari owner untuk buat itu tukar. Betul? You tak ada dapat apa-apa approval. Dia tidak bagi sebab you cakap you tak ada ingat you call dia atau tidak. HO Ya, tiada approval. SSS So, semua ini repair you buat, you tidak dapat dia punya approval lah. Dia tak kata ‘ok’, tukar semua.’ HO Mesti dia sudah cakap tukar semua punya. SSS Tak. Dia tidak bagi approval untuk you tukar. HO Tak tahu. SSS Tak tahu. HO Tapi memang kita office akan call. 26 SSS Memang office akan call? HO Tapi dia akan kasi approval kasi office. SSS Ok. HO Cakap ini barang tukar, dia boleh bayar, baru kita buat. SSS Office yang call? HO Mesti. SSS You cakap office call lah? HO Saya tak ingat. Mesti ada orang call, yang office atau saya mesti ada call, kasi tahu ini barang mahu tukar, berapa harga.”. [29] Even though the 1st Plaintiff was not called as a witness in the court below, it can be implied from the entire evidence given by his 27 daughter, the 2nd Plaintiff, and PW3 that there were discussions between the Plaintiffs concerning the repairs to the said motorcar. This finding is fortified by the fact that the 2nd Plaintiff borrowed money from her father to pay for the cost of repairs as will be addressed in the subsequent part of this judgment. [30] Therefore, I am of the view that the Plaintiffs have proven, on a balance of probabilities, that the 1st Plaintiff had authorised the repairs to the said motorcar. - Did the 2nd Plaintiff pay for the repairs to the said motorcar? [31] The other angle of challenge mounted by the Defendant is that the evidence as to payment for the repairs is not genuine and is an attempt to mislead the Court because the official receipt issued by Dyco Global Workshop (exhibit P6 at pages 81 - 82 RoA) is dated 28.3.2017 and PW3 had testified that the receipt is issued only upon payment of the repair sum. PW3 also said that the said motorcar was in the workshop for around one month. 28 [32] In contrast, the 2nd Plaintiff’s evidence is that she had gone to collect the said motorcar in mid-April 2017, which was three or four days after receiving the phone call from the workshop. The Defendant thus submitted that it is startling that the receipt is issued before the payment is received. [33] At the court below, this issue was raised by the Defendant in the context of the claim for loss of usage of the said motorcar when it was in the workshop. The learned Magistrate’s findings on this item can be seen in paragraph 13 of her judgment where she rejected the claim because “Plaintif didapati gagal membuktikan kerugian ini secara khusus”. In so far as payment for the cost of repairs to the said motorcar, the learned Magistrate held that the 2nd Plaintiff had indeed made such payment to the workshop (see paragraph 11 of the Grounds of Judgement). [34] From the evidence elicited during the cross-examination of the 2nd Plaintiff, she said that the money for the cost of repairs was borrowed from the 2nd Plaintiff’s parents and partly provided by her husband. In any event, her testimony was clarified during re-examination which 29 cleared any doubts that may have existed initially about her having paid the cost of repairs to the said motorcar with exhibit P6 as its proof. I, of course, did not have the benefit of observing the 2nd Plaintiff’s demeanor in the witness stand and the learned Magistrate did not mention anything regarding the 2nd Plaintiff’s credibility as a witness in her judgment. However, having read the NoE, it indicates that the 2nd Plaintiff had difficulty comprehending some of the questions posed to her and her recollection of events may not be to the desired level as 13 months had passed since the date of the accident when she stepped into the court room for the trial. To my mind, the contradiction between her oral evidence and PW3’s relating to the date when she paid the workshop and collected the said motorcar does not make her an untruthful witness nor can it be said to amount to an attempt to deceive this Court. Minor contradictions are bound to happen and is “a natural attribute of human fallacy”: see Ahmad Shahrir JC in Siven a/l Subramaniam v Lim Hai Chie [2017] MLJU 1432; see also Lee Wai Fay (P) And Anor v Lee Seng Ein [2005] MLJU 195. 30 [35] On the above premise, the learned Magistrate did not err in her decision whereupon the Plaintiffs had proven, on a balance of probabilities, that the amount of RM31,154.90 was paid by the 2nd Plaintiff to the workshop on 28.3.2017 as per exhibit P6 for the cost of repairs to the said motorcar. - Are the costs of repair to the said motorcar as pleaded in the Statement of Claim, the actual costs or the estimated costs? [36] The Defendant’s submissions on this issue relate mainly to the evidence by PW2 on the report that he had prepared and marked as exhibit P1. In his Witness Statement marked as WS P-2, PW2 stated that he had inspected and assessed the damages to the said motorcar which would cost RM31,154.90 to repair. PW2 further explained that – “Jumlah tersebut adalah berdasarkan kepada kerosakan-kerosakan yang dialami oleh motokar tersebut dan juga setelah meneliti dan meninjau nilai pasaran semasa bagi alat-alat ganti yang diperlukan oleh motokar tersebut di 31 dalam merimen. Merimen atau juga dipanggil sistem merimen ialah satu sistem yang menyediakan senarai harga semasa dan/atau terkini bagi alat-alat ganti kenderaan yang mana ianya dirujuk oleh semua syarikat insurans dan penyelaras bagi mengetahui nilai pasaran semasa bagi alat-alat ganti kenderaan dan sistem ini adalah diluluskan serta di bawah kelolaan Bank Negara Malaysia.”. [37] In his cross-examination of PW2, Mr. Samreet Singh had questioned the witness in detail on selected items in exhibit P1 whereby in summary, PW2 agreed with learned counsel that –

most of the items are repairable by knocking and re-painting the same without the need to replace them with new parts;

by doing so, the cost of repairs would be considerably lower; and 32

he had assumed that the owner of the said motorcar would want to replace the items with new parts because the said motorcar is new. [38] PW2 said that he had recommended a sum of RM31,154.90 as costs of new parts after taking into account a 10% discount on all the parts. To this, I would add reference to exhibit P1, again at page 47 RoA, which carry these statements: “EXTENT OF DAMAGE The damages to the claimant vehicle were confine to the left bodyside with suspension front and rear portion. … ADJUSTMENT & DISCOUNT With the repairer we have conducted a joint inspection of the damaged parts that warrant replacement. Our recommendations are given in the enclosed captioned “Damaged Parts”. 33 Our estimation based on visual inspection of the damaged parts of the vehicle amounting to [RM31,154.90] is in respect of labour charges and replacement parts. The replacement part price quoted are base on franchise and 10% discount had been recommended for replace parts. SPECIAL REMARKS The above recommendation is considered to be fair and reasonable and would be sufficient to attend the necessary repairs. However, our recommendation is subject to negotiation between the Insurance Company and the Claimant.”. [39] The Defendant contended it is trite that an insurance claim is for indemnity only and the Plaintiffs cannot take advantage of the situation by replacing all parts to the said motorcar with new items when the affected parts can be repaired. PW2 had also admitted that the amounts in each item of his “estimates” are merely estimates and 34 nothing more. Hence, the Defendant submitted that the actual cost of repairs would not be the exact amount down to the very last dollar and cent as it could be slightly higher or slightly lower. [40] The Plaintiffs refuted the Defendant’s arguments by submitting that the affected items need to be replaced by new parts in light of their condition after the accident which are stated in exhibit P1 as being, inter alia, “Deformed/Torn”, “Cracked’, “Dented/Bent” and “Dented/Buckled”. Additionally, the photographs of the said motorcar which were taken before and after the repairs (exhibits P2 and P5(a) – (h), respectively) would support PW2’s evidence on the extent of damage and the necessity of obtaining new parts for the proper functioning of the said motorcar post-accident. Furthermore, PW2’s recommendations were based on the Merimen System which is approved by the Central Bank of Malaysia. [41] In her judgment, the learned Magistrate appears to agree with the Plaintiffs’ submissions as reference was made to the fact that PW2’s assessment was based on the Merimen System which is approved by the Central Bank of Malaysia. I do not think that the learned 35 Magistrate was plainly wrong in her conclusion because whilst PW2 admitted that the figures which appear in exhibit P1 are merely estimates, he also said that he had followed the pricing based on the Merimen system. This would then explain the similarities between the particulars of the parts and their amounts in exhibit P1 with the description of the parts and their unit price in exhibit P6. [42] As regards the owner’s consent for the replacement of parts and the cost of repairs, this was established from the testimony of the 2nd Plaintiff and PW3 as outlined in the earlier part of my judgment. [43] Therefore, I am of the considered view that the Defendants’ contention that the Plaintiffs have failed to discharge the legal burden on them to prove the actual costs of repairs to the said motorcar is baseless. The evidence placed before the trial court supports a finding that the costs of repair to the said motorcar as pleaded in the Statement of Claim are the actual costs. These actual costs are no different from the Adjuster’s estimated costs because PW2 has applied the unit prices as they appear in the Merimen System. 36 - Are the Adjuster’s Report, photographs and workshop’s receipts valid? [44] The Defendant challenged the validity of the Adjuster’s Report (exhibit P1) and photographs (exhibit P2) on the grounds that these do not conform to the remarks which appear in the said Report itself. The remarks relating to the print code appear at page 48 RoA under the heading “REPAIR DETAILS” in the following words: “Reference Part Source: … Parts: … Labour: … Print Code: (Unsubmitted, no print-code for WD9700C) Validity: These estimates are valid only if they contain the print code (above) on all estimate pages, running page numbers with the END OF ESTIMATES on the last estimate page Further Info: …”. 37 [45] The Defendant argued that the Plaintiffs’ own Adjuster’s Report makes a clear and bold assertion that the estimates of the repair costs are only valid if it contains a print code. Since there is no print code in this case, the logical conclusion is that the estimates are not valid and this was admitted by PW2 himself. [46] Meanwhile, the remarks which pertain to the photographs can be seen at page 51 RoA as follows: “Important Notice Photos taken must be dated and consist of:- …”. Learned counsel for the Defendant submitted that, when cross-examined, PW2 agreed that the photographs are undated and thus, they are not valid and the Court should not take cognizance of any evidence that has been admitted by the maker to be invalid. [47] Apart from the issues raised concerning exhibits P1 and P2, the cross-examination of PW3 also brought out an additional issue with 38 the official receipt issued by the workshop (exhibit P6) namely, the absence of any signature or company stamp for the receipt to be valid. This point is further augmented by the fact that during cross-examination, PW3, testified that he does not know the details of the items under “Miscellaneous Items” in exhibit P6. [48] The learned Magistrate opined in paragraphs 10 and 12 of the Grounds of Judgment as follows: “[10] Isu mengenai laporan penilaian oleh Pegawai penyelaras yang dibangkitkan Defendan adalah isu teknikal. Keterangan dan bukti yang dikemukakan oleh Plaintif adalah lebih kukuh dan kuat apabila Plaintif kedua (SP2) telah melalui bengkel melantik seorang pegawai penyelaras untuk menilai kos pembaikan motorkarnya. Penyelaras yang memeriksa kerosakan motorkarnya pula membuat penilaian berdasarkan sistem merimen yang diluluskan oleh Bank Negara. … 39 [12] … Berdasarkan kepada pemerhatian dan dapatan di atas, Mahkamah mendapati bahawa isu-isu yang ditimbulkan oleh Defendan gagal untuk menafikan tuntutan Plaintif. Tiada bukti/keterangan lain yang lebih berwibawa yang dikemukakan oleh Defendan untuk menunjukkan bahawa tuntutan Plaintif adalah salah, tidak tepat, meragukan dan tidak wajar dibenarkan. …”. [49] The fact that PW2 had conducted a physical inspection of the said motorcar and thereafter prepared his report, and the assessment as to the estimates of the cost of repairs were based on the Merimen System seem to weigh heavily in the decision making process since the learned Magistrate mentioned the Merimen System no less than three times in her judgment. [50] In my assessment, the issues highlighted by the Defendant are, as stated by the learned Magistrate, technical issues. However, the question confronting this Court is whether there is merit on these technical issues such that they are capable of defeating the Plaintiffs’ 40 claim for the cost of repairs to the said motorcar and the Adjuster’s fees. [51] Firstly, as regards the print code, the Defendant’s counsel omitted to mention that there were five occasions during the cross-examination of PW2, who is an Adjuster of 5 years’ experience, where he said that he did not know what a print code is. During re-examination, PW2 explained that “Saya tak faham dia apa report tak valid. Jika tak valid, saya buat ini laporan buat apa? Saya pakai Merimen yang keluarkan ini laporan.”. [52] Until the end of the trial, there was no evidence which explained the true meaning of a print code and how/ why its absence would affect the validity of exhibit P1. He who asserts must prove; it is thus incumbent on the Defendant to produce such evidence to satisfy the Magistrate of the matter being asserted since the Plaintiffs’ stance appears to be that as long as the Adjuster has applied the Merrimen System, the remark on “Validity” in exhibit P1 is not strictly enforced. 41 [53] Secondly, when PW2 was re-examined by the Plaintiffs’ counsel as to why the photographs were not dated, PW2 said, “Sebab sudah saya kerja lama, lima tahun pun tak pernah letak tarikh punya.”. The phrase “Photos taken must be dated …” is placed under the heading “Important Notice” in exhibit P1 and seems to be an instruction or directive to the Adjusters employed by Motor Jasa Adjusters Sdn Bhd. in the course of their work in preparing the “Third Party Vehicle Inspection Report”. The consequence of undated photographs is not stated in the Report, unlike the absence of the print code. From PW2’s answer, he has never placed the date on the photographs which he has taken since he began employment with the company. [54] In my view, what is more important is the fact that the photographs clearly show the said motorcar and the damage caused to it as a result of the accident. The Defendant never contended otherwise throughout the trial. Under the circumstances, I do not think that it is fair and proper for the Court to conclude that exhibit P2 is invalid merely because no dates can be seen on the photographs. 42 [55] Thirdly, as for the challenge on the absence of a signature or stamp on exhibit P6, the 2nd Plaintiff as the driver of the said motorcar, and PW3 as the maker of P6, had given oral evidence during the trial that RM31,154.90 is the amount charged, and paid, for repairs to the said motorcar. The breakdown for the sum of RM170.00 for “Miscellaneous Items” in P6 is actually listed under the heading “Miscellaneous Items” in exhibit P1 (see page 50 RoA) as “Electrical (Check & diagnose)” – RM35.00; “Other items” – RM35.00; “Road wheel alignment” – RM35.00; “Road wheel balancing” – RM25.00; and “Undersea materials” – RM40.00. Therefore, I see no merit to the Defendant’s objections concerning exhibit P6. [56] Even taking the Defendant’s arguments regarding the validity of exhibits P1 and P2 in their totality, these, to my mind, remain unconvincing because the documents were proved and marked as Plaintiffs’ exhibits through the maker (PW2) without any objections by the Defendant (see NoE at pages 25 and 26, Additional RoA). According to Sarkar on Evidence, Volume 1, 12th edition at page 581: 43 “Documents are either proved by witnesses or marked on admission. When it is marked on admission without reservation, the contents are not only evidence but are taken as admitted, and cannot be challenged by cross-examination or otherwise. In case of documents marked on admission dispensing with formal proof, the contents are evidence, although the party admitting does not thereby accept the truth of the contents which can be challenged by cross-examination or otherwise (Lionel Edwards Ltd v S.A. 1067 C 191).”. [57] The Defendant did not raise any objections on the admissibility of the Adjuster’s Report, photographs and receipt issued by the workshop as evidence at the trial. Nor has the Defendant shown how the absence of the print code affects the weight to be given to exhibit P1, apart from the statement in the exhibit itself on the validity of the estimates, which PW2 appears to be oblivious. PW2 insisted that he had applied the pricing as per the Merimen system and hence, if the Defendant contends that this pricing is somehow wrong or inaccurate, the Defendant ought to have called his own witness to testify, and to 44 produce any documentary evidence, to this effect. Moreover, there is no evidence to indicate that PW2 has any incentive to conceal or misrepresent the facts related to exhibits P1 and P2 (see section 73A EA 1950). [58] In light of the fact that the Adjuster’s Report, photographs and receipt as well as the receipt issued by the workshop had been tendered as the Plaintiffs’ exhibits P1, P2, P3 and P6, and three witnesses had been called to give evidence as to the quantum of damages, it is my considered judgment that the issues raised by the Defendant as regards these exhibits have either been explained during re-examination of PW2 or did not affect the Plaintiffs’ case to the extent that it can be said that the Plaintiffs had failed to establish the legal burden to prove the special damages as awarded by the learned Magistrate on a balance of probabilities. 45 CONCLUSION [59] For the reasons as abovementioned, it is my considered judgement that the Plaintiffs have discharged the legal burden of proof on them of establishing their claim for the cost of repairs and Adjuster’s fees. The responsibility of adducing evidence to rebut the Plaintiffs’ case then shifted to the Defendant. The Defendant, in choosing to elect to make a submission of no case to answer at the close of the Plaintiffs’ case, did not adduce any evidence to discharge the evidential burden on him and in so doing, acted to his own peril. [60] In sum, the learned Magistrate did not err in law and in fact in coming to the conclusion that she did and hence, there is no basis for appellate intervention in this case. The Defendant’s appeal was thus dismissed with costs of RM3,000.00 subject to allocatur. Dated: 27 May 2019 (ALIZA SULAIMAN) JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR 46 Counsels/ Solicitors: For the Appellant: Samreet Singh Sagoo Messrs. Lovelace & Hastings Unit 5-2, 5th Floor Wisma Bandar No. 18, Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur For the Respondent: Wan Asma’ Wan Burhadin Messrs. H.S. Tay, Baharin & Partners No. 38A & 38B, Jalan Datuk Haji Eusoff Kompleks Damai, Off Jalan Ipoh 50400 Kuala Lumpur