Inderpal Singh A/L Siminder Singh v Msig Insurance (Malaysia) Bhd (WA-22NCC-561-12/2021)

This is an own damage insurance indemnity claim brought by the Plaintiff against its insurer, the Defendant, arising from a contentious and vigorously disputed accident involving the Plaintiff’s Bentley Continental car, in which the Defendant has denied liability alleging that the accident was deliberately staged and the claim fraudulently made.

The trial of this action spanned approximately 12 days, during which 14 witnesses testified. Their details are as follows: Plaintiff’s Witnesses (10 in total): i) Adzhar Bin Abdullah (PW1) - Assistant Manager at CIMB Bank; ii) The Plaintiff himself (PW2); iii) Harjit Singh a/l Pritam Singh (PW3) - Plaintiff's brother-in-law (“Mr. Harjit”); iv) Ho Wenn Jian (PW4) - Operations Manager at Autodetailer Sdn. Bhd. (“Mr. Ho”); S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 2 of 23 v) Zaki Bin Hasan (PW5) – Freelance driver and Grab driver (“Encik Zaki”); vi) Muhammad Azhar Bin Sarapal (PW6) - Auxiliary Police at Tropicana Golf & Country Resort (“Encik Azhar”); vii) Wong Koon Tuck (PW7) - Insurance agent for the Defendant (“Mr. Wong”); viii) Sashi Kumar a/l K Devadasan (PW8) - Senior Adjuster from Motor Jasa Adjusters Sdn. Bhd. appinted by the Plaintiff as an independent adjuster (“Mr. Sashi Kumar”); ix) Liew Wai Poh (PW9) - Proprietor and manager of PJLM Auto; and x) Venodthan a/l Gunandram (PW10) (expert witness)- Forensic investigator from Thistlegorm Sdn. Bhd. Defendant’s Witnesses (4 in total): i) Jaspal Singh a/l Arjan Singh (DW1) - Assistant Vice President of the Defendant (“Mr. Jaspal Singh”); ii) Lee Chee Soon (DW2) - Assistant Vice President of the Defendant; iii) Low Wai Hoe (DW3) - Adjuster appointed by the Defendant; and iv) Su Wei Siang (DW4) - Forensic expert appointed by the Defendant (“Mr. Su”).

The Plaintiff is the registered owner of a Bentley Continental GTS V6 MDS vehicle bearing registration number AGY9 (“the Bentley”). At all material times, the Bentley was insured by the Defendant under Private Car Insurance Policy bearing Policy Reference Number KL-87310053-MPC (“the Insurance Policy”). S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 23 The Insurance Policy provided comprehensive coverage for the Bentley valued at RM900,000.00 for a term of one year, from 8.2.2019 to 7.2.2020.

The Plaintiff’s case is that on 22.1.2020, at approximately 11:31 p.m., he was traveling along Jalan Tropicana Utama within Tropicana Golf & Country Resort, returning to his residence after visiting his sister’s home in Kelana Jaya. According to the Plaintiff, while negotiating a right-hand curve, he encountered a puddle of water on the road and simultaneously, a dog unexpectedly attempted to cross his path. The Plaintiff attempted to avoid hitting the dog and, due to the slippery road conditions, lost control of the Bentley, which then collided with a guardrail on the left side of the road. The force of the impact reportedly caused the Bentley to breach the guardrail, coming to rest behind it.

Following the accident, the Plaintiff notified the Defendant through its agent, Mr. Wong Koon Tuck (PW7), on 23.1.2020. The Bentley was subsequently towed to PJLM Auto, a workshop approved by Persatuan Insurans Am Malaysia. PJLM Auto prepared an Estimate Report dated 7.2.2020, detailing repair costs amounting to RM1,053,491.07.

On 4.6.2021, approximately 16 months after the notification, the Defendant issued a letter rejecting the Plaintiff's claim. The Defendant alleged that the claim was “suspicious in nature” and “not consistent to the circumstances of the accident as described” by the Plaintiff. The Defendant further alleged that the Plaintiff “had used a fraudulent means to obtain benefit” from the Insurance Policy.

The Defendant alleged that “accident” was staged and that the damage to the Bentley was sustained elsewhere before being deliberately placed behind the guardrail at Jalan Tropicana Utama.

The Plaintiff commenced this action seeking indemnification under the Insurance Policy, alleging breach of contract and negligence by the Defendant in handling his claim.

The primary issues for determination in this case are as follows: S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 23 i) Whether the accident involving the Plaintiff's Bentley occurred at the time, date, and location as claimed by the Plaintiff; ii) If so, whether the Defendant is liable to indemnify the Plaintiff under the Insurance Policy; iii) Whether the Plaintiff's claim is tainted with fraud, as alleged by the Defendant; iv) The appropriate quantum of damages, if any, to be awarded to the Plaintiff.

The Plaintiff called ten witnesses, including himself, while the Defendant called four witnesses. I shall summarise the salient aspects of the evidence adduced.

The Plaintiff (PW2) testified that on 22.1.2020, he was traveling from Ipoh and visited his sister's residence in Kelana Jaya before commencing his journey home to Tropicana Golf & Country Resort at approximately 11:00 p.m. According to his testimony, while negotiating a right-hand curve along Jalan Tropicana Utama, he encountered a puddle of water on the road, and a dog suddenly attempted to cross his path. In trying to avoid the dog, and due to the slippery conditions caused by light rain, the Bentley swerved uncontrollably and collided with a guardrail, ultimately coming to rest behind it.

The Plaintiff further testified that after the accident, two unidentified individuals who happened to be passing by offered him a ride home. On the morning of 23.1.2020, he contacted his insurance agent, Mr. Wong (PW7), to report the accident and was advised to lodge a police report and have the Bentley sent to an authorized workshop. The Plaintiff then engaged the services of his regular freelance/Grab driver, Encik Zaki (PW5), to oversee the towing arrangements and to provide transportation to the police station. S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Mr. Harjit Singh (PW3), the Plaintiff’s brother-in-law, corroborated the Plaintiff's account regarding his visit to their home in Kelana Jaya on the night of the accident. Mr. Harjit testified that the Plaintiff had dinner at his residence and departed at approximately 11:00 p.m., with the Bentley in good condition at that time.

Mr. Ho Wenn Jian (PW4), the Operations Manager at Autodetailer Sdn. Bhd., testified that he received a call from the Plaintiff on the night of the accident informing him of the incident. Mr. Ho visited the accident scene the following morning and took photographs of the Bentley and its surroundings, which were produced as evidence in court.

Encik Zaki bin Hassan (PW5), the Plaintiff's regular freelance/Grab driver, testified that he was not present at the accident scene on the night of 22.1.2020. According to his testimony, he was only contacted by the Plaintiff on the morning of 23.1.2020 to assist with the towing arrangements and to provide transportation to the police station.

Encik Azhar bin Sarapal (PW6), an auxiliary police officer at Tropicana Golf & Country Resort, testified that he was on duty on the night of the accident and was notified of the incident. He arrived at the scene at approximately 11:45 p.m. and observed the Bentley behind the guardrail. Encik Azhar prepared an Incident Report, which was submitted as evidence. Although the Incident Report indicated that the Plaintiff was transported home by Encik Zaki, Encik Azhar clarified during re-examination that this was an error and that he had only met Encik Zaki on the morning of 23.1.2020.

Mr. Liew Wai Poh (PW9), the proprietor of PJLM Auto, testified regarding the damage sustained by the Bentley and the preparation of the Estimate Report, which detailed repair costs amounting to RM1,053,491.07.

Mr. Venodthan a/l Gunandram (PW10), the Plaintiff's forensic expert, provided detailed testimony regarding his investigation of the accident. He concluded that the damage to the Bentley and the deformation of the guardrail were consistent with the vehicle forcing its way under the guardrail. Mr. Venod also addressed the yellow paint residue found on the Bentley, explaining that the guardrail was originally painted yellow and black, though the paint S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 23 had faded over time due to exposure to sunlight and environmental factors.

The Defendant’s case was primarily built on the testimony of Mr. Su Wei Siang (DW4), a forensic investigator from ForSci Consultancy Sdn. Bhd. Mr. Su opined that the damage to the Bentley was inconsistent with the Plaintiff’s account of the accident. According to Mr. Su, it was physically impossible for the Bentley to have ended up behind the guardrail following an impact as described by the Plaintiff. Mr. Su proposed that the damage to the Bentley was consistent with a rollover event that occurred elsewhere, after which the vehicle was deliberately placed behind the guardrail.

Mr. Su also highlighted the presence of yellow paint residue with rock fragments on the Bentley’s bonnet, arguing that this was inconsistent with an impact against the guardrail, which was made of galvanized steel and was not painted yellow. Furthermore, Mr. Su presented a computer simulation using the Virtual Crash 4 software, which he claimed demonstrated that the Bentley could not have ended up behind the guardrail following an impact as described by the Plaintiff.

Mr. Jaspal Singh (DW1) and Mr. Lee Chee Soon (DW2), both Assistant Vice Presidents of the Defendant, testified regarding the Defendant's handling of the Plaintiff's claim and the decision to reject it based on the findings of the forensic investigation.

Mr. Low Wai Hoe (DW3), an adjuster appointed by the Defendant, testified regarding his investigation of the accident and his findings, which largely aligned with the conclusions reached by Mr. Su.

Before addressing the substantive issues regarding the occurrence of the accident, I must first determine whether the Plaintiff complied S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 7 of 23 with the notification requirements under the Insurance Policy, as this has been raised as a separate ground for denying the claim.

Section E(2)(a) of the Insurance Policy requires the insured to notify the insurer of an accident within seven days of its occurrence. The Defendant contends that the Plaintiff failed to meet this requirement, alleging that notification was only received in February or March 2020, well beyond the seven-day period from the accident date of 22.1.2020.

The Defendant, in its Statement of Defence, asserted that notification of the accident was only provided in February 2020. However, during cross-examination, Mr. Jaspal Singh (DW1) testified that according to the Defendant's records, notification was received from PJLM Auto on 11.3.2020. This discrepancy in the Defendant’s own position raises questions about the accuracy of their records concerning the notification date.

The Plaintiff, on the other hand, has consistently maintained that he notified Mr. Wong Koon Tuck (PW7), the Defendant’s insurance agent, on the morning of 23.1.2020, the day after the accident. This assertion was corroborated by Mr. Wong’s testimony, where he confirmed being informed of the accident by the Plaintiff on 23.1.2020 and advising the Plaintiff to lodge a police report and send the Bentley to an authorised workshop.

It is a well-established principle of insurance law that notice to an agent of the insurer constitutes notice to the insurer itself. Mr. Wong, as the Defendant’s agent, was authorised to receive notifications of claims on behalf of the Defendant. The Plaintiff's notification to Mr. Wong on 23.1.2020, therefore, constituted valid notification to the Defendant within the seven-day period required by the Insurance Policy.

Furthermore, I note that this ground for rejecting the claim was not mentioned in the Defendant’s rejection letter dated 4.6.2021. The rejection letter cited the claim being “suspicious in nature” and “not consistent to the circumstances of the accident as described” as the grounds for denial but made no reference to late notification. This demonstrates that the alleged late notification was not a ground for repudiation at the material time and appears to be a mere afterthought raised only during the course of litigation. S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal

The burden of proving that the notification was not made within the required period rests with the Defendant. In the absence of clear and compelling evidence to contradict the testimony of the Plaintiff and Mr. Wong, I find that the Defendant has failed to discharge this burden.

I therefore conclude that the Plaintiff complied with the notification requirements under Section E(2)(a) of the Insurance Policy by notifying Mr. Wong, the Defendant’s agent, on 23.1.2020, well within the seven-day period stipulated in the policy.

Having carefully considered the evidence presented by both parties, I find that the Plaintiff has, on a balance of probabilities, established that an accident involving his Bentley occurred at Jalan Tropicana Utama on 22.1.2020 at approximately 11:31 p.m.

The Plaintiff’s account of the accident is corroborated by several independent witnesses, most notably Encik Azhar (PW6), who arrived at the scene shortly after the incident and observed the Bentley behind the guardrail. Encik Azhar's contemporaneous Incident Report, prepared on the morning of 23.1.2020, provides compelling evidence supporting the occurrence of the accident at the specified time and location.

I find Encik Azhar to be a credible witness who had no reason to fabricate or misrepresent the events of that night. As an auxiliary police officer on duty at Tropicana Golf & Country Resort, he had a professional responsibility to accurately document incidents within the compound. His testimony that he was notified of the accident and arrived at the scene at approximately 11:45 p.m. lends significant weight to the Plaintiff's account.

Mr. Harjit Singh's (PW3) testimony that the Plaintiff visited his home in Kelana Jaya on the evening of 22.1.2020 and departed at approximately 11:00 p.m. also supports the Plaintiff’s narrative. The timing aligns with the Plaintiff's account of the accident occurring at approximately 11:31 p.m., given that the journey from Kelana Jaya to Tropicana Golf & Country Resort would typically take about 15-20 minutes. S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal

The Defendant has raised concerns about inconsistencies in the evidence, particularly regarding a WhatsApp message wherein the Plaintiff informed Mr. Ho (PW4) that he would only be returning from Ipoh on 23.1.2020. However, the Plaintiff explained during re-examination that he had decided to return earlier than initially planned and had informed his sister of this change. I find this explanation reasonable and accept that individuals often modify their travel plans without necessarily updating all acquaintances.

The Defendant has also highlighted alleged inconsistencies in Encik Azhar’s testimony regarding who transported the Plaintiff home after the accident. While the Incident Report indicated that Encik Zaki (PW5) had brought the Plaintiff home, both the Plaintiff and Encik Zaki testified that Encik Zaki was not present at the scene on the night of the accident. Encik Azhar clarified during re-examination that he had made an error in his Incident Report and had only met Encik Zaki on the morning of 23.1.2020.

In evaluating these inconsistencies, I am guided by the principle that minor discrepancies in witness testimonies, particularly concerning peripheral details, do not necessarily undermine the credibility of the witnesses or the overall narrative.

In this case, the manner in which the Plaintiff returned home after the accident and whether he had initially planned to return from Ipoh on a different date are peripheral details that do not materially affect the core issue of whether an accident occurred at Jalan Tropicana Utama on 22.1.2020. The existence of these minor inconsistencies does not, in my judgment, undermine the substantial evidence supporting the occurrence of the accident as claimed by the Plaintiff.

The Defendant has placed significant emphasis on an alleged inconsistency in the Plaintiff's account of the accident. In the police report lodged on 23.1.2020, the Plaintiff stated that the accident occurred while trying to avoid a dog crossing the road. However, in his statement to ForSci Consultancy Sdn. Bhd. (“ForSci”) on 6.10.2020, the Plaintiff mentioned a puddle of water on the road but did not refer to the dog. S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 10 of 23 [40] The Plaintiff explained this apparent discrepancy by stating that when speaking to ForSci’s representative, he assumed they had already read his police report and was merely providing additional details about the road conditions. I find this explanation credible. It is reasonable to expect that an investigator would review all available documentation, including the police report, before conducting an interview. The Plaintiff was not obligated to repeat information that he reasonably believed was already known to the investigator.

Moreover, I note that in his statement to Mr. Sashi Kumar (PW8), the adjuster appointed by the Plaintiff, the Plaintiff mentioned both the dog and the wet road conditions. This suggests that the Plaintiff’s account has been consistent when he has had the opportunity to provide a comprehensive narrative.

In insurance law, the principle of utmost good faith (uberrimae fidei) requires both the insurer and the insured to act with complete honesty and to disclose all material facts. As held by the Court of Appeal in Leong Kum Whay v. QBE Insurance (M) Sdn. Bhd. & Ors [2006] 1 CLJ 1, the duty of disclosure is confined to material facts that would influence a prudent insurer’s decision.

In my judgment, whether the accident was caused by the Plaintiff swerving to avoid a dog, or by the Plaintiff losing control due to a puddle of water, or by a combination of both factors, is immaterial to the Defendant’s liability under the Insurance Policy. Section D of the Insurance Policy, which outlines the general exceptions under which the Defendant is not obligated to honour a claim, does not include any provision that would exclude coverage based on the specific cause of the Plaintiff swerving or losing control of the vehicle.

The Defendant has not demonstrated how this alleged inconsistency would have materially affected its decision regarding the claim. The focus should be on whether an accident occurred, whether it was covered under the Insurance Policy, and whether there is evidence of fraud or misrepresentation that would void the policy or the claim.

Viewed in this context, the alleged inconsistency does not go to the root of the Plaintiff’s claim. Even if the Plaintiff’s description of the accident was imprecise in certain respects, this does not S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 11 of 23 detract from the central question, namely, whether an insured event occurred within the terms of the policy. Unless the Defendant can establish that the claim was fabricated or fraudulently made, minor discrepancies in the Plaintiff’s narrative, if any, do not justify a denial of coverage.

The Defendant has also raised an issue regarding the weather conditions at the time of the accident. The Plaintiff has maintained that it was raining or drizzling, which contributed to the slippery road conditions. The Defendant, however, contends that it was not raining and that the road was dry.

Mr. Venod (PW10) presented evidence from three independent online weather sources indicating rain in the vicinity of Petaling Jaya around midnight on 22.1.2020. While none of these sources specifically state that it was raining at 11:31 p.m. at Jalan Tropicana Utama, they collectively suggest that there was precipitation in the general area around the time of the accident.

Encik Azhar (PW6), who arrived at the scene shortly after the accident, testified that it was raining on the night of the accident and that the road was wet. As a security guard who was physically present at the location shortly after the incident, Encik Azhar's first-hand observations regarding the weather and road conditions carry significant weight.

The Defendant has criticised the weather reports presented by Mr. Venod, noting that they were not cross-checked with the Meteorological Department of Malaysia. However, the Defendant has not presented any contrary meteorological data that would definitively establish that it was not raining at the time and location of the accident.

In weighing the evidence, I find that the combination of Encik Azhar’s first-hand observations and the weather reports presented by Mr. Venod establishes, on a balance of probabilities, that it was raining or had recently rained at the time of the accident, resulting in wet road conditions as described by the Plaintiff. S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 12 of 23 [51] As with the issue of the dog and the puddle, I note that the weather conditions at the time of the accident do not affect the Defendant’s liability under the Insurance Policy. Section D of the Insurance Policy does not exclude coverage based on weather conditions. Whether it was raining or not does not materially affect the validity of the Plaintiff’s claim.

The most contentious issue in this case is whether the accident could have occurred in the manner described by the Plaintiff, specifically whether the Bentley could have ended up behind the guardrail following an impact as described.

Mr. Su (DW4), the Defendant’s forensic expert, asserted that it was physically impossible for the Bentley to have passed beneath the guardrail. He based this conclusion on several factors, including the height of the guardrail (88 cm) relative to the height of the Bentley's front fenders (90 cm) and the height of the Bentley itself (1.4 m). Mr. Su also noted that there was no breakage found on the joint areas of the deformed section of the guardrail, which he argued would be expected if the Bentley had forced its way beneath the guardrail.

Mr. Su further presented a computer simulation using the Virtual Crash 4 software, which he claimed demonstrated that the Bentley could not have ended up behind the guardrail following an impact as described by the Plaintiff. Based on these findings, Mr. Su proposed that the damage to the Bentley was consistent with a rollover event that occurred elsewhere, after which the vehicle was deliberately placed behind the guardrail.

Mr. Venod (PW10), the Plaintiff’s forensic expert, offered a different analysis. He noted that the guardrail had pre-existing damage, specifically a missing C-channel post (Post B), which he argued had compromised the integrity of the guardrail. According to Mr. Venod, this pre-existing damage allowed the guardrail to flex upward under the force of the Bentley's impact, enabling the vehicle to pass beneath it.

Mr. Venod supported his analysis with detailed photographic evidence and diagrams, including Google Street View imagery S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 13 of 23 dated September 2019 (approximately four months before the accident), which confirmed the pre-existing damage to the guardrail. He also provided a logical explanation of the forces involved and the sequence of events that led to the Bentley coming to rest behind the guardrail.

In evaluating these competing expert opinions, I must consider which explanation aligns more closely with the established facts and reasonable inferences. Both experts have presented plausible theories, but I must determine which is more probable based on the totality of the evidence.

I note that the Bentley was undisputedly found behind the guardrail on the morning of 23.1.2020, as documented in photographs taken by Mr. Ho (PW4) and confirmed by multiple witnesses. This is a critical established fact that any theory must account for.

The Defendant’s theory, as articulated by Mr. Su, requires accepting that the Bentley was involved in a rollover accident elsewhere, after which it was deliberately transported to Jalan Tropicana Utama and placed behind the guardrail in an elaborate staging of the accident. This theory necessitates the involvement of multiple individuals and specialised equipment, such as a flatbed tow truck, to transport and position the severely damaged Bentley. This were all mentioned in Mr. Su’s testimony.

Such an operation would have had to be conducted surreptitiously, bypassing three security checkpoints within a gated community, without detection by security personnel or residents. The perpetrators would also have had to inflict substantial damage to the guardrail to make it appear consistent with an impact.

I find this scenario to be highly implausible. It requires a level of coordination, resources, and risk-taking that stretches credibility, particularly in the absence of any direct evidence supporting such a conspiracy. The Defendant has not presented any witness who observed suspicious activity or the transportation of the Bentley to the scene. In other words, there were no witnesses to corroborate the Defendant’s theory.

In contrast, the Plaintiff’s explanation, as supported by Mr. Venod’s analysis, provides a more straightforward account of how the S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 14 of 23 Bentley came to rest behind the guardrail. While there may be valid scientific debate regarding whether the guardrail could flex sufficiently to allow the Bentley to pass beneath it, Mr. Venod’s explanation takes into account the pre-existing damage to the guardrail and provides a logical sequence of events that aligns with the physical evidence at the scene.

In matters of disputed expert testimony, it is well-established that the court is not bound to accept the opinion of any expert but must evaluate the evidence in its totality. As stated by the Federal Court in Syed Abu Bakar bin Ahmad v. Public Prosecutor [1984] 1 CLJ Rep 368, expert evidence is admissible to assist the court in forming a judgment where the question involved is beyond the range of common experience or knowledge, but the court remains the ultimate arbiter of fact.

In this case, I find that Mr. Venod’s explanation provides a more plausible account of how the Bentley came to rest behind the guardrail, consistent with the established fact that the vehicle was found in that position on the morning of 23.1.2020. While Mr. Su’s analysis offered a technical reconstruction of the accident dynamics, his alternative explanation is largely hypothetical and rests on a sequence of events that is highly improbable and unsupported by any direct evidence.

The Defendant has also raised concerns about yellow paint residue with rock fragments found on the Bentley's bonnet. Mr. Su (DW4) argued that this was inconsistent with an impact against the guardrail, which was made of galvanized steel and was not painted yellow.

Mr. Venod (PW10) countered that the guardrail was originally painted yellow and black, though the paint had faded over time due to exposure to sunlight and environmental factors. He supported this assertion with Google Street View imagery from September 2019, which showed the guardrail with a yellowish hue. Mr. Venod explained that while the outer layer of paint had faded to a yellowish cream or off-white tone, the inner layer retained a more prominent yellow colour, which could have transferred to the Bentley upon impact. S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal

The Defendant has questioned this explanation, noting that the paint residue on the Bentley contained rock fragments, which would not be consistent with a steel guardrail. However, I note that this observation, while valid, does not definitively establish that the Bentley did not collide with the guardrail. The presence of rock fragments could potentially be explained by other factors, such as debris on the road or accumulated contaminants on the guardrail.

In weighing the evidence, I find that the issue of the yellow paint, while raising legitimate questions, does not conclusively disprove the Plaintiff’s account of the accident. When considered alongside the substantial evidence supporting the occurrence of the accident at Jalan Tropicana Utama, including eyewitness testimony and contemporaneous documentation, this discrepancy is not sufficient to establish that the accident did not occur as claimed by the Plaintiff.

The Defendant has alleged that the Plaintiff’s claim is fraudulent, asserting that the accident did not occur as described and that the Plaintiff has deliberately misrepresented the circumstances to obtain an insurance pay-out. This is a serious allegation that requires clear and convincing evidence to substantiate.

It is a fundamental principle of law that he who alleges must prove. In this case, the burden of proving fraud rests with the Defendant. As stated by the Federal Court in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 5 MLJ 1, the standard of proof for allegations of fraud in civil cases is on the balance of probabilities.

The burden is not on the Plaintiff to disprove fraud, as one cannot reasonably be expected to prove a negative. Rather, it is incumbent upon the Defendant to establish, on a balance of probabilities, that the Plaintiff's claim is fraudulent.

In evaluating whether the Defendant has discharged this burden, I must consider the totality of the evidence presented. The Defendant’s case rests primarily on alleged inconsistencies in the Plaintiff’s account and the assertion that the accident could not have occurred as described. As I have discussed in detail above, S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 16 of 23 these inconsistencies are either immaterial or have been reasonably explained, and the assertion that the accident could not have occurred as described is not borne out by the evidence.

The Defendant has not presented any direct evidence of fraud, such as witnesses who observed the Plaintiff staging the accident or transporting the Bentley to the scene. The Defendant's theory requires a sequence of events that is not only implausible but also lacks substantive evidentiary support.

In the case of Veheng Global Trades Sdn Bhd v. AmGeneral Insurance Bhd [2019] 4 MLJ 14, the Federal Court, citing the UK Supreme Court decision in Versloot Dredging BV and another v. HDI Gerling Industrie Versicherung AG and others, The DC Merwestone [2016] 4 All ER 907 distinguished between fraudulently exaggerated claims and justified claims supported by collateral lies. The Federal Court held as follows: “[36] The UK Supreme Court, on the other hand, in Versloot Dredging BV and another v HDI Gerling Industrie Versicherung AG and others; The DC Merwestone [2016] 4 All ER 907 held that the fraudulent claims rule applied to a wholly fabricated claim, an exaggerated claim and even to the genuine part of an exaggerated claim if the whole was to be regarded as a single claim. However, the said rule did not apply to justified claims supported by collateral lies. In that case the court made a distinction between a fraudulently exaggerated claim and a justified claim supported by collateral lies where the insured was trying to obtain no more than the law regarded as his entitlement, and the lie was irrelevant to the existence or amount of that entitlement. A policy of deterrence did not justify the application of the fraudulent claims rule in this situation. The extension of the fraudulent claims rule to collateral lies was a step too far and disproportionately harsh to the insured, going further than any legitimate commercial interest of the insurer could justify.” (own emphasis added)

Applying these principles to the present case, even if there were inconsistencies or misstatements in the Plaintiff's account, the Defendant has not established that the claim itself is fraudulent or that the Plaintiff was seeking to obtain more than his entitlement under the Insurance Policy. The inconsistencies identified by the Defendant relate to peripheral details that do not affect the validity of the claim or the Defendant’s liability under the Insurance Policy. S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal

I therefore find that the Defendant has failed to discharge its burden of proving fraud. The evidence presented falls far short of establishing that the Plaintiff's claim is fraudulent and the Defendant’s speculative theories do not meet the standard required to justify the denial of the claim on this basis.

Clause 2 of the Insurance Policy outlines the basis for settlement, with Clause 2(a) applicable when the insured vehicle is deemed repairable, and Clause 2(b) applicable when it is deemed beyond economic repair.

Under Clause 2(a), if the Defendant determines that the Bentley is repairable, it may choose to repair the vehicle, provide a cash payment equivalent to the estimated cost of repairs, or replace the vehicle with one of the same make, model, age, and general condition.

Under Clause 2(b), if the Defendant determines that the Bentley is not repairable, it may classify the vehicle as beyond economic repair and offer a settlement equivalent to the vehicle’s market value.

The Defendant has argued that, if found liable, the amount payable would be limited to the market value of the Bentley at the time of the accident, which it claims was RM608,000.00 based on a valuation in Sedgwick's report. However, the Defendant did not make any election under the policy regarding whether it considered the Bentley repairable or not. Furthermore, the Defendant did not present comprehensive evidence to substantiate its valuation of the market value, relying instead on a one-line remark in Sedgwick's report without explaining the methodology employed.

PJLM Auto prepared an Estimate Report detailing the cost of repairing the Bentley, amounting to RM1,053,491.07. As this exceeds the insured sum of RM900,000.00, and in the absence of a clear election by the Defendant under either Clause 2(a) or 2(b) S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 18 of 23 of the Insurance Policy, I find that the Plaintiff is entitled to the insured sum of RM900,000.00.

Furthermore, for the Defendant to argue that Clause 2(b) applies, the Defendant must prove that the Bentley was “Beyond Economic Repair” (“BER”). The Defendant has failed to adduce any evidence to establish this position. No documentation, technical assessment, or expert testimony was presented by the Defendant to demonstrate that the Bentley was BER or could not be repaired. Since the Plaintiff has provided evidence of repair costs amounting to RM1,053,491.07, and there is no maximum sum explicitly stated under Clause 2(a), the maximum amount insured of RM900,000.00 would apply in this case, and as such, the Plaintiff is entitled to this sum.

While the Plaintiff has framed his claim under both contract and tort, I do not find that the Plaintiff has sufficiently established the additional causes of action alleged against the Defendant. Although the Defendant’s rejection of the claim was ultimately found to be incorrect, I am not satisfied that the Defendant acted negligently or with malice in reaching its decision. The Defendant conducted investigations and relied on expert opinions, even though these were ultimately unpersuasive. The threshold for establishing negligence or malice in the insurance claims process is high, and I do not find that the evidence in this case meets that threshold.

Accordingly, I dismiss the Plaintiff’s claims in tort, including negligence and malicious conduct, as these have not been made out on the evidence. I now turn to the Plaintiff’s primary claim for indemnity under the Insurance Policy.

Based on the foregoing analysis, I find that the Plaintiff has successfully established his entitlement to indemnification under the Insurance Policy on a balance of probability. The evidence supports the conclusion that an accident involving the Bentley occurred at Jalan Tropicana Utama on 22.1.2020 at approximately 11:31 p.m., resulting in damage to the vehicle. S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 19 of 23 [86] I am satisfied that there is sufficient evidence to establish that the accident occurred on 22.1.2020 at approximately 11:31 p.m. along Jalan Tropicana Utama within Tropicana Golf & Country Resort, as claimed by the Plaintiff. This conclusion is supported by the following: i) Timing and presence at Kelana Jaya — The Plaintiff’s brother-in-law, Mr. Harjit Singh (PW3), testified that the Plaintiff had been at his home in Kelana Jaya earlier that evening and left at approximately 11:00 p.m. This timeline makes it highly improbable that the Plaintiff could have staged an accident elsewhere, incurred substantial damage to the Bentley, and subsequently transported it to Jalan Tropicana Utama in the short span of time available. ii) Implausibility of the Defendant’s staging theory — The Defendant’s own expert, Mr. Su (DW4), acknowledged that staging the accident in the manner proposed would have required significant coordination, including the use of specialised equipment such as a flatbed tow truck and the involvement of several individuals to manually push or offload the damaged Bentley, as the vehicle could not have been moved using a pull cable or pulley system. This operation would also have required surreptitious access through multiple security checkpoints within a gated residential area. Critically, the Defendant has not adduced any evidence, whether in the form of eyewitness testimony, security records, or surveillance footag, to support that such an elaborate sequence of events ever took place. iii) Eyewitness presence at the scene — Encik Azhar (PW6), an auxiliary police officer on duty that night, testified that he was informed of the incident and arrived at the location shortly after 11:45 p.m., where he observed the Plaintiff’s Bentley behind the guardrail. His contemporaneous Incident Report further corroborates the Plaintiff’s version of events. iv) Physical evidence at the location — The damage to the guardrail, as well as the presence of debris and markings at the scene, are consistent with an actual collision having occurred at that precise location. Mr. Ho Wenn Jian (PW4) also attended the scene the following morning and S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 20 of 23 documented these physical indicators through photographs produced in evidence.

Taken together, these elements present a coherent and credible body of evidence that supports the Plaintiff’s account of the accident occurring at the time and place stated

It is sufficient for the Plaintiff to establish, on a balance of probabilities, that the accident occurred on the date, at the time, and at the location as stated. The Plaintiff is not required to prove with exact precision the mechanics or sequence of how the accident unfolded. Minor uncertainties or imprecision as to how the accident occurred do not, in themselves, negate the occurrence of the accident or the Defendant’s liability to indemnify the Plaintiff under the Insurance Policy.

In contrast, the Defendant’s theory that the accident did not occur as claimed is not supported by any real or independent evidence. Apart from the forensic reconstruction and simulation conducted by its expert, the Defendant has not produced any corroborative material, such as eyewitness testimony, surveillance footage, or physical evidence, to substantiate its version of events. The theory rests entirely on a speculative reconstruction, unsupported by any factual foundation to suggest that the Bentley was damaged elsewhere and later placed at the scene. The staging theory advanced by the Defendant would have required elaborate planning, the deployment of a flatbed tow truck, the involvement of several individuals to manually offload the severely damaged vehicle, and the circumvention of multiple security checkpoints within a gated community, yet no evidence has been adduced to suggest that such a costly and coordinated operation ever took place. In the absence of such evidence, the Defendant’s account remains implausible and lacking in probative value.

In this regard, I find that the Defendant has failed to discharge its burden of proving fraud. The Plaintiff cannot be expected to prove the absence of fraud, rather, it is the Defendant who must establish fraud to the requisite standard. The evidence presented fails to establish that the Plaintiff’s claim is fraudulent.

For completeness, I observed that there was no discernible motive or rational explanation as to why the Plaintiff would have gone to such extraordinary lengths to stage the accident. Under the terms S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 21 of 23 of the Insurance Policy, the Plaintiff was entitled to claim for own damage within the applicable geographical limits, and the Defendant has not raised any policy exclusion, other than its allegation that the accident was staged and that the Plaintiff committed fraud by misrepresenting the circumstances of the accident.

In the absence of any credible explanation as to what benefit the Plaintiff could have derived from fabricating the accident, and given the risks, effort, and coordination that staging the accident would have entailed, the Defendant’s theory appears not only speculative but also without foundation when assessed against the totality of the evidence.

For the reasons stated above, I allow the Plaintiff’s claim in the following terms: i) RM900,000.00, representing the insured amount under the Insurance Policy (prayer 26(1) of the Statement of Claim); ii) Interest on RM900,000.00 at 5% per annum, from 4.6.2021 (the date of the Defendant’s rejection letter) until the date of final settlement (prayer 26(7) of the Statement of Claim); and iii) Costs of RM70,000.00, awarded in favour of the Plaintiff. Dated this 20th day of May, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) S/N yl/vxaxF0i6J9XPQSg5gw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 22 of 23 COUNSEL FOR THE PLAINTIFF David Samuel (Sheena Stephanie Sebastian, R. Thanasegar Ramasamy, Danesh Ram Aggarwal (pupil-in-chambers) and Mithurran Ravinthiran (pupil-in-chambers) together with him) Messrs Chambers of Firdaus Unit J-5-1, 5th Floor, Parklane Commercial Hub, Jalan SS7/26, Kelana Jaya, 47301 Petaling Jaya, Selangor Tel: 03-78875360 Emel: cfirdaus@gmail.com COUNSEL FOR THE DEFENDANT Samreet Singh Sagoo (Theebadarshini Retnakumar together with him) Messrs Lovelace & Hastings Unit 5-2, 5th Floor, Wisma Bandar, No. 18, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur Tel: 03-26981166 Emel: kl@lovelacehastings.com CASES CITED

Leong Kum Whay v. QBE Insurance (M) Sdn. Bhd. & Ors [2006] 1

Syed Abu Bakar bin Ahmad v. Public Prosecutor [1984] 1 CLJ Rep 368

Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 5 MLJ 1 S/N yl/vxaxF0i6J9XPQSg5gw Page 23 of 23 4. Veheng Global Trades Sdn Bhd v. AmGeneral Insurance Bhd [2019]

Versloot Dredging BV and another v. HDI Gerling Industrie Versicherung AG and others, The DC Merwestone [2016] 4 All ER 907 S/N yl/vxaxF0i6J9XPQSg5gw