MMIP Services Sdn Bhd ...Perayu/Defendan v Mohamad Azrin bin Hamdzan ...Responden/Plaintif (JA-12B-70-11/2016)

Abdul Rahman Bin Awang

MMIP Services Sdn Bhd Defendan-Defendan JUDGMENT CHOO KAH SING Judicial Commissioner High Court, Johor Bahru Date: 9.10.2017 Page 2 of 9 Introduction [1] For ease of reference, the parties will be referred to in their positions as at the court below. [2] On 25.10.2016, the Sessions Court Judge (SCJ) held that on the issue of liability the defendants were 100% liable and awarded general damages of RM147,000.00, special damages of RM4,647.00 and interest of RM16,740.00 to the plaintiff. [3] The 2nd defendant was not satisfied with the whole of the decision of the Sessions Court Judge (SCJ) dated 25.10.2016 and filed an appeal to the High Court. The plaintiff was not satisfied with the quantum awarded by the SCJ, and the plaintiff filed a cross-appeal against the decision of the SCJ only on quantum. [4] On 28.8.2017, this Court dismissed the 2nd defendant’s appeal as well as the cross-appeal filed by the plaintiff. The reasons for the decision are set down as below. Brief Facts [5] On 13.12.2013 or 14.12.2013 around 11.45 pm, the plaintiff was riding on his motorcycle JPA 1278 along Jalan Layang-Layang-Kulai, Batu 35, when he met an accident involving a motorcar JCB 2433 driven by the 1st defendant. [6] The plaintiff’s version of the accident was that the 1st defendant knocked the plaintiff from the rear, as a result, he lost control of his Page 3 of 9 motorcycle and consequently hit a tree and fell at the side of the road. The plaintiff suffered severe injuries. [7] The 1st defendant did not attend court to give evidence on his account of the accident, but the 2nd defendant, being the insurer of the 1st defendant’s motorcar, defended the plaintiff’s claim. The 2nd defendant alleged that the plaintiff was making a fraudulent claim against the insurer in that the 1st defendant’s motorcar did not knock on to the rear of the plaintiff’s motorcycle on that day. It was due to the plaintiff own recklessness that he lost control of his motorcycle and hit the tree. [8] Two of the 2nd defendant’s agents SD3 and SD6 testified that they had investigated the plaintiff’s claim. They spoke to one Muhammad Hafiz Bin Abdul Rahman, SP4, who told them that the plaintiff knocked into the tree. The 2nd defendant had adduced the visual audio recording of their investigation and the conversation that took place between SD3 and SD6 and SP4 during their investigation. The Findings of this Court Liability [9] On the issue of liability, the 2nd defendant had raised four grounds for its appeal. First, that the SCJ had relied on a wrong standard of proof in coming to her findings of fact in relation to the 2nd defendant’s defence against the plaintiff’s fraudulent claim. The SCJ had placed the onus of proof on the 2nd defendant to a standard of beyond reasonable doubt in proving fraud in the plaintiff’s claim. Page 4 of 9 [10] This Court refers to the decision of the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, wherein the apex court has clearly laid down the position of standard of proof in a civil case which is the standard of balance of probabilities, even when an element of fraud is involved, as opposed to a criminal case on a standard of beyond reasonable doubt. This legal proposition was applied and affirmed in another Federal Court decision in Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi Bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1. [11] Based on this first ground, this Court ought to allow the 2nd defendant’s appeal. However, after having sieved through the evidence of the appeal, this Court was not ready to allow the 2nd defendant’s appeal. [12] This Court noted that SD3 and SD6 had given a similar account of the meeting with SP4 who was the person who last saw the plaintiff before the accident occurred. Although from the audio recording SP4 told SD3 and SD6 that he saw the plaintiff looking behind and suddenly lost control and hit the tree at the road side, in court he gave a different account of the story. [13] He said he knew about the plaintiff’s accident a day later. SP4 also said that SD3 and SD6 came to see him and uttered some unpleasant statements, such as he would be sued and arrested and would get into trouble if he did not cooperate with them. SP4 was harassed by SD3 and SD6 in the meeting. He then acceded to what SD3 and SD6 requested him to do. SP4 went with SD3 and SD6 to lodge a police report to state what he saw, i.e. that the plaintiff looked behind and Page 5 of 9 suddenly lost control and hit the tree at the road side. The police report was lodged on 27.3.2015 (Air Bemban/000270/15). [14] In evidence, SP4 also told the court that he later lodged a second police report (Air Bemban/000304/15 – P14) to correct his first police report that he did not see what had happened but was told about the plaintiff’s accident by a friend the following day. In the report, he also stated that he was bribed by SD3 and SD6 to lodge the first report. On the same day, on 9.4.2015, SP6 also made a statutory declaration (P15) stating what is found in his second police report. SP4’s testimony was challenged during the cross-examination. [15] The testimonies of SD3, SD6 and SP4 are in contradiction. Hence, their evidence cannot be safely relied on by this court to make a conclusive finding of fact on a balance of probabilities as which party’s story is more probable. Therefore, this Court has to look to other available evidence. The best available independent evidence would be the testimony of Sarjan Ismail bin Mohd Yusof, SP2, the investigating officer of the case. He told the court that the 1st defendant had lodged a police report pertaining to the accident, so did the plaintiff and the plaintiff’s father (SP 7). The investigating officer (SP2) gave an account how the accident could have occurred based on his investigation. SP2 issued a summons against the 1st defendant pursuant to Rule 10 LN166/59. His conclusive finding was that an accident did occur between the plaintiff’s motorcycle and the 1st defendant’s motorcar, and there was no fraudulent insurance claim. SP2’s testimony was not shaken. Page 6 of 9 [16] Based on the unshaken testimony of SP2, this Court is satisfied that the plaintiff’s version of the story is more probable on a standard of balance of probabilities. Hence, this Court is not willing to overturn the SCJ’s decision even if she had imposed a wrong standard of proof on the 2nd defendant to prove its claim that the plaintiff had made a fraudulent claim. [17] The second issue raised in the appeal is in relation to the uncertainty of the date of accident, that the summons issued by SP2 to the 1st defendant was defective and that the plaintiff failed to call the 1st defendant as his witness. This Court is of the considered view that the allegation that the summons by SP2 against the 1st defendant is defective is baseless. As far as the authority’s decision to issue a summons relating to the accident is concerned, it is not within the ambit of this case for the Court to question the authority’s decision to issue the summons, and whether the summons was defective or otherwise. As for the date of accident, although there could be contradicting evidence, it does not negate the fact that there was an accident or that the 1st defendant was involved in the accident that happened either on 13.12.2013 or 14.12.2013 around 11.45 p.m. The investigation by SP2 was completed and confirmed the plaintiff and 1st defendant were involved in an accident. With regard to the issue of the plaintiff’s failure to call the 1st defendant as plaintiff’s witness, this Court is of the considered view that the plaintiff was not obliged to call the 1st defendant as his witness. As far as the plaintiff’s case is concerned, plaintiff had to, on a balance of probabilities, prove his case which the plaintiff had done, particularly through the testimony of SP2 and the plaintiff himself. Page 7 of 9 [18] The third issue raised in the appeal was that the SCJ failed to take into consideration the evidence of SD3 and SD6. Although in the written judgment the SCJ did not state clearly her finding on of the testimonies of these two 2nd defendant’s witnesses, this Court had examined their evidence as discussed above, and this Court found that the plaintiff had in fact proved his case on the standard of balance of probabilities. Hence, in the absence of any finding on SD3’s and SD6’s testimonies in the SCJ’s grounds, is not by itself, sufficient for this Court to overturn the SCJ’s decision. [19] The last issue raised in the 2nd defendant’s appeal was that the SCJ had erred in allowing the plaintiff to amend his statement of claim relating to the date of accident. This Court is of the considered view that the amendment did not prejudice the 2nd defendant’s case in any manner. The 2nd defendant’s case was premised on the fact that the plaintiff’s claim was a fraudulent claim which means they were denying the plaintiff was in fact injured in an accident involving the 1st defendant whether on 13.12.2013 or 14.12.2013 around 11.45 p.m.. The 2nd defendant’s contention was that the 1st defendant was not involved in any accident with the plaintiff. Since it was proved on the standard of balance of probabilities that the 1st defendant was involved in an accident with the plaintiff, therefore, it is not material that there was an amendment made in the statement of claim relating to the date of the accident. The pith of the case was whether the 1st defendant was or was not involved in an accident with the plaintiff, and that was answered in the affirmative based on the evidence of SP2, the investigation officer. [20] Based on the above reasoning, this Court was not ready to overturn the SCJ’s decision. Page 8 of 9 Quantum [21] With regards to the appeal and cross appeal on the issue of quantum. This Court finds that the submissions by the counsels from both side did not meet the minimum threshold for this Court to interfere or disturb the award of damages as awarded by the SCJ (see Federal Court decisions in Tan Kuan Yau v Suhindrimani Angasamay [1985] 1 CLJ 429; Mahmood Bin Kailan v Goh Seng Choon & Anor [1976] 1 LNS 68). This Court has perused through the written judgment of SCJ and could not find the SCJ has acted on a wrong principle of law in coming to her decision on the award of damages or that the SCJ has omitted to consider some relevant materials or admitted some irrelevant considerations resulting in her award of damages being wholly inaccurate. Conclusion [22] Based on the above findings, this Court dismissed the 2nd defendant’s appeal and ordered costs of RM1,000.00 to be paid to the plaintiff by the 2nd defendant. This Court also dismissed the plaintiff’s cross appeal and ordered costs of RM1,000.00 to be paid to the 2nd defendant by the plaintiff. -Signed- …………………………………….. (CHOO KAH SING) Judicial Commissioner High Court, Johor Bahru Page 9 of 9 Counsel for the plaintiff : HL Teo Tetuan Teo & Associates Counsel for the 2nd defendant :