Mughilan A/L Manimaran v (1) Nilavalagan A/L Murugam (Bk – A53KJ-244-9/ 2019)

NILAVALAGAN A/L MURUGAM … FIRST DEFENDANT

PUSPALATHA A/P RAJAMANICKAM … SECOND DEFENDANT AND TOKYO MARINE INSURANS (MALAYSIA) BERHAD … APPLICANT 2 GROUNDS OF JUDGMENT INTRODUCTION [ 1 ] The present application for determination is relatively narrow. It concerns Tokyo Marine Insurans (Malaysia) Berhad’s (the applicant) application for intervention in the proceedings (the application) vide Enclosure 18A pursuant to O.15 r. 6 of the Rules of Court 2012 (ROC). I allowed the application and hereinbelow the reasons. MAIN ACTION [ 2 ] Stripped to its bare bones, the factual backdrop stands as follows. This application had its genesis in a running down action (the main action) commenced by Mughilan a/l Manimaran (the plaintiff) against Nilavalagan a/l Murugam (the first defendant), arising out of a motor vehicle accident alleged to have taken place on 10.3.2019, between the plaintiff's motorcycle, bearing registration number BPQ 4860 and a car bearing registration number WQR 9781 driven by the first defendant (the main action). At the material time, the car belonged to Puspalatha a/p Rajamanickam (the second defendant). 3 [ 3 ] The second defendant has taken an insurance policy from the applicant for a car bearing registration number WQR9781. As stipulated under the terms of the second defendant’s insurance policy, the applicant bears the right to defend the defendants in the main action. Consequent thereto, the applicant appointed Messrs. SG Lingam & Co. to represent the defendants in the preparation and conduct of the defence in the main action. The applicant then has access to the relevant cause papers filed therein. ALLEGATION OF FRAUD SO FAR [ 4 ] In the course of the proceedings, the following particulars become apparent to the applicant:

The initial police report was lodged by Manimaran a/l Perumal (the plaintiff’s father) on 14.3.2019 (Exhibit LPL-1 (page 1)). He stated that the plaintiff’s motorcycle involved in an accident with a car bearing registration number WNG8029.

(ii) The plaintiff’s father lodged an amended report on 15.3.2019 (Exhibit LPL-1 (page 2)), indicating the involvement of the second defendant’s car bearing registration number WQR9781.

(iii) The plaintiff filed his police report on 9.5.2019 (Exhibit LPL-2), two months after the incident indicating the same. 4

(iv) The car bearing registration number WNG8029 was not, at the material time, insured with any insurance policy (Exhibit LPL- 1 (page 3))

The first defendant lodged his police report on 16.7.2019 (Exhibit LPL-3), four months after the incident. In his report, he stated that he was, at the material time, driving the car bearing registration number WQR9781 from Pulau Carey heading to Dengkil. Upon reaching the Carey Island Bridge, a dog suddenly crossed his lane. On the spur of the moment, and in his attempt to dodge from colliding into the dog, he encroached the right side of the road, where he heard a collision sound. However, neither did he see the collision nor stop at the scene of the incident. He continued his journey as the road condition was too dark at the material time. [ 5 ] The applicant, appearing in its capacity as the insurance company, became suspicious and alleged that the preceding particulars triggered elements of fraud in the main action, id est, the second defendant’s car bearing registration number WQR9781 was never involved in the accident on 10.3.2019. 5 ARGUMENT [ 6 ] This is but the barest outline of the competing argument. [ 7 ] Shorn of the unnecessary details, the argument advanced by learned counsel for the applicant composed the following strands:

the applicant has a valid ground to intervene under O.15 r. of the ROC 2012 (ROC) as there is a suspicion of fraud in the main action concerning the impugned involvement of the second defendant’s car bearing registration number WQR9781 in the accident;

(ii) the requirement to give notice under s.96 of the RTA to the applicant before commencing the main action creates a nexus between the plaintiff and the applicant. That, as a corollary, triggered the applicant’s responsibility to satisfy any judgment obtained by the plaintiff against the defendants;

(iii) the intervention application should be allowed so that the issue of alleged fraud in the main action could be assessed adequately without the necessity of having any separate and subsequent independent trial. If this allegation of fraud is only raised at a later stage, it would necessitate another phase of the trial, and hence an unnecessary waste of time; and 6

(iv) there is no requirement obliging the applicant to lodge a police report at this stage of the intervening application. Instead, such a report could be lodged after pursuance of the main action, upon which the details of fraud would be established and proved. That would enable the applicant to elicit the same in such a report for investigation purposes. [ 8 ] Contrariwise and reduced to its core, the prevailing strands of rebuttal argument set forth by learned counsel for the plaintiff run as follows:

the allegation of fraud in the main action is based on mere suspicion, lacking cogent evidence to prove the same;

(ii) as appears from paragraph six of the applicant’s affidavit in support of the application, the applicant appointed Messrs. SG Lingam & Co. to represent the defendants in the main action, in their capacity as the insurer and insured, under the policy insurance entered into between them. With such an appointment, the applicant has protected its rights and interests in the main action, and therefore it would be unfair, in the circumstances, to allow the applicant to intervene and appoint another solicitor to protect the same;

(iii) the application is mala fide, and allowing it would constitute “a baseless norm and precedent” as well as an abuse of the process of the court, which leads to a wastage of time, thereby increasing the litigation costs; and 7

(iv) While raising an allegation of fraud in the main action, the applicant lodged no police report over the same, indicating that such allegation was based on mere suspicion and hence unsubstantiated. NARROWING THE ISSUE [ 9 ] Having set the tone of the preceding argument, I now proceed to consider the mainstay issue at the core of concern: whether the applicant can intervene and be added as the third defendant in the main action. [10] And I shall note, before all else, that this issue was profoundly considered by S Nantha Balan J (now JCA) in the case of Govina raju a/l Nagarajan v. Pacific & Orient Insurance Co Bhd [2014] 1 CLJ 1076; [2014] 8 MLJ 839, upon which, in this judgment, great reliance is primarily anchored. ANALYSIS Statutory provision [11] By way of a curtain raiser, I find it germane to reproduce below the relevant provision governing the intervening proceeding. So far as material, O.15 r. 6 of the ROC 2012 reads: 8 “15 Causes of action, counterclaims and parties …

Misjoinder and non-joinder of parties (O. 15 r. 6) …

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application- …

order any of the following persons to be added as a party, namely-

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.” (Emphasis added) [12] Elementary as it is, sub-para (ii) intervention is allowed where a party to an action claims relief or a remedy which will materially affect the non-party-intervener's rights (see: Dato' Dr Haji Mohamed Haniffa Bin Haji Abdullah & Ors v. Koperasi Doktor 9 Malaysia Bhd & Ors and Another Appeal [2008] 3 CLJ 323; [2008] 3 MLJ 530). [13] And as is apparent from the decision of the Federal Court in Majlis Agama Islam Selangor v. Bong Boon Chuen & Ors [2009] 6 CLJ 405: “Under O. 15 r. 6(2)(b) of the RHC, the proposed intervener must establish under limb (i) that he ought to have been joined as a party or his presence before the court is necessary to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon. Whilst under limb (ii) the proposed intervener has to establish that he has an interest in the subject matter of the action and the court considers just and convenient to determine the issue as between him and any party to the action as well as between the parties to the action within the same proceedings.” [14] Shortly put, therefore, I should consider, at this stage of the proceeding, whether the inclusion of the applicant is necessary, where matters in dispute may be completely adjudicated upon, and multiplicities of legal proceedings could be avoided. 10 Burden [15] Next, I find it apposite to reiterate the trite position of law that although the burden is vested on the proposed intervener to establish its case for intervention, it is however not a heavy one. This was illustrated in Govina raju (supra) as follows: "… Hence, at the stage of intervening, there should not be a heavy burden imposed on the intervener to establish its case for intervention. All that the intervener should demonstrate is that they have acted timeously and without any mala fide and have a prima facie case for intervention in the sense that the reasons for intervention should not be baseless and frivolous or lacking in credibility." (Emphasis added) [16] As is apparent, the central issue in the main action between the plaintiff and the defendants is whether the first defendant’s negligence was the cause of the accident. The determination of this issue favouring the plaintiff would, as a corollary, result in an order or a judgment awarding damages to the plaintiff. 11 Road Transport Act [17] Consequent thereto, the applicant as the insurer is obliged to satisfy any judgment obtained by the plaintiff against the defendants. That position is fortified by s. 96 of the Road Transport Act, which reads: “96. Duty of insurers to satisfy judgements against persons insured in respect of third party risks.

If, after a certificate of insurance has been delivered under subsection (4) of section 91 to the person by whom a policy has been effected, judgement in respect of any such liability as is required to be covered by a policy under paragraph (b) of sub section (1) of section 91 (being a liability covered by the terms of the policy) is given against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgement any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgements.” (Emphasis added). [18] Flowing therefrom, and in consonance with the principles established in Pegang Mining Co Ltd v. Choong Sam & Ors [1968] 1 LNS 96; [1969] 2 MLJ 52, the applicant is a party whose 12 liability to the plaintiff in respect of the subject matter of the action is directly affected by any order which may be made by the court. As is apparent from the principles established in Govina Raju (supra): “… allowing P & O to intervene at this stage in the running down action would avoid multiplicity of actions and wastage of the court's time and resources and quite possibly prevent the occurrence or perpetration of an injustice against P & O. Hence, it is only reasonable, sensible and appropriate that all issues be ventilated and determined in the running down action in one action rather than truncating the issue and allowing fraud and collusion to be taken up in another forum which for reasons already discussed above, may not materialise and the opportunity to raise these issues may be lost. Such a prospect would be inequitable and unfair to P & O, who are the ultimate paymasters in respect of any judgment that may be made against the defendant (their insured).” (Emphasis added) [19] With the preceding backdrop in view, I state here that as the plaintiff and the applicant are both unconnected to any contractual obligation in any respect, it is the applicant’s statutory obligation under s. 96 of the RTA to establish the nexus between them in the main action. And this nexus serves as a primary basis, sufficiently connecting the applicant to the reliefs sought by the plaintiff. This, in turn, obligates the applicant into giving effect to the fullest extent any judgment given for the plaintiff, lest the court finds the first defendant is to be blamed for the accident. Given the 13 circumstances, I am satisfied that the applicant’s “rights against or liabilities … in respect of the subject matter of the action be directly affected by any order which may be made in this action”, to which Lord Diplock alluded to in the Privy Council case of Pegang Mining Co Ltd (supra). [20] Of direct relevance is the observation by Azhar Ma'ah HCJ (later JCA) in the High Court case of Thomas Alvin Cross v. Thomson Thomas & Ors [2005] 6 CLJ 61 as respects the joinder of a party whose liability to pay was contingent not only upon the outcome of the proceedings which it sought to join but also upon any other event or proceedings. Having considered the decision of the Hong Kong’s Court of Appeal decision in the case of Chu Yuen Wah v. Lee Koh Kwok & Anor. [1995] 3 HKC 629, His Lordship observed: “The presence of the insurance company before the court would be necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon in accordance with the rule. This view is further fortified by a Privy Council's decision in Pegang Mining Co Ltd v. Choong Sam & Ors [1968] 1 LNS 96 [1969] 2 MLJ 52. It reads inter alia " (2) One of the principal objects of O. 16 r. 11 is to enable the court to prevent injustice being done to a person whose right will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a flexibility of approach. " 14 Back home, the Supreme Court in Arab Malaysian Merchant Bank Bhd v. Dr Jamaludin Dato'Mohd Jarjis [1991] 2 CLJ 862; [1991] 1 CLJ (Rep) 19 SC (foll), decided that a person who is not a party is allowed to intervene if the intervener is directly affected not only in his legal rights (as provided for under O. 15 r. 6 RHC 1980) but in his pocket. In Gurtner v. Circuit [1968] 1 All ER 328 Lord Denning MR had this to say: ... when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party or on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to " be effectually and completely determined and adjudicated upon " between all those directly concerned in the outcome.” [21] And of parallel force is the statement of principles by Tengku Maimun Tuan Mat HCJ (now CJ) Khairah Othman v. Kurnia Insurans (Malaysia) Berhad & Ors [2012] MLRHU 391, where Her Ladyship, having cited with approval Thomas Alvin Cross (supra) observed: “[14] I agree with the decision of Justice Azhar Maah in Thomas Alvin. I have no doubt that in the instant appeal, adding Kurnia 15 Insurance as the 3rd defendant would enable all matters in dispute to be effectually and completely determined and adjudicated upon. [15] Further, in Pacific & Orient Insurance Co Bhd v. Muniammah Muniandy [2010] 3 MLRA 263; [2011] 1 CLJ 947, Ramli Ali JCA said at pg 957: “Nowhere does s. 96(1) of the Road Transport Act 1987 say that the respondent must first obtain another judgment against the appellant before she can proceed to enforce the judgment earlier obtained by the respondent against the insured. Therefore, the question of the respondent having to file a recovery proceeding under s. 96(1) against the appellant, as contended by the appellant in its memorandum of appeal, does not arise at all. In short, the respondent, who had obtained a monetary judgment against the insured which has not been stayed, has the right under s. 96(1) to enforce the said judgment against the insurer without having to first file a recovery proceedings against the insurer.” [16] Having regard to the above judgment of the Court of Appeal, the submission of learned counsel for the plaintiff that Kurnia Insurance cannot come into the picture at the trial between the plaintiff and its insured until judgment is given and that Kurnia Insurance has to wait on the side lines for its turn in the execution or recovery proceedings can no longer be sustained as there need not be a recovery proceedings before the plaintiff could enforce the judgment. 16 [17] Further, if there need not be a recovery proceeding before the plaintiff could enforce the judgment against the insurer, then more so the insurer’s application to be brought in as a party should be allowed. Otherwise, the insurer would have no recourse to raise its defences as the plaintiff, armed with the judgment obtained against the insured can straight away turn to the insurer for enforcement without a separate recovery proceedings.” [22] Against the precept of the preceding observation, I now proceed to note here this observation. To my mind, it seems undesirable if not counterproductive to let the applicant remain on hold with no recourse, whilst waiting for the main action to complete its course and then only commence subsequent action, to either oppose or challenge, based on allegation of fraud. Suffice it to say, there appears clear from the totality of the affidavit evidence that the applicant has sufficiently raised a prima facie case for intervention. In the circumstances, the applicant should in its capacity as a party whose interest will be directly affected by the outcome in the main action, be afforded the opportunity to be heard by intervening in the proceedings pursuant to O. 15 r. 6(2)(b)(ii) of the ROC 2012. As is evident, this is precisely what the applicant has done in the present case. And therefore, all in all, the applicant should not, in my view, be put on hold with no recourse during the pendency of the main action and then only commence subsequent litigation for fraud. 17 Locus in the main action [23] And another further aspect deserves mention. It concerns the argument set forth by learned counsel for the applicant that the applicant should be allowed to intervene and added as the third defendant, granting it the necessary locus to participate in the proceedings. Indeed, it is obvious and scarcely surprising that the solicitor acting for the defendants would neither, by any means, cross-examine nor put any suggestion to their own client on any allegation of fraud, to which the applicant alleged to have existed in the main action. [24] There is, in the present case, no dispute that the applicant appointed Messrs. SG Lingam & Co. to represent the defendants in the preparation and conduct of the defence in the main action. Such appointment, as it stands, stems from the insurer-insured relationship between them, which perforce appears obligatory by virtue of s. 96 of the RTA. Simply put, therefore, and in tandem with the illustration in Govinaraju Nagarajan (supra), the defendants, in the circumstances, are only a nominal party. Instead, the applicant, who is at the wheel, assumes control of the defence to the plaintiff’s claim against the defendants in the main action and any interrelated matters arising thereunder. However, therein lies a significant point of concern, id est, Messrs. SG Lingam & Co. is the solicitors on record for the defendants. Representing the defendants in the foregoing capacity, I find that Messrs. SG Lingam & Co. could not act to their detriment and possible jeopardy, as that would constitute 18 a breach of professional ethics. And an illustration of utmost clarity appears in the following passage in Govinaraju Nagarajan (supra), where it was observed: “Most certainly, Messrs K Suganthi & Company cannot say or do anything to jeopardise the defendant's position by impugning their own client's conduct. As solicitors for the defendant, they have to protect their client's interest and argue the case on the basis (of the pleaded case) that this was a genuine motor vehicular accident and cannot act against his interest and promote the fraud and collusion theory of P & O. If Messrs K Suganthi & Company raise fraud and collusion either by an amendment to the pleadings or during trial, then that may be grounds for the defendant to allege misconduct against them under the Legal Profession Act 1976 and the Legal Profession (Practice & Etiquette) Rules 1978.” [25] As is conspicuous, the aforesaid setting of facts is identical, and it precisely fits the factual parameter of the present case. Given the account, the applicant should be allowed to intervene and be added as the third defendant in the main action, which will allow him to argue a case of fraud adequately. 19 Absence of the police report and non-production of the adjuster report [26] Furthermore, of considerable note is the plaintiff’s assertion that the applicant’s basis for the allegation of fraud was merely based on suspicion rather than supported by credible evidential backing and therefore stood unsubstantiated. Also, the plaintiff took issue with the absence of the police report and the non-production of the adjuster report, hindering a thorough investigation into the alleged fraud in the main action. Seen collectively and tested against the well-established precedents, I must respectfully state that such argument, by and large, does not sync with the defined spectrum of legal propositions regarding intervening proceeding for the following two brief reasons. [27] First, no doubt mindful that a mere allegation or suspicion of fraud is insufficient to act as legal proof, that is however not a principal issue to be dealt with at this stage, where any decision arising therefrom derives from a mere assessment of the affidavit evidence. Support for this view is apparent from the passage in Govinaraju Nagarajan (supra) that “… It must be borne in mind that the application to intervene is only an interlocutory application. It does not deal with and/or finally dispose and conclusively determine the rights of the parties to the action”. Moreover, far from making any finding on the allegation of fraud as set forth by learned counsel for the applicant, that would only be determined in the usual course of the proceedings, id est, by viva-voce evidence in court. That, as is apparent, could only be done with the applicant being added as the 20 third defendant, paving its way to pursue the fraud claim in the main action. [28] Second, so far as concerns the absence of police report, I find it sufficient to merely reiterate the statement of principles that “All that the intervener should demonstrate is that they have acted timeously and without any mala fide and have a prima facie case for intervention in the sense that the reasons for intervention should not be baseless and frivolous or lacking in credibility” as illustrated in Govinaraju Nagarajan (supra). As well, as rightly submitted by learned counsel for the applicant, there is no requirement obliging the applicant to lodge a police report at this stage of proceedings, and it could instead be lodged upon pursuance of the main action, with the allegation of fraud accordingly being established and proved. And so far as concerns the adjuster report, I respectfully find that such a report undoubtedly, if produced, may well have strengthened the applicant’s intervening application. Nevertheless, its non-production does not necessarily deny the intervention application as it does not fall within the primary concern for determination at this intervening stage. [29] These reasons, in my respectful view, sufficiently put such argument into a quietus and hence stripping it of its force. 21 A timely-filed bona fide application and motive [30] And endmost, I add in parenthesis the following observation. As has been made clear in Govinaraju Nagarajan (supra) that “any dilatoriness on the part of the insurers may well affect the exercise of discretion by the court hearing the application to intervene” and “any conduct by the insurers which calls into question their motives or bona fides would also impact upon the exercise of discretion”. Against the strength of the preceding lines of authority, and with the respective affidavit evidence and argument in view, I respectfully find that the preceding vitiating factors are clearly absent for the following two brief reasons: (i) there is no undue delay in filing the present application; and (ii) there is no conduct by the applicant which calls into question its motive in filing this application. Therefore, putting it differently, it remains clear that in the apparent absence, the application has been timely filed, with no accompanying mala fide intent. FINAL ANALYSIS [31] Upon in-depth consideration of the application and the whole spectrum of competing argument thoroughly scanned, I respectfully find that there has been nothing in the factual background of the present case warranting denial of the applicant’s application for intervention, and nor has there been anything in law preventing the applicant from proceeding with the same. This is particularly so when in so applying, the applicant had indeed complied with the 22 necessary procedural steps as provided for under the relevant law directly in concern. That, in my view, entitles the applicant to intervene and be added as the third defendant in the main action to prevent unnecessary waste of time whilst clearing the obscurity surrounding the allegation of fraud. CONCLUSION [32] In the upshot, I respectfully find that the applicant had demonstrated that it has a prima facie case for intervention. And with equal respect, I allow the applicant’s application with costs. The costs of this application is to be costs in the cause. Signed (NOORHISHAM MOHD JAAFAR) Judge Sessions Court Sepang, Selangor Dated: 10.7.2021 23 Counsel for the applicant : N. RATNAVATHY Solicitors for the applicant : MESSRS. VIKNES RATNA & CO. Advocates & Solicitors 1-5-10, Tingkat 5, Blok C Jalan 1/50, Diamond Square Off Jalan Gombak, 53000 Kuala Lumpur Counsel for the plaintiff : MAHENDRAN Solicitors for the plaintiff : MESSRS. MANIKAM AVADIAR & CO. Advocates & Solicitors E4, 1st Floor, Bangunan Khas, Jalan 8/1E, 46050 Petaling Jaya Selangor Counsel for the defendants : YOSHINI MURUGIAH Solicitors for the defendants : MESSRS. S G LINGAM & CO Advocates & Solicitors No. 27, Jalan Bukit Desa 5 Taman Bukit Desa 58100 Kuala Lumpur