PACIFIC & ORIENT INSURANCE CO. BHD v Mohd Aminizam bin Zainal Abidin (BA-12B-11-02/2023)

MOHD AMINIZAM BIN ZAINAL ABIDIN (No. K/P: 921026-10-6089)

AZURA BINTI MD NOR (No. K/P: 720102-03-6238)

AHMAD MUSTAQIM BIN MD NOR (No. K/P: 930225-03-5097) RESPONDEN-RESPONDEN Didengar bersama dengan kes DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM

AHMAD MUSTAQIM BIN MD NOR

PACIFIC & ORIENT INSURANCE CO. BHD RESPONDEN-RESPONDEN [DALAM MAHKAMAH SESYEN DI SELAYANG GUAMAN NO: BD-B53KJ-28-10/2019 MOHD AMINIZAM BIN ZAINAL ABIDIN (No. K/P: 921026-10-6089)

AZURA BINTI MD NOR (No. K/P: 720102-03-6238)

AHMAD MUSTAQIM BIN MD NOR (No. K/P: 930225-03-5097)

PACIFIC & ORIENT INSURANCE CO. BHD (No. Syarikat: 12557-W) DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] Two appeals came up for hearing before me on 9-1-2025. They arose from the Judgment of the Sessions Court dated 1-2-2023 in a running down action. As the parties hold different capacities in the appeals, it is convenient to refer to them as they were in the Court below in this Judgment. [2] The Plaintiff was riding his motorcycle (W5179P) with a group of friends on the Karak Highway heading towards Gombak on 14-8-2016 at about 3.00 am when the accident happened at KM33.8 of the highway. The 2nd Defendant is the other party implicated in the accident. He was part of the convoy riding a motorcycle (DCX 2052) owned by the 1st Defendant and insured by the 3rd Defendant. [3] The Plaintiff first filed the action against the 1st and 2nd Defendants in May 2019 (BD-A53KJ-108-05/2019). In December 2019, the 3rd Defendant intervened. The 3rd Defendant undertook the defence to resist liability under section 96(1) of the Road Transport Act 1987 and filed a counterclaim against the Plaintiff and the other Defendants for insurance fraud, claiming that the accident did not happen in the manner pleaded. [4] Upon the intervention, solicitors initially appointed by the insurers to represent the 1st and 2nd Defendants withdrew and the 1st and 2nd Defendants engaged their own solicitors. The amended Defence of the 1st and 2nd Defendants was re-amended to admit involvement in an accident on the date, time and at the place pleaded by the Plaintiff. [5] Initially, the Defence denied involvement in the accident or that the accident was caused by the 2nd negligence. The Defence also pleaded that the accident was wholly and partly contributed by the negligence of the Plaintiff. The final re-amended defence filed by solicitors acting personally for the 1st and 2nd Defendants admitted that the accident happened, but maintained that it was not due the 2nd negligence. The issue of contributory negligence had been dropped with the earlier amendment. [6] After full trial, t claim and dismissed the 3rd main action, the Sessions Court found for the Plaintiff and attributed 100% liability to the 1st and 2nd Defendants for negligence. Damages were assessed at RM1,100,139.50. [7] The 3rd Defendant appealed against the entire Judgment of the Sessions Court on liability, quantum and the dismissal of the counterclaim. The Plaintiff cross appealed on aspects of the assessment of damages. The 1st and 2nd Defendants did not contest the findings of the Sessions Court on liability and damages, but appealed solely against the decision of the Sessions Court not to award an order for their costs to be paid by the 3rd Defendant. Appeal by the 3rd Defendant [8] The 3rd contended that ultimately, the Plaintiff failed to discharge its burden of proof. The 3rd Defendant submitted that it is the substantive defendant in the action, the 1st and 2nd Defendants as the insured and the operator of the motorcycle respectively, were nominal defendants who bore no financial risk in the outcome of the trial. [9] Relying on Kalai Selvan a/l Arumugam v Santran a/l Supramanian & Anor [2017] 1 PIR 1 where insurers have similarly intervened, the 3rd Defendant may put the Plaintiff to proof of the claim because as noted by the Court of Appeal in that case: In considering the appeal, the main issue is whether the appellant has proved the case on balance of probabilities against the first respondent. The issue related to the second respondent in the capacity of the insurer is only incidental issue pursuant to the statute relating to Road Traffic Rules 1959. If the appellant fails in the main issue, other issues and/or arguments will be irrelevant in [10] In another decision Tang Loon Pau & Ors v Mohd Sahilin bin Kotni & Anor [2023] MLJU 1619, the Court of Appeal similarly observed: Thus, in a situation where the insurer has intervened and was added as a Co-Defendant and had successfully defended the case own witnesses, and the end result is that the plaintiff is unable to prove on a balance of probabilities that the insured motor-vehicle was involved in t [11] The 3rd this Court to interfere with the findings of fact by the trial Judge on liability and quantum in the main action and counterclaim. The 3rd Defendant submitted that the Sessions Court Judge failed to properly evaluate the evidence and was plainly wrong in the outcome of her findings. Analysis and Findings Consistency with pleading [12] Let me start by stating the trite and that is parties are bound by their pleadings. In this case, the pleaded case of the Plaintiff about the mechanism of the accident is as follows: [13] During submissions, I asked counsel for the Plaintiff what her understanding of the somewhat ambiguous pleading is. Specifically, was the 2nd Defendant still on his motorcycle, if and when his motorcycle s motorcycle? The reason for this question will be apparent. C mative, the 2nd Defendant was on his motorcycle immediately before a collision with the Plaintiff. [14] However, the finding of fact by the Sessions Court Judge was that the 2nd Defendant fell first and that his motorcycle then collided with the cle: Defendan Kedua yang telah jatuh dahulu di selekoh tempat kejadian sebagaimana keterangan SP8 dan Mahkamah juga mendapat bahawa Plaintif tidak akan jatuh sekiranya Defendan Kedua tidak jatuh dahulu semasa berada di selekoh tersebut. Tiada keterangan dikemukakan untuk menunjukkan terdapatnya unsur-unsur luaran yang menyebabkan Defendan Kedua telah terjatuh. Oleh yang demikian, Mahkamah mendapati di atas imbangan kebarangkalian bahawa Defendan Kedua telah menunggang motosikalnya dengan cuai kerana telah terjatuh akibat tidak berhati-hati semasa menghampiri selekoh tersebut dan kemalangan telah berlaku di antara motosikal DCX 2012 dan W 5179P sebagaimana yang telah diplidkan oleh Plaintif dan [15] The presumption made by the Sessions Court Judge was that the chain of causation started when 2nd Defendant fell due to his negligence and for no other possible reason and it followed that the uncontrolled motorcycle then collided with the Plaintiff and caused him to fall and suffer his injuries. [16] The submissions were directed to proving an affirmative case of negligence without reliance on res ipsa loquitur although it was pleaded for good measure. However, no evidence was led on the particulars of how the 2nd Defendant was said to have been negligent. [17] More crucially, no case was put to the 2nd Defendant by counsel for the Plaintiff, why he lost control of his motorcycle and fell e.g. that he speeding, distracted, seen to riding recklessly or making an unsafe manoeuvre. There was in fact not even a case put to the 2nd Defendant that he was careless when approaching the corner as determined by the trial Judge. [18] If the ambiguous pleading is understood precisely as the Sessions Court Judge had found and the court applied res ipsa loquitur to presume that the 2nd Defendant fell because of negligence, then the question must be asked if this was a misdirection on how the law in this regard was applied. [19] It is trite that the doctrine of res ipsa loquitur cannot be relied on where the res is ambivalent and does not speak for itself (Lai Kuit Seong v PP [1969] 1 MLJ 182). In this case, the onus of proof remains with the Plaintiff if there was another explanation for the 2nd his motorcycle. [20] The location of the accident was after the tunnel where the Karak Highway was a winding downhill ride. The 2nd Defendant claims that he had skidded coming downhill on a slippery road before losing control of the motorcycle. He stated that there was no rain but the road was damp, maybe from dew. This was unchallenged. [21] It will be recalled that the 2nd Defendant made no admission that he was negligent and his evidence had consistently been that he skidded because the road was slippery. However, the Sessions Court did not consider this evidence in concluding that there was negligence on the part of the 2nd Defendant. [22] Based on the above alone, I would be prepared to find that the Plaintiff did not prove the intended case as pleaded i.e. that the 2nd Defendant rode his motorcycle negligently such that it went out of control, The burden of proof was on the Plaintiff to prove that the 2nd Defendant was negligent and the onus had not shifted in the course of the trial. Evidence of a collision [23] If I am wrong on the above, I have also considered the evidence and whether in motorcycle and the 2nd unmanned. This is because the 3rd Defendant contends that the evidence points to the Plaintiff having fallen independently of the 2nd Defendant. [24] Before I go on, it must be said that the 999 emergency call for help was made by SP9 on 14-8-2016 at 3:53 am after the accident. According to the call card in evidence, there were two victims reported. The 3rd Defendant placed emphasis on the following record on the call card that suggested only one motorcycle was involved in the accident: KEY QUESTIONS ANSWER: THIS INCIDENT INVOLVES A SINGLE MOTORCYCLE. CHEMICALS OR OTHER HAZARDS ARE NOT INVOLVED. THERE IS NO ONE PINNED. EVERYONE IS NOT COMPLETELY AWAKE (ALERT). HIS INJURIES ARE DESCRIBED AS OTHER THAN [25] The Plaintiff called numerous witnesses from among the rescue crew that came after the accident to confirm, inter alia, that both the Plaintiff and the 2nd Defendant were taken to hospital together and that there were no other victims of the accident. This much is not in dispute. However, they could provide no useful evidence on how the accident happened. [26] There was scant objective evidence such as forensic analysis of the damage profile of the motorcycles, photographs of the accident site showing skid or brake marks on the road, road surface conditions and the relative location of the motorcycles and/or debris immediately after the accident. No analysis or conclusions were in evidence from the extent of 2nd Defendant. [27] As the investigating officer who testified as SP1 confirmed during cross examination, his evidence about the state of the motorcycles from which he initially concluded that the motorcycles had collided, were not based on his inspection of the vehicles but unverified photographs which were not ultimately admitted into evidence. He admitted that he could not confirm if there was a collision between the two motorcycles. [28] The 2nd s testimony was that he was taking a right corner steep downhill on the left most lane (at A1 of the diagram below). He fell at line 2 while taking the corner and he and his motorcycle both slid to the road shoulder on the left. He got up and saw the Plaintiff lying down 4-5 meters away in the middle of the road at lane A1. SP8 and SP9 then arrived and helped to carry the Plaintiff to the road shoulder. [29] They all ended up at the road shoulder to await help called by SP9. [30] This Court found the above silent evidence to be instructive. If as pleaded by the Plaintiff, the collision occurred at KM33.8, this would mean that the 2nd Defendant would have indeed been leaning right just before reaching KM33.8 and if he fell, momentum would have caused his motorcycle to slide to the left. It was thus important that the Plaintiff was to the left of the 2nd Defendant in order for the Plaintiff to collide with the 2nd [31] In his sworn evidence at the trial however, the Plaintiff testified that he was about 7-meter distance away from the 2nd Defendant and was convinced that he was to the right of the 2nd Defendant (contrary to his own case as pleaded in paragraph 4 of the Statement of Claim) when the accident happened, which he described as follows: Evidence in Chief Cross Examination ****** Re-Examination [32] As already observed, there was no objective evidence of a collision. Documentary evidence comprised only contemporaneous reports by the Plaintiff, 2nd Defendant and what medical personnel who attended to them recorded. The first time that the allegation of a collision accident. Prior to that, the contemporaneous reports were as follows:

numerous medical reports and this history was sketchy as expected under the circumstances. The reports with clues on how the accident happened were probably furnished by the 2nd Defendant who was with the Plaintiff. Per Hospital Sg Buloh medical report by Dr Nor Ashikin Mohamad dated 23-10-2018 reported an alleged motor vehicle accident with MB skidded .

Hospital Selayang medical report by Dr. Mursyidah binti Mansor dated 6-9-2017

Hospital Sg. Buloh medical report by Dr. Khalid bin Othaman dated 1-4-

Hospital Sg. Buloh medical report by Dr. Thuraikumar Kanniah dated 4-5- [33] It was noted in a letter of clarification to solicitors dated 28-6-2019 by a medical officer that the Plaintiff was semi-conscious on admission and was unable to convey what happened. Therefore, his contemporaneous recorded history was taken from his friend. Hospital report lodged by the patient. [34] history of the Plaintiff at Hospital Selayang per the medical report by Dr. Mursyidah binti Mansor dated 26- 6-2019 is This became part of the records of the Selayang as noted in another letter dated 16-7-2019. [35] remained per documents available at the hospital that the motorcycle skidded. [36] 31-12-2016 read as follows: [37] The 2nd on 15-8-2016 was as follows: Several corrections were made in 2017 and 2018 to the 2nd police report to correct the motorcycle registration plate number and the date and time of the accident. It was not in any of his police reports or accounts of the accident that his motorcycle had collided with the Plaintiff. [38] The 2nd Hospital Selayang (undated) was also in evidence. It reported that the 2nd Defendant skidded while coming down hill due to slippery road and fell on his right side. [39] At the trial, the 2nd Defendant testified that he was not aware that his motorcycle had collided with the Plaintiffs and that he was only told this by SP8 and SP9. He did not know why the Plaintiff fell and could not be sure one way or another if his motorcycle hit the Plaintiff. [40] The 2nd an accident with the Plaintiff was premised on information conveyed by SP8 and SP9 and not based on his own knowledge. [41] The upshot of all the above is that the version of events involving a collision between the Plaintiff and the 2nd emerged from the Plaintiff about 4.5 months after the accident when he lodged his police report. It was not documented at any point in time before that. The 2nd Defendant was apparently told, but he never acknowledged it, even to the investigating officer. Based on the history of his pleading, he denied it at first. [42] Thus, the case turned on the credibility of SP8 and SP9 as corroborating witnesses. [43] At the trial, SP9 testified that he was not sure what he saw and was only told by the 2nd Defendant that there was a collision, contrary to the 2nd SP9 was behind SP8 in the convoy of motorcycles. Under cross examination, he confirmed that he did not know who collided with whom, but claimed that both motorcycles and their riders slid to the road shoulder. [44] about what he witnessed was also equivocal. He said that the 2nd the Plaintiff to fall and roll to the road shoulder. However, his testimony shifted several times about the relative positions of the Plaintiff and the 2nd Defendant. In one version, the 2nd Defendant was in front and fell first, in another version, the Plaintiff was in front, and in a third version they were side by side with the Plaintiff on the right (which incidentally, like the [45] If it was true that the Plaintiff and the 2nd Defendant were almost side by side and fell together or in quick succession as SP8 and SP9 seem to believe, it seemed improbable that the 2nd Defendant could not be certain that there was a collision between them as the Plaintiff would be within his sight and the impact of the collision would have been felt. [46] The descriptions given by Plaintiff, 2nd Defendant, SP8 and SP9 of what happened all differed. However, the trial Judge found Plaintiff, 2nd Defendant and SP8 to be credible witnesses that what happened was as pleaded. [47] The Plaintiff argued that based on PP v Datuk Haji Harun bin Haji Idris (No.2) [1976]1 MLRH 562, [1977] 1 MLJ 15 that the inconsistencies in the evidence about how the accident happened are immaterial, citing the following passage: circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened. It may be open to criticism, or it might be better if they took down a note-book and wrote down every single thing that happened and every single thing that was said. But they did not known that they are going to be witnesses at this trial. I shall be almost inclined to think that if there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or what had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and reject the other. It is, therefore, necessary to scrutinize each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circums [48] The logic of the above is not reproachable and I agree. Applied to the facts of this case however, it must be considered against other factors affecting the assignment of weight to evidence such as the contemporaneity and internal consistency of the evidence. These factors, together with the materiality of the evidence to prove if there was a collision between the two motorcycles, all weigh against the credibility of the Plaintiff, SP8 and SP9 on what they claim actually happened. [49] This leads to the available prior statements. According to SP1, he took statements from the Plaintiff (on 31-12-2016), the 2nd Defendant (on 18-1-2017), SP8 (on 3-1-2017) and SP9 (on 2-1-2017).

In his statement, SP9 told SP1 the 2nd Defendant fell on the left lane and the Plaintiff fell on the middle right lane but did not say they collided.

SP8 similarly did not say that the Plaintiff and 2nd Defendant collided when he was questioned by SP1. Furthermore, SP8 had quite clearly said in the Sahabat WhatsApp group formed after the accident between the friends that he had forgotten everything, had explained his stance to the Plaintiff that he did not want to give evidence at the trial. statement is set out here, as narrated by SP9: SP8 testified at the trial a month after these declarations. [50] Considering the above evidence, this Court finds it difficult to accept the Sessions nd Defendant and SP8 were all credible witnesses that proved the accident happened in the manner pleaded. [51] On the matter of appellate interference, the Court of Appeal in Wasal Construction Sdn Bhd v. Boh Huat Chan Timber Products Sdn Bhd [2014] 4 MLJ 294 stated: "[20] The principles for appellate interference in the decision of the trial court was stated by the Federal Court in Azman bin Mahmood & Anor v. SJ Securities Sdn Bhd [2012] 6 CLJ 573; [2012] 6 MLJ 1 where it was held: The law on appellate intervention on findings of fact by a trial judge is trite. In this context it may be useful to refer to the case of Multar Masngud v. Lim Kim Chet and Anor [1982] CLJ 107; [1982] CLJ (Rep) 237 (FC), wherein it was held that an appellate court will interfere and disturb the finding of fact by the trial judge if crucial evidence had been misconstrued resulting in the uncertainty on one party's evidence and the consistency of the other party's evidence being disregarded. In the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] CLJU 40; [1984] 1 LNS 40 it was held that when a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him, it is the plain duty of the appellate court to intervene and correct the error lest otherwise the error results in serious injustice." [52] In finding the 2nd Defendant 100% liable in negligence for the properly evaluate the totality of the evidence or explain its assessment of the inconsistent testimonies given by the witnesses at the trial that the accident occurred in the manner pleaded. [53] In the absence of any evidence at all to support a finding of negligence by the 2nd Defendant, or of the fact of a collision between the Plaintiff and the 2nd Defendant, this Court finds that the Session Court had accepted a theory of an accident that the Plaintiff had failed to prove on a balance of probabilities. [54] As liability was not established, I have not considered the appeal and cross-appeal on the quantum of damages awarded by the Sessions Court Judge. The Fraud Claim [55] The fraud claim by the 3rd Defendant was based on circumstantial evidence, namely the multiple corrections to the police report of the 2nd Defendant, the inconsistencies in the license plate registration and date of the accident and as subsequently emerged, the Sahabat WhatsApp chat group. [56] The explanations given by those involved about the errors in the license plate, date and time were reasonable. It was not proved to have been intended to advance the alleged fraudulent design. The Plaintiff was not part of the group of school friends when he lodged the police report to implicate the 2nd Defendant. [57] The Plaintiff was not initially invited to join the Sahabat WhatsApp chat group. The Defendants in the group chat appeared to convey that they felt sorry for him but there was no material in the WhatsApp chat that described the nature of the evidence that they allegedly agreed to concoct. [58] It is true also that the 1st and 2nd Defendants did not put up a meaningful defence, but that can be explained by the fact that they lost paid legal representation when the 3rd Defendant intervened. At no point did the 1st and 2nd Defendants admit to the allegation of negligence and the evidence of the 2nd narrative. [59] To evaluate circumstantial evidence, the following passage from Idris v PP [1960] 26 MLJ 296 is instructive: circumstantial evidence I can give you no better definition than quote to you the words of Lord Cairns in the case of Belhaven & Stenton Peerage reported in 1875 - 6 Appeal Cases, page 279: My Lords, in dealing with circumstantial evidence we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel. In other words, circumstantial evidence consists of this: that when you look at all the surrounding circumstances, you find such a series of undesigned, unexpected coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test, if it leaves gaps then it is of no use at all [60] Hence, this Court also finds that there is insufficient circumstantial evidence of collusion and fraud by the 1st and 2nd Defendants and agree that the Counterclaim was correctly dismissed with costs according to scale. Appeal by the 1st and 2nd Defendants [61] The 1st and 2nd as the award of costs is a matter of discretion that no order as to costs was effectively made in relation to the 1st and 2nd Defendants as nominal defendants. Conclusion [62] For the reasons set out above, the 3rd allowed in part and the Judgment of the Sessions Court:

is set aside on liability, quantum and costs claim

is affirmed on the dismissal of the 3rd counterclaim with costs here and below in the sum RM60,000.00. [63] The cross appeal by the 3rd Defendant on quantum is dismissed with no order as to costs [64] The 1st and 2nd order as to costs. Bertarikh : 12 Februari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu (Defendan Ketiga): Ratnavathy Navaratnam (with Vikneswaran Kanapthiplillay and Archana Devi), Messrs Viknes Ratna & Co. Untuk Responden Pertama (Plaintif): Aisha Jothilingam (with Ganesalingam), Messrs Ganesalingam Vijayaratnam & Aisha Jothilingam Untuk Responden Kedua dan Ketiga (Defendan Pertama dan Kedua): Thanajayan A/L P Manickavasagam, Messrs M. Thanajayan & Co.