Ravichandran A/L Marie v 1. Arulvel A/L Kunjah (12B-231-11/2015)

MMIP SERVICES SDN BHD … RESPONDEN-RESPONDEN Dalam Mahkamah Sesyen di Sepang Dalam Negeri Selangor Darul Ehsan, Malaysia Saman No. A53-127-06/2013 ANTARA RAVICHANDRAN A/L MARIE … PLAINTIF

MMIP SERVICES SDN BHD … DEFENDAN-DEFENDAN 2 GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (Plaintiff) on the Sessions Court’s decision which dismissed the Appellant’s suit against the Respondents who are the First Defendant, Second Defendant and Third Defendant. The First Defendant is the driver of the vehicle lorry bearing registration number BCX 6424 involved in the alleged accident as well as the servant or agent to the Second Defendant who is the registered owner of the said lorry. At all material times, the Third Defendant is the insurer for the said lorry (paragraph 4 Amended Writ and Statement of Claim, page 17 of Appeal Record). [2] The appeal is on liability and quantum. The Respondent here is the Third Defendant. For ease of reference, the parties will be referred to as they were in the Sessions Court. At times, parties will be referred individually as ‘the First Defendant’, ‘the Second Defendant’ and ‘the Third Defendant’ or singularly as ‘the Defendant’. Facts [3] The relevant factual background giving rise to this appeal may be briefly stated as follows:

The Plaintiff is the rider of the motorcycle bearing registration number BAX 4112. The Plaintiff pleaded that on 15.3 2012 the 3 Plaintiff was sitting on his motorcycle which was parked at the side of the road Jalan 4, Taman Jaya Utama Telok Panglima Garang, Selangor Darul Ehsan when all of a sudden a lorry bearing registration number BCX 6424 which was in the front reversed without any warning and caused the accident. The Plaintiff’s written submission stated that the accident to the Plaintiff’s motorcycle caused the Plaintiff to fell and his eyes to hit the motorcycle handle: “….secara tiba-tiba sebuah m/lori No. BCX 6424 yang dipandu oleh Responden/Defendant Pertama telah mengundurkan m/lorinya tanpa sebarang tanda amaran atau isyarat lalu melanggar Perayu/Plaintiff dan m/sikal No. BAX 4112 menyebabkan Perayu/Plaintiff terjatuh dan matanya terkena pada handle motorsikal lalu mengalami kecederaan.”

The Plaintiff’s Amended Writ and Statement of Claim (paragraph 5, page 17 of Appeal Record) stated that, “Pada 15.03.2012 plaintif sedang dengan sah disisi undang-undang menduduk di atas m/sikalnya No. BAX 4112 yang berada di tepi Jalan 4, Taman Jaya Utama Panglima Garang, Selangor Darul Ehsan apabila dengan tiba-tiba sebuah m/lori No. BCX 6424 yang berada di depan mengundur tanpa memberi sebarang tanda amaran dan/atau isyarat dan mengundurkan m/lori No. BCX 6424 lalu menyebabkan kemalangan berlaku.” 4

The Plaintiff claimed that the accident was due to First Defendant’s negligence in driving its lorry or in managing the lorry. The Plaintiff claimed that the First Defendant was negligent as spelt out in its Amended Statement of Claim (paragraphs a – h and paragraphs 7 & 8, pages 17 – 18 of Appeal Record).

The Plaintiff pleaded that its injury were: “-Luka di kaki kiri - Bengkak mata di sebelah kanan - Lain-lain kecederaan.”

The Sessions Court dismissed the Plaintiff’s suit with cost and awarded general damages of RM70,000.00 for Plaintiff’s right eye choroidal rupture and vitreous hemorrhage and special damages of RM500.00 with interests. Plaintiff’s case [4] The learned counsel for the Plaintiff advanced several grounds that the Session Judge had erred in deciding that the Plaintiff failed to prove on balance of probabilities. It was brought to this Court’s attention the Sessions Court’s decision was wrong seeking this Court’s intervention to correct the miscarriage of justice and relied on a number of authorities, the Supreme Court’s decision in Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693; Lim Soh Meng & Anor v Krishnan [1967] 1 MLJ 5 8; Sepang Omnibus Sdn Bhd v Christina Loh Soo Pang & Ors [1970] 2 MLJ 234 and Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395. It was submitted that the Plaintiff had proven based on Plaintiff’s witnesses SP2 and SP6, that the First Defendant and Second Defendant should be held liable 100% for the accident. [5] The Plaintiff’s counsel submitted that the Session Judge failed to take into account the eye specialist’s testimony which affirmed the date of accident to be 14.3.2012 and that the first medial report from Poliklinik Dan pembedahan Reiki Baba and also Hospital Tengku Ampuan Rahimah Klang verified the date of accident as 14.3.2012, consistent with Plaintiff’s version in its Statement of Claim (paragraph 4, page 8 of Appeal Record). Therefore the counsel for the Plaintiff prayed for this Court to adjudge the Defendants as 100% liable. In addition, it was submitted that the First Defendant as the employee of the Second Defendant only made the police report after 1 month from the date of alleged accident and on a wrong date. [6] The Plaintiff informed this Court that the Plaintiff’s witness, SP2, the investigating police officer (IO) whom had testified that the Defendant was summoned for two offences under Rule 17 of Road Traffic Rules LN 166/59 for reversing his lorry negligently and for delaying in making police report. The Plaintiff’s counsel also contended that the First Defendant failed to testify at the trial and did not rebut Plaintiff’s case. As such, it was submitted, an adverse inference could be raised by this Court against the First Defendant and conclude that the First Defendant is responsible for the accident, referring to a Federal Court decision of Fatimah Derakman v Wan Jusoh Bin Wan Kolok & Anor [1994] 4 CLJ 537 which accepted the 6 plaintiff’s evidence as the defendant did not produce any evidence to dispute plaintiff’s evidence. [7] The Court also heard Plaintiff’s counsel’s submission that the Third Defendant pleaded that there is fraud and conspiracy issue but First Defendant failed to be called to testify to prove that he was not involved in the accident and thus section 114(g) of Evidence Act 1950 would be applicable: Sinnayah & Sons Sdn Bhd v Damal Setia Sdn Bhd [2015] 5 AMR 497. It was submitted that the Session Judge was erred in accepting the adjustors report as exhibit when it was testified by SD4 and SD 5 (Defendants witnesses) that the said report was not signed. [8] The Plaintiff’s counsel prayed that the Defendants be held 100% liable and the Third Defendant be responsible as the insurance policyholder, as Third Defendant had admitted to the accident in its Defence. The Plaintiff’s counsel submitted that as pleaded, the award for damages be retained. Defendant’s case [9] The learned counsel for the Third Defendant submitted that based on the case of Tu Leh Ho & Anor v Anin Anak Lengie & Anor [2009] MLJU 68 which quoted the Federal Court case of Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175: 7 “In a negligence action the onus of proof rests wholly on the Plaintiff, whether or not the defendant gives evidence. The Plaintiff cannot succeed without proof that the Defendant is negligent.” [10] The Third Defendant’s counsel advanced several grounds and submitted that the Plaintiff had failed to prove the existence of an accident between the Plaintiff and the Defendants based on the following grounds (Third Defendant’s Defence at pages 28-31 of Appeal Record), briefly:

There was a material discrepancy as to the actual date of accident where SP1, the investigating police officer (IO) testified that the first information received on the accident was on 15.3.2012 when Plaintiff reported on 14/3/2012 whereas the Plaintiff reported that it occurred on 15.3.2012.

The IO testified that he is unaware of the actual date and only knew of the discrepancy from the Plaintiff and First Defendant. Based on his investigation, the damage found on both vehicles.

The Plaintiff’s daughter was in the Plaintiff’s house when the alleged accident occurred but none of his family members were called out to help the Plaintiff and she agreed upon testified that she did not witness the accident.

The IO testified that based on his investigation, no damage was found on the Plaintiff’s motorcycle as reported by the Plaintiff as, “lampu depan pecah and body kemek dan lain-lain”. 8

There was a first report of Plaintiff from Poliklinik dan Pembedahan Reiki Baba but no mention of the actual accident. It was only stated that, “the abovementioned has came to see me on 14/03/2013 at 23.34pm motor vehicle accident affecting his injury eye. I did dressing and send him to Hospital Tengku Ampuan Rahimah, Klang.”

Based on the medical report from Hospital Tengku Ampuan Rahimah dated 13.6.2012, it was stated that the Plaintiff first received the medical treatment on 15.3.2012 which was verified by one Dr. Ng Ker Hsin (SP 7) whom prepared the medical report, where at the history part of the report (page 88 of the Appeal Record) stated the alleged accident was between a pedestrian and a motorcycle on 14.3.2012.

The First Defendant took a statutory declaration that he was not involved in the accident and the police report was made on Plaintiff’s instruction, who is his employer, for an insurance claim. [10] The counsel for the Plaintiff averred that based on the above facts mentioned, the Sessions Court was right to consider the IO’s investigation to be abstained from the Plaintiff’s evidence, in particular the investigation where the IO went to Plaintiff’s home to inspect the motorcycle and yet the Plaintiff refused to show and the photos of the motorcycle (pages 105-106 of Appeal Record) were taken by the Plaintiff and not the IO. 9 [11] The Third Defendant’s counsel submitted that the Plaintiff failed to prove that the accident occurred and the Plaintiff knowing that the First Defendant made the statutory declaration, should have called the First Defendant to testify and support his evidence based on the First Defendant’s police report who is also the Plaintiff’s employee. THE COURT’S FINDINGS [12] Both counsels advanced several arguments on the grounds of the appeal. For the purpose of this judgment, I will be brief, focusing on the main grounds. I would start of by staying that this suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendants as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [13] Based on the facts and evidence submitted before this Court, it is found that there were many discrepancies on the alleged accident as reported based on the police report, the medical reports and the photos of the motorcycle and the lorry. The medical report submitted by the Plaintiff where the first treatment at the poliklinik mentioned that the accident was 10 between a pedestrian and a motorcycle. This was supported by the medical report from Hospital Tengku Ampuan Rahimah dated 13.6.201 which stated at the history part of the report that the accident was between a pedestrian and a motorcycle. [14] I viewed that it must be incriminating for the Plaintiff where the IO came to investigate to see the motorcycle and the Plaintiff refused to show the motorcycle and the photos of motorcycle submitted are those taken by the Plaintiff and not the IO. To top it off, the police report made by the First Defendant was made one month after the alleged accident which is serious as the accident almost made Plaintiff blinded one eye. The First Defendant made a statutory declaration denying any involvement, stating that the police report was made on Plaintiff’s instructions to claim insurance, is inevitably a serious matter and yet the Plaintiff failed to call the First Defendant to testify and be cross-examined to support the Plaintiff’s case. [15] This Court holds the view that the facts and the evidence remains unexplained by the Plaintiff who asserts it and the basic requirement stipulated under section 101 of Evidence Act 1950 had not been fulfilled. There is a gap between the accident and the evidence tendered by the Plaintiff to which the burden of proof did not reveal that the injury to Plaintiff’s eye was caused by the accident as alleged by the Plaintiff. I stand to be guided by the Federal Court case of Mohamed Salleh Bin Awang & Anor v Low Han Leong & Anor [1981] 1 MLRA 306 where it was found that the Plaintiff’s unproven evidence must fail. I find that the Session Judge in the instant case did not misdirect himself on facts and law and his decision does not require this Court’s intervention. 11 In light of the above reasons, I dismiss the appeal. Dated: 30 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 12 COUNSEL FOR THE APPELLANT/PLAINTIFF HARJEET SINGH S/O SARDARA SINGH Tetuan P.S. Sohanpal & Sidhu Peguambela dan Peguamcara No. 742-6, 6th Floor Wisma NAC, Jalan Sentul 51000 Kuala Lumpur [Ref: PSS/AN//KLG/ 192/12/ Lza)] Tel: 03-4044 7526 Fax: 03-4044 7536 COUNSEL FOR THE 3rd RESPONDENT/DEFENDANT GANESAN RAJA Tetuan Ganes & Partners Peguamcara dan Peguambela 13-2, Jalan USJ 9/5N 47620 Subang Jaya Selangor Darul Ehsan [Rujukan: GP.MMIP.729.1328/13]