Supreme Power Auto Sdn Bhd v Liberty Insurance Berhad (WA-22NCC-329-08/2018)

This judgment concerns insurance claims by the insureds, Supreme YTW LSW arising from a fire incident on 5.8.2012 which destroyed a single storey factory situated at Lot 53, Kawasan Perindustrian, Kelemak Jaya, 78000 Alor Gajah Lot 53 claim for the loss due to the destruction of the building at Lot 53 as S/N E9Xd0bP2u0el6DNndbxm8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 well as the stock-in-trade therein form the subject matter of Suit 329 and Suit 330 respectively. The claims for the loss of 3 luxury vehicles which were also destroyed by the said fire form the subject matter of Suits 541, 542 and 543.

Bomba concluded that it was an accidental fire originating from an electrical source, being arcing of the copper wires within the electrical distribution board, the insurers repudiated the claims on the basis that the fire at Lot 53 was deliberate.

The insurer in Suit 329 for the loss of the building is Liberty Liberty the stock-in-MSIG and the insurer for all the 3 luxury cars is Allianz General Insurance Allianz

An overview of the claims in the 5 suits before this Court is tabulated in the Table below: Suit No. 329 330 541 542 543 Insured Yong Thien Wieo Lim Sze Way Insurer Liberty MSIC Allianz Allianz Allianz Policy MKFUB002 250/12 Premise Policy MC- 08093534- FC1 11VKL0107 38/AEKL00 212729 Porsche 911 Policy 11VKL9553 11/AEKL00 1476 Ferrari Policy 11VKL0033 39/AEKL00 16976 Porsche 333 Policy S/N E9Xd0bP2u0el6DNndbxm8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Suit No. 329 330 541 542 543 Subject Matter Building (excluding foundation) Building stock in trade, racking, equip-ment, tools and utensils Porsche 911 Turbo (WVG 911) Ferrari F430 F1 (SAB 1F) Porsche Cayman S (MCC 333) Insured Amount (RM) 1,078, 000 57,500,000 536,000 864,000 536,000 Coverage period 1.4.2012 31.3.2013 9.8.2011 8.8.2012 27.9.2011 26.9.2012 15.8.2011 14.8.2012 29.8.2011 28.8.2012 [5]

(M) Sdn Bhd ( ) to investigate the insurance claim submitted by SPA for the building at Lot 53 under the Premise Policy. MSIG appointed Maphilindo International Sdn Bhd (now known as Maphilindo claim for the stock-in-trade. [11] Liberty with MSIG jointly appointed Forensic Services (M) Sdn Bhd FSM as forensic experts to further investigate on the cause of fire at Lot 53. [12] At the hearing, all the insurers relied heavily on the investigation conducted by Ani Ling (DW-6) and Yu Ong Sing (DW-4) of FSM and their conclusions reached in their reports. S/N E9Xd0bP2u0el6DNndbxm8g [13] Based on the investigation by FSM, what was informed to them by the directors of SPA, Lim Teck Boon (PW5) and Lim Chaw Teng (PW4) was that SPA had received three (3) truckloads of stocks on 4.8.2012 a day prior of the Incident. On the said date, PW4 had arrived at Lot 53 with two (2) foreign workers at about 11.30 a.m. to unload the stocks from the trucks into the building. The first thing he did was to put the 3 guard dogs into the cage at Lot 53. Only PW4 and PW5 are able to handle the dogs that are apparently fierce and aggressive, [14] The goods that were delivered included:

car, truck and forklift spare parts which comprised exhaust pipes/mufflers (not wrapped), and brake pads, light bulbs, wipers (wrapped in plastic and in boxes);

engine oil;

empty plastic bottles (put in boxes) [15] PW5 arrived at Lot 53 on the same day about 2.00 p.m. to take over the supervising of unloading of the stocks from PW4. The new stocks were unloaded and stored wherever there was empty space in the left extension, Store A, Store 1, Rear Extension and Store 3. PW5 said that the workers completed the unloading of the stocks into the building at about 5.00 p.m. [16] After completing the unloading of stocks from the trucks into the building, PW5 instructed the two foreign workers to wash the cars S/N E9Xd0bP2u0el6DNndbxm8g parked at the rear of the building. After the two workers had washed the cars, all three cars were parked at the Rear Extension next to each other. Before PW4 and PW5 left the premises at 6pm, they locked up the premises and released the 3 guard dogs. [17] Both PW4 and PW5 during cross-examination confirmed that PW4 was the only holder for the keys to the building and that they were the only persons who could handle the 3 ferocious guard dogs who only obeyed PW4 and PW5. In fact, according to PW5, the dogs had tried to bite the fire-fighters when they entered the premises to put out the fire. [18] On 5.8.2012 at 12.15pm, PW5 made a police report No. ALOR GAJAH/002853/12 in respect of the fire. He was informed about the fire at 7.54am the same day. deliberate fire [19] FSM concluded from its investigations that the fire was deliberately and intentionally set-up. The crux of their findings based on their joint reports and witness statements is that the fire was caused by deliberate ignition of combustible materials by person or persons who could afford the man-days of planning, preparation and setting up at the various sections of the building in Lot 53. There was evidence to indicate that combustibles (cartons, corrugated cardboards, plastic bottles indicated to contain engine oils and empty plastic engine oils bottles) had been strategically and meticulously arranged or set up throughout the building to ensure maximum destruction of the stock by fire; as follows:

thick layers of corrugated cardboards arranged amongst the non-combustible stock (mufflers);

flat cartons and cardboards were arranged on the aisles between rows of storage racks with auto parts;

empty cartons and or boxes were arranged neatly on the aisles between racks with auto parts;

in the show room, boxes of combustibles (said to be bottles with engine oils and or plastic parts such as light bulbs) were arranged on the right and flat cartons were arranged on the floor along the left;

empty plastic engine oil bottles, six to a carton, were arranged on the aisles between rows of racks in the rear extension. The packaging of empty plastic bottles did not make economical or practical sense;

the empty engine oil bottles packed in cartons arranged amongst the cartons with bottles of engine oil would have, on a cursory postfire inspection, given the impression that they were all stock-in-trade (engine oil);

the overall set-up for the building to burn required significant pre-planning and preparation which could not have been done by intruders or outsiders;

there was evidence of multiple seats of fire within the building where isolated or separate areas of low-level burning were observed. The isolated areas of low-level burning were observed in the left and right extensions where the burning was not as widespread and extensive. Multiple seats of fire indicate that the fire had started or originated from different and unconnected parts of the building, which could not have happened if the fire had been accidental in nature;

ignitable liquids were detected in samples of fire debris collected from 4 locations. The ignitable liquid detected in sample S28 (in store 3) and petrol in sample S17 (in showroom) were not of the same mixture as the ignitable liquid detected in sample S27 (from store B, where petrol, kerosene or thinner were indicated to have been stored). Petrol or similar solvent was detected in sample S2, which was collected in store 1. This indicates that ignitable liquids (that were not ordinarily used by SPA had most probably been used to start the fire. [20] FSM had sent a total of 12 samples to Dr Walter Stern (DW5), a Consultant Chemist in Australia. DW5 is a Fellow of the Royal Australian Chemical Institute in Australia practising as a consultant chemist for over 42 years (at the time of testifying) with specialisation in the area of forensic science. Out of the 12 samples he tested, samples S2, S17, S27 and S28 had tested positive for ignitable liquids at the following areas:

S2 Store 1 S/N E9Xd0bP2u0el6DNndbxm8g

S17 - Show Room in Main Building

S27 Store B

S28 Store 3 [21] It was contended that because the 4 areas where the positive samples were located were totally unconnected, the irresistible conclusion is that accelerant had been spread throughout different areas of the warehouse in order to aid combustion. This coupled with the strategically and meticulously arranged set-up suggest that the fire was incendiary and not accidental. [22] DW9 (Ong Beng How) gave evidence on behalf of Maphilindo (now known as Sedgwick Malaysia Sdn Bhd) and their investigations. He concluded that:

the building was only guarded by the 3 dogs mentioned by PW4 and PW5, which were 2 Rottweilers and a Presa. It is obvious that from their evidence that only PW4 or PW5 could control the dogs and not anyone else. As such, no casual intruder could enter Lot 53 without being bitten by the dogs which as alluded above, the firemen had found out. This implies that PW4 and PW5 were involved in the fire;

the electrical wiring in the warehouse was running in metal conduits or imbedded in the wall, which made the spread of fire through the wiring difficult, especially as the building is made of reinforced concrete framework with corrugated metal S/N E9Xd0bP2u0el6DNndbxm8g roofs secured onto metal framework. The walls were brick and the floor, cement. As such, any fuel load had to be introduced. [23] In respect of motive, based on their investigation Maphilindo is of the view that although SPA may on the surface be doing well, PW- 5 would have a motive to liquidate the stocks in Lot 53 given the fact that they were old and obsolete stocks. Liquidating them by way of fire would allow him to use the insurance proceeds as capital for his property development businesses and projects. [24] Further, Maphilindo contends that the Plaintiffs failure to cooperate in the investigation lends credence to the fact that they have something to hide. s and Analysis of 1st Question [25] It is trite that the insured is only required to demonstrate that a fire has caused the loss to the subject matter of the insurance policy. This is not in dispute. It is then for the insurer who now bears the burden of proof to demonstrate, on a balance of probabilities, that the fire was caused by the wilful act of the insured or with the connivance of the insured. [26] Slattery v Mance [1962] 1 All ER 525 (HC) aptly explained the burden of proof vis-à-vis fire insurance claims as follows: fire, the plaintiff has made out a prima facie case and the onus is S/N E9Xd0bP2u0el6DNndbxm8g upon the defendant to show on a balance of probabilities that the fire was caused or connived at by the plaintiff. Accordingly, if at the end of the day the jury come to the conclusion that the loss is equally consistent with arson as it is with an accidental fire, the onus being on the defendant, the plaintiff would win on that issue [emphasis added] [27] Our Court of Appeal in AmGeneral Insurance Bhd & Anor v Veheng Global Traders Sdn Bhd & Anor and other appeal [2017] 1 LNS 2289 has adopted the test and held as follows: their defence that the fire on the insured premises was deliberately started by the first respondent, the claims brought by the first respondent are fraudulent or deliberately exaggerated and thus had breached Conditions 15 and 12 of the FMD and FCL Policies respectively, the appellants have to prove that particular fact as required by section 101 of the Evidence Act 1950 on the balance of [28] This proposition was not disturbed on appeal by our Federal Court in Veheng Global Trades Sdn Bhd v AmGeneral Insurance Bhd (formerly known as Kurnia Insurance (M) Bhd) & Anor and another appeal] [2019] 4 MLJ 581. [29] In this case, the gist of Report are stated as follow: S/N E9Xd0bP2u0el6DNndbxm8g Combustibles such as corrugated cardboards stuffed in cartons, flat cartons, layers of corrugated cardboards and ignitable liquids (including bottles indicated to be engine oil) had been strategically and meticulously distributed throughout the premises . Thick layers of cardboards arranged amongst the non-combustible stock (mufflers) . Flat cartons and/or cardboards were arranged on the aisles between the rows of storage racks with auto parts . Empty cartons and/or boxes arranged neatly on the aisles between racks with auto parts . In the show room, flat cartons were arranged on the floor along the left. While boxes of combustibles (said to be bottles with engine oils and/or plastic parts such as light bulbs) were arranged on the right . Empty plastic engine oil bottles, six to a carton, were arranged on the aisles between rows of racks in the rear extension. The packaging of empty plastic bottles did not make economical and/or practical sense . The empty engine oil bottles packed in cartons arranged amongst the cartons with bottles of engine oil would have given an impression that all were stock-in-trade (engine oil), had the fire completely destroyed the bottles . Closer examination revealed strong odours like kerosene and/or petrol at the suspected seat of fire . 38 samples of burnt materials and/or remains were collected from various locations throughout the fire affected building. 12 of the 38 samples were sent to Sydney, Australia for chemical analysis and ignitable liquids were detected in 4 of the samples . S/N E9Xd0bP2u0el6DNndbxm8g The presence of voluminous paper materials found between the stocks suggested that the papers were purposely stiffed there in order to ensure total destruction of the building and contents therein . Unusual pattern of stock arrangement where flammable stocks such as engine oil was arranged and kept between the shelves to fuel the fire . Multiple seats of fire was discovered in the left and right extensions of the fire affected warehouse. It is apparent that the fire was deliberately started by someone who have access to the keys of the premises as there is no evidence at site to suggest a pre-fire break-in . Dat and his father, Mr. Lim Chaw Deng were the only persons who had keys to the premises and the burnt warehouse at lot 53 thus, indicating that the party who set the fire has access to the keys . and the two workers were the last to leave the warehouse at about 6pm on the day prior to the fire. The fire was discovered about 9.5 hours after the last person left . The overall set up required significant pre-planning and preparation, which could not have been done by an intruder(s) or outsider(s) . [30] These findings shall now be examined by this Court. [31] It seems to me that in a typical fire investigation, there will be both scientific and non-scientific components. The former involves application of scientific methods, objective physical evidence and established principles of fire science. This requires experts to testify S/N E9Xd0bP2u0el6DNndbxm8g on, inter alia, the characteristic of fire dynamics, examination of fire patterns, chemical analysis, fire modelling and simulation, understanding of temperature and heat transfer and systematic hypothesis. [32] In connection with the scientific component, the NFPA 921: Guides for Fire and Explosion Investigations is a document published by the National Fire Protection Association (NFPA) that provides scientifically based guidelines and best practices for conducting fire the NFPA 921 idely recognised as the gold standard in the field and is used by fire investigators and forensic experts in most countries, including Malaysia. [33] On the application of the scientific method to origin determination of the fire, the NFPA 921 provides the following steps: S/N E9Xd0bP2u0el6DNndbxm8g S/N E9Xd0bP2u0el6DNndbxm8g [34] The Federal Court in MPPL & Anor v CAS [2024] 4 MLJ 524 has observed that the interests of justice is best served by ascertaining the truth and the Thus, where possible, the best scientific evidence in relation to the fire must be procured for [35] The non-scientific component on the other hand relies more on subjective judgment, experience and contextual information. This involves account from eye witnesses, analysis of human behaviour and inferences therefrom. [36] To my mind, in determining whether a fire is accidental or deliberate, the Court should give more importance to the scientific component of a fire investigation. This is because it provides objective, verifiable and more reliable evidence unlike the non-scientific component which is generally subjective and may be unreliable due to confirmation bias, i.e. only looking for evidence that supports the assumption made or refusing to consider alternative but equally plausible explanation of the existence of certain facts. [37] Accordingly, in this case, I will begin the deliberation and analysis conclusion that the fire at Lot 53 was deliberate based on its opinion that there were multiple seats of fire at Lot 53 and the presence of accelerants from the 4 samples that were tested positive. S/N E9Xd0bP2u0el6DNndbxm8g Multiple Seats of Fire [38] Before seats of fire, it is instructive to first consider the alternative view proffered by Bomba on the cause of the fire at Lot 53. [39] is that the fire had originated from within the Distribution Board which was located at Store 4 adjoining the Rear Extension at the back of the building. According to Noraini binti Husin (PW-6) who is the Penolong Penguasa from Bomba, the source of the ignition was the presence of arcing on the electrical wiring. To the uninitiated, arcing is a steady flow of electrical discharge through a medium (i.e. electrical conductors) over a considerable amount of time. This can lead to electric current jumps or discharges across a gap between conductors creating intense heat and sparks which then causes a fire. Investigators examine arc beads which are melted metal spots on wires to determine if arcing had occurred. [40] In this case, a visual of the copper wires within the Distribution Board were beaded traces on the copper wires. reproduced below: S/N E9Xd0bP2u0el6DNndbxm8g [41] The aforesaid beaded traces on the copper wire coupled with the observation of traces of curved metal found on top of the Distribution Board and the effect of oxidation within the framework of the Distribution B of fire was the arcing on the electrical wire. The deformation and oxidation of the Distribution B reproduced below: S/N E9Xd0bP2u0el6DNndbxm8g [42] Consistent with the origin of fire being arcing within the Distribution Board, was the mass loss of the zinc roof in the same area where the Distribution Board was housed in the Lot 53. The collapse of the rood at the area suggests exposure to high temperature and heat generated for a considerable amount of time. This is clear from Gambar 8 below: S/N E9Xd0bP2u0el6DNndbxm8g [43] PW-6, testified that Bomba has categorised the cause of fire as an accidental fire for the above reasons. She conceded, however, that Bomba did not conduct further investigation to determine if there were alternate sources of ignition. [44] On the other hand, FSM has concluded from its investigation that there was evidence of multiple seats of fire in the left and right extensions where isolated or separate areas of low-level burning were observed. The existence of the multiple seats of fire is an indicator of incendiary or deliberate fire. Both DW-4 and DW-6 of FSM conceded during cross examination that FSM did not carry out any investigation and tests on the electrical wiring when dismissing the possibility of electrical arcing as the source of fire. Put it in another way, FSM being satisfied of its conclusion that the presence of multiple seats of fire coupled with the systematic arrangement of the corrugated cardboard and other fuel loads suggest incendiary fire, it did not think it necessary to conduct any investigation to reject the possibility of accidental fire due to arcing of the electrical wires opined by Bomba. [45] As stated, Report claims that one indicator of incendiary fire is the evidence of multiple seat of fires that FSM found at the left and right extensions, where isolated or separate areas of low-level burning were observed. In this regard, the NFPA 921 addresses the

24.2.1 Multiple Fires. Multiple fires are two or more separate, nonrelated, simultaneously burning fires. The investigator should search to uncover any additional fire sets or points of origin that may exist. In order to conclude that there are multiple fires, the investigator should determine that any "separate" fire was not the natural outgrowth of the initial fire. [emphasis added] [46] What the aforesaid means is that the fire investigator must exercise caution to be sure or at least to satisfy himself or herself that the separate fire or the different seats of fire were not the natural outgrowth of the initial fire. In other words, for the purposes of our present case, care must be taken to ensure that the low-level burnings at the separate locations identified by FSM could not be due to reasons otherwise than incendiary or deliberate fire. In this regard, it must be noted that the NFPA 921 does identify several factors which may cause separate fires. In particular, at para 24.2.1.2, it states:

24.2.1.2 Separate fires that are not caused by multiple deliberate ignitions can result from the following:

Fire spread by conduction, convection, or radiation

Fire spread by flying brands

Fire spread by direct flame impingement

Fire spread by falling flaming materials (i.e., drop down) such as curtains

Fire spread through shafts, such as pipe chases or air conditioning ducts

Fire spread within wall or floor cavities within "balloon construction"

Overloaded electrical wiring S/N E9Xd0bP2u0el6DNndbxm8g

Utility system failures

Lightning

Rupture and launching of aerosol containers [47] In other words, the presence of separate, if at all does not necessarily mean that there were multiple deliberate ignitions. Full Room Involvement [48] In addition to the aforesaid, Mr John Lentini (PW-7), who was the-level burning can no longer be relied upon to conclude that there is isolated or [49] Mr John Lentini is a recognised expert in the world in fire investigation and forensic science. He has been giving expert testimony since 1975 and has conducted reviews of numerous fire cases where the original investigators had erroneously determined that an accidental fire was intentionally set. More significantly, he had conducted experiment to show that once a fire progresses to full room involvement, it is no longer valid to make a determination using visual cues alone. The conclusion from this experiment had had relied on the hypothesis that low-level burn patterns were indicators of flammable liquid or The Lime Street Fire : Another Perspective by John Lentini]. S/N E9Xd0bP2u0el6DNndbxm8g [50] In our present case, it is undisputed that the fire that engulfed Lot 53 had burnt for more than 6 hours. This, according to expert, Mr John Lentini (PW-7), means that there was a full room involvement . Full room involvement is defined in the NFPA 921 as:

3.3.95* Full Room Involvement. Condition in a compartment fire in which the entire volume is involved in combustion of varying intensities. [51] The concept of full room involvement is critical in understanding fire dynamics. The manner in which heat and fire spreads in a full room involvement was explained by PW-7 as follows: To put simply, heat and fire can spread ether through conduction, convection, or radiation. During full room involvement the main form of heat transfer is through radiation and convection of hot gasses. Both of these forms of heat transfer can cause damage found at low levels in the room including the floor to be more extensive. Fuels can also fall to the floor increasing the number of burning fuel packages and hence causing the patterns seen on the floor. [52] PW-7 also referred specifically to the NFPA 921 which explains that low-level burnings can be attributed to a fire that progresses to full room involvement.

6.3.2.4 Full Room Involvement-Generated Patterns. If a fire progresses to full room involvement (see 5.10.2.1 through 5.10.2.8), damage found at low levels in the room down to and including the floor can be more extensive due to the effects of radiant flux and the convected heat from the descending hot gas S/N E9Xd0bP2u0el6DNndbxm8g layer and the contribution of an increasing number of burning fuel packages. The radiant heat flux has the greatest impact on surfaces with a direct "view" of the hot gas layer. As the hot gas layer descends to floor level, damage will significantly increase. Damage can include charring of the undersides of furniture, burning of carpet and floor coverings under furniture and in corners, burning of baseboards, and burning on the undersides of doors. Full room involvement can result in holes burned through carpet and floor coverings. The effects of protected areas and floor clutter on low burn patterns should be considered (see 6.3.3.2.8). Although the degree of damage will increase with time, the extreme conditions of the full room involvement can produce major damage in a few minutes, depending on ventilation and fuels present. [53] I have understood PW-e referred to the article Improving The Understanding Of Post-Flashover Fire Behaviour by Mr Steven W Carman) to mean that where a fire in a room caused the temperatures to rise sharply, it would reach a stage where virtually all combustible materials would ignite simultaneously. It marks a shift from a fire confined to a single origin or area to one that involves the entire room. This transition phase is known as the walls and heat up remaining unburned materials to their ignition points with flames spreading quickly throughout the space. [54] The full room involvement follows the flashover and combustion would become dependent on the availability of oxygen. This is described as the ventilation phase. The availability of oxygen and the ventilation flow arising thereof would result in a situation where it will no longer be possible to determine the fire origin based on S/N E9Xd0bP2u0el6DNndbxm8g visual cues post the fire including fire patterns and low-level burnings. The now widely-accepted view, according to Mr John Lentini is that low-level burns which were previously attributed to burning ignitable liquids are actually due to upper-layer radiation during flashover. Put is simply, where there is full room involvement, one can no longer treat the evidence of low-level burning as a separate seat or origin of fire. [55] Neither DW-4 nor DW-6 disputed PW-of full room involvement and his opinion that it would be invalid to determine the fire origin from visual cues post the fire when there is full room involvement. However, DW-4 did not agree with PW-7 that there was any full room involvement at the Left Extension of the building. DW-4 opined that because the said area was not completely enclosed, there could be no full room involvement. [56] With respect, although the Left Extension may not be completely enclosed as there was a small opening at the top of the walls, there would be sufficient enclosed spaces to trap the heat and allow temperature to rise for radiant heat to bounce off the walls and ceiling downward to result in a full room involvement. Indeed, this was the view expressed by PW-7 who had no hesitation to conclude that the Left Extension had flashover and full room involvement given that the fire was burning for more than 6 hours. In fact, PW-7 testified that experiments conducted have affirmed the position that once a fire has become fully involved for more than 3 minutes, it is no longer possible to determine the fire origin based on visual cues. S/N E9Xd0bP2u0el6DNndbxm8g [57] Given PW-involvement, especially where he had personally reconstructed a fatal error of determining the origin of fire based on visual cues once a fire progresses to full room involvement, I am more inclined to accept that PW-had engulfed Lot 53 had indeed progressed to full room involvement at both the Left Extension as well as in the main building. PW-regard was not seriously challenged. In contrast, neither DW-4 nor DW-6 has demonstrated to this Court that they have any experience at all in conducting experiments to determine the onset of flashover and full room involvement. [58] My finding above means that DW-4 and DW-low-level burnings at Lot 53 as evidence of separate and independent seats of fire simply cannot be relied upon and accepted by this Court unless there are other scientific evidence, which will now be considered, to support the hypothesis. Source of fire unknown [59] Significantly, even assuming that the presence of low-level burnings at the locations identified by FSM were separate and independent seats of fire, both DW-4 and DW-6 conceded during cross examination that FSM has not been able to determine what was the cause of the fire, in other words, how the fire at the said seats ignited? S/N E9Xd0bP2u0el6DNndbxm8g [60] Crucially, of the 12 samples of debris from the burnt site that were sent for chemical analysis, only 4 were detected to contain ignitable liquid . Even then, it is significant that at none of the identified seats of multiple fire was there any evidence of the presence of any accelerant or remote device that could be used to ignite a fire. In fact, in some cases, FSM did not even collect any debris at the identified seats of fire for chemical analysis. [61] DW-4 contended that the presence of accelerant or ignitable liquid at these identified seats of fire could no longer be found because it would have been fully consumed during the fire. With respect, surely the absence of evidence cannot be equated to the discharge of the burden to proof the existence of the said evidence? It will be too simple a case if FSM is permitted to establish the presence of accelerant by contending that the absence of any evidence of the same was because the accelerant had been fully consumed. [62] Hence, without any evidence of the presence of any accelerant at these identified multiple seats of fire, FSM has not been able to support its narrative of incendiary fire ignited at these areas based on any scientific evidence at all. [63] In coming to my conclusion that there is no evidence of accelerant at the identified multiple seats of origin, I have also considered DW-samples marked as S2, S17, S27 and S28 Samples . These Positive Samples do not at all change my view that there is in fact no evidence of accelerant at the identified multiple seats of fire. S/N E9Xd0bP2u0el6DNndbxm8g [64] Indeed, of the 4 Positive Samples, only one, namely S2 was found near one of the identified multiple seats of fire. The sample was not extracted from the identified site at all. In other words, at all the identified multiple seats of fire, there was either no sample debris collected for analysis or the sample debris that were collected and analysed did not [65] In any case Positive Samples cannot be relied upon by this Court to conclude that accelerant was in fact presence at Lot 53. substance or material that is intentionally used to increase the rate of combustion or to start or ignite a fire. The detection of accelerant is generally a crucial factor in determining whether fire was intentionally set. [66] In a fire investigation, to identify the presence of accelerants, it is common to subject the fire debris for analysis using the Gas Chromatography-Mass Spectrometry (GCMS) Test. Such test is able to trace residues of flammable or combustible substances that may indicate incendiary fire. GCMS Test breaks down complex mixtures into individual chemical components, thereby allowing the investigators to determine the exact type of accelerant used. GCMS Test helps corroborate visual observations of burn patterns that might suggest the use of accelerants. The combination of physical evidence and chemical analysis origin and the cause. The analysed compounds of the debris will be compared to the known accelerant standards and once matches, the presence and type of accelerant presence can be confirmed. S/N E9Xd0bP2u0el6DNndbxm8g [67] In the presence case, cross examination of DW-5 of the Positive Samples has exposed significant shortcomings in the GCMS Test results in respect of the sample debris. [68] Contrary to the American and Australian standards, DW-5 has relied on misleading expressions in the course of interpreting the samples as follows:

S2 consistent with

S17 - consistent with

S27 likely to be a mixture of an ignitable liquid and pyrolysis

S28 similar to, but not precisely same as a petroleum [69] The NFPA 921 indicates that GCMS testing should be done in accordance with the ASTM E1618 standards. PW-ort highlighted the specific portion of the ASTM E1618 standards compounds as they are capable of being misleading. [70] When questioned about this, DW-5 initially asserted that his report had referred to the Australian standards AS5239-2011 and not the ASTM E1618 standards. However, when challenged on this matter, DW-5 conceded that the Australian standards, like the American S/N E9Xd0bP2u0el6DNndbxm8g standards, also require the author to exclude terms such as Dr Stein, please, would you agree that even the Australian standards say the same thing as the American standard that you are not to use those two... I don't believe so. JUDGE Counsel is referring you to subparagraph (e), E for England. "Results shall be reported objectively. Note, The terms 'consistent with' and 'not inconsistent with' should not be used." Would you agree that it says the same thing? I see. Tread tr vat, yes. [71] imply that the findings are not definitive notwithstanding that GCMS Test is in fact a precise analytical tool capable of identifying specific chemical compounds. Indeed, such phrases could be misunderstood to mean the presence of petrol when there could be other possible explanations. [72] In addition, the interpretation of the GCMS Test results was made without the benefit of any control or comparison sample. In this regard, the authors of the NFPA 921 recommend that it is often necessary to collect comparison samples when collecting physical evidence for purposes of examination and testing. The authors explain the necessity for such collection as follows:

17.5.4.6* Comparison Samples. When physical evidence is collected for examination and testing, it is often necessary to also collect comparison samples.

17.5.4.6.1 The collection of comparison samples is especially important in the collection of materials that are believed to contain liquid or solid accelerant. For example, the comparison sample for physical evidence consisting of a piece of carpeting believed to contain a liquid accelerant would be a piece of the same carpeting that does not contain any of the liquid accelerant. Comparison samples allow the laboratory to evaluate the possible contributions of volatile pyrolysis products to the analysis and also to estimate the flammability properties of the normal fuel present. [73] Comparison samples are therefore crucial towards making a positive identification of the true make up of a material or substance. It assists the investigator to distinguish what was at the scene prior to the fire and what was introduced to the scene to ignite or spread the fire. [74] DW-5 conceded that his report does not make any comparison between the components found within petrol (that was presence in the building) and those found in the samples that he tested. In fact, DW-6 reluctantly admitted during cross-examination that FSM did not collect control samples for the fire debris. Thus, in the absence of any comparison samples, DW-Test results must be treated with extreme caution. [75] Further, as I have explained above, to identify the analysed compound of the debris, the same will have to be compared with S/N E9Xd0bP2u0el6DNndbxm8g known accelerant standards or reference materials. In this regard, Clause 9.3.1 of the Australian standards reads as follows:

9.3 GC/MS data analysis 9.3.1 Mass spectral libraries In the case of GC/MS, the mass spectra obtained for the major peaks of interest can be compared against a suitable library of mass spectra. Together with GC retention times, this provides a means of identifying individual compounds. [76] In the present case, DW-5 did not attach in his report the accelerant standards or reference materials or the library of mass spectra to enable this Court to determine if the compounds analysed were indeed petrol compound. [77] Given that there were present at Lot 53, cars, ATVs, engine oil, thinner and other solvents, there is every possibility that the were from innocent sources and were washed away and or transported from one location to another within Lot 53 by the fire fighters during the efforts to douse and control the fire. Indeed, DW- 5 during cross examination conceded that the presence of the aforesaid materials can explain the existence of some of the components identified in his certificates. And were you instructed or informed as to what was found in the premises where these samples were taken from? Were you instructed? No. So, you were not told about the existence of the four cars that burned? S/N E9Xd0bP2u0el6DNndbxm8g The fact that there was a lorry that was burned. Nothing. With engine oils. The fact that there was engine oil stored on the - No, I do the analysis. You were not informed of any of these other circumstances? Alright, thank you. And the existence of these things, the cars, the engine oil, the lorry and other material, will that explain the existence of some of these components in your certificate? They could be. yes. [78] In this connection, it is also not lost on this Court that the initial draft FSM Report had alluded to the presence of solvents for cleaning purposes that were Samples were collected which could explain away the existence of the debris. This without any explanation provided. [79] Further, the presence of contaminants, which are substances or materials that may interfere with or mimic the chemical signatures of fire residues or accelerant, if not critically considered can affect the analysis of evidence, particularly the identification of accelerants. Indeed, the presence of carton boxes and plastic bottle identified in DW-5 certificates. resulting from the thermal decomposition of organic materials in the absence of oxygen. S/N E9Xd0bP2u0el6DNndbxm8g [80] Based on the aforesaid, it is my judgment that it is not at all safe for as reliable and credible evidence of the presence of accelerants at the identified multiple seats of fire as contended by FSM. [81] Without any evidence of the presence of accelerants, the low-level burning could be explained as being caused by falling materials or drop down or fire brands. This was conceded by DW-4. Do you agree that that debris is capable of causing low level or give an indicator of low level burning? It is low level burning. Ok, so that debris, it can be caused by the debris that fell. That's my question. The fallen debris, yes. Yes, possible, right? Possible. [82] This Court notes that in , it suggested that in respect of the Right Extension of the building, it was impossible for the areas of isolated burning to be ignited by . With regards to this, Mr Tan Jin Tong (PW-8), the expert witness for the Plaintiffs however held a different opinion. He opined that the burnt marks in the Right E S/N E9Xd0bP2u0el6DNndbxm8g [83] The Right Extension being an open space meant that there was no full room involvement reached. In such a case, low level burning could be an indication of incendiary fire. There are 2 divergent opinions as to whether fire brands were of sufficient strength and competent to ignite the wood pellets. No experiment was carried out to determine this issue. However, given that there was no evidence of any accelerant presence at the Right Extension and with no definitive evidence either way on the competency of fire brands to ignite the wooden pellets, the hypothesis that the fire was incendiary is simply not established. [84] Learned counsel for the insurers speculates that the person(s) who had ignited the fire at this area where fibre and asbestos were stored obviously was not aware that these were non-flammable substance. However, the contention that some person(s) had ignited the fire at this location is wholly unsupported by any objective evidence. In fact, this narrative is also inconsistent with narrative that PW- 4 and PW-5 were involved and in fact present at the time of the fire in order to control the dogs. This is because from PW-it is clear that he knows that the asbestos and or fibre were inflammable. Spalling [85] Further, FSM observed the spalling of concrete on the floors within Store 2a and Store 2b. Arguably, the mention of this feature implies that there was an incendiary fire. S/N E9Xd0bP2u0el6DNndbxm8g [86] Spalling refers to the process of breaking, chipping or flaking of the concrete. The evidence of spalling does not necessary mean that the fire was incendiary. Spalling may be caused by exposure to any high rate of heating by flame or high levels of radiation of any fuel. Alternatively, it may be caused by the rapid cooling of heated mass of concrete. [87] Both the 1992 edition of the NFPA 921 and the 2017 edition of the NFPA 921 caution against misinterpreting spalling as evidence of incendiary fire. The 2017 edition states as follows:

6.2.5.2 The presence or absence of spalling at a fire scene should not, in and of itself, be construed as an indicator of the presence or absence of liquid fuel accelerant. The presence of ignitable liquids will not normally cause spalling beneath the surface of the liquid. Rapid and intense heat development from an ignitable liquid fire may cause spalling on adjacent surfaces, or a resultant fire may cause spalling on the surface after the ignitable liquid burns away. [88] In fact, DW-4 agreed during cross-examination that spalling is a discredited indicator and does not provide any basis for a deliberate fire in the absence of any scientific evidence of an ignitable liquid. [89] Accordingly, it is my judgment that the insurers have not shown from the scientific evidence that the fire at Lot 53 was a deliberate act at all. [90] The lack of any scientific evidence to establish incendiary fire does not at all mean that the insurers are precluded from relying on non-S/N E9Xd0bP2u0el6DNndbxm8g scientific evidence to prove the same. However, in such cases, the Court must exercise greater scrutiny of the circumstantial and non-scientific evidence, taking care not to draw any negative inferences from a particular fact without also considering the other plausible innocent explanations that are proffered. The Court must examine whether the fire investigator and or adjuster has succumbed to cognitive bias, for example, confirmation bias which is a tendency - existing beliefs or hypothesis while ignoring or dismissing evidence or explanations that contradict them. [91] With the aforesaid caution in mind, I shall now turn to the examination of the non-scientific evidence. Strategic Arrangement of Combustibles Narrative [92] berate fire is the presence and arrangement of combustibles and other materials within Lot 53. More specifically, it is contended that combustibles such as corrugated cardboards stuffed in cartons, flat cartons, layers of corrugated cardboards and ignitable liquids (including bottles indicated to be engine oil) had been strategically and meticulously distributed throughout Lot 53 to ensure maximum destruction by fire. By this, FSM has casted a sinister character to the arrangement of the goods as found in the building at the time of the fire. For Strategic Arrangement of Combustibles Narrative S/N E9Xd0bP2u0el6DNndbxm8g [93] Before embarking on the aforesaid narrative, FSM appears to be taken inconsistent positions relating to the presence of 3 truckloads of goods that were delivered to Lot 53 on 4.8.2012, the eve of the fire. On the one hand FSM contended that PW-narrative on the delivery of 3 truckloads was a mere fabrication due to the absence of documentary proof, however, Strategic Arrangement of Combustibles Narrative, the Plaintiffs had purportedly orchestrated the strategic and systematic placement of the corrugated cardboards along the aisle of the racks and had stuffed these combustible cardboards between the mufflers and exhaust pipes to ensure maximum fuel load. This narrative is based on there being actual delivery of the 3 truckloads of goods on 4.8.2012 so that there could be meticulous setup and arrangement of the combustibles and other materials on the floor and aisles of the building in Lot 53 with the intention of increasing the fuel load. FSM cannot blow hot and cold. [94] Notwithstanding the aforesaid, FSM asserted that there was no documentation to substantiate the 3 truckloads of deliveries. However, both PW-4 and PW5 have maintained a consistent stand throughout the trial on the non-availability of the documents and information requested by the insurers since the same had been destroyed by the fire. Further, there is no contemporaneous documentary evidence adduced by FSM that they had made specific requests to SPA for any documentary proof of the delivery of the 3 truckloads of goods at all. In fact, there is also no evidence that FSM had even interviewed the 2 foreign workers who had worked that day to unload the goods from the 3 trucks. To my mind, based on the absence of any specific requests from SPA to S/N E9Xd0bP2u0el6DNndbxm8g substantiate the delivery of the 3 truckload of goods prior to the commencement of these suits, it seems to me that the insurers only goods arriving on 4.8.2012 after the suits are filed and in the midst of their preparation for this action. [95] Accordingly, with respect to learned counsel for MSIG, the contention that the Plaintiffs have failed to discharge their burden of proof that there were three truckloads of stocks delivered to Lot 53 on 4.8.2012 cannot be right. The insurers had not specifically made this an issue and had not required SPA to furnish proof of the delivery during their investigations. They cannot now place the burden on SPA to substantiate the existence of the three truckloads only after years later when the suits are filed. [96] In any case, to my mind, the actual presence of the corrugated cardboards, unpacked goods and plastic bottles placed along the aisles and in the building is consistent with the testimonies of PW-4 and PW-5 that there were indeed 3 truckloads of goods that were delivered to Lot 53 on 4.8.2012. [97] Strategic Arrangement of Combustibles Narrative as part of a nefarious and very time-consuming setup to burn the warehouse, I agree with learned counsel for the Plaintiffs fixation of its own narrative appears to have clouded its objectivity in its investigation and interpretation of the facts. S/N E9Xd0bP2u0el6DNndbxm8g Empty cartons and boxes neatly arranged along aisles [98] To start, I will deal with conclusion of incendiary fire premised on the following observations:

empty cartons or boxes were arranged neatly on the aisles between the racks with auto parts; and

flat cartons were arranged on the floor along the left in the show room. Whilst boxes of combustibles (said to be engine oils and/or plastic parts such as light bulbs) were arranged on the right. [99] PW-4 testified that the corrugated carton boxes and flat cartons were placed on the floor along the corridor of the store by 2 foreign workers as a temporary measure. Owing to the substantial volume of stocks that were delivered on 4.8.2012, there was simply insufficient time for the workers to arrange the goods at the designated racks and in an orderly manner. As a result, decision was taken to unload the goods at the empty spaces in the building. The workers were told to return the next working day to place the stocks at their specific designated racks. More specifically, PW-4 explained that 2 lorries entered the Left Extension and the stocks were unloaded at the empty spaces in the Left Extension, Store A and Store 1. The third truck went into the Rear Extension and the stocks were unloaded and stored in Stores 3 and 4. Pending the stocks being moved to their designated places in the building, the empty cartons boxes and the flat cartons which would be used to house the stocks delivered were placed along the aisles and the S/N E9Xd0bP2u0el6DNndbxm8g boxes containing bottles of engine oil were placed on the floor temporarily. [100] In this connection, I it would not be unusual in the circumstances for the truckers, wanting to deliver the goods and depart quickly, to have assisted the two foreign workers to unload the stocks into the building as well. Indeed, this was conceded by DW-4 during cross examination: Alright. So, insofar as location is concerned, Mr Yu, you would agree or I'm going to suggest to you that they were two foreign workers, possibly assisted, may or may not, possibly assisted because you don't know, by the three lorry drivers chucking these things, right? Yes. Would you agree that can explain why you found these things in multiple locations? If they put it there. Possible, right? [101] To my mind, it is a perfectly plausible explanation that the corrugated cardboards, flat cartons and the stocks were stacked inside the building along the aisles between the racks and on the floors at the Rear Extension, Store A, Store 1, Store 3 and Store 4 at the time of the fire because there was no time to place everything at their intended locations on 4.8.2012. [102] I agree with PW-opinion that FSM should and ought to have considered the alternative hypothesis that the corrugated cardboard boxes and flat cartons were stored along the aisles between the S/N E9Xd0bP2u0el6DNndbxm8g racks pending the placement of the stocks at their intended and permanent locations the next day. The fact that these cardboards loads. If the intention was so, it would not be necessary to have taken the trouble to arrange them neatly at all. Corrugated cardboards inserted between mufflers [103] DW-4 also pointed to the cardboards arranged amongst the non-combustible stock as part of the Strategic Arrangement of Combustibles Narrative. [104] In this regard, PW-4 in his evidence-in-chief testified that the more expensive exhaust pipes that were stored in Lot 53 included those intended for luxury or classic cars. He explained that the corrugated cardboards were inserted between these exhaust pipes or mufflers in order to prevent them from being scratched, dented or damaged. [105] PW-7 took note of PW-that the use of the corrugated cardboards as protective materials to the mufflers is a plausible alternative explanation for their presence between the mufflers. In fact, PW-7 referred to photograph 224 in that shows that the cardboard conformed to the shape of the muffler. Again, it would not have been necessary for SPA to take the added trouble to properly shape the corrugated cardboards to cover the mufflers if the intent was merely to act as fuel loads. S/N E9Xd0bP2u0el6DNndbxm8g [106] However, PW-was never discussed and considered at all. Location of Empty Bottles [107] Aside from flat cartons and corrugated cardboards, DW-4 also observed that empty engine oil bottles packed in cartons were arranged amongst the cartons with bottles filled with engine oil which according to him would have on a cursory post-fire inspection, given an impression that all were stock-in-trade. The suggestion is that the empty bottles were intentionally mixed with bottles filled with engine oil in order to exaggerate the loss to the insurers. [108] Under cross examination, DW-3 explained that his complaint relates not to the packaging of the empty bottles but was confined to the empty bottles being placed all over and not in any designated location. Upon noting DW-learned counsel for the insured explored the possibility that SPA could have innocently put S/N E9Xd0bP2u0el6DNndbxm8g the empty bottles wherever there was space to do so. Critically, DW-4 agreed that it was a possible innocent explanation to the placement of those empty bottles. So, if that space has already been taken up by other parts, would you agree that then they will put it wherever they can find space? Yes. Ok. So, in that context, would you agree that it could have been innocent, the fact that they left it all over the place, you agree? Possible. [109] In fact, PW-d repacking and reselling engine oils for high-end vehicles. Empty bottles and engine oil were kept in Lot 53 for manual refilling to be supplied in Malacca if there was an urgent demand. Accordingly, the presence of empty engine oil bottles in the building was needed placed together with bottles filled with engine oil and or in a haphazard manner cannot, with respect, be taken to suggest, without more, a motive to inflate the claim to the insurers in the event of fire, what more as part of an intentional plan to deliberately set fire to the building. Access to Lot 53 [110] DW- -examination was that PW-3 and PW- 4 were the only ones who had the keys to Lot 53 and as such the S/N E9Xd0bP2u0el6DNndbxm8g overall set up required for the pre-planning of the fire could not have been done by an intruder or outsider(s) without their connivance. [111] However, there is no evidence of any intrusion into Lot 53 on the night of the fire on 5.8.2012 at all. In fact, DW-4 conceded that his contention is premised on a mere speculation. JUDGE Alright. So, actually in your report, there is no evidence at all neither did you in any way gave an opinion that in all likelihood there was an intrusion and the intrusion was, you know, in a particular manner. You did not say that, isn't it? No. I just gave a cause here. JUDGE So, it's just a hypothesis. Yes. JUDGE As another word, it's a speculation on your part, isn't it? Yes, Yang Arif. [112] DW-4 testified that PW-4 had released the three dogs after leaving Lot 53 in the evening of 4.8.2021. There was no investigation done at all to ascertain the whereabout of PW-3 and PW-4 during the night of the fire. There is no evidence that either of them was at Lot 53 on the night of the fire. However, there is evidence that the dogs were still uncaged at Lot 53 during the fire as the fire fighters had to also deal with the dogs when they were dousing the fire. In other words, there is no evidence that the dogs were either restrained or rendered immobilized. This means that in all likelihood, there were no intruders entering into Lot 53 on the night of the fire. S/N E9Xd0bP2u0el6DNndbxm8g Failure to Cooperate and Financial Motive [113] Maphilindo also contended that PW-4 and PW-5 were uncooperative in their investigation and this suggests that they had of the stocks is unsupported. More specifically, Maphilindo claims that:

SPA failed to provide sufficient and reasonable proof to support their claim in respect of the damaged stock;

(b)

SPA refused or failed to give the stock codes as at 31.03.2012 despite repeated requests;

SPA refused or failed to give the sales and purchase invoices in respect of transactions 3 years prior to the fire;

SPA unsupported by the last closing inventory stated in the accounts ending 31.11.2011;

there is a variance of 159,531 items of stock between the physical count done by Maphilindo and the stock list at 31.03.2012 provided for by SPA;

some of the suppliers and customers in the list provided for by SPA appear to have no dealings with SPA and/or are not in the same trade, raising serious doubts on whether SPA can S/N E9Xd0bP2u0el6DNndbxm8g sustain a business with a purported turnover in excess of RM108 million as claimed in the financial year ending 2011. [114] -4 and PW-5 have denied that SPA was uncooperative in the investigation. They testified that the relevant documents were destroyed in the fire. In fact, Ong Beng How (DW-9) from Maphilindo also agreed (during cross-examination) that PW-4 and PW-5 had notified him of this and he had no reason to doubt the same. And they told you that the documents all burned in the fire, correct? ONG Yes. Right, and I asked you whether you have reason to doubt that and you said no. Yes? ONG Yes. [115] sustainability as part of its narrative that SPA has a financial motive to deliberately cause the fire in order to shift its focus from the auto parts business to the property development business. In this regard, DW-9 made the following concessions during cross examination:

DW-9 never considered the publicly-available information vis- à- company reported revenue over RM260 million;

DW-9 never considered the publicly-available information vis- à-vis S-fire;

companies required funds for their projects;

able this business was more lucrative than the auto parts business;

DW-9 confirmed that the fact that the development projects had in fact proceeded in the absence of any monies being paid out undermined his opinion on the so-called motive. [116] The aforesaid put paid to the claims that SPA was uncooperative deliberately set fire to its building and stocks. Increase in Insurance Coverage [117] In January 2012, the year the fire happened, there was an increase in insurance coverage from RM23 million to RM55 million. In this - evidence-in-drastic increase of the policy coverage to 5 times more than their DW-12 testified that the sudden increase in the insured amount was not supported by the stock inventory of 2012, which was only around RM17 million and not RM55 million. This is contended to be also strong circumstantial evidence on the motive and timing of setting the deliberate fire. S/N E9Xd0bP2u0el6DNndbxm8g [118] However, DW-million at the time of the increase of the coverage is a inancial position. During the course of cross-examination of DW-12, it became apparent that the insurers had confused the reporting of the financial position. In truth, the ear or the average for the entire financial year ending 31.12.2012 drawn up according to Malaysian Private MPERS requires the statement of financial position or otherwise known as the balance sheet to pr [119] In fact, to RM109,586,708.00 for the financial year ending 2012. This sum is almost double the revised insurance coverage and the breakdown of the items is as follows: a) RM10,678,215.00 31.12.2011 which was then carried forward to 1.1.2012; b) there is RM116,689,085.00 worth of inventory passing c) RM17,780,592,00 was once again reported as the value of [120] More significantly, there was a good commercial reason for the increase in the insurance coverage for Lot 53. This was because in S/N E9Xd0bP2u0el6DNndbxm8g the beginning of 2012, SPA had moved all the auto parts from the adjacent Lot 59 to Lot 53 because of its decision to dedicate Lot 59 for the manufacturing of storage tanks for Petronas. [121] In Interim Report, it is stated that the increase in the insurance coverage was made . The authors of observations:

3.12 Insurers conducted a risk survey on 19 August 2011. A copy of the risk survey report is enclosed as Appendix A.

3.13 In the risk survey report, the previous losses (for the preceding 3 years), meaning for the period from 2009 to 2011, was declared as "None"

3.14 On 20/1/2012, the following endorsements were passed as advised by MSIG Insurance (M) Berhad:-

3.14.1 Sum Insured for stock in trade on Lot 59 was deleted as it has shifted the stocks to Lot 53.

3.14.2 Sum Insured for stocks in Lot 53 has been increased from RM 30 millions to RM 55 millions.

3.14.3 Lot 59 has changed occupation from warehouse to manufacturing/fabrication. [122] PW-5 -examination as to the increase of the observations in their report particularly that the endorsements were Tharminder: Now, you were asked about the increase in the insured amount from RM30 million to RM55 million, who's idea was it to increase the amount from the S/N E9Xd0bP2u0el6DNndbxm8g coverage amount from RM30 million to RM55 million? Boon: I was informed by the insurance company that I need to increase the amount. Tharminder: Do you know why the insurance company made that suggestion? Boon: Because we combined the stocks in both the Lot 59 and 53 together. We moved our stocks in Lot 59 into Lot 53. Tharminder: Can you just tell us if there was any process involved in this increase of the sum from RM30 million to RM55 million, before the increase, is there any process involved? Boon: Prior to that, I have bought insurance for Lot 59, since now I am moving the stocks in 59 combined together in Lot 53, the insurance company wants me to increase my amount insured. YA: For Lot 53? Tharminder: Yes, my Lord. YA: Alright. [123] PW-undermines the narrative that SPA had increased the coverage from RM 23 million to RM 55 million with the motive to make a claim by setting fire to Lot 53. Accidental Fire [124] Given that there is no evidence of any intrusion and there is also no evidence of the presence of any accelerants and given further that FSM has not been able to determine how the fire could have been S/N E9Xd0bP2u0el6DNndbxm8g deliberately ignited, this Court is left with the only remaining possible cause for the fire, namely that the cause of fire was accidental as opined by Bomba to be due to arcing from the electrical wirings at the Distribution Board. [125] In fact, the extent of the damage at the rear extension where the Distribution Board was located is consistent with the conclusion reached by Bomba. The collapse of the zinc roof at the area where the Distribution Board was housed points to the exposure of high temperature and heat generated for a considerable amount of time. The damage was significantly more extensive in comparison with the other parts of Lot 53. It is also consistent with the damage to the copper conductors housed within the Distribution Box and PW-6 observation of the effect of oxidation within the framework of the Distribution Box which is visible from Gambar 10 of PW- . [126] To my mind, was a result of the external fire is inconsistent with the evidence showing that the melting was isolated in one section and not spread consistently throughout the Distribution Box which one would expect to find in the case of external fire consuming the entire Distribution Box. [127] In fac origin of the fire was within the rear section of the warehouse . [128] Further, FSM has not been able to support its narrative that the insured had a motive in having its building and goods at Lot 53 being S/N E9Xd0bP2u0el6DNndbxm8g burnt down and destroyed. There is no evidence that SPA was in any financial trouble and or that its business was otherwise than PW-4 and PW-5 were seeking to re-focus their business to the more lucrative property development business is not supported by any evidence. In fact, it is not in dispute that even after the fire, SPA had continued with its car spare parts business. In addition, the narrative that SPA had slow-moving and obsolete inventory which it would some how benefit by the fire is simply unsupported by any evidence at all. ts required by vintage cars and cars which are no percentage of the inventory and more importantly, there is no evidence that there was no longer demands for them. [129] To my mind, absence any motive, there must be strong scientific evidence to establish that the fire was deliberately set up. It seems to me illogical that SPA would want to see its business destroyed, risks discovery and criminal charges not to mention the consequential reputational loss to PW-4 and PW-5 and their family by deliberately setting fire to its business, building and assets when there is no motive for doing so. In this regard, it also does not make sense that the Plaintiffs would park the luxury cars at Lot 53 if it was the intention to set fire on the building. The sums that would be recovered under the cars insurance policies for total loss would be significantly less than their resale values at the time of fire. It also does not make sense for PW-5 to instruct the workers to wash the cars before leaving the premises on 4.8.2012 if it was his intention to burn down the building that night. S/N E9Xd0bP2u0el6DNndbxm8g Witnesses [130] For completeness, DW-4 has referred to the recollection of 4 witnesses that FSM had interviewed post the fire in support of its narrative that the fire did not originate from the rear extension of the building. In FSM that upon discovery, the fire in lot 53 was already fully developing [131] However, none of the witnesses interviewed was called to testify and be subjected to cross examination. The testimony of DW-4 as to what the witnesses said to him is therefore inadmissible being hearsay evidence. Accordingly, this Court has not considered what the witnesses said as recounted by DW4 as part of the evidence in this action. Answer to 1st Question [132] Accordingly, based on my analysis of both the scientific and non-scientific evidence above, I would answer the 1st Question as follows: The fire that broke out at Lot 53 on 5.8.2012 was accidental and not deliberately caused. Deliberations and Analysis of 2nd Question [133] The 2nd Question is relevant only to Suit 330 involving MSIG. The 2nd Question reads as follows: S/N E9Xd0bP2u0el6DNndbxm8g Goods Warranty A of the Schedule which permits the storage of not exceeding 3600 litres of all liquids including kerosene oil and diesel giving off flammable vapour with flash point not less than [134] There are 2 limbs to the Storage of Hazardous Goods Warranty A the Warranty exceed 3,600 litres and (b) that the flash point of the liquids shall not be less than 93ºC. [135] Put simply, SPA will in breach of the Warranty if the Court is satisfied on the balance of probabilities that at the time of the fire, there was present in Lot 53 more than 3,600 litres of liquids with flash point of not less than 93ºC. Both the limbs must be present for the breach to occur. In other words, if the volume of liquids with flash point of not less than 93ºC found at Lot 53 is found to be 3,600 litres or less, then, there will be no breach of the Warranty. [136] There is no dispute that MSIG bore the burden to demonstrate that SPA is in breach of the Warranty. T Bond Air Services Ltd v Hill [1955] 2 QB 157 held as follows: an insurer to prove an exception, so it is for him to prove the breach of a condition which would relieve him from liability in respect of a particular loss . S/N E9Xd0bP2u0el6DNndbxm8g [137] This aforesaid proposition has since been affirmed by the Supreme Court in Malaysia National Insurance Sdn Bhd v Malaysia Rubber Development Corporation [1986] 2 MLJ 124. [138] had breached the terms of the exceeded the 3,600 litres permitted under the Warranty. In this regard, MSIG has relied on the volume set out in Report claiming that 2 Summary An assessment revealed that there were at least 3,779 litres of oil/liquid in the premises at the time of the fire that had flash points not less than 93°C (1,770 litres of oil inside the 200-litre drums and 2,064 litres of engine oil in 4-litre yellow plastic bottles). The quantities inside the burnt warehouse exceeded the 3,600 litres permitted under the warranty. [139] However, some 7 years after the issuance of Report, FSM issued its Warranty Rebuttal Report where FSM that is, 55 litres of oil or liquid more than figure initially reported by FSM. However, since no amendment has been made to its pleadings, this Court will [See: Federal Court in Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1]. [140] of oil or liquid in Lot 53 with flashpoint of not less than 93ºC. it is S/N E9Xd0bP2u0el6DNndbxm8g necessary to set out and understand the methodology employed by FSM in coming to its determination. [141] Firstly, FSM claims that post fire, there was found a total of 516 plastic bottles (4 litre) at Lot 53 which translates into 2,064 litres of liquid: Physical count was carried out at the two selected piles (relatively larger piles) of partially burnt and unburnt engine oil bottles. In this exercise, only those bottles or burnt bottle remains that obviously contained oil (with discernible caps and seals) were counted (see Photographs 10 and 11). The counting exercise revealed that there were 86 cartons, or 516 bottles containing 2,064 litres of engine oil. [142] In support of the existence of the 516 plastic bottles, FSM referred to 2 photographs which are reproduced in the Report and shown below:

FSM also claims that it found a total of 38 drums (200 litres) in Lot 53 post fire as stated below:

1.1 Oils in 200-litre Drums There were total of thirty-eight (38) 200-litre drums kept in the rear extension, Stores 3 and 4, as shown in Figure 1 (also see Photographs 1 - 6). The drums had been arbitrary designated/labelled as A1 - A16, B1 - B5, C1 - C7, D1 - D8 and E1 - E2 (refer Figure 1). We collected samples of the liquid/remains from each drums. Examination of each drums revealed the following. [143] FSM had used - to measure the quantity of liquid from each drum. FSM explained the manner in which t - in the following manner:

3.2.2 Tools for oil level measurement Oil is a good insulator and not electrically conductive, as opposed to water (such as from rain and fire fighting) which is electrically conductive. Water and oil are immiscible. A custom-designed gauge (a PVC pipe with a multimeter-probe assembly attached; see Photographs 11-series), essentially a dip-stick that could detect the presence of water, was used to measure the levels of oil in the drums. The PVC pipe together with a ruler was the dip-stick for the measurement of the level of oil as indicated by the oil stains on the 'stick' (PVC pipe). The multimeter-probe assembly checked for the electrical conductivity of the liquid inside the drum. Photographs 11-series illustrate the working. There was no reading on the multimeter when the end was dipped into a sample of SPA engine oil taken from the site. A reading was indicated on S/N E9Xd0bP2u0el6DNndbxm8g the multimeter when the end was dipped into water indicated that the liquid (water) was conductive. [144] On the taking of measurements using the-the attached multimeter, DW-4 confirmed during cross examination that the user would have to pre-set the voltage or ampere of the multimeter and thereafter to record the readings of the same to determine for the electrical conductivity of the liquid in the drums. [145] DW-can be summarised as follows:

first, FSM identified there were 38 drums containing liquids in Lot 53;

second, FSM would puncture a hole unto each drum and dipped the said custom-made PVC tube attached to the multimeter into the hole. If no reading was recorded, FSM assumed that the liquid is oil and not water;

third, FSM took out the PVC tube to measure the liquid stain on it;

fourth, FSM applied a mathematical formula for a volume of cylinder based on, amongst others, measurement of the liquid stain and radius of the drum. [146] DW-4 confirmed during cross examination that measurement of 3,779 litres is based on a combination of physical S/N E9Xd0bP2u0el6DNndbxm8g count of the plastic bottles and estimation from the amount of liquid present in the drums based on the mathematical formula. JUDGE Can I just understand, Mr Yu the 3834 litres is based on the physical count or the mathematical computation? Sorry, Yang Arif. I didn't - JUDGE Is the 3834 litre based on the physical count or the mathematical computation? That one is combined of two. One is the one that measured in the drum and second on is on the physical of the 4-litre bottle. [147] (which MSIG had relied on without any independent investigation), I agree with PW-s opinion that the figure is simply unreliable being wholly unsubstantiated by raw data or measurements available for verification and is based very much on estimation and unsupported data. [148] I shall deal with the issues relating to the computation of liquids in the plastic bottles and the drums separately. Computation of liquid in plastic bottles [149] Firstly, the actual existence of a total of 516 plastic bottles said to be found at Lot 53 post fire which translates into 2,064 litres of liquid is not supported at all by any empirical evidence. As alluded to above, what FSM had done was to rely on 2 photographs to assert that a physical count had been conducted on 2 piles of partially S/N E9Xd0bP2u0el6DNndbxm8g burnt and unburnt engine oil plastic bottles. However, clearly from these photographs, the bottles were not arranged in any logical fashion to enable anyone to possibly ascertain that there were indeed 516 plastic bottles in existence. The 2 photographs also do not clearly show the caps and seals which PW-4 testified as indicator as to whether the plastic bottles were empty or filled. [150] In contrast, FSM was able to adopt a more empirical approach towards counting other items found in Lot 53. For examples:

FSM had arranged 21 of 18-litre metal containers which can be counted within 1 photograph:

FSM had arranged 11 fire extinguishers within 1 single photograph: S/N E9Xd0bP2u0el6DNndbxm8g [151] Whilst DW-4 did testify that he had personally counted the number of the engine oil plastic bottles at the site, there is simply no available means for this Court to verify his testimony. This includes SPA the benefit of the doubt. [152] In fact, the insurers through their investigators and adjusters appear to have carried out an arithmetic estimation as opposed to or 516 cartons suggests that they only counted the number of cartons and simply multiplied that by 6 to arrive at 516 bottles. To this they multiplied 4 (each plastic bottle had 4 litre capacity) and arrived at 2,064 litres. [153] Furthermore, it is not clear to this Court how DW-4 could conclude DW-4. This also contradicts FSM SPA had placed gether with the filled bottles to-in- . [154] The aforesaid casts much doubt to DW-were 2,064 litres found at the site based on the presence of 516 engine oil plastic bottles. S/N E9Xd0bP2u0el6DNndbxm8g Computation of liquid in the drums [155] As regards the existence of 38 drums at Lot 53, FSM had specifically identified them, labelling the same as A1-A16, B1 B5, C1-C7, D1 D8 and E1-E2.

1.1 Oils in 200-litre Drums There were total of thirty-eight (38) 200-litre drums kept in the rear extension, Stores 3 and 4, as shown in Figure 1 (also see Photographs 1 - 6). The drums had been arbitrary designated/labelled as A1 - A16, B1 - B5, C1 - C7, D1 - D8 and E1 - E2 (refer Figure 1). We collected samples of the liquid/remains from each drums. Examination of each drums revealed the following. [156] Unfortunately, apart from identifying the drums by labels, there were no photographs of these 38 drums produced before this Court for visual verification. [157] In any case, even assuming for a moment that there were in fact 38 drums as contended by DW-4, it must be noted that the assessment and measurements of the volume of liquid in the drums were only conducted 27.9.2012 and 5.10.2012, some 53 days after the fire broke out on 5.8.2012. In this regard, DW-4 acknowledged that those drums (however many they were) were left exposed to the elements and contaminants. This much was admitted by DW-4 as follows: These drums were in fact left exposed for about two months after the fire? Yes S/N E9Xd0bP2u0el6DNndbxm8g And the roof around most of these areas were not there, allowed rain water and other things to come in? Yes. Correct. So, but you recognised that there is a possibility that other liquids can be present in these drums? You mean water? Yes. Yes, is possible. Possible, ok. We don't know. Yes because nobody actually did that process to take out the contents. [158] The possibility of contamination notwithstanding, there is also no available means placed before this Court for anyone to verify if the measurements taken by DW-4 using the custom-made dip-stick with the multimeter were accurately taken and computed. More specifically, the readings of the multimeter taken before and during or after the measurements were never produced before this Court at all. Also, the accuracy of the dip-stick device depends very much on whether the same was properly inserted right to the bottom of the drums. Again, there is no evidence that this was properly done at all times save for the say-so by DW-4. So, would you agree that it is possible in a drum, where you have oil and water, it will depend how deep or shallow you push the device into as to whether you will get one reading or the other. You agree? The device will go to the bottom. Sorry? JUDGE The device will go to the bottom? Yes. S/N E9Xd0bP2u0el6DNndbxm8g JUDGE Yes, Mr Tharminder. So, the device is touching the bottom, Mr Yu? We know that if anything, it will be, water will be at the bottom. So, that's why I put the device going into the bottom. So, if there is water inside. then it will give a reading. If it gives zero reading, so that means the liquid is non-conductive. [159] In fact, during cross examination DW-4 also conceded that because the probes could also touch the metal drum, there is a possibility that it would be testing the conductivity of the metal drums and not as intended to test the type of liquid inside the drum. Right. Now, would you agree that what you were testing were actually metal drums? Yes. So, if you put the device to the bottom and the device, the probes are touching the metal, they are going to conduct, isn't it? Because you have a completed circuit. Yes. But - [160] In short, it has not been satisfactorily demonstrated to this Court that the dip-stick device deployed by DW-4 to measure the quantity of oil in the drums was indeed a reliable device at all. Indeed, there is no evidence that the dip-stick device has been accepted anywhere or by established authorities as a reliable and proven method to obtain measurements of the quantity of oils in the drums as in this particular case. [161] Quite apart from the above, there is yet a further issue wit computation of the volume of oils in the drums. FSM claims to have S/N E9Xd0bP2u0el6DNndbxm8g relied on a formula set out in an unidentified online portal for the measurement of the volume of the liquids found within the horizontally-placed drums: Calculation of the volume of a partially filled horizontal drum is more complicated, as it involves the calculation of an area of a circular segment multiple by the length of the drum. There are many online websites detailing the calculation of partially filled horizontal cylinder drum/tank, and also online calculators to calculate the volume of liquids inside the partially filled horizontal drum/tank. An example is; https://www.hagra.nl/glossary/convertors/horizontal-tank-volume-calculator.html. Yet, the formula for the measurement of the horizontally-placed evidence. There is also no verification of the appropriateness or otherwise of the formula used. [162] Further, during cross examination of DW-4, he accepted that some of the drums found at Lot 53 were clearly distorted post-fire and were no longer in their original shape. Quite obviously, the formula used by DW-4 to calculate the volume of liquids in the drums assumes that the drums were in their original perfect condition. Whether the formula can still be relied upon in cases where the drums are no longer in their original form has in fact been put in doubt. In fact, DW-the fixed formula cannot be applied in the present case given the fact that the drums were no longer in its original shape and ultimately, S/N E9Xd0bP2u0el6DNndbxm8g would have bearing to the so-called total volume of liquid. For completeness, DW-Now, would you agree if that's the case, you won't have a consistent circumference to apply a formula to calculate the volume? Yes. Because the formula is on the assumption that the circumference will remain the same for the entire part of the container or whatever it is that you are measuring to get the volume for, correct? Repeat that again? That the formula that you apply for this vertical ground, the formula requires the circumference to be consistent throughout, yes? Yes, circumference, rather diameter. Yes, diameter, to be consistent. So when you have a bowl shape, Ms Ling, the formula can no longer apply because the diameter is no longer consistent. The diameter is going to reduce as it comes. In actuality, yes. [163] The cumulative effect of the aforesaid is that the suitability of the methodology comprising the use of the dip-stick with the use of the mathematical formula relied upon by FSM to determine the volume of liquids in the drums is suspect and wholly unreliable. No evidence was tendered to this Court to inform that the methodology employed is in fact an approved method of measurement by any authorities. Neither is the Court informed of any required steps and or care that must be taken in handling the dip-stick and multimeter to avoid any wrong readings or contaminations. S/N E9Xd0bP2u0el6DNndbxm8g [164] In this regard, it is not insignificant that DW-4 in fact conceded that this entire process of determining the actual volume of liquids in the drums could have been done using measuring bucket instead of the convoluted arithmetic approach adopted by FSM. DW-concession during cross examination is reproduced below: So, now, you, when it came to measuring, Mr Yu, yes, do you agree that you decided to take an arithmetic approach rather than actually measuring the volume? JUDGE Can you explain that? I don't understand. Yes, My Lord. What Mr Yu did was he took that ruler, stuck it into the ground and it gives you the height of the liquid that is in. He then applies a formula to calculate the volume. JUDGE Yes. As opposed to? As opposed to actually putting the liquid in a measuring bucket or some sort to measure actual volume. JUDGE Yes alright. Mr Yu, am I right? Yes. [165] In the premises, it is the judgment of this Court that the insurers have not discharged their burden of proof that the Warranty has been breached. The conclusion that there was at least 3,779 litres is simply unreliable and as a result is not established at all. There is no further need to even consider the second limb to the warranty, namely, that the flash point of the liquids shall not be less than 93ºC. [166] The 2nd Question is therefore answered in the negative. S/N E9Xd0bP2u0el6DNndbxm8g Conclusions [167] In the light of the aforesaid, to avoid any doubt, I hereby set out before this Court for determination: a) as regard the 1st Question, namely, whether the fire that broke out at Lot 53 was accidental or deliberately caused, this Court finds that the fire was accidental and not deliberately caused; b) as regard the 2nd Question, namely, whether SPA was in breach of the Storage of Hazardous Goods Warranty A of the Schedule to the Insurance Policy which restricts the storage to 3600 litres of all liquids including kerosene oil and diesel giving off flammable vapour with flash point not less than 93 °C, this Court finds that the Warranty has not been breached by SPA. As such, MSIG is not entitled to avoid liability pursuant to the Warranty. [168] As both the 1st Question and the 2nd Question have been answered in favour of the Plaintiffs, it is only just that the costs for the trial be borne and paid for by the insurers in the sum of RM 200,000.00 subject to the payment of allocator in the following apportionment: a) in respect of Suit 541, 542 and 543, costs of RM 30,000.00 each subject to allocator; b) in respect of Suit 329 and 330, costs of RM 55,000.00 each subject to allocator. S/N E9Xd0bP2u0el6DNndbxm8g Dated the 14th day of March 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:

Counsel for Plaintiff in all suits Mr. Tharminder Singh together with Mr. Johan Taing Chee Fae, Mr. Hazwan Lee Bin Haris Lee, Ms. Hida Yazlin Binti Mazlan, Mr. Alvin Dev Singh and Ms. Jane Chan (Messrs. Shu Yin, Teh & Taing)

Counsel for Defendant in Suits 329, 541, 542 and 543: Mr. Thayakugan A/L Rajendram together with Ms. Puvarnisha Paskaran and Mr. Leong Zheng Yang (PDK) (Messrs. Othman Hashim & Co.)

Counsel for Defendant in suit 330: Tunku Farik Bin Tunku Ismail together with Ms. Tan Sixin, Ms. Veronica Pee Kui Yee and Wong Hui Yi (Messrs. Azim, Tunku Farik & Wong)

Slattery v Mance [1962] 1 All ER 525 (HC)

AmGeneral Insurance Bhd & Anor v Veheng Global Traders Sdn Bhd & Anor and other appeal [2017] 1 LNS 2289 3. Veheng Global Trades Sdn Bhd v AmGeneral Insurance Bhd (formerly known as Kurnia Insurance (M) Bhd) & Anor and another appeal] [2019] 4 MLJ 581 4. MPPL & Anor v CAS [2024] 4 MLJ 524 5. Bond Air Services Ltd v Hill [1955] 2 QB 157 6. Malaysia National Insurance Sdn Bhd v Malaysia Rubber Development Corporation [1986] 2 MLJ 124 7. Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1