Tm Technology Services Sdn Bhd v Pestech Sdn Bhd (WA-22NCvC-488-08/2023)

This was a claim by the Plaintiff against the Defendant for negligence in carrying out drilling works at Jalan Enggang, Ampang which the Plaintiff claimed resulted in damage to its underground cables and disruption to the telecommunications services provided to its customers. 10/02/2026 11:37:32

After having considered the pleadings, the oral and documentary evidence and written submissions and oral clarification by the learned counsels representing the parties after a full trial, I had, on 12.12.2025, allowed the Plaintiff’s claim for the sum of

The Defendant is dissatisfied with my decision and is pursuing its right of appeal.

These are my full grounds of judgment for purposes of the appeal.

The Plaintiff is a private limited company incorporated under the laws of Malaysia and having its registered address at Level 51, North Wing Menara TM, Jalan Pantai Baharu, 50672 Kuala Lumpur.

By virtue of a Vesting Order dated 21.2.2023, the Plaintiff has taken over the assets and liabilities previously vested with Telekom Malaysia Berhad (‘TMB’) effective from 1.3.2023.

The nature of the Plaintiff’s business is to provide network infrastructure facilities, network services and last mile services for fixed and wireless consisting of broadband, messaging and voice.

The Defendant is a private limited company also incorporated under the laws of Malaysia with a registered address and business address at No. 26, Jalan Utarid U5/14, Seksyen U5, 40150, Shah Alam, Selangor.

The Defendant carries out business in the provision of comprehensive power system engineering and technical solutions for the design, procurement and installation of substations, transmission lines and underground cables for electricity transmission and distribution; manufacture of proprietary power system components and equipment; and investment holding. The Defendant is also a contractor registered with the Construction Industry Development Board Grade 7, Categories B, CE and ME and claims to have relevant expertise in the supply, erection and commissioning of 132kV and 275kV switchgears, ancillary equipment and underground cable work.

10.

Before the execution of the Project, a Contractors All Risks Insurance Policy was purchased with MSIG Insurance (Malaysia) Bhd (‘MSIG’) for the maximum sum of RM500,000.00 under third party liability for underground works for the period from 14.3.2019 until 13.3.2022 (‘Insurance’). Under the Insurance, TNB is the principal party and PTPSB the main contractor.

On 1.10.2020, TMB through its employee had received information from the TM Network Operation Centre that there was damage to its infrastructure at Jalan Enggang in front of Mira Cake House (‘said Location’).

Consequently, an inspection was carried out and it was discovered that there was damage to the copper cables, fiber optic cables and duct belonging to TMB (‘said Damage’).

On 6.10.2020, TMB’s employee lodged a police report regarding the information which was received in relation to the incident at the said Location, the inspection which was carried out and the said Damage.

A police report was also lodged on 8.10.2020 by PTPSB’s representative regarding the damage to TMB’s cables while trial hole works were being carried out on 6.10.2020 at around 2.30 a.m. at Jalan U-Thant near the KL Kids Club.

On 6.10.2020, TMB’s Manager wrote to the Defendant (‘6.10.2020 Letter’) to inform that the Defendant, through its agents and/ or employees, had caused the said Damage at the said Location and that TMB had commenced rectification works to restore the disrupted services to its customers in the affected area. An assessment of the losses and costs as a result of the said Damages was being carried out and the Defendant was put to notice to take the appropriate action or to inform the insurer immediately as TMB will be making a claim for damages against the Defendant in the near future.

The Defendant did not respond to the 6.10.2020 Letter.

A meeting or discussion was held on 8.10.2020 between the representatives of TMB, PTPSB and TNB.

The Plaintiff claimed that TMB had appointed third party contractors to carry out rectification works, namely temporary rectification works were carried out by Seven United Consortium Sdn Bhd (‘SUC’) while permanent rectification works were performed by Pembinaan Mohamed Nazir Meraslam Sdn Bhd (‘PMNM’).

On 7.11.2022, TMB issued a letter to the Defendant titled “Kerosakan Infra TM Di Jalan Enggang (Berhadapan Mira Cake) Pada 1 Okt 2020” (‘7.11.2022 Letter’) enclosing, among others, an invoice dated 2.11.2022 for the sum of RM1,170,654.85 (‘2.11.2022 Invoice’) and requesting that payment of the said amount to be made within 45 days from the date of the letter, failing which legal action will be taken against the Defendant.

By the letter dated 11.11.2022, PTPSB wrote to Mestari Adjusters Sdn Bhd (‘Adjusters’), referring to the previous correspondence dated 13.2.2021 whereby the Adjuster had asked for the detailed cost breakdown from TMB, and submitting the documents as requested because the documents were received from TMB only on 10.11.2022.

A meeting was held on 9.1.2023 between the representatives of TMB, the Defendant and the Adjuster.

On 9.2.2023, MISG sent a letter to the Insurance Management Department, Group Finance Division, TNB to inform that the Adjuster had finalised the claim and adjusted the loss to RM500,000.00 with the details tabulated in the attached Appendix.

An online meeting was then held on 23.2.2023 and 29.5.2023 between the representatives of TMB/ the Plaintiff and PTPSB followed by a physical meeting between the representatives of the Plaintiff, PTPSB and TNB on 21.6.2023 at the Plaintiff’s office.

On 13.7.2023, the Plaintiff's solicitors issued a letter of demand to the Defendant for the sum of RM1,170,654.85 being rectification costs incurred by the Plaintiff for the said Damage at the said Location.

PTPSB replied to the letter of demand on 24.7.2023, on a without prejudice basis, disagreeing to the amount claimed as it was allegedly inclusive of the long-term restoration works plus indirect costs such as warehouse, handling charges and administrative costs. According to PTPSB, these costs are not attributed directly to the said Damage and should no be unreasonably included in the claim. Without admission of any liability, PTPSB indicated that they would only compensate the immediate and direct costs which are incidental to the said Damage i.e. the cost of restoration or repair works to rectify the cables where it must be proven that such costs were caused by PTPSB in carrying out the HDD Works at the said Location.

On 29.8.2023, the Plaintiff filed the Writ and Statement of Claim (‘SoC’) against the Defendant where its cause of action was the tort of negligence.

Basically, the Plaintiff alleged that the Defendant was the contractor responsible for the Horizontal Directional Drilling works (‘HDD Works’) for the cable circuit route at the said Location and that the Defendant, through its agents and/ or employees, had caused the said Damage at the said Location which had disrupted TMB’s/ the Plaintiff's telecommunications services.

After rectification works for the said Damage was completed by the third-party contractors appointed by TMB, TMB had demanded for the payment of the rectification costs but the Defendant failed or refused to pay the same.

At all material times, the Defendant only disputed the quantum in relation to the said Damage and the Defendant’s allegations regarding its liability for the said Damage were never raised before the filing of the suit.

In the SoC, the Plaintiff pleaded, among others, that: “13. At all times, the Defendant had a duty to take reasonable steps to avoid the said damage while carrying out the horizontal directional drilling work for the said Project. However, the Defendant had breached this duty whereby the Defendant through its agents and/or employees negligently caused the said damage to the copper cables, fiber optic cables and ducts belonging to TMB and/or the Plaintiff. The particulars of the Defendant’s negligence are as follows: i. Failure of the Defendant to carry out the horizontal directional drilling and/or any related work at the said location with reasonable skill, expertise and care to avoid the said damage; ii. Failure of the Defendant to conduct any investigations and/or take appropriate measures before, during and after commencing the horizontal directional drilling work to avoid the said damage; iii. Failure of the Defendant to take adequate measures whether in terms of examination, inspection, testing and/or otherwise to confirm and verify the existence of any underground cables at the said location; iv. Negligence on the part of the Defendant that caused the said damage while carrying out the horizontal directional drilling work; and v. Failure of the Defendant to notify TMB as soon as the said damage occurred at the said location.

TMB and/or the Plaintiff had sustained loss and damage due to the Defendant's negligence as stated above amounting to RM1,170,654.85 being the cost of rectification works for the said damage that has been borne by TMB and/or the Plaintiff.”.

The Plaintiff claimed the sum of RM1,170,654.85 to be paid by the Defendant to the Plaintiff with interest and costs.

The Defendant denied the Plaintiff's claim and put the Plaintiff to strict proof to prove the Defendant’s liability and the details of the losses.

The Defendant’s pleaded case is summed up as follows:

that the Defendant was not the correct party that caused or was responsible for the said Damage;

that at the material of time, the Plaintiff did not have any signage or markers by the side of the road or anywhere nearby to indicate the existence or presence of the Plaintiff’s cables at the said Location. The utility map does not show the Plaintiff’s cables at the said Location;

that the Defendant was aware that the contractor who laid the cables at the said Location had obtained the necessary required permission, permit and/ or approval from the local authorities for the underground cable laying works for the Project at the said Location;

that the amount claimed by the Plaintiff was exorbitantly high, and included costs that were completely unrelated to the rectification or repair of the said Damage. The Adjuster had examined and calculated the Plaintiff’s claim in detail and was of the opinion that the amount in the 2.11.2022 Invoice was excessive.

whether it was mandatory for the Plaintiff to repair the said Damage by purchasing new and different types and variety of cables in a large quantity, including those covering long cable distances, as stated in the 2.11.2022 Invoice, instead of only repairing the damaged cables at the said Location;

that the 2.11.2022 Invoice included the purchase value of the new cables to replace the used and old cables, which are new assets in the Plaintiff’s book value and were not solely for the purpose of rectification of the said Damage. The Plaintiff failed to disclose the book value or the current asset value for the used and old cables that were allegedly damaged, especially on the remaining lifespan of the used and old cables. Hence, it was extremely unfair for the Plaintiff to claim the full costs of replacing the used and old cables with brand new cables as it was likely that the former had a limited and short lifespan and low asset value; and

that the representatives of the parties held meetings and discussions on 9.1.2023, 23.2.2023, 29.0.2023 and 21.6.2023 in an attempt to resolve the dispute, but to no avail. THE TRIAL & AGREED ISSUES TO BE TRIED

The trial was held for seven days. Five witnesses testified for the Plaintiff and two witnesses for the Defendant.

The particulars of the witnesses are as follows:

Mohd Saufi Bin Mohd Nordin, Assistant Technical Officer at the Plaintiff’s External Network Zone (PW1);

Mohd Afizan bin Supar, Assistant Technical Officer at the

Abdul Razack bin Abdul Baset, Unit Manager at the

Azhari bin Abdullah, Manager at the Plaintiff’s External

Nazri bin Mohamad Zahari, Supervisor, PMNM (PW5);

N. Saravanan a/l Nadarajah, Project Director, PTPSB (DW1); and

Muhamad Hanis bin Omar, Safety Health Officer, PTPSB (DW2).

The Agreed Issues To Be Tried (‘ITBT’) are set out below: “1. Whether the Defendant has negligently caused damage towards the cables and/ or infrastructures owned by TMB and/or the Plaintiff at Jalan Enggang, in front of Mira Cake House (“the said location”) on 1.10.2020.

Whether the Defendant has admitted its liability for the damage towards the cables and/ or infrastructures owned by TMB and/ or the Plaintiff at the said location.

Whether Plaintiff was negligent by failing to label the location of the cables, thereby contributing to the damage.

Whether the Defendant is liable to pay the Plaintiff the full sum of RM1,170,654.85 as the cost of rectification works.”. ANALYSIS & FINDINGS OF THE COURT 1st Issue: Whether the Defendant has negligently caused damage towards the cables and/ or infrastructures owned by TMB and/ or the Plaintiff at the said Location on 1.10.2020

The particulars of negligence are as pleaded in paragraph 13 of the SoC and quoted earlier.

In the Written Submission, the Defendant chose to submit on the 1st, 2nd and 3rd Issues together.

The defences raised by the Defendant in contending that it did not negligently cause the said Damage at the said Location and the findings of the Court in respect of each defence are set out below:

The excavation and drilling works were undertaken pursuant to the JVA but the Plaintiff had chosen to take action only against the Defendant and had omitted Tajri despite the JVA expressly outlining joint responsibilities for the Project. Moreover, at all times, the correspondences were issued under the letterhead of PTPSB. Hence, the Defendant and Tajri evidently acted in concert in all engagements with the Plaintiff concerning the incident of the said Damage at the said Location. The Plaintiff’s decision to omit Tajri from the instant suit was unjustified and misconceived. I have scrutinised the JVA and I find that –

Recital C states that “PESTECH is contractor registered with CIDB Grade 7 Category B, Cross-Examination and ME has relevant expertise in supply, erect and commissioning of 275kV switchgears, 132kV switchgears and ancillary equipment and underground cable’s work.”. Notably, the Defendant has relevant expertise in, among others, underground cable work;

(ii) Clause 2.1 provides that “The Parties agree to form an unincorporated joint venture for the purpose of executing the works as described in the Tender. This Agreement may not be construed as creating a company or a partnership and shall not be considered as creating any form of legal or tax entity.”;

(iii) Clause 4.1 and 4.2 stipulate that – “4.1 The Parties agree that the rights, benefits, obligations and responsibilities of the Parties in the carrying out the Works will be borne in the following proportion: a) Pembinaan Tajri Sdn Bhd: 60% and b) Pestech Sdn Bhd: 40%

4.2 The Parties agree that TAJRI shall be the leader of the joint venture and the duties and responsibilities of each party shall be detailed out in the appendix to this Agreement. Notwithstanding to any of the duties and responsibilities of the parties detailed out in the appendix, the Parties shall remain jointly and severally liable and responsible to TNB for the execution of the Works.”;

(iv) Clause 14 states that “We would like to confirm that the party will be responsible to issue Tax Invoice to TNB for this project is PESTECH Sdn. Bhd. All invoice should be issue by PESTECH Sdn. Bhd to TNB.”;

in APPENDIX A on the scope of works for the JV partners, Tajri is only responsible for Project

(vi) the JVA is silent on the liability of the Defendant and Tajri to any third party. In these circumstances, I was persuaded by the Plaintiff’s submission that PTPSB’s liability to a third party such as the Plaintiff is to be interpreted in a manner which is similar to the JV partners’ liability towards TNB, namely that they shall remain jointly and severally liable and responsible. Hence, the Defendant is severally liable to the Plaintiff for the said Damage.

The HDD Works were carried out by the Defendant’s appointed subcontractor as evidenced by the Subcontract Agreement dated 14.8.2020. Hence, the Defendant was not the contractor who carried out the HDD Works in relation to the Project and that had caused the said Damage. In this regard, the Subcontract Agreement dated 14.8.2020 was between Pestech Transmission Sdn Bhd and KP Teguh Sdn Bhd. Pestech Transmission Sdn Bhd is a separate entity from the Defendant. The Defendant did not adduce any evidence to show the nexus between the Defendant and the Subcontract Agreement.

In paragraph 15 of the Defence, the Defendant pleaded that the utility map does not show the Plaintiff’s cables at the said Location. The Defendant referred to the “Report for Trial Hole Work @ Lorong Enggang Timur & Jalan Enggang” dated 17.7.2020 (at pp 17 - 39 and 42, B2) and the “Utility Detection And Mapping” prepared by I Map Enterprise in July 2020 (at p 40, B2) and submitted that the Defendant had performed the trial holes and utility mapping at the said Location and no cables belonging to the Plaintiff were shown at the excavation site. This was confirmed by DW1 and DW2 in their Witness Statements. In addition, despite the evidence by PW2 and PW5 on the existence of as-built drawings for the underground cables, the Plaintiff failed to furnish any as-built drawings for the said Location to the Defendant which could have mitigated or avoided the said Damage. The Defendant invited the Court to invoke an adverse inference under s 114(g) of the Evidence Act 1950 [Act 56] (‘EA 1950’), namely that, had the as-built drawings been produced, they would be unfavourable to the Plaintiff’s case. However, as submitted by the Plaintiff, the presence of its cable is indicated as “TM Cable” in the Site Plan (see pp 22 - 27, B2) and “TELEKOM DUCT” in green colour (p 40, B2). As regards the as-built drawings, this was not an appropriate case for an adverse inference to be drawn against the Plaintiff because the need for such drawings was only raised during the trial. In the letter sent by Jurutera SNS Sdn Bhd, the consultant for the Project, to TMB dated 20.8.2019, the enquiry merely pertained to the existence of any special guidelines which have to be observed. The relevant excerpt from the said letter is re-produced below: “… Untuk pengetahuan pihak tuan, kami dalam proses memohon permit kerja daripada pihak Dewan Bandaraya Kuala Lumpur (DBKL). Di dalam senarai semak permohonan tersebut, salah satu dokumen yang diperlukan oleh pihak DBKL ialah surat sokongan daripada agensi teknikal yang berkaitan, salah satunya ialah pihak TM. Ini berikutan terdapat laluan kabel yang akan merentasi kabel utiliti milik TM di beberapa laluan tertentu bermula dari PMU Ampang. Jalan Enggang, Jalan Enggang Timur 1, Jalan Jelatek, Jalan Ampang, Lorong Ampang 2, Jalan Taman U Thant, Jalan U Thant, Jalan Ampang Hilir, Jalan Langgak Golf, Jalan Tun Razak dan berakhir di PMU-Prince Court. Sekiranya terdapat sebarang garis panduan khas yang perlu dipatuhi semasa kerja-kerja merentang kabel dijalankan, kami berharap pihak TM dapat memaklumkan kepada kami agar kerja-kerja di tapak bina dapat berjalan dengan lebih lancar. Pihak kontraktor akan mematuhi segala garis panduan yang ditetapkan oleh pihak TM dengan sewajarnya. Bersama-sama ini disertakan pelan cadangan laluan kabel yang berkaitan untuk rujukan pihak tuan. …”. Earlier, on 2.3.2019, TMB had written to the consultant regarding the application for a letter of support from the “agensi teknikal luar” and TMB indicated the following: “…

Pihak kami tiada halangan terhadap cadangan kerja-kerja ini.

Pihak tuan pada setiap masa, hendaklah mengambil langkah berjaga-jaga dan wajar sebelum menjalankan sebarang kerja-kerja di kawasan tapak Projek yang terlibat bagi memastikan Infrastruktur Telekomunikasi dan/atau Infrastruktur Telekomunikasi Tambahan ini tidak dirosakkan. Di antara langkah-langkah yang diperlukan oleh pihak tuan adalah seperti yang berikut:- i) Memaklumkan kepada TM dengan membuat panggilan ke Call Before You Dig (CBYD) – 1 800 889947 sebelum memulakan sebarang aktiviti pengorekan; ii) Membuat 'Pilot Hole' sebelum melakukan sebarang kerja-kerja pengorekan; iii) Menggunakan alat pengesan yang sesuai untuk mengenalpasti lokasi/keadaan Infrastruktur Telekomunikasi dan/atau Infrastruktur Telekomunikasi Tambahan TM yang sebenar; iv) Kerja-kerja Projek hanya boleh dilaksanakan setelah TM mengesahkan bahawa semua kerja-kerja pengalihan Infrastruktur Telekomunikasi dan/atau Infrastruktur Telekomunikasi Tambahan TM telah siap dialihkan sepenuhnya. Borang Milikan Tapak dan Borang Siap Kerja perlu ditandatangani oleh pihak tuan dan TM sebelum dan selepas kerja-kerja pengalihan dilaksanakan; v) Memastikan kehadiran wakil TM di lokasi Projek yang melibatkan Infrastruktur Telekomunikasi dan/atau Infrastruktur Telekomunikasi Tambahan TM sebelum memulakan kerja-kerja Projek; vi) Memberikan jadual kerja kepada pihak TM sebelum kerja-kerja dijalankan; vii) Menandakan atau “pegging” laluan TM sedia ada di tapak; dan viii) Lain-lain langkah pencegahan yang sesuai dan wajar.

Sila ambil maklum bahawa sekiranya sebarang kerosakan kepada infra TM yang timbul dikawasan bekenaan, pihak TM akan membuat tuntutan dan segala kos akan ditanggung sepenuhnya oleh pihak tuan.”. Based on the above quoted letters, clearly TMB had laid out the requirements which must be fulfilled to avoid the occurrence of an incident such as the said Damage at the said Location. On the part of the Defendant or PTPSB, they were aware of the existence of the Plaintiff’s underground cables along the proposed alignment of TNB’s cables and they never requested for any as-built drawings. In fact, among the steps which had to be taken by the consultant were, among others, to carry out pilot hole tests before excavation works began, to use suitable detection instrument to identify the exact location of TMB’s infrastructures and to peg or place signage of TMB’s existing alignment at the project site.

Apart from the above, the Court has considered the fact that DW1 admitted in cross-examination that the said Damage was caused by the Defendant. The following is the relevant excerpt from the Notes of Evidence (‘NoE’): “HRH So, it means here based on this, the Defendant was carrying out the work. Correct? Yes. Is there any 3rd Party mentioned here? SARAVANAN No. Main contractor is Pestech. Based on this pleaded facts, it’s Pestech. Yes. Now, “Although the Defendant is not the party responsible for the existing damage, which is claimed by the Plaintiff and denied by the Defendant. However, the Defendant has acted in a gesture of goodwill to try to resolve any conflict with the Plaintiff amicably as follows”. So, this was the negotiation. I'll come to that later. But if we read the first line of paragraph 18, it’s a clear admission by the Defendant, the Defendant was the party who caused the damage while carrying out the work, based on this pleaded facts. Correct? Yes”.

Section 101 of the EA 1950 stipulates that: “Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”.

Based on the oral and documentary evidence and the parties’ submissions, the Court was satisfied that the Plaintiff has proven, on a balance of probabilities, that the Defendant has a duty of care towards the Plaintiff in respect of any act or work carried out by the Defendant at the said Location and that there was a breach of the duty of care in the manner as pleaded by the Plaintiff in subparagraphs 13(i) – (iv) of the SoC.

The Plaintiff has successfully discharged the burden of proof in establishing that the Defendant was negligent and had caused the said Damage at the said Location.

The 1st Issue was thus answered in the affirmative. 2nd Issue: Whether the Defendant has admitted its liability for the damage towards the cables and/ or infrastructures owned by TMB and/ or the Plaintiff at the said Location

The Plaintiff took the position that, based on the maxim “silence amounts to consent”, illustration (g) under s 8 of the EA 1950 and the case authorities of David Wong Hon Leong v. Noorazman bin Adnan [1995] 4 CLJ 155, Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, Halim Bin Saad v. Chan Yok Peng [2021] 1 CLJ 499 and Caterpillar Financial Services Malaysia Sdn Bhd v. KSJ Construction Sdn Bhd & Ors [2022] 1 LNS 690, the Defendant’s failure to respond, object or dispute the 6.10.2020 Letter and 7.11.2022 Letter amounts to an admission to the Plaintiff’s claim

Section 8 of the EA 1950 provides as follows: “Motive, preparation and previous or subsequent conduct

(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. … ILLUSTRATIONS …

The question is whether A owes B RM10,000. The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing: “I advise you not to trust A for he owes B RM10,000,” and that A went away without making any answer are relevant facts. …”.

The Defendant countered the Plaintiff’s submission by contending that s 8 of the EA 1950 deals with “motive, preparation, conduct, and facts explaining or introducing relevant facts” and does not support the broad proposition that a party’s silence automatically amounts to consent or admission. Any conduct, including silence, was at most a relevant fact to be considered in the broader context of the case and does not amount to an admission, which is governed separately under ss 17 to 23 of the EA 1950. Silence cannot be deemed an admission unless there is a clear duty to speak and the circumstances make it unequivocal clear that the silence was intended to convey consent or acceptance. However, the Defendant argued that these do not apply to the facts in the instant case.

In my assessment of the contemporaneous documents and DW1’s evidence, there was evidence to support the Plaintiff’s contention that the Defendant did not, at the material time, deny liability for the said Damage, but rather, the quantum of the Plaintiff’s claim was the bone of contention.

Based on PTPSB’s letter dated 11.11.2022 to the Adjuster, it was evident that the Defendant received the 7.11.2022 Letter together with the 2.11.2022 Invoice for the total sum of RM1,170,654.85 on 10.11.2022.

The Defendant’s immediate act of referring the Plaintiff’s claim to MSIG was an indication that, at that time, the Defendant did not dispute the amount claimed. This changed when the Adjuster had completed its task.

In its letter dated 9.2.2023, MSIG indicated that the Adjuster has adjusted the loss to RM500,00.00 (net) where, based on the remarks made in the Appendix, –

the claim for “Labour” was given a 10% deduction to reflect temporary repair work;

the claim for items 1 - 20 under “Materials” were for temporary repair work which was not covered by the policy; and

the claim for items 1 - 7 under “Miscellaneous” was for temporary repair work which was not covered by the policy and for item 43 (“Warehouse and handling charges”), it was said to be indirect cost which was not covered under the policy.

In response to the 7.11.2022 Letter, PTPSB said in its letter dated 13.4.2023 that: “Firstly, we apologise for the inconvenience caused by our delay in responding to your letter. For your information, we have reviewed the detailed breakdown of your invoice and unfortunately, we notice that the rates you have quoted in the invoice are significantly higher than the standard rates and this has exceeded our budget. When compared to other platform rates, your quoted rates are exorbitantly high. As a result, we humbly request that you further reduce the rates and possibly offer us a lower percentage of the total invoice. We are looking forward to your positive response and we are ready to arrange a meeting to negotiate the prices in person.”.

Significantly, no objection or dispute was raised as to the contents of the 7.11.2022 Letter. Rather, PTPSB appealed for a reduced amount. The Plaintiff did not accede to the request and its solicitors duly issued a letter of demand on 13.7.2023 for the entire claimed sum.

When cross-examined, DW1 admitted that the Defendant never said it was not liable and the Defendant wanted to settle the matter by asking for a discount. What was more telling was, during re-examination, DW1 testified that: “AM You were then again referred to the third paragraph on page 60 and pointed out that you had asked for a reduction and nowhere disputed liability. You wanted to say something but was stopped. Please elaborate on what you wanted to say. Yes, sir. Here, after the series of discussion, we want to amicably settle the matter because we know the third-party liability from insurance is RM500,000. So, we are asking TMB whether, we want to just settle the matter at RM500,000, but they did not want to pursue and then take it, matter beyond that for a trial. So, before that, that's what we tried to put it there. Can we settle with a reduction? The meaning of “reduction” is to come to RM500,000 at least for us to settle the issue and move on.”.

In addition, the Defendant is a company with much experience in civil engineering and development-related business and operates through multiple subsidiary entities. If the Plaintiff’s claim for the amount of RM1,170,654.85 was erroneous or inaccurate, or if the Defendant was of the view that it was not liable for the said Damage, it would have immediately objected or disputed the Plaintiff’s assertions in the 6.10.2020 Letter and 7.11.2022 Letter.

Instead, upon receiving the 6.10.2020 Letter and 7.11.2022 Letter, PTPSB forwarded the documents they received from the Plaintiff to the Adjuster vide the letter dated 11.11.2022, without raising any dispute as to liability or the amount claimed by the

It was only after receiving MSIG’s letter dated 9.2.2023, where the Adjuster had adjusted the loss at RM500,000.00, which was half of the Plaintiff’s claim, that the Defendant wrote the letter dated 24.7.2023 to the Plaintiff to, among others, deny the Plaintiff’s claim and liability for the same.

If the Adjuster was of the opinion that the Defendant was not liable for the said Damage, it would not have proceeded to determine the adjusted loss. Based on the Appendix to MSIG’s letter and the remarks therein that “Temporary work is not covered by the policy”, the Adjuster’s assessment was confined solely to the Plaintiff’s expenditure on permanent rectification works.

Basically, the Defendant was hoping that MSIG would cover the entire sum as demanded by the Plaintiff. However, when this did not materialise, the contents of the Defendant’s letter dated 24.7.2023 was an attempt to avoid contributing any additional sum towards the settlement of the Plaintiff's claim.

The Defendant’s referral of the Plaintiff’s claim to MSIG, request for a discount from the Plaintiff and active involvement in the negotiation meetings were indicative of the fact that liability for the said Damage at the said Location was not an issue, but rather the quantum of the claim was.

Ultimately, even though the Court was inclined to answer the 2nd Issue in the affirmative, nevertheless, the Court has made its own assessment and finding on the issue of liability as per the 1st Issue above. 3rd Issue: Whether Plaintiff was negligent by failing to label the location of the cables, thereby contributing to the damage

The Defendant contended that no physical markers or signage were provided by the Plaintiff at the said Location to indicate the existence of the Plaintiff’s underground cables. This fact was corroborated by PW4. In the absence of such indicators, it was argued that the Defendant could not have reasonably foreseen or taken steps to prevent the said Damage or to mitigate risks during excavation works.

It was further argued by the Defendant that PW4 had admitted that the Plaintiff’s underground cables at the said Location were not protected by any form of concrete encasement. Instead, the underground cables were merely housed within “ducting” between the closures with each closure’s length being 2 km, thus leaving the cables exposed and vulnerable. The lack of standard protective infrastructure demonstrates the Plaintiff’s failure to safeguard its own assets and reinforces the element of contributory negligence.

The Defendant submitted that the factual matrix of the instant case was identical to the case of Telekom Malaysia Berhad v. Amirus Construction [2023] CLJU 2957 where the court held as follows: “[14] Based on the evidence adduced by both parties, this Court agrees with the Defendants’ submission that there was contributory negligence by the Plaintiff. This finding is based on the following: i. There were no signboards or notices or warnings at the incident area to inform anyone that there were fiber optic cables at the site excavated by the D1 for purposes of constructing a drain for MBSA. ii. Whilst the Plaintiff’s witnesses had testified the cables were protected by concrete and protective casing, the photographs tendered in Court at pages 80, 81, 90, 91, 92, 105, 107 and 109 of the Ikatan Dokumen Bersama clearly shows that the fiber optic cables were buried without any protective casing and that the protective casing were only placed during the rectification of the damaged ducts and fiber optic cables. In this regard, the photographs of pre rectification and post rectification Works, supports the Defendants’ version on this issue.”.

However, in Amirus Construction’s case (supra), the issue of whether there was a legal requirement for the plaintiff to put up signboards, notices or warnings of the presence of fiber optic cables at the area of the incident was not raised by the plaintiff whereas in the present case, such issue was raised by the Plaintiff and the Defendant did not establish that signage or markers to indicate the location of the Plaintiff’s cables at the said Location was a requirement expressly prescribed by law.

As mentioned previously, the Plaintiff had conveyed the measures which must be taken by the consultant vide the letter dated 2.3.2019. Therefore, had the Defendant properly complied with all the requirements as stipulated by the Plaintiff, the said Damage could have been avoided since the Plaintiff’s procedures and requirements were specifically designed to enable the identification and protection of its existing underground infrastructure prior to the commencement of any excavation activities.

The need to install any signage or markers was redundant as compliance with the prescribed procedures would have sufficiently alerted the Defendant to the presence of the Plaintiff's underground cables at the said Location.

In any event, the existence of the Plaintiff’s cables was indicated in the Defendant’s own document i.e. “Report for Trial Hole Work” and “Utility Detection And Mapping”.

As regards, the Defendant's submission that the Plaintiff’s cables, which were housed within ducting, lacked standard protective measures was unsupported by any authority in the form of regulatory guidelines or industry standards.

In the final analysis, the Court was not satisfied that the Defendant had proven, on a balance of probabilities, that the Plaintiff was negligent by failing to label the location of the cables and that there was contributory negligence on the part of the Plaintiff.

Therefore, the 3rd Issue was answered in the negative. 4th Issue: Whether the Defendant is liable to pay the Plaintiff the full sum of RM1,170,654.85 as the cost of rectification works

The Plaintiff contended that all supporting documents in relation to the matters detailed in the 2.11.2022 Invoice had been submitted to the Defendant and these consist of the following:

Purchase Order issued by TMB to SUC dated 8.1.2021 for the sum of RM145,156.76 (pp 146 - 154, B1);

Work Order Completion and Invoice from SUV dated 8.1.2021 for the sum of RM145,156.76 (pp 139 & 140, B1);

Purchase Order issued by TMB to PMNM dated 2.9.2021 for the sum of RM274,838.16 (pp 155 - 168, B1);

Work Order Completion and Invoice from PMNM dated 7.7.2022 for the sum of RM274,838.16 (pp 141 - 143, B1);

Purchase Order issued by TMB to PMNM dated 12.11.2021 for the sum of RM132,063.59 (pp 169 - 173, B1);

Work Order Completion and Invoice from PMNM dated 22.12.2022 for the sum of RM132,063.59 (pp 144 & 145,

Labour charges for Invoice No.: 9000529208 in the sum of RM1, 843.63 (p 174, B1).

The bulk of the Defendant’s written submission was in relation to the 4th Issue.

The gist of the Defendant’s submissions and the findings of the Court in respect of these submissions are discussed in the succeeding part of this judgment.

The damage to the Plaintiff’s infrastructure as identified by PW1 in his police report on 6.10.2020 was Copper Cable KRT AH 1000P; Optical Fiber Cables 96C x 3, 48C, 24C and 12C; and Ducting TM.

The Defendant contended that PW1 had admitted the Plaintiff’s document titled “Borang Laporan Kemalangan” dated 6.10.2020 was the internal assessment prepared by him a few days after the incident wherein the value of the damaged cables was estimated at RM200,000.00. This contradicts the inflated claim of RM1,170,654.85.

The Plaintiff led evidence to show that the actual repair works were carried out by SUC as reflected in the Purchase Order, Invoice and Work Order Completion which show the total repair works amounted to RM145,156.76.

Although PW1 attempted to assert in the answer to Question 6 in his Witness Statement (WS-PW1) and in his evidence during Trial that the repair works performed by SUC constituted only temporary repair (baik pulih sementara), this assertion was not supported by any of the Plaintiff’s contemporaneous documents. PW1 and PW4 admitted this fact during cross-examination.

Furthermore, this assertion was not raised in the Plaintiff’s pleadings and surfaced only during oral evidence of the Plaintiff’s witnesses, making it an afterthought. The absence of the qualification that the works were temporary in nature in all internal records and contractor-issued documents indicates that, at the material time, the repairs were treated as complete and satisfactory.

PW1 testified that the length of the damaged cables was approximately 135 meters and that the repair was carried out from one manhole to another, forming what was referred to as “one (1) section” with an approximate length of 150 meters. This testimony was corroborated by the Work Order Completion issued by SUC which confirmed that the repair was performed for one section.

During cross-examination, PW2 said that, following the repair completed by SUC, the Plaintiff’s telecommunication system at the said Location resumed its function.

Based on the above, the Court was urged to find that the only proven and reasonable quantum for the said Damage was at most RM200,000.00, and not the sum of RM1,170,654.85 as claimed by the Plaintiff.

Firstly, PW1 had testified that the insertion of the figure RM200,000.00 was solely for the purpose of completing the form as it constituted part of the procedural requirement. Moreover, PW1, being a technician, clearly lacked the requisite knowledge and authority to determine the overall cost of repairs. The NoE shows as follows: Masih di muka surat 127, Ikatan B1. la juga telah dicadangkan bahawa En Saufi telah meletakkan nilai anggaran kerosakan sebagai RM200,000 sahaja. Bahagian dalam kotak, kotak pertama, maklumat infra TM yang rosak, di bawahnya anggaran nilai kerosakan harta RM200,000. Ia telah dicadangkan bahawa Saufi telah meletakkan nilai anggaran kerosakan sebagai RM200,000 sahaja. Memandangkan En Saufi kononnya tahu kerosakan tidak bernilai lebih dari RM200,000. En Saufi tidak bersetuju dan menyatakan bahawa jumlah tersebut adalah anggaran yang kita letak sahaja. Mengapa En Saufi menjawab sedemikian? SAUFI Kerana selagi kita tidak identify total kabel dan kos yang terlibat maknanya kabel semua, selagi itu kita tidak ada amaun yang tepat. Jadi nilai ini adalah nilai anggaran.”.

Secondly, the Plaintiff submitted that the word “temporary” which was used by the Plaintiff’s witnesses during the trial and in their Witness Statements was merely to assist the Court in distinguishing the scope of works done by the Plaintiff’s appointed contractors for the said Damage. I was persuaded by the Plaintiff’s submission that the usage of the term “temporary” does not, in any way, diminish the necessity or validity of the rectification works carried out by the Plaintiff, but instead it only served to clarify the purpose, method, nature and sequencing of the repair works carried out by TMB.

In this regard, PW1’s evidence was that: Memandangkan perkataan “sementara” tidak tertera pada dokumen-dokumen Seven United Consortium, ia telah dicadangkan bahawa Jawapan No. 2 En Saufi di penyata saksi merupakan suatu afterthought. Ok. Pemikiran semula. En Saufi tidak bersetuju. Ia juga telah dicadangkan bahawa saksi dari Seven United Consortium tidak dipanggil memandangkan mereka kononnya boleh mengesahkan bahawa kerja-kerja baik pulih yang dijalankan oleh Seven United Consortium bukannya kerja-kerja baik pulih sementara. En Saufi tidak bersetuju. Tolong terangkan kepada Mahkamah yang mulia ini mengapa En Saufi tidak bersetuju kepada kedua-dua soalan tersebut? SAUFI Ok, apabila berlaku sesuatu breakdown, maknanya kabel putus, kita daripada pihak maintenance terikat dengan pelanggan. Maknanya kita perlukan kita perlu buat restoration cepatlah. Jadi method yang akan kita guna adalah kita akan tarik satu section kabel dan kita sambung terus. Walau bagaimanapun, cara macam itu dia tidak follow design asal yang telah diplan oleh kita punya engineer lah. Jadi pembaikan sementara itu perlu dilakukan supaya kita dapat memberi perkhidmatan kepada pelanggan dengan lebih cepat.”.

Meanwhile, PW4 gave the following evidence: “TN la telah dicadangkan bahawa kerja-kerja yang dilaksanakan oleh Seven 3 United Consortium telah disahkan oleh mereka sebagai, "Work have been complete and rectified", ok. Azhari mula-mula menjawab "Sementara". Lepas itu, menjawab dalam dokumen ini kata "Complete and rectified". Mengapa En Azhari menjawab dalam dokumen ini kata "Complete and rectified"? … AZHARI Ok. Di dalam internal process Telekom kita ada dua phase, yang mana kita ada kerja-kerja baik pulih sementara dan juga kerja-kerja baik kekal. Ok, saya terangkan. Untuk kerja-kerja baik pulih sementara, ia merujuk kepada kerja-kerja baik pulih yang kita perlu lakukan dengan kadar segera dengan apa jua cara supaya gangguan perkhidmatan di kawasan yang terjejas dapat dibaikpulih dalam masa yang secepat yang mungkin. Manakala, baik pulih kekal merujuk kepada kerja-kerja baik pulih untuk kembalikan balik semula rangkaian Telekom kepada keadaan asal iaitu maksud saya keadaan asal adalah keadaan di mana sebelum berlakunya breakdown. Ok.”.

Thirdly, PW3 had clearly explained that the length of cables utilised for temporary works was comparatively shorter as such works were intended solely to facilitate the immediate restoration of telecommunication services to the affected customers. The following was what PW3 had said: Ok. So, apabila En Razack dirujuk kepada document 50 di muka surat 50 dan 51 kepada bahan-bahan No.21 hingga 24, 26 dan 27 iaitu loose cable, dan ditanya berapa panjang jaraknya, Razack telah menjawab “mengikut kuantiti ini, 2,000m.” Walau bagaimanapun, ia dicadangkan bahawa mengikut invois Seven United Consortium Sdn Bhd dan keterangan pihak-pihak TM, kabel yang rosak tidak melebihi 135m. En Razack dirujuk kepada dokumen di muka surat 134 dan dicadangkan ikut dokumen ini, sorry, are you there? 134. Dan dicadangkan mengikut dokumen ini, 135m sahaja. En Razack pada mulanya kata “kerja sementara.” Kemudiannya menjawab “ok, betul.” Sila terangkan mengapa En Razack menjawab sedemikian. RAZACK Kerja-kerja sementara memang perlu dilakukan dengan cepat dalam masa yang telah ditetapkan. Perlu dilakukan dengan pantas. Jadi, penggunaan kabel yang pendek ini untuk mempercepatkan, untuk baik pulih ataupun nak up balik the services to kita punya pelanggan. Jadi dia, pendek saja dia punya joint dia, kabel yang digunakan.”.

PW3 additionally explained regarding the extent of the rectification works which demonstrates that the Plaintiff actually required more than one section of copper cables at the said Location: Dicadangkan juga kalau Pembinaan Mohamed Nazir Meraslam guna 2,000m kabel sahaja, ia sampai ke KM 2 sahaja dari Node KRT. En Razack tidak bersetuju. Sila terangkan mengapa Razack menjawab sedemikian. RAZACK Jawapan saya ialah kerana kabel yang rosak itu berada pada jarak 2.3km. Tetapi daripada jarak 2km ke 4km ataupun daripada jarak Node Keramat ke satu lagi, satu lagi tempat yang saya tak pasti berapa, berapakah jarak itu saya tak pasti juga, tapi yang pastinya dia jarak itu mestilah melebihi daripada 2.3km. Jadi, pada pemahaman saya, apabila dia tukar 2,000m ini, dia bukan daripada, sambungan itu bukan daripada Node Keramat tetapi daripada satu sambungan lain selepas 2km daripada Node Keramat untuk membaiki kerosakan pada 2.3km daripada Node Keramat. Bermakna mungkin satu circuit itu lebih daripada 2km, mungkin 4km, mungkin 5km, mungkin 6km yang saya tak dapat pastikanlah. Tapi ia pastinya untuk membaiki 2.3km itu daripada joint yang bermula pada KM 2.”.

The Plaintiff failed to prove that a further sum of approximately RM1 million was incurred for permanent rectification works (baik pulih kekal) for the said Damage which was carried out one year after the initial repair by SUC.

The evidence given by PW2, PW3 and PW5 show that the purported permanent works were neither necessary nor properly evidenced, and were unrelated to repairing the original damaged cables.

PW2 was the personnel who supervised the works carried out by PMNM. In the answer to Question 4 in WS-PW2, he admitted that the alleged permanent rectification works involved digging of “laluan tanah yang baharu” and laying of new cables to replace the damaged cables. This repair was carried out in September 2021, one year after the incident on 1.10.2025. These works were not remedial in nature, but amounted to a full replacement with new infrastructure and new assets for the Plaintiff. PW2 also confirmed that the damaged cables had already been repaired and were functioning when the permanent works by PMNM were carried out.

PW3’s evidence further affirmed that the alleged permanent rectification works amounted to a system overhaul involving the laying of brand-new cables. PW3 referred to the Plaintiff’s own internal records, which were generated more than two years after the incident, to justify the costs of temporary and permanent repair works but without any independent verification or supporting documents from SUV and PMNM to justify the figures. Based on the 2.11.2022 Invoice, the Plaintiff claimed for the installation of copper cables up to eight sections in the total sum of RM220,600.74 as seen in Items 1, 2, 3, 41 and 42 under the heading “Butiran Pelbagai Yang Dibelanjakan”. However, in the Plaintiff’s Police Report and “Borang Laporan Kemalangan”, the damaged copper cable was only one section. This was corroborated by the Invoice and Work Order Completion issued by SUC that the damaged copper cables were merely one section.

During cross-examination, PW5 who was allegedly responsible for the permanent repair works at the said Location, was forced to admit that he has no personal knowledge of the incident, the scope of the alleged damage and what had in fact been damaged or required repair. All information was merely relayed to PW5 by PW1 and PW2. Hence, PW5 could not confirm that the new cables laid by PMNM were in fact for the permanent repair of the original damaged cables.

In short, it was contended that the works carried out by PMNM were not remedial, but part of a system upgrade or renewal of system with new cables and not to remedy the said Damage.

I had examined the oral and documentary evidence and in my considered view, PW2’s and PW5’s testimonies must be viewed in their totality. In this regard, they had satisfactorily explained the reasons, importance and necessity of carrying out the permanent rectification works. PW2 was responsible for overseeing the rectification works and based on his evidence, the rectification works by PMNM were indeed executed pursuant to instructions issued by the Plaintiff.

In re-examination, PW3 confirmed that the permanent rectification works carried out involved the replacement of the damaged cables at the said Location: “TN Item-item lain tersebut adalah untuk kerja-kerja meletak kabel baru untuk Plaintif oleh Pembinaan Mohamed Nazir Meraslam. En Razack bersetuju. Tapi kemudiannya apabila ia dicadangkan Pembinaan Mohamed Nazir Meraslam sebenarnya meletak kabel baru untuk Plaintif dan bukan membaik pulih kabel yang rosak, En Razack tidak bersetuju. Sila terangkan jawapan-jawapan Razack tersebut. RAZACK Dalam pembaikan kekal yang mana dilakukan oleh Pembinaan Mohamed Nazir Meraslam, sudah semestinya apa yang diletakkan itu adalah kabel baru untuk membaik pulih kabel lama yang telah rosak. Jadi, kalau dalam konteks ini, saya rasa kabel baru itu adalah kabel yang baru menggantikan kabel yang rosak untuk pembaikan kekal.”.

The completion of the rectification works carried out by SUC does not restore the Plaintiff to the position it would have been in had the Defendant duly discharged its duty of care since the temporary rectification works were not executed in accordance with the Plaintiff's actual cable design or installation plan as explained by the Plaintiff's witnesses.

The permanent rectification works undertaken as a consequence to the said Damage were undoubtedly necessary and did not, in any manner, confer an undue benefit upon the Plaintiff because without such rectification, the Plaintiff would have been compelled to continue its business operations using cables that were unstable and inefficient.

As for PMNM, logically, its representatives could not have observed the said Damage firsthand. Its scope of work was, among others, to ensure the operability and functionality of the Plaintiff’s cables after the said Damage rather than assessing the original state of the damage.

In the final analysis, the Court accepted the explanation given by the Plaintiff’s witnesses as to the distinction between the temporary rectification works which were carried out by SUC and the permanent rectification works which were performed by PMNM. Therefore, the Court was of the view that the amounts which were paid by the Plaintiff to SUC and PMNM were claimable against the Defendant.

One of the Defendant’s pleaded defences was that: “25. … the Plaintiff in the Plaintiff's invoice dated 02.11.2022 and also in the Plaintiff's claim in this action, the Plaintiff has failed to disclose on what was the book value or the current asset value for the old cables that were allegedly damaged in the Damage, especially on when the old cables were installed and what is the lifespan of the old cables that were allegedly damaged in the Damage. It is extremely unfair for the Plaintiff to claim the full cost of the value of replacing the old cables with new ones, especially given that the old cables likely had a short lifespan and low asset value.”.

The Defendant submitted that, in assessing the quantum of damages, the issue of depreciation is a relevant and material consideration as it reflects the actual value of the damaged property at the time of the incident. Compensation for damage to property must reflect actual loss, and not replacement or inflated figures, and must take into account the age, condition and depreciation of the asset concerned [see Chi Chao-Ton Tony & Ors V. Repute Ventures Sdn Bhd [2019] 3 CLJ 182 (CA)].

In terms of evidence, the Defendant relied on PW1’s admission that the damaged cables were old cables and PW2’s evidence that the damaged cables at the said Location was likely to have been laid before 2007. Meanwhile, PW3 admitted that all the cables have depreciation value.

However, the Plaintiff failed to provide all the as-built drawings of the cables at the said Location or along Jalan Enggang to indicate the date of laying of the cables. The only documents provided by the Plaintiffs to indicate the book value, current asset value and lifespan of the damaged cables are at pp 8 – 14, B3, which was summarised in the table at p 8 (‘Table’), and shows the cables (minus the CWS cables) as having a lifespan of 20 years and a current asset value of merely RM202,801.92. The Table is re-produced below for ease of reference: Detail cables

book value

(ii) current asset value

(iii) lifespan KRT-AH 1000P PEUT KRT-AJ 1000P PEUT KRT-AL 1000P PEUT KRT_F12 96C 17,815.94 4,467.58 20 KRT_F08/F09 96C 64,436.39 31,596.03 20 KRT_F10/F11 96C 55,689.80 27,307.15 20 KRT OFC 48C spur 79,269.47 38,869.31 20 KRT OFC 24C spur 138,714.12 68,017.64 20 KRT OFC 12C spur 66,370.16 32,544.21 20 CWS 449,977.33 277,963.21 30 CWS 841,395.90 519,748.49 30 1,713,669.11 1,000,513.62

During the clarification session, the Defendant’s counsel confirmed the Defendant’s final position that RM202,801.92 would be the amount that the Defendant would agree to pay, in the event the Court finds the Plaintiff has proven liability against it for the said Damage.

Further, the Defendant drew the Court’s attention to PW3’s evidence that –

the table originated from the Plaintiff’s office and the Plaintiff was not challenging its contents;

the copper cables in items 1 to 3 of the Table have no current asset value as they have exceeded their 20 years’ lifespan;

the entries on “CWS” in the Table are not relevant to the damaged cables;

the fact that the current asset value of the damaged cables was RM202,801.92 was corroborated by the Plaintiff’s “Borang Laporan Kemalangan” dated 6.10.2020 prepared by PW1 wherein it was stated that the estimated value of the damaged cables was RM200,000.00; and

the Plaintiff paid RM145,156.76 to SUC for the alleged temporary repairs and RM406,901.75 to PMNM for the alleged permanent repairs, thus making the total sum of RM552,058.51.

In conclusion, the Defendant submitted that, if the Court finds some liability on the part of the Defendant, the Plaintiff’s claim of RM1,170,654.85 was grossly inflated and had included inadmissible and unrelated sums, and failed to reflect the depreciated and actual value of the damaged cables. As such, the Court should reject the Plaintiff’s claim in full or alternatively, award a sum of not more than RM202,801.92.

Firstly, it is trite that he who asserts must prove the assertion (see s 101 of the EA 1950). Therefore, the burden of proof lies on the Defendant to prove its pleaded defence on life span and depreciation in value of the damaged cables. In this regard, the Defendant relied on the Plaintiff’s own document, namely the Table.

Secondly, the short answer to the Defendant’s contentions on this matter is this; regardless of the lifespan and value of the Plaintiff’s cables which were damaged at the said Location, the Plaintiff was able, at the material time, to provide uninterrupted telecommunication services to its customers. However, following the said Damage, the Plaintiff’s services were disrupted as its cables had been cut midway, rendering them unable to transmit data and light with the same efficiency and reliability as they previously did. Accordingly, it would be impractical for the Plaintiff to rectify the said Damage by using cables or parts which were of similar age to the Plaintiff’s existing cables at the said Location as components aged between 10 to 15 years were no longer available in the market.

Thirdly, on the issue of the CWS cables, the documents relating to the lifespan and current asset value of the Plaintiff’s cables were based on the Affidavit in Reply affirmed by Muhammad bin Ibrahim on 30.9.2024 and filed in encl. 47. The deponent confirmed, among others, that the CWS cables were one of the infrastructures which were damaged. The person with knowledge on the documents was the deponent, as opposed to PW3.

Fourthly, one of the invoices issued by PMNM to TMB was Invoice No. 11304 dated 22.12.2021 for Contract No.: 3200000623, Project No.: A2B102003395 and Description: “CWS ADD 6W BREAKDOWN JLN ENGGANG”. This Case No. corresponds to the Case No. stated in the 7.11.2022 Letter. Hence, the rectification works referenced in the Invoice and Purchase Order pertain directly to the subject matter of this case.

The following part of this judgment involves a discussion on each item of claim which was disputed by the Defendant.

The detailed items are set out in the 2.11.2022 Invoice (see pp 50 - 51, B1). PW3 admitted that the “Bahan-Bahan” in Items 21 to 27 are for laying of new cables at the said Location. Copper cables

The Defendant’s submissions to resist the Plaintiff’s claim in respect of copper cables in Items 1 to 3 of the Table are repetitive of the earlier submissions alluded to, namely, that –

these cables are beyond their useful lifespan and have no remaining asset value. The burden lies on the Plaintiff to prove the quantum of loss suffered, including proving that the damaged assets still have value at the material time. In the absence of such proof, the Plaintiff was not entitled to be compensated for items that were, by its own records, already fully depreciated and valueless (see Satin Straits Sdn Bhd v. Seng San Bing [2019] 1 LNS 1836); and

the claim was for the repair of eight sections of copper cables amounting to RM220,600.74 despite the Plaintiff’s contemporaneous records i.e. Police Report and Borang Laporan Kemalangan, both dated 6.10.2020 and SUC’s Work Order Completion confirming that only one section copper cable was damaged.

I have dealt with both of the above contentions in the previous part of this judgment. To add, the Plaintiff aptly countered the Defendant’s arguments on the ground that the Police Report and Borang Laporan Kemalangan do not contain any statement that the damaged copper cables at the said Location comprised only a single section. PW3 had explained that the extent of the rectification works was not confined to the installation of a single section of copper cables at the said Location.

To the Defendant, the Plaintiff’s claim for this item in the sum of RM165,617.55 was exorbitant.

During cross-examination, PW3 testified that “Bahan-Bahan” as listed with the 2.11.2022 Invoice were items from the Plaintiff’s store. The Defendant submitted that such warehouse charges are expressly prohibited as decided in Amirus Construction’s case (supra) because the materials used for the rectification works were already in the Plaintiff’s inventory and not specifically procured for the alleged rectification works for the damaged cables.

I rejected the Defendant’s contention on the ground that the Defendant failed to establish, through any of the Plaintiff’s witnesses that the materials used for the rectification works were already in the Plaintiff’s warehouse and were not specifically purchased for purposes of the rectification works. In other words, unlike in Amirus Construction, no evidence was elicited from the Plaintiff’s works to prove the Defendant’s allegations and thereby that the claim for this item was unreasonable or exorbitant. CWS breakdown

The Defendant similarly repeated its submission that the alleged permanent repair works performed by PMNM in relation to the “CWS breakdown” in Jalan Engggang for the sum of RM132,063.59 has no relation to the damaged cables.

However, as discussed earlier, the Defendant’s contention was baseless.

The Defendant referred to the Plaintiff’s claim for labour costs in respect of its own employees as set out at p 174, B1 and argued that this claim was not supported by any supporting documentation such as timesheets, detailed breakdown or allocation methodology on how the labour costs were calculated or attributed to the alleged rectification works. Accordingly, the Plaintiff’s claim under this head must be rejected for lack of evidential basis (see Tenaga Nasional Berhad v. Zali Enterprise & Anor [2012] 1 LNS 410).

To my mind, there was evidence that the cost for labour was incurred in respect of the rectification works as the same Case No. appears in the document at p 174, B1. The document sets out the names and designations of the employees, number of working hours, amount for overtime and the total labour costs. Hence, the Plaintiff had adduced sufficient oral and documentary evidence to support this claim.

Basically, the Plaintiff had to incur costs to replace the cables because they were damaged by the negligent acts of the Defendant and the Plaintiff has discharged the burden of proving these items of claim.

Premised on the aforesaid considerations, the Court was satisfied that the Plaintiff has proven its claim against the Defendant on a balance of probabilities.

Therefore, the Plaintiff’s claim for the sum of RM1,170,654.85 was allowed with interest at the rate of 5% per annum on the judgment sum from 29.8.2023 (date of filing of the Writ and SoC) until full settlement.

Costs of RM80,000.00 was ordered to be paid by the Defendant to the Plaintiff, subject to allocatur fees. DATED: 9.2.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Plaintiff: Habizan Habeeb Rahman (Thevini Nayagam and Munirah Arshad with him) Messrs. Rahman Rohaida Solicitors for the Defendant: Arulampalam Mariampillai (Chong Ian Shin with him) Messrs. Arulampalam & Co.