Wong Yik Kenn v Jit Kaur A/P Sarmuk Singh (BA-12A-35-08/2023)

JIT KAUR A/P SARMUK SINGH [NO. K/P: 541030-08-5298] [menuntut bagi diri sendiri dan juga selaku Tanggungan kepada Hardeep Kaur a/p Jeeth Singh yang meninggal dunia pada 25.5.2003]

MOHD TAMIMI BIN MAT [NO. K/P: 771105-05-5899]

NOR MAZLINA BT MAT NOR WANI [NO. K/P: 760405-08-6394]

ALI BIN OTHMAN [NO. K/P: 420312-02-5129] …RESPONDEN-RESPONDEN [Dalam Mahkamah Sesyen Di Selayang Dalam Negeri Selangor Darul Ehsan, Malaysia Saman No: 53-181/2009 Antara Jit Kaur a/p Sarmuk Singh [No. K/P: 541030-08-5298] [menuntut bagi diri sendiri dan juga selaku Tanggungan kepada Hardeep Kaur a/p Jeeth Singh yang meninggal dunia pada 25.5.2003] …Plaintif Dan Mohd Tamimi bin Mat [No. K/P: 771105-05-5899] …Defendan Pertama Wong Yik Kenn [No. K/P: 841212-14-6199] …Defendan Kedua Nor Mazlina bt Mat Nor Wani [No. K/P: 760405-08-6394] …Defendan Ketiga Ali bin Othman [No. K/P: 420312-02-5129] …Defendan Keempat] JUDGMENT Introduction [1] There are two appeals before this Court, namely, Appeal No BA- 12A-33-08/2023 (“Appeal 33”) and Appeal No BA-12A-35-08/2023 (“Appeal 35”). These appeals involve a running down matter. [2] The Appellants in Appeal 33 and Appeal 35 were the Third Defendant and Second Defendant respectively at the Sessions Court. The Plaintiff at the Sessions Court is the present First Respondent in both Appeal 33 and Appeal 35. At the Sessions Court, the Plaintiff had commenced an action against four defendants as a result of a collision involving four vehicles. [3] The Plaintiff had filed the suit in her personal capacity and also as a dependant of the deceased Hardeep Kaur A/P Jeeth Singh for a claim under Section 7 and 8 of the Civil Law Act 1956 against the Defendants [4] The Second and the Third Defendants are the present Appellants in Appeal 35 and Appeal 33 respectively. The First and Fourth Defendants are not involved in these appeal (though they have been named as the Second and Fourth Respondents in both Appeal 35 and Appeal 35. As a matter of fact, the Appellant in Appeal 33 has named the Second Defendant as the Third Respondent and the Appellant in Appeal 35 has named the Third Defendant as the Second Respondent). [5] These appeals are peculiar for the simple reason that the Appellants are seeking to set aside a judgment in default that does not appear on the court’s records. However, an assessment of damages was undertaken (based on that supposed judgment in default) with final judgment (after assessment of damages) entered against both the Appellants in Appeal 33 and Appeal 35. Notwithstanding the above, the Appellants seek to set aside the judgment in default on the ground that it was an irregular judgment or alternatively, they have defence on the merits. The Overriding Issues [6] The principal issue in these appeals is whether the learned Sessions Court Judge had erred in law and/or in fact in dismissing the Appellants applications to set aside the judgment in default. [7] Arising from above main issue are the following two key issues for consideration in Appeal 33, that is, first, whether there was proper service of the Writ and Statement of Claim and second, whether the Appellant was able to demonstrate defence on the merits in the event that the court answers the first question in the affirmative. [8] As for Appeal 35, the sole consideration is the question of whether the Appellant has defence on the merits. The Respective Contentions in Appeal 33 [9] The parties shall be referred to as they were in the Sessions Court. [10] It is the Third Defendant’s contention that she was never served with the Writ and Statement of Claim, thereby entitling her to have the default judgment to be set aside ex debito justitae. [11] The Third Defendant also averred that she has defence on the merit, again warranting an order for the default judgment to be set aside. [12] On the issue of the service of the Writ and Statement of Claim, the Third Defendant alluded to the fact/evidence that although the Plaintiff’s Affidavit of Service affirmed by one Raymond Charles A/L David shows an A.R. Registered Post card which was never acknowledged/endorsed by the Third Defendant herself nor any recipient on behalf of the Third Defendant. [13] The Third Defendant’s conceded that a duly acknowledged A.R registered posting by the intended recipient is a proof of a proper service. However, “in the event the service fails, it is incumbent for the Plaintiff to apply for substituted service”. In this appeal, The Third Defendant pointed out that what the Plaintiff had done was to merely attach “an A.R registered posting without the acknowledgement of receipt from the Third Defendant. This, accordingly to the Third Defendant, was an attempt “to deceive the Court that a proper service had been done” and in addition, there was no application for substituted service. [14] In support of the above arguments, the Third Defendant referred this Court to the decisions of the Court of Appeal and the Federal Court in Chung Wai Meng v Perbadanan Nasional Berhad [2017] AMEJ 0635; [2017] CLJU 892; [2017] MLJU 814; [2017] 1 MLRA 331 (“Chung Wai Meng”) and Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 AMR 881; [2021] 4 CLJ 348; [2021] 3 MLJ 158; [2021] 2 MLRA 682 (“Goh Teng Whoo”) respectively. [15] As for the defence on the merits arguments, the Third Defendant asserted that the Session Court had failed to consider the fact that the Plaintiff, besides claiming in her personal capacity, is also claiming as a dependant of the deceased Hardeep Kaur A/P Jeeth Singh and the Plaintiff’s claim for loss of support is time-barred under section 7(5) of Civil Law Act 1956. This, together with the pleaded Defence, according to the Third Defendant, constitute as valid ground for this Court to allow her appeal to set aside the judgment in default. [16] In reply, the Plaintiff urged this court to follow Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 3 AMR 28; [2008] 4 CLJ 175; [2008] 5 MLJ 112; [2008] 1 MLRA 276 (“Yap Ke Huat”) and Pengkalen Concrete Sdn Bhd v Chow Mooi (Guarantor of Kin Hup Seng Construction Sdn Bhd) & Anor [2003] AMEJ 0063; [2003] 6 CLJ 326; [2003] 3 MLJ 67; [2005] 2 MLRH 311 (“Pengkalen Concrete Sdn Bhd”) which held that proof of posting is sufficient to construe proof of service and not proof of receipt. [17] As for the defence on the merits ground, the Plaintiff submitted that the Third Defendant “is only bringing these issues up now despite the fact that they had an opportunity to defend this matter and raise the issues then”. Therefore, it was the Plaintiff’s contention that the Third Defendant “is estopped to raise the issue now as they have waived their rights to do so”. [18] The Plaintiff further contended as follows: … the Plaintiff’s claim here is two-fold as seen in the Judgement dated 31.03.2011 (refer page 29-32 of the Rekod Rayuan). First is her claim made in her personal capacity claiming for General and Special Damages due the injuries she suffered as a result to the accident (“personal claim”). Second claim is a Dependency Claim for Loss of Support which she brought as a dependent of her daughter deceased Hardeep Kaur a/l Jeeth Singh who had succumbed due to the accident under s7 & s8 of the Civil Law Act 1956. In the event if this Honourable Court is of the view that the Plaintiff’s claim with regards to the Dependency claim is time-barred and is considered to be a defence on merits, this, in fact, does not render the whole judgment invalid. This is because part of the Judgment pertaining to the Plaintiff’s personal claim for the injuries that she suffered due accident is still valid and intact. [19] Last but not least, the Plaintiff argued that since the Plaintiff has a valid personal claim, the Third Defendant “does not have a meritorious defence with regards the said claim because the Plaintiff was a passenger at the material time of the accident, and it is trite law that the issue on liability with regards to a passenger is a non-issue as the Plaintiff who is a passenger in the motorcar is entitled to her claim on a 100% basis”. The Decision of this Court [20] This Court notes that the previous Plaintiff's solicitors had commenced the action against all the Defendants concerned on 20 May,

This fact is undisputed. Whether the Writ and Statement of Claim were served on the Third Defendant is an issue before this Court. [21] A judgment in default was said to have been entered against the Second, Third and Fourth Defendants. Interestingly, the said default judgment is not before this Court. If indeed there was a judgment in default in the first place, that would be an interlocutory judgment in default. [22] On the basis that the default judgment was an interlocutory judgment in default, an assessment of damages was subsequently conducted in the Sessions Court on 31 March 2011. This assessment took place without the presence of the Second, Third, and Fourth Defendants, resulting in the current judgment being entered against them for the damages owed. [23] This Court was also informed that the Plaintiff’s previous solicitors had not commenced any execution proceeding against the Defendants and/or the respective insurers. Upon taking over conduct of this matter, the present solicitors for the Plaintiff had immediately sought leave from the Sessions Court to execute the said Judgement to which the application was allowed. The learned Sessions Judge had also granted a stay of execution vide an oral application made by the Third Defendant’s Solicitors pending the disposal of her application to set aside the judgment dated 31 March, 2011. [24] With the above background facts, this Court shall now proceed to deal with the issue pertaining to the validity of the service of the Writ and Statement of Claim. On this issue, the learned Sessions Court Judge remarked as follows: [14] Peguam Plaintif berhujah bahawa serahan Writ dan Pernyataan Tuntutan terhadap Defendan Ketiga telah disempurnakan melalui pos A.R. Berdaftar. Peguam cara Plaintif terdahulu iaitu Tetuan Ramesh & Loo telah menyerahkan kedua-dua kertas kausa tersebut dan telah memaklumkan tarikh Pengurusan Kes yang telah ditetapkan pada 20.10.2010 yang telah diakui terima oleh Defendan Ketiga. Oleh itu, ia telah memenuhi syarat penyampaian Writ dan Pernyataan Tuntutan di bawah Aturan 10 subkaedah 1(1) KKM 2012. [15] Mahkamah bersetuju dengan hujahan peguam Plaintif dan Mahkamah juga mendapati bahawa Notis Statutori di bawah subseksyen 96(2) Akta Pengangkutan Jalan Raya 1987 telah diserahkan oleh Plaintif kepada pihak insurans Defendan Ketiga iaitu Uni Asia General Insurance Berhad melalui serahan tangan oleh Plaintif dan surat tersebut telah diakui terima oleh pihak insurans Defendan Ketiga. Pihak insurans Defendan Ketiga juga telah dimaklumkan mengenai tarikh Pengurusan Kes yang telah ditetapkan pada 16.04.2010. Pada masa yang sama sesalinan Writ dan Pernyataan Tuntutan Plaintif bermeterai telah diserahkan kepada pihak insurans Defendan Ketiga. [25] This Court is of the considered view that the Plaintiff had failed to comply with the requirements of Order 10 rule 1(1) of the Rules of Court 2012 which permit, as a general rule, three modes of service, namely: • personally on each defendant; or • sent to each defendant by prepaid A.R. registered post addressed to his last known address; or • by means of electronic communication in accordance with any practice direction issued for that purpose. [26] The position with regards the service of a writ by way of prepaid A. R. registered post is settled law. In Chung Wai Meng, the Court of Appeal held as follows: [40] … in order to prove due service of the Writ and SOC on the Defendant it is not for the Court as in the case of Sivamurthy (supra), and Yap Ke Huat (supra) to dispense with the requirement to prove receipt of the Writ and SOC by the person named in the AR registered post, or proof that the acknowledgement of the AR registered posting has been returned and duly acknowledged by the intended recipient. [41] We are of the considered view that the lacuna in O. 10 r. 1(1) of the ROC must be interpreted in favour of the intended recipient, and in this case, the Appellant. As submitted by the Appellant, if service by AR registered post on the Appellant fails, then it is incumbent upon the Respondent to apply for substituted service of the Writ and SOC on the Appellant. [42] In this case, it is clear that, as a first step the Respondent had failed to show proof of due service of the Writ and SOC under O.10 r.1(1) of the ROC on the Appellant. Therefore, we are of the unanimous decision that the JID has been irregularly obtained. That being the case, it must be set aside ex debito justitiae [27] In Goh Teng Whoo, the Federal Court made reference to Chung Wai Meng’s case and went on to outline the position follows: [28] On the authority of Chung Wai Meng, it was submitted that the High Court had fallen into error in holding as a matter of law that service by AR registered post is deemed to have been effected by the posting receipt issued by the post office. It was argued that service is only duly effected upon production of the AR card as proof that the intended defendant had acknowledged receipt of the writ by signing on the AR card. It was thus urged upon us that the later decision of the Court of Appeal in Chung Wai Meng is to be preferred over Yap Ke Huat. … [32] Thus, if there is evidence that the defendant has not been served with the document, the presumption is rebutted and the court will make a finding that there has been no service of the document in an application for setting aside. It is anathema to the concept of justice and fair play that a defendant who has no knowledge of the action is attached with liability without being given the opportunity to explain why the default judgment should not be entered against him. [33] It must be appreciated that the presumption of service under section 12 of the Interpretation Acts only kicks in if the document has been sent by registered post to the proper address of the defendant, in the case of O. 10 r. 1(1) of the Rules to his last known address. Failure to do so will render the service bad in law and consequently no JID can be entered against the defendant, unless there is evidence direct or circumstantial to prove that service by post had been effected without the aid of the presumption. [34] In the context of the present appeal, the question is whether the respondent had sent the writ by AR registered post addressed to the last known addresses of the appellants as required by O. 10 r. 1(1) of the Rules. If that had been done, service by post would be presumed to have been effected by operation of section 12 of the Interpretation Acts and the burden would then shift to the appellants to prove to the contrary that they had not been served with the writ. [35] Whether or not the respondent had complied with O. 10 r. 1(1) of the Rules by sending the writ by AR registered post addressed to the last known addresses of the appellants and whether the appellants had rebutted the presumption of service under section 12 of the Interpretation Acts by proving that they did not receive the writ were matters for the trial court to determine, being questions of fact. [36] In the present case, the approach taken by both courts below was that posting of the writ by AR registered post was conclusive proof of service, thus leaving no room for the appellants to discharge their burden of proving that they did not receive the writ, in rebuttal of the presumption under section 12 of the Interpretation Acts. [37] We have to say with regret that this is a wrong approach which had occasioned a serious miscarriage of justice to the appellants in that they had lost the chance of having the JID set aside ex debito justitiae on the ground that they were irregularly obtained for failure of service. The error is serious enough to vitiate the judgments entered against them. … [43] For all the reasons aforementioned, our answer to the leave question is in the negative, that is to say, where service of a writ is alleged to have been effected by way of sending the same to a defendant by A.R. Registered post pursuant to O. 10 r. 1(1) of the Rules of Court 2012, the court cannot seal a judgment in default of appearance where the affidavit of service does not exhibit the A.R. Registered card containing an endorsement as to receipt by the defendant himself or someone authorized to accept service of the same on his behalf. [28] Even if we accept the Plaintiff’s argument that the law then in 2009 was that “proof of posting was sufficient service and that there was no necessity to prove receipt”, Yap Ke Huat and Pengkalen Concrete Sdn Bhd did hold that this rule is however subject to rebuttal evidence adduced by the defendants to prove the contrary. [29] The service of the Statutory Notice on the insurer as required under section 96(2) of the Road Transport Act 1987 has no bearing on the issue under consideration. [30] Based on the above authorities and findings, the answer to the question raised in the first issue is in the negative. [31] The judgment in default was one that was irregular and ought to be set aside. [32] This Court also finds that there is defence on the merits. [33] The riposte to the Plaintiff submission re the limitation defence is simply this: indeed, the Third Defendant would have raised and pleaded limitation, if she had been served with the Writ and Statement of Claim. [34] The Plaintiff’s argument as raised in paragraph [19] above is not entirely without basis. Be that as it may, there are still questions that have been raised relating to the apportionment of liability involving the various parties and these questions are to be ventilated at the trial of the suit. [35] The answer to the question raised in the second issue is in the affirmative. [36] The decision of the Sessions Court in dismissing the Third Defendant’s application to set aside the default judgment is set aside. The judgment of 31 March, 2011 is hereby set aside. The Parties’ Contentions in Appeal 35 [37] Unlike Appeal 33, the Plaintiff had served the Writ and Statement of Claim on the Second Defendant by way of substituted service. [38] This meant that the judgment in default was a regular judgment in default. It should also be mentioned that although it was a regular default judgment, it was nevertheless, at least before the hearing of the assessment of damages, an interlocutory (regular) default judgment. [39] Henceforth, the sole issue in this appeal is whether the Second Defendant is able to show defence on the merits. [40] The Second Defendant raised similar grounds as the Third Defendant and adopted the submissions of the Third Defendant in Appeal 33. [41] Likewise, the Plaintiff raised analogous grounds and arguments as per Appeal 33. The Decision of this Court [42] The findings and decision of this Court in Appeal 33 as outlined in paragraphs [32] to [36] above apply to the present appeal. Cost [43] The Third and Second Appellants/Defendants in Appeal 33 and Appeal 35 respectively sought costs of RM2,000. The First Respondent/Plaintiff, however, contended that no order as to costs should be made for this appeal. The key question before this Court is whether any party bears responsibility for the current situation. Upon considering the matter in its entirety, the Court finds that the parties are not to be faulted. Accordingly, each party shall bear his/her/its own costs for these appeals. Concluding Observations [44] The Plaintiff drew this Court’s attention to the fact that while the Second and Third Appellant/Defendants’ appeal was against the decision of the Sessions Court is dismissing their applications to set aside a judgment in default, to all intents and purposes, their applications were in actual fact to set aside the judgment that was entered against them after assessment of damages, that is, the judgment of 31 March, 2011. There was mention of the judgment in default at the assessment of damages hearing but that did not detract from the fact that evidence of the judgment of default was not before court. Hence, the judgment in default was never produced – as far as the records of these appeals are concerned and thus remains a mystery. Whether the Sessions Court should have proceeded to assess damages is another question. Despite the missing judgment in default, and despite the initial applications before by the Second and Third Defendants being one for the setting aside of the judgment in default, this Court finds that the setting aside of the default judgment (if there were indeed one) and the judgment of 31 March, 2011 as one that is correct in law. Dated: 11 November, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Saranpal Singh Gill for the Appellant (Messrs. Kenneth William & Associates) Roshvinder Singh Harbindar Singh with Satvinder Singh Hardial Singh for the First Respondent (Messrs. Khalil Surinder & Associates.) Ratnavathy Navaratnam with Archana Devi Thirumalai and Viknesvaran Kanapathippillai for the Third Respondent (Messrs. Viknes Ratna & Co.)