MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING CIVIL APPEAL NO.

12B-23-2010-II
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BETWEEN KON SZE LENG (WN.KP.601211-13-5858) Lot 6116 Taman Pah Tah Batu 3 Jalan Matang 93050 Kuching, Sarawak CHAI KIT SEN (WN.KP.560713-13-5593) Lot 6116 Taman Pah Tah Batu 3 Jalan Matang 93050 Kuching, Sarawak AND

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1st Appellant

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2nd Appellant

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PHILIP ANAK NOHIM (WN.KP.600525-13-5661) (The administrator of the Estate Of KHEMSON ANAK PHILIP (Deceased)] Kampung Stenggang KM 11 Jalan Bau/Lundu 94000 Bau, Sarawak.

Respondent

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(In The Matter of Kuching Sessions Court No. 53-135-2008-III) BETWEEN

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PHILIP ANAK NOHIM (WN.KP.600525-13-5661) (The administrator of the Estate Of KHEMSON ANAK PHILIP (Deceased)]

Plaintiff

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AND KON SZE LENG (WN.KP.601211-13-5858)

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1st Defendant 2nd Defendant

CHAI KIT SEN (WN.KP.560713-13-5593)

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BEFORE THE HONOURABLE JUDICIAL COMMISSIONER Y.A. PUAN RHODZARIAH BT. BUJANG IN OPEN COURT

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JUDGMENT This appeal is against the award of RM57,600.00 for loss of dependency awarded against the appellants in respect of a road traffic accident which claimed the life of the deceased, the son of the respondent.

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The evidence in support of that award was the deceaseds employment as a worker with Sidewalk Caf with a monthly salary of RM450.00 and the respondents testimony that the deceased gave
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him RM150.00 per month and his mother another RM200.00 per month for that salary. He was only employed for 3 months at the Caf prior to his accident. The learned Sessions Court Judge however ordered loss of dependency at RM300.00 per month instead of RM350.00 sought by the respondent. The appellant submitted that

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RM80.00 per month should be the multiplicand in this case. The statutory multiplier under section 7(3)(iv)d of the Civil Law Act 1950 is

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not disputed at 16 years given that the deceased was 21 years at the time of his untimely demise.

The learned Sessions Court Judge in her judgment stated that

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in this case RM350.00 requested for is exorbitant because it is unbelievable that he would only spend RM100.00 for himself, being a young man of 21 years at that material time. I agree with her that RM350.00 is indeed unreasonable in the absence of any other proof other than the oral testimony of the respondent on the monetary loss of support.

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As for the appellants reliance on the Court of Appeals case of Takong Tabari v Government of Sarawak & Ors & Another Appeal [1998] 4 CLJ 589 in which the award for loss of dependency
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was further reduced after the statutory multiplier was applied, there is a contrary decision made by the Court of Appeal in a later decision of Ibrahim Ismail & Anor v Hasnah Puteh [2009] 1 CLJ 797 which held that such further deduction is contrary to law. It being a later decision, I am inclined to follow the same.

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The court however is entitled to deduct the deceaseds own living and expenses from the deceaseds salary. In Rebecca Mathew & Ors & Syarikat Kerjasama Serbaguna Gema Wong Siona Bhd & Anor [1990] 1 MLJ 443, one third was the formula
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used.

However the issue here is not the living expenses of the

deceased but the reasonableness of the maintenance he gave to his parents. The real problem in ascertaining and awarding damages

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under this head is that during the trial very little evidence was adduced from the witnesses on facts which could help to determine the deceased monthly expenses such as the distance from his house to the workplace, his means of transport and whether food was
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provided by his employer.

I say that the duty to adduce these

evidence lies with the respondents counsel which should be exercised in cross-examination because she has to rebut the contention made by the plaintiff in examination-in-chief that he and his wife received RM350.00 per month from the deceased. In my
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view these evidence have a direct bearing on the amount of multiplicand to be decided by the court. In the absence of such

evidence, if I were to disturb the learned Sessions Court Judges assessment of it, I would be merely substituting what I think is a reasonable figure with that of hers and that would not be fair. Whilst I
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agree with her that RM350.00 is definitely an unreasonable multiplicand in this case I cannot for the reasons I have stated above, substitute her assessment with my own. dismissed and with cost of RM1,000.00. The appeal is therefore

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Sgd. (Y.A. PUAN RHODZARIAH BT. BUJANG) Judicial Commissioner High Court II Kuching
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Date of Decision Date of Hearing

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: :

24th day of January 2011 10.1.2011 and 24.1.2011.

CA-12B-23-2010-II

For Appellants/ Defendants

Ms. Siti Hasmah bt. Hasbee Messrs. David Allan Sagah & Teng Advocates, Kuching. Mr. Joseph Kahell Baleng Messrs. Khaira & Co., Advocates, Kuching.

For Respondent/ Plaintiff