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2014 MarsdenLR 496
HIGH COURT MALAYA IPOH
GURDEEP SINGH MELKHA SINGH – Appellant
Versus
MALAYSIA AIRLINES SYSTEM BERHAD – Respondent
[Civil Suit No: 22NCVC-201-09/2011]
Insurance benefits for permanent disablement are conditioned on the nature of the disablement being a result of an accident, as interpreted under the relevant MOU provisions.
Headnote:(A) Memorandum of Understanding (MOU) - Clause 3 of the 2nd Schedule - Employment Contract - Interpretation of Permanent Disablement - Plaintiff claimed RM468,792 for insurance benefits due to disablement claimed not related to an accident - Defendant denied the claim based on MOU's terms - Court found that permanent disablement referred to is related to accidents, and since plaintiff's condition arose from illness, he is not entitled to the claim under the MOU - Clause 3 binds the interpretation of 'personal accident' - The last drawn salary was established as RM19,533.00 based on MOU provisions. (Paras 1, 12-28)
(B) Employment Regulations - Interpretation of Terms - Court emphasized that the headings of clauses in MOUs aid in understanding contractual obligations - The ordinary meanings of 'permanent' and 'disablement' must be observed. (Paras 12, 25)
(C) Claim Dismissal - Claim for insurance benefits was dismissed - The plaintiff failed to establish his claim due to the non-accidental nature of his disablement. (Paras 27, 28)
| Table of Content |
|---|
| 1. insurance claim basis and challenge. (Para 1 , 2) |
| 2. employment history and medical background. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 3. issues agreed for determination. (Para 11) |
| 4. court's view on permanent disablement. (Para 12 , 13 , 14) |
| 5. interpretation of mou clauses. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 6. distinction of insurance clauses. (Para 22 , 23) |
| 7. consideration of document background in interpretations. (Para 24 , 25 , 27) |
| 8. summary of decisions and outcomes. (Para 26 , 28) |
Introduction
[1] The plaintiffs action against defendant is based on aninsurance claim for permanent disablement benefit totalling RM468,792.00which is said to be governed by the Memorandum of Understanding (MOU) entered into between Malaysia Airline Pilots Association (MAPA) and the defendant for the year 2007 to 2010 (MOU 2007- 2010).
[2] The defendant denied the claim and said that the plaintiff is not entitled to claim for personal accident insurance since the plaintiffs disablement did not arise from an accident and the term of his employment was governed by the MOU entered into between MAPA and the defendant for the year 2004 to 2007 (MOU 2004-2007) and not MOU 2007-2010.
Brief Undisputed Facts
[3] The Plaintiff was a former pilot rank as a Captain employed by the Defendant since 26 December1991.
[4] The terms and conditions of the Plaintiffs employment were based on the "Terms and Conditions of Employment of Pilots" contained in MOU entered into between the Defendant and MAPA and are reviewed and re-negotiated between the Defendant and MAPA from time to time.
[5] The Plaintiff was diagnosed with vertigo on 2 June 2006.
[6] Due to the illness suffered by the plaintiff, the Department of Civil Aviation (DCA) issued a notice to permanently ground the Plaintiff on 8 October 2007 and he was not allowed to fly as a pilot. Based on the DCAs notice, the permanent grounding took effect from 11 September 2007.
[7] On 9 October 2007, the Defendant issued a 3 months notice to terminate the Plaintiffs employment following the DCAs decision to permanently ground the Plaintiff. On 8 January 2008, the Plaintiff ceased his employment with the Defendant.
[8] The Plaintiff was at all times on medical leave before the Defendant issued the notice of termination on 9 October 2007 and received salary up to 6 months in a year as provided for under MOU.
[9] The Plaintiff was fully paid for his medical treatments in Malaysia and in London, United Kingdom (which included flight tickets to London).
[10] The Plaintiff also had received a total of RM430,000.00 for loss of license benefit.
Issues
[11] Parties agreed that there are 4 issues to be determine as per bundle of document marked as G.
i) Whether the Plaintiff is entitle to claim under clause 3.1 of the 2nd Schedule (Article 9) page 44 of the MOU 2007-2010.
ii) Whether the plaintiff suffered from a permanent disablement during his employment with the defendant.
iii) In the event the plaintiff suffered from a permanent disablement during his employment with the defendant, whether the permanent disablement was result of an accident.
iv) Whether the last drawn salary of the plaintiff is RM16,985.22 or RM19,533.00.
Decision
[12] The 2nd and 3rd issues are the main issues to be decided. As regard to the 2nd issue, there is no definition of permanent disablement in the MOU. I agree with the defendants counsel that the ordinary meaning of these words should help. He referred to The New Shorter Oxford English Dictionary (Clarendon Press, Oxford, 1993), pp 682 and 2166 which defines:
(a) permanent as an adjective which means continuing or designed to continue indefinitely without change...
(b) disablement as a noun which means the action of disabling; the state of fact of being disable. The word disable is in turn define as make incapable of action or use; deprive of physical or mental ability, especially through injury or disease.
[13] Perusing the medical reports tendered before me, I agree t
