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2024 MarsdenLR 788
HIGH COURT MALAYA IPOH
ZURICH TAKAFUL MALAYSIA BERHAD – Appellant
Versus
YATHAVAN DORAISAMY & ANOR – Respondent
[Suit No: AA-22NCVC-25-04/2020]
Amendments to pleadings may be permitted at any stage of proceedings if they serve the interests of justice and do not cause undue prejudice to the opposing party.
Headnote:(A) Civil Procedure Rules 2012 - Order 20 Rule 5 and Order 92 Rule 4 - Amendment of statement of claim - Plaintiff sought leave to amend its claim and reopen its case after closing its evidence - Court allowed amendments in the interest of justice, emphasizing the importance of a fair trial. (Paras 9, 10, 12, 22)
(B) Insurance Law - Principle of utmost good faith (uberrimae fidei) - The necessity to disclose all relevant information in insurance contracts is paramount, and amendments were justified to ensure all evidence is presented fairly. (Paras 6, 18)
Facts of the case:
The plaintiff, a licensed takaful operator, issued a takaful policy to a deceased individual, alleging fraudulent misrepresentation by the nominee and seeking to amend its claim based on contradictory evidence revealed during trial.
Findings of Court:
The court found that allowing the plaintiff's amendments and reopening the case would aid in ensuring justice and a fair determination of the parties' rights.
Issues: The primary issues included whether the amendments would cause undue prejudice to the defendants and the credibility of the evidence presented.
Ratio Decidendi: The court ruled that amendments could be granted at any stage if they do not result in injustice and emphasized the need for all relevant evidence to be considered.
Result: Plaintiff's applications to amend and reopen the case were allowed, with costs awarded to the defendant.
JUDGMENT
[1] The plaintiff filed an application in encl 121 under O 20 r 5 and O 92 r 4 of the Rules of 2012, seeking leave to amend its amended statement of claim dated 21 January 2022 30 and simultaneously filed an application in encl 124 to reopen the plaintiff's case, in anticipation of the amendment. These applications were made after the trial had progressed into the defendant's case, with the plaintiff having already closed its case. The defendants object to both applications for this reason and others.
[2] Since the amendment application in encl 121 directly impacts the application to reopen the plaintiff's case, this Court decided to hear the application in encl 121 first. Upon granting the amendment, I have also, in the interest of a fair trial, allowed encl 124 for the plaintiff to reopen its case.
Background Facts
[3] The plaintiff, a licensed takaful operator, issued a takaful policy known as Takaful Senior Gold (Certificate No Z173718852) to Mr Parameswaran A/L Kanaan, now deceased. The 1st defendant (D1) was named as the nominee in the policy. The 2nd defendant (D2), the deceased's lawful wife, is the representative of his estate. The plaintiff initiated this action, seeking a declaration to repudiate the policy and to be deemed null and void due to alleged fraudulent misrepresentation by D1 at the time of the policy's issuance.
[4] Initially, the plaintiff was represented by Messrs. Francis Pereira & Shan. However, after the plaintiff had closed its case and the defendants started their case, the plaintiff's solicitors recused themselves due to a material conflict of interest arising from the evidence given by SD-3, Rajama a/p Arachanan. As a result, a new firm of solicitors, Messrs. K.B. Tan, Kumar & Partners, was appointed on 25 April 2024, the solicitors then filed Enclosures 121 and 124.
The Plaintiff's Case
[5] The plaintiff applied to re-amend the amended statement of claim due to new evidence arising from witnesses' evidence during trial statements and the discovery of contradictory information. D1 had testified that the deceased was his cousin, and Madam Bavanni (SD2) had also claimed the same, stating she was D1's wife. The Plaintiff contends as follows:
a) That in the course of the trial, the D1 testified that the deceased, Mr Parameswaran A/L Kanaan, was his cousin. This statement was intended to establish a familial relationship between D1 and the deceased, presumably to support D1's role as the nominee in the Takaful Senior Gold policy.
b) That Madam Bavanni, a witness for the defence, testified that she was both the wife of D1 and a cousin of the deceased. This dual claim serves two purposes: firstly, to align herself with the deceased through familial ties, and secondly, to position herself in a close relationship with D1, thereby attempting to strengthen their collective credibility regarding the Takaful policy and any claims of entitlement.
c) That the testimony of D1 and Madam Bavanni introduces significant contradictions and raises questions about the veracity of their statements. On one hand, the claim that Bavanni is D1's wife conflicts with her being the nominee for the deceased under another insurance policy (the AIA Policy), where her stated relationship to the deceased is listed as "Spouse." On the other hand, D1's assertion that the deceased was his cousin is directly contradicted by his designation as the deceased's "Son" in the AIA Policy. These inconsistencies highlight potential misrepresentations aimed at manipulating the outcomes of claims under various insurance policies.
d) That during cross-examination, D1 denied being named as a nominee in any other insurance policies issued to Parameswaran A/L Kanaan, the deceased. However, upon the advice of new solicitors, the plaintiff obtained a copy of an AIA policy, which was exhibited in encl 122 as "Exhibit HSY-2" that revealed D1 had paid premiums using his CIMB card and was listed as the deceased's "Son," while Bavanni was
