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2022 MarsdenLR 1732
SESSIONS COURT SEPANG
LUGENDRAN SELVARAJA – Appellant
Versus
SARAN BATHUMALAI; ETIQA GENERAL TAKAFUL BERHAD (APPLICANT) – Respondent
[Civil Suit No: BK-A53KJ-126-06/2021]
Insurers can intervene in lawsuits to protect interests when allegations of fraud arise, especially regarding their obligations under statutory provisions.
Headnote:(A) Rules of Court 2012 – Order 15 r 6 – Road Transport Act 1987 – Section 96 – Application for intervention by insurer in running down action – Insurer's right to intervene established to address allegation of fraud in main action – Affidavit by solicitor deemed improper when it contained disputed facts (Paras 7-12).
Facts of the case:
The application involved a running down action due to a motor vehicle accident, with procedural challenges regarding affiants in the applicant's objections (Paras 3-6).
Findings of Court:
The applicant demonstrated a prima facie case for intervention and was allowed as a 2nd defendant (Paras 34-36).
Issues
: Whether a solicitor can depose an affidavit on behalf of a litigant in presence of disputed facts (Paras 9-10).
Ratio Decidendi:
A solicitor should not depose a contentious affidavit; the applicant's intervention helps resolve issues of fraud without delay and ensures all disputes are settled in one proceeding (Paras 12, 30-32).
Result:
Application allowed with costs.
JUDGMENT
Introduction
[1] The present application for determination is relatively narrow. It concerns Etiqa General Takaful Berhad's (the applicant) application for intervention in the proceedings (the application) vide encl 11 pursuant to O 15 r 6 of the Rules of 2012 ( ROC 2012). The application was supported by the Affidavit in Support (Encl 12).
[2] I allowed the application and hereinbelow the reasons.
Main Action
[3] Stripped to its bare bones, the factual backdrop stands as follows. This application had its genesis in the running down action commenced by Lugendran a/l Selvaraja (the plaintiff) against Saran a/l Bathumalai (the defendant), arising out of a motor vehicle accident alleged to have taken place on 6 September 2015 between the plaintiff's motorcycle, bearing registration number BML 5683 and a car bearing registration number WGG 1601 driven by the defendant. At the material time, the car belonged to the defendant.
[4] Sometime in 2017, the plaintiff commenced an action against the defendant vide Civil Suit No: A53KJ-108-07/2017 (the original action). The plaintiff was represented by Tetuan Eric & Company. The applicant had successfully intervened in the original action and been added as the 2nd defendant. The plaintiff withdrew the original action with the liberty to file a fresh suit.
[5] On 26 June 2021, the plaintiff commenced another action against the defendant vide Civil Suit No: A53KJ-126-06/2021 (the main action). The plaintiff is now represented by Tetuan Darshan Syed Amarjit & Partners.
[6] The defendant has taken an insurance policy from the applicant for a car bearing registration number WGG 1601. As stipulated under the defendant's insurance policy terms, the applicant bears the right to defend the defendant against the plaintiff's claim. Consequent thereto, the applicant appointed Messrs. Jayadeep Hari & Jamil to represent the defendant in the preparation and conduct of the defence in the main action. The applicant then has access to the relevant cause papers filed therein.
Preliminary Objection
[7] Learned counsel for the applicant at the outset raised a preliminary objection on the locus of the plaintiff's solicitor in affirming the Affidavit in Reply for the plaintiff. In this regard, it was strenuously argued for the applicant that the respective affidavit should have been affirmed by the plaintiff as it contained contentious or disputed facts. To this end, counsel for the applicant submitted that the depositions contained therein are of no credence and ought to be rejected.
[8] As clearly appears from the written submission, learned counsel for the plaintiff made no address on the preceding challenge.
[9] The sole issue is whether a solicitor may depose an affidavit on behalf of a litigant?
[10] There have been many judicial pronouncements as to the conditions which have to be fulfilled before a solicitor may depose an affidavit on behalf of a litigant. They include two classic statements of principles which have been frequently quoted in judgments and law books. In Seng Huat Hang Sdn Bhd v. Chee Seng & Co Sdn Bhd, ; [1985] CLJ (Rep) 760, Edgar Joseph HCJ (later FCJ) observed that "...With respect, in matters where disputed questions of fact are involved, it is for the parties and not their solicitors to affirm affidavits relating thereto". In Million Group Credit Sdn Bhd v. Lee Shoo Khoon & Ors; [1986] 1 MLJ 315; [1985] CLJ 575, Mahadev Shankar HCJ (later JCA) observed that ".the practice of solicitors themselves filing contentious affidavits in pending applications should be discouraged. The parties are the litigants and it is they who should be giving evidence."
[11] And reverting to the case at hand, I find it apt, to reproduce the observation by Ramly Ali HCJ (later FCJ) in Malayan Banking Bhd v. Charterefield Corporation Sdn Bhd , , wherein His Lordship observed, "... a solicitor may depose an affidavit on behalf of the litigant if all the following conditions are fulfille
