PACIFIC & ORIENT INSURANCE CO BERHAD v 1. ) TAN PEK GAN 2. ) WAKIL PERIBADI (DIDAKWA SEBAGAI WAKIL SIMATI, LEE SIEW CHENG) 3. ) TAN BENG CHU (IBU KEPADA CHUAH SEW HOCK, SIMATI)

Case Significance

Illustrates that civil appeals from the Subordinate Courts are by way of re-hearing under section 29 of the Courts of Judicature Act 1964 and Order 55 rule 2, and the recognition of a motor insurer's interest, as the effective paymaster, in defending a claim on its merits.

This High Court decision at Georgetown concerns the nature of a civil appeal from a Subordinate Court and the entitlement of a motor insurer to defend a claim in which it is, in substance, the real paymaster. The insurer, joined as the third defendant, appealed against a Sessions Court decision that had struck out its application. Because the individual parties are natural persons named only as litigants — one of them sued in a representative capacity for a deceased — this analysis refers to them by role, while the insurer is named. The court treated the appeal as raising a significant point capable of guiding the lower courts.

The court began from the settled principle that all civil appeals from a Subordinate Court to the High Court are by way of re-hearing, under section 29 of the Courts of Judicature Act 1964 and Order 55 rule 2 of the Rules of Court 2012. As explained in authority such as Chan Lai Yoke v Ess Engineering Sdn Bhd, on a re-hearing the appellate judge is not confined to asking whether the court below exercised its discretion correctly or properly considered the material; he considers the case as if it came before him for the first time. That standard framed the court's review of the striking-out below.

On the substance, the court recognised the insurer's position as the real and substantial defendant and paymaster, in contrast to a nominal defendant, and the importance — reflected in authority such as Jiwaneswary v Etiqa General Takaful — of allowing such a party to participate in the defence of the claim. Concluding that the applications ought to be determined on their merits, the court allowed the appeal and remitted the applications to be disposed of on the merits before the same Sessions Court Judge, making no order as to costs. The judgment is a useful illustration of the re-hearing nature of appeals from the Subordinate Courts and of the courts' recognition of an insurer's legitimate interest, as the effective paymaster, in defending a motor claim on its merits.