C.I. GROUP PUBLIC COMPANY LIMITED CITY ZONE EXPRESS SDN BHD

[JB-12BNCVC-2-02/2024] JB-12BNCvC-2-02/2024 September 12, 2024 Kand. 29 31/12/2024 12:34:22 DALAM MAHKAMAH TINGGI MALAYA DI MUAR DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA RAYUAN SIVIL NO.: JB-12BNCVC-2-02/2024 ANTARA C.I. GROUP PUBLIC COMPANY LIMITED … PERAYU DAN CITY ZONE EXPRESS SDN BHD (No.Pendaftaran: 755448-V) … RESPONDEN [Dalam Mahkamah Sesyen Di Batu Pahat Dalam Negeri Johor Darul Takzim,Malaysia Guaman No.: JC-A52NCVC-12-11/2021 ANTARA C.I. GROUP PUBLIC COMPANY LIMITED … PLAINTIF DAN CITY ZONE EXPRESS SDN BHD (No.Pendaftaran: 755448-V) … DEFENDAN CORAM: SURIA KUMAR A/L DURAIRAJ JOHNSON PAUL JUDICIAL COMMISSIONER S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 [JB-12BNCVC-2-02/2024] September 12, 2024  GROUNDS OF JUDGEMENT  INTRODUCTION [1] This appeal concerns a claim in a contract of bailment. [2] The LSJ dismissed the Appellant/Plaintiff’s claim. The Plaintiff appeals against the said decision. [3] Parties will be referred to as the Plaintiff and Defendant hereinafter. BACKGROUND FACTS [4] The background facts set out in the Plaintiff’s submissions are narrated below. [5] Plaintiff is a registered company in Thailand that sells and or supplies air conditioner components and the Defendant is a registered company in Malaysia that provides logistic services. [6] Pursuant to the Plaintiff’s commercial invoice no.: CTINV20100017 dated 10.11.2020, the Plaintiff had sold 24 racks/144 units of evaporator coils to its customer, Carrier Transicold Pte Ltd [“consignment”]. The consignment was to be delivered to Carrier Transicold Pte Ltd in Singapore by the Plaintiff. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [JB-12BNCVC-2-02/2024] September 12, 2024 [7] The Plaintiff had procured a Marine Cargo Insurance Policy Open with Policy No. A6530C16/CM000224 (‘the said Policy) with Chubb Insurance Malaysia Berhad (“Chubb”) to insure their interest on the said consignment. [8] The Plaintiff then appointed Pongsiri Logistics Co. Ltd. (“Hatyai Pongsiri”), a Thai company to deliver the said consignment from Thailand to Singapore and Pongsiri, in turn, had subcontracted the delivery work to Dtran Logistics (M) Sdn Bhd (“Dtrans”) who then appointed the Defendant (“City Zone”) to complete the said delivery. [9] It is undisputed that on 11.11.2020, the consignment was loaded onto the Defendant’s prime mover No. BNV5552 articulated with a trailer no. T/PA 728 (‘vehicle’) at Bukit Kayu Hitam to be delivered to the Plaintiff’s customer in Singapore. [10] During the vehicle’s journey to its destination, the laden vehicle encountered an accident at KM 83.9 of the North-South Expressway (near Ayer Hitam, Johor) causing the consignment to be damaged from the impact of the accident. [11] As a result of the accident, the Plaintiff suffered losses amounting to USD 28,750.78. [12] The Plaintiff had submitted their claim under said Policy with Chubb and Chubb had settled the Plaintiff’s claim at USD 28,750.78. The Plaintiff executed a Letter of Subrogation dated 10.03.2021 to confirm the said settlement. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [JB-12BNCVC-2-02/2024] September 12, 2024 [13] By the aforesaid settlement, Chubb had subrogated to the rights and remedies of the Plaintiff and Chubb had initiated this action against the Defendant, in the name of the Plaintiff by way of subrogation for the amount of USD 28,750.78 (equivalent to RM118,568.21 as at 10.03.2021). [14] The Defendant in their defence pleaded that they had exercised due caution throughout the transportation of the Plaintiff’s consignment and the Plaintiff has no locus standi to commence this action on behalf of their insurer. [15] After a full trial, the LSJ dismissed the Plaintiff’s claim for the sum of RM 118,568.21 with costs. FINDING BY THE LSJ [16] Firstly, the LSJ found Plaintiff had failed to prove that Defendant’s negligence had caused the accident which led to the damage to the Plaintiff’s consignment. [17] The LSJ concluded that Plaintiff failed to prove the allegation of negligence pleaded in their statement of claim and that the police report concerning the accident produced by Plaintiff only indicates that the accident happened but does not prove the negligence of Defendant’s driver. [18] Secondly, the LSJ found the Plaintiff did not have the locus standi to commence this action on behalf of the insurer due to the waiver of the subrogation clause in the quotation between Dtrans Logistics (M) Sdn Bhd (“Dtrans”) and Hatyai Pongsiri Forwarding Co. Ltd. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [JB-12BNCVC-2-02/2024] September 12, 2024 (“Hatyai Pongsiri”) and also in the quotation between the Defendant (“City Zone”) and Dtrans. [19] Therefore, the LSJ assumed that surely the contract between Plaintiff and Hatyai Pongsiri to transport the consignment up to the Malaysia-Thailand border would also contain a similar waiver of subrogation clause. [20] Hence according to the LSJ, this is why the Plaintiff did not produce the contract between them and Hatyai Pongsiri since it is prejudicial to them. [21] Therefore, the LSJ decided that with the existence of waiver of subrogation clause, the Plaintiff cannot subrogate its right to the insurer to bring this claim against the Defendant (“City Zone”). ANALYSIS AND FINDING [22] This Court is mindful of the fact that in hearing this appeal, it only exercises appellate jurisdiction and is guided by the principles propounded by the Federal Court in S Quarry Sdn Bhd v Desaru Development Corporation Sdn Bhd & Ors [2019] 1 LNS 193 concerning appellate intervention. In summary, the test is whether the LSJ was plainly wrong or the decision is one that no reasonable judge could have reached. [23] Guided by these principles, I will now proceed to consider whether the LSJ committed any errors that warrant interference by this Court. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [JB-12BNCVC-2-02/2024] September 12, 2024 Failure to prove negligence against the Defendant [24] The LSJ held that the Plaintiff failed to prove negligence against the Defendant that due to the Defendant’s negligence, the Plaintiff’s consignment was damaged. [25] The Plaintiff pleaded res ipsa loquitor against the Defendant based on the fact that the Defendant had custody of the Plaintiff’s consignment and control of their vehicle when transporting the consignment to its destination. [26] In my opinion, the LSJ has seriously misdirected himself on the onus of proof. [27] The facts reveal that Dtrans had appointed the Defendant (“City Zone”) to transport the Plaintiff’s consignment. [28] Hence, Defendant becomes a sub-bailee of the Plaintiff’s consignment. [29] The law on the contract of bailment is set out in Sections 104 and 105 of the Contracts Act 1950. Both these sections read: - “104 Care to be taken by bailee In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality, and value as the goods bailed. 105 Bailee when not liable for loss, etc., of thing bailed S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [JB-12BNCVC-2-02/2024] September 12, 2024 The bailee, in the absence of any special contract, is not responsible for the loss, destruction, or deterioration of the thing bailed, if he has taken the amount of care of it described in section 104.” [30] In Khoo Than Sui v Chan Chiau Hee [1974] CLJU 64, Seah J (as he then was) set out the law on the contract of bailment for reward as follows: - “According to Halsbury’s Laws of England, 3rd Edn., Vol. 2 para. 225 reads: A custodian for reward is bound to use due care and diligence in keeping and preserving the article entrusted to him on behalf of the bailor. The standard of care and diligence imposed on him is higher than that required of a gratuitous depositary and must be that care and diligence which a careful and vigilant man would exercise in the custody of his own chattels of a similar description and character in similar circumstances. He is therefore bound to take reasonable care to see that the place in which the chattel is kept including the tackle used in connection with it, is fit and proper for the purpose, to see that the chattel is in proper custody, to protect it against unexpected danger should that arise... and if it is injured through his negligence, he will not be excused on the ground that it has been subsequently destroyed by inevitable mischance. The custodian may limit or relieve himself from his common law liability by special conditions in the contract; but they will be strictly construed and will be held not to exempt the bailee from responsibility for losses due to his negligence unless the words used are clear and adequate for the purpose or there is no other liability to which they can apply. Further, the custodian must show that the bailor knew of and assented to the conditions; the mere fact that they are his usual terms will be sufficient... The S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [JB-12BNCVC-2-02/2024] September 12, 2024 obligation to take due care exists independently of contract and an action based on breach of the obligation is an action founded on tort. The bailee is not, and from special contract, an insurer, and, therefore, in the absence of negligence on his part he is not liable for the loss or damage to the chattel due to some accident, fire, the acts of third parties or the unauthorised acts of his servant acting outside the scope of their employment. As regards the onus of proof, para. 227 reads: When a chattel entrusted to a custodian is lost injured or destroyed, the onus of proof is on the custodian to show that the injury did not happen in consequence of his neglect to use such care and diligence as a prudent or careful man would exercise in relation to his own property. If he succeeds in showing this, he is not bound to show how or when the loss or damage occurred. If a custodian declines either to produce the chattel entrusted to him when required to do so by the owner, or to explain how it has disappeared, the refusal amounts prima facie to evidence of breach of duty on his part and throws on him the onus of showing that he exercised due care in the custody of the chattel and in the selection of the servants employed by him in the warehousing. If the goods are lost or damaged, whilst they are in his possession, the bailee is liable unless he can show - and the burden is on him to show - that the loss or damages occurred without any negligence or default or misconduct of himself or of any of the servants to whom he had delegated his duty (see Morris v. CW Martin & Sons [1965] 2 All ER 725 at p. 731). The question is whether the defendant has discharged this onus? S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [JB-12BNCVC-2-02/2024] September 12, 2024 [emphasis added]” [31] In TW WU & Co (M) Sdn Bhd v Sanko Asia line Ltd and The Port Swettenham Authority [1975] 1 MLJ 15 Abdul Hamid J (as he then was) said this concerning the burden of proof in respect of a bailee: - “In the final analysis it is apparent that a bailee for reward is under a liability, in the performance of his duties and responsibilities, to exercise due care and diligence of the goods entrusted into his custody as a prudent man would of his own goods according to all circumstances of the case. Where a claim is made for the return of the goods in his possession and on proof of failure to deliver on demand the burden shifts and the onus thereby lies upon him to establish that the loss or disappearance was not due to his fault or misconduct or lack of care or the fault or misconduct or lack of care of his officers or servants.” [32] In Sime Darby Ltd vs Port Swettenham Authority [1966] CLJU 179, Ong J (as he then was) spoke about the burden of proof on the bailee in cases concerning non-delivery as follows: - “A bailor, by pleading and presenting his case properly, can always put the burden of proof on the bailee. In the case of non-delivery, for instance, all he need plead is the contract and the failure to deliver on demand. That puts on the bailee the burden of proving either lose without his fault (which would be a complete answer at common law) or, if the loss was due to his fault, that it was a fault from which he is excluded by the exempting clause.” [33] Back to the facts in the present case, the Defendant from their pleading and evidence does not dispute that their vehicle laden with S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [JB-12BNCVC-2-02/2024] September 12, 2024 the Plaintiff’s consignment had met with an accident and the Plaintiff’s consignment was damaged. [34] It is not in dispute that the consignment was not delivered by the Defendant (“City Zone”) to the consignee. [35] Hence, this puts the Defendant as sub-bailee the burden of proving either the loss was without their fault or if the loss was due to their fault, it was a fault from which they are excluded by the exemption clause in the contract. [36] In KMA Abdul Rahim & anor v Owners of “Lexa Maersk” & Ors [1973] 2 MLJ 121, it was held by Choor Singh J that a sub-bailee is liable to the first bailor as follows: - “As the second defendants were sub-bailees for reward of the plaintiffs “Jens” cargo, they were both on principle and authority liable for the damage caused to the plaintiffs’ goods. The principal modern authority as to the liability of a sub-bailee to the first bailor is Morris v. CW Martin & Sons [1966] 1 QB 716 where a mink stole sent by the plaintiff to a furrier to be cleaned was, with the consent of the plaintiff, sent on to the defendants as cleaning specialists for them to clean it under a contract between them and the furrier. The mink stole was stolen by a servant of the defendants whose duty it was to clean it. It was held that the defendants had a non-contractual liability to the plaintiffs. Lord Denning MR after citing a passage from Pollock and Wrighton Possession, said at p. 729: By which I take it that if the subbailment is for reward, the sub- bailee owes to the owner all the duties of a bailee for reward: and the owner can sue the sub-bailee direct for loss or damage to the goods; and the sub-bailee (unless he is protected by any S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [JB-12BNCVC-2-02/2024] September 12, 2024 exempting conditions) is liable unless can prove that the loss or damage occurred without his fault or that of his servants. Diplock LJ said at p. 731: Duties at common law are owed by one person to another only if there exists a relationship between them which the common law recognises as giving rise to such duty. One of such recognised relationships is created by the voluntary taking into custody of goods which are the property of another. By voluntarily accepting from Beder the custody of a fur which they knew to be the property of a customer of his, they brought into existence between the plaintiff and themselves the relationship of bailor and bailee by subbailment. The legal relationship of bailor and bailee of a chattel can exist independently of any contract... Salmon LJ said at p. 737: When the defendants received the plaintiff’s mink stole from the furrier, Beder, for cleaning, they knew that this stole did not belong to him but to one of the customers. They did not know the customer's name. Nevertheless by taking the fur into their possession in these circumstances they became bailees to the plaintiff for reward.” [37] Therefore the Defendant (“City Zone”) as sub-bailees can be held liable to the Plaintiff as the first bailor for damages to the consignment. [38] Hence with due respect to the LSJ, by placing the burden to prove negligence on the Plaintiff, he had approached this matter akin to a claim for negligence in a running down action or motor accident. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [JB-12BNCVC-2-02/2024] September 12, 2024 [39] This can be seen from his grounds and the authorities referred to by him in his judgement as follows: - “[28] Mahkamah juga mendapati tiada sebarang keterangan dan/atau saksi telah dikemukakan bagi menentukan isu liabiliti terhadap pihak Defendan atau terhadap pemandu Defendan. Oleh itu bagaimana kemalangan dalam kes ini telah terjadi tidak dijelaskan kepada mahkamah. Saksi-saksi plaintif juga tidak tahu berkenaan dengan kemalangan dan bagaimana ia berlaku. [29] Seterusnya, pernyataan kecuaian Defendan atau pemandu Defendan yang diplidkan oleh pihak Plaintif di perenggan 8, 9, 10 di Pernyataan Tuntutan Plaintif di Ikatan Pliding tidak dibuktikan langsung dalam kes ini. [30] Mahkamah mendapati pihak Plaintif gagal membuktikan pihak Defendan telah cuai dan menjadi prinsip perundangan yang mantap bahwa pihak Plaintif yang perlu membuktikan tuntutan mereka. Ini merujuk kepada kes Wong Thin Yit v Mohamad Ali [1971] 2 MLJ 175 dimana dalam kes ini mahkamah Persekutuan menyatakan seperti berikut: - “In a negligence action the onus of proof rests wholly on the plaintiff whether or not the defendant gives evidence. The Plaintiff cannot succeed without proof of the defendant’s negligence.” [34] Merujuk kepada kes Payremalu Veerapan vs Dr. Amarjeet Kaur & Anor [2001] 4 CLJ 380 Hakim VT Singham menyatakan seperti berikut: - “It is settled law that it is not for the defendants to disprove the allegations as contained under the particulars of negligence in the statement of claim as the legal burden of proof still rests on the plaintiff” S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 [JB-12BNCVC-2-02/2024] September 12, 2024 [35] HMS mendapati bahawa pihak Plaintif hanya merujuk kepada laporan polis yang dibuat oleh pemandu Defendan sepanjang kes Plaintif. Makamah mendapati bahawa laporan polis tersebut hanya mengambarkan satu kemalangan telah berlaku dan tidak langsung mengambarkan kecuaian pemandu defendan seperti yang dipilidkan oleh Plaintif.” [40] This was a clear misdirection by the LSJ. [41] To my mind, the Plaintiff by pleading and adducing evidence that their consignment in the custody of the Defendant never reached its destination is prima facie evidence against the Defendant and this being a case of res ipsa loquitur. [42] In this respect, I refer to the decision in Sharikat Lee Heng Sdn Bhd v Port Swettenham Authority [1971] CLJU 133, where it was held by the Federal Court as follows: - “Having thus averred negligence against the respondent, they succeeded in proving the loss of one case while it was in the respondent’s custody. In the case of non-delivery all that the bailor need plead is the contract and a failure to deliver on demand. That puts on the bailee the burden of proving either loss without his fault (which would be a complete answer at common law) or, if the loss was due to his fault, that it was a fault from which he is excluded by the exemption clause: see Denning LJ in J Spurting v. Bradshaw. [1956] 2 All ER 121, 125. Mere non-delivery, therefore, is prima facie evidence of negligence-this being a case of res ipsa loquitur. And “once negligence on the part of the defendants had been established and this negligence could have caused the loss, it was eminently reasonable to ask them to prove that in fact it did not”: see Hunt & Winterbotham Ltd v. BRS (Parcels) Ltd [1962] 1 QB 617, 634 per Donovan LJ, who went on to say: - S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [JB-12BNCVC-2-02/2024] September 12, 2024 Similarly, in Brook’s Wharf and Bull Wharf Ltd v. Goodman Bros. [1937] 1 KB 534 (another case of a claim in negligence) it was held that the circumstances of the loss of goods by a bailee may justify the inference of negligence as the cause of the loss, which inference it would be for the bailee to displace.” [43] The Defendant through their sole witness, DW1 the company’s General Manager explained in his evidence that the driver of their trailer was not negligent and the police report lodged by the driver proves this fact. Furthermore, according to DW1, the driver of the third-party vehicle which caused the accident was summoned by the police. [44] In my judgment, DW1’s evidence of what was said by the driver in her police report as to how the accident happened is hearsay. [45] The Defendant failed to call the driver of the trailer and the police investigating officer of the accident to testify how the accident happened. In addition, the summons issued to the 3rd party driver concerning the accident was also not produced. [46] In Lembaga Pelabohan Swettenham v Syarikat Hiap Bee [1975] CLJU 85, it was held by the Federal Court as follows: - “The contention of the appellants that the onus was on the bailors to show that appellants as bailees were negligent found no favour with the learned Judge. This submission was, also made in the case of Port Swettenham Authority v. T W Wu & Co. (M) Sdn. Bhd. [1975] 2 MLJ 73 where we held that the learned Judge was right on the question of onus. In our view, where a bailor and bailee relationship exists then the position is the same as the common law, that is, the onus is on the S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [JB-12BNCVC-2-02/2024] September 12, 2024 bailee for reward to show that the loss of the goods was not due to his negligence. In this case the Traffic Manager (DW1) gave evidence of system and security. The Chief Clerk (DW2) of the yardstore also gave evidence. But, both of them had no knowledge of the particular consignment. They could not, therefore, give evidence about the missing goods which might be of assistance to the Court. Suffice to say that the learned Judge was right on the evidence in this case to hold that the appellants had failed to show that the loss occurred otherwise than through their negligence. There is no reason for the Court to interfere with his finding of facts. [Emphasis added]” [47] Likewise, in the present case, Defendant has failed to show the damage to the Plaintiff’s consignment occurred otherwise than through their negligence. [48] Hence, it is my finding that the Defendant has failed to discharge the burden that they had exercised due care as a man of ordinary prudence would under similar circumstances. [49] The LSJ therefore erred in failing to consider that Plaintiff had succeeded in raising res ipsa loquitur against the Defendant by adducing prima facie evidence of negligence and instead arrived at the wrong finding that Plaintiff failed to prove negligence against the Defendant. [50] In Achi Jaya Plantations Sdn Bhd v Tuah Guard (M) Sdn Bhd (2014) 3 CLJ 520, it was held by Lau Bee Lan J (as she then was): - “(2) Defendan merupakan baili kepada plaintif berpandukan ss. 101, 102 dan 104 Akta Kontrak 1950. Ini adalah kerana wang plaintif S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [JB-12BNCVC-2-02/2024] September 12, 2024 telah diberi kepada defendan dan oleh itu, berada di bawah jagaan defendan sehingga ia dihantar ke destinasi yang ditetapkan. Defendan telah gagal dan cuai dalam memastikan keselamatan wang tersebut apabila (i) SD4 keluar dari van dan merupakan pengawal yang bersenjata pada hari itu; (ii) SD2 telah melakukan tugas lain yang tidak berkaitan, iaitu berbincang mengenai pengambilan wang dari MaybankBatu Pahat ke Maybank Labis dengan penolong pengurus Maybank Labis; dan (iii) SD2 telah meminta pengawal bank untuk mengiringi SD3 ketika beg kedua dibawa keluar dari bank ke van (Port Swettenham Authority v. TW Wu and Co (M) Sdn Bhd; diikuti). (3) Atas imbangan kebarangkalian, plaintif telah berjaya membuktikan bahawa wang plaintif telah diserahkan kepada defendan dan defendan telah gagal mengambil langkah-langkah yang perlu, munasabah dan berpatutan untuk melindungi wang plaintif. Defendan juga gagal menghantar wang tersebut ke destinasi yang dijanjikan. Oleh itu, defendan bertanggungjawab menunjukkan bahawa kehilangan wang tersebut bukanlah atas kecuaian defendan. (4) Prinsip res ipsa loquitur terpakai dalam kes ini kerana suatu kes prima facie telah dibuktikan oleh plaintif. Justeru, adalah menjadi tanggungjawab defendan untuk membuktikan sebaliknya bahawa pihak defendan tidak cuai dalam melaksanakan tanggungjawabnya terhadap plaintif. Walau bagaimanapun, defendan telah gagal berbuat demikian.” [51] The LSJ therefore erred in failing to consider that Plaintiff had succeeded in raising res ipsa loquitur against the Defendant by adducing prima facie evidence of negligence and instead arrived at the wrong finding that Plaintiff failed to prove negligence against the Defendant. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [JB-12BNCVC-2-02/2024] September 12, 2024 No locus standi due to waiver of subrogation clause [52] The next finding made by the LSJ is that the Plaintiff’s insurer has no locus standi due to the waiver of the subrogation clause in the quotation between Dtrans and Hatyai Pongsiri and the quotation between Defendant (“City Zone”) and Dtrans. [53] In the quotation between Dtrans and Pongsiri, the waiver clause read as follows: - “Cargoes Insurance shall be provided by HATYAI PONGSIRI FORWARDING CO.LTD with waiver subrogation clause to protect Dtrans Logistics (M) Sdn Bhd trading conditions.” [54] Whereas in the quotation between the Defendant (“City Zone”) and Dtrans, clause 7 read as follows: - “INSURANCE. You are to insure your cargoes against loss or damage occasioned by ANY cause charges incurred up to the final destination. The insurance policy arranged by you shall include “INLAND TRANSIT” and the “SPECIAL WAIVER OF SUBROGATION” clauses; Inland Transit meaning if the insurance policy in respect of sea or air transit it shall be extended to include transportation by land as well. Special Waiver of Subrogation- meaning the insured’s insurer or underwrite waive its rights to enforce any right or obtain relief of indemnity from other parties (Such as City Zone) to which the insurer or underwriter shall be or would become entitled or subrogated after having indemnified the insured for any loss or damage. City Zone Express Sdn Bhd is not liable for any insurance claims and you should responsible for entire cargo insurance.” S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [JB-12BNCVC-2-02/2024] September 12, 2024 [55] Defendant therefore argues that with the existence of these waiver of subrogation clauses, the Plaintiff’s insurer has no locus standi to bring this claim against them. [56] In my judgment, Defendant is misconceived in raising the argument that the Plaintiff’s insurer has no locus standi. [57] The issue concerning Plaintiff’s insurer not having any locus standi is not pleaded by the Defendant in their defence. [58] What the Defendant has pleaded in their defence is that they are not liable to Plaintiff’s claim due to the special waiver of subrogation clause. In other words, this is the “special contract” referred to in section 105 of the Contract Act, 1950 to exempt the Defendant from being liable for the loss. [59] The Defendant therefore is wrong to equate locus standi with the exemption clause. [60] Whereas Plaintiff submits that the purported waiver of the subrogation clause was never agreed upon between Plaintiff and Defendant. In other words, Plaintiff never assented to this condition. [61] Looking at the quotation between Dtrans and Hatyai Pongsiri, it is dated 14.02.2018 way before the Plaintiff’s consignment was transported by the Defendant on 11.11.2020 and got damaged during the shipment. It is also a general “Quotation for Tracking Charges Shipment Carrier Singapore” between the companies. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 [JB-12BNCVC-2-02/2024] September 12, 2024 [62] Likewise, the quotation between Defendant (“City Zone”) and Dtrans, also seems to be a general quotation dated 8.6.2020 which is before Plaintiff’s consignment was transported by Defendant and got damaged during the shipment. [63] Both these quotations do not make any specific references to the Plaintiff’s consignment since it is dated before the Plaintiff’s consignment was transported. [64] Under section 105 of the Contracts Act 1950, the burden is on the bailee to prove the existence of a special contract to exempt liability to the bailor. [65] In Ganda Edible Oils Bhd. v. Aik Heng Hung Sdn. Bhd. [1983] CLJ Rep 562, it was stated by Peh Swee Chin J (as he then was) that a contract of bailment need not be in writing and can be expressed or implied, further, according to His Lordship, parties to such a contract, can choose to contract out of any particular liability. [66] In Ganda Edible Oils (supra), the contract was between a bailor and bailee and there was no involvement of a sub-bailee unlike in our present case. [67] Hence, a bailee’s liability is contractual, that liability can of course be extended or limited by express terms as parties agree. [68] What therefore needs to be determined in the present case is whether Plaintiff as the bailor knew or had assented to the terms that Defendant is exempted from liability in the event the Plaintiff’s consignment is damaged. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [JB-12BNCVC-2-02/2024] September 12, 2024 [69] Although Defendant relies on the quotation between Dtrans and Hatyai Pongsiri and the quotation between Defendant (“City Zone”) and Dtrans which contains the exemption clauses, I find that Defendant has failed to produce any evidence to prove that Plaintiff had knowledge or consented to this term exempting them from liability for the Plaintiff’s consignment that was damaged based on the reasons discussed below. [70] Firstly, there is no contractual relationship between the Plaintiff and Defendant except for a relationship in bailment. [71] Secondly, no evidence was adduced from either Dtrans or Hatyai Pongsiri to establish that this term contained in their general quotation dated before the accident occured is within the knowledge of the Plaintiff and was assented to by Plaintiff. [72] Thirdly, both these quotations do not refer to Plaintiff’s consignment since it was issued before the consignment. [73] Finally, it must be borne in mind that a strict interpretation must be given to exemption clauses and the “contra proferentem” rule is generally applied against the party requiring the exemption clause. Please see Wee Lian Construction Sdn Bhd v Ingersoll-Jati Malaysia Sdn Bhd [2005] 1 MLJ 162. [74] In my opinion, it would have been prudent for the Defendant to have called witnesses from Dtrans or Hatyai Pongsiri in respect of the issue concerning whether the Plaintiff had knowledge or consented to the term exempting the Defendant from liability for the Plaintiff’s consignment. S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [JB-12BNCVC-2-02/2024] September 12, 2024 [75] In the alternative, the Defendant too could have joined Dtrans or Hatyai Pongsiri as parties to the action on matters concerning contribution or indemnity in respect of the Plaintiff’s claim if any. [76] In my judgement, the LSJ had misdirected himself in the application of the legal principles concerning exemption clauses in a bailor bailee relationship. [77] In the circumstances, I find that Defendant has failed to prove their defence against Plaintiff’s claim based on bailment. [78] Therefore, the LSJ erred when he held that the Plaintiff had failed to prove their claim on the balance of probabilities. DECISION [79] In conclusion, the LSJ was plainly wrong when he failed to appreciate that the Plaintiff’s claim against the Defendant was premised on a bailor bailee relationship and failed to apply the law relating to a contract of bailment. [80] Based on the foregoing reasons, in my judgement, the Plaintiff has proven their claim on the balance of probabilities. [81] The Plaintiff’s appeal is allowed and the decision of the LSJ is set aside. [82] The Plaintiff’s claim against the Defendant is allowed and Judgment entered for the Plaintiff in the sum of RM118,568.21 with interest at S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [JB-12BNCVC-2-02/2024] September 12, 2024 the rate of 5% per annum from 12.11.2021 till the date of full settlement with cost. Dated this 12th September 2024 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judicial Commissioner High Court of Malaya Muar Johore Darul Ta’zim Counsels: For the Appellant : Tan Kit Qian For the Respondent : Mathan a/l M. Anandaram Solicitors: For the Appellant Messrs Azhar & Wong Advocates & Solicitors 16-08, Tingkat 16 Menara Centara 360, Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur [Ref. No.: RL/CHUBB-LIT/14115-21] S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [JB-12BNCVC-2-02/2024] September 12, 2024 For the Respondent Messrs Mathan Anandaram & Co Advocates & Solicitors JC 3493, Taman Jasin Perdana 77200 Jasin Melaka [Ref. No. : MACO/CIV/GL/49/2022(cityzone)] Hearing Date : 23rd July 2024, 7th August 2024 Decision Date : 12th September 2024 S/N x2Cx5djLMUuSlYxQspMsrw **Note : Serial number will be used to verify the originality of this document via eFILING portal 23