VICNASWARY A/P MUNIANDY @ MURUGIAH KETUA PENGARAH PERTUBUHAN KESELAMATAN SOSIAL

BA-16-22-06/2022 Kand. 19 28/12/2023 11:51:20 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO: BA-16-22-06/2022 ANTARA VICNASWARY A/P MUNIANDY (No. K/P: 721226-10-5738) …PERAYU DAN KETUA PENGARAH PERTUBUHAN KESELAMATAN SOSIAL …RESPONDEN [Dalam Jemaah Rayuan Keselamatan Sosial bagi Kawasan Selangor di Klang Permohonan No. JRKS(S) 100/2020 ANTARA VICNASWARY A/P MUNIANDY (No. K/P: 721226-10-5738) …PENGADU DAN KETUA PENGARAH PERTUBUHAN KESELAMATAN SOSIAL …DEFENDAN] 1 BA-16-22-06/2022 S/N ukI1/5DamUiHyu9rULxGaw **Note : Serial number will be used to verify the originality of this document via eFILING portal JUDGMENT Introduction [1] This is an appeal from the decision of the Pengerusi Jemaah Rayuan Keselamatan Social (“SSAB”) dated 7.9.2020 rejecting the appellant’s application for invalidity pension claim against the respondent. [2] At the commencement of the proceedings, the respondent raised preliminary objections to this appeal. Having considered the written and oral submission of both the appellant and the respondent, this court allowed the preliminary objection raised by the respondent. [3] This is the grounds setting out this court’s decision to allow the preliminary objection. Factual Background [4] The appellant is an insured person within the meaning of the Employees Social Security Act 1969. [5] On 15.1.2019, the then 48-year-old appellant applied for an invalidity pension using Form 34. The application included a medical report from the National Cancer Centre dated 28.5.2018, indicating that the appellant had stage 2b breast cancer, type 2 diabetes, and hypertension. The Medical Board on 15.2.2019, concluded that the appellant's medical condition qualified her for an invalidity pension. 2 BA-16-22-06/2022 S/N ukI1/5DamUiHyu9rULxGaw **Note : Serial number will be used to verify the originality of this document via eFILING portal [6] On 7.5.2019, SOCSO conducted a house visit and investigation, determining that the appellant could handle most of her daily living activities without significant impact from her medical condition. Discontented with the Medical Board’s decision, the respondent appealed on 5.7.2019, to the Appellate Medical Board. The Appellate Medical Board on 4.9.2019, concluded that the appellant did not qualify as suffering from invalidity. [7] After the rejection of the appellant’s invalidity pension application, an appeal was filed with the SSAB on 18.3.2020. However, the SSAB dismissed the appeal on 7.9.2020, affirming the Medical Board's finding. Dissatisfied with SSAB’s decision, the appellant filed an appeal with this court on 13.6.2022 almost two years later. Decision [8] The respondent objected to this application for being time barred. According to the respondent, the appeal is filed out of the 60 days period form the date of decision as provided by section 91(3) of the Employees Social Security Act 1969 (“ESSA 1969”). [9] According to the respondent, the preliminary objection was communicated verbally to the appellant on 16.3.2023 and in writing on 20.3.2023 and thus, it was argued that notice of the preliminary objection had been given to the appellant. 3 BA-16-22-06/2022 S/N ukI1/5DamUiHyu9rULxGaw **Note : Serial number will be used to verify the originality of this document via eFILING portal [10] The appellant argued that on 6.9.2022, the respondent had not objected to the extension of time to file the Rekod Rayuan. [11] Before delving into the substance of this appeal, the respondent raised a preliminary objection. This objection pertains to the appeal being submitted beyond the sixty (60) days from the date of the SSAB decision, without obtaining a court granted extension of time. The respondent’s preliminary objection is grounded in section 91(3) of the ESSA 1969, which specifies that: “(3) The period of limitation for an appeal under this section shall be sixty (60) days from the date the order is made.” [12] In the case of Gurbachan Singh v. Seagrott & Campbell (No. 2) [1962] MLJ 370 (CA), the appellant filed an appeal after the specified timeframe, leading to an objection by the respondent. Upon accepting the preliminary objection and deciding to strike out the appeal with costs, Chief Justice Thomson (in his capacity at that time) provided the following explanation: “Before departing from the case I should observe that the procedure followed by the respondents, that is to say giving the other side notice at the earliest possible moment and then dealing with the matter when the appeal comes on for hearing seems to be the course that was followed and certainly not disapproved of...” [Emphasis added] 4 BA-16-22-06/2022 S/N ukI1/5DamUiHyu9rULxGaw **Note : Serial number will be used to verify the originality of this document via eFILING portal [13] Regarding the current appeal, the respondent conveyed the preliminary objection orally to the appellant on 16.3.2023 and in written form on 20.3.2023. Consequently, the appellant was provided with advance notice of the preliminary objection. [14] In this regard, the appellant’s inability to file the current appeal within the stipulated sixty (60) days from the SSAB decision, without obtaining a court-issued extension of time, is a fundamental issue. As emphasized in the case of Auto Dunia Sdn Bhd v. Wong Sai Fatt & Ors [1995] 2 MLJ 459 (FC): “It is an elementary proposition that this Court is a creature of statute and that equally a right of appeal is also a creature of statute, so that unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.” [Emphasis added] [15] Since the appellant has not complied with the provisions of subsection 91(3) of the ESSA 1969, this appeal should, therefore, be dismissed solely on this basis. [16] The facts of this appeal can be seen as follows. An extract from the minutes dated 6.9.2022 state as reproduced below: “Peguam Perayu : …Oleh itu, kami dengan rendah diri memohon suatu lanjutan masa untuk memfailkan Rekod Rayuan sehingga 09.09.2022. … 5 BA-16-22-06/2022 S/N ukI1/5DamUiHyu9rULxGaw **Note : Serial number will be used to verify the originality of this document via eFILING portal Peguam Responden 1: Puan, we have no objections for the extension… … Mahkamah : Permohonan peguam perayu dibenarkan. Lanjutan masa dibenarkan sehingga 9.9.2022 untuk pemfailan Rekod Rayuan…” [17] On the date, it appears that the respondent had no objection to the extension of time for the filing of the Rekod Rayuan. The respondent now takes objection that the appeal was filed out of time and there is no application before this court to regularize the filing of the appeal itself. [18] In this regard, the objection taken by the respondent was communicated verbally to the appellant on 16.3.2023 and in writing on 20.3.2023. Hence, there was notice given to the appellant pertaining to the preliminary objection. There is before this court no application to regularize the appeal proceedings before this court. to the appellant on this court respectfully agrees that this appeal is out of time, and as there is no application for Extension of time before this court, this appeal is time barred. 6 BA-16-22-06/2022 S/N ukI1/5DamUiHyu9rULxGaw **Note : Serial number will be used to verify the originality of this document via eFILING portal Conclusion [19] As this court has found the appeal was filed out of time, and there is no application to regularize the filing of the appeal before this court, this court allows the preliminary objection by the respondent. Consequentially, this appeal is hereby dismissed with no order as to costs. Date: 27 December 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam 7 BA-16-22-06/2022 S/N ukI1/5DamUiHyu9rULxGaw **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: For The appellant Manoharan Malayalam, Hariharan a/l Manoharan Tetuan M Manoharan & Co Advocates & Solicitors Suite C-5-5, 5th Floor, Tower C, Wisma Goshen, Plaza Pantai, Off Jalan Pantai Baru, 59200 Kuala Lumpur. manomallaw@gmail.com +6 03 2283 2388 For the Respondents: Muhammad Suhaib Bin Mohamed Ibrahim Tetuan Skrine Advocates & Solicitors No. 50-8-1, Level 8, Wisma UOA Damansara, No. 50 Jalan Dungun, Damasara Heights, 50490 Kuala Lumpur. skrine@skrine.com +6 03 2081 3999 8 BA-16-22-06/2022 S/N ukI1/5DamUiHyu9rULxGaw **Note : Serial number will be used to verify the originality of this document via eFILING portal