PUTRAJAYA: The family of a lorry driver who died in a police lock-up in 2012 will receive about RM327,000 in damages although the Federal Court in a 6-1 majority ruling allowed the government’s appeal on a point of law.
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The government did not want to pay RM200,000 in exemplary damages but only RM127,000 in other forms of claims. The High Court had also awarded them RM50,000 in costs.
However, the apex court agreed today to award P Chandran’s widow, Selvi Narayan, and daughter Rita RM200,000 in aggravated damages and RM127,000 in other claims. They willl now be paid the full amount inclusive of 5% interest.
Judge Rhodzariah Bujang, who delivered the majority judgment, said the court must give effect to the natural and ordinary meaning of the words in Section 8(2) of the Civil Law Act 1956.
“We must not do so in a way which would produce a result opposite to the legislative intention as that would constitute an unauthorised judicial legislation and a breach of the doctrine of separation of powers,” she said.
She said that since the 1956 Act was a pre-Merdeka legislation, it attracted the application of Article 162(7) which allowed them some modifications as may be necessary to bring it into accord with the provisions of the Federal Constitution.
The bench did not give Selvi and Rita the RM200,000 in exemplary damages opposed by the government. Instead, it retained the amount as aggravated damages.
Rhodzariah said Chandran must be alive to be awarded exemplary damages.
“Secondly, there is nothing in the constitution that provides in any direct or vague way the right of a deceased’s estate to exemplary damages,” she said in summary judgment.
Nevertheless, the majority said they were not minded to set aside the quantum of damages awarded by the High Court judge as both aggravated and exemplary damages were intertwined.
Rhodzariah said Selvi and Rita had also pleaded for aggravated damages in their statement of claim.
“We have decided to set aside the quantum for exemplary damages ordered by the High Court judge and substitute the same with that under aggravated damages,” she said.
She said the quantum was more than justified and reflective of the court’s abhorrence against the negligent conduct of the appellants which had resulted in Chandran’s death.
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The others in the majority were Rohana Yusuf, Abang Iskandar Abang Hashim, Abdul Rahman Sebli, Zaharah Mohd Yusof and Hasnah Mohammed Hashim.
Nallini Pathmanathan, who dissented, said custodial deaths were “one of the most reprehensible of wrongs in a civilised society governed by the rule of law” and Malaysia was no exception.
She said such protection took its form in Article 5(1) of the constitution where no one shall be deprived of his life or personal liberty save in accordance with the law.
“Unfortunately, Chandran was deprived of his fundamental right to life while being held in custody,” she said.
Nallini said the damages of RM200,000 awarded by the High Court were clearly punitive in nature to indicate the court’s outrage at the conduct of the authorities, resulting in the unnecessary death.
“I go on to state that although the (Civil Law) Act bars further relief in the form of punitive damages against the state, his (Chandran’s) estate is entitled to receive such punitive damages for the breach of his right to life under Art 5(1),” she said.
In January 2017, then High Court judge S Nantha Balan held the police liable for the death of Chandran at the Dang Wangi police lock-up after his medical needs were not attended to.
He awarded RM200,000 in exemplary damages, RM144,000 for dependency claim, RM10,000 for bereavement and RM3,500 in special damages for funeral expenses to the family. Another RM50,000 was awarded as costs
The Court of Appeal affirmed that police were liable for the death and the damages as pleaded.
The government, represented by senior federal counsel Andi Razalijaya A Dadi, appealed for the RM200,000 not be awarded as the Act did not allow such damages to be given to a deceased family.
In an immediate response, lawyer M Visvanathan, who represented Selvi and Rita, said he welcomed today’s ruling as families of custodial death cases could seek to obtain aggravated damages.
“This form of damages was previously not awarded by the court,” he said, adding that the government should also amend Section 8(2) to award exemplary damages to the next of kin.
Lawyers R Karnan and Sanjay Nathan assisted Visvanathan.-FMT