Mum allowed to pursue claim despite being ‘out of time’

 

The Johor Bahru High Court has reinstated a mother’s dependency claim in a road accident case filed shortly after the expiry of the three-year period prescribed by law. (Wikipedia pic)

PETALING JAYA: A mother, who lost her son in a road accident, has been allowed to pursue a dependency claim filed during the Covid-19 pandemic although the usual limitation period prescribed by law had expired.

S Mageswari filed the suit at the Johor Bahru sessions court on July 8, 2021. Her son, L Kumaresan, died in a road accident on July 5, 2018.

Under Section 7(5) of the Civil Law Act 1956, the three-year limitation period began running from the date of the accident, meaning that the last day to bring the claim fell on July 4, 2021.

In the case of Kuan Hip Peng v Yap Yin & Another (1964), the Federal Court said provisions of law concerning limitation periods must be strictly construed.

Applying the decision, the sessions court in Johor Bahru struck out the suit on Dec 14, 2021.

Mageswari, 46, then appealed to the High Court for the suit to be reinstated. In the alternative, she applied under Section 84 of the Courts of Judicature Act 1964 for permission to pose several questions of law to the Federal Court.

Judicial commissioner Noor Hisham Ismail allowed Mageswari’s appeal, restoring the suit for hearing in the sessions court.

He said a court practice direction issued during the Covid-19 pandemic in 2021 had the effect of suspending all procedural laws.

As a result, the appellant could not be said to have filed her claim out of time since the practice direction was still in force at the time.

Noor Hisham said his ruling meant that there was no necessity to pose any legal question to the apex court for determination.

Earlier, lawyer GK Ganesan argued that on Jan 12, 2021, the Yang di-Pertuan Agong had proclaimed a state of emergency to curb the Covid-19 pandemic, which lasted until Aug 1, 2021.

He argued that the emergency had made Mageswari a legally incapacitated person. “As such, time cannot run against her,” he said.

Ganesan said the Chief Justice had also issued a Practice Direction No.8 of 2021 dated May 31, 2021, which came into effect on June 1, 2021.

He said the net effect of direction was that the time limit for bringing court proceedings did not apply throughout Malaysia for a certain period.

The court also awarded Mageswari, who was also represented by KN Geetha, G Shanmugathasan, GS Saran and RJ Nevina, RM5,000 in costs.

Lawyer Christopher Francis appeared for the respondent. - FMT