PUTRAJAYA: The family of a lorry driver P. Chandran will receive a sum of RM357,500 in damages over his death in police custody in 2012 after his medical needs were not attended to.

This is despite the Federal Court seven-member bench majority 6-1 in allowing the appeal by the police and government on a point of law that the family of the deceased was not entitled to receive exemplary damages for his death while in police custody.

Federal Court judge Datuk Rhodzariah Bujang who delivered the court's majority decision, said there was nothing in the Federal Constitution that provides, in any direct or vague way, the right of a deceased's estate to exemplary damages.

Although the Federal Court did not uphold the High Court's decision to award RM200,000 in exemplary damages to Chandran's family, the court instead retains the RM200,000 as aggravated damages.

“Since the respondents (the deceased's family) have pleaded for aggravated damages in their statement of claim but was not granted, 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.

The High Court, in allowing the lawsuit filed by Chandran's family in 2016, had ordered the police and the government to pay a total sum of RM357,500 in damages which included RM200,000 in exemplary damages.

The police and the government subsequently appealed to the Court of Appeal only on the award of the sum of RM200,000 in exemplary damages which they contended that payment of exemplary damages could not be awarded to family members of the deceased.

They, however, lost their appeal in the Court of Appeal and subsequently obtained leave from the Federal Court to appeal against the appellate court's dismissal of their appeal.

The majority decision came from Court of Appeal President Tan Sri Rohana Yusuf, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Federal Court judges Datuk Abdul Rahman Sebli, Datuk Zabariah Mohd Yusof and Datuk Seri Hasnah Mohammed Hashim and Justice Rhodzariah.

Federal Court judge Datuk Nallini Pathmanathan dissented, saying that Chandran was deprived of his fundamental right to life while being held in custody.

She said although the Civil Law Act 196 barred further relief in the form of punitive damages against the government, the deceased's estate was entitled to receive such punitive damages for breach of his right to life under Article 5 (1) of the Federal Constitution.

“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 his (Chandran's) unnecessary death," said Justice Nallini.

She said the courts should be vigilant to protect the rights of those in custody to ensure that they were not subjected to custodial death but should be equally vigilant to ensure that falsely motivated and frivolous claims were rejected.

On January 16, 2015, coroner Datuk Ahmad Bache who heard the inquest into Chandran's death held that police were responsible for the death through their omission to provide Chandran with timely medical assistance.

In September 2015, Selvi and Rita filed a civil lawsuit against the seven appellants — five police officers, Inspector-General of police and the Malaysian Government — claiming that Chandran’s death was caused by their negligence and that their conduct amounted to public misfeasance and breach of the deceased’s constitutional rights.

On January 9, 2016, the High Court in Kuala Lumpur ruled that the death of the 47-year old Chandran was due to police negligence and awarded a total sum of RM357,500 in damages.

The sum awarded comprised RM200,000 in exemplary damages, loss of dependency RM144,000, RM10,000 for bereavement and RM3,500 in special damages.

Chandran was detained by police on suspicion of being involved in an abduction case of a newborn baby.

Lawyer M.Visvanathan represented Chandran's family while senior federal counsel Andi Razalijaya appeared for the police and government.

-- BERNAMA