Kugan's family not entitled to receive RM300,000 in damages, court heard

The Court of Appeal erred in law when it ordered the Government and police to pay RM300,000 of exemplary damages to the family of A. Kugan, who died while in police custody in 2009, the Federal Court heard today.

Senior federal counsel Alice Loke submitted that Section 8(2) of the Civil Law Act 1956, bars the awarding of exemplary damages in an estate claim and that the Court of Appeal had created an exception to Section 8(2).

She argued that the words employed in Section 8 (2) were plain and admit of only one meaning that exemplary damages were not recoverable in an estate claim, with no exceptions.

Loke also sought the court to reduce the award for misfeasance (abuse of power by public official) in public office given to Kugan's family from RM100,000 to RM50,000, as the acts occurring post-death.

"Therefore, acts which occurred after the death of the deceased and which constitute misfeasance in public office cannot form the basis of a claim in Section 8. Damages are not recoverable for such acts," she said.

Loke further said that the Court of Appeal was wrong to affirm the High Court's award for exemplary damages and sought the damages to be set aside.

The government and police had appealed against the award of exemplary damages and misfeasance in public office.

Lawyer R.Sivarasa representing Kugan's family, however, countered that the exemplary damages should be awarded to the family because the case involved oppressive and arbitrary.

On Aug 3, 2015, the Federal Court granted the police and government leave to appeal against the award given to Kugan's mother, N. Indra, 49.

On Aug 8, 2014, the Court of Appeal upheld a High Court decision which found the police force, former police constable V. Navindran and the government liable for the death of Kugan, 22, while under police custody in January 2009.

However, in a unanimous decision, a three-member panel headed by Justice Datuk Mohamad Ariff Md Yusof reduced the amount of damages from RM801,700 to RM701,700 after setting aside RM100,000 in damages for false imprisonment awarded by the High Court in 2013.

On Jan 13, 2012, Indra, filed a RM100 million suit seeking damages over alleged negligence, assault, false imprisonment and misfeasance of public office as well as breach of statutory duties.

Navindran will serve three years in prison after his final appeal against conviction for causing hurt to Kugan was dismissed by the Court of Appeals on May 22, 2015.

In today's proceedings, similar submission was also argued in another case involving the family of Abdul Jaffar Abdul Mutalib, a car repossessor, who was allegedly shot dead by police in 2008.

The Government and police had appealed against a Court of Appeal ruling which awarded three daughters of Abdul Jaffar, a sum of RM351,000 in damages after the court allowed their claim for loss of dependency due to wrongful death of their father.

Federal Court Judge Tan Sri Suriyadi Halim Omar chairing a five-man bench reserved both judgments to a date to be fixed.