DALAM MAHKAMAH RAYUAN MALAYSIA DI KUALA LUMPUR
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO. W-02-1249-2004
LEE HENG MOY (P)
1. ORIENTAL CAPITAL ASSURANCE BERHAD
2. TAN PUI SIM (P) … RESPONDEN-
(Dalam Perkara Mahkamah Tinggi Malaya di Kuala Lumpur, Saman Pemula No. S6-24-2059-Tahun 2003
Dalam perkara mengenai Aturan 17 Kaedah 1 dan Kaedah 3 dalam Kaedah-Kaedah Mahkamah Tinggi 180
Dalam perkara Polisi Insurans No. D99DCPMPA000025 di antara Tan Hock Low (Si mati) dan Capital Insurance Bhd bertarikh 7hb Januari 2002
Dalam perkara mengenai Permohonan Relief oleh Oriental Capital Assurance Bhd menentangi tuntutan Tan Pui Sim dan Lee Heng Moy terhadap Wang yang patut dibayar di bawah Polisi Insurans No. D99DCPMPA000025 bertarikh 7 Januari 2002
Oriental Capital Assurance Berhad
(Syarikat No. 10393-D) … Plaintiff
1. TAN PUI SIM
(No. K/P: 77115-08-5012)
2. Lee Heng Moy
(No. K/P: 680721-04-5316) … Defendan-
LOW HOP BING, JCA
NIHRUMALA SEGARA A/L M.K. PILLAY, JCA SULAIMAN BIN DAUD, JCA
LOW HOP BING, JCA
(DELIVERING THE JUDGMENT OF THE COURT)
 On 4 October 2004, the Kuala Lumpur High Court ordered that the sum insured be paid to Tan Pui Sim (f) who is the second respondent (the first defendant) and that the costs of the application by way of originating summons be paid by Lee Heng Moy (f) (the second defendant).
 Being dissatisfied with the decision, the second defendant appealed to this Court.
 We heard and allowed the appeal on 2 December 2008. We now state our grounds.
II. FACTUAL BACKGROUND
 Vide the originating summons, the plaintiff, Oriental Capital Assurance Berhad as the insurer, prays that:
“1. The Defendants herein appear and state the nature and particulars of their respective claims to the proceeds payable under Insurance Policy No. D99DCPMPA000025 in dispute and maintain or relinquish the same and abide by such Order of this Honourable Court; and
2. The costs of this application be provided for.
 The originating summons was said to have been filed by way of interpleader under 0.17 rr.1 and 3 of the Rules of the High Court 1980, as stated in the intitulement to the originating summons. Apart from the aforesaid prayers, no other order was sought.
 The insured, one Tan Hock Low (deceased), during his life time, effected the aforesaid insurance policy on 7 January 2002. The insured was killed by persons unknown on 2 January 2003.
 The learned judge of the Kuala Lumpur High Court was of the view that the question before him was: “to whom the policy of insurance is payable: the First Defendant named as beneficiary upon the policy and described as the wife, or the Second Defendant who is his lawful wedded wife.”
 After hearing the originating summons, the learned judge made the aforesaid orders.
III. ABSENCE OF INTERPLEADER ISSUE
 Before us, the second defendant appeared in person.
 Ms Selva Rani Thiagarajan, learned counsel for the insured, submitted that there was no interpleader issue, but added that the High Court had made the correct orders.
 First defendant’s learned counsel, Mr C K Ng, argued that the learned judge of the High Court had made the right orders although no interpleader issue was pleaded. However, he maintained that it was an interpleader summons.
 The common ground in the submissions of the respective learned counsel made it abundantly clear to us that there was no interpleader issue. On the basis of these submissions, we took the view that the orders made by the learned judge, without any interpleader issue, is completely irregular and a misdirection occasioning a miscarriage of justice. We therefore allowed the appeal, set aside the orders made by the Court below and made the following consequential orders:
(1) The proceeds under the policy of insurance released to the first defendant by the plaintiff, the insurer, be returned by the first defendant to the plaintiff, the insurer, on or before 15 January 2009;
(2) The plaintiff, the insurer, is to bear all the costs here and in the Court below, to be paid to both the defendants respectively; and
(3) Deposit to be refunded to the second defendant on account of taxed costs.
DATUK WIRA LOW HOP BING
Court of Appeal Malaysia PUTRAJAYA
Dated this 6th day of November 2009
COUNSEL FOR APPELLANT:
Lee Heng Moy (f)
No. 89, Jalan Kiambang Taman Gembira 42700 Banting Selangor Darul Ehsan
COUNSEL FOR RESPONDENT:
Peguamcara Responden Pertama Tetuan T.S Oon & Partners Peguambela & Peguamcara Suite 23.8, 23th Floor Menara Genesis Jalan Sultan Ismail 50250 Kuala Lumpur
Peguamcara Responden Kedua Tetuan Wong & Associates Peguamcara & Peguambela No. 19-1, Blok D2 Jalan PJU 1/39, Dataran Prima 47301 Petaling Jaya Selangor Darul Ehsan