The High Court in Kuala Lumpur today struck out Malaysia Airlines Bhd as one of the defendants in the suit filed by the 76 next-of-kin of the MH370 passengers.

The decision was made by Justice Azizul Azmi Adnan, who did not give the grounds of his decision. He also ordered the 76 next-of-kin to pay RM7,000 costs to MAB.

With this decision, the Department of Civil Aviation director-general and the government, along with Malaysia Airlines System Bhd (which MAB was known as when the flight vanished), remain parties in the suit.

The suit filed by the 76 next-of-kin is the largest filed over the  MH370 airline which vanished on March 8, 2014.

There are three other separate suits filed by family members of the passengers on the flight. MAB was represented by Logan Sabapathy and Sanjeev Kumar.

Sanjeev Kumar told reporters after the decision that MAB had submitted to the court that it was not even incorporated when the plane got lost, and thus, it was not the right party to be named as a defendant.

Justice Azizul fixed Nov 7 for case management and for lawyers Ganesan Nithi and Sitpah Selvaratnam, who appeared for the families, to amend the statements of claim to exclude MAB.

Sanjeev added the decision today was in line with the Federal Court decision that MAB should not be a party in an action filed by another party.

The judge also told the court that the full grounds of today's decision would be given if there was an appeal against today's decision.

It was reported that the 76 family members representing the 32 passengers filed the suit on March 3, 2016, by the firm of Messrs Tommy Thomas claiming negligence, conspiracy and breach of statutory duty.

Under the Montreal Convention, claims made against an airline company should be made before the expiration of two years.

The plaintiffs named Malaysian Airline System Bhd (the administration company), Malaysia Airlines Bhd, the director-general of the Department of Civil Aviation (DCA), the Royal Malaysian Air Force and the Malaysian government as respondents.

MAS was today represented by Saranjit Singh while federal counsel Saiful Nizam Shahrin appeared for the government.

The 32 passengers comprised Americans, Indians, Chinese and Malaysian nationals.

They are seeking claims over the disappearance of the Beijing-bound flight from Kuala Lumpur.

Justice Azizul today also fixed Jan 10 for a possible hearing of the DCA's (now known as the Civil Aviation Authority) and government's application to strike out the suit.

Emotional, mental suffering

According to the statement of claim, the administrator had not granted consent and the plaintiffs claimed the administrator had acted ultra vires (beyond its powers) of the MAS Act.

“The administrator in a press statement dated Feb 25, 2016, pledged that MAS would act in 'good faith' to determine fair and equitable compensation and that MAS has insurance coverage in place to meet its obligations to pay such compensation thereby inviting family members of the passengers of MH370 to commence a legal suit against MAS, and to claim compensation.”

In these circumstances, the statement of claim stated, the plaintiffs contend that the refusal of the administrator to grant consent to the commencement of this suit did not bar or preclude the plaintiffs from filing the same.

The plaintiffs further claimed that the Montreal Convention - where Malaysia is a signatory - was given effect sometime in 2007 with amendments to the Carriage by Air Act 1974 and MAS and Malaysia Airline are carriers within the meaning of the convention and the act.

They claimed the disappearance of the airline was an “accident” within the meaning of Article 17 of the Montreal Convention and this accident led directly to the injury and death of everyone on board.

The plaintiffs further claimed that the disappearance and the death of the 239 passengers had shown that the airline was negligent resulting in a lack of finality and closure to the plaintiffs resulting in them suffering emotional, physical pain, distress and mental suffering.