1. Raja Azmer Bin Raja Hizam v Satheswaran A/L Ramasamy (BA-12B-168-09/2016)

HARULTHAAS A/L NGANASEELAN … PERAYU DAN SATHESWARAN A/L RAMASAMY (seorang budak dan mendakwa melalui wakil litigasinya Ramasamy a/l Arikrishnan) … RESPONDEN (Dalam Mahkamah Sesyen di Kuala Kubu Bharu Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman No. A53KJ-225-11/2015 ANTARA SATHESWARAN A/L RAMASAMY (seorang budak dan mendakwa melalui wakil litigasinya Ramasamy a/l Arikrishnan) … PLAINTIF

HARULTHAAS A/L NGANASEELAN … DEFENDAN) 2 GROUND OF JUDGMENT Introduction [1] This appeal arose from a Session Judge’s decision in finding the Appellants (Defendants) liable in a road accident case involving a motorcycle ridden by the Respondent (Plaintiff) and the motorcar driven by the Appellant. [2] The learned Session Judge found the Appellants liable at 90% and the Respondent at 10%. [3] In this judgment, the parties will be referred to as they were in the Sessions Court. At times, the term ‘the Defendants’ will be referred as ‘the 1st Defendant’, ‘the 2nd Defendant’ or ‘the 1st and 2nd Defendants’, interchangeably. [4] Having read the Appeal Record, the written submissions and heard the oral submission from both counsels, I allow the appeal on liability with costs. My grounds follow. Brief Facts [5] The factual background leading to this appeal can be summarised as follows: 3

At all material times, the Plaintiff, a young adult brought this suit through its representative Ramasamy a/l Arikrishnan. The Plaintiff was riding a motorcycle bearing registration number BLM 9162.

At all material times, the 1st Defendant is the driver of the motorcar Proton Pesona bearing registration number MCC 2404 and the 2nd Defendant is the owner of the said motorcar. Both the 1st and 2ndDefendants were in the motorcar driven by the 1st Defendant.

The Plaintiff claimed that the road accident occurred between the Plaintiff and the Defendants on the 21st of February 2015 where the Plaintiff was riding on its right of way from Gapri to Kerling and as he reached Jalan Kuala Lumpur-Ipoh (near the cabel factory), Rasa, Selangor Darul Ehsan, the motorcar MCC 2404 driven by the 1st Defendant as agent or servant or driving on authorization of the 2nd Defendant from the opposite direction had overtaken a vehicle ahead of them and encroached into the Plaintiff’s lane and collided with Plaintiff and the motorcycle. As a result, the Plaintiff suffered injury and damage.

The Defendants on the other hand claimed that the accident occurred at 8pm at night and it was the Plaintiff who came from the opposite direction that had encroached into the Defendants’ lane with his motorcycle headlights turned off. 4

The Defendants stated that they were driving from bottom to the top and the Plaintiff was on the opposite direction, from top to bottom. The Defendants’ police report stated that as the Defendants were driving approaching the Cable Rasa Factory, the 1st Defendant suddenly heard as if the motorcar was knocked by something and when stopped, discovered that the right side of the motorcar including the bumper, car door were damaged and the right side mirror was lost (page 58 of Appeal Record).

The Defendants not satisfied with the Session Judge’s decision filed an appeal to this Court. Defendant’s case [6] The learned counsel for the Defendant submitted several grounds for the appeal (pages 1-4 of Supplementary Appeal Record). It is averred that there are two versions as to the cause of the accident and submitted that the Session Judge was erred in relying only on the Plaintiff’s version of the accident and failed to consider the Defendant’s version. [7] It is submitted that the Session Judge erred in deciding that the position of the Plaintiff’s motorcycle component at marked ‘X’ of the sketch plan (page 61 of the Appeal Record) is on the Plaintiff’s lane (page 33 of Supplementary Appeal Record) whereas the debris of the motorcycle is on the middle of lane A2 and nearer to the double lines of lane ‘A2’. 5 [8] It is further submitted that the Plaintiff’s version that the Defendant was trying to overtake another vehicle and had encroached into the Plaintiff’s lane is unreasonable as the debris of Plaintiff’s motorcycle is found in the middle of lane A2 and there was blood stain on the road flowing from the middle of the road to the road shoulders (page 20 of Supplementary Appeal Record and photos at page 68 of Appeal Record). [9] The counsel for the Defendant argued that there is discrepancy on the Plaintiff’s testimony and the Plaintiff’s witness’s(SP3) testimony where if SP3 actually saw that the Plaintiff was riding nearer to his left on his lane, the Plaintiff on the other hand testified that he was in the center of his path (page 16 of Supplementary Appeal Record). On that score it was submitted that the Session Judge failed to consider the blood stain found flowing from the center of Plaintiff’s lane. [10] It is submitted that the investigating police officer (IO) admitted that the blood stain was not marked on the sketch plan whereas the photos showed that there was blood stain flowing from center of Plaintiff’s lane (page 11 of Appeal Record). [11] It is also submitted that the Session Judge failed to consider the facts where the IO had testified that the accident involves another vehicle, a motorcar model Perodua Viva bearing registration number WTC 7504 (the vehicle) where the driver was travelling on the same direction with the Plaintiff, ahead of Plaintiff and the damage of the vehicle is on the rear, on the right side (page 63 of Appeal Record). Therefore the Session Judge could make an adverse inference on the Plaintiff’s failure to call the driver 6 of vehicle WTC 7504 to testify when the driver of the vehicle had lodged a police report on the same day of the accident (page 59 of Appeal Record). [12] It is submitted that this Court has the discretion to modify and /or set aside the Session Judge decision if the Session Judge had acted on a wrong principle of law, or has misapprehended the facts and relied on the case of Mahmod Bin Kailan v Goh Seng Choon & Anor [1976] 2 MLJ

Plaintiff’s case [13] The learned counsel for the Plaintiff submitted that the Plaintiff had three witnesses and as evaluated by the Session Judge, it is found that the Defendants caused the accident. [14] The Plaintiff’s counsel submitted that the Defendant had been summoned under rule 10 of Traffic Rules 1959for negligence, in failing to control its motorcar which caused to encroach into Plaintiff’s lane while the Defendants were overtaking another car. The Plaintiff’s counsel asserted that the Defendant did not see the accident and only heard the knocking sound. [15] In relation to Plaintiff’s witness SP2, where it was found that SP2’s address in his identification card is the same as Plaintiff’s address is because SP2 is living at the house that used to be Plaintiff’s home. 7 Defendant’s Reply [16] In reply, the Defendant’s counsel highlighted to this Court that the Defendant never received the summons from the IO. APPEAL [17] It is well-established principle that the appellate court will slow to disturb the fact finding of the trial judge unless the trial judge was plainly wrong in law: Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1.Reverting to the facts,there are two conflicting versions on the cause of the accident. The Session Judge had relied on the principles in Tabarani Mohd Arshad & Anor v Chan Tenn Yeu [199] 3 CLJ 188, decided to accept the Plaintiff’s version as the most probable version of the accident. [18] In a civil dispute, the burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendants as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan,M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd [2017] 4 MLJ 697.Based on Letchumanan ChettiarAlagappan (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [19] In a case where negligence is pleaded (pages 15-16, Plaintiff’s Statement of Claim, Appeal Record), the onus is not on the defendant to 8 prove that he was not negligent. This was pointed out in the case of Ng Chui Sai v Maimon Bt. Ali [1983] 1 MLJ 110and I also rely on the Federal Court case of Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175: “In a negligence action the onus of proof rests wholly on the Plaintiff, whether or not the defendant gives evidence. The Plaintiff cannot succeed without proof that the Defendant is negligent.” [20] It is for the injured party to show that he did not in his own interest take reasonable care of himself and contributed by his want of care, to his own injury: Nance v British Columbia Electric Railway Company [1951] AC 601. The test of contributory of negligence is based entirely on the conduct of the plaintiff in an accident case. [21] The Plaintiff had pleaded the detailed negligence of the Defendants part (pages 15-16 of Appeal Record) claiming among others that the Defendants drove without taking consideration of other road users including the Plaintiff, a child, that the Defendants failed to take precaution before overtaking another vehicle and the Defendants had overtaken other vehicles dangerously. Meanwhile, the Defendants pleaded the detailed negligence of the Plaintiff (pages 20-21 of Appeal Record), among others that the Plaintiff overtaking other vehicles at the no-overtaking area which is wrong in law, the Plaintiff had overtaken other vehicles where there is a double line, that the Plaintiff’s motorcycle had crossed the double line and the Plaintiff was travelling without switching on any of his motorcycle’s lights. 9 [22] Upon careful perusal of the facts and evidence before this Court, I cannot help but noticed that the silent evidence of the debris found and blood flowing from the center of the road which is near to the marked ‘X’ (photos at pages 68-69 of Appeal Record) prove to show that the Plaintiff was not riding on the left side of his lane, but in the middle of the road, on the double line. This finding of fact based on the silent evidence runs contrary to Plaintiff’s police report (page 56 of Appeal Record) which reported that a motorcar encroached into Plaintiff’s lane and the testimony of the Plaintiff’s witness, SP3, claiming to have witnessed the accident whom testified that the Plaintiff was on the left side of his lane (page 60 of Appeal Record and page 20 of Supplementary Appeal Record). [23] Upon careful perusal of the oral evidence of SP3, this Court doubts SP3’s evidence as he is not an independent witness as he knows the Plaintiff personally having living in the same house with the Plaintiff (page 20 of Supplementary Appeal Record), SP3 admitted that he could not recall exactly how the accident occurred (page 20 of Supplementary Appeal Record) and SP3 lied about his employment (page 21 of Supplementary Appeal Record). [24] Overtaking a double line while travelling and overtaking a vehicle over a double line are offences committed under rule 12 (3)(A) and rule 17 of Traffic Rules 1959.The fact that the road accident involves another vehicle, a motorcar Perodua Viva bearing registration number WTC 7504 where the driver was travelling on the same direction with the Plaintiff and had lodged a police report that the Plaintiff knocked on the rear of the 10 vehicle, on the right side (page 63 of Appeal Record), was not called to testify by the Plaintiff. [25] Therefore the Session Judge should have invoked the principle of adverse inference under section 114(g) of Evidence Act 1950on the Plaintiff’s failure to call the driver of vehicle WTC 7504 to testify and throw some light as to the cause of the accident, particularly what had caused the Plaintiff to knock on the right side of the rear of the vehicle and whether the Plaintiff was riding without his motorcycle’s lights switched on. [26] I cannot deny that I also have this concern that based on the silent evidence of the damage to the motorcar and the Plaintiff’s motorcycle, it seemed to be a head on collision. The Plaintiff testified that his motorcycle is damaged in the front and had collided at the right side near the tyre of the Defendants’ motorcar (page 16 of Supplementary Appeal Record). If that is the case, since there was a Perodua Viva ahead of the Plaintiff, the Defendants could have collided into the Perodua Viva vehicle first. [27] This Court is of the view that the Session Judge had misdirected himself on the burden of proof which rests with the Plaintiff. Had the Session Judge applied the right test in Wong Thin Yit (supra) case and evaluated all the facts and evidence before him,he would have decided differently:Sukatno v Lee Seng Kee & Anor (Rayuan Sivil No.: A-04-76- 2008). Based on the principle of plainly wrong test as enunciated in the case of Gan Yook Chi (supra), this Court holds the view that the Session Judge was plainly wrong in law which warrants this Court to disturb its finding of facts. 11 [28] In light of the above reasons, I find the Plaintiff, on the balance of probabilities, have failed to discharge its burden of prove. This Court finds that the Plaintiff equally contributed negligence to the road accident and decided that there be equal proportion of liability between the Plaintiff and the Defendant. I hereby allow the appeal with costs. Dated: 30 May 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court 12 COUNSEL FOR THE APPELLANTS MARK KHOO Messrs Khoo & Sidhu Advocates & Solicitors Unit B-9-10, 9th Floor Block B, Megan Avenue II 12, Jalan Yap Kwan Seng 50450 Kuala Lumpur [Ref: MK/ar/5123/12] Tel: 03- 2166 8221 / 7221 Fax: 03-2166 5221 COUNSEL FOR RESPONDENT KHAIRUL AIMAN BIN KAMAR ROZAMAN Messrs G Dorai & Co Advocates & Solicitors No. 7, Jalan Mawar 1 Taman Mawar 48000 Rawang Selangor Darul Ehsan [Ref: PGD/02/00237/15/1NS/sh]