1. Sathia Moorthy A/L Ramudu v Daud Bin Ma’Ali (BA-11B-14-02/2016)

SATHIA MOORTHY A/L RAMUDU (No. K/P: 621022-08-6071)

ESTHER SELVARETHINAM KULASINGAM (No. K/P: 580704-10-5964 … PERAYU-PERAYU DAN DAUD BIN MA’ALI (No. K/P: 400330-10-5271 … RESPONDEN [Dalam Perkara Mahkamah Majistret di Kuala Selangor Guaman No: A73KJ-21-03/2015 ANTARA Daud bin Ma’Ali (No. K/P: 400330-10-5271 … Plaintif

Sathia Moorthy A/L Ramudu (No. K/P: 621022-08-6071)

Esther Selvarethinam Kulasingam (No. K/P: 580704-10-5964 … Defendan-Defendan] 2 GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellants (1st and 2ndDefendants) against the decision of the learned Magistrate whom decided both parties liable where Defendants’ at 90% and Plaintiff at 10%, in a road accident case. The appeal is for liability and quantum. The Respondent also filed a cross-appeal for liability and quantum. [2] In this judgment, the parties will be referred as they were in the Magistrate’s Court. At times the term ‘the Defendants’ are referred to as ‘the 1st Defendant’ and ‘the 1st and 2nd Defendants’. [3] Having read the written submissions, the Appeal Record and the written judgment of the learned Magistrate, I allow the appeal for liability and dismiss the cross-appeal with costs. On quantum, the award is affirmed and I allow the Defendants’ pray to substitute the interests claimed by the Plaintiff. Brief Facts [4] The salient facts leading to this appeal can be summarised as follows:

This action arose from a motor vehicle accident involving the Plaintiff, age 74 years old at the time of the accident was 3 riding a motorcycle bearing registration number BFL 6551. The 1st Defendant was driving a motor car bearing registration number WCL 2405 and the 2nd Defendant is the owner of the said motorcar. The Plaintiff and the Defendants were travelling in the same direction, from bottom to top.

The Plaintiff claimed that on 20.11.2013, about 9.30 in the morning, an accident occurred at the middle of junction of KM 62, Jalan Klang – Teluk Intan – Tanjung Karang where the Plaintiff had stopped his motorcycle and out of sudden a motorcar WCL 2405 driven by the 1st Defendant collided with his motorcycle causing his to be flown and landed on the said motorcar (page 124 of Appeal Record). The Plaintiff claimed as stated in his Statement of Claim, there was an encroachment by the 1st Defendant into the Plaintiff’s right of way without any signs or warning which caused the accident.

The Defendants on the other hand claimed that the Plaintiff was on the left side of their motorcar and suddenly changed direction to travel to the right lane and caused the accident.

The learned Magistrate found both to be liable and apportioned the liability 90% for the Defendant and 10% for the Plaintiff.

The Defendants dissatisfied with the decision filed an appeal against the decision of the Magistrate for liability and quantum 4 and the Plaintiff also dissatisfied with the Magistrate’s decision, filed a cross-appeal against the decision of the Magistrate, on liability and quantum. Defendant’s submission [5] The learned counsel for the 1st Defendant submitted the 1st Defendant’s version as reported is that, themotorcycle ridden by the Plaintiff was on the left side of the motorcar and suddenly the Plaintiff turned towards the road divider causing his motorcar to collide with the Plaintiff’s motorcycle (page 125 of Record of Appeal). [6] The Defendants’ counsel submittedthat there are two conflicting versions of police reports where the Plaintiff claimed that the Plaintiff had reached the middle of the junction which is marked as “X” in the Sketch plan (page 126 of Appeal Record), whereas the Defendants on the other hand claimed that the Plaintiff’s motorcycle was on the left side of the motorcar while approaching the junction. [7] The Defendants submitted that if the Plaintiff had stopped to turn to the left side as claimed by the Plaintiff, then the damaged impact should focusedon the right side of the 1st Defendant’s motor car and not on the left side of the motor car. [8] The Defendants’ counsel submitted that the 1st Defendant’s version is consistent with the silent evidence that is based on the damage of both vehicles involved in the accident. The Defendants’ motorcar was 5 damaged on the left side and as confirmed by the IO, the Defendants’ version is more probable and prayed that the appeal on liability be allowed. [9] It was further averred by the Defendants’ counsel that the 1st Defendant did not, during the cross-examination, admit that he was negligent as found by the Magistrate. The counsel for the Defendants pointed to this Court that nowhere in the notes of proceedings did the Defendants admitted negligence while trying to overtake the Plaintiff on the road. [10] The counsel for the Defendants submitted that the Plaintiff had been summoned under Rule 6(2) of Road Traffic Rules 1969 for the cause of the accident and not the Defendants. [11] In relation to the award, the Defendants’ counsel submitted, pertaining to one injury, the Magistrate’s Court awarded RM15,000.00 for Plaintiff’s injury of fracture of the right medial malleolus with complete ankle dislocation. The Defendant’s counsel submitted to this Court the proposed award of RM12,000.00as the suitable award. [12] Regarding award of interests, the Defendants’ counsel submitted that the Magistrate had erred in law and fact to have awarded the interests at the rate of 4% and 8% where following the Practice Directive of No. 1/2012, the rate is fixed at 2.5% and 5% respectively. 6 Plaintiff’s submission [13] The learned counsel for the Plaintiff submitted that the Plaintiff’s version of the accident is more probable and the learned Magistrate was correct in deciding that the Defendants were liable at 90%. The Plaintiff’s counsel submitted that in cross-appeal, it is averred that the Defendants should be held wholly liable. It is submitted that the Plaintiff was on his way home from the market nearby and when the Plaintiff reached the junction of KM62, Jalan Klang – Teluk Intan, he stopped his motorcycle to cross to the opposite lane towards the building RHB Bank, where out of a sudden, the 1st Defendant’s motorcar encroached onto his path and resulted the collision on the right lane (of A3-A4 lane as sketch plan). [14] The Plaintiff’s counsel submitted that the Plaintiff’s version is consistent with the police report and his witness statement. The Plaintiff’s counsel averred that the Plaintiff was ahead of the Defendants’ motorcar where the Plaintiff’s motorcycle was in an oblique position when collided near the road concrete divider which is spacious enough to accommodate three motorcars as stated in police investigating officer’s (IO) written statement (page 36 of Appeal Record). It is submitted that as a result of the collision, the Plaintiff was thrown to the motorcar and fell on the road (page 18 of Supplementary Appeal record (3)). [15] It is submitted that the IO had confirmed in his testimony that the 1st Defendant was driving fast in that area by observing the damage of the vehicle that is the broken front mirror and the injuries suffered by the Plaintiff. 7 [16] The Plaintiff submits that since the glass fragments were found on lane A4 which is an established fact that the collision happened in the Plaintiff’s right of way and thus the Plaintiff’s version was more probable. [17] The Plaintiff’s counsel submitted the cross-appeal for the awards, where at pages 19 – 24 of the written submission where mainly, for the award of open fracture of distal end of right tibia of RM15,000.00 is too low and submitted that the award should be RM25,000.00. For closed segmental fracture of distal 1/3 of right fibula, it is submitted that the award of RM10,000.00 is too low and submitted the award of RM25,000.00. The Plaintiff’s counsel also submitted the award of RM8,266.66 for follow up treatment cost from the award granted by the Magistrate at RM2,911.00 (page 25 of Plaintiff’s counsel’s written submission). Decision of the Sessions Court [18] Briefly, the Magistrate opined that the Plaintiff’s version on the cause of the accident is more probable. The Magistrate viewed that the Defendants admitted in his testimony that he was negligent in the accident for colliding into Plaintiff’s motorcycle. The Magistrate stated that upon considering the silent evidence, the Magistrate’s Court viewed that at the time of the collision, the motorcycle ridden by the Plaintiff was in the front in an oblique position and was hit by the 1st Defendant. 8 APPEAL [19] This suit was brought by the Plaintiff. It is the Plaintiff’s contention that his version as to the cause of accident is more probable where the 1st Defendant encroached onto his lane which caused the collision. The legal position is clear and can be found in a number of great authorities that an appellate court should but rarely interfere with conclusion arrived at by the trial judgewho has had the advantage of hearing the witnesses unless it is satisfied that the judge has acted on a wrong principle of law or has made a wholly erroneous estimate of damage suffered. [20] This Court refers to the Federal Court case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng &Ors [2005] 2 MLJ 1 where the test is the ‘plainly wrong test’ by the trial judge to warrant the appellate court to interfere. It is trite law that the fact finder’s decision cannot be disturbed on appeal unless the trial judge was plainly wrong. [21] 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 Defendant. The principle of burden of prove has been deliberated extensively in the Federal Court case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O

Venkatachalam Chettiar v Secure Plantation Sdn Bhd [2017] 4 MLJ Based on Letchumanan Chettiar (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. 9 [22] Reverting to the facts, it is the Plaintiff’s contention that the Plaintiff stopped at the middle of the junction when out of a sudden, the Defendants collided into the Plaintiff’s motorcycle. It is not disputed that both were travelling in the same direction, from bottom to top on the straight road. The Plaintiff testified that the point of impact is at the alleged marked ‘X’ on the sketch plan by the Plaintiff (page 126 of Appeal Record) which is at the junction or the road divider. [23] Upon careful scrutiny of the police reports, this Court finds that the Plaintiff reported that the Plaintiff had stopped upon reaching the junction and suddenly the Defendants hit the Plaintiff which due to the collision, the Plaintiff was thrown onto the Defendants’ motorcar. The Plaintiff reported that the damage on his motorcycle was on the right side that is, “absorber belakang kanan patah dan lain-lain kerosakan belum diketahui…” [24] The Defendants’ report on the other hand stated that the Defendants were travelling towards Kuala Selangor and suddenly the motorcycle on the left side suddenly turned to the road divider in front of the Defendants causing the motorcar to hit the Plaintiff’s motorcycle. The damage reported at page 125 of the Appeal Record was that, “kerosakan di Bahagian bumper hadapan sebelah kiri, lampu besar hadapan sebelah kiri, bonet hadapan sebelah kiri, cermin hadapan sebelah kiri dan lain-lain kerosakan serta kerugian saya belum diketahui lagi….” 10 [25] Based on both police reports and the silent evidence of the damage to both vehicles (pages 128-129 of Appeal Record), the fact that the Defendants’ motorcar is damaged on the left side proves to show that the Plaintiff was on the left side of the motorcar and had intended to turn towards the road divider which is on the right side of the lane. This Court finds that based on the documentary evidence and the silent evidence, the damage is not consistent with Plaintiff’s version that is, he had stopped to turn left when the 1st Defendant encroached into the Plaintiff’s lane. [26] This Court finds that the police report and the damaged to both vehicles are consistent with the IO’s investigation that the damage to the motorcycle is on the right side whereas the damage to the Defendants’ motorcar is on the left side (page 8 of Supplementary Appeal Record). The fragment glass found at the scene of accident is from the Defendants’ motorcar front window which was broken and no debris from the vehicles’ components are found on the road. [27] This Court also finds that the IO had testified that the fragment of broken glass is at marked ‘B’ in the sketch plan which is in the middle of lane A3-A4, as it was still at the scene of the accident when the IO arrived and therefore do not show that the Plaintiff was travelling on the left side of the Defendants’ motorcar. [28] In relation to the submission of admission by the 1st Defendant by the Plaintiff’s counsel, this Court perused the notes of proceedings (pages 12 – 14 of Supplementary Appeal Record) and finds that the 1st Defendant testified that he admitted the Plaintiff was ahead of him prior to the accident 11 and that he wanted to travel straight but the motorcar intended to encroach onto his right of way and he tried to avoid: “Saya ingin jalan lurus namun motor ingin masuk laluan saya, saya cuba mengelak namun terlanggar bahagian hadapan bucu kiri kereta saya. Ini adalah impak pertama kemalangan. Tidak setuju kemalangan ini berlaku apabila saya ingin memotong beberapa buah kereta dan melanggar motor Plf.” [29] Based on the notes of proceedings, this Court finds that there was no admission of the part of the 1st Defendant. This Court holds the view that based on evidence adduced, guided by the burden of prove principle stipulated under section 101 of Evidence Act 1950,the Plaintiff failed to discharge the burden to prove, on the balance of probabilities that the collision was not caused by the Plaintiff. This Court allowed the appeal on liability. [30] The claim for damages must be based on evidence on standard of balance of probabilities as decided by the Federal Court in the case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 1 PIR [16]; [2016] 2 CLJ 885. In this instant appeal, upon careful perusal of the awards as laid out in the Magistrates’ written judgment and the reference made to the compendium and case laws (pages 15 -16 of Supplementary Appeal Record), it is of this Court’s view that the Magistrate had evaluated all facts and evidence in making her findings and the award granted is not manifestly excessive. 12 [31] This Court rely on the plainly wrong test principle enunciated by the Federal Court in the case of Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1where the Magistrate was not wrong in law in making the award. In relation to the interests awarded, this Court allowed the appeal by substituting the interest rates of 4% to 2.5% and 8% to 5% following the Chief Justice Practice Directive of No. 1/2012 (Arahan Penentuan Kadar Bunga Di Bawah Kaedah-Kaedah Mahkamah 2012) that was enforced on 1 August 2012. In light of the above reasons, I allow the appeal, the award is affirmed, with costs. The cross-appeal by the Plaintiff is dismissed. Dated: 11 July 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court 13 COUNSEL FOR THE APPELLANTS S. SIVAKUMARESAN Messrs Naicker & Associates No. 33 (2nd Floor), Jalan Desa Taman Desa 58100 Kuala Lumpur [Ref: NA/MMIP-325/APPEAL/16/LG] Tel: 03-7981 7329 Fax: 03-7981 8729 COUNSEL FOR THE RESPONDENT R. NORHAJJAH BINTI RAJA AHMAD Messrs Intan Ridzuan Raja Norhajjah & Co. No. 32, 1st Floor, Jalan Taming Sari 34000 Taiping Perak Darul Ridzuan [Ref: IRRN/LIT/5424/2014-N]