Norita Binti Hamzah (Balu Sah Dan Orang Tanggungan Bagi Wan Ashraff Bin Wan Azami No. Kad Pengenalan 860401305017 Si Mati Yang Menuntut Di Bawah Sesyen 7 & 8 Akta Undang-undang Sivil 1956 Akta 67) v Nurul Nor Aishah Binti Abdul Ghani No. Kad Pengenalan 920106065016 (CA-12B-3-06/2023)

NURUL NOR AISHAH BINTI ABDUL GHANI [NO. K/P : 920106-06-5016]

WAN MOHD ASRI WAN JAAFAR [NO. K/P : 710715-06-5163] ...RESPONDEN-RESPONDEN DALAM MAHKAMAH SESYEN DI KUANTAN DALAM NEGERI PAHANG DARUL MAKMUR GUAMAN SIVIL NO. CA-A53KJ-272-11/2021 ANTARA NORITA BINTI HAMZAH ...PLAINTIF [NO. K/P : 860219-06-5184] [Balu sah dan orang tanggungan bagi Wan Ashraff bin Wah Azami (No. K/P 860401-30-5017) (Simati) yang menuntut di bawah Seksyen 7 & 8 Akta Undang-Undang Sivil 1956 (Akta 67)] NURUL NOR AISHAH BINTI ABDUL GHANI ...DEFENDAN [NO. K/P : 920106-06-5016] WAN MOHD ASRI WAN JAAFAR …PIHAK KETIGA [NO. K/P : 710715-06-5163] GROUNDS OF JUDGMENT INTRODUCTION [1] At the Sessions Court the Appellant, wife of the deceased Wan Ashraff Wan Azami, brought a dependency claim against the 1st Respondent. The 2nd Respondent was brought into the proceeding by the 1st Respondent to seek contribution in the event the court found the 1st Respondent liable. [2] The Appellant’s claim arose out of a road accident involving a motorcycle ridden by the deceased, a motorcar driven by the 1st Respondent and a 4WD Hilux driven by the 2nd Respondent. [3] After a full trial, the learned Sessions Court Judge (“HMS”) dismissed the Appellant’s claim in its entirety. Aggrieved, the Appellant appealed against the decision. [4] This Court affirmed the HMS’s decision and dismissed the appeal, based on the reasons below. HOW DOES THE ILL-FATED ACCIDENT HAPPENED? The Sketch Plan [5] The police sketched plan of the accident prepared by the IO (Exhibit P1) was as below: [6] Having considered the evidence of SP1, the substituting IO, the HMS concluded that the evidence does not assist the court in making a conclusive determination as to how the accident occurred and who was at fault. This Court agrees with this finding of fact by the HMS. Sergeant Major Zaidi, the initial IO who was present at the accident scene to carry out investigation of the accident, and the one who drew the sketched plan in Exhibit P1, was not called as a witness by the Plaintiff. SP1, the substituting IO, cannot explain how the accident happened. In fact, during cross examination by the 2nd Respondent’s counsel, SP1 told the court that upon the demise of the deceased, the case was classified as NFA as there was no evidence to charge any person for any offence. [7] All parties agreed that at the ill-fated time, the deceased was riding his motorbike, the 1st Respondent was driving his motorcar and the 2nd Respondent was driving a 4WD Toyota Hilux. They were all in the same direction on a two-lane carriageway moving from Kuantan town towards Gambang. The first crash involved the deceased’s motorbike and the 1st Respondent’s car. As a result of that collision, the deceased was flung onto the second lane causing the deceased being strucked by the 2nd Respondent’s Hilux. There were two versions as to how the accident occurred. The Appellant’s version [8] In paragraphs 14 - 23 of her Grounds of Judgment, the HMS summarized the Appellant’s version of the accident. This version solely blamed the 1st Respondent. [9] The Appellant’s version was that the 1st Respondent was driving his motorcar negligently when she made a sudden lane change from point A to point A1 shown in Exhibit P1 towards her right side. It was at that juncture that the 1st Respondent collided with the deceased’s motorbike which was at point A1. The impact of that collision caused the deceased’s motorbike to flung to his right side towards point A2, and was then hit by the 2nd Respondent’s Hilux which was driven behind the deceased’s motorbike. The 1st and 2nd Respondent’s version [10] The 1st Respondent’s version of the accident was recapitulated in paragraphs 24 - 28 of the Judgment. This version showed that the accident was solely caused by the deceased. [11] The deceased was riding his motorbike at high speed that he failed to avoid the 1st Respondent’s car which was travelling in front of the deceased’s motorbike. [12] The only person who claimed to have witnessed the accident between the deceased and the 1st Respondent was the 2nd Respondent. In his evidence the 2nd Respondent agreed with the 1st Respondent’s version. FINDING [13] In paragraphs 38 - 80 of her Judgment, the HMS meticulously analysed the evidence before her. She had firstly made her finding that the Appellant and the 1st Respondent never agreed on each other’s version as to how the accident occurred. She also concluded that the eye-witness, the 2nd Respondent (SPK-1), had never agreed with the Appellant’s version of the accident. On the contrary, the 2nd Respondent agreed with the 1st Respondent’s version. [14] This Court found that the learned HMS applied the correct principle of law when faced with conflicting versions of the accident. The HMS correctly referred to the principle laid down by Abdul Malik Ishak J. in Tabarani Mohd Arsad & Anor v Chan Tenn Yeu [1999] MLJU 126 that when a trial court is faced with conflicting versions, the answer is not by deciding who is telling the truth and who is not, but to consider which version was inherently probable. In so doing, the trial court must consider other probable versions provided they were within the scope and ambit of the pleadings and supportable by admissible evidence including the neutral evidence. [15] The learned HMS also applied correctly the principle laid down by the Federal Court in Chai Kah Sim v Ishak bin Saad [1986] 2 MLJ 132 that in making such determination, other silent and incontrovertible evidence such as the sketch plan, photographs of the scene showing the positions and damage of the vehicles after the accident, and the police reports must be taken into consideration. [16] The learned HMS made her finding on what exactly was meant by the 1st Respondent when she marked an “X” on the sketch plan in Exhibit P1. The Appellant argued that the 1st Respondent meant “X” as the point of impact, showing where the collision between the motorcycle and the 1st Respondent’s vehicle took place. The 1st Respondent argued that the marking “X” meant the location of the accident i.e. in front of the hardware shop and not the position of the vehicles when the collision took place. The HMS, correctly to this Court’s finding, treated this issue at great length as this issue could assist the HMS to determine the most probable version of the accident. Having thoroughly examined the evidence of the witnesses and relying on “the audio visual advantage to see witnesses and to draw inference from the evidence from them”, the HMS concluded that the 1st Respondent’s version was the most probable. [17] In paragraphs 72 - 74, the HMS explained that her findings on the most probable version of the accident was based on the damage and marks found on the vehicles, as seen through the photographs made available to the court (Exhibits 2 (E), (J), (M), (R), (X)). [18] Having made all those findings, the learned HMS simulated, through her own drawings which was based on Exhibit P1, the most probable manner as to how the accident had occurred. She concluded that the position of the motorcycle of the deceased, the 1st Respondent’s motorcar and the 2nd Respondent’s Hilux immediately prior to the ill-fated accident was as shown in her drawing reproduced below: [19] Taking into account the detailed analysis done by the HMS on evidence of the witnesses before her, the probable position of the vehicles as shown in the diagram she drawn up above, and her findings on the issues before her as set out in paragraphs 38 - 74 of her Grounds of Judgment, this Court concluded that the learned HMS had correctly made her conclusion that the most inherently probable version of the accident was the 1st and the 2nd Respondents’ version. This Court agrees with the conclusion which was based on the findings as set out in paragraph 75 of the Grounds of Judgment of the HMS, where the learned HMS decided that –

The 2nd Respondent was travelling in the Hilux at 80-90 kmh on point A2-A3 prior to the accident. The 1st Respondent was in her motorcar on A1-A2 travelling at 70 kmh in front of the Hilux.

(ii) Both the 1st and 2nd Respondents were in a straight position facing the top of the sketch plan.

(iii) The 2nd Respondent wanted to overtake the 1st Respondent’s motorcar. In the course of doing so, the deceased’s motorbike had overtaken the 2nd Respondent at a higher speed than the 2nd Respondent’s vehicle, but at the left side of the 2nd Respondent’s Hilux.

(iv) At the same time, the deceased was attempting to overtake the 1st Respondent’s vehicle, which was at the same lane with the motorbike.

That there was highly probable that at that moment the deceased was not maintaining safe riding distance, misjudged the gap between the 1st Respondent’s motorcar and the 2nd Respondent’s Hilux, and was at a very high risk of losing control.

(vi) At that disastrous moment the deceased’s motorbike lost control and collided onto the right back part of the 1st Respondent’s motorcar. The sudden impact of this collision, coupled with the high speed of the motorbike, had caused the motorbike to flung onto the second lane (point A2-A3) where the 2nd Respondent’s Hilux was. It was at this very moment that the deceased’s motorbike was strucked by the 2nd Respondent’s Hilux.

(vii) The deceased, being separated from his motorbike, came to rest at the back of the 1st Respondent’s motorcar on the same lane at point A1-A2. [20] This Court applied the trite principle laid down by many courts in dealing with an appeal against a decision of a trial court. This Court is mindful that in exercising its appellate jurisdiction in determining such an appeal, this Court is in fact dealing with the Appellant intending to upset the finding of the trial judge who has seen and heard the witnesses. [21] This Court would interfere if it is found that the trial judge has so fundamentally misdirected herself, that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same erroneous conclusion. The Court of Appeal in Sivalingam Periasamy v Periasamy & Anor [1996] 4 CLJ 545 held that an appellate court will not readily interfere with the findings of fact arrived at by the trial court, which was entrusted with the primary task of evaluation of evidence. In Mathavan a/l Shunmugam v Woo Bee Leng [1995] 1 MLJ 841, Abdul Malik Ishak J held that the appellant in a case after a full trial bears a heavy onus to displace the conclusion formed by the trial judge on questions of fact. The appellant court should act to review the decision of the trial judge when his conclusion was not sufficiently explained or justified. The appellate court could take the view that without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion based only on the printed evidence. [22] Having considered the evidence and the documents in the appeal record, particularly the Grounds of Judgment of the learned HMS and the Appellant’s Memorandum of Appeal which had set out the grounds supporting this appeal, this Court did not find that the trial judge has so fundamentally misdirected herself, that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same erroneous conclusion, that would warrant this Court to interfere into the decisions of the HMS. This appeal is therefore dismissed. CONCLUSION [23] This Court had considered the reasons set out by the HMS in her Grounds of Judgment explaining why and how she came to her decision to dismiss the Appellant’s claims against the 1st Respondent. There is no reasons for this Court to interfere with the findings of arrived at by the learned HMS as she had not arrived at any erroneous conclusions and findings. This appeal was therefore ordered to be dismissed. Dated : 14 November 2024 -signed- (MOHD RADZI BIN HARUN) Judge High Court of Malaya PARTIES: Solicitors for the Apellant: Mohd Hamdi bin Zainol Messrs. N.M. Tiong & Co No. 1525-B, Tingkat 1& 2, Jalan Mahsuri 05000 Alor Star, Kedah Email : nmtiongas@gmail.com Ref. : TNM/N-1816AC/18/KH Solicitors for 1st Respondent: Kamaljeet Kaur Messrs. Othman Hashim & Co 566 Batu 3 ½, Jalan Ipoh 51200 Kuala Lumpur Email : ohc@ohc.com.my Ref. : LT/ALLIANZ(M)-68777/OHC/2022 Solicitors for 2nd Respondent: Roziana binti Ibrahim Messrs. V.P Nathan & Partners No. B6, 2nd & 3rd Floor, Jalan Seri Kuantan 2 25050 Kuantan, Pahang Email : datovpn@vpnathan-partners.com.my Ref. : VPN/RI/nor/99322K(B)-AMG