Raja Shakar A/L Kan@Mookiah v Vijaya Kumar A/L Dorakannu (BA-12B-44-03/2016)

At the hearing, the Appellant (Defendant) is appealing against the Session Judge’s decision of equal apportionment of liability between the Appellant and the Respondent (Plaintiff) and one award granted to the Plaintiff.

For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court.

The Plaintiff claimed that the accident occurred on 28.6.2011 was due to Defendant’s negligence who was driving a motor van bearing registration BLC 5581. The Plaintiff’s version is as in its Statement of Claim (page 15 of Appeal Record) as follows: “3. Pada atau ketika 28hb, Jun, 2011, Plaintif secara sah sedang menunggang motosikal WLV 7908 di sepanjang Jalan Sg. Tua, Selangor Darul Ehsan dari arah Batu Cave menghala ke arah Sg. Tua dan apabila sampai satu selekoh di atau berdekatan Depoh Rapid KL jalan tersebut, Plaintiff dan/atau motorsikalnya telah dilanggar oleh motorvan BLC 5581 yang dipandu oleh 3 Defendan dimana motorvan tersebut yang datang dari arah yang bertentangan secara tiba-tiba dan tanpa sebarang amaran memakan masuk ke jalan sah Plaintif dan akibat daripada perlanggaran tersebut, Plaintif telah mengalami kecederaan, kerugian dan perbelanjaan.”

The Plaintiff claimed that the Defendant was negligent in controlling its vehicle (paragraph 4, page 16 Statement of Claim, of Appeal record) and the particulars of Defendant’s negligence are meted out in the Statement of Claim (pages 16-17 of Statement of Claim of the Appeal Record).

The Defendant denied that he was negligent and claimed that the Plaintiff had lost control of its motorcycle and encroached into the Defendant’s right of way and hit the Defendant (pages 21-23 of Appeal Record). The Defendant stated in its police report (page 68 of Appeal Record) that, “PADA 28/06/2011 JAM LEBIH KURANG 0630 HRS, SAYA MEMANDU VAN BLC5581 JENIS TOYOTA DARI SUNGAI TUA MAHU PERGI BATU CAVES. PADA KETIKA ITU, APABILA SAYA SAMPAI DI JLN SG TUA – ULU YAM, SEMASA SAYA MENGAMBIL SATU SELEKOH DENGAN TIBA TIBA SEBUAH MOTOSIKAL NOMBOR WLV7908 DARI ARAH BERTENTANGAN SEMASA MENGAMBIL SELEKOH TELAH TERBABAS DAN MASUK KE JALAN SAYA KERANA DISEBABKAN JARAK DIANTARA KENDERAAN SAYA DENGAN KENDERAAN ITU SUDAH DEKAT SANGAT, SAYA TERUS MENEKAN BREK DAN CUBA MENGELAK TETAPI M/SIKAL TERSEBUT TERUS MELANGGAR JUGA DI BAHAGIAN KIRI DEPAN VAN SAYA…” 4

The Sessions Judge on 23.2.2016 found both parties equally liable and ordered the Defendant to pay the Plaintiff general and special damages.

The learned counsel for the Defendant advanced several grounds of appeal, mainly that the Session Judge was erred in applying the wrong principles of law in deciding that the liability be apportioned equally (pages 106 and 109 of Supplementary Appeal Record). The counsel for the Defendant averred that the investigating officer (IO) testified that the debris was believed to be from the motor van (sketch plan at page 69 of Appeal Record) and submitted that there is no independent witness to verify as to the occurrence of the accident.

The Defendant’s counsel also submitted that the sketch plan drawn up by the IO showed that the debris believed to be from the motor van was on the Defendant’s right of way. The counsel for the Defendant relied on the case of Ng Chui Sia v Maimon Binti Ali [1981] 1 MLJ 110 stating that if Plaintiff’s version could not assist in the determination of the case, the Plaintiff’s case should be dismissed.

The Defendant’s counsel submitted that the marked ‘X’ could not tally with the damage to the motor van which is on the front left side of the motor van (page 71 of Appeal Record). It was submitted that on the basis of no evidence adduced by the Plaintiff, the Plaintiff has failed to prove its case and the Session Judge had wrongly apportioned the liability simply for the 5 reason that both versions could not be believed. The Defendant’s counsel asserted that if the Plaintiff could not prove its case, the Session Judge should reject its evidence as its argument cannot stand: Mohd Yusof Abdul Ghani v Tee Song Kee & Anor [1995] 3 CLJ 738.

In relation to the quantum, the Defendant’s counsel submitted that it no longer pursuing the overlapping award (as at page 10 of written submission) and only focusing on cost of Arthroscopic Surgery for Meniscus Injury, arguing that the amount RM20,000.00 should be awarded based on the two reports. The Plaintiff’s specialist stated (page 87 of the Appeal Record) that Plaintiff should go for the MRI scan and the Defendant’s specialist of 3.7.2014 reported that it could not be confirmed (page 107 of Appeal Record). It is submitted that there is no evidence that the MRI scan was allowed and therefore requested this Court to disallow the award.

In relation to cost of plastic surgery, it was asserted that the cost of RM25,000.00 should be awarded based on the specialist report of Plaintiff’s (page 102 of Appeal Record) where it was stated by the specialist Dato’ Dr. P.S. Nathan recommending Plaintiff to get an opinion. Whereas the Defendant’s specialist report stated by the cosmetic surgeon proposed RM10,000.00 inclusive of hospitalization. Submitted that the starting point should be RM10,000.00 as a basis with deduction of one third. 6

The learned counsel for the Plaintiff submitted that the debris could not be identified either from the motor van nor the motorcycle, it had been scattered by the passing by vehicles as testified by IO. It was submitted that the Plaintiff had marked ‘X’ on the sketch plan to show where he was coming from, that is riding from top to bottom and the Defendant was coming from bottom to top.

It was submitted that the IO failed to verify based on the sketch plan and without independent witness, averred that the equal apportionment of liability at 50-50 is fair and relied on the case of Mohd Yusof Abdul Ghani v Tee Song Kee & Anor [1995] 3 CLJ 738.

In relation to quantum, the Plaintiff’s counsel submitted that the surgery is the cost for future operation and the Defendant did not forward its argument when this was tried at the Sessions Court. The Plaintiff’s counsel averred that the award by the Session Judge be retained as Plaintiff had proven its case.

The Session Judge’s decision is reproduced here in parts, as follows” “….. 7

Di dalam kes yang dirayu ini, Mahkamah telah meneliti gambar kerosakan motorlori Defendan dan mendapati kesan kerosakan pada Bahagian bucu kiri tidak dapat menggambarkan samada motorsikal Plaintif memeang telah terbabas dan melanggar Bahagian tersebut atau pun motorvan Defendan memang telah memasuki ke lorong Plaintif dan berlanggar dan mengenai bahagian hadapan buru kiri motorvan.

Begitu juga keadaan kerosakan motorsikal Plaintif pada Bahagian hadapan dan cover set pecah tidak dapat menggambarkan bahawa motorvan Defendant telah memasuki ke lorong laluan Plaintif dan berlanggar.

Kerosakan-kerosakan pada kenderaan kedua-dua pihak tidak dapat membantu Mahkamah dalam menentukan liability.

Selain daripada kerosakan kenderaan-kenderaan tersebut, tiada sebarang kesan lain seperti kesan brek, calar kecuali serpihan kaca di atas jalan raya tempat kemalangan berlaku namun Pegawai Penyiasat sendiri tidak dapat pastikan samada tempat serpihan kaca dijumpai adalah merupakan tempat kemalangan berlaku atau bukan.

Mahkamah mendapati tiada saksi bebas yang dapat membantu Mahkamah menentukan liability. 8

Mahkamah mendapati tiada mana-mana pihak yang versinya lebih probable.

Di dalam kes ini tidak dapat ditentukan dengan penuh kepastian siapakah yang menunggang atau memandu dengan cuai sehingga menyebabkan kemalangan ini. ……

Oleh yang demikian, Mahkamah telah merujuk kepada beberapa kes sebagai sandaran di dalam menentukan liability.

4.1 Kes Peraganathan v. Choong Yuk Sang [1996] 1 CLJ 622, YA Chin Fook Yen telah memutuskan bahawa: “…the Court is left in doubt as to how or where the accident occurred on the road. Accordingly, the principle in Baker v. Harborough applies to his case and the parties are equally to be blamed.” ……………” 9 THE COURT’S FINDING [16] Both counsels advanced several arguments and for the purpose of this judgment, I will be brief, focusing on the main grounds. I would start by saying that this suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim based on the balance of probability. 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 No. 02-78- 10/2014. 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. [17] In a case where negligence is pleaded, the onus is not on the defendant to prove that he was not negligent. This was pointed out in the case of Ng Chui Sai v Maimon Bt. Ali [1983] 1 MLJ 110, referred in the case attributed by the Defendant’s counsel of Krishna Murthey & Anor v Law Lye Chua [1992] 1 CLJ 684. I also rely on the case of Tu Leh Ho & Anor v Anin Anak Lengie & Anor [2009] MLJU 68 which quoted 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.” 10 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

The test of contributory of negligence is based entirely on the conduct of the plaintiff in the accident case. [18] Upon careful perusal of the Notes of Proceedings (page 19, page 21 and page 52 of Supplementary Appeal Record), I find there are various version. The Plaintiff first testified that he was riding from bottom to top (page 19 of Supplementary Appeal Record) and based on the sketch plan, Plaintiff pointed out that he was riding from top to bottom (page 21 of Supplementary Appeal Record). At page 21 of the Notes of Proceedings (Supplementary Appeal Record), Plaintiff testified that he was riding from top to bottom, where the road bends, in between lanes A2, A3 and that he avoided to the right. Plaintiff testified that he was riding at 60-80km per hour. The Plaintiff also testified that he does not have a valid license (pages 25-26 of Supplementary Appeal Record). [19] The Defendant on the other hand, testified that he was coming from bottom to top (page 52 of Supplementary Appeal Record) that is from Sg. Tua to Batu Caves (page 56 of Supplementary Appeal Record) which is consistent with his police report of 28.6.2011 (page 68 of the Appeal Record). The Defendant testified that the accident occurred near ‘A1’ of the sketch plan (page 53 of Appeal Record). Logically, if Defendant was encroaching into Plaintiff’s opposite lane, the collision would be on the right side of the Defendant’s motor van. The photo of the damage on the motor van proves to show that the damage is on the left side, consistent with the 11 Defendant’s police report and IO’s evidence. The debris marked by the IO is found on the left side of lane A1-A2 according to the sketch plan. [20] It is trite law where there are two conflicting versions by the parties to the dispute in a running down case, the silent evidence of the photographs of the damage, the scene of the accident, the sketch plan will be the guiding force in evidence and decision-making: Ng Aik Sian v Sia Loh Sia [1997] 2 CLJ 218. [21] In this instant case, the IO’s investigation and Plaintiff’s own testimony do not reveal the evidence that the Defendant hit the Plaintiff as asserted by the Plaintiff. This Court viewed that where the Plaintiff failed to discharge its burden of proof, based on the balance of probability, its assertion must be dismissed. As such, there is a clear misdirection of law and findings by the trial judge and it is incumbent upon this Court to intervene and correct the findings: Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323. [22] I do not wish to deliberate at length on the misdirection of law by the trial judge. Suffice to say that this Court holds the view that in the case where negligence is claimed as the cause of action, prove of negligence will be placed on the plaintiff and in this case, the Plaintiff failed to discharge its burden and the onus to adduce evidence, relying on the authority by the Federal Court case of Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61 and other authorities, Neo Chan Eng v Koh Yong Hoe [1960] 26 MLJ 291, Ng Chui Sia v Maimon b. Ali 12 [1983] 1 MLJ 110 and Mohd Tarmizi Mat Hassan & Anor v Arief Fitri Ahmad Zainuddin [2014] 1 LNS 1005. [23] In addition, it was the assertion of the Plaintiff to prove liability and the Plaintiff himself is not in possession of a valid license, as admitted by the Plaintiff in his oral evidence. This Court viewed that such act is a serious offence and it would be a grievous mistake not to hold the Plaintiff liable for his failure to observe the provisions of the Road Transport Act 1987, riding his motorcycle without a valid driving license and affecting the safety of other road users. [24] I am of the view that if the trial judge had applied the right test following the case of Ng Chui Sia (supra) case and finds the Plaintiff does not possess a motorcycle license which raises a prima facie case of negligence, the Session Judge may have arrived at a different conclusion: Sukatno v Lee Seng Kee & Anor (Rayuan Sivil No.: A-04-76-2008). I stand to be guided by the Federal Court case of Mohamed Salleh Bin Awang & Anor v Low Han Leong & Anor [1981] 1 MLRA 306 where the plaintiff could not provide his version of the accident leading to its failure to prove its case, the Federal Court held that the plaintiff’s unproven evidence must fail. CONCLUSION [25] In this instant case, the Plaintiff has yet to discharge its burden of proof and its unproven claim must fail. In light of the above reasons, I 13 dismiss the appeal and set aside the Session Judge’s decision on liability and quantum. Dated: 14 December 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 14 COUNSEL FOR THE APPELLANT ANDREW KHOO Tetuan Khoo & Sidhu Peguambela & Peguamcara Unit B-9-1-, 9th Floor Blok B, Megan Avenue II No. 12, Jalan Yap Kwan Seng 50450 Kuala Lumpur [Ref: AK/ekin/49958/16] Tel: 03-2166 8221 / 7221 / 5221 Fax: 03-2166 0221 COUNSEL FOR THE RESPONDENT ZAINI BINTI RAZAK Tetuan Saha & Associates Peguambela & Peguamcara Unit 2-3, Tingkat 2 Wisma Bandar 18, Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur [Ref: SJ/7712/P/12]