Selvaraj A/L Earlumalai v 1. Mohd Shamil Bin Muhamad Ridza (BA-12B-32-03/2016)

JANNATUN NAIMAH BINTI MOKHNI ... RESPONDEN-RESPONDEN [DALAM MAHKAMAH SESYEN DI SEPANG DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN NO: S2-A53KJ-188-09/2014 ANTARA SELVARAJ A/L EARLUMALAI ... PLAINTIF

MOHD SHAMIL BIN MUHAMMAD RIDZA …DEFENDAN

JANNATUN NAIMAH BINTI MOKHNI …DEFENDAN KEDUA] 2 GROUND OF JUDGMENT Introduction [1] This is an appeal against the decision of the Sepang Sessions Court that was awarded on 29.1.2016 after a full trial involving a road accident case where the Appellant (Plaintiff) was held liable 80% and the Respondents (the Defendants) were found to be liable at 20%. The Plaintiff’s appeal is on liability and quantum. [2] In this judgment, the parties will be known as they were in the Sessions Court. At times, the ‘Defendants’ will be known as ‘1st Defendant’ and ‘2nd Defendant’. [3] I allow the appeal for liability and partial appeal for quantum. The Defendant is liable at 90% and the Plaintiff is at 10% and the partial appeal is for supervisory care for RM12,960.00 with cost. My reasons follow. Background Facts [4] The relevant facts to this case can be summarized as follows:

The Plaintiff claimed that on 4.10.2013, Plaintiff was riding on his right of way, motorcycle bearing registration number NAK 8248 from his house towards Sepang and was about to reach Jalan Salak/Sepang, Sepang, the 1st Defendant who was authorized to ride and or agent to 1st Defendant riding motorcycle bearing registration number BMF 7465 riding on the same direction without signal had overtaken Plaintiff’s 3 motorcycle and grazed Plaintiff’s motorcycle handle and caused the accident (paragraph 4 Statement of Claim, page 13 of Appeal Record).

The 2nd Defendant is the owner of the motorcycle bearing registration number BMF 7465 at the time of the accident.

The Defendants, as stated in their Defence, acknowledged that there was an accident on 4.10.2013 as stated by Plaintiff but denied that they were negligent (page 23 of Appeal Record), claiming that the accident was wholly caused by the Plaintiff.

The Defendants reported that the Plaintiff’s motorcycle suddenly grazed 2nd Defendant’s motorcycle and caused 1st Defendant to fall on the right side and at the same time the Plaintiff’s motorcycle collided with a motorcar bearing registration number WJN 9316 model Proton Iswara that was approaching from the opposite direction (Defendant’s police report of 4.10.2013, page 294 of Appeal Record).

The owner of the car registration number WJN 9316 reported the accident on 4.10.2013 (page 295 of Appeal Record) (Defendants’ witness SD1) stated that the Plaintiff’s motorcycle which was from the opposite direction was involved with an accident where the motorcycle had lost control and encroached into the SD 1’s lane and collided into his motorcar where he managed to apply his brakes but the motorcar behind him, model type Perodua Viva bearing 4 registration number WWG 4740 collided into the rear of SD1’s motorcar.

The award for quantum can be found at pages 85 – 90 of Supplementary Appeal Record. Plaintiff’s case [5] The learned counsel for the Plaintiff advanced sixteen grounds of appeal (pages 1-3 of Appeal Record) on liability and five grounds for appeal on quantum (page 4 of Appeal Record). It is submitted that there are two versions to the accident and that the Plaintiff pleaded he was riding straight ahead when suddenly the 1st Defendant who was coming from Plaintiff’s right side, overtook the Plaintiff’s motorcycle and grazed the right handle of Plaintiff’s motorcycle. [6] Briefly, the Plaintiff’s counsel averred that the investigating police officer (IO) testified that he had gone to the scene of the accident (page 9 of Supplementary Appeal record) together with the independent witness SD1 after the reported accident and this evidence was never rebutted by the Defendants. The IO testified that he drew the sketch plan as a straight road without a junction (page 297 of Appeal Record) which was tendered as ‘P1’ (statement at page 5 of Supplementary Appeal Record). [7] Upon questioning on the sketch plan, the Plaintiff’s counsel submitted that the IO testified that the junction was 150-200 meters away from the accident scene which was not challenged by the Defendants’ counsel and further submitted that nowhere in the report of SD1 mentioned of a junction (cross-examination of IO at page 11 of 5 Supplementary Appeal Record, SD1’s police report of 4.10.2013 at page 295 of Appeal Record). [8] The Plaintiff’s counsel averred that based on IO’s investigation, the 1st Defendant had been issued with summons under Rule 10 of Road Traffic Rules 1959 LN 166/59 (at page 298 of Appeal Record) dated 5.12.2013. [9] The Plaintiff’s counsel argued that SD1 contradicted his own evidence where he came to Sessions Court after 1 year and testified that there was a junction which was not in his police report. It is submitted that the damage of the two motorcycles are different from what was testified as to how the accident occurred where 1st Defendant testified that the accident occurred where the 1st Defendant had hit the rear of Plaintiff’s motorcycle (page 16 of Supplementary Appeal Record). [10] It was further submitted by the Plaintiff’s counsel that the Plaintiff’s evidence was consistent and was supported by the IO’s evidence whereby the 1st Defendant had admitted to the IO during the interview for the investigation that the 1st Defendant had grazed Plaintiff’s right handle motorcycle (page 9 of Supplementary Appeal Record (IO’s statement)). This was referred to the cross-examination of the IO where the IO testified that the 1st Defendant had told the IO that 1st Defendant had grazed the right handle of the Plaintiff’s motorcycle. Quantum [11] In relation to quantum, the Plaintiff’s counsel submitted that the Plaintiff had suffered head injury and the general damages awarded are too low. The Plaintiff’s counsel submitted that the Plaintiff is asking for the award for supervisory care which was dismissed by the Session 6 Judge. Relying on the specialist medical report, it is submitted that the neurosurgeon had reported that the Plaintiff is suffering serious side effects and requires “supervision and minimal assistance from a family member or domestic helper for the rest of his life, he should not drive a lorry for making a living as his impaired concentration and memory impairment puts him and others in danger”. For the supervisory care, the counsel for Plaintiff submitted for the rate of RM250 per month. For the award for head injury, Plaintiff is appealing for RM200,000 and argued that the award of RM100,000 is not sufficient. Defendants’ case [12] In rebuttal, the learned counsel for the Defendants averred that the IO is dishonest and had made a research for this case to assist the Plaintiff. The counsel for the Defendants submitted that there was a junction turning to a Hindu temple and averred that the Plaintiff attempted to change lane and turn to the right when the 1st Defendant wanted to overtake the Plaintiff’s motorcycle. [13] The counsel for the Defendants demonstrated as to how the accident could have happened and made out the difference to the name of the area, between Kg. Giching and Kg. Cincang. The counsel for the Defendants submitted the photos claimed to be the scene of the accident (pages 62 - 66 of Appeal Record). [14] In relation to quantum, the counsel for the Defendants submitted a cross-appeal but was objected by the Plaintiff’s counsel as there was no application for cross-appeal filed by the Defendants. 7 Plaintiff’s In Reply [15] In reply to the Defendants’ counsel submission, the Plaintiff’s counsel submitted that the accident occurred at Kg. Giching and highlighted this Court that the photo submitted by the Defendants’ counsel was a googled photo which was not tendered at the Sessions Court and was also not shown to the IO. [16] The Plaintiff’s counsel averred that there was no statement or question posed to the IO by the Defendants’ counsel that the IO was lying or that the sketch plan was wrongly drawn or that the IO was trying to help the Plaintiff. [17] The Plaintiff’s counsel asserted that it was the 1st Defendant’s evidence that his motorcycle handle grazed Plaintiff’s motorcycle handle and the evidence that the Defendant had admitted to the IO. The Plaintiff’s counsel submitted that the Session Judge failed to weigh the evidence about the non-existence of the junction and the statements about changing lane of the Plaintiff which was not in the Defendant’s Defence (page 25 of Appeal Record). The Session Court’s Decision [18] The findings of the Session Judge can be found at pages 77 – 99 of Supplementary Appeal Record. The Session Judge stated the two versions of the accident (page 81 and page 83 of Supplementary Appeal Record) and found Plaintiff at 80% liable and the Defendant at 20% liable. 8 APPEAL [19] This instant appeal went for a full trial at the Sessions Court where witnesses had been called and evidence were adduced and evaluated. The legal position is clear, based on a number of great authorities, an appellate court should but rarely interfere with conclusion arrived at by the trial judge who has had the advantage of hearing the witnesses unless it is satisfied that the trial judge was plainly wrong in law: Gan Yook Chin v Lee Ing Chin [2005] . [20] In the current case, there are two different versions as to how the road accident occurred and this Court is to determine which of the two versions entails the highly probable version: Noorianti Bt. Zainal Abidin & 8 Others v Tang Lei Nge & Tang Lye Chang [1990] 2 CLJ 545 (Rep); Rosli Bin Jusoh & Another v Lim Weng Onn [Rayuan Sivil No. BA-12B-35-03/2016]. I turn to the police reports made by the parties to this case. The Plaintiff reported on 5.12.2013 (page 293 of Appeal Record) that, “PADA 04/10/2013 JAM LEBIH KURANG 0800 HRS, SAYA MENUNGGANG M/SIKAL NO: NAK 8248 JENIS HONDA EX5 DARI ARAH RUMAH SAYA ALAMAT SEPERTI DI ATAS MENGHALA KE SEPANG. APABILA SAYA SAMPIAI DI JALAN BERHAMPIRAN KAMPUNG GICHING, SAYA JALAN TERUS DALAM MASA YANG SAMA DATANG SEBUAH M/SIKAL NO: BMF 7465 JENIS KAWASAKI NINJA 250 TELAJ MEMOTONG DAN TERGESEL/TERKENA HENDLE M/SIKAL SAYA DAN SAYA TERJATUH. SAYA JATUH DAN MENGALAMI CEDERA PADA BAHAGIAN KEPADA DAN ORANG AWAM HANTAR SAYA KE 9 KLINIK KESIHATAN SALAK DAN SAYA TELAH DIBAWA PULA KE HOSPITAL SEREMBAN, DAN PADA HARI ITU JUGA TELAH DI BAWA KE HOSPITAL BESAR KUALA LUMPUR. KEROSAKAN M/SIKAL SAYA BELUM PASTI. SEKIAN LAPORAN SAYA.” [21] The 1st Defendant’s police report dated 4.10.2013 (page 294 of Appeal Record) stated that, “PADA 04/10/2013 JAM LEBIH KURANG 0805 HRS, SAYA MENUNGGAN M/SIKAL NO: BMF 7465 JENIS KAWASAKI NINJA 250 DARI ARAH RUMAH DI KLANG MAHU MENGHALA KE TEMPAT KERJA DI LUKUT. APABILA SAMPAI DI JALAN SALAK/SEPANG BERHAMPIRAN KG. GICHING, MASA ITU SAYA MENUNGGANG SEPERTI BIASA TIBA-TIBA DATANG SEBUAH M/SIKAL NO: NAK 8248 JENIS HONDA EX5 MENGHIMPIT LALUAN SAYA LALU TERUS BERGESEL DENGAN M/SIKAL SAYA. AKIBAT DARI ITU, SAYA TERJATUH KE KANAN JALAN. PADA MASA YANG SAMA M/SIKAL YANG SAYA PANDU TERLANGGAR SEBUAH M/KAR NO: WJN 9316 JENIS PROTON ISWARA YANG DATANG DARI ARAH BERTENTANGAN. SAYA MENGALAMI KECEDERAAN KAKI LUKA, BADAN LUKA DAN DADA SAKIT. M/SIKAL SAYA MENGALAMI KEROSAKAN TANK ROSAK, COVER SET PECAH DAN LAIN-LAIN KEROSAKAN TIDAK TAHU. SEKIAN LAPORAN SAYA.” [22] The Plaintiff had pleaded as in his police report that the 1st Defendant had grazed his motorcycle on the right side and he maintained that he was riding straight. The Defendant admitted that 10 there was an accident but claimed that it was caused by the Plaintiff where he hit on the side of the Defendant’s motorcycle. [23] Based on section 101 of Evidence Act 1950, the plaintiff who asserts bears the burden to prove. The burden of proof principle had been extensively deliberated in the Federal Court case of Letchumanan Chettiar Alagappan @L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697. [24] Reverting to the facts and the evidence before this Court, the Plaintiff’s pleaded case is consistent with his police report that he was riding straight ahead along the straight road and the 1st Defendant grazed his motorcycle. The IO’s testimony stated that he visited the scene of the accident right after the police report was made by the independent witness and drew the sketch plan which had no junction and testified that there was no junction which was not challenged by the Defendants’ counsel (IO’s statement at page 9, cross-examination testimony at page 11, Supplementary Appeal Record). [25] The IO’s statement on the investigation carried out reported the damaged motorcycles of the Plaintiff’s and the Defendants (IO’s statement at page 7 of Supplementary Appeal Record). The Plaintiff’s damaged vehicle is consistent with his pleaded claim of the accident. [26] The evidence given by the IO was unrebutted and corroborates Plaintiff’s evidence. Based on the independent witness, SD1, he testified however that he did not go to the scene of the accident with the IO as captured in the Session Judge’s written judgement (page 82 of Supplementary Appeal Record) based on reasons that he told the police 11 to include that fact in his police report and he is not good in reading and writing (page 83 of Supplementary Appeal Record). [27] Upon careful perusal of the notes of proceedings, SD1’s testimony was given after the Plaintiff’s case was closed. Therefore the relevant question following SD1’s evidence could not be posed to the Plaintiff and to the IO. The IO had testified that he went to the scene of the accident and drew the sketch plan. The IO was also questioned as to whether there was a junction along Jalan Sepang/Salak and he testified that there was no junction (page 11 of Supplementary Appeal Record). [28] Upon cross-examination, the IO testified disagreeing that his sketch plan was incorrect and he had carried out his investigation (page 12 of Supplementary Appeal Record). The IO also testified that SD1 had admitted to him that SD1 had hit the Plaintiff’s motorcycle (page 13 of Supplementary Appeal Record). This Court viewed that the IO is a reliable witness. [29] Accordingly, there is no requirement that the IO’s evidence must be corroborated. In the case of PP v Mohamed Ali [1962] 28 MLJ 257, the Chief Justice Thomson CJ remarked that: “…the refusal to accept the evidence of the police witness was very offensive…He was unlikely to be mistaken and to refuse to accept his evidence on a point like this on the ground that it was not substantiated was neither more nor less than to call him a liar.” [30] In addition, the evidence of the IO’s proves to show that the Plaintiff’s pleaded case is consistent with the silent evidence as articulated by the Session Judge, captured in the written judgement that 12 the Plaintiff’s damaged motorcycle was on the right side and the Defendant’s damaged motorcycle was on the front side (page 80 of Supplementary Appeal Record). This Court finds that the Plaintiff, on the balance of probabilities, discharged its burden to proof and the onus shifts to the Defendants. [31] The independent witness SD1 was testifying as Defendants’ witness. Upon careful perusal of the notes of proceedings at pages 15 - 16 of Supplementary Appeal Record, SD1 testified that he saw the accident where the 1st Defendant had hit Plaintiff’s motorcycle: “Soalan: Berdasarkan model permainan kereta, tunjukkan apa yang awak Nampak? Jawapan: Saksi demonstrates Kereta saya dari Sepang nak ke KLIA (ikut rajah kasar). Plaintif dari tepi, tiba-tiba bergerak ke tengah. Motorsikal Defendan dari belakang dan Defendan langgar sikit motorsikal Plaintif dan masuk laluan saya. Soalan: Macam mana mereka langgar? Jawapan: Defendan langgar belakang motorsikal Plaintif (setelah motorsikal Plaintif tiba-tiba ke tengah). Bukan handle.” [32] Apparently SD1 testified that the accident had occurred a distance from the junction on his left and upon careful reading of SD1’s police report (page 295 of Appeal Record), this Court finds that there was no mention of junction or accident occurred near the junction as testified by SD1. It is also admitted by SD1 that his testimony differs from his police 13 report as to how and where the accident occurred (page 21 of Supplementary Appeal Record). In addition, SD1 testified that the reason he attended the trial was to claim for his car repair which proves to show that SD1 has a personal interest in the case. [33] This Court holds the view that the Defendants’ witness SD1’s testimony could not be relied as it contradicts its own police report and the Plaintiff’s version as to how the accident occurred is highly probable than 1st Defendant’s version. In addition, the IO had issued summons to the 1st Defendant. It can be inferred that the summons issued was based on the admission made by the 1st Defendant to the IO. [34] In relation to quantum, this Court had the benefit to read through the medical specialist reports of the Plaintiff (pages 287 – 289 and pages 313-320 of Appeal Record) and the Defendants’. The Plaintiff’s medical specialist report stated that due to Plaintiff’s head injury, he is unable to work as a lorry driver and requires supervisory care. The medical specialist report by the Defendants, 7.3.2015 stated the condition of Plaintiff’s head injury where a CT scan of Plaintiff’s brain was conducted and showed the evidence of post-injury loss of brain volume related changes that support the Plaintiff’s claim of having insomnia and any associated reduced sense of taste and reduced hearing in the left ear (page 336 of Appeal Record). The Defendants’ medical specialist however was not present in court to rebut the Plaintiff’s medical specialist report. [35] Due to the Plaintiff’s health condition which requires the supervisory care of Plaintiff’s parents, this Court viewed that a monthly RM100 will substantially assist the Plaintiff’s parents. This Court viewed 14 that the monthly RM 100 for supervisory care is reasonable as it is not for nursery care which in the latter is expensive, based on a nursing institution’s rate. This Court is also keen to follow the Supreme Court case of Siti Rahmah Ibrahim v Marappan Nallan Kounder & Anor [1989] 2 CLJ (Rep) as attributed by Plaintiff’s counsel where the Supreme Court allowed for supervisory care of family member. [36] For the severe head injury award, this Court viewed that the Session Judge had evaluated the evidence and had made reference to the Compendium of Personal Injury Awards 2014 (pages 86 - 87 of Supplementary Appeal Record) in awarding RM100,000.00 and was not plainly wrong in making the award: Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1. The rest of the award for Plaintiff’s injury as decided by the Session Judge is hereby retained. [36] In light of the above reasons, the appeal on liability is allowed where the Defendant is found liable at 90% and the Plaintiff at 10%. The appeal on quantum is partially allowed that is for supervisory care of RM100 x 12 x 12 years (72-48 / 2): RM100 x 12 x 12 = RM14,400.00. The appeal for the severe head injury award is dismissed. Dated: 30 March 2018 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 15 COUNSEL FOR THE APPELLANT JAGDISH KAUR Messrs. Kames & Associates No. 80-1, Jalan Mahogani 1 Bandar Botanic 41200 Klang Selangor Darul Ehsan [Ref: KKN/KS/234/2013] Tel: 03-3323 2151 Fax: 03-3323 2153 COUNSEL FOR THE RESPONDENTS VINCENT CHOO Messrs. Ooi Aik Lim & Associates No. 19, Jalan Tamboosamy Off Jalan Putra 50350 Kuala Lumpur [Ref: OAL/PO/03/2014/rsd]