Sathia Moorthy Ramudu & Anor

[2018] MLRHU 1080 v. Daud Ma'ali pg 1

SATHIA MOORTHY RAMUDU & ANOR

v.
DAUD MA'ALI

High Court Malaya, Shah Alam

Zalita Zaidan JC
[Civil Appeal No: BA-11B-14-02-2016]
11 July 2018

Case(s) referred to:

Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1; [2005] 2 MLJ
1; [2004] 4 CLJ 309; [2004] 6 AMR 781 (refd)
Inas Faiqah Mohd Helmi v. Kerajaan Malaysia & Ors [2016] 1 MLRA 647; [2016]
2 MLJ 1; [2016] 2 CLJ 885; [2016] 2 AMR 217 (refd)
Letchumanan Chettiar Alagappan @ L Allagappan & Anor v. Secure Plantation
Sdn Bhd [2017] 3 MLRA 501; [2017] 4 MLJ 697; [2017] 5 CLJ 418 (refd)

Legislation referred to:

Evidence Act 1950, s 101
Road Traffic Rules 1969, r 6(2)

Counsel:
For the appellants: S Sivakumaresan; M/s Naicker & Associates
For the respondent: R Norhajjah Raja Ahmad; M/s Intan Ridzuan Raja
Norhajjah & Co

[Allowed the appeal.]

JUDGMENT

Zalita Zaidan JC:

Introduction

[1] This is an appeal by the Appellants (1st and 2nd Defendants) 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
 Sathia Moorthy Ramudu & Anor
pg 2 v. Daud Ma'ali [2018] MLRHU 1080

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:

(a) This action arose from a motor vehicle accident involving the
Plaintiff, age 74 years old at the time of the accident was 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.

(b) The Plaintiff claimed that on 20 November 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 (p 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.

(c) 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.

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

(e) The Defendants dissatisfied with the decision filed an appeal

against the decision of the Magistrate for liability and quantum 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, the motorcycle 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 (p 125 of
Record of Appeal).

[6] The Defendants' counsel submitted that 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 (p 126 of
Appeal Record), whereas the Defendants on the other hand claimed that the
 Sathia Moorthy Ramudu & Anor
[2018] MLRHU 1080 v. Daud Ma'ali pg 3

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 focused on
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 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 r 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
RM12,000.00 as 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.

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
 Sathia Moorthy Ramudu & Anor
pg 4 v. Daud Ma'ali [2018] MLRHU 1080

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 (p 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 (p 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.

[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
pp 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 (p 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.

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 judge who 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 & Anor v.
Lee Ing Chin & Ors [2004] 2 MLRA 1; [2005] 2 MLJ 1; [2004] 4 CLJ 309;
[2004] 6 AMR 781 where the test is the 'plainly wrong test' by the trial judge to
 Sathia Moorthy Ramudu & Anor
[2018] MLRHU 1080 v. Daud Ma'ali pg 5

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
Allagappan & Anor v. Secure Plantation Sdn Bhd [2017] 3 MLRA 501; [2017] 4
MLJ 697; [2017] 5 CLJ 418. Based on Letchumanan Chettiar (supra) case, s 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.

[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 (p 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 p 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...."

[25] Based on both police reports and the silent evidence of the damage to both
vehicles (pp 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.
 Sathia Moorthy Ramudu & Anor
pg 6 v. Daud Ma'ali [2018] MLRHU 1080

[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 (p 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 (pp 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 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 s 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 v. Kerajaan Malaysia & Ors [2016] 1 MLRA 647; [2016] 2 MLJ 1;
[2016] 2 CLJ 885; [2016] 2 AMR 217. 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 (pp 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.

[31] This Court rely on the plainly wrong test principle enunciated by the
Federal Court in the case of Gan Yook Chin & Anor v. Lee Ing Chin & Ors
[2004] 2 MLRA 1; [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 6 AMR 781
where 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-
 Sathia Moorthy Ramudu & Anor
[2018] MLRHU 1080 v. Daud Ma'ali pg 7

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.