(Datuk Mohd. Saari bin Yusoff H)

In this proceeding, first plaintiff, second plaintiff, third plaintiff, fourth plaintiff, tenth plaintiff and eleventh plaintiff sued first defendant, second defendant and third defendant for negligence arising in a road accident. In the case of other plaintiffs, they sued second defendant and third defendant but not the first defendant. In turn, second defendant and third defendant instituted third party proceeding against the driver of car CG 7110.

2. Background

The scene of accident was at km. 48 3/4 Jalan Kuala Terengganu, Dungun, involving 4 vehicles. At all material times, Assahari bin Daud (deceased) was driving Toyota Car no. CG 7110 from direction of Dungun to Kuala Terengganu. On arrival at km. 48 3/4 Jalan Kuala Terengganu, the said car collided against motor bus no. TK 7238 driven by the 2nd defendant going in opposite direction.

3. On impact, the Toyota car landed in the middle of the road. In the case of the motor bus, it went out of control and collided against motor van and motor Trooper coming from opposite direction.

[Page 3]

4. The uncontroverted facts in instant case are as follows :

i) accident occurred during the day on 19th June 1993 about 3.45 p.m.

ii) locus was a straight country road with hardly any traffic.

iii) locus within speed limit area of 90 km per hour.

iv) there was no traffic sign to warn of any form of danger.

v) road wet after a drizzle with a puddle of water on car side of the road.

5. Issues for determination:

(i) which of the two vehicles, the car and the bus, encroached into the wrong side of the road.

(ii) whether the bus was speeding and/or failed to take the evasive action to avoid the collision.

6. On first issue

At all material times, SP1 was a passenger in the car sitting next to driver. She told the court that an oncoming bus encroached into the path of the car as the bus was overtaking another car.

[Page 4]

7. However, this was not the story given by the bus driver (SD1). His version was that the car encroached into path of the bus when the car was about 12 feet in front of the bus.

8. I.O. (SP4) arrived at the scene soon after the accident. He drew sketch plan and caused photoragphs to be taken. Looking at the sketch plan, it is significant to note that oil spill and broken glass were found on bus side of the road at point marked "F", Further, scratch mark was found on bus side of the road at point marked "Kl". From the aforesaid evidences, irresistable inference is that point of impact between the two vehicles must have been at point "F", which was on bus side of the road.

9. The point marked "F" was about 2 feet from centre white line. Bearing in rnind that the engine was mounted in the middle of front bonnet of the car, it would be reasonable to conclude that the car encroached the wrong side of the road by about 4 feet. The width of the car was about 4 feet.

10. Having tested the testimony of SP1 and SP2 against the silent evidences and testimoney of SD1, I accept SD1's (bus driver) evidences as being more probable.

[Page 5]

11. On damage of the two vehicles, the car was a total wreck with damage more severe on offside of the car. This could be due to car driver attempting to swerve back the car to proper side of the road. The damage to the bus was at front offside and at front nearside.

12. En. Omar, counsel for first defendant and third party submitted that the collision was along centre white line. I respectfully disagree due to absence of debris on car side of the road. All the debris was found on bus side of the road.

13. In view of the foregoing, I find as a fact that the car driver swerved to wrong side of the road, which action was the effective cause of the accident. Factor which induced car driver to swerve could be due to puddle of water on car side of the road.

14. On second issue

In his testimony, the bus driver (SD1) said that at first he was driving at 70 km per hour. Later he was proceeding on proper side