Abdul Malik Ishak J:

[1] Both these two appeals were heard together as agreed between both parties. It is patently clear from the appeal records that these two appeals arose out of the same accident involving the same vehicles and the same parties.

[2] At the outset, Madam Su Ching, the learned Counsel for both the respondents in Civil Appeal No: 12-25-93(T), raised a preliminary objection to the effect that the memorandum of appeal was never served on them but instead they were incorporated in the record of appeal and formed part and parcel of the record of appeal contrary to O 55, r 2 of the Rules of the High , 1980 ("RHC"). Encik Saiful Bahari bin Haji Omar, the learned Counsel for the appellants in Civil Appeal No: 12-25-93(T), resisted and argued that an irregularity of this nature was curable under O 2, r 1 of the RHC. Madam Su Ching informed the Court that she took the liberty of informing the appellants of her intention to raise the preliminary objection by way of an oral notice and this was effected forty-eight hours (48) before this appeal came up for hearing. She argued that ample notice had been provided and yet there was no application filed by the appellants for enlargement of time. Even though Encik Saiful Bahari bin Hj. Omar admitted that the oral notice adverted to by Madam Su Ching was relayed to them, yet he fashioned his arguments on the inherent jurisdiction of this Court to enlarge time, notwithstanding that there was no formal application, and he urged this Court to allow the appeal to proceed on its merits. I need to refer to two authorities that would sufficiently dispose of the preliminary objection. First, it is the case of Shobri bin Hasan v. RS Ramalingam a/l Subramaniam [1993] 1 MLJ 263, [1993] 3 CLJ 70 where the Court there held that (see the headnote from [1993] 2 MLRH 456; [1993] 1 MLJ 263, [1993] 3 CLJ 70):

(1) The memorandum of appeal does not form part of the appeal record. The memorandum of appeal must be filed separately within 14 days after the service on the appellant's solicitor, of the notes of evidence and the grounds of judgment by the Subordinate Courts and served on the respondent.

(2) As the memorandum of appeal was not filed within the prescribed time, and no sufficient ground is shown for the delay (Order 55 r 4(3) of the Rules of the High , 1980) and as there is no application for enlargement of time to file the memorandum of appeal, the preliminary objection stands.

[3] Secondly, it is the case of Siang Galau v. Ang Wak Hiong, [1994] 1 MLJ 42 where Chong Siew Fai J (now Chief Judge, Sabah and Sarawak) applied the same principles as enunciated in Shobri's case (supra) and consequently, his Lordship there then proceeded to dismiss the appeal with costs. Applying these two authorities to the present appeal, I am impelled to hold that there was substance in the preliminary objection as advanced by Madam Su Ching and, accordingly, I dismissed the appeal in regard to the Civil Appeal No: 12- 25-93(T) forthwith with costs without the need to go into the merits of the appeal.

[4] Now, in regard to Civil Appeal No: 12-24-93(T), the learned Sessions Court Judge proceeded to hold that both the deceased rider of motorcycle KS 5917 (Osman bin Samsuri) and the respondents as the driver of motorlorry ABG 8794 were equally liable. But notwithstanding that both the parties were held equally liable, the learned Sessions Court Judge ordered that the respondents were held liable to pay, as far as the quantum was concerned, 100% to the appellants and this must be the sore point that the respondents kept in their hearts. I shall revert to this part later.

[5] Hereinafter, all references to the parties would relate and be confined to Civil Appeal No: 12-24-93(T).

[6] This was a dependency claim under s 7 of the Civil Law Act, 1956 by the first appellant and his wife, Bedah bte Abdullah, for the death of their son by the name of Osman bin Samsuri (hereinafter referred to as the "deceased') in a ro