Wan Suleiman FJ:

[1] On 12 August 1969 two motor cycles No KA 3048 and KA 8645 collided at the 40th mile Serian- Simanggang Road, Kuching. The plaintiff, respondent before us, was riding pillion on the first motor cycle, and the defendant, appellant before us, was the rider of the second motor cycle.

[2] The plaintiff sued the defendant for damages for personal injuries suffered by him. He did not sue the driver of the motor cycle on which he rode pillion.

[3] The defendant however brought in that rider as a third party, claiming an indemnity and contribution in respect of the claim by the plaintiff. The defendant said that the third party was himself to blame for the accident. The third party did not appear and the defendant on 4 October 1971 obtained an order against him for indemnity and contribution in respect of the whole of the claim by the plaintiff against the defendant.

[5] The learned Judge found that the stretch of road where the accident occurred was tarred only in the middle, that the tarred part was eig