Arifin Zakaria JCA:

This is an appeal by the appellant/second plaintiff (appellant) against the decision of the learned Judicial Commissioner (JC). We heard the appeal on 4 October 2004 and we allowed the appeal with costs. We now give our reasons.

The claim arose from a road traffic accident involving motorcycle CAH 387 ridden by the first plaintiff with a motorcar WAT 6824 driven by the respondent/defendant (respondent) on 29 August 1997 on Kg. Telok Sertang Temerloh road. The appellant was the pillion rider on the said motorcycle. The third plaintiff is the owner of the motorcycle.

The learned Sessions Court Judge (SCJ) dismissed both the claim by the plaintiffs and the counter claim by the defendant. His assessment of general and special damages for the plaintiffs are as follows:

i) for the first plaintiff, the sum of RM30,000 as general damages and RM1,200 as agreed special damages; and

ii) for the appellant, the sum of RM35,000 as general damages and RM800 as agreed special damages.

The sum of RM250 was agreed as the special damages in respect of the third plaintiff.

All three plaintiffs appealed to the High Court against the decision of the learned SCJ. The learned JC allowed the appeal by the plaintiffs and apportioned liability on 50:50 basis between the parties. As regards quantum, the learned JC agreed with the assessment made by the learned SCJ.

The appellant now appeals to this court against the decision of the High Court as regards the apportionment of liability. The issue before us is whether the appellant as the pillion rider is entitled to damages on 100% basis despite the fact that the court had found that the rider of the motorcycle with which he was travelling was 50% liable for the accident. The learned counsel for the appellant submitted that he is so entitled. In support, he cited a number of authorities which we shall refer to later in this judgment.

The learned counsel for the respondent submitted that the learned JC failed to address the issue of the counter claim by the defendant. And in the circumstances of this case, it is submitted that the learned JC ought to have allowed the counter claim against the first plaintiff. Had that been done, he contended the amount of the award to the second plaintiff would have been reduced accordingly. He relied on the case of Murugasan Kuppusamy & Anor v. Chiew Eng Chai [2000] 1 CLJ 42.

For convenience, we shall first deal with the issue of the counter claim by the defendant. On this, we agree with the learned counsel for the appellant that before the learned JC, the counter claim was a non-issue because there was no cross appeal by the respondent and for that reason, the learned JC was right in not considering the counter claim of the respondent. That we think disposes of the issue for how could the learned JC consider the counter claim which was dismissed by the SCJ when there was no appeal by the respondent against the said dismissal?

Reverting to the primary issue in this appeal, which is whether the appellant, as the pillion rider, is entitled to damages on 100% basis even though the court found that the rider of the motorcycle was 50% liable for the accident, we only need to refer to some of the authorities cited to us by the parties. Firstly, we would refer to the case of Damai Cheras Sdn Bhd & Anor v. Poothapillai Krishnamoorthy [1999] 5 CLJ 576. In that case, the respondent (the plaintiff) was the registered owner of and a passenger in a car which was involved in a collision with the first defendant' s car, driven by the second defendant. The plaintiff was travelling with his son (SP2) who was authorized by the plaintiff to drive the car. The plaintiff brought an action against the defendants. The SCJ held that the defendants were 10% liable for the accident and since the plaintiff was an innocent passenger at all material times, the plaintiff was entitled to damages on a 100% basis. The defendants appealed. It was submitted that the plaintiff wa