Ong J:

This is a suit by the administrator of the estate of one Khoo Teng Oon, deceased, who died in a road accident while driving his motor-car along Treacher Road, Kuala Lumpur, on the night of 24 June 1956. The defendant is the Insurance Company with whom the car was insured, and the claim was firstly for the value of the motor-car which was a total wreck, and secondly, upon an endorsement to the Policy pertaining to what is called "Increased Private Car Benefits," whereby the Insurers undertook to pay compensation to the Insured or his personal representative for bodily injury sustained by the Insured whilst using his said motor-car. The agreed value of the motor-car was $4,550 and the amount of compensation payable upon the death of the Insured was $10,000. There is no dispute as to the quantum, in the event of judgment being given for the plaintiff.

(a) The Company shall not be liable to make any payment in respect of loss or damage arising whilst such motor-car is being driven by the insured...whilst under the influence of intoxicating liquor or drugs;

(b) No compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to......... an accident happening whilst the insured is under the influence of intoxicating liquor or drugs.

The only issue in this case therefore is: whether the deceased was under the influence of intoxicating liquor at the time he received the injuries resulting in his death. Whether or not the deceased was driving negligently is irrelevant, except that the nature and circumstances of the accident should be looked at in so far as they tend towards proving or disproving that the man was under the influence of intoxicating liquor at the time.

The facts admitted are; the accident was caused by the motor-car, driven by deceased, leaving Treacher Road, at the place 23 feet wide, and colliding with a tree situate nine feet from the off-side of the road along which the vehicle was travelling, and it came to rest 17 feet from the off-side of Treacher Road. Along that road the restricted speed limit was 30 miles per hour. The deceased died at 11.40 p.m. on the night of the accident and a post-mortem was duly performed on his body.

As the onus of proof rested on the defendant, Counsel for the Company called the Police Investigating Officer, Corporal 745, who produced the sketch plan he had made and gave evidence that the road was dry and that no brake marks were visible thereon. He identified the deceased's body to the Doctor conducting the post-mortem, and from the latter received three samples comprising blood, urine and stomach contents; which he duly delivered to the Government Chemist. Dr. Balasingam, Medical Officer at the General Hospital, Kuala Lumpur, gave evidence of the post-mortem performed by him and of his personally taking from the deceased's body the said samples of blood, urine and stomach contents, which he sealed in containers in the presence of Corporal 745 for delivery to the Department of Chemistry. He asserted that there was no possibility of the samples being contaminated, and that he did not use any spirits in sterilising his instruments. On these points his evidence was not seriously challenged, and I find as a fact that the said samples, which were analysed by Mr. Calderbank , the Government Chemist, came from the body of the deceased. The certificate of analysis (Exh. D 3) reads as follows:

I, KINGSLEY EDWARD CALDERBANK, Chemist, Federation of Malaya do hereby certify that at 8.50 a.m. on 26 June, 1956 there were handed to me by Cpl 745, three specimens marked "A-C" and sealed "FIRST CIVIL HOSPITAL, KUALA LUMPUR". I examined the specimen of blood and found it to co