GROUNDS OF JUDGMENT

1. This is an appeal by the appellant/defendant against the decision of the learned Sessions Court Judge, Ipoh who had on 28.11.2001 found the appellant/defendant 50% liable to the respondent/plaintiff's claim in tort of negligence and 50% contributory negligence against the respondent/plaintiff and dismissed the appellant/defendant's claim against the third party. According to the respondent/ plaintiff's statement of claim against the appellant/defendant, the respondent/plaintiff had suffered personal injuries and loss arising out of a road accident which occurred on 30.6.1996 at about 3.10 p.m at/along Man Fair Park, Ipoh, involving motor van No. WR 5906 which was allegedly driven negligently by the appellant/defendant and collided into the respondent/plaintiff who was a pedestrian on the same side of the road.

2. However, before the trial commenced, the appellant/defendant had obtained leave to include the driver of motorcar No. ACN 3772 as a Third Party. The defendant's third party notice against the third party is to claim for indemnity and contribution, in the event the defendant is found to be liable to the plaintiff's claim. (See Mat Abu bin Man v. Medical Superintendant General Hospital Taiping, Perak & Ors [1989] 1 CLJ 98 (Rep); [1989] 1 CLJ 137; [1989] 1 MLJ 226 at p. 228). The appellant/defendant had alleged in the statement of claim against the third party that the accident was caused wholly or partly by the negligent driving of the third party (who was travelling from the opposite direction along Jalan Ghazali Jawi towards the direction of Jalan Hospital (as per the sketch plan (exhibit P4)) whereby the third party had collided into the plaintiff which caused the plaintiff to flung towards the direction of the defendant. However, by the statement of defence, the third party has pleaded inter alia that the accident was caused by the negligent driving of the defendant who knocked into the plaintiff who was on the correct side of the road and has pleaded particulars of negligence against the defendant. It is important to mention some of the particulars of negligence pleaded by the third party in his statement of defence against the defendant which is material for the purpose of this appeal and for easy reference, namely:-

'(j) gagal memberi laluan kepada plaintif,

(k) gagal memerhatikan amaran/isyarat yang diberikan oleh plaintif, [emphasis by this court].

(l) gagal menentukan sama ada keadaan terselamat semasa atau sebelum menyeberangi di jalanraya/lebuhraya,

(m) gagal menjaga keselamatan diri sendiri semasa berada di jalanraya,

(n) memandu tanpa mengendahkan kenderaan-kenderaan yang melalui jalanraya/lebuhraya,

(o) memasuki atau mencerobohi jalan yang bagi kenderaan pihak ketiga

(p) tiba-tiba tanpa memberi amaran/isyarat memasuki jalan yang sah pihak ketiga,

(q) melintas/menyeberangi jalanraya/lebuhraya dalam keadaan yang mana beliau tahu/atau mengetahui merbahaya,

(r) melintas/menyeberangi jalanraya/lebuhraya secara melulu dan merbahaya

(s) gagal mematuhi peraturan jalanraya/lalulintas'

3. The appellant/defendant had testified that the Third Party had earlier knocked into the plaintiff who was crossing the road from A to C (as per the sketch plan exhibit P4) and this impact had caused the respondent/plaintiff to flung onto the direction and the path of the appellant/defendant who was travelling from the other side of the road (opposite direction) towards the direction of Jalan Ghazali Jawi (from the top to the bottom)(as per the sketch plan (exhibit P4)).Whereas, the plaintiff has testified that he was walking on the right side of the road towards the direction of the hospital (from the top to the bottom as per the sketch plan (exhibit P4)). The third party did not testify and elected to submit 'No Case To Answer'. However, the learned Sessions Court Judge who did not accept both the versions of the plaintiff and the defendant found the plaintiff was crossing the road when he was knocked by th