Richard Talalla J

In this running down action the following facts are admitted, namely, that the first plaintiff was the rider of a motor cycle, the second plaintiff the pillion rider thereof, one Er Chong Beng was the owner and driver of a motor car, Er Chong Beng is now deceased, the defendant was the insurer of the motor car and that on 18 October 1984 at about 6.40pm the first plaintiff was riding the motor cycle with the second plaintiff as pillion rider along Batu 16, Jalan Sengkang, Bukit Gambir, Muar when a collision occurred between the motor cycle and the motor car.

It was not in dispute that the collision occurred at a point along a straight stretch of road when the motor cycle was being ridden in the direction of Sengkang and the motor car was travelling in the opposite direction. A police sketch plan and key showed the road to be 20ft wide. It also depicted a motor cycle lying on side table to the left of the right of way to Sengkang and this too was not in dispute.

The first plaintiff testified that at the time of the accident he was riding about 2ft from the left edge of the road and that the motor car encroached into his path and collided into him. His evidence was a corroboration of the facts alleged in a police report he made on 28 November 1984. There were no witnesses for the defence but counsel for the defendant sought to argue by reference to the first plaintiff's own evidence that the first plaintiff was not 2ft from the left edge of the road as he claimed but that he was close to the centre white line which explained why when he saw the motor car 30ft away and tried to swerve to the left the collision took place, not on the left side table as it should have if the first plaintiff was riding 2ft from the edge of the road as he testified, but on the left side of the road itself thus pointing to the fact that the first plaintiff was close to the centre white line when the collision took place. I disagree. I could find no evidence to contradict the first plaintiff's story that he was travelling about 2ft from the left edge of the road. There was no reason for me to disbelieve him. He gave his evidence in a simple straightforward manner and was steadfast in cross-examination. The police sketch plan showing the fallen motor cycle on the table corroborates his story.

The driver of the motor car also made a police report. He lodged it on the day of the accident itself but the first plaintiff did so only on 28 November 1984 as abovestated, apparently because he was laid up in hospital for that duration.

Both police reports were admitted in evidence, formal proof of them was dispensed with, but the makers of the reports were required to be made available for cross-examination thereon. The first plaintiff spoke in evidence to his having made his report and of course he was open to cross-examination and he was in fact, so cross-examined.

Defence counsel however sought to argue that I should disregard the driver's police report because he, the maker, being dead, the report was not proved in evidence.

Counsel for the plaintiff submitted that the report was admissible under s 32(c) of the Evidence Act 1950 ('the Act'). Counsel for the defendant on the other hand relied for support on s 73A(3) of the Act. The two subsections read as follows:

32 Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

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(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;

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73A(3) Nothing in this section shall render admissible as evidence any statement made by a person inter