Hashim Yeop A Sani J

This was an appeal against a finding of 100% liability made by the learned Magistrate in an accident case where apparently both the rider of a motor cycle and the pillion rider were killed. The plaintiff before the Magistrate was the administrator of the estate of the deceased pillion rider. The appellant was the driver of the motor car involved in the accident.

At the trial before the Magistrate the plaintiff brought two witnesses neither of whom saw the collision. PW2 was riding another motor cycle behind the deceased along Jalan Banting when he saw his friend (the deceased) "fall at Simpang Morib". PW2 stopped his motor cycle and found that his friend had died. He then lodged a Police Report No. 979/75 Telok Datok. In the report PW2 stated that he was then travelling behind the deceased at a distance of about one mile.

The appellant was the sole witness for the defence. According to his evidence he was on the correct side of the road when he saw two persons fall from a motor cycle and they were thrown towards his car. According to him the motor cycle knocked his car and he lodged a Police Report No. 982/75. In his report he stated that as he arriv