JUDGMENT

K.C. Vohrah J:

The plaintiff's story was that the car which the defendant was driving came very fast from the direction of Air Hitam, Penang. It overtook a motorcycle, passing some parked vehicles, and went over to the other side of the road where the plaintiff on his motorcycle was proceeding at about 20 to 30 kph in the opposite direction. The plaintiff was on the same side of the road where the building of the Pihak Berkuasa Air (PBA) was. The plaintiff said he tried to go to his left but the car then knocked into the his motorcycle and he was thrown off and landed in front of the gate of the PBA building.

The defendant denied that he overtook a motorcycle. He maintained that he was on his correct side of the road when the motorcycle of the plaintiff, travelling very fast downhill, came over to his side of the road and knocked into his car.

No sketch plan of the accident scene was produced. No police officer gave evidence relating to the accident scene or the nature of the damage to the vehicles. However, two persons who claimed they saw the accident testified in the case.

What was common ground in all the evidence of the plaintiff and the defendant and these two witnesses was that the side of the road along which the defendant was travelling from Air Hitam i.e., the side where there were 4 storey flats at the accident scene, had cars and buses parked alongside its pavement. The average width of the road was probably about 20 feet though it was narrower just near where the PBA building was.

I have no reason to disbelieve the two eyewitnesses Murali (PW3), a junior enforcement officer in City Hall, and Mohd Salleh (PW4), a soldier, when they claimed they were strangers to the plaintiff before the accident. I found them to be independent witnesses and I found them reliable. Their evidence of the accident was substantially similar to that of the plaintiff -that the car of the defendant, travelling very fast along the road which had buses and cars parked on its left side of the road, overtook a motorcycle going in the same direction, crossed over to the other side of the road and knocked into the motorcycle of the plaintiff.

I find the plaintiff's story more probable than that of the defendant's. But what has to be borne in mind is that near and or at the point of accident, the area in the vicinity of the PBA building, the road was narrower and yet the plaintiff who had just passed a left turn bend was riding 3 to 4 feet from his left side of the road. On his own admission he knew that on the opposite side of the road near the 4 storey flats cars and buses were parked alongside the pavement; he should have anticipated oncoming vehicles going over to his side of the road either to pass these vehicles or to overtake a moving vehicle passing these parked vehicles: he should have ridden his motorcycle nearer to the left side of the road. In my view he was partly responsible for the accident, to the extent of 25%.

General Damages

The plaintiff suffered injuries as a result of the accident, mostly to the right extremities. He had fractures and his right leg was amputated 15 cm below the knee joint. He suffers from incontinence and impotence which can be corrected by surgery. He uses a pair of crutches. Below is a table of the nature of each of the injuries or disabilities and the proposed award amounts both Counsel think the Court should make -

Award in RM Plaintiff'sDefendant's Estimate Estimate

1. Cerebral concussion 2,000 1,500

2. Multiple laceration 1,500 750

3. Scars on right thigh and scar above amputation point and scars on right forearm 10,000 2,000

4. Below knee amputation (not able to straighten knee and constitutes considerable disability even with artificial limb) 60,000 35,000

5. Fracture of shaft of right femur (not united; bones internally fixed with nail; will require surgical procedure) 10,000 7,000

6. Fracture of right radius and ulna (plate and screws present) 15,000 8,000

7. Diastasis (i.e. separation of bones without fra