Haji Abdul Malik Bin Haji Ishak JC:

At about 10.30 p.m. on the 3 May 1989 there was an 1 accident at the 41 / milestone, Jalan Ipoh Lenggong, 2 Kati, Kuala Kangsar road involving motorcar JAL 1154 and military truck ZA 4859. As a result of the accident, the driver of the motorcar sustained injuries and died of a fractured skull. Two other passengers in the motorcar survived, both sustained injuries. The driver of the motorcar was Saharudin bin Omar and the two passengers were his wife and son known as Noor Famiza bte Zabri and Bazrul Ozair bin Saharudin respectively. The military truck was driven by the first defendant as servant or agent of the second defendant. There was a passenger in the military truck who sat in front by the name of Saad bin Yahya.

According to the first plaintiff, she was accompanying her late husband together with her four (4) year old son in the motorcar, on that fateful night, to Kuala Kangsar from her house at Kubang Halban to witness the "pelita panjut". They started at 8.30 p.m. and on their way they stopped at the first plaintiff's mother's house at Lubok Merbau. At about 10.00 p.m. they decided to return home and it was on their way home that the accident occurred. The first plaintiff stated that while they were on their way home, they changed their mind and decided to go to the first plaintiff's grandfather's house at Kampong Kati. But upon arrival at the vicinity of the first plaintiff's grandfather's house, they discovered that the house was dark and so they decided to proceed home. The motorcar, at the material time, was facing the direction of Lenggong and travelling slowly on its correct side of the road, more to the left edge at a point marked in red ball pen as "X" by the first plaintiff. She then saw a vehicle coming from the opposite direction, encroached and collided into the motorcar driven by her late husband. She categorically stated that at the time of collision, the motorcar did not cross the broken centre white line.

Sergeant 55442 Ishak bin Ibrahim (SP2), the investigating officer, testified for the plaintiffs. He stated that he arrived at the scene at 10.45 p.m. on the night in question. Having ascertained that the driver of the motorcar had been sent to the hospital and that there were no traffic jams at the scene, he then proceeded to draw a rough sketch plan (agreed bundle marked "C" at pages 1 & 2). He elaborated on the rough sketch plan and stated that glass fragments were found at point "L". There were scratch marks on the road at point "W" and the military truck ploughed through banana, durian and rambutan trees and stopped dead in its track to the right side of the road as one faces Kuala Kangsar leaving tyre marks therein. The military truck also demolished a telecommunication's iron post leaving a short stump as a grim reminder of an ugly episode. SP2 also testified that the front right door of the motorcar was dented, torned off and landed at "M". That stretch of road where the accident took place was straight and there were no obstacles or potholes on the road. The road was well-tarred. This witness (an I.O. of three months' standing) rounded up his evidence by stating that he thought that the accident took place at points "L" and "W" in the sketch plan.

The first defendant, in his evidence, stated that he was driving the military truck ladened with items from the store proceeding from kampong Kenayang Grik to Lasah Camp at Seremban. Seated next to him was Saad bin Yahya (SD2). The 9 ton military truck was travelling at 50 kilometres per hour in a convoy. He stated that before the accident he first saw a motorcar with its low lights at a distance of 200 metres and reacted by reducing his speed. He corrected the movement of his military truck and proceeded ahead not realising that an accident would occur. He stated that the military truck came into contact with the motorcar in a glancing blow (tergesel). There was a loud noise. He panicked and failed to p