JUDGMENT

Wan Adnan J:

These two cases were heard together. They arose out of the same accident involving two motorcycles. The plaintiff in Civil Suit No. 25-416-85 was the rider of the motorcycle no. PAH 7407 and the plaintiff in Civil Suit No. 25-52-88 was the rider of motorcycle no. PAS 1939. In this judgment the plaintiff in Civil Suit No. 25-416-85 (Mohd. Rosle bin Yusof)will be described as the plaintiff and the plaintiff in Civil Suit No. 25-52-88 (Lim Liang Hock) will be described as the defendant. Quantum of damages on 100% liability had been agreed to.

The accident occurred at about 19¼ milestone Sg. Bakap/Wellesley Road on 15 November 1984 at about 6.30 p.m. One motorcycle was proceeding from Sg. Bakap towards Wellesley. The other was proceeding in the opposite direction. There was one van proceeding from Wellesley towards Sg. Bakap. A head-on collision occurred between the two motorcycles as one of them was overtaking the van.

The plaintiff said he was proceeding from Sg. Bakap towards Wellesley. It was the defendant who was coming from the opposite direction overtaking the van and colliding into him. On the other hand the defendant said he was the one proceeding from Sg. Bakap towards Wellesley and that it was the plaintiff who was coming from the opposite direction overtaking the van and colliding into him. Both could not be telling the truth.

The plaintiff said that while proceeding from Sg. Bakap towards Wellesley he saw a van coming from the opposite direction. A motorcycle also from the opposite direction overtook the van and collided into him head-on. He fell and became unconscious. The road was slippery at that time. He had his lights on but the oncoming motorcycle did not have the lights on. The motorcycle encroached into his path. He flashed his headlight to warn the rider of the motorcycle not to overtake the van.

Earlier before reaching the 19¼ milestone he had met his uncle Mustaffa bin Yahya (PW3) coming from the opposite direction riding a motorcycle. They waved at each other. This Mustaffa in his evidence confirmed that on 15 November 1984 at about 6.30 p.m. he was proceeding from Wellesley to Sg. Bakap. He met the plaintiff coming from his opposite direction.

The defendant said that on 15 November 1984 at about 6 p.m. he was proceeding towards Wellesley. He was riding motorcycle PAS 1939. He left his house at Kg. Jawi and went to Sg. Bakap before proceeding to Wellesley. He saw a van coming from the opposite direction about 100 feet away. When he was about 70 feet away he saw a motorcycle coming from behind the van and overtaking it. He flashed his light but the motorcycle continued with the overtaking. There was a collision.

DW1 Chan Kee Bian is a chemist attached to Jabatan Kimia, Petaling Jaya. He said that on 17 November 1984 he was requested by the police to examine the damage to three vehicles. The damage to the van was at its front off-side as in photo 1. He found some bluish paint flakes on the off-side end of the bumper of the van. He collected foreign blue paint found on the motorcycle PAH 7407 (the plaintiff's motorcycle). On motorcycle PAS 1939 (the defendant's motorcycle) he did not find any foreign paint smear. He then compared the paint found on the motorcycle PAH 7407 with the specimen paint of the van. He found them to be similar both in colour texture and layering. He was therefore of the opinion that the van had come into contact with the motorcycle PAH 7407. However he was unable to determine their most probable relative positions at the time of impact. He also said that since there was no foreign paint on PAS 1939 he was unable to ascertain if it had come into contact with the van and the motorcycle PAH 7407. He further said that from the evidence he was of the opinion that the front off-side of the van had come into collision with the left side of the motorcycle PAH 7407 and from the damage on the motorcycle PAH 7407 and the van it was possible that the motorcycle had approached the va