Lim Beng Choon J:

A motor accident occurred at about 6.00a.m. on 18 January 1980 along the Kuala Lumpur/Ipoh trunk road at or near to Kalumpang. As a result of the accident the driver and the two passengers of one of the vehicles involved in the accident, a Toyota Corolla bearing registration No. PQ 9782 ("the Toyota car") sustained severe injuries and they succumbed to the injuries at the District Hospital Tanjong Malim. The driver of the Toyota car was Ahmad bin Jai and the two passengers were Zainol Abidin bin Pandak Audin and Abu Bakar bin Chin. The other vehicle involved in the accident, a Mercedes car bearing registration No. WP 4380, was driven by the defendant and there was a passenger in that car, one Wong Kee Nam.

The present action was brought by the respective administrator and administratrix of the estates of the deceased persons for the recovery of damages for the benefit of the said estates, pursuant to s. 8 of the Civil Law Act 1956 prior to the amendments made to it on 1 October 1984.

As the only living witnesses to the accident were the defendant and Wong Kee Nam who was called to testify for the defence, the plaintiffs could only call the officer-in-charge of the investigations of the accident Inspector Zainol Abidin bin Mohd. Sa'ad (PW5) to testify for the plaintiffs' case.

According to PW5, he was the first person to arrive at the scene about one hour after the accident. He drew a sketch plan, a copy of which was produced by him at the trial since the photostat copy of the same included in the bundle of agreed documents Exhibit `A' is not legible. The sketch plan shows, among other things, that:

(a) the Mercedes car was in a drain running along the sidetable of the right half of the road as one faces towards Ipoh;

(b) the Toyota car was straddling part of the right half of the road and the sidetable adjoining the road and it was facing towards Kuala Lumpur;

(c) there were glass splinters scattered all over the right half of the road and the adjoining sidetable;

(d) there were two brake marks commencing from the right half of the road to the drain where the Mercedes car had landed.

From his investigations, PW5 said that at the material time the Toyota car was travelling from Ipoh to Kuala Lumpur while the Mercedes car was travelling in the opposite direction and proceeding to Ipoh. That stretch of road where the accident took place was quite straight and there were no obstacles or potholes on the road. He drew the sketch plan in accordance with what he saw at the scene upon his arrival there. He said that the glass splinters came from both the vehicles involved in the accident. He could not find any brake marks made by the Toyota car. He knew that the driver of the Mercedes car was charged for a driving offence relating to the accident but he was however given a discharge not amounting to an acquittal.

This witness also produced:

(i) a chemist's report.

(ii) two RIMV reports pertaining to the damages sustained by the Toyota car and the Mercedes car respectively.

Counsel acting for the plaintiffs and the defendant agreed to include the aforesaid documents in Exhibit `A'. The RIMV report of the Toyota car shows that the front part of the car was very badly damaged. The RIMV report of the Mercedes car likewise shows that its front part was also damaged. The extent of the damage of the front part of the Mercedes car as described in the said RIMV report is as follows:

1. Keadaan kereta keseluruhannya hangus oleh kebakaran.

2. Badan hadapan sebelah kanan remuk ke dalam.

3. Madgad hadapan sebelah kiri dan kanan remuk.

The chemist's report said that the damage to the front of the Mercedes car was due to a collision prior to the fire. It was also found that the front of the Toyota car was badly damaged.

Photographs of the damaged vehicles also confirmed that the front parts of both the vehicles were badly damaged.

The defendant in his evidence said that he woke up at 3.00a.m. on the morning of 18 January