JUDGMENT

RK Nathan J:

Facts

On 29 April 1996 at or about 10.45am the 1st respondent/plaintiff was riding motorcycle PCQ 5344 with the 2nd respondent/plaintiff as pillion along the North/South Highway and proceeding from the direction of Alor Star towards Pulau Pinang when a collision occurred between the said motorcycle and motorcar KAF 110 driven by the 1st defendant as the servant or agent of the 2nd defendant. The highway towards Penang, based on the key and sketch has two lanes being 7.30 meters in total width. On the left is another lane measuring 2.70 meters which is stated to be the emergency lane, although the agreed key and sketch plan tendered in court does not state that this is an emergency lane.

Plaintiffs' Case

The pleaded case of the plaintiffs is that as the 1st plaintiff reached km 115.4 the 1st defendant suddenly and without warning cut into the plaintiffs' path from a stationary position on the left of the emergency lane, intending to enter into the mainstream of traffic.

Case For The Defence

As for the pleaded case of the defendants I am unable to ascertain what it is as the defendants/appellants have failed to include in the record of appeal certain pages of their defence. This is a terrible state of affairs. The defendants attack the plaintiffs' case on its pleadings. Yet the record of appeal prepared by the defendants shows pages missing from their own defence for this court's consideration. From the particulars of negligence pleaded against the 1st plaintiff the defendants aver that the 1st plaintiff collided into their stationary motorcar.

Findings Of The court

The investigating officer testified that the rear right boot and mudguard of the motorcar were dented, and its rear signal light was broken. On the other hand the damages to the motorcycle were all at the front namely the speedometer cover was broken, the handle bent, the front mudguard had scratch marks, the left and right signal lights, the left clutch and the brake, were broken. Under cross-examination the investigating officer said that the lane in which the accident occurred that is the 2.70 meters width lane, is an emergency lane.

However in re-examination he said that usually that particular so-called emergency lane, is used by motor cyclists.

The 1st plaintiff testified that as he was riding along that lane toward Pulau Pinang he noticed the defendants' car ahead of him about 50 feet away and moving slowly. Suddenly the said motorcar moved into his path in an attempt to get into the main stream of traffic, without giving any signal. He couldn't swerve anymore to the right as both the lanes on the right were full of vehicles heading towards Penang as it was the second day of Hari Raya. Under cross-examination he admitted his speed was between 60-70 km/j. He agreed to a suggestion by counsel for the defendants that if he had been travelling slower he could have been able to swerve to the right. However he said that when he was about 25 feet from the car it suddenly swerved out to the right. He denied the defence suggestion that he had collided into the defendants' stationary car. The 2nd plaintiff, the wife of the 1st plaintiff, testified that she did not see the accident. With these three witnesses the plaintiffs closed their case. The 1st defendant did not testify. No reasons were given to the court as to why the 1st defendant was unable to testify.

From the totality of the evidence before her and devoid of any explanation either from the 1st defendant or from any mechanic confirming that the defendants' motorcar had indeed broken down and therefore was on the so-called emergency lane, the learned Sessions court judge came to the inevitable and correct conclusion that there was no evidence that the defendants' car had indeed broken down. Further, having seen and heard the evidence of the 1st plaintiff she made a finding that he was an honest witness. An appellate court ought not to upset such a finding when all evidence too points to the irresistibl