Mokhtar Sidin JCA:

[1] This appeal originated from the Sessions Court where there were two suits, namely Summons No. 52-03-1996 and No. 52-04-1996. In both cases initially there were several plaintiffs. At the High Court learned counsel for the plaintiffs discontinued the action by Chung Chao Lung Timber (Contracting) Company Sdn Bhd (3rd plaintiff) and Rapid Growth Sdn Bhd (4th plaintiff) leaving the present appellant Chung Kuo Ping @ Richard and Sri Gemawan Sdn Bhd. When the matter came up in the High Court it was disclosed that Sri Gemawan Sdn Bhd had been wound up in January 1996 and as such the company has no locus standi to pursue the matter without a written consent from the liquidator, and thus leaving the 1st plaintiff alone as the appellant. The appeals before us are in respect of the two original suits in the Sessions Court now with only the 1st plaintiff as the appellant. We will refer to the parties as they were in the Sessions Court.

[2] The statement of claim in respect of Summons No. 52-03-1996 is as follows:

1. The Plaintiffs are the legal owner of a unit of Kenworth Logging Truck paccar complete with peerless trailer bearing Engine No. 10521826, Chassis No. 1518398 and trailer chassis No. 0581 bearing registration No. SK 1921 and SK 1922 respectively (the said logging truck).

2. The Defendant is an insurance company with an office in Kota Kinabalu, Sandakan, Sabah and sells insurance policies.

3. Since 1988, the Plaintiffs had been purchasing a special perils policy from the Defendant in respect to a fleet of heavy equipments engaged in logging and sawmilling based in Tawau and Telupid. The above mentioned logging truck is included in this policy which was renewed on a yearly basis including renewal from the 17th December 1992 until 16th December 1993 insurance policy No. N993TA000005. Under the said policy the said logging truck and trailer were insured for a sum of RM250,000.00.

4. (a) On or about the 17th November 1993, the said logging truck was driven by an employee of the Plaintiff, one Ricando Saavedra Enviguez (the driver) while working in a timber camp Ng. Gaat, Kapit, Sarawak. The timber camp is known as Umas Camp B.

(b) At the material time the said logging truck was loaded with logs and fully fastened by steel cables, a standard industry practice.

The driver was driving slowly going downhill when he discovered the brakes were not working well. The driver wish to stop and took evasive action by driving to the side of the road or the side of a hill which will normally not only stop the truck but reduces damage compared with a run away truck.

Once the truck have been steered onto the side of the road the driver decided to jump to save his life. The loaded logging truck and trailer, driverless, already off the logging road, going downhill was caught in and stopped by the soft mud at the side of the road. The heavy truck and trailer very quickly sank in the soft mud and the very rapid rate of deceleration caused the restraining steel cables holding the logs to snap. The no longer restrained logs rushed forward by the momentum crushed the safety barrier tank, the truck's cabin, engine bay, steering and radiator. The said logging truck and trailer were badly damaged. The extent of the damage have been photographed and physically examined by the Plaintiff's camp personnel and the Defendant's insurance company appointed adjuster.

(c) The said logging truck had just been fully reconditioned in Sandakan prior to being shipped to Sarawak to work. The quality and extend of the reconditioning can be attested to by personal testimonies and photos taken at the time. In a timber camp it is a standing practice that all logging trucks are checked daily and in fact checked and adjusted several times a day. The said logging truck was checked and passed for work on the 14th December. Every one in a timber camp knows and know well that any system on a logging truck particularly the braking system that is not fully operati