(delivering the Judgment of the Court): We allowed this appeal with costs here and the Court below and set aside the Order made by the learned trial Judge in favour of the plaintiffs/respondents. We also ordered the deposit to be refunded to the appellant. We indicated giving our reasons for allowing the appeal.

The respondents are the administrators of the estate of the deceased who died of injuries received in a motor accident on April 25, 1978, involving a motor car AU 6365 which he was driving and which collided into a motor lorry NE 5636 driven by the appellant. The respondents' claim for damages was on behalf of the estate and for the benefit of the dependants of the deceased.

The learned trial Judge held both the appellant and the deceased equally to be blamed for the accident. The appellant being dissatisfied with the decision has now appealed. The only issue involved relates to the question of liability. The quantum of damages will be decided later.

It was alleged that the collision between the two vehicles occurred on the hump-bridge, somewhere in the middle of the road, and that the motor lorry was trying to overtake a bicycle proceeding towards the hump of the bridge and travelling at about 30 m.p.h. It was conceded by the learned counsel for the respondents that just prior to the accident the motor lorry was not overtaking the bicycle, but the appellant was paying more attention to the bicycle in front of him than the road.

The sole question was whether the lorry was travelling on its proper side of the road when the accident happened. It was submitted that the learned Judge came to a wrong finding on the facts when he concluded that the lorry was in the process of overtaking the bicycle and in doing so went to its right slightly over the centre of the road as it was travelling faster than the bicycle. It was at this stage that a collision occurred between the lorry and the oncoming car which skidded when it moved to the centre of the road. It was not clear why the car skidded, but he accepted the evidence of the only witness for the plaintiffs (P.W.1) who was a passenger in the said car at the material time, that the deceased applied the brakes when he saw the defendant's lorry coming towards him and as a result the car skidded. In accepting the evidence of P.W.1, the learned Judge failed to consider that P.W.1 made a police report about ten days after the accident. According to P.W.1, he was not warded at the General Hospital, Taiping, but returned to his house at Butterworth where he resumed work. He lodged the report on the request of the manager of the workshop where he was working after discussing the accident with him. He was an interested party and had sufficient time to think over the matter.

The learned Judge rejected the evidence of four witnesses including the appellant who appeared for the defence. In doing so, it was submitted that he has failed to test their evidence with the mute evidence, viz. the sketch plan, the photographs and the police reports. He rejected the evidence of the appellant on the ground that he was paying more attention to the bicycle in front of the lorry instead of paying attention to the oncoming traffic. The Judge was of the view that the appellant was trying to absolve himself from blame for stating that he was travelling on his side of the road when the collision occurred.

Two of the witnesses, namely the driver of motor car PJ 9270 (D.W.2) which was following the car driven by the deceased and the driver of a taxi which was following the appellant's lorry when the collision occurred (D.W.3), stated that the deceased's car encroached into the path of the lorry which was travelling on its correct side of the road. According to D.W.2, the deceased's car overtook his car about sixty feet away from the bridge and skidded before colliding with the lorry. Both D.W.2 and D.W.3 were independent witnesses who saw the accident and lodged reports on the same day