Haidar Mohd Noor J:

[1] In this action the plaintiffs are claiming damages for the injuries suffered by them including the total loss of motor van JBF 38 arising out of the motor accident between motor lorry No JL 8200 and motor van JBF 38 on 8 August 1990 at about 12.45 pm, near 28 ms Jalan Johor Bahru-Pontian.

[2] The following documents were agreed:

Ikatan pliding - P1.

Ikatan Dokumen-Dokumen Plaintif - P2.

Ikatan Dokumen-Dokumen Tambahan - P3.

Ikatan Dokumen-Dokumen Tambahan - P4.

However, pp 25 to 29 of P2 were not agreed.

[3] The following special damages on 100% liability were agreed by the parties:

In respect of the 1st plaintiff - RM29,330

In respect of the 2nd plaintiff - RM 1,467

[4] At the time of the accident, the 1st plaintiff (PW2) was driving motor van JBF 38 in which his father, the 2nd plaintiff (PW3) was travelling as a passenger. They were proceeding from the direction of Johor Bahru towards Pontian after doing their business selling fish in Johor Bahru. Accroding to PW1 they were proceeding back towards Pontian and a about 1.00 pm. that day they would go to the Pontian market to bid for fish. The motor van JBF 38 belonged to PW2. The motor lorry JL 8200 driven by he 1st defendant as the servant of the 2nd defendant. In fact it was an oil tanker loaded with palm oil meant for delivery to Pasir Gudang. 1st defendant was travelling from Benut to Pasir Gudang when at around 28 ms Jalan Johor Bahru-Pontian he met with an accident with the motor van JBF 38 driven by PW2. Both vehicles were then travelling in the opposite direction.

[5] The plaintiffs claimed that the motor vehicle driven by the 1st defendant encroached onto their path whereas the 1st defendant claimed that PW2 encroached onto his path. Thus we have a situation of two oral conflicting versions of how the accident occurred. In such a situation the photographs, sketch plan and measurements of the scene and the nature of the damages to each vehicle must provide the most reliable guide by which their versions can be tested (See Lim Ewe Teik v. Ariffin b Hussain, [1990] 2 CLJ (Rep) 332).

[6] The plaintiffs called Sgt Major 56411 Musa bin Razali, (PW1), as their witness. PW1 was the officer who investigated the accident and drew the sketch plan and the key (Exhibits P5 and P5K). According to PW1 the road surface at that time was not wet and there was a slight bend at that area and there was a central dotted white line in the middle of the road. PW1 found broken pieces of glasses on the lest side of the road as one faces Johor Bahru and this means that those broken pieces of glasses were found on the path of the motor lorry. This is shown in P5 (see 'Z' in P5). In addition thereto blood stains were also found on the path of the motor lorry (see 'X' in P5). PW1 also said that the windscreen of both vehicles were broken and he did not find any brake marks on the road. The motor van JBF 38 was on the left side as one faces Pontian and the motor lorry JL 8200 was on the left side as one faces Johor Bahru. In other words both vehicles were on their sides of the road respectively after the accident. The photographs of both vehicles would seem to show that the front offside of both vehicles were damaged, indicating the point of impact (see pp 28 and 29 of P2). The question is whether the impact took place around the centre white line of the road or on the path of the motor van or on the path of the motor lorry.

[7] According to PW2 and PW3 when they first saw the motor lorry it was encroaching onto their path. They did not say that the motor lorry was overtaking any vehicles and in the circumstances either the motor lorry went out of control or DW1 was negligent in driving his motor lorry onto the path of PWl's motor van. However, DW1 in his evidence denied encroaching onto the path of PW2's motor van and claimed that PW2 overtook a taxi and thereby caused the accident. It was suggested also to PW2 and PW3 that PW2 was speeding at the material time in which both of