JUDGMENT

Gunn Chit Tuan J:

The plaintiff in this case was a nineteen-year-old student at the time of the accident. On 30 August 1973, at about 12.30am he was riding a 100 cc Honda motorcycle with registration number PL 7269 along Gurney Drive, Penang, from the direction of Cantonment Road towards Northam Road. A collision occurred between his motorcycle and a motor car with registration number KC 6332, which was also proceeding along Gurney Drive towards Northam Road, when the plaintiff was making a U-turn towards Cantonment Road.

On 8 July 1975 the plaintiff filed a suit for damages for personal injuries and consequential loss against one Mukianto Kosasih who was the driver and one Mdm Lim Ah Nya alias Lim Say Choo who was the owner of the said car. The writ of summons could not be served on either of them and on 22 January 1976, the plaintiff obtained an order for substituted service to be effected on them by posting a copy of the writ and a copy of the order for substituted service on their last-known address as well as on the notice board of the High Court at Penang. Appearance was apparently entered for them on 5 April I976, by a firm of solicitors, Messrs. Goh Lim Eam & Muttiah of Penang, but on 17 May 1976, a memorandum of change of solicitors was filed by RK Nathan & Co. a firm of solicitors in Kuala Lumpur, who also filed a statement of defence. The said firm of RK Nathan & Co. later filed a notice of motion on 3 September 1976, together with affidavits affirmed by one Gary Mah, the Claims Executive of Pacific & Orient Underwriters (M) Sdn. Bhd. the present defendant in this case. My brother Justice Arulanandom who heard the said notice of motion was satisfied that neither the driver nor the owner of the car could be traced and that the plaintiffs claim in this case was one in which the judgment could be enforced against the present defendant under s. 80(1) of the Road Traffic Ordinance, 1958, and made a consent order on 1 November 1976 that the present defendant be substituted in place of the driver and the owner of the car and be allowed to defend the action therein.

The case finally came before me for hearing on the 1 February 1977. As expected, the evidence which could be adduced in Court was rather scanty. The plaintiff, who was called as a witness, told the Court that he was familiar with Gurney Drive where there is a speed-limit of 20 mph. At the time of the accident, which was just past midnight, the road was well-lit and there were not many vehicles on it. The accident took place at a spot near the second lamp-post shown in the photograph, marked exh. P1A. According to the plaintiff, the scene of the accident was quite near the junction of Gurney Drive with a side road called Burmah Lane. In his estimation the scene was approximately 30 feet from the said junction, but the police sergeant who visited the scene of the accident and prepared a sketch-plan with a key to it (exhs P3 and 3K) did not, unfortunately, observe whether there was any side lane near the scene of the accident and therefore did not show it on his sketch-plan.

At the material time there was no obstructions of any kind on the road near the scene of the accident. The road surface was good and the weather was fine. The width of Gumey Drive is 30 feet six inches and it is a straight and clear stretch of road without any corners to block one's view of traffic from either direction. In fact with the street lights on one could drive along the road in question without the headlights on. The plaintiff's recollection of how the accident happened was rather hazy but he claimed that he had looked in front of and behind him and did not see any traffic coming from either direction. Under cross-examination he stated that he was keeping to the centre of the whole road but added during re-examination that he had stopped his motor-cycle about two feet from the edge of the pavement before he made his U-turn. His statement under cross- examination that he ha