JUDGMENT

Mahadev Shankar J:

This is a claim for damages arising out of a motor accident which took place on 12 May 1977 at about 7.15 p.m. on a small laterite road leading off the main road into Sedenak Estate, Air Bemban, Johore. The accident was between a motorcycle JB 2651 driven by one Tam See Weng and a motor bus No. JH 4053 driven by the defendant Yeng Shiew Seng. As a result of this accident Tam See Weng, hereafter referred to as the deceased, sustained severe injuries to which he succumbed two days later.

He left his widow and 6 children surviving him all of whom were dependent upon the deceased for their support, maintenance and care.

According to the writ the plaintiff filed this action on 11 May 1980 but the action does not appear to have been registered until the following year as Suit No. 53 of 1981.

At the commencement of the trial the parties agreed that on the basis of 100% liability the general damages would be RM31,000 and special damages RM1,390 excluding any interest to which the plaintiff may become entitled.

The sole issue before the Court was therefore one of liability relating to the negligence and/or contributory negligence of the deceased and/or the defendant in respect of this accident.

The plaintiffs were not able to call any eye-witnesses to this accident whatsoever. The Court was therefore left with the sketch-plan and key, the police report made by the defendant and the defendant's testimony to assist it in arriving at a finding as to how this accident could have happened.

The salient facts which can be extracted from this material, are as follows:

The deceased was proceeding on his motorcycle from Sedenak Estate towards the main road. The defendant was approaching from the other direction. The accident took place at a bend. At this point the road was 18 feet wide at the place where the deceased's motorcycle came to rest and 19 feet wide at the rear of the defendant's motor bus at the place where it came to rest. The front wheel of the deceased's motorcycle was 3 feet 6 inches from the verge of the road on the deceased's off-side. In other words the motorcycle was 5 feet 6 inches into the wrong side of the road. The rear wheel of the motorcycle was protruding about one foot into its correct side.

The off-side front wheel and the off-side rear wheel of defendant's bus was 9 feet from its off-side verge. In other words both off-side wheels were on the centre of the road. According to the Certificate of Examination of the bus the damage to it was on its front mid portion. The sketch plan suggests that the bus was 7 feet wide and if the bus was travelling along the same line of direction before the impact occurred, the position here was that the deceased motorcyclist had a berth of 9 feet in which to pass the bus but instead appears to have gone about 3 feet 6 inches into the wrong side of the road when the impact occurred. It is noted that the front wheel of the motorcycle where it came to rest is also 3 feet 6 inches from the wrong side.

It is against the back-drop of the sketch plan and key that one should weigh the credibility of the defendant's testimony.

In his police report made a few hours after the accident the defendant said that he was travelling at about 20 m.p.h. on the estate road when he saw the motorcycle approaching him. The material portion of his report is to the effect that he saw the motorcycle about 40 feet away. It was a bit fast and was moving from the side to the centre of the road. He stopped his motor bus near the side of the road but the motorcycle came straight on and collided into the front of his bus.

In his evidence in Court the defendant also said that he was driving at about 20 m.p.h. but that he had his head lamps on. He saw the on-coming motorcycle about 40 feet away. It was on his side of the road when he first saw it but the motorcyclist suddenly swerved to his side. He was unable to swerve to the left as there was a drain there. He braked immediately but a coll