JUDGMENT

VT Singham JC:

Appeal

This is an appeal by the appellant/plaintiff against the decision of the Sessions Court, Temerloh wherein the appellant/plaintiff's claim against the respondents/defendants was dismissed with costs on 13 July 1999. In this judgment, the appellant and the respondents will be referred to as the plaintiff and defendants respectively.

Claim

The plaintiff's claim against the defendants was for damages arising out of a road accident which occurred on 13 May 95 at/about 3.30pm at Batu 4, Jalan Songsang/Jerantut/Temerloh. The plaintiff was riding his m/cycle No: NX 8942 and the 1st defendant was driving her m/car No: WBS 9505.

Plaintiff's Version of The Accident (Evidence-In-Chief) - SP3

The plaintiff's evidence was that he was riding his m/cycle No: NX 8942 from the direction of Temerloh towards Jerantut and returning home at about 3.15pm after his work. His house was 18 kilometers from the place of accident. On reaching at/near Batu 4, Jalan Songsang/Jerantut-Ternerloh near J.L. Furniture, his m/cycle was "dihimpit" by the 1st defendant's m/car from the rear which was travelling in the same direction ie from Temerloh towards Jerantut and he fell. The 1st defendant's m/car was in the process of attempting to overtake the plaintiff and at the time there was a m/car (Proton Iswara blue colour) coming from the opposite direction which by implication made it necessary for the 1st defendant to graze against the plaintiff's m/cycle.

Plaintiff's Evidence Under Cross-Examination

Under cross-examination, the plaintiff had stated that the 1st defendant's m/car "terhimpit" his m/cycle and that the 1st defendant's m/car which was attempting to overtake did not pass him and "himpit" him. He denied that there was room for the 1st defendant's m/car to overtake him although there was a m/car coming from his opposite direction on its correct side. He denied that he intended to turn right. He fell onto the right side and on the road. The place of the accident from his place of work was one kilometer. He denied that his evidence was an invention.

Evidence of The Investigating Officer SP1

The plaintiff's first witness was the investigating officer SP1. The investigating officer's evidence inter alia, was that he went to the place of accident at 4.05pm. He did not find any traces of brake mark or glass fragments. The damage to the plaintiff's m/cycle was as follows:

mudguard depan cover pecah, kemek kuat di kanan, pedal kanan dan brake bengkok, body kanan kemek sedikit, kesan seretan jatuh di kanan.

As to the damage to the 1st defendant's m/car, the investigating officer's evidence was as follows:

mudguard depan kiri kemek berhampiran tayar depan.

The plaintiff's m/cycle was in the position "hadapan menghala mengiring ke Temerloh". He had also stated that the police have taken action against the 1st defendant under r. 10 and that the 1st defendant had paid the compound.

1st Defendant's Version of The Accident (Evidence-In-Chief) - SD1

She was driving her m/car from Temerloh intending to return to Jerantut. She was following the plaintiff's m/cycle for about 10 seconds. She said:

saya tidak potong m/sikal sebab ada double line.

Immediately after this evidence, the 1st defendant said:

Saya hampir hendak memotong dia. Saya berada di sebelah kanan. Saya berada di tengah jalan semasa hendak memotong. M/sikal itu belok ke kanan secara tibatiba. Saya cuba mengelak dia dapat kena. Kena langgar. Saya melanggar m/sikal. Saya hendak mengelak dia. Tak dapat.

Saya belok balik 'U turn'. Selepas itu kereta saya ada diatas tanah.

Evidence of 1st Defendant Under Cross-Examination

Under cross-examination, the 1st defendant said:

Saya ikut m/sikal dari belakang - jarak 1 kereta iaitu 15 kaki. Saya tidak hon. Saya patut hon bila memotong. Saya ada brek. Hampir mahu potong habis. Saya belum lalu dia. Saya ditengah motor. Saya kena saman polis. Says ada bayar saman. Saya ada brek.

Saya tidak brek kuat sangat.

Accident tidak akan