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MALAYSIA
5
IN THE MAGISTRATE’S COURT AT GEORGETOWN
IN THE STATE OF PENANG
SUMMONS NO.: 73-419-2008-3
BETWEEN
1- YEAP BENG TEONG
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2- ANG LAY EAN
AND
1. DINESH KUMAR A/L NAGANATHAN
2. KOKILA VEENI A/P VENUGOPAL
RULING AT THE END OF THE CASE
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In this case, the Plaintiff is claiming for general and special damages from the
Defendant as a result of an accident which occurred on the 7-8-2007.
Facts of the case
The Plaintiffs were travelling from KOMTAR to a market at Jalan Anson. At a junction,
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while turning right towards Anson road, the Defendant which was coming from the
opposite direction hit them.
According to the sketch plan (Ex P1), the Plaintiffs were turning left to Jalan Anson
whereas the Defendant was coming from the bottom upwards towards KOMTAR.
The issue here is with respect to the place of the accident where the Plaintiff claims that
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it happened within the Anson road whereas the Defendant contended that it happened
within his travelling path.
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According to the IO of the case (PW1), the damage sustained by the Plaintiff’s
motorcycle were more to the front part which includes the front left cover of the Plaintiffs
motorcycle
With respect to the Defendant’s motorcycle, the damage sustained on the front part of
the motorcycle which facts were not disputed that the Defendant hit the Plaintiff’s
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motorcycle.
The damage itself showed that the Plaintiffs were still in the Defendant’s lane since they
were hit on the front part. It is impossible for their motorcycle to be within the Anson
road and hit by the Defendant who was travelling straight upwards.
There’s no other evidence to suggest that the Defendant had swerved into the Plaintiff’s
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way of travelling apart from the evidence of the first Plaintiff.
In addition, the IO of the case had also issued a summons to the first Plaintiff for
causing the accident by encroaching into the Defendant’s way of travelling.
Besides, the sketch plan drawn by the IO of the case clearly indicates that the
Defendant was travelling from the main road whereas the Plaintiffs were turning into the
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junction on the right ( left as in the sketch plan). The position is clear with respect to the
degree of accountability and responsibility for those who are going into a junction as
enunciated in few decided cases.
In the case of Ng Peng Hong v Ng shaw Ching & Anor [2000] 6 MLJ 403, the court
held that it was undisputed fact that the motorcyclist was emerging and turning right
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from the side road onto a main road, therefore it was his primary duty to ensure that it
was safe to do so as he would be cutting into the paths of oncoming traffics firstly from
both his right side and then from his left. Whether it was safe or not depends on whether
it was possible to make it to the other side of the main road without being knocked down
by the bus coming from his right.
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The standard to be applied here is not that of the perfect driver but the driver using
ordinary care and skill. Thus, when a bus driver is put in a situation where he has only
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has a second or two to react and he failed to do so, which is only because he’s not
perfectionist, he cannot be blamed if a collision should ensue when the bus driver did
not himself create the emergency of the motorcyclist emerging from the minor side road.
Therefore on the facts of the case, it was entirely negligence on the part of the
motorcyclist to have emerged from the minor side road when it was not safe to do so.
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In another case of A. Perianayagam v Yeo Suan Tin [1984] MLJ 214, the deceased
was heading for this side road and had intended to turn right at the break in the divider,
cross the other side of the highway and proceed into the side lane. He did not however
make it to the side road as his motorcycle was collided into by the first Defendant and
after he had fallen onto the road, the 2 nd Defendant ran over him. The court held in that
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case that from the evidence and in all probability, the accident could only have
happened because the deceased shot out from the side road right into the path of the
Defendant and for this foolhardiness, the Defendant should be absolved from any blame
whatsoever.
Thus, in the present case where the crux of the matter is similar to that of the above
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cases, it is clear that the Plaintiffs should have given more attention and took some
precaution when going into the junction and crossing into the Defendant’s lane.
Therefore, the court hereby finds that the Defendant is not liable for this accident and
hereby dismisses the Plaintiffs claim with cost to the Defendant. The first Plaintiff is
therefore 100% liable for this accident.
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With respect to the second Plaintiff, the claim against Defendant is dismissed since it
was the first Plaintiff who had caused this accident.
With respect to the counter-claim by the Defendant, since it concerns the same matter
and has been dealt with, the court hereby dismisses it with no order as to cost.
GENERAL DAMAGES
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Second Plaintiff
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1- Open fracture of tibia and fibula- RM 18000
2- Laceration right heel and face- RM 3000
SPECIAL DAMAGES
First Plaintiff
RM 200 for repair of the motorcycle.
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Second Plaintiff
For hospital bills – the court awards RM 1706.25
For loss of income
It has been proved by the salary slip of the second Plaintiff that she had a gross income
of RM 1200 per month as per Ex P14 (letter from the employer; Pen Apparel Sdn Bhd)
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Thus, the court awards RM 2000 (for 2 months).
The total awards for the Plaintiffs are RM 24, 906.25.
Interest is at 8 % per annum on general damages and 4% per annum on special
damages.
Interest on the judgment sum of 8% per annum from the date of judgment until full and
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final settlement plus cost.
………………………….
Y.M Tengku Shahrizam bin Tuan Lah
First Class Magistrate,
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Magistrate Court Georgetown