Date and Time: Tuesday, 31 March, 2020 12:51:00 AM MYT

Job Number: 113556683

Document (1)

1. Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor

[2016] MLJU 615
Client/Matter: -None-
Search Terms: accident
Search Type: Natural Language
Narrowed by:
Content Type Narrowed by
MY Cases -None-

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis
 Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor
[2016] MLJU 615
Malayan Law Journal Unreported

HIGH COURT (ALOR SETAR)

CHOO KAH SING
RAYUAN SIVIL NO. 11(B)NCVC-18-03/2015
5 August 2016

Vinod Kamalanathan Tetuan Vinod Kamalanathan for the complainant.

Shanmugavadivelan P. Nagasamy Tetuan Vazeer Akbar Majid & Co. for the respondent.

CHOO KAH SING

JUDGMENT Introduction

[1]For ease of reference, the appellant will be referred to as the 2nd defendant and the respondents will be referred
to as the plaintiffs in this judgment.

[2]On 1.8.2016, this court allowed the 2nd defendant’s appeal against the decision of the Magistrate Court dated
12.3.2015 in which the learned Magistrate had held that the 1st and 2nd defendants were 100% liable to the injuries
and damages suffered by the plaintiffs in a motor vehicle accident at Jalan Kuala Kedah on 3.6.2015.

[3]The plaintiffs were not satisfied with the decision of this court and appealed to the Court of Appeal. This
judgment serves as the reasons for the decision of the court to set aside the Magistrate’s decision dated 12.3.2015.
The reasons of this court are set down as below.

The Plaintiffs’ Case

[4]On 3.6.2013, the plaintiffs were riding on a motorcycle bearing registration number WXB 1034 along Jalan Kuala
Kedah. When they approached nearby a shop known as Pajak Gadai Ban Yick, a motor vehicle bearing registration
number MAS 2781 parked along the side of the road suddenly turned out onto the main road in front of the
plaintiffs. The plaintiffs were unable to stop on time and collided onto the rear right side of the motor vehicle. The
rider, the 1st plaintiff, had lodged a police report TRAFIK KOTA SETAR/005184/13 dated 3.6.2013 (exhibit P3).

[5]It is noted that the motor vehicle MAS 2781 which was involved in the accident was a milky yellow (kuning susu)
Proton Wira (hereinafter referred to as “the accident vehicle”).

[6]It is also noted that according to the JPJ records the registration number “MAS 2781” was registered in the name
of the 2nd defendant.
 Page 2 of 8
Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor
....

[7]At the material time of the accident, the accident vehicle was driven by the 1st defendant. The 1st defendant had
lodged a police report TRAFIK KOTA SETAR/005195/13 dated 3.6.2013 (see Rekod Rayuan p. 110 – the police
report was not adduced as exhibit in the trial court).

[8]The plaintiffs suffered multiples injuries as a result of the accident and made claims against the defendants as
per their Statement of Claim.

The 2nd Defendant’s Case

[9]In the defendants’ statement of defence, the defendants denied that they were involved in the accident. In the
trial, it was revealed that the 2nd defendants’ case was that the accident vehicle involved in the accident on
3.6.2013 did not belong to the 2nd defendant, despite the fact that the accident vehicle bore a registration number
MAS 2781.

[10]The 2nd defendant vehemently denied that she was the owner of the milky yellow Proton Wira, i.e. the accident
vehicle. She asserted that her vehicle was a Proton Wira also bearing a registration number MAS 2781, but the
colour of her vehicle was blue, not milky yellow as alleged by the plaintiffs to be the colour of the accident vehicle
involved in the accident.

[11]The 2nd defendant also vehemently denied that her Proton Wira - MAS 2781, which was blue in colour, was in
Kuala Kedah at that material time, neither was she in Kuala Kedah at that material time.

[12]The 2nd defendant testified that she was in Melaka on 3.6.2013. Her blue Proton Wira also bearing the same
registration number MAS 2781 was in Melaka at that material time. She did not authorise any person to use her
blue Proton Wira to drive to Kuala Kedah on 3.6.2013.

[13]The 2nd defendant had lodged a police report TRAFIK KOTA SETAR/012145/13 dated 25.12.2013 (see exhibit
D11 – Rekod Rayuan p. 135) at the Trafik Melaka Tengah police station asserting the fact that she was not involved
in the accident in Kuala Kedah on 3.6.2013.

[14]According to the 2nd defendant’s narrative, she bought her blue Proton Wira bearing registration number MAS
2781 sometime in 2006. It was a second hand vehicle.

[15]Sometime in August 2013, the 2nd defendant received a letter from P&O Insurance, the insurer of the blue
Proton Wira, informing her that her vehicle was involved in an accident in Kuala Kedah on 3.6.2013 and that she
had failed to report to the insurance company.
 Page 3 of 8
Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor
....

[16]The 2nd defendant was shocked to receive the insurance company’s letter. She then went to lodge the police
report (exhibit D11) to protect her interest. She had also sworn a statutory declaration dated 4.9.2013 stating that
she was the owner of the blue Proton Wira bearing registration number MAS 2781, and that her vehicle was not
involved in an accident on 3.6.2013. She also stated that she did not lend her vehicle to anyone on 3.6.2013 (see
exhibit D13 – Rekod Rayuan p. 136).

[17]The above is the crux of the 2nd defendant’s case.

The Finding of this Court

[18]The learned Magistrate found in favour of the plaintiffs after a full trial, and held that the defendants were 100%
liable for the accident on 3.6.2013. It is trite law that an appellate court ought to be slow to disturb the finding of
facts of a trial court. However, in this appeal, this court found that the learned Magistrate had erred in his finding of
facts, and as a result the learned Magistrate had erred in his finding in favour of the plaintiffs’ case.

[19]The learned Magistrate’s reasoning can be found in his Alasan Penghakiman (see Rekod Rayuan Tambahan).
He stated there were three issues to be determined by the court. Firstly, the issue of who was negligent in the
accident. Secondly, whether the milky yellow Proton Wira actually belong to the 2nd defendant. Lastly, the issue of
vicarious liability, in the event the finding of the second issue is answered in the affirmative (see p. 5 of the Alasan
Penghakiman).

[20]This court was concerned about the finding of fact of the learned Magistrate in regard to the second issue which
was the substratum of the plaintiff’s case. The learned Magistrate in his Alasan Penghakiman stated as follows:

[22] Pihak defenden kedua menafikan pernah hadir ke Negeri Kedah pada masa kemalangan berlaku dan juga telah
membuat satu surat akuan bersumpah untuk mengukuhkan keterangan beliau. Tanpa keterangan dan bukti lain yang
dikemukakan, maka keterangan ini adalah penafian semata-mata. Apabila gambar kenderaan motokar ditunjukkan di
mahkamah, maka pihak defendan kedua perlu mengemukakan bukti yang lain yang lebih kukuh untuk menafikan
kehadiran beliau ke Negeri Kedah.

[23] Daripada siasatan pegawai penyiasat, kewujudan motokar yang terlibat kemalangan pada tempat kejadian dengan
nombor plat yang tertera serta laporan polis yang dibuat oleh pemandu motokar tersebut adalah mencukupi bahawa
kemalangan tersebut melibatkan 2 buah kenderaan iaitu motosikal dan sebuah motokar bernombor pendaftaran MAS
2781. Tiada pemeriksaan pada nombor chasis atau nombor enjin dibuat.

[24] Mahkamah mendapati bahawa siasatan yang telah dilakukan oleh pihak pegawai penyiasat adalah mencukupi untuk
mengesahkan keterlibatan kenderaan motokar MAS 2781 dalam kemalangan ini. Atas unsur imbangan kebarangkalian,
motorkar MAS 2781 adalah motokar yang terlibat tanpa perlu memenuhi tuntutan sebagaimana yang dipersoalkan oleh
pihak defenden untuk membuat pemeriksaan pada nombor enjin dan chasis. Pemeriksaan pada nombor enjin dan chasis
akan membebankan tahap tanggungan pembuktian kepada melampau keraguan munasabah sebagaimana di dalam kes-
kes jenayah. Maka siasatan oleh pihak pegawai penyiasat adalah memcukupi.
 Page 4 of 8
Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor
....

[25] Disamping itu, keterangan sokongan yang dikemukakan oleh saksi-saksi defenden kedua (SD1 dan SD2) berkenaan
penafian keterlibatan atas perbezaan ciri-ciri kenderaan adalah ditolak dan hanya keterangan semata-mata. Apabila
defenden kedua mengemukakan penafian atas ciri-ciri kenderaan, maka adalah menjadi tanggungjawap pihak defenden
untuk mengemukakan satu bukti di mahkamah berkenaan dengan ciri-ciri kenderaan yang sebenar. Iaitu pihak defenden
perlulah mengemukakan gambar kenderaan motokar defenden untuk mahkamah membuat perbandingan ke atas kedua-
dua kenderaan.

[26] Tidak dinafikan bahawa terdapat satu laporan penyelaras (adjuster report) di dalam ikatan dokumen defenden, namun
ianya kekal sebagai satu ikatan dokumen tanpa dikemukakan sebagai satu eksibit untuk dipertimbangkan oleh pihak
mahkamah. Oleh yang demikian, mahkamah menolak keterangan pihak defenden berkenaan dengan ciri-ciri kenderaan itu
hanyalah sebagai penafian semata-mata tanpa bukti sokongan lain.

[27] Oleh yang demikian, mahkamah merumuskan bahawa kenderaan motokar yang terdapat di dalam gambar yang
dirakam oleh pihak pegawai penyiasat adalah milik defenden kedua.

[21]This court could not agree with the finding of the learned Magistrate on the above issue.

[22]In paragraph 22 of his Alasan Penghakiman, the learned Magistrate found that the 2nd defendant’s denial that
she was present in Kuala Kedah at the material time was merely a bare denial. This court is of the considered view
that the 2nd defendant’s denial that she was present in Kuala Kedah at the material was in fact corroborated by her
police report (D11) and her statutory declaration (D13). The contents of these two documents reinforce her oral
evidence in court that she was not present in Kuala Kedah at that material time.

[23]When the pictures (see pp. 117 and 118 of the Rekod Rayuan – the accident vehicle) were showed to 2nd
defendant, she denied that the vehicle in the pictures was her vehicle. Therefore, it was incumbent upon the
plaintiffs to prove that the vehicle in the pictures belonged to the 2nd defendant. The rule of evidence is when a party
asserts a fact, the burden lies on him to prove that fact (s.101 of the Evidence Act 1950). The learned Magistrate
was wrong to place the burden on the 2nd defendant to prove that the vehicle in the pictures was not hers.

[24]Following from above, it is apparent that the crucial issue was whether the accident vehicle in fact belonged to
the 2nd defendant or not. The learned Magistrate concluded in his finding that the accident vehicle in fact belonged
to the 2nd defendant. His reasoning can be found in paragraphs 23 and 24 of his Alasan Penghakiman.

[25]The learned Magistrate was of the opinion that since the accident vehicle having a registration number MAS
2781 was involved in the accident with the motorcycle, therefore, it was a conclusive fact that the vehicle MAS
2781 registered in the name of the 2nd defendant was involved in the accident. It was unnecessary for the
 Page 5 of 8
Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor
....

investigating officer to inspect the engine and chassis numbers of the accident vehicle.

[26]This court was of the considered view that the learned Magistrate has erred in his reasoning and the finding of
fact. The mere fact that the accident vehicle bore a registration number MAS 2781 could not conclusively prove the
accident vehicle belonged to the 2nd defendant.

[27]The 2nd defendant’s counsel has argued in his submission that there were several important pieces of evidence
to negate the fact that the accident vehicle actually belonged to the 2nd defendant, despite the fact that it bore the
registration number MAS 2781 which was registered in her name.

[28]Firstly, the evidence of SP1, the investigating officer, was important to determine the question of ownership of
the accident vehicle. SP1 testified that the accident vehicle was milky yellow in colour. He also testified that the
owner of this milky yellow Proton Wira (with registration number MAS 2781) was not present at the police station.

[29]SP1’s investigation mainly premised on the police reports lodged by the plaintiffs (which was exhibit P3), the
police report TRAFIK KOTA SETAR/005167/13 (which was not tendered in court; see p. 111 of the Rekod Rayuan)
of the police officer who received information of an accident occurred in Kuala Kedah and the driver of the
accident vehicle who was the 1st defendant. The police report TRAFIK KOTA SETAR/005195/13 dated 3.6.2013
lodged by the 1st defendant was not tendered in court, neither was the 1st defendant called as a witness in the trial.

[30]According to SP1, the 1st defendant was a parking attendant, and at the material time he was taking care of the
accident vehicle.

[31]SP1 said the 1st defendant told him that the owner of the vehicle was from Melaka and wanted to go to
Langkawi. This purported fact was not supported by the 1st defendant in the trial, because he was not called to
testify. The purported fact was also not stated in the 1st defendant’s police report. SP1’s evidence in regard to the
purported fact was not supported by any other evidence that the accident vehicle actually belonged to the 2nd
defendant.

[32]SP1 admitted that his investigation was premised only on the three police reports as mentioned above (see p.
11 of Rekod Rayuan Tambahan). None of the contents of these police reports could support the fact that the
accident vehicle actually belonged to the 2nd defendant.

[33]Further in SP1’s testimony, he admitted that he did not carry out a JPJ search to determine the ownership of
the accident vehicle. He also did not verify the engine and chassis numbers of the accident vehicle in order to
verify that they matched the registration number of the accident vehicle.
 Page 6 of 8
Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor
....

[34]Therefore, the investigation conducted by SP1 did not determine conclusively that the accident vehicle
belonged to 2nd defendant. SP1 merely relied on what the 1st defendant told him. There was still no direct evidence
to prove the accident vehicle actually belonged to the 2nd defendant.

[35]SP1’s investigation in regard to the ownership of the accident vehicle became more uncertain when he was
asked whether he knew that the 2nd defendant had lodged a police report (exhibit P11) asserting that she and her
vehicle bearing the same registration number MAS 2781 were not involved in the accident on 3.6.2013. SP1
answered he was not aware of it (see Rekod Rayuan Tambahan Kedua, p. 14).

[36]SP1 then told the court that he would have to continue to investigate further to determine the true ownership of
the accident vehicle. He said: “Saya akan teruskan siasatan” (see Rekod Rayuan Tambahan Kedua, p.14).

[37]He further confirmed that what he meant was that he will have to continue to investigate further. He said:
“Bukan dibuka balik, diteruskan semula”. This proffers that his investigation has not completed yet.

[38]In other words, at the time of the trial, SP1’s investigation in regard to the true ownership of the accident
vehicle had not been completed. This means the ownership of the accident vehicle was still uncertain. Ironically,
the trial judge made a finding of fact that the accident vehicle belonged to the 2nd defendant (see paragraph 27 of
the learned Magistrate’s Alasan Penghakiman), despite the fact that SP1 had not completed his investigation.

[39]SP1 also stated that he needed to call the 1st defendant and the 2nd defendant for further investigation (see
Rekod Rayuan Tambahan Kedua, p. 15).

[40]Clearly, the learned Magistrate could not safely rely on SP1’s testimony to make a finding of fact that the
accident vehicle actually belonged to the 2nd defendant. Hence, the learned Magistrate has erred in his finding of
fact on the ownership of the accident vehicle in his judgment.

[41]The second important piece of evidence is found in the testimony of SD3, Rozaimi Bin Rashid.

[42]SD3 gave a written witness statement (exhibit D15, Rekod Rayuan, p.149-151). In gist, SD3 averred that he
runs a car-rental business in Kuala Kedah. Several months before the accident, a friend of his by the name of
Anuar came to see him with the accident vehicle.
 Page 7 of 8
Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor
....

[43]Anuar claimed that he was the owner of the accident vehicle. Anuar also told SD3 that he could not afford to
continue to pay the car loan instalments of the accident vehicle. Anuar asked SD3 to take over the car and to
continue to pay the car loan instalments. SD3 agreed with Anuar’s proposal.

[44]Anuar then passed the accident vehicle to SD3 together with a photocopy of a car registration card, policy
insurance and road tax. SD3 stated that he continued paying the car instalments. He paid the monthly instalments
to Annur, not to any financial institution. There was no actual transfer of ownership of the accident vehicle.

[45]Anuar’s name was not found on the photocopy of the registration card. SD3 testified that it despite the fact
Annuar’s name was not on the registration card, he trusted Anuar’s words.

[46]SD3 said that he returned the accident vehicle to Anuar after the accident. He said he did not want to take
responsibility for the accident vehicle.

[47]SD3 in cross-examination told the court that he found out from Anuar’s wife and friends that Anuar was arrested
in Thailand after the accident. SD3 said he could not contact Anuar after that. He also said that the car owner’s
name stated on the photocopy of the registration card was a Chinese owner, but he could not remember the name.
He confirmed that Anuar’s name was not stated anywhere on the photocopy of the registration card.

[48]The evidence of SD3 was that he acquired the accident vehicle from Anuar. At the time of accident, the
accident vehicle was under the care of SD3, and at that material time of accident, 1st defendant was driving it. SD3
was the so-called owner of the accident vehicle.

[49]Based on SD3’s evidence, there is a possibility that there could be a vehicle of similar model and registration
number as the one that was owned by the 2nd defendant. There is, therefore, a possibility that the accident vehicle
could be a “clone vehicle” of an actual vehicle registered in the name of the 2nd defendant. This fact could not be
ruled out because SP1 had not completed his investigation yet.

[50]It was evidently clear that the accident vehicle was milky yellow in colour, whereas, the vehicle that the 2nd
defendant claimed was hers was blue in colour. From the JPJ’s records (see p. 147 of the Rekod Rayuan), the
original colour of the vehicle bearing registration number MAS 2781 which was registered in the 2nd defendant’s
name was blue. The registered address of the 2nd defendant is in Melaka.

[51]All of the above mentioned evidence support the 2nd defendant’s defence that she and her vehicle (the blue
vehicle) were not involved in the accident in Kuala Kedah on 3.6.2013.
 Page 8 of 8
Goh Kim Wah v Norhasnany Binti Mohamed Nasri & Anor
....

[52]The accident vehicle (the milky yellow vehicle) that met an accident with the plaintiffs could be a “clone
vehicle”. This possibility could not be ruled out. This court is of the considered view that the learned Magistrate
could not disregard this possibility.

[53]This court was of the considered view that it would be highly unlikely that the 2nd defendant could have
repainted her vehicle from milky yellow back to blue colour after the accident, i.e. 3.6.2013. The damage to the
accident vehicle was not that serious, and the injuries suffered by the plaintiffs were not life threatening, there is no
reason for the 2nd defendant to go so far to repaint her vehicle just to cover-up the accident, if it was true the milky
yellow vehicle was her vehicle.

[54]The learned Magistrate had failed to examine and appreciate the evidence as discussed above. The learned
Magistrate did not in his judgment deal with SD3’s testimony before arriving at his finding of fact that the accident
vehicle was the 2nd defendant’s vehicle.

[55]Based on the above analysis of the evidence before the Magistrate court, I was not satisfied that the plaintiffs
have discharged their burden of proof, on the standard of balance of probabilities, that the accident vehicle which
was involved in the accident with the plaintiffs actually belonged to the 2nd defendant.

Conclusion

[56]Based on the above reasoning, this court allowed the 2nd defendant’s appeal and set aside the learned
Magistrate’s decision dated 12.3.2015. This court ordered the plaintiffs to pay costs of RM3,000.00 to the 2nd
defendant.

End of Document