CHEE WEE KIAN (NO. KP : XXXXXX-XX-XXXX) SPANCO SDN BHD (COMPANY NO.: 172957-U)

CHEE WEE KIAN (NO. KP : XXXXXX-XX-XXXX) SPANCO SDN BHD (COMPANY NO.: 172957-U)

Court found appellant proved on balance that Proton Inspira WXN 4388 collided with appellant's motorcycle; photographic and hospital witness evidence corroborated the accident; respondent failed to call Puan Sohaini though she was peculiarly within its knowledge, inviting adverse inference; failure to identify driver is not necessarily fatal and failure to lodge police report contravenes s52 RTA and does not advantage defendant; appeal allowed, magistrate's quantum of damages and interest affirmed and police directed to investigate driver identity and authenticity of Kajang Report 9788/19.

Citation
JB-11BNCVC-5-07/2019 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: Chee Wee Kian; Respondent/defendant: Spanco Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
3 November 2020
Case Number
JB-11BNCVC-5-07/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Magistrate's Court (motor Accident/insurance) / High Court Appeal (judgment on Appeal)
Outcome
Appeal allowed with costs; magistrate's findings on damages and interest affirmed; police to investigate driver identity and Kajang Report 9788/19 and classify investigations under Road Transport Act and Penal Code
Legal Topics
Burden of Proof, Adverse Inference for Non Production of Witness, Duty to Report Accidents (s52 Rta), Res Ipsa Loquitur, Damages and Interest
Source Language
Malay/English
Tort Negligence Road Traffic Law Evidence Law Insurance Claims Burden of Proof Adverse Inference for Non Production of Witness Duty to Report Accidents (s52 Rta) Res Ipsa Loquitur +1 more

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Parties

Chee Wee Kian

Appellant/plaintiff

Spanco Sdn Bhd

Respondent/defendant

Procedural Posture

Civil Appeal From Magistrate's Court (motor Accident/insurance) / High Court Appeal (judgment on Appeal)

Legal Issues

  1. 1 Whether failure to identify the motorcar driver at the scene is fatal to plaintiff's claim
  2. 2 Whether failure of the motorcar driver to lodge a police report benefits the defendant
  3. 3 Whether adverse inference arises from failure to call a material witness (Puan Sohaini)

Ratio Decidendi

Court found appellant proved on balance that Proton Inspira WXN 4388 collided with appellant's motorcycle; photographic and hospital witness evidence corroborated the accident; respondent failed to call Puan Sohaini though she was peculiarly within its knowledge, inviting adverse inference; failure to identify driver is not necessarily fatal and failure to lodge police report contravenes s52 RTA and does not advantage defendant; appeal allowed, magistrate's quantum of damages and interest affirmed and police directed to investigate driver identity and authenticity of Kajang Report 9788/19.

Court Disposition

Appeal allowed with costs; magistrate's findings on damages and interest affirmed; police to investigate driver identity and Kajang Report 9788/19 and classify investigations under Road Transport Act and Penal Code

Orders

  • Appeal allowed with costs
  • Police to make further investigation on identity of driver and the Kajang Report 9788/19 purportedly lodged by Puan Sohaini binti Alias