1. CHANDRAMOGAN A/L MANOGARAN 2. LIAN HOE TRANSPORT SERVICE SDN. BHD. (COMPANY NO.: 438099-W) 1. KONG WAI SENG 2. HAIRUDDIN BIN KASIM 3. TRIUMPH ALLIANCE SDN. BHD. (COMPANY NO.: 522986-X)

1. CHANDRAMOGAN A/L MANOGARAN 2. LIAN HOE TRANSPORT SERVICE SDN. BHD. (COMPANY NO.: 438099-W) 1. KONG WAI SENG 2. HAIRUDDIN BIN KASIM 3. TRIUMPH ALLIANCE SDN. BHD. (COMPANY NO.: 522986-X)

On the totality of evidence including the sketch plan and photographs the Plaintiff's version was inherently more probable; the 1st Defendant exited/encroached from the RnR feeder lane and bore primary fault; liability was apportioned 80% to the 1st Defendant (2nd Defendant vicariously liable), 10% to the 3rd...

Source-derived case information.

Citation
JB-12B-6-09/2019 (Mahkamah Tinggi)
Parties
Plaintiff: Kong Wai Seng; 1st Defendant: Hairuddin Bin Kasim; 2nd Defendant: Triumph Alliance Sdn. Bhd.; 3rd Defendant: Chandramogan A/L Manogaran; 4th Defendant: Lian Hoe Transport Service Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
22 February 2021
Case Number
JB-12B-6-09/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court (motor Vehicle Negligence) / Appellate Judgment (decision on Appeal)
Outcome
Sessions Court decision set aside in part; appellate court accepted Plaintiff's version and reallocated liability and affirmed quantum and interest
Legal Topics
Negligence, Vicarious Liability (master Servant), Contributory Negligence, Silent Witness (sketch Plan and Documents), Adverse Inference for Non‑production, Quantum of Damages, Traffic Summons and Admissibility
Tort Road Traffic Law Evidence Civil Procedure Insurance/vicarious Liability Negligence Vicarious Liability (master Servant) Contributory Negligence +4 more

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Parties

Kong Wai Seng

Plaintiff

Hairuddin Bin Kasim

1st Defendant

Triumph Alliance Sdn. Bhd.

2nd Defendant

Chandramogan A/L Manogaran

3rd Defendant

Lian Hoe Transport Service Sdn. Bhd.

4th Defendant

Procedural Posture

Civil Appeal From Sessions Court (motor Vehicle Negligence) / Appellate Judgment (decision on Appeal)

Legal Issues

  1. 1 Who had right of way at the material time?
  2. 2 Which factual version is inherently more probable (Plaintiff v 1st Defendant)?
  3. 3 Whether Court may rely on 'silent witness' (sketch plan/photographs) to resolve conflicts?

Ratio Decidendi

On the totality of evidence including the sketch plan and photographs the Plaintiff's version was inherently more probable; the 1st Defendant exited/encroached from the RnR feeder lane and bore primary fault; liability was apportioned 80% to the 1st Defendant (2nd Defendant vicariously liable), 10% to the 3rd Defendant (4th vicariously liable) for failing to stop, and 10% contributory by the Plaintiff; the Sessions Court's assessment of quantum and interest was correct and is affirmed.

Court Disposition

Sessions Court decision set aside in part; appellate court accepted Plaintiff's version and reallocated liability and affirmed quantum and interest

Orders

  • Accepted Plaintiff's version over that of the 1st Defendant
  • Set aside the Sessions Court's finding as erroneous in part