DALAM MAHKAMAH SESYEN DI KUANTAN DALAM NEGERI PAHANG DARUL MAKMUR, MALAYSIA KES SAMAN NO: TAHUN 2011-S4 ANTARA DAN

Transcription

1 DALAM MAHKAMAH SESYEN DI KUANTAN DALAM NEGERI PAHANG DARUL MAKMUR, MALAYSIA KES SAMAN NO: TAHUN 11-S4 ANTARA AHMAD FITRI BIN MANSOR PLAINTIF DAN 1. ALIAS BIN HASSAN 2. MOHD NORMAN BIN ABU BAKAR DEFENDAN-DEFENDAN KORUM: TUAN HAJI JAMALUDIN BIN HAJI MAT JUDGE SESSION COURT 4 KUANTAN DATE: 9TH. APRIL 13 DECISION Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page 1

2 COURT DECISION After hearing the testimony of witnesses, examine the exhibits and consider the submissions presented by solicitor of the Plaintiff, and Defendants solicitor and on the balance of probabilities, I decided as follows: LIABILITY Liabilities are determined as follows: (i) the Defendant is 0% liable for negligent. Based on the following grounds: 1. Plaintiff riding his motorcycles No: WNU 7040 from the ground up in the sketch plan, while the Second Defendant driving his motorcar No: WNE 4198 from the right side of the Plaintiff and turning left in front of the Plaintiff. 2. As the Plaintiff s motorcycles moves straight on the main road, the Plaintiff should be given the first right of passage. 3. The Defendant s evidence that he had given signal before turning left is not sufficient because he should ensure that the road is safe before turning to the left Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page 2

3 4. As regard to his evidence that he had looked at the back through his side mirror raises doubt because if he really did so, he certainly can see the presence of the Plaintiff s motorcycle going through the main street on his left.. I believe the evidence of the Plaintiff that the Defendant was turning to the left junction with a sudden, therefore, the Plaintiff is not able to do anything to avoid this accident. Chai Phin Chong & Anor v Zainal Abidin Mohd Salleh & Anor [1998] 4 CLJ 833, Murugan v Lew Chu Cheong [1980] 2 MLJ Hence, I am satisfied that the Defendant is 0% liable for the accident. QUANTUM (ON 0% LIABILITIES) SPECIAL DAMAGES FOR THE PLAINTIFF 1. Item (a): Lost of personal belongings was agreed at RM0. 2. Item (b): The costs of documents are allowed at RM0. 3. Item (c): Medical expenses are allowed at RM Item (d): Travelling expenses by the family from Kemaman, Terengganu to visit the Plaintiff at the Kuantan s hospital are allowed at the rate of RM0 per day for 22 days equivalent to RM2,0.. Item (h): Cost of specialist report is allowed at RM1, Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page 3

4 GENERAL DAMAGES FOR THE PLAINTIFF injuries: Based on exhibit P3, and P4 the Plaintiff suffered the following 1. Head injury. - Right pariental extradural haematoma - Multiple contusions bleeds - Right parietal skull bone fracture The Plaintiff s solicitor argued that a sum of RM90, 000 is reasonable for the injury based on the following cases: (a) Mohd Safri b Rehan v Mohd Nurrul Amry b Mohd Rahim [08] 1 PIR [] where the court awarded RM80,000 for hemorrhagic contusion of the right temporal and pariental lobes and left thalamus (Plaintiff suffered permanent impairment of concentration, memory, calculation and dextery of the right hand and gait). (b) Wong Won Bin v Ko Ming Jiet & Anor [] 2 PIR [77] where the court awarded RM80,000 for severe head injury with cerebral concussion, fracture of the left temporal bone, left orbital haematoma, laceration wound on the frontal bone region, left extradural haemorrhage with mass effect Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page 4

5 The Defendant s solicitor argued that an amount of RM0,000 is reasonable for the injury based on the case of Mohd Safri b Rehan v Mohd Nurrul Amry b Mohd Rahim [08] 1 PIR [] where the court awarded RM80,000 for hemorrhagic contusion of the right temporal and pariental lobes and left thalamus (Plaintiff suffered permanent impairment of concentration, memory, calculation and dextery of the right hand and gait). After considering the submissions of both solicitors, and examine the texts presented, this Court is satisfied that a sum of RM80,000 is appropriate and reasonable for the above injury. 2. Fracture left clavicle. The Plaintiff s solicitor argued that a sum of RM16, 000 is reasonable for the injury based on the Guideline for Awards in Personal Injury Claims. The Defendant s solicitor argued that an amount of RM14,000 is reasonable for this injury based on the case of Deevan a/l Naraisiah v Suresh Ramasamy Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page

6 After considering the submissions of both solicitors, and examine the texts presented, this Court is satisfied that a sum of RM16,000 is appropriate and reasonable for the injury. 3. Loss of smell in both nostrils. The Plaintiff s solicitor argued that a sum of RM40, 000 is reasonable for the injury based on the Guideline for Awards in Personal Injury Claims and the case of Shah Efendy b Ahmad v Zainal b Abdullah & Anor [11] 1 PIR [] where the court awarded RM40,000 for total loss of smell for both nostrils. The Defendant s solicitor did not argue for this injury. After considering the submissions of the Plaintiff s solicitor, and examine the texts presented, this Court is satisfied that a sum of RM40,000 is appropriate and reasonable for the injury. 4. Loss of taste. The Plaintiff s solicitor argued that a sum of RM40, 000 is reasonable for the injury based on the Guideline for Awards in Personal Injury Claims Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page 6

7 The Defendant s solicitor did not argue for this injury. After considering the submissions of the Plaintiff s solicitor, and examine the texts presented, this Court is satisfied that a sum of RM40,000 is appropriate and reasonable for the injury.. Scars. - cm long right parietal scalp scar - 4 cm scar at the anterior aspect of his neck The Plaintiff s solicitor argued that a sum of RM,000 is reasonable for the multiple scars based on the following cases: (a) Er Siew Keng v Eng Thiang Lai [1990] BLD (Apr) para 332 where the court awarded RM14,000 for scars. (b) See Gim Tin v Gapalan Chandran [1996] Mallal s Digest para 992 where the court awarded S$,000 for scars. The Defendant s solicitor argued that the amount of RM,000 is reasonable for the scars. After considering the submissions of both solicitors, and examine the texts presented, this Court is satisfied that a sum of RM, 000 is appropriate and reasonable for this injury Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page 7

8 Costs. 12. I also allow costs as the scale of costs in the Court Rules Interest. To award interest is at the discretion of the Court. In this case, the delay in filing suit and obtaining judgment is not caused by the defendant. Therefore, there is no reason for the Court to impose a penalty in the form of interest on the Defendant. Thus, the interest is not allowed. However the Court allows late payment penalty (ta widh) on the rate of RM0 per month from the date of judgment until full payment. Dated the 9th. April 13 Haji Jamaludin bin Haji Mat Hakim, Mahkamah Sesyen 4, Kuantan Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page 8

9 Solicitors: Norhazira binti Ahmad from Messrs. K.H.Lee & Sim for the Plaintiff. Malligah Suppiah from Messrs. Othman Hashim & Co. for the Defendants. 11 words Ahmad Fitri bin Mansor v Alias bin Hassan & 1 Lagi 9/4/13 Page 9