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2013 DIGILAW 1672 (BOM)

Catrina Fernandes e Gomes v. Anand Sudhir

2013-08-22

U.V.BAKRE

body2013
JUDGMENT: Heard Mr. R. Gawthankar, learned counsel appearing on behalf of the appellant and Mr. V. G. P. Dukle, learned counsel appearing on behalf of the respondents no.1 and 2. 2. This appeal is directed against the judgment and award dated 22/08/2006 passed by the learned Presiding Officer, Motor Accident Claim Tribunal, Margao, in Claims Petition No.39/2003. 3. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said claim petition. 4. The claimant had filed the said petition under Section 166 of the Motor Vehicles Act, 1988, (“The Act,”, for short), claiming total compensation of Rs.3,00,000 lakhs on account of the death of their son, namely, Hanil Ernest Magmel Gomes, in a motor vehicular accident. 5. The case of the claimants, in short, was as follows; On 24/11/2001, at about 4.00p.m., the said Hanil (since deceased) was returning home to Panjorconi Cuncolim from Margao by a Maruti Van bearing no.GA-02/A-4735. The respondent no.1 who was driving the pickup bearing no. GA-02/U-5055, came from the opposite direction at a very fast sped and in a rash and negligent manner and dashed against the Maruti van driven by the deceased, as a result of which the deceased sustained several head injuries and multiple fractures, resulting in his death. 6. The said pick-up driven by the respondent no.1 was not insured as on the date of the accident. 7. The respondent no.1 who was the driver of the said pickup and respondent no.2 who was the owner of the same, in their written statement denied the case of the claimants. They contended that the accident occurred due to the rash and negligent driving of the deceased driver of the Maruti van. It was stated by them that the respondent no.1 was driving the pick-up on the left hand side of the road leading from Canacona to Margao and when he reached at Chinchinim junction, the deceased came with his maruti van at a fast speed, lost his control over the vehicle, came in a wrong direction and dashed against the pickup driven by respondent no.1. 8. The learned Tribunal framed issues as per the rival contentions of the parties. 9. 8. The learned Tribunal framed issues as per the rival contentions of the parties. 9. The claimants examined, the claimant no.2 Catrina Fernandes E Gomes as CW.1 and Shri Adrian Menezes, a Head Constable of Cuncolim Police Station as CW.2, whereas, the respondents examined respondent no.1, Shri Anand B. Sudhir as RW.1, Shri Vinod Zacharia, one of the panch witnesses for the panchanama of scene of accident and sketch as RW.2 and an eye witness Shri Ashok Patil as RW.3. 10. Upon consideration of the entire evidence on record, the learned Tribunal held that said Hanil Gomes died on account of the said accident. However, the Tribunal held that the claimants could not prove that the accident had occurred on account of the fault of respondent no.1. The Tribunal held that the accident had occurred on account of the fault of the deceased himself. Though, the learned Tribunal worked out the total compensation at Rs.2,02,000/-, however, since the claimants failed to prove that the accident had occurred on account of the fault of the respondent no.1, the claim petition came to be dismissed. 11. The claimant no.2 has filed the present appeal. 12. I have minutely gone through the record and proceedings and also considered the submissions made by the learned counsel for both the parties. 13. The learned counsel appearing on behalf of the appellant submitted that the evidence of RW1 discloses that when he first saw the maruti van driven by the deceased it was at a distance of about 10 metres. He pointed out that the place where the accident had taken place was a straight road. He, therefore, submitted that by not stopping the pickup inspite of having seen the Maruti van, the respondent no.1 has himself showed that he was rash and negligent in driving the pick-up. He further pointed out from the sketch which is part of Exhibit 18 colly that the maruti van had completely turned its direction after the accident and was facing Margao side, whereas, the pick-up had gone off the road. According to the learned counsel for the appellant, from the said position as shown in the sketch, it is revealed that the pick-up driver was at a fast speed and was driving the pick-up rashly and negligently. According to the learned counsel for the appellant, from the said position as shown in the sketch, it is revealed that the pick-up driver was at a fast speed and was driving the pick-up rashly and negligently. In the alternative, the learned counsel for the appellant submitted that since the point of impact is shown on the sketch in the middle of the road, both the parties can be held to have contributed to the accident and that both were equally negligent. 14. On the other hand, Mr. Dukle, the learned counsel appearing on behalf for the respondents submitted that the doctrine of last opportunity is not applicable. He further submitted that the distance of 10 metres was so short that the question of stopping the pick-up did not arise. He pointed out from the sketch that the maruti van is seen on the wrong side of the road, whereas, the pick-up has gone off the road, but on its side. According to him, this itself proves that the maruti van had come on the wrong side and had given dash to the pick-up. The learned counsel further submitted that the respondents besides examining the driver, i.e respondent no.1 had also examined the person who was sitting in the cabin of the pick-up by the side of the driver. According to him, the evidence of RW.1 and RW.2 has not at all been shaken in the cross-examination and that the same is in consonance with the position as shown on the sketch. The learned counsel submitted that the claimants have not pleaded the case of contributory negligence nor have produced evidence in that regard and also not made submissions on that count before the learned Tribunal. He, therefore, urged that there is no merit in the present appeal and that the same deserves to be dismissed. 15. As rightly submitted by learned counsel for the respondents, the doctrine of last opportunity is not in existence now in the country of its origin i.e. England. The place where the accident had taken place was a straight road. The fact that the pick-up was driven from Canacona towards Margao side and it had gone off the road on its left hand side, itself shows that the pick-up was driven from the correct side of the road. The place where the accident had taken place was a straight road. The fact that the pick-up was driven from Canacona towards Margao side and it had gone off the road on its left hand side, itself shows that the pick-up was driven from the correct side of the road. The fact that the maruti van after the accident is found on the right hand side of the road, if one proceeds from Margao to Canacona would show that the same had come on the wrong side. 16. RW.1, the respondent no.1 has produced a copy of the judgment passed by the learned J.M.F.C. in Criminal Case No.281/S/2002/I Addl. as Exhibit 31. The respondent no.1 has been acquitted of the offences under section 279, 337, 304-A of I.P.C. The learned J.M.F.C. has recorded a finding that the respondent no.1 is not proved to be rash and negligent in driving the pick-up. The said judgment at Exhibit 31 reveals that Ashok Patil examined as RW.2 in the Claim petition, was examined in the said criminal case as a sole eye witness and he had not supported the prosecution case. Thus, RW.2 has corroborated his statement given in the said Criminal Case. Merely because, CW.2 , Adrian Menezes, then Head Constable deposed that his inquiry revealed that the accident had occurred on account of the fault of respondent no.1, that is not sufficient to hold that the accident had occurred due to the fault of respondent no.1. 17. RW.1, the driver of the pick-up deposed that he was driving the same in a slow speed and the deceased came at a fast speed in the maruti van, lost his control, came on the wrong side and gave dash of the maruti van to the pick-up. The said evidence has been duly corroborated by RW.3, Ashok, who was sitting in the cabin by the side of RW.1 in the said pick-up, as he was an employee of the goods which were transported by the said pick-up, namely, mushrooms. RW.3, deposed that the respondent no.1 was driving the pick-up in a slow speed and the maruti van came in the opposite direction on the wrong side and dashed against the pick-up. A perusal of the cross-examination of both the above witnesses disclose that they are not shaken and there is nothing to render their testimonies unreliable. RW.3, deposed that the respondent no.1 was driving the pick-up in a slow speed and the maruti van came in the opposite direction on the wrong side and dashed against the pick-up. A perusal of the cross-examination of both the above witnesses disclose that they are not shaken and there is nothing to render their testimonies unreliable. Besides the above, the panchanama of the scene of accident and the sketch at Exhibit 18 colly proved by RW.2, Vinod Zacharia lends support to the testimonies of both the above witnesses. 18. In my view, therefore, the learned Tribunal has rightly held that the accident had occurred on account of the fault of the deceased, Hanil Gomes and not on account of the fault of respondent no.1. 19. The impugned judgment and award insofar as the issue of rashness and negligence of the respondent no.1 is concerned is in accordance with the settled principles of law. Since rashness and negligence is not proved, the claim petition has been rightly dismissed. Therefore, I am not inclined to go into the aspect of the question whether the compensation worked out by the learned Tribunal is just and reasonable or not. 20. In the result, the appeal is dismissed with no order as to costs. 21. The appeal stands disposed of accordingly.