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2013 DIGILAW 770 (BOM)

Filomena Andrade v. Ganasham Xanu Arlekar

2013-04-04

U.V.BAKRE

body2013
Judgment: Parties were put to notice that the appeal would be disposed of at the admission stage itself. 2. Heard Mr. Keni, learned counsel on behalf of the Appellant and Mr. Joshi, learned counsel on behalf of the Respondent. 3. This appeal arises out of the Judgment and Award dated 31/7/2012 passed by the Motor Accident Claims Tribunal, Panaji in Claim Petition No. 46/2009, filed under Section 166 of the Motor Vehicles Act 1988. 4. Case of the appellant was that on 24/10/2008 at about 9.30 a.m., when she was returning home after attending Mass at Archbishop's House at Altinho and while she was walking on the pavement in front of that building, near All India Radio building (Akashwani Kendra), a dash was given to her by TVS Victor motorcycle bearing registration no. GA-03-A-1375, ridden by the respondent, rashly and negligently, due to which she sustained grievous injuries, resulting into permanent disablement. She had filed the claim petition claiming total compensation of Rs.1,00,000/-. 5. Before the Claims Tribunal, the appellant examined herself as AW.1, Dr. Shivanand Bandekar as AW.2, Head Constable, Shri N. Thakur as AW.3, P.S.I., Shri Tushar Lotlikar as AW.4 and another P.S.I, Shri Vijaykumar Chodankar as AW.5. The respondent examined himself as RW.1. 6. The learned Claims Tribunal, upon analysis of the entire evidence on record, concluded that the accident had occurred due to the rash and negligent riding of a Motorcycle by its rider. It has been held that the claimant is entitled to total compensation of Rs. 30,000/-. However, the Claims Tribunal further held that the claimant failed to prove that the respondent or his motorcycle was involved in the accident, due to which the claim petition came to be dismissed. The said claimant has filed this appeal. 7. The learned Counsel for the parties were directed to first address the Court on the point of involvement of the respondent and his vehicle, as that was the point which led to the dismissal of the claim petition. 8. Mr. Keni, learned counsel appearing on behalf of the appellant, submitted that the appellant, in the Claim Petition as well as in her affidavit-in-evidence, has stated that the respondent was the rider of the said TVS scooter bearing no. GA-03-A-1375, which caused the accident. According to him, to support this case of the appellant, there is strong circumstantial evidence on record. Keni, learned counsel appearing on behalf of the appellant, submitted that the appellant, in the Claim Petition as well as in her affidavit-in-evidence, has stated that the respondent was the rider of the said TVS scooter bearing no. GA-03-A-1375, which caused the accident. According to him, to support this case of the appellant, there is strong circumstantial evidence on record. He pointed out from the evidence of the Investigating Officer namely AW.5 that while the case was under investigation, the Special Judicial Magistrate was requested to hold Test Identification Parade and summons was issued to the respondent to attend the office of the Special Judicial Magistrate for said identification parade, but the respondent did not attend and this shows his guilty conscious conduct. He further pointed out that by letter dated 17/3/2009, the claimant had informed the police that it was the respondent who was riding the said T.V.S. motorcycle which caused the accident. He submitted that AW.5 has denied that there were no damages to the said T.V.S. motorcycle. He lastly submitted that the claimant i.e the appellant had no rivalry with the driver i.e. the respondent and there was no reason to falsely implicate him in the case. He, therefore, submitted that the appellant has duly proved that it was the respondent who had caused the accident, by means of his TVS Motorcycle. 9. On the contrary, Mr. Joshi, learned counsel appearing on behalf of the respondent submitted that the alleged accident had occurred on 24/10/2008 and F.I.R. was registered on 30/10/2008 against unknown person. He submitted that the evidence of AW.3 and the complaint filed by him, on behalf of the State, reveals that the appellant had given statement, while in Goa Medical College Hospital, that an unknown person had given gash of motorcycle to her and the name of the respondent surfaced only after about 4 to 5 months i.e. on 17/3/2009. Attention of this Court was invited to the evidence of all the Investigating Officers namely AW.3, AW.4 and AW.5, which reveals that there was no eye witness to the accident and even the criminal case, which was against unknown person, was closed as “A final”. Attention of this Court was invited to the evidence of all the Investigating Officers namely AW.3, AW.4 and AW.5, which reveals that there was no eye witness to the accident and even the criminal case, which was against unknown person, was closed as “A final”. He pointed out that the Investigating Officer (AW.5) has clearly admitted that the appellant had not disclosed the identity of the Motorcycle rider or the registration number of the Motorcycle and even the other details, at the time of her statement. He further submitted that as per the evidence of AW.5, there was no evidence and hence the case was closed. According to him, this was a pure hit and run motor accident. He invited my attention to the evidence of respondent (RW.1) wherein he has clearly stated that his TVS Motorcycle was not involved in the alleged accident. He also submitted that there is discrepancy about the spot of accident. He pointed out that neither panchanama of the scene of accident nor the sketch shows the spot of impact or the exact place of the accident. Learned Counsel, therefore, urged that no interference is called for with the impugned Judgment and Award. 10. Records and proceedings were called for. 11. I have carefully gone through the entire record and proceedings. In my considered view, the submissions made by the learned counsel for the appellant are not acceptable. 12. It is proved that the accident had occurred due to the rashness and negligence of the rider of a Motorcycle. Admittedly, the TVS Victor Motorcycle bearing registration no. GA-03-A-1375 belongs to the respondent and it was not insured. If the said vehicle was involved in the said accident, then as owner thereof, the respondent would be liable to pay compensation. 13. The main point that emerges for determination is, therefore, whether the said TVS Victor Motorcycle bearing No. GA-03-A-1375, was the vehicle involved in the accident, on 24/10/2008 at about 9.30 a.m., in which the appellant sustained grievous injuries resulting into permanent disablement. 14. Admittedly, though the accident had occurred on 24/10/2008, however, the F.I.R. was registered after six days, on 30/10/2008, against an unknown person and the injured appellant, while under treatment, in Goa Medical College Hospital, had given a statement to AW.3, wherein she stated that the rider of the Motorcycle was not known to her. 14. Admittedly, though the accident had occurred on 24/10/2008, however, the F.I.R. was registered after six days, on 30/10/2008, against an unknown person and the injured appellant, while under treatment, in Goa Medical College Hospital, had given a statement to AW.3, wherein she stated that the rider of the Motorcycle was not known to her. It is revealed that she did not even know the particulars of the rider of said two wheeler, and also did not know the registration number and other details of the said Motorcycle. According to AW.3, the appellant did not tell him that she would subsequently report about the said details. AW.4 had recorded the statement of one Ms. Rita Dias who was listed as an eye witness by the appellant. According to AW.4, said Rita Dias stated that she had not seen the accident. AW.5 has admitted that the appellant had neither disclosed the identity of the Motorcycle rider nor the registration number of the Motorcycle or other details, at the time of giving statement. Panchanama of the scene of accident and sketch were drawn at the alleged spot of accident, on 24/10/2008. Admittedly, no vehicle was found at the spot. Panchanama and the sketch are nil and useless for all purposes. 15. Though the Investigating Officer, namely AW.5 has stated that letter was made to the RTO on 17/3/2009 for inspection of the vehicle and that it was inspected on 24/3/2009, however, neither the said RTO has been examined nor the inspection report has been produced on record. Though, AW.5 has denied that there were no damages to the Motorcycle, however, the appellant has not produced any evidence to establish that the said T.V.S. Victor Motorcycle bearing no. GA-03-A-1375 had sustained any damages. AW.1 has not stated that any damage was sustained by the Motorcycle. DW.1 has specifically stated in his affidavit-in-evidence that his TVS Motorcycle bearing registration no. GA-03-A-1375 did not have any damages or scratch marks when the same was inspected by the Motor Vehicles Inspector. In the cross-examination of RW.1, there are no suggestions put to him regarding any damages sustained by the said vehicle. There is only a general suggestion that the contents of his affidavit from paragraphs 1 to 8 are false and incorrect, which suggestion has been denied by RW.1. 16. In the cross-examination of RW.1, there are no suggestions put to him regarding any damages sustained by the said vehicle. There is only a general suggestion that the contents of his affidavit from paragraphs 1 to 8 are false and incorrect, which suggestion has been denied by RW.1. 16. As has been rightly submitted by the learned Counsel for the respondent, even there is discrepancy about the exact spot of accident. AW.1 says that the accident had occurred on the pavement in front of the All India Radio building (Akashvani Kendra) whereas according to AW.5, the accident took place on the road near All India Radio, Altinho and not on the pavement. 17. All the Investigating Officers namely AW.3, AW.4 and AW.5 have clearly stated that efforts were made to locate the eye witnesses, but none was found. As against the evidence of the appellant(AW.1), on one side, to the effect that it was the respondent who had caused the accident, there is evidence of respondent (RW.1) himself, on the other side, which clearly reveals that he was not involved in the said accident and that his T.V.S. Motorcycle bearing no. GA-03-A-1375 never dashed the appellant. The investigation could not culminate into filing of chargesheet against the respondent, but it ended in filing “A Final” summary report before the learned Judicial Magistrate First Class. 18. There is no explanation as to how and from where the appellant, on 17/3/2009, i.e. after about 4 to 5 months from the date of the accident, came to know that the Motorcycle involved in the accident was TVS bearing no. GA-03-A-1375 owned and ridden by the respondent. Considering the evidence of the appellant and of the respondent along with other evidence on record, I have no hesitation to hold that the learned Claims Tribunal has rightly held that the appellant has failed to prove that the respondent or his motorcycle was involved in the accident. The circumstances pointed out by the learned Counsel for the appellant do not help the appellant to prove her case regarding the involvement of the respondent and his vehicle. This happens to be a pure hit and run motor accident, arising out of the use of a motor vehicle, the identity whereof could not be ascertained, though efforts were made, for that purpose. 19. This happens to be a pure hit and run motor accident, arising out of the use of a motor vehicle, the identity whereof could not be ascertained, though efforts were made, for that purpose. 19. In view of the above, I do not find it necessary to go into the other aspects as far as the quantum of compensation, is concerned since the claimant/appellant is not entitled to any relief, for reasons stated above. 20. In the result, the appeal is dismissed, however, with no order as to costs.