Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1103 (BOM)

Madhavi G. Amonkar v. Cristeu Dias

2014-05-02

Z.A.HAQ

body2014
Judgment : 1. The appeal arises out of the order passed by the Motor Accident Claims Tribunal for the Taluka of Salcete at Margao in Claim Petition on 12.06.2008, by which this claim petition filed by the appellant is rejected with costs, mainly on the ground that the appellant has failed to prove the involvement of the respondent no. 1 and his vehicle in the accident. 2. The case of the claimant, aged about 40 years at the time of the accident, is that while walking on the katcha road facing Betalbatim, the respondent no. 1 gave a dash while riding his motorcycle rashly and negligently because of which she sustained injuries. 3. The case of the respondent no. 1 is that the accident has not occurred because of the dash given by him as alleged by the appellant. According to the respondent no. 1, some other vehicle had given a dash because of which she fell unconscious on the road and he had taken the appellant to the hospital. According to the respondent no. 1, when he went to the hospital, he had parked the vehicle by the side of the road and when he came back from the hospital, he came to know that the vehicle was taken by the police and then he had gone to the police station and he came to know that the First Information Report was lodged against him. The respondent no. 1 denies the involvement of the vehicle in the accident. 4. Shri Kakodkar, learned Advocate for the appellant submitted that the Tribunal has committed an error in recording the finding that the accident had not occurred due to the vehicle driven by the respondent no. 1. The learned Advocate has submitted that the appellant has stated in her evidence that the respondent no. 1 while riding TVS Suzuki motorcycle bearing no. GA-02/T-0443 gave her a dash because of which she fell on the ground and sustained injuries. The learned Advocate submitted that in the evidence of the appellant she has stated that the respondent no. 1 had lost control of the motorcycle due to rash and negligent riding. It has come in the cross examination of the appellant that she was familiar with the face of the respondent no. 1 as he used to pass by her house regularly. 1 had lost control of the motorcycle due to rash and negligent riding. It has come in the cross examination of the appellant that she was familiar with the face of the respondent no. 1 as he used to pass by her house regularly. The learned Advocate for the appellant has relied on the First Information Report against the respondent no. 1 and the prosecution of the respondent no. 1 and has submitted that it shows the involvement of the respondent no. 1 and his motorcycle in the accident. The learned Advocate for the appellant has pointed out the statement of Smt. Rosita Pinto, aged about 73 years, to the effect that the respondent no. 1 was riding the motorcycle in a fast speed and he lost his control and dashed the motorcycle to the appellant, because of which she fell on the ground. It has come on the record that Smt. Rosita Pinto is the neighbor of the appellant. The learned Advocate for the appellant has further pointed out the panchanama (Exhibit no. 20) which is at page no. 40 of the paper book which shows that vehicle was seized from the spot of the accident between 17:00 to 17:30 hours on 27.02.2002. The submission on behalf of the appellant is that the material on the record shows the involvement of the respondent no. 1 and the motorcycle in the accident and the findings of the Tribunal are contrary to the material on the record. The learned Advocate for the appellant has relied on the following judgments: (i) Dulcina Fernandes and Others Vs. Joaqum Xavier Cruz and Another reported in [2014 (1) Goa L.R. 66 (SC)]; (ii) Kusum Lata and Others Vs. Satbir and Others, reported in ( AIR 2011 SC 1234 ) and (iii) New India Assurance Co. Ltd. Vs. Keshaorao Manikrao Mete and Others, reported in [2010 (6) ALL MR 747. Shri Kakodkar, learned Advocate for the appellant has submitted that strict proof of the evidence as in criminal case is not applicable in the proceedings before the Tribunal and these proceedings are to be decided on the preponderance of probabilities. It is submitted that the presence of the respondent no. Shri Kakodkar, learned Advocate for the appellant has submitted that strict proof of the evidence as in criminal case is not applicable in the proceedings before the Tribunal and these proceedings are to be decided on the preponderance of probabilities. It is submitted that the presence of the respondent no. 1 at the time of the accident and the seizure of the motorcycle from the spot of the accident is undisputed and the respondents have not brought anything on the record in the cross examination to disbelieve the evidence of Smt. Rosita Pinto and therefore, the order passed by the Tribunal rejecting the claim of the appellant on the ground that the appellant has failed to prove the involvement of the respondent no. 1 in the accident, is unsustainable in law. 5. The learned Advocate for the appellant has submitted that the Tribunal has come to the conclusion that otherwise the appellant would have been entitled to the amount of Rs. 1,65,000/-as compensation which finding is not challenged by the respondents and the appellant having established that accident had occurred due rash and negligent driving by the respondent no. 1, the appellant is entitled for the compensation. 6. Mr. Bharne, the learned Advocate for the respondent no. 1 has submitted that the case which is sought to be made out by the appellant cannot be accepted. The learned Advocate for the respondent no. 1 has pointed out from the cross examination of the appellant that she has stated that the rider of the motorcycle after giving dash, ran away without halting at the spot. The learned Advocate for the respondent no. 1 submitted that this fact which has come on the record shows that a false case is made out against the respondent no. 1. It is submitted by the respondent no. 1 that the evidence of Smt. Rosita Pinto is contrary to the evidence of the appellant and therefore, cannot be believed. The learned Advocate for the respondent no. 1 has relied upon the order of the acquittal passed in criminal case which was lodged against the respondent no. 1. The learned Advocate for the respondent no. 1 has supported the order passed by the Tribunal. 7. Shri Afonso, the learned Advocate for the respondent no. The learned Advocate for the respondent no. 1 has relied upon the order of the acquittal passed in criminal case which was lodged against the respondent no. 1. The learned Advocate for the respondent no. 1 has supported the order passed by the Tribunal. 7. Shri Afonso, the learned Advocate for the respondent no. 2 has submitted that the Tribunal has properly considered the evidence on the record and has rightly rejected the claim petition filed by the appellant. The learned Advocate for the respondent no. 2 has submitted that Panchanama (Exhibit no. 20), on which reliance is placed by the appellant cannot be considered as the First Information Report is registered on 02.03.2002 and the panchanama which is on the record shows that it was drawn on 27.02.2002 and therefore, has no value. Further, the person who has drawn the panchanama and the panchas have not been examined and therefore, the learned Tribunal has appropriately dismissed the appeal. 8. After hearing the learned Advocates for the respective parties and examining the record, following points arise for consideration: (a) Whether the accident had occurred due to the rash and negligent driving of the motor cycle by the respondent no. 1? (b) Whether the appellant is entitled for the compensation and if yes, to what extent? 9. I have considered the submissions made by the learned Advocates for the respective parties. It is undisputed that the respondent no. 1 was present at the spot of accident and the claim on behalf of the appellant is that the respondent no. 1 was driving the vehicle rashly and negligently which gave dash to the appellant. The respondent no. 1 claimed that some other vehicle had given a dash to the appellant and he had stopped to help her. It is further undisputed that the respondent no. 1 had taken the appellant to the hospital. The panchanama (Exhibit-20) shows that it was drawn between 17:00 to 17:30 hours and the motorcycle of the respondent no. 1 was seized. The evidence of the respondent no. 1 shows that after taking the appellant to the hospital he had returned to the spot of the accident at 13:00 hours and at that time he found that the motorcycle was not on the spot and then he was informed that it was taken to the police station. Thus, it is undisputed that the motorcycle of the respondent no. 1 shows that after taking the appellant to the hospital he had returned to the spot of the accident at 13:00 hours and at that time he found that the motorcycle was not on the spot and then he was informed that it was taken to the police station. Thus, it is undisputed that the motorcycle of the respondent no. 1 was seized by the police. It is undisputed that the motorcycle was insured with the respondent no. 2-Insurance Company. It is the settled law that the claim petition has to be decided on the preponderance of probabilities and the strict proof of evidence is not applicable to the claim petitions under the Motor Vehicles Act which is a beneficial legislation. The Hon'ble Supreme Court in the case of Kusum Lata and Others (supra) has dealt with similar case and recorded the finding in paragraph-7 holding the driver of the vehicle responsible for the rash and negligent driving by examining the probabilities of the case. The appellant is further supported by judgment of Dulcina Fernandes and Others (supra). Moreover, the defence of the respondent no. 1 that he had taken the appellant to the hospital and then came to the spot at 13:00 hours and found that the motorcycle was not there, is falsified by the panchanama (Exhibit no. 20) which shows the time of seizure of the motorcycle as between 17:00 – 17:30 hours. 10. Therefore, I hold that accident has occurred due to rash and negligent driving of the motorcycle by the respondent no. 1 because of which the appellant has sustained injuries. As far as the injuries sustained by the appellant and medical certificate placed on the record by the appellant are concerned, they are accepted by the Tribunal and the Tribunal has found that the appellant would have been entitled for an amount of Rs. 1,65,000/- as compensation. This finding is not challenged by the respondent no. 1. Therefore, this finding is maintained and it is held that the appellant is entitled for the compensation of Rs. 1,65,000/-. 11. Therefore, the following order: (i) The order passed by the Tribunal is set aside. (ii) The appellant is held entitled for the compensation of Rs. 1,65,000/-. (iii) The appellant is also entitled interest at the rate of 9% per annum from the date of filing of the claim petition till the amount is paid to the appellant. 1,65,000/-. 11. Therefore, the following order: (i) The order passed by the Tribunal is set aside. (ii) The appellant is held entitled for the compensation of Rs. 1,65,000/-. (iii) The appellant is also entitled interest at the rate of 9% per annum from the date of filing of the claim petition till the amount is paid to the appellant. (iv) The appellant is further entitled for the costs throughout to be borne by the respondents. The respondents are liable to pay the amount jointly and severally to the appellant. 12. It is undisputed that amount of Rs. 25,000/- were deposited by the respondent no. 2Insurance Company towards no fault liability. The respondents have not challenged the order directing the amount towards no fault liability. If the contention of the respondents that the respondent no. 1 and his vehicle are not involved in the accident had any substance, the respondents would have challenged the order. 13. The appellant has been paid an amount of Rs. 25,000/- towards no fault liability. This amount has to be deducted from the amount of Rs. 1,65,000/-and interest has to be calculated on the balance amount of Rs. 1,40,000/-. 14. The appeal is accordingly allowed.