Judgment : 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is filed by widow and two sons of the deceased Uttam Gauns alias Kundaikar, who died due to accident on 1st April, 2005. It is not in dispute that the accident occurred on 25th March, 2005 at about 20.10 hours near Sateri Temple. The deceased was riding a TVS Scooty, whilst other vehicle i.e. a motor cycle Suzuki Max-100 was being driven by respondent No.2 Mahesh. 2. Claiming that said motor cycle was being driven in a rash and negligent manner which resulted in the accident, claim under Section 166 of the Motor Vehicles Act came to be filed. 3. The Motor Accident Claims Tribunal, Panaji decided the said Claim Petition No.76/2005 on 28/04/2009. It answered issue No.2 pertaining to accidental death of Uttam, in the affirmative, i.e. in favour of the claimants/appellants. Issue No.3 has been answered in the negative, but then in the process the Tribunal has worked out the total compensation, if payable on the account of the said accident, at Rs.10,73,932/-. The Tribunal, however, answered issue Nos.1 and 4 against the present claimants. While answering issue No.4, it held that the respondent proved that the accident was caused due to rash and negligent driving by the deceased. In answer to issue No.1, it held that the claimants could not establish that on 25.03.2005 at 20.10 hours, at Nagali, Taleigao, respondent No.2 drove the motor cycle in a rash and negligent manner and dashed against TVS Scooty driven by the deceased. 4. In this background, I heard Advocate Shri Bhobe for the claimants and Advocate Shri Timble for respondent No.1-vehicle owner. Appeal, as against respondent No.2, the driver of the motor cycle, has been dismissed on 17.12.2011, in view of the order dated 17.11.2011 passed by this Court. It appears that on that day the appeal was dismissed on account of failure of the appellants to effect service on respondent No.2. 5. In order to explain the situation, learned Counsel for the appellants invited attention to a sketch/map to demonstrate that according to the impugned judgment and award, the deceased travelling from Sateri Temple towards Taleigao i.e. on northern side of west-east road, is found to have entered on wrong side and dashed with the motor cycle proceeding in opposing direction. 5. In order to explain the situation, learned Counsel for the appellants invited attention to a sketch/map to demonstrate that according to the impugned judgment and award, the deceased travelling from Sateri Temple towards Taleigao i.e. on northern side of west-east road, is found to have entered on wrong side and dashed with the motor cycle proceeding in opposing direction. The learned Counsel argues that as the claimants have no knowledge and there is no eye witness, the burden to show absence of any negligence and, therefore, to demonstrate that the motor cycle was being driven with proper care and precaution, was upon respondents No.1 and 2. He further states that admittedly, along with respondent No.2-rider, there was a pillion rider by name Thomas Martins and the respondent, therefore, ought to have produced him as a witness before the Court. As that has not been done, the fact of the deceased expiring in the accident having been established, that by itself entitles the claimants to the award of compensation. He further submits that the respondent disputes the panchanama, as also the sketch produced on record and, therefore, he ought to have produced some documents which could have supported his stand. As the documents produced on record were disputed, the learned Tribunal could not have used those documents to the prejudice of the appellants and on account of failure of the respondent to substantiate due care and caution, the claim as quantified, should have been awarded and recovery should have been permitted from owner and driver of motorcycle. Lastly he submits that though it was a contention of the respondent that the deceased was under influence of alcohol, medical evidence points out otherwise and, as such, apparently there was no reason for the deceased to enter on wrong side of the road. He submits that respondent No.2 himself has admitted that the Scooty can have maximum speed of 35-40 Km./hour, and in this situation, looking to the nature of the accident in which both the riders were thrown away from their respective vehicles, it follows that only vehicle which could have been driven in a rash and negligent manner, was the motorcycle. He further adds that the person driving the motorcycle did not possess and did not have a driving licence and similarly, the motor cycle was also not insured. He further adds that the person driving the motorcycle did not possess and did not have a driving licence and similarly, the motor cycle was also not insured. As such, there is breach of the provisions of Section 3, Section 5 and Section 146 of the M.V. Act. In this situation, according to learned Counsel, in view of violation of statutory provisions and the argument advanced by him, the trial Court ought to have answered the claim in the affirmative and permitted recovery. 6. Advocate Shri Timble, on the other hand, points out that the appeal is being heard by this Court against respondent No.1, the vehicle owner. He, at the most, can be held to be vicariously liable for negligence on the part of respondent No.2. The MACT has found respondent No.2 not rash and negligent and, as such, that finding cannot be interfered with by this Court in the present appeal in absence of respondent No.2. He points out that the appeal has been dismissed against respondent No.2 by this Court about a year and half back and no steps have been taken to get it restored. He contends that as such, the finding recorded in favour of respondent No.2 has attained finality and hence, vicariously, respondent No.1-vehicle owner, cannot be held responsible. He further states that the MACT has answered issue No.4 specifically in favour of the respondent, thereby holding that the deceased was driving his scooty in a rash and negligent manner. He invited attention to the evidence which shows that the Scooty entered on wrong side and dashed the motor cycle. He contends that this evidence has been used by the MACT to answer the said issue against the deceased Uttam and, therefore, it cannot be said that there was no material on record before the MACT. The finding as recorded, therefore, cannot be labelled as either erroneous or perverse. According to him, the police had registered an offence, but “A” summary was required to be filed. He submits that thus, the evidence of pillion rider Thomas Martins was also not in favour of the claimants, otherwise, there was no need of “A” summary. He contends that in this situation, if the said Thomas Martins needed to be examined, the appellants could have very well summoned him. He submits that thus, the evidence of pillion rider Thomas Martins was also not in favour of the claimants, otherwise, there was no need of “A” summary. He contends that in this situation, if the said Thomas Martins needed to be examined, the appellants could have very well summoned him. He further argues that the spot panchanama or the sketch has been objected to only because the same did not reveal the correct position at the time of the accident. The absence of insurance or absence of driving licence is not shown to have contributed, in any way, to the accident and, as such, the absence of either insurance or driving licence with respondent No.2 is not a circumstance in favour of the claimants. He, therefore, prays for dismissal of the appeal. 7. A short point which falls for consideration before this Court is, whether the claimants have proved that on 25th March, 2005 at 20.10 hours respondent No.2 drove the motor cycle in a rash and negligent manner and dashed against the TVS Scooty driven by Uttam Gaus? 8. Admittedly, there is no other eye witness to the accident. Respondent No.1 is the vehicle owner was not present at spot. Respondent No. 2 rider of the motor cycle has entered the witness box. The evidence of the rider shows that the Scooty coming from the opposite direction entered on wrong side and gave dash to the motorcycle. Respondent No.2 has also examined one Sandeep Krishna Naik as an eye witness. This eye witness has also deposed that he witnessed the accident and according to him, the Scooty came from wrong side and gave dash to the motor cycle which was occupied by two riders. He then carried the motor cycle rider and the pillion rider in a rickshaw to hospital. Apart from this, there is no other evidence on record. 9. The MACT has found that the spot of accident was shown by the Head Constable who had not witnessed the accident and on the basis of that information, sketch was prepared and panchanama has been drawn. The MACT, therefore, has rightly found it not proper to rely upon either the panchanama or the sketch. Respondents No.1 and 2 were also justified in pointing out this difficulty. It is the claimants who relied upon that spot panchanama and sketch. The MACT, therefore, has rightly found it not proper to rely upon either the panchanama or the sketch. Respondents No.1 and 2 were also justified in pointing out this difficulty. It is the claimants who relied upon that spot panchanama and sketch. If the said reliance is presumed to be valid, the sketch shows that the spot of the accident is on southern half portion of the road, i.e. on wrong side of the deceased who was proceeding from west to east i.e. from Sateri Temple to Taleigao. Accident, according to the sketch map, has taken place on wrong side and, therefore, it is apparent that the Scooty entered on wrong side. 10. The question, whether the deceased was under influence of alcohol or not is, therefore, not relevant. Similarly, absence of valid insurance for the said motor cycle on the date of the accident, therefore cannot be said to have contributed to the accident. Absence of driving licence with respondent No.2 also cannot be said to have contributed fundamentally to the accident. 11. In this situation, I do not find anything wrong with the findings arrived at by the MACT. The point framed above needs to be answered against the appellants and in favour of respondent No.1. 12. Accordingly, the appeal is dismissed. However, in the circumstances of the case, there shall be no order as to costs.