1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.153 OF 2003 Nalini Ramesh Satarkar, Aged 35 years, Married, Resident of Cone, Priol, Ponda- Goa. .. Appellant Versus 1. Shri Shivappa Shidappa Halli, r/o. H.No.B.550,Odlem Bhat, Taleigao, Goa. 2. National Insurance Co. Ltd., Panaji-Goa. .. Respondents. Mr. V. A. Lawande, Advocate for the Appellant. The respondents though served, absent. CORAM :- A. P. LAVANDE, J. Reserved on : 5 th October, 2010. Pronounced : 8 th October, 2010. ORAL JUDGMENT : By this appeal, the appellant takes exception to the judgment and award dated 31st December, 2002 passed by the Motor Accident Claims Tribunal in claim petition No.244/1994 dismissing the claim petition filed by the appellant/ claimant claiming compensation of Rs.2 Lacs on account of injuries sustained by her in an accident. 2 2. According to the claimant, on 19th July, 1994, at about 6.30 a.m. at Farmagudi, Ponda, the claimant along with her daughter and husband were standing and loading the luggage in a tempo, which was on the extreme left of the road as one proceeds from Ponda to Panaji. Respondent no.1 came from opposite direction on the motorcycle in a fast speed and in a rash and negligent manner, came towards the right side of the road and gave dash to the claimant, as a result of which, the claimant fell on ground and sustained grievous injuries. The vehicle driven by respondent no.1 was insured with respondent no.2. The appellant/ claimant filed claim petition claiming compensation of Rs. 2 Lacs against the respondents. 3. Respondent no.1 contested the claim petition. According to him, he was proceeding along with one Kashinath Ramgaunda from Taleigaon to his native place at Bijapur. At about 6.30 a.m., he reached near S.D.P.O.'s office at Farmagudi. He noticed that one pickup was standing on the left side of the road facing towards Panaji side. Respondent no.1 was proceeding at a moderate speed from left side of the road. When he reached near the pickup, he saw a girl along with 3 baskets standing on the right side of 3 the road as one proceeds from Ponda to Panaji. The claimant, who had already put one basket in the pickup was in a hurry to put the other three baskets which the claimant had kept on the right hand side as one proceeds from Ponda to Panaji. Suddenly, the claimant tried to cross the road, as a result of which the claimant came and dashed the right side of respondent no.1 and fell on the ground. Thus, according to respondent no.1, the accident had occurred solely on the ground of negligence of the claimant. Respondent no.2 also denied that the accident had occurred on account of rash and negligent driving of respondent no.1. 4. On the basis of pleadings, the Tribunal framed the following issues : 1. Whether the claimant proves that on 19.7.194 at about 6.30 a.m. she alongwith her husband and daughter were standing and/ or were putting luggage in a tempo on the extreme left side of the road Ponda- Panaji at Farmagudi Circle when Respondent no.1 drove Suzuki vehicle bearing no.GA-01-D-2065 in a rash and negligent manner and dashed it on the claimant knocking her down ? 2. Whether the claimant proves that in the said accident she sustained multiple injuries including fracture of right leg resulting in permanent disability ? 4 3. Whether the claimant proves that she is entitled to a total compensation of Rs.2,00,000/- ? 4. Whether respondent no.1 proves that at the relevant time it was the claimant who suddenly and negligently without looking to her left side that is towards Panaji side tried to cross the road as a result of which she came and dashed on the right side of the motorcycle which respondent no.1 was driving. In other words that the accident was caused solely due to the fault of the claimant ? 5. The claimant examined herself and two witnesses, namely Ramesh Satarkar - CW2 and Ulhas Satarkar - CW3. The respondent did not examine any witness. The Tribunal, upon appreciation of the evidence led by the claimant, held that the claimant herself was negligent and accepted the version of respondent no.1 that the claimant suddenly tried to cross the road. The Tribunal held that the claimant had not been able to establish that it was respondent no.1, who drove the motorcycle in a rash and negligent manner. Consequently, the Claims Tribunal dismissed the claim petition. 6. Mr. Lawande, learned Counsel for the appellant/ claimant submitted that the claimant has been able to establish that it was respondent no.1, who was driving the 5 motorcycle in a rash and negligent manner, and was responsible for the accident and the injuries caused to the claimant. He further submitted that respondent no.1 had taken a specific defence that it was the claimant, who was rash and negligent and he having not stepped in the box to prove his defence, an adverse inference has to be drawn against him. According to Mr. Lawande, evidence of the claimant and her husband Ramesh clearly proves that it was respondent no.1, who was rash and negligent in driving the motorcycle. According to Mr. Lawande, the version of the claimant and her husband, has not been challenged in the cross-examination and, therefore, the Tribunal has erred in dismissing the application. Mr. Lawande further submitted that the claimant cannot be expected to prove the accident by strict proof and the Tribunal ought to have held that it was respondent no.1, who was rash and negligent in driving the vehicle. In support of his submissions, Mr. Lawande relied upon the judgment in the case of Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others; 2009 ALL SCR 1771. 7. As stated above, none appears on behalf of the respondents, though served. 6 8. I have considered the submissions made by Mr. Lawande, learned Counsel for the claimant and perused the record. 9. In view of the findings given by the Tribunal and submissions made by the learned Counsel for the claimant, the following points arise for determination in the appeal : Points for determination. (i) Whether the Tribunal has erred in holding that the claimant herself was rash and negligent and not respondent no.1? (ii) If yes, what compensation the claimant is entitled to ? 10. As stated above, the claimant has examined three witnesses in support of her case. The claimant examined herself and her husband to prove the negligence on the part of respondent no.1. Ulhas Satarkar – CW3 has been examined to prove the expenses incurred by the claimant towards transport charges for going from Cone, Priol to Goa Medical College at Bombolim. 7 11. The claimant in her evidence deposed in consonance with her case set up in the claim petition and stated that respondent no.1, who was coming on motorcycle from Panaji side, lost control of the motorcycle, took his vehicle in the right lane of the road from the left lane and gave dash to her. She produced F.I.R. dated 20th July, 1994 at exhibit CW1/A, scene of offence panchanama and the sketch at exhibit CW1/B Colly as well as attachment panchanama of the motorcycle at exhibit CW1/C. He further deposed that on account of accident, she had sustained multiple injuries causing fracture of tibia of right leg and fracture of ankle of right leg. Her evidence discloses that she was first shifted to I. D. Hospital at Ponda and thereafter to Goa Medical College and Hospital at Bombolim where she was admitted on 19th July, 1994 and discharged on 21st July, 1994. She thereafter followed up medical treatment as an Out Patient. She was again readmitted on 27th October, 1994 and was operated on 28th October, 1994, and discharged on 7th November, 1994. She stated that she was again admitted on 1st March, 1995 for removal of implants of the of tibia and bone grafting of medial malleolus of right ankle and the same was done on 14th March 1995, and she was discharged 8 on 18th March, 1995. She produced medical certificates from Hospital at exhibit CW1/D Colly. She produced disability certificate at exhibit CW1/E Colly. She further claimed that she had spent about Rs.6,660/- towards Taxi charges. She also produced medical bills and claimed that she has spent Rs.3,285:14 towards purchase of medicines and Rs.5,000/- towards nursing and care. In the cross-examination, she claimed that she was at the back side of the pickup at the time of impact. She denied that she was trying to cross the road without taking care to see whether any vehicle was passing on the road and in that process she dashed right hand of the rider of the motorcycle i.e. of respondent no.1. She claimed that her husband was also at the back side of the pickup. She admitted that her house was on the left side while one proceeds from Panaji to Ponda. She stated that loading of the pickup was over and pickup was about to leave. She denied the suggestion that respondent no.1 had not lost his control and had not taken the vehicle on the right side of the road and dashed against her. She further stated that she was next to her husband at a distance of about 2 meters and the distance of the tar road from the place where she was standing was about 1.5 meters. 9 12. Ramesh Satarkar, husband of the claimant also deposed on similar lines in the examination-in-chief and also stated about the injuries suffered by his wife. He claimed that he was standing at a distance of 5 to 6 meters from his wife at the left side of the road facing Panaji at the time of accident. In his cross-examination, he admitted that his statement was recorded before the Ponda Court with respect to the accident. He admitted that in his statement before the Ponda Court, he stated that he was sitting in the pickup and the pickup driver had switched on the engine at the time of the accident. He also admitted that it was possible that he had stated before Ponda Court that rider of the motorcycle did not fall. He denied the suggestion that respondent no.1 did not ride the vehicle in a fast speed or in a rash and negligent manner. He also denied that the accident occurred on account of fault of the claimant. 13. According to the claimant, respondent no.1, who was proceeding from Panaji towards Ponda suddenly came over right side and dashed against the claimant when she was standing at a distance of about 1.5 meters from the pickup. Her husband Ramesh has also deposed in same fashion. However, in the view of the admission in the cross- 10 examination by Ramesh that before Ponda Court he had stated that he was sitting in the pickup at the time of accident, it is difficult to believe that he was an eye-witness of incident. May be that after the incident, he came to know about the same, but his version that he was an eye-witness to the incident, cannot be accepted. What remains is the evidence of the claimant herself. No doubt, she has produced F.I.R., sketch and panchanama, but mere production of the said documents in the absence of proof thereof, does not advance the case of claimant. The version of the claimant that she was standing behind the tempo and suddenly, respondent no.1 came to the right side with the motorcycle and dashed against her, is difficult to be accepted. Moreover, she also claimed that her husband was standing along with her behind the pickup. This statement is difficult to be accepted since in the cross-examination, the claimant's husband admitted that before the Ponda Court he had stated that he was sitting in the pickup and the pickup driver had switched on the engine at the time of accident. In view of the above position, except for the bare statement of the claimant herself, there is no other evidence to establish that it was respondent no.1, who drove his vehicle in a rash and negligent manner. The finding of the Tribunal that the 11 version of the claimant is not probable, cannot be said to be illegal. No doubt, respondent no.1 has not stepped in the box, therefore, an adverse inference has to be drawn against him since he could have given explanation as to how the accident occurred. But the fact remains that the claimant, who had filed the claim petition had to prove the rashness and negligence on the part of respondent no.1 and this burden was always on the claimant. In the case of Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan and another, the Three Judges Bench of the Apex Court reversing the judgment of Bombay High Court held that in a claim petition, the claimant has to prove rashness and negligence in order to make out a case for compensation. The Apex Court held that the concept of owner's liability without any negligence is opposed by the basic principles of law and the proof of negligence remains the linch pin to recover compensation. The ratio of the said judgment is squarely applicable in the present case. The claimant in order to succeed in the claim petition, has to prove rashness and negligence on the part of the driver. Merely because respondent no.1 has not stepped in the box, the same by itself, would not absolve the claimant from discharging her burden of proving rashness and negligence on the part of 12 respondent no.1. In the case of Bimla Devi (supra), the Apex Court held that strict proof of accident cannot be expected from the claimants, who were not present at the occurrence and they have to establish their case on the touchstone of preponderance of probabilities. The ratio of the said judgment does not advance the case of claimant. In the present case, the claimant herself was injured and she was bound to discharge the burden of proving the rashness and negligence on the part of respondent no.1 on the preponderance of probabilities. The claimant has failed to discharge the said burden. Therefore, the judgment and award passed by the Claims Tribunal dismissing the claim petition, cannot be faulted. 14. For the reasons aforesaid, I do not find any merit in the present appeal. Therefore, the same stands dismissed with no order as to costs. A. P. LAVANDE, J. SMA