1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.28 OF 2003 Shri Shridhar Anant Prabhu Gaonkar, son of late Anant Prabhu Gaonkar, 39 years of age, occupation service, married, resident of Ho sue no.189, Kevona, Rivona, Taluka Quepem,Goa. .... Appellant V e r s u s 1. Shri Subhash Bodko Naik, driver, r/o. H.No., not known, Shigao, Collem-Goa. 2. Shri Venkatesh Sukdo Desai, owner, r/o. H.No.256, Bimbol, Collem-Goa. 3. New India Assurance Company Ltd., Jagnath Bldg., J.I. Loyola Road, Near Railway Gate, Margao-Goa. ..... Respondents. Mr. S.S. Kakodkar, Advocate for the Appellant. Respondents though served are absent. CORAM: A. P. LAVANDE, J. DATE: 2ND SEPTEMBER, 2010. ORAL JUDGMENT: By this appeal, the appellant/claimant takes exception to the Award dated 30/09/2002 passed by the Presiding Officer, Motor Accident Claims Tribunal, South Goa,Margao, in Claim 2 Petition No.38/1996. 2. Briefly, the facts relevant for disposal of the present appeal are as under: Claimant filed Claim Petition No.38 of 1996 before the Motor Accident Claims Tribunal, South Goa at Margao claiming compensation of Rs.2.00 lakhs from the Respondents. According to the Claimant on 30.9.1995, he was proceeding on his motorcycle no.GDJ-1490 from Curchorem to Rivona at a moderate speed and truck bearing no.GA-02-T/7224 driven by Respondent no.1, owned by Respondent no.2 and insured with Respondent no.3 dashed against his motorcycle, due to which the claimant suffered compound and multiple fractures to his right wrist and fingers causing him permanent disability. 3. The Respondent nos.1 and 2 filed written statements resisting the claim of the Claimant and stated that the Claimant was riding his motorcycle without light and was coming in opposite direction and after crossing the truck, he dashed against the right side rear wheel and sustained injuries. On the basis of the pleadings, the Tribunal framed the following issues: 3 i) Whether the claimant proves that accident took place on account of rash and negligent driving of truck No.GA-02- T-7224 by Respondent no.1? ii) Whether the claimant proves that on account of the said accident the claimant suffered multiple fractures to right hand wrist and fingers? iii) Whether the claimant proves that the claimant is entitled to claim compensation of Rs.2.00 lakhs? iv) What order? 4. In the claim petition, the claimant examined himself and Rajanikant Naik,CW.2 claiming himself to be an eye witness. He also examined Dr. U. Nachinolkar, CW.3 to prove permanent disability suffered by him and A.S.I Sadanand Raut Dessai- CW.4. who at the relevant time, was attached to Quepem Police Station. According to CW.4, he had filed charge-sheet against the Respondent no.1 in connection with the accident in question. The respondent nos.1 and 2 examined themselves in defence. 5. The Tribunal held that claimant had not proved that the accident had taken place on account of rash and negligent 4 driving of the truck by Respondent no.1. The Tribunal further held that the claimant had proved that he had suffered multiple fractures to his right hand and fingers on account of the accident. The Tribunal further assessed the compensation at Rs.85,000/-. 6. Mr. Kakodkar, learned counsel appearing for the appellant/claimant submitted that the claimant had proved that the respondent no.1 was driving the truck in a rash and negligent manner which resulted in accident causing serious injuries to the claimant. He further submitted that the finding given by the Tribunal that the claimant had not proved rashness and negligence is contrary to the evidence on record and, as such, the impugned judgment and order dismissing the claim petition deserves to be quashed and set aside. He further submitted that the compensation granted in favour of the claimant is quite on the lower side and considering the facts and circumstances of the case, the claimant is entitled to compensation of Rs.2,00,000/-. In the alternative, Mr. Kakodkar submitted that even assuming that there was some negligence on the part of the claimant, this is a case of contributory negligence and as such, the claimant deserves to be granted adequate compensation. He, therefore, submitted that he impugned 5 judgment and order be quashed and set aside, and the appeal be allowed. 7. Though the Respondents have been served, they have chosen not to put in appearance. 8. In order to prove rashness and negligence on the part of Respondent no.1, the claimant examined himself,(CW.1), Mr. Rajnikant Naik (CW.2) and Mr. Sadanand Raut Dessai, A.S.I. (CW.4). 9. The Claimant reiterated his case set up in the claim petition and deposed about the injuries suffered by him and the expenditure incurred by him on account of the accident. In his examination -in -chief, he stated that he was proceeding on his side of the road and that a truck coming from the opposite direction came to his side and gave a dash on his motorcycle. In the cross examination, he denied that the head-light of his motorcycle was not working. He denied that it was dark at that time. He also denied that he hit the rear right wheel of the truck. 6 10. Mr. Rajanikant Naik, (CW.2), who claimed to be an eye-witness to the accident stated that the accident took place in between Sanvordem and Tilamol at a place known as “Tanki”. According to the witness, he was driving the truck and coming from Sanvordem, behind the claimant. There was another truck coming from the opposite direction at a distance of about 100 metres behind the motorcycle. He could not state what was the speed of the truck, on account of the distance. He claimed that he had taken the claimant to the Margao hospital. He also claimed that the accident had taken place at about 6.30.p.m. In cross- examination, he stated that he could not state which part of the truck had dashed the motorcycle driven by the claimant, on account of the distance between the two vehicles. He also claimed that the accident had taken place in December. To the suggestion that the claimant had hit the rear tyre of the truck, the witness answered that because of the distance he could not see. 11. Mr. Sadanand Raut Dessai, produced Panchanama (Exhibit 37) which was drawn by him as well as the sketch (Exhibit 34). He identified his signature. He did not depose as to the contents of the panchanama or the sketch. 7 12. Mr. Subhas Naik, Respondent no.1 and Mr. Venkatesh Sukdo Dessai, Respondent no.2 deposed in consonance with the written statement filed by them. Respondent no.1 in addition stated that there were two women who were proceeding on the left of the road in the direction of Sanvordem to Tilamol. According to both these witnesses, the claimant had dashed his motorcycle on the rear wheel and thereafter the claimant fell on the left side of the road. Subash Naik, the driver stated that the point of the impact was correctly shown on the sketch. 13. Close scrutiny of the evidence of the above three witnesses examined by the claimant discloses that the claimant has not been able to establish the exact point of impact between the motorcycle driven by him and the truck driven by respondent no.1. On the contrary, respondent nos.1 and 2 have consistently deposed that the claimant was coming in the opposite direction and dashed against the rear wheel of the truck driven by respondent no.1. Having regard to the sketch which was produced by CW.4 Mr. Sadanand Raut Dessai and admitted to be correct by the driver of the truck, both the vehicles were lying on opposite side of the road, and the motorcycle was at a distance of about 10 metres from the 8 edge of the truck. If this was the position of the two vehicles soon after the accident, the case of respondents appears to be more probable, as compared to the case set up by the claimant. Therefore, the Tribunal was justified in accepting the defence set up by respondent nos.1 and 2 that it was the claimant who dashed his motorcycle against the rear wheel of the truck and, thereafter fell on the road on account of which serious injuries were caused to him. If this position is accepted, it cannot be said that the claimant had proved that respondent no.1 was driving the truck in a rash and negligent manner. Therefore, no fault can be found with the finding given by the Tribunal that the claimant had not proved rashness and negligence on the part of respondent no.1. Therefore, the impugned judgment and order cannot be faulted. 14. Since the claimant himself was rash and negligent in driving the vehicle and dashed his vehicle against the rear tyre of the truck, it cannot be said to be a case of contributory negligence. Therefore, I am unable to accept the argument of Mr. Kakodkar that this was a case of contributory negligence. 15. In view of the above finding regarding rash and 9 negligent driving of the vehicle by the claimant, it is not necessary to deal with the submission of Mr. Kakodkar regarding inadequacy of the compensation granted. 16. In the result, therefore, I find no merit in the present appeal. Consequently, the appeal stands dismissed with no orders as to costs. A.P. Lavande, J. Ap/-