1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 216 OF 2004 1. Smt. Dulcina Fernandes, widow of late Nicolau Fernandes, aged 41 years. 2. Miss Sara Fernandes, daughter of late Nicolau Fernandes, aged 20 years. 3. Miss Sunita Fernandes, daughter of late Nicolau Fernandes, aged 18 years. 4. Miss Smantha Fernandes, daughter of late Nicolau Fernandes, aged 12 years, minor, represented herein by her natural guardian Smt. Dulcina Fernandes-Appellant No.1 above named. All above residents of Houe No. 99, Ilha de Rachol, Salcete Goa. .... Appellants V/s 1. Joaquim Xavier Cruz, son of Sebastiao D'Cruz, r/o of house no. 729, Ganapoga, V.P. Raia, Salcete Goa, (owner cum driver of pick up bearing registration number GA 02-T-6312). 2. The New India Assurance Company Ltd., Margao Divisional Office, Jaganath Building, near Railway Gate, Margao Goa. ... Respondents Mr. S.S. Kakodkar, Advocate for the Appellants. None for the Respondents. CORAM : A.P. DESHPANDE & N.A. BRITTO, JJ. 2 DATE :14 th NOVEMBER, 2008 JUDGMENT : (Per N.A. BRITTO, J.) This is claimants' appeal and is directed against the award dated 20/07/2004 of the learned MACT (Motor Accident Claims Tribunal), Margao by which their claim for compensation filed under Section 166 of the Motor Vehicles Act, 1988 has been dismissed. 2. There is no dispute that the accident took place involving two vehicles on 29/06/1997 at about 2 p.m. on Margao-Ilha de Rachol road. The vehicles involved were a scooter and a pickup. The scooter was driven by Nicolau Fernandes. The claimants are the widow and the children of the said Nicolau Fernandes. Respondent no.1 is the driver of the said pickup. 3. The case of the claimants is that at the time of accident the said Nicolau Fernandes was driving the said scooter along with a pillion rider by name Rosario Antao and they were proceeding to their village at Ilha de Rachol and on reaching Santimol junction, the said pickup came from opposite direction, driven in a rash and negligent manner and respondent no.1 seeing the scooter driven by the said Nicolau Fernandes tried to avoid the accident by taking a cut. However, the rear mudguard of the pickup hit the scooter, as a result of which the said Nicolau Fernandes as well as the said Rosario Antao fell off from the scooter and suffered injuries. There is no 3 dispute that the said Nicolau Fernandes died subsequently on 1/07/1997 at 11.10 p.m. 4. On the other hand, it was the case of respondents that the accident did not occur due to the fault of respondent no.1. It is the case of the respondents that the accident took place on account of the fault of scooter driver, the said Nicolau Fernandes who was riding the scooter under the influence of liquor and it is he who was rash and negligent and who came on the wrong side of the road with fast speed and dashed against the parked pickup of respondent no.1 causing damage to the same. 5. The learned trial Court framed 4 issues. The claimants examined two witnesses in support of their claim of rash and negligent driving by respondent no.1 namely Benito Vaz/CW3 and Anastasio J. Colaco/CW4. Admittedly, Dulcina Fernandes/CW1 is the widow of the deceased scooter rider who had not seen the accident but who had produced several documents including the station diary entry, the complaint, the panchanama, the sketch and the post mortem report of the deceased. To prove the said panchanama and the sketch, the claimant had examined Shri Talekar/CW2, the Head Constable who had prepared the same. Anastasio J. Colaco/CW4 was examined to prove the income of the deceased. 4 6. The learned MACT came to the conclusion that the presence of Benito Vaz/CW3 at the scene of accident was doubtful, as he had categorically stated that it is the said Rosario Antao who was driving the scooter and not the deceased and his evidence was contrary to the claim set up by the claimants. The learned MACT found that his evidence was not at all convincing. The learned trial Court also found that the claimants had not examined the said Rosario Antao who was a pillion rider and who was the material witness for the claimants and in the absence of his examination adverse inference had to be drawn against the claimants. The learned MACT assessed the compensation payable at Rs. 6,66,041.78 but further held that the claimants would have been entitled to the same only in case they had proved that accident had taken place on account of fault of respondent no.1 and since the respondents had proved that it is the deceased Nicolau Fernandes who was driving his scooter in a rash and negligent manner under the influence of liquor, and dashed against the pickup which was stationary, the claimants were not entitled to recover any compensation from the respondents. 7. Shri Kakodkar, the learned Counsel on behalf of the claimants has submitted that the claimants had examined two eye witnesses in support of their case whose evidence the learned MACT has failed to consider. Learned Counsel further submits that the accident had taken place between two 5 moving vehicles and therefore at least a case of contributory negligence ought to have been held as proved against the respondents. Learned Counsel further submits that the learned MACT was not justified in drawing adverse inference against the claimants for non-examination of said pillion rider as there could have been many reasons for his non-examination including that he was not available at the time of the trial of the claim petition. Learned Counsel further submits that there was no medical certificate produced nor the autopsy report disclosed that the deceased had consumed alcohol and therefore the conclusion that the deceased had driven the scooter under the influence of alcohol is unjustifiable. Learned Counsel further submits that the learned MACT also ignored the fact that respondent no.1 was prosecuted by the police by filing a charge sheet. However, learned Counsel was unable to make any submission as to the outcome of the said criminal case filed against respondent no.1. Learned Counsel further submitted, relying upon the case of N.K.V. Bros. (P.) Ltd., V/s. M. Karumai Ammal & Ors. etc. (AIR 1980 SC 1354) that the learned MACT ought to have taken special care to ensure that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Relying on Pushpabai Parshottam Udeshi & Ors. V/s. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. & Anr. (AIR 1977 SC 1735) the learned Counsel has submitted that the case could have been decided at least on a principle of res ipsa loquitur. 6 8. We are not at all impressed with the submissions made by the learned Counsel on behalf of the claimants. The claimants failed to produce the best available evidence and that would have been of the said Rosario Antao who admittedly was the pillion rider on the scooter driven by the deceased. The claimants chose not to examine him and gave no explanation for his non- examination and in such a situation the learned trial Court could not at all be faulted in drawing adverse inference against the claimants for his non- examination. Similarly, the learned trial Court also could not be faulted in discarding the evidence of Benito Vaz/CW3 who consistently stated that it was the said Rosario Antao who was driving the scooter and the deceased Nicolau Fernandes was sitting at the back. Learned Counsel on behalf of the claimants has submitted that because of the said solitary mistake made by him his entire evidence could not be discarded. However, we are of the view that that solitary mistake goes to the very root of the evidence and discloses that he has not at all seen the scooter being driven or the accident and did not know any facts of the case at all. The learned trial Court could not be faulted in discarding his evidence. The evidence of Francis Cardozo/CW5, to which the learned MACT made no reference, does not take the case of the claimants any further. He has categorically stated that he saw the accident only with the impact and he did not know the reason why the said accident had taken place. It appears that he was at a tea shop near about the place where the accident took place. He had further stated that he did not know how the 7 pickup stopped, whether by application of breaks or with the force of the impact. His evidence clearly shows that he had not seen the accident prior to the impact and, as such, he was not in a position to say whether the pickup was stationary, as is the case of the respondents, or was moving as it is the claim of the claimants. On the other hand, the respondent no.1 had given evidence and had stated that he had parked his pickup at Santimol, Raia and was getting down from the pickup and at that time the scooter came from opposite direction and dashed on the back side of his pickup. He has further stated that the scooter was being driven at a reasonable speed but while negotiating the turn on the left side it came and dashed against his pickup. That there was a turn is a fact confirmed by Francis Cardozo/CW5. Respondent no.1 further stated that he did not know the rider or the pillion rider of the said scooter and the rider as well as the pillion rider vomited after the said accident and they were smelling of the liquor. He was hardly cross- examined, to show that the evidence given by him was improbable. Only because he denied that a criminal case was filed against him, can be no ground to discard his entire evidence which sounds very natural, probable and convincing and otherwise appears to be in tune with the panchanama and the sketch produced by the claimants themselves. The said panchanama and the sketch clearly show that the pickup was on the extreme left side of the road and that corroborates to respondent no. 1's version that he had stopped the pickup. The said panchanama and the sketch further show that 8 there was a clear unobstructed way of more than 3.9 mts. plus kacha road of more than a meter through which the scooter of deceased could have passed. Although respondent no.1 has been kind to state that the deceased was driving at a reasonable speed, it appears that the deceased drove not on his left side but on the wrong side and went and dashed against the stationary pickup. The panchanama and the sketch did not at all support the claim of the claimants but on the contrary support the version given by respondent no.1. No doubt the Apex Court in Pushpabai Parshottam Udeshi & Ors. (supra) has stated that there are cases in which the accident speaks for itself and it is sufficient for the plaintiff to prove the accident and nothing more and in such a case it would be for the defendant to establish that the accident happened due to some other cause than his own negligence. However, that principle cannot be applied to the fact situation of this case where the claimants had categorically stated that the accident had taken place on account of rash and negligent driving of Nicolau Fernandes and sought to support the same by two witnesses who failed to support the case of the claimants. 9. As stated by the Apex Court, speaking through three learned Judges in Minu B. Mehta & Anr. v/s. Balkrishna Ramcgandra Nayan & Anr. (AIR 1977 ACJ 118) a person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In case of a motor 9 accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servants. The concept of owner's liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in public place cannot justify fastening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed. The Hon'ble Apex court therefore observed that they could not perceive by what reasoning the owner of the car can be made liable. The proof of negligence remains the lynch pin to recover the compensation. In the case at hand, it is the deceased who while negotiating the turn went towards the wrong side of the road and dashed against the stationary back wheel of pickup of respondent no.1 and, that being so, and since respondent no. 1 was negligent, the claimants will not be entitled to claim any compensation from the respondents. 10. We therefore find there is no merit in this appeal and, consequently, the same is hereby dismissed with no order as to costs. A.P. DESHPANDE, J. N.A. BRITTO, J. NH/-