1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 170 OF 2005 Shri Kiran Barde R/o House No.94, Near Ganpati Temple, Bogda, Mormugao Harbour Goa. ... Appellant versus 1. Shri Gopal Mesta, s/o Omayya Mesta, r/o House No.322, Headland Sada, Harbour, Mormugao, Goa. 2. Shri Alfred Octaviano Furtado r/o House No.363, Portawado, Siolim, Bardez, Goa. 3. The Oriental Insurance Co. Ltd., David House, IInd Floor, Margao, Goa. ... Respondents Ms. Susan Linhares, Advocate for the Appellant. Shri J. Godinho, Advocate for Respondent No. 2. Shri E. Afonso, Advocate for Respondent No.3. 2 CORAM : F. M. REIS, J. DATE : 17TH JUNE, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 31-3-2005 passed by the learned Motor Accident Claims Tribunal, South Goa, Margao in Claim Petition No.103 of 2000. 2. The Appellants who were the claimants in the said proceedings claimed that an accident took place on 22-12-1987 near Thermax Limited, Harbour at 7.30 hours and at that time, the Appellant was driving the bus bearing No.GA-02-V-4049 whereas the Respondent No.1 was driving another bus bearing No.GA-02-T-4263 and was coming from the opposite direction in a rash and negligent manner and in a fast speed and thereafter dashed against the bus driven by the Appellant. It is further his case that on account of the said accident he sustained grievous injuries. It is further the case of the Appellant that he was earning a monthly salary of Rs.4,500/- together with allowance of Rs.50/- per day, and that he was admitted in the hospital and was 3 confined to bed for a period of 1 ½ months and further that he could not join duty for about 5 ½ months which resulted to loss of income. As such, the Appellant claimed compensation from the Respondents to the tune of Rs.50,000/-, being Rs.33,000/- on account of loss of income and a further sum of Rs.15,000/- towards medical expenses. The Respondents filed a written statement disputing the claim of the Appellants. It is the case of the Respondent Nos.1 and 2 that the Appellant himself was driving his bus in a rash and negligent manner and he was the cause of the accident. They further claimed that the Respondent No.1 was driving the bus which was occupied by school children and seeing the bus driven by the Appellant he stopped his bus and the Appellant lost control and dashed against the bus of the Respondent No.1. The contention of the Respondent No.3 in their written statement is that the Insurance Company is not liable to pay any amount of compensation since the vehicle involved in the accident was not insured with the Respondent No.3 at the relevant time. The learned Presiding Officer of the Tribunal after framing the issues and recording the evidence, by the impugned Judgment rejected the Claim Petition filed by the Appellant. Being aggrieved by the said Judgment, the Appellant has preferred the said appeal. 4 3. Ms. S. Linhares, learned Counsel for the Appellant has assailed the impugned Judgment and pointed out that the learned Tribunal was not justified in rejecting the Claim Petition of the Appellant. It is further her submission that on perusal of the evidence on record it cannot be doubted that the Respondent No.1 was responsible for the accident. Learned Counsel has taken me through the sketch of the site of accident produced on record and pointed out that it is obvious that the Respondent No.1 had not left enough space for the movement of the bus driven by the Appellant which itself disclosed rashness and negligence on the part of the Respondent No.1. Learned Counsel has further pointed out that the Appellant has produced medical bills of Rs.5000/- and odd which is not disputed and there is no reason to disallow the payment of the said amount. Learned Counsel further submitted that though there is no evidence on record to establish the actual salary of the Appellant nevertheless considering the nature of the injuries sustained by the Appellant the Tribunal ought to have fixed a reasonable compensation on account of loss of income to the Appellant. Learned Counsel further submitted that the Appellant suffered a fracture which the Tribunal has failed to take note of for the purpose of awarding 5 a reasonable compensation to the Appellant. Learned Counsel as such submitted that in any event considering the facts and circumstances of the case even assuming that there was composite negligence on the part of the Appellant which resulted in the accident there was no justification to totally reject the Claim Petition filed by the Appellant. Learned Counsel as such submitted that the appeal deserves to be allowed and the impugned Judgment is quashed and set aside. 4. On the other hand, Shri J. Godinho, learned Counsel for the Respondent Nos.1 and 2 has supported the impugned Judgment. Learned Counsel submitted that the bus driven by the Respondent No.1 was stationery and it was rash and negligent on the part of the Appellant which resulted in the accident. Learned Counsel further submitted that the Appellant was driving the bus in a very fast speed and lost his control whilst trying to pass the bus driven by the Respondent No.1 which was coming in the opposite direction. Learned Counsel further submitted that there is no evidence on record to establish that the Appellant was unable to report for duty for a period of 5 ½ months. Learned Counsel further submitted that the injuries sustained by the Appellant are minor injuries 6 and there was no question of being deprived of any income by the Appellant. Learned Counsel further submitted that the appeal deserves to be rejected. 5. Shri E. Afonso, learned Counsel for the Respondent No.3 has pointed out that the findings to the effect that there was no policy has not been assailed by the Appellant and consequently the appeal against the Respondent No.3 deserves to be rejected. 6. Having heard the learned Counsel and on perusal of the record, the following points for determination arise: 1. Whether the Tribunal was justified to come to the conclusion that the accident occurred solely on account of rashness and negligence on the part of the Appellant? 2. Whether the Tribunal was justified to come to the conclusion that there is no effective policy at the relevant time issued by Respondent No.3? 7 7. Dealing with the first point for determination, I find that in support of the claim, the Appellant has examined himself and he has stated on affidavit that on 22-12-1997 he was driving the mini bus at about 7.20 a.m. at a moderate speed. When he reached Thermax Limited Harbour at 7.30 a.m., the bus driven by the Respondent No.1 came at a high speed and dashed against the vehicle driven by him. He has further produced the medical bills. He has also stated that he was admitted to the Goa Medical College on the same date and discharged on 31-12-1997. He has as such claimed compensation towards loss of salary and towards transportation totally aggregating to a sum of Rs.50,000/-. In the cross-examination, he has stated that the panchanama was recorded by the Police as per the position of the vehicles at the spot. He has further stated that the bus driven by the Respondent No.1 came on the wrong side while his bus was on the right side. He denied the suggestion that he was driving the bus in a fast speed. The next witness examined is Manoj Bandekar. He has stated on oath that the bus No.GA-02-T-4263 was proceeding towards MPT colony from Vasco in a high speed driven in a rash and negligent manner and gave a dash on the oncoming vehicle on the wrong side. He has further stated that he was at a distance of 8 15 meters away from the accident spot. In the cross-examination, he has stated that he came to the accident spot about 10 to 15 minutes from the time the said accident had taken place. He further stated that he is not aware that the bus driven by the Respondent No.1 had halted before the accident. Another witness examined is Yeshwant Gawas who is the Assistant Sub Inspector. He has stated that he lodged a complaint against the Respondent No.1 on behalf of the State. He has produced the panchanama along with other relevant documents including the sketch of the accident site. He has further stated that the bus bearing No. GA-02- V-4049 was in its proper side and the bus driven by the accused No.1 was towards the middle side. He has further stated that the bus driven by the Appellant had no passengers. The next witness examined is Dr. Rajesh Patil who has stated that the Appellant was discharged on 31-12-1997. He has confirmed the certificate Exh.20 and has identified his signature therein. He has further stated in cross-examination that after his discharge he never contacted him with regard to any of the said injuries. He has further stated that he had not examined him to assess his disability. The next witness examined is the Respondent No.1 who has stated that at the relevant time he was driving the said bus which was 9 carrying students and when he reached Thermax Limited at Bogda on the main road he stopped the bus on the left side of the road to collect the students and at that time the bus driven by the Appellant came in a fast speed on the opposite direction and he lost control and dashed against the bus driven by the Respondent No.1. He has further stated that he was acquitted by the Judicial Magistrate First Class by Judgment dated 31-7-2002. In the cross-examination, he has stated that he was driving a passenger bus and the Appellant was driving a mini bus. He denied the suggestion that he had not stopped the bus and that the Appellant was not driving the bus in a rash and negligent manner. The next witness examined by the Respondents is Rajmai Reddy. She has stated that she was a regular passenger of the bus driven by the Respondent No.1 and that on the relevant day the bus was on the left side of the road and was collecting the students who were boarding the bus and at that time the bus driven by the Appellant came in a fast speed and dashed the bus driven by the Respondent. The said witness was also cross-examined. She has denied the suggestion that her said statement was false. Another witness examined was Mario Furtado who sought to corroborate the case advanced by the Respondent No.1. The said witness was also 10 cross-examined. Another witness examined is Mrs. Aruna Kamat who is working with the Respondent No.2. The learned Judge after recording the evidence has come to the conclusion that the Appellants have failed to establish that the accident occurred on account of rashness and negligence of the Respondent No.1. The learned Judge also came to the conclusion that the Appellants were not entitled for compensation from the Respondents. 8. From the foregoing facts, it transpires that the Appellant was driving a mini bus at the relevant time and that the bus driven by the Respondent No.1 was coming in the opposite direction. On perusal of the sketch produced on record depicting the position of the vehicles at the relevant time, I find that at the spot of the accident the road had a width of about 5 meters. From the position of the bus driven by the Respondent No.1 and the mini bus driven by the Appellant, I find that there was no sufficient space for the mini bus to manoeuvre and pass the bus driven by the Respondent No.1. The witnesses examined by the Appellant further suggest that the bus driven by the Respondent No.1 was more in the middle portion of the road. Even assuming the contention of the Respondent Nos.1 and 2 is accepted to the effect that 11 the bus had stopped so as to enable the students to board the bus, the fact remains that considering the position of the said bus, the mini bus driven by the Appellant would have a head on collision with the said bus on account of the position in which the bus was found at the site. The very fact that the bus driven by the Respondent No.1 is stated to have been in a stationery position without leaving sufficient space for the oncoming mini bus driven by the Appellant itself suggests that the Respondent No.1 was rash and negligent whilst driving the said bus which resulted in the said accident. No doubt, the Appellant also had to maintain proper caution considering that the bus was coming in the opposite direction so as to avoid the collision. The position of the mini bus suggests that the bus driven by the Appellant was also coming at a high speed and considering the restricted space available to the Appellant to proceed onwards, the Appellant lost control of the vehicle which resulted in the accident. As such, considering the evidence on record adduced by both the parties, I find that there was contributory negligence on the part of both the drivers which resulted in the accident. The learned Tribunal was not justified to come to the conclusion that the Appellant had failed to establish the rashness and negligence on the part of the Respondent No.1 whilst driving the bus which resulted in the said accident. 12 9. With regard to the claim of Rs.50,000/- as put forward by the Appellant, the Tribunal has come to the conclusion that the Appellant has failed to establish the said aspect. The Tribunal after examining the evidence on record has come to the conclusion that there was no evidence adduced by the Appellant to suggest that on account of the injuries sustained in the said accident the Appellant was preventing from working for any such period as alleged in the Claim Petition. 10. Ms. Linhares, learned Counsel for the Appellant was unable to point out any piece of evidence which was not considered by the Tribunal whilst coming to such conclusion. As such, no fault can be found in the impugned Judgment with regard to the said finding but, however, on perusal of the evidence adduced by the Appellant with regard to the medical expenses incurred, I find that there is no reason to disbelieve the medical bills produced by the Appellant which totally works out to a sum of Rs.5,250/-. There is no serious dispute raised by the Respondent to the effect that such expenses have not been incurred by the Appellant. As such, the Tribunal was not justified to refuse to accept the said claim of the Appellant. Besides the said amount 13 considering that the Appellant had to undergo an operation, a further sum of Rs.5000/- was justified in the facts and circumstances of the case towards pain and suffering. Total sum as such is rounded up to Rs.10,500/-. After deduction 50% on account of contributory negligence of the Appellant, the amount payable by the Respondent to the Appellant would be a sum of Rs.5,250/-. To that extent, the impugned Judgment deserves to be modified. The first point for determination is answered accordingly. 11. With regards to the second point for determination, Ms. Linhares, learned Counsel did not dispute the fact that there was no subsisting policy issued by the Respondent No.3 at the relevant time. Hence, the finding of the learned Tribunal in favour of the Respondent No.3 cannot be faulted and stands confirmed. The second point for determination is answered accordingly. 12. In view of the above, I pass the following Order:- ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 31-3-2005 is 14 quashed and set aside. 3. Claim Petition No.103 of 2000 is partly allowed. 4. Respondent Nos.1 and 2 are directed to pay to the Appellants jointly and severally the said sum of Rs.5,250/- together with interest thereon @ 6% per annum from the date of the filing of the claim petition upto actual payment. 5. The Claim Petition against Respondent No.3 stands dismissed. 6. Appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. RD