-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 208 OF 2006 Mr. Peter D' Souza, son of Mr. John D' Souza, major, married, service, resident of Khalap Waddo, Verla, Canca, Parra, Bardez, Goa. …... Appellant V e r s u s 1. Mr. Wright William George, major, married, business, resident of England, at present resident of Rustlens Steak Beek Bar and Restaurant, Calangute, Bardez, Goa. 2. Ms. Grace L. Fernandes, Resident of B2 Opp. Junta House, Panaji, Goa. 3. National Insurance Company Ltd., with its Branch Office at Mapusa, Bardez, Goa. 4. Mr. Manohar Namshikar, near Ganesh Temple, Housing Board Colony, Mapusa, Goa. 5. Mr. Dilip Pandurang Simepuraskar, resident of Cobravaddo, Calangute, Bardez, Goa. …... Respondents (This Appeal stands dismissed as against Respondent nos. 1, 2 & 5, in view of Order dt. 12.11.08) Mr. Valmiki Menezes, Advocate for the Appellant. First Appeal no. 208-06 -2- Coram :- F. M. REIS, J Date : 22 nd November, 2011. ORAL JUDGMENT Heard Shri Valmiki Menezes, learned Counsel appearing for the Appellant. None for the Respondents though served. 2. The above Appeal challenges the Judgment and Award passed by the learned Presiding Officer of the Motor Accident Claims Tribunal, at Mapusa, in Claim Petition No. 84/2003, whereby the Claim Petition filed by the Appellant came to be dismissed by Judgment and Award dated 13.04.2006. 3. Shri Menezes, the learned Counsel has assailed the impugned Judgment on the ground that the Tribunal has rejected the reference essentially on the ground that the Appellants have failed to produce the scene of offence panchanama as well as the sketch as it was only marked 'X' for identification. Learned Counsel further points out that the Appellant has relied upon not only on such evidence but also on the evidence of one Narayan, Aw.4, who was an eye witness, whose evidence has not been shaken in the cross examination. Learned Counsel has further taken me through the impugned Judgment and pointed out that in fact the learned Presiding Officer has accepted the evidence of the said eye witness but merely on the ground that the said documents have not been produced, the Claim Petition came to be rejected. Learned Counsel further pointed out that the driver and the owner of the vehicle involved in the accident did not file any First Appeal no. 208-06 -3- written statement nor contested the Claim Petition nor stepped into the witness box to disclose the manner in which the accident occurred. The learned Counsel further pointed out that the Appellant had suffered injuries on account of the accident which have been established not only on the basis of the eye witness but also on the basis of the records produced by the Appellant from the hospital which clearly discloses that the injuries sustained by the Appellant were on account of a motor vehicle accident. Learned Counsel further pointed out that the Appellant has sustained injuries and suffered a fracture and other ailments on account of the said accident which forced the Appellant to undergo operations after incurring substantial expenditure. Learned Counsel further pointed out that the accident occurred as the Maruti Gypsy vehicle which was being driven by the Respondent no.1 and owned by the Respondent no.5 suddenly swerved on the right side without showing any signal and on such count, the Appellant lost the control of his motorcycle which resulted in the accident wherein the Appellant has sustained the said injuries. Learned Counsel further pointed out that Aw.4, Narayan, has minutely given the particulars of the vehicles and the manner in which the accident has occurred. Learned Counsel further pointed out that merely because the panchanama has not been produced by itself does not mean that the Appellant has not established the accident on the basis of the other material on record. Learned Counsel further pointed out that it was incumbent upon the Respondent no.1 to enter into the witness box and state the manner in which the accident had occurred which he has failed to do and as such considering the material on record, the learned Presiding Officer has erroneously come to the conclusion that the Appellant has failed to establish the accident. Learned Counsel further submitted that the First Appeal no. 208-06 -4- impugned Judgment cannot be sustained and deserves to be quashed and set aside and the matter be remanded to the Tribunal for fresh adjudication in accordance with law. 4. The Respondents though served, failed to remain present. 5. Upon hearing the learned Counsel and on perusal of the record, the following point for determination arises in the present Appeal : POINT FOR DETERMINATION (i) Whether the Presiding Officer was justified to reject the Claim Petition filed by the Appellant ? 6. On perusal of the impugned Judgment as well as the material adduced by the Appellant, I find that the Tribunal has essentially rejected the Claim Petition on the ground that the Appellant has failed to establish the accident which resulted in the injuries to the Appellant. The learned Presiding Officer has further found that the scene of offence panchanama was already marked 'X' for identification and no panch witness or any Police Officer was examined to prove the said document. The learned Presiding Officer further found that as the accident has not been established, the question of awarding any compensation to the Appellant would not arise at all. But, however, on perusal of the impugned Judgment, I find that the Tribunal has in fact accepted the evidence of Aw.4, Narayan, who was an eye witness and did not disbelieve the versions given by him in his deposition. On perusal of his cross examination, I find that his deposition in First Appeal no. 208-06 -5- chief has not been shaken. As such, merely because the scene of offence panchanama has not been exhibited, by itself does not mean that the Appellant was not in a position to establish on the basis of the material on record as well as by oral evidence the fact that the Appellant had sustained injuries on account of the motor accident. The records further reveal that the Appellant has suffered injuries on account of an accident and, as such, considering the deposition of Aw.1, read with the deposition of Aw.4, exfacie, establishes that the Appellant discharged the initial burden that he had suffered injuries on account of an accident and, as such, the onus had shifted on the Respondent no.1 to enter the witness box and state the manner in which such accident had occurred. Admittedly, the Respondent no.1 nor the owner have disputed the contentions in the Claim Petition by either filing the written statements or stepping into the witness box. It is also reported that the Insurance Company did not take any leave under Section 170 of the Motor Vehicles Act. As such, the learned Tribunal was not justified to come to the conclusion that the Appellant has not established their case on the basis of the material on record. The law is well settled that the Claim Petitions are decided on the touch stone of preponderance of probabilities. Taking into consideration that the driver and the owner of the vehicle involved in the accident had not entered into the witness box, the Tribunal was not justified to hold that the Appellant had not established the accident merely because the scene of panchanama and the sketch has not been produced. As such, I find that the Tribunal has not appreciated the evidence on record on the basis of the well settled principles of law. As such, in the facts and circumstances of the case, I find it appropriate that the impugned Judgment passed by the Tribunal deserves to be quashed and set aside and the matter be remanded First Appeal no. 208-06 -6- to the Tribunal to decide the matter afresh after hearing the parties in accordance with law. The point for determination is answered accordingly. 7. In view of the above, I pass the following : O R D E R (i) The appeal is partly allowed. (ii) The impugned Judgment and Award dated 14.04.2006 is quashed and set aside. (iii) Claim Petition no. 84/2003, is restored to the file of the Motor Accident Claims Tribunal, North Goa, Mapusa. (iv) The Tribunal is directed to decide the said Claim Petition afresh after hearing both the parties in accordance with law. (v) All the contentions of the parties are left open. (vi) The Appeal stands disposed of accordingly with no Order as to costs. (vii) The parties are directed to appear before the learned Tribunal on 09.01.2012 at 10.00 a.m. F .M. REIS, J. arp/* First Appeal no. 208-06