1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NOS.104 & 108 OF 2004 FIRST APPEAL NO.104 of 2004 Chowgule and Co. Ltd., Chowgule House, Mormugao Harbour, Goa, 403 803. …. Appellant V/s 1. Shri Vishnu Shankar Kalangutker, major of age, (since deceased) represented by his legal representatives. 2. Smt. Laximi Vishnu Kalangutkar, major of age, 3. Bhanudas Vishnu Kalangutker, major of age, 4. Sandeep Vishnu Kalangutker, major of age, all r/o. H.No.216, Salcho waddo, Assonora, Bardez, Goa. 5. Shri Vinod Gajanand Devidas, major of age, driver of the vehicle GA-02/V-5460, r/o. Deulwadda, Shirgao, Bicholim, Goa. 6. The New India Assurance Co. Ltd., Vasco da Gama, Goa. 7. Shri Dayanand Kushta Shirgaonkar, major of age, r/o. Deulwada, Sirgao, Bicholim, Goa. …. Respondents Mr. S.D. Lotlikar, Senior Advocate with Ms. G. Xettigar, Advocate 2 for the Appellant. Mr. M.S. Joshi, Advocate for Respondent No.5. Mr. E. Afonso, Advocate for Respondent No.6. AND FIRST APPEAL NO.108 of 2004 Shri Vinod Gajanand Devidas, aged about ... years, resident of Deulwadda, Shirgao, Bicholim, Goa. …. Appellant V/s. 1. Shri Vishnu Shankar Kalangutker (since deceased, through legal representatives) 2. Smt. Laximi Vishnu Kalangutker, major of age, 3. Bhanudas Vishnu Kalangutker, major of age, 4. Sandeep Vishnu Kalangutker, major of age, All resident of H.No.216, Salcho Waddo, Assonora, Bardez-Goa. 5. Chowgule and Co. Ltd., Chowgule House, Mormugao Harbour, Goa – 403 803. 6. The New India Insurance Co. Ltd., Vasco-da-Gama, Goa. 7. Shri Dayanand Kushta Shirgaonkar, major of age, resident of Deulwadda, Sirgao, Bicholim, Goa. Mr. M.S. Joshi, Advocate for the Appellant. 3 Mr. S.D. Lotlikar, Senior Advocate with Ms. G. Xettigar, Advocate for Respondent No.5. Mr. E. Afonso, Advocate for Respondent No.6. CORAM : F.M. REIS, J. DATE : 7th FEBRUARY, 2011 JUDGMENT : Both the above appeals are taken up together for final hearing as both challenge the same judgment and award passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Panaji dated 10/02/2004 in Claim Petition No.25/1995. 2. The parties shall be referred to in the manner they so appear in the impugned judgment. 3. Heard Shri S.D. Lotlikar, the learned Senior Counsel for the appellant in First Appeal No.104 of 2004 and for respondent no.5 in First Appeal No.108 of 2004, the learned Counsel Shri M.S. Joshi for the appellant in First Appeal No.108 of 2004 and for respondent no.5 in First Appeal No.104/2004 and the learned Counsel Shri E. Afonso for respondent no.6 in both the above appeals. 4 4. The Claim Petition came to be filed by the claimants/respondents nos.1 to 4 on the ground that on 10/12/1994, the deceased Ramakant Vishnu Kalangutker was proceeding from Shirgao to go to Assonora to his residence on his motorcycle bearing no.GA-01/Q-2973. When he reached Shirgao at about 2.30 p.m. at Gaddi- wada near Homkhand, the respondent no.1 drove his vehicle in the same direction in a rash and negligent manner and after overtaking the jeep which was following the motorcycle of the deceased, the respondent no.1 took a sharp turn and in that process gave a dash against the motorcycle of the deceased. The said deceased was dragged and sustained multiple injuries and subsequently died on 16/12/1994. Accordingly the claim petition came to be filed claiming a compensation of Rs.1,25,000/-. 5. The respondent no.1 filed his written statement and denied the case of the claimants. He has denied that he was driving the truck involved in the accident at the relevant time and according to him the truck was driven by one Dayanand Kushta Shirgaonkar, the respondent no.4. It was also contended that the accident occurred on account of rashness and negligence on the part of the deceased Ramakant. The case of the respondent no.2, who is the appellant in First Appeal No.104/2004 is that though he admitted that the 5 truck belonged to the said respondent, but however contended that one Gajanan Devidas was looking after the work of the said truck. It is further their case that the said Gajanan had engaged one Dayanand Kushta Shirgaonkar, the respondent no.4 herein, as the driver of the said truck and that on the date of the accident i.e. on 10/12/1994, the driver of the truck had taken the truck to Shirgao mines of the respondent no.2, as usual. It is further their case that the said Dayanand Kushta Shirgaonkar drove back the truck from Shirgao for lunch and Vinod Devidas, the respondent no.1 was sitting by the left side on the cleaner's seat. It is further their case that the accident occurred entirely due to rashness and negligence on the part of the motorcyclist. The respondent no.3 claimed that the vehicle was driven by the respondent no.1, who was not duly licensed to drive the vehicle and, as such, there has been a breach of specified policy conditions and, as such, the respondent is not liable to pay any compensation. The respondent no.4 also filed the written statement and disputed the allegation as to the manner in which the accident occurred. He has further stated that he was driving the truck and that the respondent no.1 was occupying the cleaners seat. 6. The Tribunal after framing the issues and recording of 6 evidence has partly allowed the Claim Petition and held that the claimants were entitled to receive from the respondents nos.1,2 & 3 a total compensation of Rs.93,656/- together with interest at the rate of 9% per annum after adjusting the amount paid under Section 140 of the Motor Vehicles Act. The respondent no.3 was also held to be at liberty to recover the said amount of compensation from the respondent no.2. Being aggrieved by the said judgment, the respondent no.2, who is the owner and the respondent no.1, who is stated to be the driver have challenged the said judgment and award. 7. Shri S.D. Lotlikar, the learned Senior Counsel appearing for the appellant/respondent no.1 submitted that there is no evidence on record to substantiate that the respondent no.1 was driving the truck at the relevant time. According to the learned Senior Counsel, respondent no.4 was driving the truck and that there is no statement on oath on record to the effect that the respondent no.1 was the driver of the said truck at the relevant time. The learned Senior Counsel further submitted that the Insurance Company failed to establish that there was any breach of terms of the policy which entitled them to recover the amount from the respondent no.2. The learned Senior Counsel further pointed out that there is 7 no appreciable evidence on record for the Tribunal to come to the conclusion that respondent no.1 was actually driving the truck. In support of his submission, the learned Senior Counsel has relied upon the judgment reported in AIR 1985 SC 1281 in the case of Narchinva V. Kamat & anr. V/s. Alfred Antonio Doe Martins & Ors. and 2008 (2) T.A.C. 28 (Bom.) in the case of New India Assurance Company Ltd. V/s. Smt. Shashikalabai & Ors. 8. The learned Counsel Shri M.S. Joshi appearing for the respondent no.1/appellant in First Appeal No.108/2004 has adopted the submissions of the learned Senior Counsel Shri Lotlikar and further pointed out that the evidence on record establishes that the respondent no.1 was not driving the vehicle. Shri Joshi, took me through the evidence on record and pointed out that there is no evidence to substantiate that respondent no.1 was driving the vehicle. 9. Shri E. Afonso, the learned Counsel appearing for the Insurance Company has taken me through the written statement filed by the Insurance Company and pointed out that it was clearly stated that respondent no.1 was driving the vehicle at the relevant time. He further submitted that the Tribunal after appreciating the 8 evidence on record has rightly come to the conclusion that the respondent no.1 was driving the vehicle. The learned Counsel further submitted that the claim of the respondent no.1 that he was the driver of the vehicle cannot be believed in view of the false statement made by him in his deposition. He further submitted that there was evidence on record to establish that respondent no.1 was arrested after the accident and he was thereafter charge sheeted for rash and negligent driving of the vehicle. He further submitted that merely because the respondent no.1 was acquitted in the criminal case it is not sufficient to hold that respondent no.1 was not driving the vehicle at the relevant time. Learned Counsel further submitted that the respondent no.4 has not given any justification as to why he had not reported the accident to the police station though he alleged that he was driving the vehicle. The learned Counsel further pointed out, after going through the evidence on record and the findings of the Tribunal, that there is no reason to interfere in such findings as the Tribunal has rightly appreciated the evidence on record and come to the conclusion that respondent no.1 was actually driving the vehicle. 10. Having heard the learned Counsel and on perusal of the record, the only contention which is raised in both the appeals 9 which has to be considered is whether the original respondent no.1 was the driver of the truck or whether the respondent no.4 was the driver of the truck at the relevant time when the truck met with an accident. 11. On perusal of the impugned judgment, the Tribunal has considered the contention of the respondent no.1 that he was not driving the vehicle at the relevant time and that the vehicle was being driven by the respondent no.4. The Tribunal has considered the evidence adduced by the said respondent and noted that he has admitted in his cross-examination that in a criminal case he was charge sheeted under Section 3 of the Motor Vehicles Act and also under Section 279 and 304-A of the Indian Penal Code. The Tribunal has also considered the evidence of respondent no.4 who stated that respondent no.1 was siting on the cleanser's seat. The Tribunal has also considered that no statement was given by the respondent no.4 about the accident to the police. The Tribunal after examining the evidence on record came to the conclusion that the accident had occurred on account of the fault of the respondent no.1. 12. On perusal of the Claim Petition filed by the claimants, it has 10 been clearly averred that on the relevant date the respondent no.1 drove his truck in a rash and negligent manner which resulted in the ultimate death of the deceased. While filing the written statement there was a clear averment by the respondent no.2 that the truck belonging to the said respondent was given to one Gajanan Devidas from Deulvadda, Shirogao, Bicholim, Goa, for looking after the running of the said truck and the said Gajanan had engaged respondent no.4 as his driver at the relevant time. The respondent no.2 who is the owner of the said vehicle, as such, claimed that he was not personally aware as to who was the driver of the said vehicle. Admittedly, the said Devidas has not been examined before the Tribunal to substantiate the contention of the respondent no.2 that he had engaged respondent no.4 as his driver. Apart from that the respondent no.3 in his written statement has categorically stated in para 2 that respondent no.1 was driving the vehicle and he was not duly licensed to drive such vehicle. The said written statement has been duly verified. The respondent no.4 while filing the written statement has disputed that the respondent no.1 had driven the truck, but claimed that the vehicle was driven by him. The claimants have also examined CW5/A.G. Halarnkar, who was attached to the Bicholim Police Station and who has stated that the respondent no.1 was charge sheeted before the 11 criminal Court and FIR was registered against him. He denied the suggestion in the cross-examination that the truck was not driven by the respondent no.1 and that it was driven by the respondent no.4. The respondent no.1 in his affidavit has stated that the truck was being driven by the respondent no.4 on the relevant date and that he was siting on the cleaner's seat. In his cross-examination he has stated that he was not arrested in the criminal case. He denied the suggestions that he was arrested in the criminal case. He has also stated that he did not report the matter to the police about the accident. He has further stated that he had never gone to police station on account of the said accident. He denied the suggestion that he was driving the said vehicle. He has further stated that he had no evidence to establish that he was working as a cleaner on the said truck. In the further cross-examination by respondent no.2 he has stated that there was a hire purchase agreement between his father Shri Gajanan and the respondent no.2. He has further admitted that at the time of the accident he was not holding a driving licence to drive the truck and he obtained the driving licence in the year 1995. It is to be noted here that from the evidence of the said witness, it transpires that respondent no.1, who was the son of the said Devidas is stated to have been given the charge of the truck by the respondent no.2 for running the vehicle. 12 He has further stated that he was acquitted from the criminal case. He has further stated that the respondent no.4 was the regular driver of the said truck. Another witness examined is respondent no.4/said Dayana Kushta Shirgaonkar, who has stated that on 10/12/1994, said Devidas handed over the keys of the said truck to him and that his son the respondent no.1 was siting on the cleaner's seat. In the cross-examination he has stated that he has not been given any appointment letter by the employer as a driver. He further stated in the cross-examination that there is no attendance register for him nor any receipt was issued of payment of salary. He has also stated that he has no documents to show that he was working as a driver of the said truck. He has further stated that respondent no.1 was not arrested by the police in the said accident case and denied the suggestion that he was arrested. He has further stated that he has not given any statement to the police that he was driving the said truck. He further stated that he had not reported to the police about the accident but he had reported to the employer and the Sarpanch. He denied the suggestion that respondent no.1 was driving the truck. 13. From the evidence on record as stated herein above, the charge sheet produced on record clearly demonstrates that the 13 respondent no.1 was arrested on account of the said accident. In his deposition before the Tribunal the respondent no.1 has stated that he was never arrested. The respondent no.4 has also stated that he had not reported the matter to the police. 14. Considering the facts and the material on record which establishes that the respondent no.1 was arrested which thereafter resulted in the filing of the charge sheet, I find that the respondent no.1 cannot be believed to state that he was not driving the vehicle at the relevant time. The respondent no.4 who claims to be the driver has categorically admitted that though he had met with an accident and a person had died on account of such accident he did not even report such accident to the police. On the contrary, it is claimed that he had reported to his employer, said Shri Gajanan Devidas, who is the father of the respondent no.1 and the Sarpanch. Admittedly, neither the said Gajanan nor said Sarpanch have been examined in the Court. Taking into consideration the fact that the respondent no.4 who has failed to establish by any evidence that he was actually employed to drive the said vehicle and the fact that he did not even choose to make any statement before the police that he was the actual driver when the respondent no.1 was arrested on account of the said accident, I find that the Tribunal was justified to 14 come to the conclusion that the respondent no.4 cannot be believed. The evidence on record clearly establishes that the respondent no.1 was actually the driver of the vehicle at the relevant time. The respondent no.2 has stated in his written statement that they had entrusted the truck to the said Gajanan. In case the allegation of the respondent no.4, who claims to be the driver and the employee of said Gajanan, who is the father of respondent no.1/driver is to be accepted, it is obvious that if he was the actual driver he would have reported to the police and given the statement that he was actually driving the vehicle, immediately after the accident had occurred. The respondent no.1 himself has admitted that at the relevant time he was not holding the driving licence. There is no material on record to establish that the charge sheet which was filed against the respondent no.1 was motivated or the same was filed on account of any malafide motives. The version of the respondent no.4 cannot be accepted as under no circumstances the respondent no.4 would have allowed the son of his employer to be arrested and charge sheeted on account of the accident. 15. Considering the overall evidence on record, I find that the conclusion drawn by the Tribunal to the effect that respondent no.1 15 was driving the vehicle at the relevant time cannot be said to be erroneous. The Tribunal was justified to come to the conclusion, on the basis of evidence on record that, the respondent no.4 had come out with a plea that he was driving the truck as respondent no.1 was not having the driving licence at the time of the accident. Considering the evidence on record, I find no infirmity in the findings of the Tribunal that respondent no.1 was driving the vehicle at the relevant time. 16. Shri E. Afonso, the learned Counsel appearing for respondent no.3 has submitted that there was breach of the terms of policy as admittedly the respondent no.1 was not holding the requisite licence at the relevant time. In the cross-examination of RW1/Vinod Devidas, he has admitted that he was not holding the licence and that he has obtained licence only in the year 1995 which is after the date of the accident. In the written statement filed by the Insurance Company, there is specific averment that the respondent no.1 was not duly licensed to drive the vehicle at the relevant time. This fact has been admitted by the respondent no.1 himself in the cross-examination. The judgments of the Apex Court in the case of Narchinva V. Kamat & anr. (supra) and the learned Single Judge of this Court in the case of New India 16 Assurance Company Ltd. (supra) are not applicable to the facts of this case in view of the admission of RW1 that he was not holding a licence at the relevant time of the accident. Once it is established that the respondent no.1 was not duly licenced, the Tribunal was justified to come to the conclusion that there was a breach of the terms of the policy. The point for determination is answered accordingly. 17. Considering the evidence on record and the findings of the Tribunal, I find no infirmity in the impugned judgment and award passed by the Tribunal. I find no merit in both the appeals and, consequently, the appeals stand dismissed with no order as to costs. F.M. REIS, J. NH/-