… 1 … IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.215 OF 2000 1. Kadamba Transport Corporation Ltd. a Company having their Registered Office at KTCL Bus Stand, Panaji, Goa, represented herein by their Managing Director Shri S.D.Desai 2. Shri Anand Sagun Parshekar, Driver, Resident at H.No.62, Curchorem, Kakoda, Goa. .. Appellants. Versus 1. Smt. Santan Colaco, widow of Late Joaquim D'Silva and her son 2. Mast. Saliton D'Silva, aged about 3 years, both resident of H.No.449, Chandrawadco, Fatorda, Margao, Goa. 3. Shri Anand Sagun Parshekar, Driver, Resident at H.No.62, Curchorem, Kakoda, Goa. (Transposed as appellant No.2.) .. Respondents. Mr. A. R. Kantak, Advocate for the appellants. Mr. S. D. Lotlikar, Senior Advocate for the respondent Nos.1 & 2. CORAM :- U. D. SALVI,J. DATE OF RESERVING THE JUDGMENT : 12 th March, 2010 DATE OF PRONOUNCING THE JUDGMENT : 19 th March, 2010 … 2 … JUDGMENT : This is an appeal against the Judgment and Award dated 14.02.2000 given by the learned Motor Accident Claims Tribunal, South Goa, Margao in Claim Petition No.15/1994. 2. One Joaquim D'Silva, aged about 27 years resident of Fatorda, Margao and husband of the claimant/ respondent No.1 Santan Colaco met with a fatal accident at about 21.40 hours on 11.09.1993 while he was moving on a bicycle to Nuvem from Margao. Crime was registered at C.R. No.108/1993 under Section 279, 201, 304-A of I.P.C. and 134 of Motor Vehicles Act at Maina-Curtorim Police Station against the appellant No.2- Anand Sagun Parshekar, driver of the Bus bearing No.GDX 185 belonging to the appellant no.1- Kadamba Transport Corporation Ltd. following detection of the offending vehicle i.e. the K.T.C. Bus No.GDX-185 with accident marks on the right side of the vehicle. Postmortem examination of the body of the deceased revealed cause of death due to close head injury and fractures of Tibia Fibula of the left leg consequent to road traffic accident. 3. Contesting these facts, the appellants vide written … 3 … statement dated 11.8.1985 denied the involvement of the said vehicle in the accident, but admitted the fact that Bus no. GDX-185 driven by the appellant No.2 herein Anand Parshekar left Panaji for Margao at about 9.30 p.m. on 11.09.1993 and he kept his bus in depot at Margao after alighting two passengers at Nuvem. The Tribunal, while answering the issue on the point of negligence, placed reliance on CW2 Remedios Mascarenhas and CW3 Peter D' Mello – the Panch to the scene of offence panchanama. Learned Advocate Kantak for the appellants has quarrel with the approach taken by the Tribunal in appreciating the evidence of these witnesses. According to him, CW2 Remedios was not an eye-witness for the reason that he did not see the victim riding the cycle before offending vehicle sped away; and in case of the dash given by the Bus, the victim would have been thrown away or run over. He further pointed out that one Domingoes Fernandes, who was named by the CW2 remedios as the person present, was not examined; and as such adverse inference against the case of the claimants needs to be drawn. 4. Evidence of CW2 Remedios reveals that at the material time, he was returning to Nuvem after supplying … 4 … bread at old Market at Margao. The Tribunal believed this fact and reached the conclusion that this fact justified the presence of CW2 Remedios at the scene of accident at the material time. Evidence of CW2 Remedios further reveals that he had seen the KTC Bus No.GDX-185 proceeding from Panajim towards Margao in fast speed and suddenly going towards right hand side before it sped away fast. He added that he saw the body of the Joaquim Silva at the spot on the road after he had seen the Bus suddenly taking to its right hand side. He denied the suggestion that he had not witnessed the accident and he was deposing falsely. This limited version of the accident needs to be appreciated not in isolation, but in context with the other facts which are borne out by the record, particularly the facts revealed through postmortem examination report and the FIR. 5. To supplement this view, learned Senior Advocate Lotlikar for the respondents/ claimants relied on the judgment reported in 2009 All SCR 1771 – Bimla Devi and others Versus Himachal Road Transport Corporation and others. The Hon'ble Apex Court in Bimla Devi and others case held that strict proof of accident cannot be expected from claimants, who were not present at the occurrence and … 5 … they have to establish their case on the touchstone of preponderance of probabilities. Dealing with the view taken by the Hon'ble High Court that the deceased might have died in some accident and the appellants' officials had wrongly lodged the FIR against the driver of the Bus in the said case, the Hon'ble Apex Court opined that it is difficult to believe fabrication of a case by Police Officers. In this context, learned Advocate Kantak for the appellant submitted that the FIR in the present case cannot be looked into as it has not been exhibited in evidence. Learned Advocate Lotlikar countered this submission with reference to sub-clause (4) of Section 166 of the Motor Vehicles Act,1988 (hereinafter referred to as 'the Act'). According to him, this provision gives unique position to information regarding any accident involving death or bodily injury to any person recorded by Police Officer as that of an application for compensation under the said Act. If that be so, he argued, the FIR recorded in the present case needs to be taken into account for deciding the claim petition. 6. Subsection (4) of Section 166 enjoins the Claims Tribunal to treat any report of accident forwarded to it under subsection (6) of Section 158 of the said Act as an application … 6 … for compensation under the Act. In the present case, a copy of the FIR given by the Police Inspector, Maina-Curtorim Police Station under his hand and seal finds place on record since the very initiation of the application under Section 140 of the Act in the year 1993. Involvement of the said vehicle in the accident was prima facie found on the basis of the said FIR. There is no reason why this FIR now should not be taken into account for the purposes of appreciating the evidence on record, particularly when the strict rules of procedure and evidence do not apply to the enquiry conducted by the Claims Tribunal under Section 168 of the Act for the purposes of adjudicating the claim for compensation summarily. 7. A copy of the FIR reveals detection of the said vehicle with accidental marks at right side from middle portion till the rear right tyre and some hairs at the rear right tyre of the Bus. The marks, the FIR reveals, are in form of scratches running over 4 feet 7 inches and at the height of 2.5 feet from the ground level matching with the height of handle of the cycle involved. There is no explanation for these facts revealed through the FIR. It can also be seen that the appellants had offered no reasons for the involvement of … 7 … Anand Parshekar by the Police in the said crime. Evidence of CW2 Remedios, therefore, cannot be disbelieved even keeping aside the evidence of CW3 Peter D'Mello – the panch witness. 8. As regards the quantum of compensation, learned Advocate Kantak for the appellants took exception to the recourse taken by the Tribunal to second schedule under Section 163(A) of the Act in arriving at notional income of the deceased and the multiplier for computing the quantum of compensation. It is true that the second schedule was inserted by Act 54 of 1994 in the Act with effect from 14.11.1994. However, a fact remains that the second schedule provides a structured formula for calculating the amount of compensation in the motor accident cases. The Hon'ble Apex Court in the case of Mohan Singh Versus Kashi Bai and others reported in (2009)4 SCC 507 in clear terms held that the second schedule under Section 163(A) of the Act can be taken as the guideline while determining the compensation under Section 166 of the Act. In the instant case, CW1 Santan Colaco, widow of the deceased gave income of the deceased as Rs.100/- per day. The Ld. Tribunal did not accept bare word of CW1 Santan Colcao and … 8 … thereafter, took recourse to the notional income as provided under second schedule of the said Act. A fact remains that the deceased supported his family as could be seen from the evidence of CW1 Santan Colaco. She denied the suggestion that her husband was not getting work daily. No wrong, therefore, can be seen in the approach taken by the ld. Tribunal of taking recourse to the second schedule under the said Act for the purposes of computation of the quantum of compensation. 9. Learned Advocate Kantak for the appellant further submitted that the ld. Tribunal could not have awarded enhanced compensation i.e. the compensation claimed more than initially claimed. Section 168 of the Act confers sufficient discretion on the Tribunal to grant compensation in excess of that claimed by the petitioner. This can be read from the following words of the Section : “On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an enquiry into the claim or, as the case may be, each of the claims and, subject to provisions of Section 162 may make an Award determining the amount … 9 … of compensation which appears to it to be just and specifying....” 10. Ld. Tribunal did take into consideration exposition of this rationality found in the judgments reported in 1987 ACJ 311 – Municipal Corporation of Greater Bombay and another Versus Kisan Gangaram Hire and Others and 1989(1) GLT 245 – Dilip Ranga Gaunkar Vs. Narayan Camu Velip and 2 Ors. To supplement this view, learned Advocate Lotlikar for the respondent cited judgment delivered in Nagappa Versusu Gurudayal Singh and others reported in (2003)2 SCC 274. The Hon'ble Apex Court in the said case made the following observations : “In the Motor Vehicles Act, 1988, there is no restriction that the compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/ Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is - it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from evidence.” 11. Considering the facts and circumstances in the present case as revealed through the evidence, certainly, it … 10 … cannot not be said that the amount awarded by the Tribunal is arbitrary, fanciful or unjustifiable. 12. To sum up, it can be said from the scrutiny of the impugned judgment that the ld. Tribunal did consider the evidence in proper perspective without being bullied by the technicalities of the law and examined the claimants' case on the touchstone of preponderance of probabilities. If the ld. Tribunal was to be swayed by the strict interpretation of the law required to be adhered to in a criminal trial, as now attempted to be achieved by the learned Advocate Kantak for the appellants by citing judgments reported in AIR 1995 SC 1437 – Madhusudan Singh and anorther Vs. State of Bihar, he would have surely fell in error and denied just compensation to the victim in the motor accident case, more particularly when the appellant No.2 herein – Parshekar – driver of the offending vehicle did not step into the witness box nor reveal the facts which he alleged to be true. 13. At the stage of pronouncement of the judgment, learned Advocate Kantak for the appellants appeared and made submissions in rejoinder. He pointed out from para 22 of the judgment in Bajaj Allianz General Insurance Company … 11 … Limited Vs. Smt. Vaishali Shetty and other's case reported 2009(2) All M R 902 that this Court did consider the FIR in disposing of the application under Section 140 of the M. V. Act, but observed that the findings in the claim under Section 140 can never bind the parties in the claim under Section 166 of the M.V.Act. Looking at the provisions under Section 140 of the Act, it can be easily made out that the proceedings under the said section are designed to offer compensation by fixing the liability to pay compensation in respect of the death or disablement in the motor accident on the principle of no fault. It is for this reason, the findings under Section 140 can never bind the parties in claim under Section 166 of the Act. F.I.R. in such proceedings is required to be referred to in order to arrive at a decision which vehicle was involved in the accident and to fix the corresponding liability to pay compensation under Section 140 of the Act. Essentially, the Tribunal does not shut out the FIR from its view. It is for this reason, one may not go by findings under Section 140 of the Act to decide the claim under Section 166 of the Act but certainly the Tribunal may not shut its eyes to take view of the facts as disclosed from the FIR in order to weigh the probabilities in the case. As observed hereinabove, the learned Tribunal did consider the circumstances emanating … 12 … from the evidence and examine the claimants' case on the touchstone of preponderance of probabilities. No fault, therefore, can be found in the impugned judgment. The appeal is, therefore, dismissed with no order as to costs. U. D. SALVI, J. SMA