1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.151 OF 2005 1. Shri Yessu Mahadev Naik, ….Deleted about 65 years of age and his wife. 2. Smt. Kamal Yessu Naik, about 60 years of age, and 3. Miss Sharmila Yessu Naik, d/o Yessu Naik, about 27 years of age. All R/o. H.No.305, Karmone, Dabal, Sanguem Taluka, Goa. …. Appellants V/s 1. Shri Santolin Mories Francisc Mories, s/o Francisc Moraes, major in age, driver, r/o Bethumoddi, Kakoda, Quepem – Goa. 2. Shri Bernad Antao, s/o Exmegildo Antao, major in age, r/o. H.No.1130, Near Railway Over bridge, Morailem, Curchorem – Goa. 3. The New India Assurance Co. Ltd., Jaganath Building, Near Fly over, Margao – Goa. 4. Shri Malbat Jerry Fernandes, s/o. Santan Fernandes, major in age, driver, r/o. H.No.111, Xelvona Baag, Curchorem – Goa. 2 5. Smt. Maria Estalla Fernandes, wife of Santan Fernandes, r/o. H.No.111, Xelvon Baag, Curchorem – Goa. 6. The Oriental Insurance Co. Ltd. Gafur Building, Curchorem Goa. …. Respondents Mr. V.G.P. Dukle, Advocate for the Appellants. Mr. E. Afonso, Advocate for the Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 6th DECEMBER, 2010 JUDGMENT : Heard. 2. This appeal is directed against judgment dated 20/01/2005 of the learned MACT, Margao by which the claim petition filed by the parents and sister of deceased Ashok Y. Naik, to recover compensation, upon his death, has been dismissed. 3. An accident took place on 17/10/2001 at about 12.15 hrs. at Dhadem, Savordem of Sanguem Taluka involving three vehicles namely a motorcycle bearing no.GA-02-Q-0303 driven by the deceased, two Tata Tipper Trucks bearing nos. GA-02-U-5949 and GA-02-U-9588 driven by respondent no.1 and respondent no.4, 3 respectively. The respondents nos.2 & 3 are the owner and the insurer of the said truck no.5949 and respondents nos.5 & 6 are the owner and the insurer of truck no.9588. The deceased and the truck no.9588 were going from Bandora/Gandhinagar to Sanvordem/Curchorem while truck no.5549 was coming from opposite direction. 4. According to AW5/ASI Ashok P. Dessai he prosecuted both the said drivers of the said trucks as according to him both were rash and negligent. According to him there was only one eye witness by name Alcino Fernandes to the said accident as the accident had taken place in a forest area. The said Alcino Fernandes was not examined by the claimants. The tar road at the place of accident was about 6 metres and according to respondent no.4, Melbert Fernandes the road is sufficient enough for two trucks to pass with ease and precaution, by reducing the speed. 4. The criminal case filed against both the drivers (respondents nos.1 & 4 in the claim petition) is stated to be still pending. In support of the claim petition the claimant examined two witnesses namely AW2/Raghu Ratnam and AW4/Barkelo Tilu Gaonkar whose evidence has been discarded by the learned MACT as 4 unreliable on the ground that each of them had deposed contrary to each other. AW2/ Raghu Ratnam was in fact a panch witness who turned to be an eye witness in the claim petition. The learned MACT has also observed that it is probable that both of them reached after the accident. 5. Shri Dukle, learned Counsel appearing on behalf of the claimants, has submitted that the said two witnesses might have not deposed correctly and has made no attempt to assail the finding of the learned MACT rejecting their evidence, being contrary to each other, but learned Counsel submits that there was evidence on record to suggest that truck no.9588 dashed against the deceased after the deceased had dashed truck no.5949 and ran over the deceased and in this context Shri Dukle has referred to the evidence of RW1/Santolin Moraes wherein he stated that: "The deceased fell with the motorcycle just in front of the said truck no.GA-02-U-9588 which he was overtaking. He was dragged to a short distance by the said truck and his motorcycle remained entangled beneath the front bumper of the said truck.” Learned Counsel has also referred to the evidence of RW2/Melbert Fernandes who had stated that: “I say that prior to the accident the deceased who was driving the motorcycle had overtaken my vehicle in a fast and went ahead.” 5 6. In my view, the aforesaid statement is sought to be read out of context. There is also no dispute that truck no.5949 was coming down the slope while truck no.5988 was ascending the slope. The sketch of the scene of offence, prepared by AW5/ASI Ashok Dessai has been confirmed as correct not only by the said Ashok Dessai but also by drivers of the both the vehicles, namely RW1/Santolin Moraes and RW2/Melbert Fernandes. According to RW1/Santolin Moraes, who is the driver of truck no.5949, he saw the deceased desperately wanting to overtake the said truck no.9588 and coming towards his direction and he took the truck to the extreme left of the road almost to touch the cut hillock and stopped the truck to give the way for the motorcyclist, but neither the said motorcyclist nor the said truck which was being overtaken by him slowed down or took to their left side, as a result there was a very narrow gap left for the motorcyclist to pass between the said truck which was being overtaken by him and the truck stopped by him. According to him, the handle bar or the lever clutch or hand break came in contact with his truck which caused the deceased motorcyclist to loose his control and he fell with the motorcycle just in front of the said truck which he was overtaking. He was dragged to a short distance by the said truck and his motorcycle remained entangled beneath the front bumper of the said truck bearing no.9588. He stated that 6 it was not possible for any driver, placed in a situation in which he was, to avoid the accident. In cross-examination, he stated that there was no place in between the two trucks for passage of any vehicle and that it is the right hand side handle bar of the motorcycle which came in contact with his truck. He also stated that his truck was empty and he had seen the said motorcyclist when he was at a distance of about 10 metres. He also stated that his truck was stationary when the motorcycle rider came and dashed against his truck. This witness has already stated that the vehicles were correctly shown on the said sketch. 7. On the other hand, RW2/Melbert Fernandes stated that the deceased at the time of accident was proceeding on motorcycle in a very fast speed and in a rash and negligent manner, who being unable to control the motorcycle, first gave a dash to truck no.5949 and after that fell down on the road and his motorcycle went under his tipper truck. He stated that the deceased gave a violent dash on truck no.5949 and in the process was flown off from his motorcycle and lay almost flat in the middle of the road. In cross- examination he stated that prior to the accident the deceased was driving the motorcycle and had overtaken his vehicle in a fast speed and went ahead. This statement certainly cannot be used to 7 favour the claimants since in case the deceased motorcyclist had overtaken truck no.9588 and had gone ahead then the motorcyclist would not have at all come in contact with truck no.5949 or under the said truck no.9588. He also stated that initially the deceased motorcyclist gave a dash on the oncoming truck no.5949 and the said rider fell down whereas the motorcyclist came under his vehicle. He also confirmed that the sketch and the position of the vehicles has been correctly shown. 8. The evidence of AW5/Ashok Dessai shows that while there were crash marks on the right side bumper of truck no.5949 which were due to the contact of the motorcycle, there was no damage to the truck no.9588 and this fact would disprove the claim now being made on behalf of the claimants that the truck no.9588 over ran the deceased after his fall on the road. As already stated, the evidence produced on behalf of the claimants has been discarded, as being unreliable. The evidence of both the drivers would show that the deceased motorcyclist was trying to overtake truck no.9588 more or less when they were crossing parallel to one another and finding that there was no space for him, the motorcyclist first dashed against truck no.5949 and fell on the road while truck no.9588 in a split second must have moved forward and the motorcyclist after 8 his fall, his motorcycle went further under the said truck no.9588 as shown on the sketch. Therefore, it is very clear from the evidence of both the drivers, that the accused, in an attempt to overtake truck no.9588 first dashed truck no.5949 then fell down and with the speed he was overtaking the truck no.9588, his motorcycle went ahead beneath the truck 9588. This position is clearly shown on the sketch which has been confirmed as correct by the said three witnesses. 9. Shri Dukle has invoked the principle of res ipsa loquitur relying on the judgment of the Apex Court in Pushpabai Parshottam Udeshi & Ors. V/s. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. & Anr. (1997 STPL (LE) 8897 SC) wherein Apex Court has stated that: “The normal rule is that it is for the plaintiff to prove negligence but in some cases considerable hardship is caused to the plaintiff as the true, cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. It means the accident “speaks for itself” or “tells its own story”.” The above, was a case where the driver had dashed against a tree which was on the right side of the road, 4 feet away from the 9 right hand side of the main metalled road and on the other side there were fields at the lower level. The tree against which the car dashed was uprooted and the car had dashed so violently that it had broken in the front side. It is under those circumstances that principle of res ipsa loquitur was invoked. 10. That is not the case at hand. The claimants came with a definite story and sought to support it with two witnesses one of whom was a panch witness who represented himself to be an eye witness and whose versions have been rejected by the learned MACT, being contrary to one another. The version given by both the drivers appear to be plausible and support the case as reflected in the sketch produced on behalf of the claimants themselves. The truck no.5949 is shown on the extreme left side of the road and in a way supports the version given by him. The truck no.9588 is again shown on its left side of the road with the deceased fallen at its back and the motorcycle having gone underneath the said truck which is more plausible with the story that the deceased in the process of overtaking the said truck no.9588 first dashed against truck no.5949 then fell down and the motorcycle with the velocity with which it was being driven fell behind the said truck no.9588 and travelled underneath the same. The submission that the truck 10 no.9588 dashed against the deceased motorcyclist and ran over him cannot be accepted, in the light of the versions given by both the drivers and in the absence of any damage caused to the truck no.9588. The accident was entirely due to the fault of the deceased motorcyclist and, therefore, the claimants would not be entitled to recover any compensation from the drivers/owners or the insurers of the said two trucks. 11. There is no merit in this appeal and, consequently, the same is hereby dismissed. No costs. N.A. BRITTO, J. NH/-