- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 53 OF 2004. 1 Smt. Nagama Shamu Dhotre, aged 49 years, wife of deceased Shamu Gangaram Dhotre; 2 Fullabai Shamu Dhotre, aged 29 years, daughter of late Shamu Gangaram Dhotre; 3 Sakubai Shamu Dhotre, aged 28 years, daughter of late Shamu Gangaram Dhotre; 4 Hanumant Shamu Dhotre, major in age, son of late Shamu Gangaram Dhotre; 5 Sucila Shamu Dhotre, aged 22 years, daughter of late Shamu Gangaram Dhotre; and 6 Kamal Shamu Dhotre, aged 21 years, daughter of late Shamu Gangaram Dhotre; .......... Appellants. Versus 1 Shri Chandrakant Sakharam Talgaonkar, resident of House no. 448, Tony Nagar, Sanvordem, Goa; - 2 - 2 Shri Rajendra Chandrakant Talgaonkar, resident of House no.448, Tony Nagar, Sanvordem, Goa; and 3 The New India Insurance Co., Ltd., Jagannath Building, Jose Inacio de Loyola Road, Near Railway Gate, Margao, Goa. .......... Respondents. Mr. S. S. Kakodkar, Advocate for the Appellants. Mr. P. A. Kamat, Advocate for the Respondent nos. 1 and 2. Mr. E. Afonso, Advocate for the Respondent no. 3. Coram:-F. M. REIS, J. Date:-2nd December, 2010. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 1.12.2003 passed by the learned Presiding Officer, Motor Accident claims Tribunal, South Goa at Margao whereby the claim petition filed by the appellants came to be dismissed with costs. 2. Briefly the facts of the case are that the above claim petition was filed by the appellants under section 166 of the Motor Vehicles Act claiming an amount of Rs. 3,00,000/- besides compensation under no fault liability. The case of the appellants is - 3 - that the husband of appellant no. 1 and father of appellant nos.2 to 6 died on account of the motor vehicular accident which occurred on 4.9.1993 near the Primary school, at Fondkulem, Sanvordem road. It is their case that the deceased was proceeding to his house situated at Fondkulem and when he reached near the said Primary school, a truck bearing no. GA-02-T-6639 driven by the respondent no. 2 in a rash and negligent manner gave a violent dash to the deceased as a result of which he was crushed underneath the truck and died on the spot of accident. It is further their case that the respondent no. 2 without providing any assistant to the deceased went with the vehicle without informing the police regarding the said accident. Upon inquiry it is their case that the respondent no. 2 was solely responsible for the accident which resulted in the death of the deceased. Accordingly appellants filed claim petition for the said relief. Respondent nos. 1 and 2 disputed the contention of the appellants and stated that the said truck was not at all involved in any such accident. It is further their case that the panchanama of the spot of the accident and the sketch which have been placed on record do not speak about involvement of the truck belonging to the respondent no.1. It is further their case that the FIR which was placed on record also do not show any involvement of the said truck and the post mortem report does not - 4 - establish any nexus between the cause of the death and the accident. It is further their case that on the said date and time the truck was out of Savordem and only at about 11.00 p.m. it was brought to the resident of the respondent no.1. It is further their case that in connivance with the appellants documents have been fabricated by the police after the said accident to detriment the interest of the respondents. Learned Tribunal after framing of the issues and recording of the evidence and hearing the parties by Judgment and Award dated 15.9.2001 dismissed the claim petition filed by the appellants. Being aggrieved by the said Judgment the appellants preferred the first appeal before this Court being First Appeal no. 166/2001 and by Judgment dated 11.7.2003 this Court set aside the said impugned Judgment and award and remanded the case to enable the appellants to lead additional evidence. Thereafter, after recording of the evidence the learned Tribunal by Judgment and award dated 1.12.2003 dismissed the claim petition with costs. 3. Being aggrieved by the said Judgment and award, the appellants have preferred the present appeal. 4. Shri S. Kakodkar, learned Counsel appearing for the - 5 - appellants has assailed the impugned Judgment and submitted that there is ample evidence on record to substantiate that the truck belonging to the respondent no. 1 was involved in the motor accident which resulted in the death of the husband of the appellant no.1. Learned counsel further took me through the evidence and pointed out that there were eye witnesses who have deposed that the said truck was involved in the accident. Learned Counsel further took me through the written statement filed by the respondent nos. 1 and 2 and pointed out that alibi plea therein to the effect that the truck was engaged to take some goods at Margao on the relevant date and time is contrary to what has been deposed by RW1 who is respondent no.2. He further pointed out that the Tribunal has failed to appreciate the evidence on record in accordance with well settled principles of law while deciding the Motor Accident claim. Learned Counsel further submitted that there was sufficient evidence on record to substantiate the claim of the appellants that the accident occurred on account of rashness and negligence on the part of the respondent no. 2 which resulted in the death of the deceased. 5. On the other hand Mr. P. A. Kamat learned Counsel appearing for respondent nos.1 and 2 and Mr. E. Afonso, learned - 6 - Counsel appearing for respondent no.3 have supported the impugned Judgment. They further submitted that the appellants have miserably failed to establish any nexus between the truck belonging to respondent no. 1 with the said accident. He further pointed out that there is no material on record for the Tribunal to come to the conclusion that the truck belonging to the respondent no.1 was involved in the motor accident. They further submitted that there is no infirmity committed by the learned Tribunal and as such no interference is called for in the impugned Judgment. 6. I have heard learned counsel for the appellants as well as respondents at length and on going through the evidence on record as well as the impugned Judgment and award passed by the learned Presiding Officer it was indicated through the counsel that this Court is inclined to remand the matter to the learned Tribunal for reassessing the evidence on record in accordance with law. Before I could proceed to dictate the Judgment, learned Counsel for the parties request that no reasons may be recorded as any reasons therein may cause prejudice to either of the parties at the time of hearing of the claim petition after remand. Counsel submitted that since the matter is being remanded only an order of remand may be passed without - 7 - recording any reasons. They also stated that they have no objection for remand of the matter to the learned Motor Accident Claims Tribunal. 7. In view of the above, I pass the following:- O R D E R i. Appeal is partly allowed. ii. Impugned Judgment and Award dated 1.12.2004 is quashed and set aside. Claim petition no. 130/1994 is restored to the file of Motor Accident Claims Tribunal, South Goa at Margao. iii. Learned Tribunal is directed to decide the said claim petition a fresh after hearing both the parties without being influenced with any of the findings earlier given in the said proceedings, in accordance with law. iv. The appeal stands disposed of accordingly with no order as to the costs. v. Parties are directed to appear before Motor Accident Claims Tribunal, South Goa Margao on 10.1.2011 at 10.00a.m. F. M. REIS, J. vn* - 8 -