1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 335 OF 2003 1. Shri Francisco D'Souza, Major of age, R/o Sonarbhatt, Deao, Quepem, Goa .. Appellant Vs. 1. Rolando Travasso, major, S/o Pascal Travasso, R/o Condi, Quepem, Goa. 2. Umesh Potkar alias Potekar, R/o Borimol, Sirvoi, Quepem, Goa. 3. The New India Assurance Co. Ltd., Jaganath Building, Near Railway Gate, Margao, Goa .. Respondents Mr. A. Kamat, Advocate for the appellant. Mrs. A. Agni, Advocate for the respondent No.1. CORAM :- A. S. OKA,J. Date : - 23 rd July, 2010. JUDGMENT : (Per A. S. OKA, J) By this appeal an exception has been taken to the Judgment and Award dated 1st June, 1998 passed by the learned Presiding Officer of the Motor Accident Claims Tribunal. The present appellant is the second respondent in the Claim Petition filed by the first respondent under Section 2 110/A of the the said Act of 1939(hereinafter referred to as “the said Act of 1939”). The case made out by the first respondent is that on 25th December, 1988 at about 4.20 hours, the second respondent while plying an Auto-rickshaw caused the accident. The allegation is that the said respondent was driving the Auto-rickshaw in a rash and negligent manner. It is alleged in the Claim Petition is that the said Auto-rickshaw went off the road and turned turtle in the paddy filed on the side of the road. It is stated that the Auto-rickshaw was insured with the third respondent which was owned by the present appellant. 2. The third respondent, insurer of the Auto- rickshaw filed written statement denying that the second respondent was driving the Auto-rickshaw in a rash and negligent manner and that the third respondent admitted that the first respondent was a passenger travelling by the Auto-rickshaw. The third respondent pleaded that its liability was limited to Rs.15,000/-. 3. The present appellant filed written statement contesting the claim made by the first respondent. He came out with the case that he had entrusted the Auto-rickshaw to 3 Prakash Rajaram Pawaskar by executing a Power of Attorney as the appellant was a seaman. He stated that he never authorised the second respondent to ply the Auto-rickshaw on the date of the accident. 4. The first respondent examined himself and 3 other witnesses. The second witness examined by the first respondent is an Orthopedic Surgeon. The third witness is the so called eye-witness to the accident and the fourth witness is a Police Constable, who was examined for production of the copies of the First Information Report and the panchanama. No other party examined any other witness. The Tribunal disbelieved the case made out by the third witness examined by the first respondent. The Tribunal, however, found that no evidence was adduced by the respondent in the Claim Petition and, therefore, adverse inference was required to be drawn. Compensation of Rs.1,09,000/- with interest at the rate of 12 % was granted by the Tribunal, which was inclusive of an amount of Rs.15,000/- with interest granted under Section 92/A of the the said Act of 1939. 5. The learned Counsel appearing for the appellant 4 submitted that the case made out by the first respondent that he alighted from the Auto-rickshaw and went ahead to urinate and while he was urinating, the Auto-rickshaw driven by the second respondent gave dash to him is not supported by the third witness examined by the first respondent and the evidence of both the witnesses was inconsistent with the version in the First Information Report. He submitted that the burden was on the first respondent to prove negligence and involvement of the Auto-rickshaw in the accident. He submitted that burden was not discharged and, therefore, the learned Presiding Officer could not have drawn an adverse inference against the appellant and the second respondent as the Appellant was under no obligation to adduce evidence after the first respondent having failed to discharge the burden on him to establish the involvement of the Auto- rickshaw. He submitted that the involvement of the Auto- rickshaw is not proved and, therefore, the Claim Petition ought to have been dismissed. 6. The learned Counsel appearing for the respondent submitted that what is stated in the First Information Report at Exh.CW4/A is consistent with the pleading in the Claim Petition. She pointed out that the 5 second respondent did not file written statement and, therefore, the allegations of negligence made in the Claim Petition shall be deemed to have been admitted. She submitted that the learned Presiding Officer was justified in drawing adverse inference as no attempt was made to even examine the second respondent. She pointed out that the appellant did not enter the witness box. She submitted that the Tribunal constituted under the said Act of 1939 is not bound by the strict rules of evidence. She placed reliance on the decision of the Apex Court in the case of N.K.V. Bros. (P) Limited Vs. M. Karumai Ammal;(AIR 1980 SC 1354). She also relied upon the decision of Guahati High Court in the case of Ranu Bala Paul and others Vs. Bani Chakraborty and others (1999 ACJ 634) and submitted that the Tribunal has rightly drawn adverse inference as the Tribunal is not expected to adopt niceties of the Civil or Criminal Courts. She submitted that the enquiry called for in the Claim Petition is a summary enquiry and the Tribunal must keep it in mind that the the said Act of 1939 is a welfare legislation. 7. I have given careful consideration to the submissions. The first issue which arises is as regards the involvement of the Auto-rickshaw owned by the appellant. 6 The second issue is of rash and negligent driving on the part of the second respondent and the third issue is regarding quantum of compensation. 8. In the Claim Petition filed by the first respondent, the specific case as regards the accident has been set out in paragraph 11 thereof. Paragraph 11 reads thus : “On 25/12/88 at about 4.20 hrs. the Resp. No.1 drove his Rickshaw bearing Registration No.GDZ1246 in a rash and negligent manner as a result of which the Applicant was injured after the Rickshaw went off the road and turned turtle in the paddy field on the side of the road. The Rickshaw is owned by the insured with the Resp. No.2 and 3 respectively. The Applicant was admitted in the Hospicio Hospital, Margao but as his condition became worse he was referred to Goa Medical College Hospital, Panaji and thereafter was treated by a bone-setter. The Applicant is confined to bedrest at home since the accident and is practically unable to move the lower part of his body.” 9. The insurer of the Auto-rickshaw filed written statement. The denial in the written statement is confined to the allegation that the second respondent drove the Auto- 7 rickshaw in a rash and negligent manner. In fact in paragraph 3 of the written statement, the third respondent accepted that the first respondent was a passenger travelling in the Auto-rickshaw at the time of accident. 10. Paragraph 7 of the written statement of the second respondent reads thus : “7. With reference to para 11 of the said application the respondent do not admit its contents thereof being the same are patently false, concocted and hence the same are denied. The respondent further states that he entrusted the said vehicle to Shri Prakash Rajaram Pawooskar by executing constituted power of attorney, since this respondent was being a seaman. The respondent further states that he never authorised to respondent No.1 to drive his said vehicle on the date of the incident. The respondent No.1 drove the said vehicle on the date of the incident without the permission of the respondent No.2.” On plain reading of the said paragraph, though the appellant has denied the allegations in paragraph 11 of the Claim Petition, it is obvious that the appellant admitted that on the date of the incident the Auto-rickshaw was being 8 driven by the second respondent herein. 11. The first respondent stepped into the witness box. It will be interesting to note his version in the examination-in-chief. In examination-in-chief, he stated thus : “I was travelling in rickshaw GDZ 1246 driven by Umesh Potdar from Colva to Quepem. At Quepem Porvot road I got down from the rickshaw. I went ahead of the rickshaw to urinate and while I was urinating Umesh Potkar drove the rickshaw and dashed me. I received injuries on my back. I was taken to Hospicio Hospital, but I do not know who had taken me since I was unconscious. From there I was taken to GMC Bambolim. I was in GMC Bambolim for 8 days after which I was brought home to die since my condition was critical. I heard my mother saying so.” In paragraph 11 of the Claim Petition he has come out with a case that the Auto-rickshaw was being driven in a rash and negligent manner as a result of which he was injured and thereafter, the Auto-rickshaw went off the road and turned turtle in the paddy field. It is not the case made out in the claim application that he got down from 9 the auto rickshaw for urinating and thereafter, he got injured. An altogether a new case was made out at the time of recording of evidence that he was travelling by the same Auto-rickshaw and he got down from the Auto-rickshaw to urinate, and while he was urinating, the second respondent drove the Auto-rickshaw and gave a dash to him. Thus, a completely new version is brought on record in the examination-in-chief. 12. The third witness examined by the first respondent is a so called eye-witness. In his examination-in- chief, he stated thus : “Somewhere in the month of December, the year of which I do not remember, the claimant met with an accident at Paroda. While myself and the claimant were proceeding in a rickshaw from a dance, on reaching Paroda, the claimant got down. As he was walking ahead, the same rickshaw in which we have travelled, dashed against the claimant.” The said witness claims to be an eye-witness. 10 However, he does not depose that while the first respondent was urinating, a dash was given by the Auto-rickshaw. He has not stated as to what happened to the Auto-rickshaw after the accident. He claimed that he along with first respondent were travelling by the said Auto-rickshaw. However, such a case of presence of the said witness along with the first respondent in the Auto-rickshaw is not at all made out by the first respondent either in the Claim Petition or in his evidence. The certified copy of the First Information Report was produced at the instance of the first respondent by the fourth witness examined by him. All that the First Information Report records is that the Auto-rickshaw turned turtle and the passenger in the Auto-rickshaw suffered injuries. Thus, not only a completely new case was made out by the first respondent in the evidence, but the said case is inconsistent with what is stated in the First Information Report and, that what is stated by the third witness examined by the first respondent is not consistent with the version of the first respondent. It is true that the Tribunal cannot adopt a hyper technical approach and is not bound by the strict rules of evidence. However, in the present case, even if the evidence of the witnesses examined by the first respondent is taken as correct, it is impossible to record a finding that the 11 first respondent had discharged the burden of proving negligence on the part of the second respondent. The third respondent had admitted the involvement of the Auto- rickshaw in the said accident. The present appellant had no personal knowledge whether the Auto-rickshaw was involved. The Appellant and second respondents failed to enter the witness-box to say that the Auto-rickshaw was not involved. Thus, it cannot be said that the Auto-rickshaw was not involved in the accident, but surely in the light of what is stated above, it is impossible to record a finding that there was any negligence on the part of the second respondent. Even if very liberal approach is to be adopted while interpreting evidence by the first respondent, it must be stated that the evidence is not worthy of acceptance. 13. Thus, the involvement of the Auto-rickshaw in the accident cannot be disputed. The negligence has not been established as the initial burden was not discharged by the first respondent. The learned Presiding Officer could not have drawn adverse inference on the failure of the appellant and second respondent to enter the box to the extent of holding that negligence on the part of the second respondent was proved. On failure of both of them to enter the witness 12 box the only adverse inference which can be drawn legitimately is as regards the involvement of the Auto- rickshaw in the accident. 14. In the present case, the first respondent has already received the compensation of Rs.15,000/- with interest from the third respondent – insurer pursuant to the order made under Section 92/A of the the said Act of 1939. As the involvement of the Auto-rickshaw admittedly insured with the third respondent is established, the Award made on account of no fault liability cannot be disturbed. However, the first respondent will not be entitled to any further amount on account of failure to prove the negligence. Hence, the appeal must partly succeed. 15. I pass the following order : (i) The impugned Judgment and Award is set aside only to the extent to which the Claim Petition under Section 110/A of the the said Act of 1939 was partly allowed and the Claim Petition stands dismissed. (ii) It is, however, made clear that the Award made under Section 92/A of the said Act of 1939 is maintained as the involvement of the Auto- rickshaw in the accident has been duly proved. 13 (iii) The amount deposited by the appellant in this Court be paid over to the appellant on the expiry of period of 60 days from today. (iv) The appeal is allowed in above terms with no orders as to costs. A. S. OKA, J SMA