-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 214 OF 2006 Caitan Vaz s/o. Ilhas Vaz, in service Age 57 years, r/o. Villaga Vaz Choicolna Bogmalo, Goa. …... Appellant/Original Claimant V e r s u s 1. Shri Emanual Sanches, age, major, Occ: service r/o. Near Vaddem Lake, Vaddem, Vasco da Gama, Goa. (Driver) 2. Shri Eknath N. Salkar, B-2-6, Zuari Colony, Zuari Nagar, Goa (Owner). 3. National Insurance Co. Ltd., 3rd Floor, Vaman Smruti Near Laxmi Narayan Temple, Mapusa, Bardez, Goa, 402 507. (Registered Addresses) …... Respondents Ms. S. Linhares, Advocate for the Appellant. Mr. R. G. Ramani, Advocate for Respondent no.3. Coram :- F. M. REIS, J Date : 22 nd July, 2011. JUDGMENT The above Appeal challenges the Judgment and Award passed by the Presiding Officer of the Motor Accident Claims Tribunal at Margao, in Claim Petition No. 123/2001 dated 24.11.2005. The Applicant filed the Claim Petition on the ground that on 10.08.2000, after the lunch break at Goa Shipyard Ltd., he was proceeding on his scooter bearing no. GA-02-L-2451 towards Bogmalo at about -2- 12.10 p.m. and at that time, the Respondent no.1 came in a rash and negligent manner and in a high speed by driving his Maruti car bearing no. GA-02/A-1535 and dashed against the Appellant near Salgaonkar's hospital due to which the Appellant sustained fracture injuries. It is further his case that the Respondent no.1 took the Appellant in his car to the hospital of Dr. Verenkar for treatment and thereafter shifted to the hospital of Dr. Talaulikar at Vasco. On account of the injuries sustained in view of the said accident, it is the case of the Appellant that he suffered expenditure of a sum of Rs.60,000/- on medicines, about Rs.7,000/- towards conveyance and attendant and Rs.10,000/- towards special diet. He further claimed a sum of Rs.30,000/- towards operation expenses and claimed further sum of Rs.1,00,000/- for the loss towards his wages for the period of about ten months and accordingly filed a Claim Petition. 2. The Respondents after being duly served, have filed their written statement. The Respondent nos. 1 and 2 failed to appear to contest the matter but, however, the Respondent no.3 denied the claim of the Appellant on all grounds and also about the accident involving the vehicle driven by the Respondent no.1 and owned by Respondent no.2. 3. The Tribunal after framing the issues and recording of evidence, dismissed the Claim Petition filed by the Appellant. 4. Being aggrieved by the said Judgment, the Appellant has preferred the present Appeal. -3- 5. Ms. S. Linhares, the learned Counsel appearing for the Appellant has assailed the impugned Judgment and pointed out that there was ample of evidence on record to substantiate that the Respondent no.1 was driving the motor car in a rash and negligent manner which resulted in the accident in which the Appellant sustained injuries. The learned Counsel further submitted that the Tribunal has totally misconstrued the evidence on record and disbelieved the evidence adduced by the Appellant to come to an enormous conclusion that the Appellant failed to establish that the vehicle was involved in the accident. The learned Counsel further submitted that there was ample of evidence on record adduced by the Appellant to substantiate his claim that he is entitled to a sum of Rs.2,55,672/- as compensation on account of the injuries sustained by him in the motor vehicle accident. The learned Counsel has further taken me through the evidence on record and pointed out that the rashness and negligence of the Respondent no.1 had been duly established and, as such, the impugned Judgment deserves to be quashed and set aside. 6. On the other hand, the Respondent nos. 1 and 2 though served, failed to remain present. Learned Counsel Mr. R. G. Ramani for the Respondent no.3, has supported the impugned Judgment. The learned Counsel has taken me through the impugned Judgment and pointed out that the Appellant has failed to establish that the vehicle driven by the Respondent no.1 was the cause of the accident which resulted in the injuries. The learned Counsel has taken me through the evidence on record and pointed out that no corroborative evidence has been adduced by the Appellant to establish the fact that the motor vehicle driven by the Respondent no.1 was the cause of accident. The learned Counsel further -4- submitted that no case papers from the hospital have been produced to substantiate or corroborate the contentions of the Appellant. The learned Counsel has further submitted that there is no case for interference and, as such, the Appeal be dismissed. 7. On perusal of the evidence and considering the submissions of the learned Counsel, the following point for determination arises in the present Appeal : 1. Whether the learned Tribunal was justified to reject the Claim Petition of the Appellant ? 8. On perusal of the Claim Petition, it is the contention of the Appellant that during the lunch break he was proceeding on his scooter towards Bogmalo and that the Respondent no.1 was driving his motor vehicle in a rash and negligent manner and in a high speed near the Regina Mundi High School and dashed against the Appellant. It is also admitted that the Respondent no.1 had taken the Appellant to the hospital in his vehicle. He has further given the details of ailment suffered by him on account of the said accident. The Respondent no.3 has filed the written statement disputing the said contents. In support of his claim for the compensation, the Appellant has examined himself and he has narrated the facts as stated in his Claim Petition. He has further stated that the accident had occurred on 10.08.2000. He only went on 26.03.2001 to inquire at Dr. Talaulikar's Hospital whether they had reported the matter to the police. He has further stated that on 26.03.2001 itself, he lodged a police complaint. He has also stated that he filed a private complaint before the learned J.M.F.C., at Vasco da Gama and the process was issued on 02.08.2001 against the Respondent no.1. He has further -5- stated that an application was filed by the Respondent no.1 to recall the process and that in the revision preferred by the Appellant challenging the recall of process, came to be rejected by the learned Sessions Judge. He has further stated that the Respondent no.1 had stated that he had helped the Appellant to be taken to the hospital. In his cross examination, he has denied the suggestion that there was no accident at all involving with any motor vehicle. 9. The next witness examined is Diniz Mascarenhas, who claimed to have been a witness. In his cross examination, he stated that he knows the Appellant and that his statement was not recorded by the police. He denied the suggestion that he was deposing falsely to help the Appellant. 10. The learned Tribunal whilst passing the impugned Judgment has noted the fact that the accident is alleged to have taken place in August, 2000 and the complaint was lodged only in June 2001. The learned Judge has also noted the fact that the process issued by the learned J.M.F.C. was recalled and the revision preferred by the Appellant came to be rejected. The application for recall was essentially on the ground that no accident took place and that the vehicle was not involved in the accident. The learned Judge has also noted that there was nothing in the records of the hospital to show how the injuries occasioned to the Appellant. The learned Judge has found no material on record to establish that any of the injuries had occasioned on account of the accident. The learned Judge has also doubted the truthfulness of Aw.2 and found that there is no reasonable explanation as to why Aw.1 or Aw.2 lodged a complaint to the police in case injuries were sustained on account of the accident. The learned Judge found that in the facts -6- and circumstances of the case, there is no material on record to accept the case of the Appellant. The learned Judge as such rejected the complaint. 11. On the basis of the evidence on record and the findings of the learned Tribunal, I find that there is absolutely no material adduced by the Appellant to substantiate his claim that the Respondent no.1 was involved in the accident. The Doctor or any other officials from the hospital have not been examined to corroborate the contentions of the Appellant that the injuries sustained by the Appellant were on account of motor vehicle accident. The burden to establish that an accident had occurred and that the injuries sustained by the Appellant were on account of such accident, is upon the Appellant. No witnesses or any material has been produced to establish the fact that the Respondent no.1 was driving the motor vehicle in a rash and negligent manner at the relevant time. The factum of accident has not been established by any evidence on record. Aw.2, who claims to know the Appellant from his childhood and alleges that he was present at the time of the accident, does not state why the FIR was not lodged or any police complaint was filed in respect of the said accident. The J.M.F.C. whilst passing the Order to recall the process has also noted that no such FIR was lodged. Aw.2 who claims to be the neighbour of the Appellant has also not stated as to why a police complaint was not lodged immediately after the alleged accident. No person has been examined to establish the fact that the Appellant was taken to the hospital in view of an accident. Considering that no such evidence is found on record, I find that the learned Tribunal was justified to come to the conclusion that the Appellant has failed to establish the fact that he sustained injuries on account of the accident. The learned Presiding Officer has scrutinized the evidence in accordance with law -7- and, as such I find that no infirmity has been committed by the Tribunal in dismissing the Claim petition of the Appellant. The point for determination is answered accordingly. 12. In view of the above, I find no merit in the above Appeal and, as such, the Appeal stands dismissed with no Orders as to costs. F .M. REIS, J. arp/*