-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 121 OF 2006 Smt. Velina Gonsalves, wife of Shri Antonio Gonsalves daughter of Luis Fernandes, aged 48 years, service, resident of house No.105, Condy, Quepem, Goa. … Appellant V e r s u s 1. Shri Caitan Filu Fernandes son of Camilo Fernandes, major in age, resident of house No.180, Kuttemol, Ugem, Sanguem Goa (driver) 2. Shri Anthony Pereira son of Remedios Pereira, major in age, resident of House No.824 Kadebag, Kakoda, Curchorem Goa. (registered Owner) 3. Smt. Adelina Fernandes wife of Caitan Filu Fernandes resident of house No.180, Kuttemol, Ugem, Sanguem Goa. (real Owner) 4. The Oriental Insurance Company Ltd. Gafoor Building, 2nd floor, Station Road, Curchorem, Goa. (Insurer). …. Respondents. Mr. S. S. Kakodkar, Advocate of the Appellant. Mr. E. Afonso, Advocate for Respondent No.4. Coram :- F. M. REIS, J Date : 10 th June, 2011. JUDGMENT The above Appeal challenges the Judgment and Decree dated -2- 07.05.2005, passed by the learned Presiding Officer, Motor Accident Claims Tribunal, South Goa, at Margao, in Claim Petition no. 94/2003. 2. The Claim Petition was filed by the Appellant on the ground that on 03.10.2002, at about 12.30 p.m., at Quepem bus stop on the Quepem Margao Highway, an accident took place when the Appellant was getting down from the Challenger bus bearing registration no. GA-02-T-4288. It is further her case that at that time, the bus was proceeding to Margao and she fell down on the road and sustained a fracture to her left elbow and on account of the injury sustained by her in the said accident, the Appellant claimed compensation of a sum of Rs.2,00,000/-. The written statement has been filed by the Respondent nos. 1, 2 and 4. It is their contention that there was no accident which occurred at the relevant time as claimed by the Appellant in which the said bus was involved. It is further their case that the bus was not involved in any such accident and that the Appellant had safely alighted from the bus and was proceeding towards the passenger’s side when she fainted and fell down as she suffered a black out. It is further their case that the Appellant has given a distorted version to the police and fabricated a claim for compensation and, accordingly, prayed that the Claim Petition be rejected. 3. The learned Presiding Officer after framing the issues, recording the evidence and hearing the parties, by the impugned Judgment and Decree dated 07.05.2005, has rejected the Claim Petition filed by the Appellant. 4. Being aggrieved by the said Judgment and Award, the Appellant has preferred the present Appeal. -3- 5. Shri S. S. Kakodkar, the learned Counsel appearing for the Appellant has assailed the impugned Judgment and pointed out that the learned Judge has erroneously come to the conclusion that the accident has not been established by the Appellant. The learned Counsel has further pointed out that once it is admitted that the Appellant was traveling in a bus, it was incumbent upon the Respondent to establish as to how the injuries were sustained by the Appellant other than in the motor accident. The learned Counsel further submitted that the Appellant has brought evidence corroborating her version that the accident had occurred on account of the rashness and negligence of the driver of the motor vehicle and, as such, the Appellant was entitled for compensation. The learned Counsel has taken me through the evidence on record as well as the impugned Judgment and pointed out that there was sufficient material produced by the Appellant which clearly establishes that in fact the Appellant sustained injuries on account of the accident involving the said bus. The learned Counsel has further taken me through the evidence and pointed out that the Appellant has suffered a fracture to the left arm and that she was operated on 04.10.2002 and hospitalized from 03.10.2002 to 07.10.2002 and had to undergo physiotherapy from 02.11.2002, which prevented her from lodging a complaint immediately in respect of the said accident. The learned Counsel further submitted that the learned Judge has failed to take note of the fact that the Appellant had been provided first aid and was treated at Porvorim for the injury sustained in the said accident. The learned Counsel further pointed out that the learned Judge has erroneously discarded the evidence of Aw.2 as not being an eye witness. He further pointed out that the learned Judge was not justified in relying upon the evidence of the driver by dismissing the Petition filed by -4- the Appellant. The learned Counsel, as such submitted that the impugned Judgment be quashed and set aside and the Claim Petition filed by the Appellant be allowed. 6. On the other hand, Shri E. Afonso, the learned Counsel appearing for Respondent no. 4, has supported the impugned Judgment. The learned Counsel has minutely taken me through the evidence on record as well as the impugned Judgment and pointed out that the learned Judge has rightly appreciated every piece of evidence by the Appellant and failed to establish that the injuries were on account of the accident involving the said bus. The learned Counsel has further submitted that there is no evidence at all adduced by the Appellant which would justify any different conclusion. The learned Counsel further submitted that the very fact that the Appellant chose to file a complaint to the police after a long gap of time itself suggests that the story put forward by the Appellant is a cooked up story only to unlawfully claim compensation from the Respondent. The learned Counsel further submitted that there is no ground for interference in the impugned Judgment and as such the Appeal deserves to be rejected. 7. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present Appeal : POINT FOR DETERMINATION Whether the learned Tribunal was justified to come to the conclusion that the Appellant has failed to establish that an accident took place on account of the fault of the Respondent no.1 in driving the bus ? -5- 8. The case of the Appellant on the basis of the material on record is that she had boarded the bus at the Quepem Court bus stop to proceed to Quepem market bus stop and that when she was in the process of getting down from the bus, the driver of the bus started to move ahead as a result of which she fell down and sustained injuries. The case of the Respondents, on the other hand, is that the Appellant had already alighted from the bus and when she had reached at a distance, she suffered a black out and fell down. 9. The learned Judge whilst passing the impugned Judgment, has, on the basis of the material on record, come to the conclusion that it was the claim of the Appellant that she was the last passenger to get down at the bus stop at Quepem and that there were passengers who were also waiting to enter the said bus at Quepem market bus stop. The learned Judge also noted that a police complaint was filed only 22 days after the so called accident. The learned Judge also noted that there is no reason for any other family member or relative not to report the accident to the Police Station immediately. The learned Judge also noted that even in the report at Exhibit 29, there was no history of any injuries having been sustained on account of an accident before the Doctor who treated the Appellant. The learned Judge further found that mere casual observation in the cross examination to that effect would not support the case of the Appellant. The learned Judge has considered the evidence of Aw.2 and found that in her cross examination, she had admitted that she was a distant relative of the Appellant. She had also admitted that the police had not recorded her statement in respect of the said accident. The learned Judge concluded that her presence at the relevant time is to be doubted. As far as the evidence of Aw.3 is concerned, who claimed that -6- she was a neighbour of the Appellant at Condli and who had splashed water on the Appellant at the relevant time the learned Judge found that it was odd that said witness had claimed that she had returned from Panjim without proceeding with the Appellant to the hospital. The learned Judge also appreciated the evidence of Aw.5 and found that he had admitted that there was no brake marks found at the site. The learned Judge also disbelieved the version that any challan was given by Aw.5 to the driver of the bus. The learned Judge also noted that there was no prosecution against the Respondent no.1 under Section 134-B of the Motor Vehicles Act on account of any failure on his part to report any such accident. The learned Judge has also considered the evidence of Rw.1 Caitan Fernandes, who was the driver of the bus at the relevant time who had stated that the Appellant had got down from the front door and after she had walked about 4 to 5 metres ahead, she fell down. He has further stated that the cleaner and the conductor had gone to help her but she had stated that she fainted out of giddiness. He had further stated that as she was not involved in any accident, he had not reported any such accident to the police. The learned Judge took note of the cross examination of Rw.1 and found that his testimony has not been shaken. The learned Judge further held that the Appellant had failed to discharge the burden to establish the alleged accident. The learned Judge as such rejected the Claim Petition filed by the Appellant. 10. On consideration of the submissions of the rival parties, I find that Shri S. S. Kakodkar, the learned Counsel for the Appellant was unable to point out any piece of evidence which has not been considered by the learned Judge whilst passing the impugned Judgment. In case the contention of the Appellant that she -7- fell down from a moving bus is to be accepted, there is no reason why such matter would not have been reported to the police immediately especially considering that the bus is stated to have stopped at the market place which had many passengers who were alighting from the bus and others who wanted to enter the bus. Even in case the Appellant was not in a position to report the matter immediately, nevertheless, Aw.2, who claims to be a relative of the Appellant and alleges that she was present at the relevant time, could have filed such report to the police. Apart from that, it is well known that in cases in which a passenger falls from a moving bus, other passengers in the bus or passengers who are present at the bus stop would have immediately taken necessary steps to stop the bus immediately and report the matter. The fact that no evidence has been adduced nor any other averment that any other person had reported such matter to the police, itself suggests that the case sought to be advanced by the Appellant cannot be believed. There is no evidence on record to support the contention of the Appellant that she sustained injuries on account of the accident which involved the said bus. The version given by R.w.1, who was the driver of the bus at the relevant time, is planable in the facts and circumstances of the case. There is nothing to show that the Appellant had sustained any injuries when she was in the process of alighting from the bus. The delay in filing the report has not been satisfactorily explained by the Appellant which also suggest that the complaint was sought to be filed only to procure evidence so as to file the above Claim Petition. On perusal of the cross examination of Rw.1, I find that the cross examination is only of mere denials put by the Appellant to the said witness. There is a categorical statement made by Rw.1 in his deposition to the effect that the fall of the Appellant was in no way connected with the bus driven by him as she had already got down from the bus and moved -8- away. These factual aspects as stated by the said witness have not been shaken by the Appellant in the cross examination. 11. Aw.5 in his cross examination has stated that he had treated the Appellant without giving much attention to the fact as to whether her case was a medico legal case. This further establishes that at the time of her admission to the hospital even the concerned Doctor did not find it appropriate that her case would come within the scope of a medico legal case. All these inferences suggest that the Claim Petition filed by the Appellant was made as an afterthought as the injuries sustained by her were not on account on any accident involving the said bus. The learned Judge has rightly appreciated the evidence on record and has come to the conclusion that the Appellant had failed to established the fact that an accident had occurred which resulted in the injuries sustained by her. There is no reason to interfere in the impugned Judgment. The point for determination is answered accordingly. 12. In view of the above, there is no merit in the above Appeal and, as such, the Appeal stands dismissed with no orders as to costs. F. M. REIS, J. arp/*