… 1 … IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 9 OF 2001 1. Khatijabi Mulla w/o late Abdul Mulla, aged years, resident of C/o Hussainsab Mulla, Kalinur, Taluka Shigoa, Dist.Dharwar, Karnataka 2. Master Faij Ahmed Mulla s/o late Abdul Mulla, aged 8 years, 3. Miss Reshmabanu Mulla, d/o late Abdul Mulla, aged 6 years 4. Master Maksood Ahmed Mulla s/o late Abdul Mulla, aged 4 years, 5. Miss Saira Banu Mulla d/o late Abdul Mulla, aged one and half month old Applicants 2 to 5 are herein represented by their mother and natural guardian Applicant No.1 Smt. Khatijabai Mulla All residents of H.No.433, E.W.S. Colony, Davorlim, Salcete – Goa. .. Appellants. Versus 1. Oswald Cardozo, s/o Pedro Filipe Cardozo, r/o Raia Santa Xavier Vaddo, H.No.657, Salcete- Goa 2. Pedro F. F. Cardozo, r/o H. No.657, Raia, Santa Xavier Vaddo, salcete – Goa. (since deceased, represented by his legal heirs) … 2 … 2(a) Smt. Santana Rodrigues Cardozo, widow, (b) Shri Marcus Cardozo, (son) (c) Shri Oswald Cardozo (son) and (d) Miss Maria Vieney Cardozo, (daughter) All residing at House No.1091, Raia, Salcete – Goa 3. National Insurance Co. Ltd., 2nd Floor, Marchon building, Opp. Lohia Maidan, Nargao-Goa (Deleted vide order dated 28.6.93). .. Respondents. Mr. N. Sardessai with Mr. Deep Shirodkar, Advocates for the appellants. Mr. S. G. Bhobe with Ms. Piementa, Advocates for the respondents. CORAM :- U. D. SALVI,J. DATE OF RESERVING THE JUDGMENT : 9 th April, 2010 DATE OF PRONOUNCING THE JUDGMENT : 23 rd April, 2010 JUDGMENT : Dismissal of the Motor Accident Claim Petition No.333/1992 by judgment and award dated 11.09.2000 … 3 … passed by the Ld. Motor Accident Claims Tribunal, South Goa, Margao is in issue in this appeal. 2. Undisputedly, one Abdul Mulla, husband of the appellant No.1 Khatija Bee and father of the other appellants died in the motorcycle accident, which occurred at 5.30 p.m. on 27.7.1992 on the road near Multipurpose High School leading to Margao from Borda, and the said motorcycle of the ownership of the respondent No.2 Pedro Cardozo was driven by his son respondent No.1 Oswald Cardozo at the material time. Only the manner in which this accident occurred is the subject matter of the controversy in the present appeal. 3. According to the appellants, the respondent No.1 riding a motorcycle No.GDJ-3490 hit the deceased Abdul, who was walking on the road and proceeding towards Margao, from behind in rash and negligent manner, and the deceased succumbed to the injuries sustained as a result of the said accident. On the other hand, the respondents have contended that the deceased Abdul was crossing the road in a drunken state and dashed against the motorcycle driven by the respondent No.1 as a result of which the respondent no.1 sustained head injury and fracture to the left hand forefinger … 4 … and the accident had occurred entirely due to the fault of the deceased vide written statement dated 12.04.1993. 4. The appellant No.1 - Khatijabe examined herself and three more witnesses including the Medical Officer, who had conducted autopsy on the body of the deceased Abdul. The respondent No.1- Oswald examined himself as well as RW2 Navneet Arsekar, who claimed to be an eye-witness of the incident. 5. Considering the evidence of CW4 - Dr. Silvano Sapeco, the Medical Officer, who conducted the postmortem examination of the body of the deceased, the Ld. Claims Tribunal rightly held that the deceased succumbed to the injuries sustained in the said accident. This fact has remained undisputed. 6. As regards the deceased being in the drunken state, the Ld. Claims Tribunal found no enough proof in the evidence adduced by the rival parties. What remains in question, therefore, is the manner in which the accident had taken place. … 5 … 7. Acquittal of the respondent No.1 – Oswald in the criminal case arising out of said accident has been pitted in the present appeal as a ground in support of the plea for dismissal of this appeal. Such specious plea deserves to be rejected only for the simple reason that while deciding the issue of negligence in a civil case, one has to examine the issue on the touchstone of preponderance of probabilities and not ask for proof of negligence beyond reasonable doubt as is done in the criminal cases. Ld. Advocate Shirodkar for the appellants in support of this thinking cited judgment of the Hon'ble Apex Court reported in 1980(3) SCC 457 – N. K. V. Brothers (P) Ltd. Vs. M. Karumai Ammal and others, wherein the Hon'ble Apex Court observed as under : “The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow the suit, was rejected and rightly. The requirement of culpable rashness under Section 304-A, IPC is more drastic than negligence sufficient under the Law of Tort to create liability.” 8. The Hon'ble Apex Court further observed in N. K. V. Brothers (P) Ltd's case as under : “The Accident Tribunal must take special care to see that innocent victims do not suffer and driver … 6 … and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes.” It is, therefore, necessary to ascertain from the evidence the circumstances from which culpability can be reasonably inferred. 9. CW1- Khatija - the appellant No.1 was not an eye- witness. CW2 - Ulgappa deposed that he was a panch witnessing the drawal of the scene of offence panchanama Exh.CW2/A and the sketch thereof Exh.CW2/B. He added that the police had taken measurements at the place of accident and drawn the panchanama and the sketch at the spot in the evening of that fateful day. There is no reason to disbelieve his statement as hardly anything turns in that regard in his cross-examination. 10. CW3 - Damodar Korgaonkar added material dimensions to the evidence regarding the facts immediately preceding the accident. He deposed that the accident took place at a distance of about 12 to 15 meters from the place … 7 … i.e. his construction site where he was standing and at the material time, the offending motorcycle was proceeding from Santimole to Margao and the deceased accompanied by two other workers was also going in the same direction along the left hand side of the road. It is this part of the evidence, which inspired the Ld. Advocate Deep Shirodkar for the appellants to make submission that the respondent No.1 dashed the deceased from behind in rash and negligent manner in as much as the respondent No.1 neither blew horn nor applied brakes to avoid the accident. 11. Countering these submissions, ld. Advocate S. G. Bhobe for the respondents drew the attention of the Court to the evidence of CW3 – Korgaonkar, who could not state whether the accident was caused by a scooter or a motorcycle and whether three workers including the victim were walking on the tar road or kachcha road. This weakness of the witness, he further pointed out became the basis sufficient enough for the ld. Claims Tribunal to believe a fact that CW3 Korgaonkar had not seen the said incident, particularly the victim in or about the time of the incident as he was not present there at the material time. All that can be said about this weakness of the witness is that his ability to … 8 … keenly observe the facts and distinguish them was not up to the mark. This can also be stated about his lack of observation of injuries sustained by the motorcyclist, the nature of which only figures through the evidence of RW1 – Oswald the offending motorcyclist. Evidence of RW1 - Oswald and RW2 - Arsekar describes the said injuries as fracture on left forefinger and cut on left eyebrow. There is no further revelation in their evidence as to whether the said injuries were noticable or not. However, a fact can be clearly seen from the evidence of CW3- Korgaonkar that he had not seen the dash taking place, but happened to reach the spot of incident after the deceased fell down. 12. Medical evidence which has been completely overlooked by the ld. Claims Tribunal while appreciating the evidence of the rival parties offers certain material clues. CW4- Dr. Silvano Sapeco adduced in evidence autopsy report Exh.29 prepared following autopsy performed by him on the body of the deceased victim Abdulsab Mulla. He categorically opined that the death of the victim was due to damage to head and brain of the deceased consequent to road traffic accident. There is no challenge to this opinion in the cross-examination of CW4 - Dr. Sapeco. What led to such … 9 … fatal damage to the head and brain of the normal victim having athletic built can be seen from the injuries described in the report Exh.29 as under : Sr No Nature of Injury Size Site 1) Stitches of lacerated wound 4.5 cm At Left side back of scalp along occipital region 2) Transverse abrasion 3x1/2 cms At right temple 3) Pink abruise 3 cm x 8 cm On inner aspect of right knee 4) Abrasion 4x3 cms. At back of left shoulder blade 5) Abrasion 5X4 cms At pronated aspect of left forearm upper third 6) Abrasion 2x1cms At small region of the back 7) Abrasion 2x1 cms At right upper back of buttock. 13. Locations of the injuries have been also graphically shown in the report Exh.29. Interestingly, all these injuries, except injury Nos. 3 and 2, figure on the back side of the person of the victim. Injury No.3 is between two legs and injury No.2 is on the right side. Even going by the version of RW1 - Oswald that he was proceeding from Raia to Margao and the victim was hit in a running position, such injuries are possible if the front wheel of the motorcycle passes in the gap between two legs caused as a result of the … 10 … victim taking a step ahead with left leg and its front wheel hitting the right buttock of the victim and making him loose balance to fall backward. It is, therefore, not possible to reject a probability peeping through meaningful reading of the evidence of CW3 - Korgaonkar with other evidence on record that the speeding motorcycle hit the victim from the backside when almost the victim had crossed over from the path of the motorcycle and as a result thereof the victim lost balance and fell backward on the motorcycle handle bar to sustain fatal injuries. 14. According to the learned Advocate Bhobe for the respondent, the evidence of RW1 - Oswald and RW2 - Arsekar gives correct version of the incident and, therefore, it rightly weighed in the mind of the ld. Claims Tribunal in giving finding in favour of the respondents on the issue of negligence. While making reference to the observations made by the Hon'ble Supreme Court in the case of Minu B. Mehta; 1977 ACJ 118 that mere fact that a party received injury arising out of the use of vehicle in public place cannot justify fastening liability on the owner, the Ld. Claims Tribunal completely ignored the worth of the medical evidence in appreciating the evidence of RW1 - Oswald and … 11 … RW2 - Arsekar. It is correct that the owner's liability arises out of his failure to discharge a duty cast on him by law, and that, it is incumbent on the claimants to prove negligence before the owner or Insurance Company could be held liable for compensation and in case the compensation is awarded without proof of negligence, it would lead to strange results. However, the evidence of the offending vehicle driver and anything adduced in support thereof can also be taken into account for answering the vital question as to who was negligent. 15. A close scrutiny of evidence of RW1 – Oswald reveals that he was riding the motorcycle on the extreme left of the road when the deceased continued to cross road in running position and hit the handle bar of his motorcycle. Evidence of RW1- Oswald and RW2 – Arsekar reveals that there were three persons including the deceased, who were trying to cross the road from right hand side of the motorcyclist and on seeing the motorcycle coming from opposite direction, two of them withdrew and the deceased ran across the road to meet his fatal end. RW1- Oswald further deposed that the victim dashed against right hand side handle bar of his motorcycle. If this was the case, there … 12 … would have been injuries seen on the front side of the victim and not on the back and right hand side buttock of the victim. Absence of injuries on the front side of the victim and the occurrence of injury No.3 i.e. bruise on the inner aspect of right knee clearly indicate that the motorcycle passed between the two legs of the victim as aforesaid making him loose balance and fall on the backside to hit the handle bar of the motorcycle. 16. 'Men may lie but the circumstances do not' is a maxim offering time tested judicial wisdom. Circumstances as revealed through the panchanama Exh.CW2/A and sketch Exh.CW2/B are, therefore, worthy piece of evidence for appreciating the oral evidence led in this case. It is revealed through the panchanama Exh.CW2/A and sketch Exh.CWB that the blood of the deceased Abdul Mulla was found lying at a distance of 18 ft. from hind wheel of the motorcycle in proximity of the left hand edge of the road leading to Margao and the hind wheel of the motorcycle was at a distance of 7 ft. ahead of the electric pole leaving no brake marks. These circumstances clearly betray the myth of the evidence of RW1 - Oswald and RW2 - Arsekar that Oswald fell on the electric pole and had sustained injuries as a result thereof. In fact … 13 … these circumstances read with the fact that the deceased was seen crossing the road from distance of about 20 meters before the incident by the RW1 – Oswald indicate that the RW1- Oswald – motorcyclist despite forseeing the probability of the accident failed to apply brakes in time in order to avert the accident. Unfortunately, the Ld. Claims Tribunal dismissed these facts with the observations that the solitary statement of RW1- Oswald of seeing the deceased crossing the road from distance of about 20 meters was not sufficient to attribute rashness or negligence to him. Neither RW1- Oswald nor RW2 - Arsekar deposed that the victim only after coming closer to the motorcycle darted across the road. Both these witnesses maintained the consistent story that two of the colleagues of the deceased went back and the deceased continued to cross in running position, and in the process of running the accident had occurred. “Darting” across the road as observed by the Ld. Claims Tribunal could have been a correct observation if there was evidence of the fact that after crossing the road to some distance the victim halted for a while and suddenly moved across the road with speed after motorcycle had come closer. There is no such evidence on record. The observations made by the Ld. Claims Tribunal in that regard are, therefore, baseless. … 14 … 17. Evidence in the case at hand in fact provides material clues for answering the issue of negligence as aforesaid. These clues, could not have been ignored by the learned Claims Tribunal while appreciating the evidence of RW1- Oswald and RW2- Arsekar, who had disclosed that the accident occurred as a result of collision between the motorcycle and the victim. Even going by the evidence of RW1- Oswald and RW2-Arsekar, it can be seen that the accident could have been averted, but for the negligence of RW1-Oswald. At the same time, it can also be seen that the deceased victim in some measure contributed to the accident by running across the road when two of his colleagues had retraced their steps back. However, it must be noted that grater liability was on the part of the driver of the offending vehicle i.e. the respondent No.1. 18. The Learned Claims Tribunal after considering all the necessary parameters for computing the quantum of compensation gave finding that the total compensation payable to the appellant / claimant No.1 shall be Rs.77,800/- and to the appellants / claimants No. 2 to 5 shall be Rs.39,000/- each. Nothing material that can disturb such … 15 … finding has been shown by the respondents. Moreover, the respondents have not filed any cross-objections as regards the computation of quantum of compensation due and payable to the appellants in the present case. The manner in which the quantum of compensation has been computed cannot be faulted for any perceptible reason. However, considering the role of the deceased victim in the incident and his contribution to the accident in some measure, the appellants deserve 1/3rd lesser compensation than what is computed by the learned Claims Tribunal. Hence, order. (i) The appeal is partly allowed. (ii) The impugned order in dismissing the claim petition is set aside. (iii) The appellants shall be awarded 2/3rd of the compensation in the same proportion as computed by the learned Claims Tribunal with proportionate costs. (iv) Compensation awarded shall carry interest @ 8 % p.a. from the date of institution of the Claim Petition till the payment to the appellants or its deposit in the Claims Tribunal on or before 30.06.2010 and in the event of default being made in payment or deposit of the amount of compensation as ordered, it shall carry … 16 … interest @ 10 % p.a. from the date of default till its payment. U. D. SALVI, J. SMA