1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal No.333 of 2003 Shri Laximan Vithoba Gaunkar aged 28 years,service, resident of house no.98, Gaukarwad, Molcornem,Goa. ... Appellant V e r s u s 1. Shri Sudesh Gaunkar, son of Nanda Gaunkar, driver of Maruti Van bearing number GA/02/T-3930 resident of house no.350, Aquem, Margao-Goa. 2. M/s. Sandeep Tourist Service owner of Maruti Van bearing number GA/02/T/3930 house No.350, Aquem Toleband Margao Goa. 3. The New India Assurance Company Ltd. Insurer of Maruti Van bearing Number GA/02/T/3930, Jagannath Building, near Railway Gate, Margao, Goa. ..... Respondents. 2 Ms. P. Kakodkar, Advocate for the Appellant. None for the Respondents. Coram: A. P. Lavande, J. Reserved on : 8/10/2010 Dictated on: 11/10/2010. ORAL JUDGMENT: By this appeal, the appellant takes exception to judgment and award dated 6/09/2003 passed by the Motor Accident Claims Tribunal, South Goa, Margao in Claim Petition No.95 of 2000 dismissing the claim petition under Section 166 of the Motor Vehicles Act 1988 (“The Act” for short). 2. The appellant/claimant filed the claim petition against the respondents claiming compensation of Rs.2.00 lakhs. According to the claimant, on 9/6/1998, he was returning home from Margao. When he reached Gudi Paroda at about 6.20 p.m, Maruti van bearing registration no.GA-02/T-3930 driven by respondent no.1, owned by 3 respondent no.2 and insured with respondent no.3, came in opposite direction and on wrong side of the road and dashed against his motorcycle and knocked him down. The claimant sustained fracture of his left leg and also other injuries. According to the claimant, respondent no.1 drove the van in a rash and negligent manner resulting in the accident on account of which he suffered injuries. 3. The respondents contested the claim petition. According to respondent no.1, he was not driving the van in rash and negligent manner, but it was the claimant who was driving his motorcycle in a rash and negligent manner. It was the case of respondent no.1 that the claimant himself was prosecuted for rash and negligent driving under Section 279 of I.P.C. On the basis of the pleadings the following issues were framed: i) Whether the applicant proves that the accident was due to the rash and negligent driving on the part of 4 the respondent no.1 of the Maruti van bearing no.GA-02/T-3930? ii) Whether the applicant proves that he is entitled to a total compensation of Rs.2,00,000/-? 4. In claim petition no.95 of 2000, the claimant examined himself and Gurudas Gaonkar, AW.2, who claimed to be a eye witness to the accident and Dr. R.D. Nagvekar, AW.3, Orthopedic Surgeon of Hospicio hospital was examined to prove that the claimant had suffered 10% permanent disability. On behalf of the respondents, respondent no.1 examined himself. The Tribunal held that the claimant had not proved that respondent no.1 was driving the vehicle in rash and negligent manner and consequently dismissed the claim petition. 5. Ms. Kakodkar, learned counsel appearing for the appellant/claimant assailed the judgment and award on 5 the following grounds: i) The finding recorded by the Tribunal that the claimant was rash and negligent is contrary to the evidence on record. ii) The Tribunal ought not to have placed implicit reliance upon evidence of respondent no.1 who was the driver of the offending vehicle. iii) The claimant had discharged the burden of proving that respondent no.1 was driving the van in a rash and negligent manner. 6. In support of her submissions Ms. Kakodkar relied upon the following judgments: i) N.K. V. Bros (P) Ltd. Vs. M. Karumai Ammal and others, AIR 1980 Supreme Court 1354. ii) United India Insurance Co. Ltd. Vs. Sayaji s/o. Masuji Shinde and others, 2008(5) ALL MR 731. iii) Bimla Devi & Ors. v. Himachal Road Transport 6 Corpn. & Ors., AIR 2009 Supreme Court 2819. Ms. Kakodkar further submitted that the claimant is entitled to compensation of Rs.2.00 lakhs claimed by him. 7. As stated above, none has appeared on behalf of the respondents, though they are served. 8. I have considered the submissions made by Ms. Kakodkar and perused the record. 9. In view of the submissions made by the learned counsel for the appellant/claimant and the findings given by the Tribunal the following points arise for determination in the appeal: i) Whether the Tribunal erred in giving the finding that the claimant himself was rash and negligent in driving his motorcycle? ii) If yes, to what compensation the claimant is 7 entitled ? 10. In order to prove that respondent no.1 was rash and negligent in driving, the claimant examined himself and one Gurudas Gaonkar, AW.2 The claimant deposed in consonance with the averments made in the plaint. He deposed that the accident occurred on 9/6/1998 at about 6.30 p.m. at Gudi Paroda when a Maruti van driven by respondent no.1 dashed against his motorcycle and at that time, he was working as a Civil Engineer with one M.K. Naik and was drawing salary of Rs.2300/-. He produced the salary certificate which was marked “X” for identification. He further stated that after the accident, he was without any job for one year. He also produced medical bills. He further stated that the vehicle had come on his side and dashed on his motorcycle. He denied the suggestion that the accident had occurred on account of his own fault and that the was driving the motorcycle at a fast 8 speed. He denied all the suggestions that were put to him. On behalf of the respondents, he produced copy of judgment in Criminal Case No.88/S/98/B passed by the Judicial Magistrate First Class, Quepem dated 30/4/1999, by which he was acquitted of the offence punishable under Sections 279 and 338 of I.P.C. 11. Mr. Gurudas Gaonkar, AW.2 who claimed himself to be an eye witness to the accident stated that the accident occurred about three years back at about 6.30p.m. He saw the appellant/claimant coming by motorcycle from Margao side and proceeding towards Quepem. At that time one Maruti van coming from Quepem side. There was collusion between the two vehicles as a result of which the appellant fell on the ground and his motorcycle fell on his leg. Thereafter, the police came and shifted the appellant to the hospital. He further stated that appellant was going on his motorcycle on his left side of the road and the 9 accident was towards the left side of the motorcycle. He further deposed that after the accident the appellant was taken to the hospital in Maruti van. In cross examination he stated that he knew the claimant from the date of the accident and the place of accident was about 150 metres away from the pace where he was standing. He could not state the speed of the motorcycle and of the Maruti van. He also stated that he had not given statement to the police. He did not know how the police arrived at the spot. He stated that he was residing at Rivona whereas the claimant was from Malkarnem, at a distance of about 10 kms. from his house. He denied the suggestion that he had not seen the accident. He further stated that he could not say as to who was driving the Maruti van. 12. Close scrutiny of the evidence of the appellant/claimant discloses that he has not specifically deposed as to on which side of the road the accident had 10 occurred. No doubt he stated that he accident had occurred on his side but nowhere in his evidence he stated that he was on the left side of the road. The evidence of the claimant does not establish as to how the accident had taken place and on which side of the road. He did not also depose about the speed at which he was driving or the speed of the vehicle driven by respondent no.1. The claimant himself would have been the best witness to depose about the manner in which the accident had occurred but his evidence does not establish rashness and negligence on the part of respondent no.1. Even Gurudas Gaonkar, AW.2 could not state the speed at which the vehicle involved in the accident was driven. Moreover, he deposed that the accident was on the left side of the motorcycle. This was not even the case of the claimant himself. This being the position, the finding of the Tribunal that he does not appear to be an eye witness to the accident cannot be faulted. 11 13. It is well settled that in order to succeed in a claim petition the claimant has to establish rashness and negligence on the part of the driver of the offending vehicle and unless rashness and negligence is established, the claimant is not entitled to any compensation. I am of the considered opinion that the claimant has not been able to discharge this burden. Therefore, the finding of the Tribunal that the appellant/claimant has not been able to establish that respondent no.1 was driving his vehicle in a rash and negligent manner cannot be faulted. 14. As far as th authorities relied by Ms. Kakodkar are concerned, the same do not advance the case of the appellant/claimant. In the case of Sayaji s/o Masuji Shinde, (supra), the learned Single Judge held that strict rules of evidence are not applicable and the Tribunal can consider what was the case made out before the police. In the case of Bimla Devi (supra), the Apex Court held that 12 the claimants have to establish their case merely on touchstone of preponderance of probability and standard of proof beyond reasonable doubt could not be applied in respect of the claimants who are not present on the spot. In the case of N.K.V. Bros.(supra), the Apex Court held that the claims Tribunal must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there and 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. In my considered opinion, the ratio of all these authorities is not attracted in the present case. 15. The claimant examined Dr. R.D. Nagvekar, AW.3 to prove that he had suffered fracture of his right femur. Since, I have already held that the claimant has not 13 been able to establish rashness and negligence on the part of responding no.1, it is not necessary for me to analyze the evidence of this witness and also the issue regarding compensation. 16. In view of the above discussion, I do not find any merit in the appeal. Hence, the appeal is dismissed with no order as to costs. A. P. Lavande, J. Ap/-