: 1 : IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 89 OF 2001 1. Smt. Maria Santana Vaz, Widow of Bartholemeu Vaz, Major of age, housewife, 2. Alexandre Vaz, S/o Bartholemeu Vaz, Major of age, toddy-tapper, 3. Domingos Vaz, Major of age, occupation service, 4. Sebastiao Vaz, Major of age, unemployed, All residents of 1st Arvalem, Cortalim Goa. … Appellants V e r s u s 1. Mr. Sebastiao D'Costa, S/o Manuel D'Costa, R/o Portais, Behind General Post Office ( Cortim ) Panaji Goa. 2. Superintendent of Post Office, Mapusa Goa, 3. Union of India, Through its Chief Secretary, Home Department, New Delhi. … Respondents Mr. P. S. Lotlikar, Advocate for the Appellants. Mr. V.A. Lawande with Ms. F. Mesquita, Advocates for the Respondent No.1. : 2 : CORAM:- A.S. OKA, J Dated:- 2 nd JULY, 2010. ORAL JUDGMENT I have heard the learned Counsel appearing for the Appellants and the learned Counsel appearing for the first Respondent. The second and third Respondents are served with a notice but none appears for them. The challenge in this Appeal is to the judgment and award made by the learned Presiding Officer of the Motor Accidents Claims Tribunal, South Goa, Margao. A Claim Petition was filed by the Appellants under Section 166 of the Motor Vehicles Act, 1988. By the impugned judgment and award, the Claim Petition has been dismissed. 2. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly state the facts of the case. The deceased is Bartholemeu Vaz. The Claimants/Appellants are the widow and children of the deceased. The first Respondent is alleged to be the driver of the alleged offending vehicle. The second and third Respondents are the employers of the first Respondent. The first Respondent was : 3 : employed in the Postal Department. 3. The case of the Appellants is that the deceased was a pedestrian who was given a dash by the postal mail van driven by the first Respondent on 13th September, 1993 at about 5.45 a.m. According to the case of the Appellants, the postal van was proceeding from Panaji towards Margao, and the deceased was walking towards his paddy field. The deceased was knocked down by the postal van and as a result of the injury sustained, the deceased succumbed to the injury. 4. In the Claim Petition, a claim of Rs.1,00,000/- was made by the Appellants. The Claim Petition was contested by the Respondents by filing written statement. The Respondents denied that the postal van owned by the third Respondent and driven by the first Respondent was involved in the accident. It is alleged that when the postal van was going from Panaji to Margao, near Cortalim area, some relatives of the deceased stopped the van and requested the first Respondent to carry the deceased to the G.M.C. The relatives allegedly stated that the deceased was unwell and no taxi was available. According to the case of the Respondents, the request was not accepted as the mail carried by the van was to be : 4 : delivered urgently at Margao and with a spirit of vengeance, the Petition has been filed. 5. It must be stated that even the Claim Petition under Section 140 of the said Act was contested by the Respondents. The parties adduced the evidence. The Claim Petition under Section 140 of the said Act was dismissed by the Tribunal and an Appeal was preferred before this Court which was allowed and the compensation of Rs.25,000/- was granted under Section 140 of the said Act. 6. The learned Counsel appearing for the Appellants submitted that the evidence of the first Respondent is not consistent with the pleadings. He submitted that the evidence is also inconsistent with the evidence of the second witness examined by the Respondents and, therefore, the version of both the witnesses was required to be discarded. He submitted that the Appellants' second witness had seen the accident and he has deposed that there was negligence on the part of the first Respondent. He submitted that the said evidence of second witness examined by the Appellants discloses the involvement of the postal van in the accident. He submitted that as the evidence : 5 : of second witness was sufficient, the Appellants did not examine the other three witnesses who were examined in support of the Claim Petition under Section 140 of the said Act. He submitted that while deciding the Claim Petition under Section 166 of the said Act, the Tribunal could not have taken into consideration the evidence of the witnesses who were examined during the course of the hearing of the Claim Petition under Section 140 of the said Act while deciding the Claim Petition under Section 166 of the said Act. He submitted that the Tribunal was required to decide the case on preponderance of probability. He relied upon a decision of the Apex Court in the case of Bimla Devi & Others V/s Himachal Road Transport Corporation & Others ( 2009 ALL SCR 1771 ). He submitted that the evidence on record is sufficient to draw an inference that the tempo driven by the first Respondent was involved in the accident. He, therefore, submitted that the learned Presiding Officer of the Tribunal has committed an error by dismissing the Claim Petition. The learned Counsel appearing for the first Respondent submitted that the burden was on the Appellants to prove the involvement of the tempo. He submitted that the burden has not been discharged. He submitted that the evidence of the witnesses shows that before tempo reached the : 6 : spot where the deceased was lying, the accident had already occurred and in fact the tempo was stopped by the persons standing there with a request to take the deceased to the hospital. He submitted that apart from the fact that the involvement of the tempo has not been proved, the Tribunal was justified in drawing an adverse inference for not examining the alleged eye witnesses who were examined by the Appellants in Claim Petition under Section 140 of the said Act. He submitted that as the evidence of the said witnesses was very crucial, an adverse inference was required to be drawn against the Appellants. He submitted that for considering the question whether an adverse inference needs to be drawn, if the evidence of the said persons examined during the proceedings under Section 140 of the said Act was examined by the Tribunal, there is obviously no illegality. He submitted that the involvement of the tempo driven by the first Respondent in the accident is not at all established, the Tribunal was justified in dismissing the Claim Petition. 7. I have given careful consideration to the submissions. The first question is regarding the involvement of the tempo driven by the first Respondent in the accident. As pointed out by the : 7 : learned Counsel appearing for the first Respondent, the Respondents filed a common written statement. In paragraph 5 of the written statement, the Respondents have come out with a following case : “5................In fact on 13.9.93, while the postal mail van was going from Panaji to Margao near Cortalim area its driver i.e. the Respondent No.1 was stopped by some relations of Bartholemev Vaz requesting him to carry Bartholemev Vaz to G.M.C. who was allegedly stated to be unwell as no taxi etc.,was available, to which the Respondent No.2 refused as the mail had to be delivered urgently at Margao, which offended the Applicants and who have now filed the present petition with a spirit of vengeance through the petition is purely malafide and a dishonest attempt on the part of the Applicants to blackmail the Respondents with the role and ultimate motive to fetch fat monetary benefits.................”. Thus, the specific case made out is that the relatives of the deceased stopped the tempo and requested to take the deceased who was unwell to hospital as no taxi was available. The case made out in the written statement is not that the deceased was knocked down by the some other vehicle and was lying on the road. The case of the Respondents is that the relatives of the deceased stopped the tempo by stating that the deceased was : 8 : unwell and as a taxi was not available, he should be taken to G.M.C., by the tempo. The first Respondent stepped into the witness box. The material part of his version in examination in chief reads thus :- “On Sept. 13th, 7 years back at about 6-15 a.m. I was coming from Panaji to Margao with mail. A truck crossed me just before the Cortalim junction. There was a man fallen on the road after the said junction at a distance of about 100 metres after crossing the said junction. The said man was on the road and some people were around him. The said people stopped me and asked me as to where I was going. I told them that I was going to Margao and they requested me to take the said man. I told them that I could not take him because my mail van was full with mail. The said people then told me that they would call for the children of the said man who had fallen on the road. I waited there till some boys came and who also stated that the said man could not be put into the van. Thereafter I came with my van to Margao”. 8. One Subhash Naik was examined as second witness who was allegedly sitting in the driver's cabin along with first Respondent. His version of the accident in examination in chief reads thus :- “I spent the night in Panaji and since the vehicle was to go the next morning, from Panaji to Margao, I was coming with the said Sebastiao. There was another Alex who works in the same department alongwith us. Both of : 9 : us were sitting in the cabin alongwith the driver. We left Panaji in the said vehicle at 5.30 a.m. When we reached Cortalim after we crossed the junction, we saw a man lying on the road. There were about 7 to 8 persons near him. Sebastiao stopped the van to see what had happened. One of the persons from there, requested Sebastiao to put him in the van and take him to the hospital. Our van was full with mail bags. Because there was no place we did not take him in the van. We waited there for about 5 minutes and came to Margao.” Thus in examination in chief, the first Respondent came out with a case that a truck crossed him before the Cortalim junction. The witness wants to say that the truck came from opposite direction. He stated that there was a man fallen on the road after the said junction and at a distance of about 100 metres after crossing the junction. He stated that the said man was on the road and some people were around him. The said persons stopped his vehicle. He turned down the request of the persons to take the deceased by the tempo. Thereafter, the said persons told him that they would call the children of the deceased. According to the first Respondent, he waited at the spot till some boys came. Thus, there is a complete departure from the stand taken in the written statement. In the written statement the Respondents have not : 10 : even stated that the first Respondent noticed that a man was lying on the road. On the contrary, the case made out is that the van was stopped by the relatives of the deceased and they requested the first Respondent to carry the deceased who was unwell to the G.M.C. It is alleged that the first Respondent refused to carry the deceased. In the deposition, he has admitted that he saw a man lying on the road. He, however, did not state that the relatives of the deceased requested him to take the deceased to the hospital. But in the written statement, the case made out is that the vehicle of the first Respondent was stopped by some relatives of the deceased who allegedly stated that the deceased was unwell. A complete new case has been made out by the first Respondent in his evidence which is not consistent with what is pleaded in the written statement. The second witness examined by the Appellants was Subhash Naik. He has stated that there was a man lying on the road and about 7 to 8 persons were near him. He stated that the first Respondent on his own stopped the vehicle to see what had happened. After the vehicle was stopped, one of the persons requested the first Respondent to put the deceased in the van and to take him to the hospital. Though the witness claimed that he was sitting in the driver's cabin, he has not come out with a case : 11 : that the persons standing near the man stopped the first Respondent. The second witness examined by the Appellants has stated on oath as under :- “I have seen the occurrence of the accident and it was about 5.45 a.m. At that time there was a tempo of the postal department coming from Panaji side going towards Margao. At that time the deceased was walking towards his paddy field. I was about 30 metres away from him. I then saw that the said tempo gave a dash on the deceased and knocked him down. The deceased was at that time on his left side of the road and proceeding towards Margao side. I rushed to the spot and gave him first aid by pouring water. By that time his eldest son Alexander came there. The deceased was then removed in a vehicle to Panjim to a hospital. Number of persons were present at the time of the accident at that spot. The expenses towards funeral expenses were made by his son Alexander.”. It is true that a statement of the said witness has not been recorded by the police. However, the fact that the statement of the said witness was not recorded by the police during the investigation of the case, is not sufficient to discard the case made out by the said witness. Going by the stand taken by the first Respondent in the evidence, the presence of the tempo driven by the first Respondent at the site is more or less admitted position. : 12 : It is well settled that strict rules of evidence are not applicable to the Tribunal while dealing with a Claim Petition under Section 166 of the said Act of 1988. As held by the Apex Court in the case of Bimla Devi and others ( supra ), in a Claim Petition under Section 166 of the said Act of 1988, the claimants have to prove the case on touchstone of preponderance of probability. Strict proof of the accident is not expected from the Claimants who were not present at the time of accident. In the present case, it is true that two other witnesses examined by the Appellants at the time of hearing of Claim Petition under Section 140 of the said Act have not been examined. Considering the scope of summary proceedings under Section 140 of the said Act, the findings recorded by the Tribunal while deciding the Claim Petition under Section 140 of the said Act of 1988 do not bind the Tribunal at the time of finally disposing the Claim Petition under Section 166 of the said Act. Therefore, the parties cannot simply rely upon the evidence of the witnesses recorded in a Claim Petition under Section 140 of the said Act of 1988 and the witnesses are required to be examined afresh unless parties by consent agree that the evidence recorded at the time of hearing of Claim Petition under Section 140 of the said Act be read as an evidence in a Claim Petition under Section 166. It is true : 13 : that the witnesses concerned were not examined by the Appellants at the time of hearing of the main Claim Petition. This is a case where the first Respondent had filed a written statement during the course of hearing of the Claim Petition. At the time of recording of evidence, he has come out with a completely different version which is totally inconsistent with the facts pleaded in the written statement. The second witness examined also come out with a totally inconsistent version. As against this, there is an evidence of second witness examined by the Appellants who has stated the manner in which the accident occurred. In the circumstances, this was not a case where an adverse inference could have been drawn on account of failure to examine the witnesses. On preponderance of probability, the involvement of the tempo driven by the first Respondent has been established. 9. The case of the Respondents in the written statement is of a complete denial. The said case cannot be accepted as held by this Court in earlier part. It is not the case of the first Respondent that he made all efforts to avoid the accident. There is failure to take care on the part of the first Respondent. In the circumstances, a finding will have to be recorded that the accident : 14 : occurred due to rash and negligent driving on the part of the first Respondent. 10. The learned Counsel appearing for the first Respondent relied upon a decision in the case of Executive Engineer, Medium Project Division, Yeotmal V/s Smt. Sunanda w/o Madhukar Mahalley & Others (2010(3) ALL MR 1 ). In the present case, the first Respondent being a tempo driver is liable to pay compensation to the Appellants. The second and third Respondents are liable being the employers of the first Respondent. The decision in the case of Executive Engineer, Yeotmal ( supra ) cannot be read to mean that in such a case the driver can be exonerated. In fact the liability of the driver is joint and several with the employers. Therefore, a finding on the issue of negligence will have to be recoded in favour of the Appellants. As far as the quantum of compensation is concerned, it is stated that the deceased was a labourer and was earning Rs.70/- per day. It is sought to be contended that the income of the deceased was Rs.2400/- per month. However, the Tribunal did not accept the same and took the notional yearly income as per the formula laid down in the second schedule. The Tribunal made a deduction of : 15 : 1/3rd on account of personal expenditure of the deceased and has applied multiplier of 8. Considering the fact that the age of the deceased was 60 years, the multiplier is reasonable. In fact the total compensation amount of Rs.90,000/- arrived at by the Tribunal is reasonable. Hence, the Appeal must succeed and I pass the following order :- O R D E R (A) The impugned judgment and award is quashed and set aside. (B) The Claim Petition No. 26 of 1994 is partly allowed. (C ) The Respondents shall jointly and severally pay the total compensation of Rs.90,000/- to the Appellants with interest thereon at the rate of 7.5% from the date of the filing of the Claim Petition till the disposal of the main Claim Petition. (D) It is made clear that the aforesaid amount is inclusive of amount paid to the Appellants under Section 140 of the said Act. : 16 : (E) The Respondents are granted time of three months to comply with the award. (F) The Appellants will be entitled to the proportionate costs. A.S. OKA, J at*