1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal No.81 of 2003 Shri Anant Sahadev Parsekar, about 60 years of age, r/o H.No.220, Behind Cine Vishant, Aquem, Margoa-Goa. .... Appellants V e r s u s 1. Shri Hanumant Naik, s/o Shri Vassant Naik, of major age, (Driver and owner of GA-2/W-5130), r/o H.No.552, Durbhat, Ponda-Goa. 2. National Insurance Company Ponda Branch, Ponda Market, Ponda -Goa. Mr. V.G.P. Dukle, Advocate for the Appellant. Mr. J.J. Mulgaonkar, Advocate for the Respondents. Coram: A. P. Lavande, J. Date: 6th October,2010. ORAL JUDGMENT: By this appeal, the appellant/claimant takes exception to the judgment and award dated 18/11/2002 2 passed by the Motor Accident Claims Tribunal, South Goa, Margao in Claim Petition no.248 of 1996, dismissing the claim petition on the ground that the claimant had not proved that the accident occurred due to rashness and negligent driving of respondent no.1. 2. Briefly, the facts relevant to the filing of the present appeal are as under: It was the case of the claimant that on 25/5/1996 at about 8.30.a.m. he was proceeding on his bicycle and when he reached at Khadpar at Benaulim, he was knocked down by a mini-truck bearing registration no.GA-02-W-5130 driven and owned by respondent no1. and insured with respondent no.2. On account of the accident he suffered grievous injuries on the head, both elbows and chest and other multiple injuries all over the body. He was admitted in Hospicio hospital and thereafter shifted to Goa Medical College. The claimant claimed that 3 he had suffered permanent disablement on account of the restricted movement of his left arm and fingers. 3. The respondents resisted the claim. According to respondent no.1, the claimant had fabricated a story that the vehicle driven by respondent no.1 dashed against his bicycle when factually he lost control due to the load since he was carrying a big sack kept on the carrier of the cycle. On the basis of the pleadings of the parties following issues were framed: i) Whether the claimant proves that the accident was caused by a mini-truck no.GA-02-W-5230 driven by respondent no.1? ii) Whether the claimant proves that on account of the said accident, the claimant suffered injuries on the head, hands and elbow, causing permanent disability of right hand and fingers? iii) Whether the claimant proves that the claimant is 4 entitle to compensation of Rs.1.00,000/-? 4. In Claim petition no.248 of 1996, the claimant examined himself and seven witnesses namely, Neves Gomes, CW.2, Carlus Fernandes, CW.3. He also examined Dr. Oswald D'Sa, CW.4, who had produced the certificate issued by Dr. Carlos showing that the claimant had suffered permanent disability of 1%(one percent). He also examined Gurudas Borkar, CW.5 and Kamlakant Y. Naik, CW.6 to prove his income and Manohar Monkar, A.S.I who produced the panchanama and of scene of accident, Exhibits 36 and 37, respectively. 5. Respondent no.1 examined himself and produced his statement recorded by the police. The Tribunal upon appreciation of the evidence led by the parties held that the claimant had not proved that the accident occurred on account of rash and negligent driving 5 of the vehicle by respondent no.1. Although the claimant had claimed compensation of Rs.2.00 lakhs, the Tribunal assessed the compensation at Rs.29,000/-. Aggrieved by the award, the claimant has filed the present appeal. 6. Mr. Dukle, learned counsel appearing for the appellant/claimant submitted that the tribunal has not considered the evidence oral and documentary in proper prospective. According to Mr. Dukle, the case set up by respondent no.1 in his evidence is contrary to the stand taken in the written statement. Learned counsel submitted that the panchanama produced by CW.7, Monkar does not reflect the correct position and AW.7 has not discharged his function properly as an Investigating Officer. According to the learned counsel, the evidence of the two witnesses namely, CW.2 and Cw.3 clearly proves that the vehicle driven by respondent no.1 was involved in the accident and therefore, the impugned judgment and award 6 deserves to be quashed and set aside. In so far as the quantum of compensation awarded is concerned, Mr. Dukle submitted that the compensation awarded is wholly inadequate and the claimant is entitled to compensation of Rs.2.00 lakhs, as claimed by him. 7. Mr. Mulgaonkar, learned counsel for the respondent no.1 supported the impugned order and submitted that finding recording by the Tribunal are borne out from the evidence on record and as such, no interference is warranted in the appeal. He further urged that the claimant has not proved the involvement of the vehicle driven by respondent no.1 in the accident and therefore, the Tribunal was right in dismissing the claim petition. 8. I have carefully considered the rival submissions and perused the record. 7 9. In view of the rival submissions the following points arise for determination of the appeal: i) Whether the appellant/claimant has proved that respondent no.1 drove his vehicle in a rash and negligent manner.? ii) If yes to what compensation the claimant is entitled? 10. In order to prove the rashness and negligence of respondent no.1, the claimant examined himself and CW.2, Neves Gomes and CW.3 Carlos Fernandes. According to the claimant, he was proceeding on a cycle to Margao at about 8.30 a.m. on the left side of the road and when the reached near Varca, a mini-truck came from the back and dashed against him. He stated that the driver of the said mini-truck had horned and because of that he had looked back and at that time, the said mini-truck was at a distance 8 of about 2 metres behind him. He further stated that on account of dash of the mini-truck on his cycle, he fell on the stones by the side of the road and his cycle fell on the tar road. In the cross examination, he stated that it was his son who informed him regarding the involvement of the truck. He denied in his cross-examination that he was carrying a sack on the carrier of his cycle. He also stated that the cycle fell touching the mini-truck and he fell off beyond road and at that time, he was conscious. 11. Neves Gomes, CW.2 stated that he and his cousin were returning from Varca to Margao on scooter, and the claimant was coming on a cycle and an open pick- up came from the back side and hit the cycle of the claimant and the claimant fell in the ditch and the cycle fell above him and the claimant suffered injuries. He stated that the said pick-up had not crossed them and it was ahead of them and then the people gathered and took 9 the claimant in the same pick-up and brought him to the hospital. He further stated that the cycle and the pick-up were going in the same direction and it is the left front portion of the pick-up which dashed the cycle. In cross- examination, he stated that he came to know the claimant only on the date of the accident and that he had not told the police about the said accident. He further stated that on the date of the accident the claimant had told him to go and inform his wife behind Cine Vashant and he had gone and had given the said message. In further cross examination he stated that he met the claimant on the previous day and requested him to give his evidence on the next day. He also stated that there was no sack on the cycle of the claimant and further stated that when the impact took place, he was about 15 metres at the back of the pick-up. 12. C.W.3, Carlos Fernandes, stated that he knew the claimant who met with an accident on 25/5/1996 at 10 about 8.30.a.m at Benaulim, near a cross. He stated that he was coming on a scooter from the work place to Margao and there was another person along with him. He stated that the driver of the pick-up which was behind him, tried to overtake them and in the process of overtaking, the pick-up dashed against the cyclist i.e. the claimant and the claimant fell into the field. According to him it was the left back portion of the carrier of the pick-up which dashed the cyclist and they waited there and then the claimant was taken in the same pick-up and was brought to Hospicio hospital. He claimed that he went to the house of the claimant and informed his family members about the accident and thereafter he went away. In cross examination, he admitted that the claimant was from his ward and his house was at a distance of about half a kilo meter from that of the claimant. He stated that he was on the pillion of the scooter, which was driven by his friend CW.2 Gomes. He further stated that he came to know 11 about the pick-up when it was about two metres behind them and the claimant was at that time also behind the scooter by about half a metre and the dash took place at the back and behind the scooter. He stated that he could not state what was the width of the tar road and further stated that it was of normal size. He stated that after the dash, the cycle fell on the road and the claimant fell into the field. He further stated that the front wheel of the cycle was damaged and the depth of the paddy field was about 1.25 metres below the road level. He denied that there was anything tied on the carrier of the cycle. He further stated that his statement was recorded by the police on the same day,but denied the suggestion that he was been tutored by the claimant to depose falsely. 13. CW.7, A.S.I Monkar, who had conducted the panchanama of the scene of offence and prepared the 12 sketch (Exhibits 36 and 37) stated that the accident took place at Bindi, Benaulim. According to him, the accident took place between a pick-up and a cycle and the cycle was on the left of the road as one comes from Benaulim to Margao and the pick-up was on the right side of the road. He stated that no brake marks were noted on the panchanama or on the sketch. He further stated that the persons whose statements were recorded did not tell him that the pick-up had dashed the cyclist and that he did not know whether the cyclist was taken to the hospital in the same pick-up. He further stated there was no damage seen on the pick-up or to the cycle and that there was sack of coconuts on the said cycle. 14. Respondent no.1 examined himself and denied that his vehicle was involved in the accident. According to him, the claimant who was carrying a sack of coconuts on the cycle, lost his balance and fell on the road and his 13 vehicle was not involved in the accident. He, admitted that he had admitted the claimant in the hospital. 15. The Tribunal held that the claimant and the two witnesses examined by him had given three different version as to the manner in which the accident had happened and therefore, their evidence does not deserve any credence. According to the Tribunal the version given by the three witnesses were not consistent. Moreover, no damage was seen to the cycle or to the pick-up nor any brake marks were shown in the panchanama. Moreover, the claimant and two witnesses examined had clearly denied that any sack was tied to the cycle which was driven by the claimant. The Tribunal held that the claimant had not come out with truth and therefore, his version that the vehicle driven by the respondent no.1 dashed against the cycle was not established and consequently the claimant had not proved rashness and 14 negligence on part of respondent no.1. 16. Having considered the rival submissions and having perused the record, I am of the considered opinion that the findings given by the Tribunal cannot be said to be contrary to the evidence on record. The version of the claimant that it was respondent no.1 who was driving the vehicle, came close and dashed the cycle is difficult to believe, as in such a eventuality at least the cycle would have some damage but the panchanama speaks otherwise. CW.7, Monkar who was examined by the claimant himself clearly deposed that no damage was seen on the cycle or on the vehicle, except some scratches on the rear left tyre of the mini-truck, which would not establish the impact of the vehicle involved in the accident. The denial of the claimant and his two witnesses that the claimant was carrying a sack on the carrier the cycle which is proved to be incorrect is a tell tale circumstance against the claimant. 15 The claimant obviously has suppressed the truth and has come out with a false case against the respondents, in order to claim compensation from the respondents. In my considered opinion, the findings recorded by the Tribunal cannot be faulted. Therefore, the appeal deserves to be rejected. 17. In view of the above, I uphold the finding of the Tribunal on the aspect of rashness and negligence. Therefore, it is not necessary for me to record any finding as to whether compensation quantified by the Tribunal is inadequate or not. 18. For the reasons aforesaid, the appeal is dismissed with no order as to costs. A. P. Lavnade, J. Ap/-