1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.107 OF 2001 Shri Andrew Fernandes, resident of House No.151, Housing Board Colony, Porvorim Goa. ... Appellant V e r s u s 1. Pandurang Datta Chodankar, resident of House No.10(3), Assonora, Bardez Goa. 2. Kadamba Transport Corporation, Kadamba Bus Stand, Panaji Goa. ... Respondents Mr. D.J. Pangam, Advocate for the Appellant. Mr. A. R. Kantak, Advocate for the Respondent No.2. CORAM: R. M. SAVANT, J. Dated: 10th MARCH, 2010. ORAL JUDGMENT: 1. The above First Appeal challenges the Judgment and Award of the learned Presiding Officer, Motor Accident Claims 2 Tribunal, Panaji Goa, dated 30.4.2001 by which the Claim Petition filed by the Appellant abovenamed came to be dismissed. 2. The Appellant is the original claimant in Claim Petition No.151/95. The parties would be referred to as per their status in the Tribunal. 3. It is the case of the claimant that on 5.2.1995 at about 19.00 hours the claimant was driving his Taxi bearing registration No.GA-01-V-0679 and was travelling from Porvorim to Merces. It is further his case that as he approached the Mandovi bridge, a Kadamba bus driven by the Respondent No.1 was coming in a very high speed in the opposite direction and in a rash and negligent manner and suddenly came in the direction of the vehicle driven by the claimant and dashed against the vehicle of the claimant. On account of the said accident, the claimant suffered serious head injuries and body injuries. On account of the said injuries, the claimant had to undergo eight surgeries. The claimant was further informed that he would have to undergo more surgeries in future. The claimant was hospitalised in G.M.C., at Bambolim, from 5.2.1995 to 23.3.1995 and from 4.4.1995 till the date of the 3 presentation of the Petition in the Tribunal. The claimant claimed an amount of Rs.16,800/- on account of food and travelling expenses and had to incur further expenditure of Rs.100/- per day on an average for the period of hospitalisation of the claimant. The claimant also claimed an amount of Rs.20,000/- for medicines and was expected to spend about Rs.25,000/- more. The claimant on account of the said various heads sought total compensation of Rs.6,50,000/- in the said Claim Petition. 4. To the said Claim Petition, the Respondent No.1 did not file written statement. The Respondent No.1 was the driver of the bus owned by the Respondent No.2. The Respondent No.2 however filed its written statement and denied the case of the claimant. It was the case of the Respondent No.2 that inspite of overtaking being prohibited on the said Mandovi bridge, the claimant resorted to overtaking and on account of which overtaking the vehicle driven by the claimant dashed against the Kadamba bus on the wrong side of the road. The Tribunal framed the issues for consideration however since the Tribunal has held that the accident had occurred only on account of the rash and negligent driving of the claimant and therefore has refused to fasten any liability on the 4 Respondent No.2 only issue No.1 of the issues framed by the Trial Court is material and is reproduced hereinunder :- “1. Whether the Claimant proves that on 5.2.95 at about 19.00 hours he was driving his tourist taxi No.GA-01-V-0679 travelling from Porvorim to Merces and when he had reached the Mandovi Bridge, Respondent No.1 drove Kadamba Bus No.GDX 192 in a rash and negligent manner and dashed against the said taxi ?” 5. The said issue goes to the root of the matter in so far as fastening the liability on the Respondent No.2 is concerned. In the context of the said issue the evidence on record would have to be considered. In so far as the said issue is concerned the evidence of the claimant himself as CW1, the evidence of a person purported to be an eye witness CW2 and the evidence of CW5 i.e. Head Constable who has recorded the panchanama and was incharge of the investigation is relevant. 6. In so far as CW1 is concerned, he was put certain questions on the basis of the facts recorded in the panchanama. The said facts depict the manner in which the accident had occurred. The said questions have been reproduced in para 7 of 5 the impugned judgment. The answers to the said questions of CW1 who is the complainant can only be said to be evasive. The said witness was also confronted with the averments made in the Petition in respect of which questions also he could not give any satisfactory explanation. The said witness has propounded a fantastic theory that on account of the Kadamba bus giving a dash to his vehicle. His taxi was taken from the left hand side of the road to the right hand side of the road. The Tribunal on the ground that the said case is impossible to accept has therefore disbelieved the testimony of the said witness. 7. Now coming to the evidence of CW2 one Deepak Parab who is purported to be an eye witness. It is significant to note that though he claimed that he had carried the claimant to the G.M.C. at Bambolim, and though it is his case that the claimant had told him that he would have to come and be a witness in the event he raises a claim for insurance, however significantly his name does not appear in the list of witnesses cited by the claimant. It is further relevant to note that he has also admitted in his cross examination that he has not given any statement to the police. He was also not aware of the other details as regards the position of 6 the vehicles etc. at the time when the accident had taken place though he claimed to have travelled on a scooter behind the taxi of the claimant. In so far as the recording of the panchanama is concerned this witness has deposed that after reaching the claimant to the G.M.C., at Bambolim, he returned back to the scene of accident at around 8.00 to 8.30 p.m. It is undisputed that the panchanama was recorded at 8.15 to 9.00 p.m., but this witness has expressed his ignorance about the panchanama being made at the scene of offence between the said period. It is further the evidence of the said witness that on account of the brakes applied by the claimant, his scooter had fallen down but pertinently there is no mention of the said fact in the sketch drawn by the police at Exhibit 36. There is further no explanation as to why the scooter of this witness was not found at the place of the accident though it is his case that it had fallen down on account of the brakes being applied by the claimant. Considering the aforesaid circumstances, the testimony of the said witness is not credible and convincing and cannot be relied upon to fasten the liability on the Respondent No.2. 7 8. In so far as the issue mentioned hereinabove the evidence of Shrikant Naik CW5 who is the Head Constable and who had drawn the scene of accident panchanama and sketch of accident is material, however the Trial Court has not considered the evidence of the said witness in its proper perspective. Apart from his evidence as regards the panchanama and the sketch, what is material is that he has deposed that the claimant was given a challan for overtaking on the Mandovi bridge which challan was issued by PSI Bosco as the said witness was not authorised to do. The implicit in the said evidence is the fact that the claimant had overtaken a vehicle on the Mandovi bridge which is prohibited and therefore the said evidence of the said witness corroborates the case of other witnesses which have been examined on behalf of the Respondent No.2 namely RW1 and RW2. RW1 was the driver of the vehicle and RW2 was the conductor of the vehicle who have deposed as regards the manner in which the accident had occurred. 9. A reference could also be made to the scene of accident panchanama at Exhibit 35 and 36 on which the position of the vehicles has been depicted. The person who has recorded the said panchanama i.e. CW5 has been examined and nothing has come in 8 the cross examination of the said witness to support the case of the claimant. 10. It is sought to be contended by the learned Counsel for the Appellant that the Trial Court erred in disbelieving the CW1 i.e. the claimant only on the basis of answers to the questions which were posed to him on the basis of the panchanama. It is also contended on behalf of the Applicant that CW2 could not be disbelieved only for the reason that his name did not appear in the original list of witnesses as Order 16 of the Civil Procedure Code permits a person who is not mentioned in the list to be examined by filing an application to that effect later on. It is therefore the submission of the learned Counsel for the Appellant on the basis of the evidence of CW1 and CW2 that it would have to be held that the accident had occurred on account of the rash and negligent driving of the bus by the Respondent No.1 owned by the Respondent No.2. 11. In so far as first submission is concerned, the questions asked to the witness were not on the basis of the panchanama only but were as regards the facts which have been recorded in the 9 panchanama. The questions were asked as regards the application of the brakes by the claimant as also the position of the vehicles. The answers to the said questions by the claimant being evasive, the Tribunal was right in disbelieving the evidence of CW1. 12. In so far as the submission as regards the evidence of CW2 is concerned, it would be pertinent to note that it has come in the evidence of CW2 that he was told by the claimant that he would be a witness in case he wanted to make any claim for insurance. Inspite of the said fact, the name of CW2 did not appear in the original list of witnesses and therefore in the light of the facts which are on record the said circumstance would have to be taken into consideration for evaluating the evidence of the said witness. Apart from the said fact there are other circumstances namely that he is not a person whose statement has been recorded by the police though he claimed to be at the scene of accident is also circumstance that he is not aware of the panchanama being conducted at the scene of accident on the said day. Therefore, in my view the presence of the said witness at the scene of accident is highly doubtful and therefore the Tribunal has rightly disbelieved the said witness. 10 In the said circumstances I do not find any merit in the submission advanced on behalf of the Appellant abovenamed. 13. The Tribunal on the basis of the evidence which is on record has therefore answered the said issue No.1 against the claimant. In my view, considering the evidence on record, the view taken by the Tribunal cannot be said to be a improbable view. There is therefore no merit in the above Appeal which is accordingly dismissed. R. M. SAVANT, J. at*