- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.209 OF 2004 1 Smt. Laxmi Suryakant Naik, Widow of late Suryakant Naik, 2 Miss Babita S. Naik, Both major of age, residents of House no. 2/229, Naikwaddo, Calangute, Bardez, Goa. ..... Appellants. Versus 1 Shri Hari Sonu Shetye, driver of Rickshaw No. GA-01- 3691, House No. 249, St. Inez, Panaji, Goa. 2 Harish S. Shetye, owner of rickshaw No. GA-01-T-3691, Vales Bhat, St. Inez, Panaji, Goa. 3 Oriental Insurance Co. Ltd., Gouveia Chambers, 3rd floor, Helidaro Salgado Road, Panaji, Goa. ..... Respondents. Mr. J. P. Mulgaonkar, Advocate for the Appellants. Mr. E. Afonso, Advocate for the Respondent no.3. CORAM : F. M. REIS, J. DATE :19th NOVEMBER, 2010. - 2 - JUDGMENT: The above Appeal challenges Judgment and Award dated 10.5.2004 passed by the learned Presiding Officer, Motor Accident Claims Tribunal at Mapusa in Claim Petition no. 40/2002. 2. The appellants filed claim petition on the ground that an accident took place near Green Park Hotel, highway by-pass, Guirim on 11.7.1999 at about 11.00a.m whereby Vijay Suryakant Naik came to meet with a motor accident which resulted in his death. It was the case of the appellants that the deceased was the rider of the motorcycle Yamaha bearing no. Ga-01-F-2833 and was proceeding from Porvorim to Karaswada side. On account of the said accident the deceased suffered head injuries and he succumbed to his injuries on the way to GMC hospital, Bambolim. It is further their case that one Mrs. Rose Mary D'Souza was the pillion rider of the said motorcycle and when they reached at the junction of the highway near Green Park hotel the deceased was negotiating a turn to the highway to proceed towards Karaswaddo and at that point of time the driver of the rickshaw bearing no. GA-01-T-3691 driven by the respondent no.1 came in a rash and negligent manner and dashed against the said - 3 - motorcycle which caused the accident. Said Vijay was immediately rushed to G.M.C., hospital and on account of serious head injuries he expired on the way to the G.M.C, hospital. It is further their case that he was the only earning member of the family as the applicant no.1 is the widowed mother of the deceased and the applicant no. 2 was the unmarried sister of the deceased depending on the deceased for their livelihood and on account of the sudden demise of said Vijay said mother suffered mental shock and in fact was under treatment. The appellants actually claim Rs.5,30,000/- as compensation from the respondents. 3. Respondent no. 1 filed his written statement and contended that the Claim Petition was not maintainable and that it is bad for non joinder of necessary parties. It is further his case that deceased Vijay who was a rider of a Yamaha motorcycle did not possess a valid and effective motor driving licence at the relevant time. It is further his case that the deceased was not married and had no heirs and as such the petition is not maintainable. The said respondent disputed the claim of the appellants for the said compensation of Rs.5,30,000/-. He has further denied that when he reach near the junction said Vijay was negotiating a turn. He denied that the respondent drove the - 4 - rickshaw in a rash and negligent manner and dashed against the motorcycle. He had denied that the deceased suffered serious head injuries and expired on the way to the hospital. He has further stated that the accident occurred entirely due to the rash and negligent manner and high speed on the part of the deceased who dashed against rickshaw driven by respondent no. 1 which had already reached its left side of the road to go to Panjim and that the deceased was riding on the wrong side and that too at high speed. Respondent no. 3 filed their written statement on the same lines as that of respondent no.1. The learned Presiding Officer after framing of the issues and recording of the evidence, dismissed the claim petition filed by the appellants by the Judgment and award dated 10.5.2004. 4. Being aggrieved by the said Judgment and Award, the Appellants have preferred the present appeal. 5. Mr. J. P. Mulgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the accident has occurred on account of rash and negligent driving on the part of the respondent no.1. Learned counsel further pointed out that the learned Tribunal has erroneously dismissed the claim petition filed - 5 - by the appellants without properly appreciating the evidence on record. Learned Counsel further submitted that there is no reason to believe the evidence of respondent no.1 when he had never admitted that he had a passenger in the rickshaw and said passengers was not examined by the respondent. Learned Counsel further submitted that appellants had examined two eye witnesses who were present at the time of the accident and the learned Tribunal has erroneously disbelieved the said witnesses while passing the impugned Judgment. Learned Counsel further took me through the records and pointed out that the place where the accident had taken place was at a junction and the deceased was riding the motorcycle which was coming on the right side of the road from the path of the rickshaw at the relevant time. Learned Counsel further submitted that rules provide that at a junction one has to give preference to the traffic which comes on the right hand side first. Learned Counsel further submitted that the very fact that the rickshaw had reached on the other side of the road and considering that the road at the site is broad itself suggests that the rickshaw was at high speed and the accident occurred in view of the fact that the rickshaw was being driven by respondent no.1 in a rash and negligent manner. Learned Counsel further submitted that the exercise done to ascertain as to whether the deceased was holding a - 6 - driving licence or not is irrelevant as the claim petition has been filed against the rickshaw driver and his insurance company. Learned counsel further submitted that in any event even assuming that there was any negligence on the part of the deceased which caused the accident, there is no doubt that there was contributory negligence on the part of the respondent on which count the appellants would be entitled for just and proper compensation. Learned counsel as such submitted that the impugned judgment and award deserve to be quashed and set aside. 6. On the other hand learned Counsel Mr. E. Afonso, appearing for the respondent no. 3 has supported the impugned judgment. Learned counsel sought to point out that the learned Tribunal has rightly appreciated the evidence on record and had come to the conclusion that the deceased was riding the motorcycle in a rash and negligent manner. Learned Counsel further submitted that considering the point of impact the deceased appears to have been riding the motorcycle in a rash and negligent manner. 7. Having heard the learned Counsel and on perusal of the records, the following point for determination arise in the present - 7 - appeal:- POINT FOR DETERMINATION Whether the learned Presiding Officer was justified in refusing the claim petition filed by the appellants on the ground that the deceased was riding the motorcycle in a rash and negligent manner? 8. In support of their claim for compensation, the appellants have examined AW1 Babita Naik. She has stated that she is the appellant no. 2 and that she had lost her brother Vijay at the young age of 25 years due to accident. She has further stated that the rickshaw was proceedings from Mapusa city side towards Panjim side and her brother was proceeding from Porvorim to Karaswada on NH-17. She has further stated that the respondent no. 1 was driving the rickshaw in a rash and negligent manner and inspite of having to give first preference to the high way traffic dashed against the motorcycle. She has further stated that after the death of her father, her deceased brother was the only bread earner of the family and that she was unmarried. In the cross examination she has denied that another brother Deepak was looking after the family. She has further stated - 8 - that the deceased was having a driving licence of two wheeler and that she was not aware whether the motorcycle of Yamaha make had valid insurance policy. She has further stated that the said motorcycle belongs to one Umesh Salgaonkar. She has denied the suggestion that said Vijay was unemployed and not employed with one Noel De'Souza. She has also denied the suggestion that her deceased brother came on the wrong side of the road and dashed against the rickshaw. The next witness examined is AW2 Laxmi Naik who is appellant no.1. She was not present at the time of accident and as such her evidence will not be material to ascertain the manner in which the accident occurred. The next witness examined is Nizam Hussain Nadaf. He has stated on affidavit that he was waiting for a bus to go to Panjim at Guirim road junction. He has further stated that suddenly there was panic to see the accident involving Yamaha motorcycle and rickshaw. Yamaha motorcycle was going from Panjim to Karaswada side on the main national highway and the rickshaw was proceeding from Mapusa to Panjim. He has further stated that the rickshaw driver instead of giving preference to the highway traffic drove fast in a rash and negligent manner and smashed the Yamaha motorcycle. In his cross examination he has stated that he is undertaking civil contracts and that the bus stop at Guirim is at a - 9 - distance of 100 to 125 metres from the accident spot. He has denied that the accident took place after the rickshaw had crossed the highway. He has denied that the motorcycle was on the right hand side of the road from the distance of one metres from the edge of the road. He has denied that he had not seen the accident. He has further stated that he does not know whether there was any one as a pillion rider. He has further stated that he did not pay attention to the accident but when he reached the spot a crowd had gathered. The next witness examined is Kishor Mandrekar who has stated on affidavit that at about 11.00am, he was proceeding from Mapusa to Panjim on Kinetic Honda Scooter and that he saw in his own eyes a motor accident involving yahama motorcycle and rickshaw. He has further stated that the said yamaha was driven by the Vijaya, whom he knew in Calangute, Baga as he was bringing guest to Hotel Marinha Dourada at Baga, where he was working. He has further stated that the deceased was proceeding from Porvorim to Karaswada on the National Highway and the rickshaw instead of giving preference to the highway traffic drove the rickshaw in a high speed and dashed against the motorcycle. In the cross examination he has stated that he saw from the distance of 300-400 metres from the accident spot. He has further stated that he had not seen any other person fallen on the - 10 - ground. He had not given any statement to the police. He denied that he was not present at the accident site. He had also denied that said the deceased came and dashed on the right side of the rickshaw. Respondent no.1 examined himself and stated on affidavit that he saw the Yamaha motorcycle driven by the said deceased alongwith one lade who was pillion rider who came at a high speed from Panjim side and dashed the rickshaw, which had already reached the left side of the road. He further stated that he had seen the motorcycle being driven without following the traffic rules and that it was driven at a very high speed and he dashed against the rickshaw. He further stated that the deceased was driving on the wrong side of the road and at high speed and the accident occurred on account of the fault of said Vijay. He has further stated that he has been acquitted of the charges in the criminal case. In the cross examination he has stated that he does not know that Vijay was proceeding from Panjim to Karaswada on the national highway 17. In his further cross examination he has stated that he does not know from which side said Vijay had come. He has further stated that he had crossed the speed breaker and gone to the left side of the road and as such he cannot given any answer to the question as to whether said Vijay had a preference to proceed on a highway. He has further stated that he has not stated in the written - 11 - statement that there was a passenger in his rickshaw. He has further stated that he was not a passenger but his neighbour Laxman Naik. 9. From the foregoing statements of the witnesses what can be ascertained is that the motorcycle was driven by the deceased who met with an accident. The accident occurred at the cross section when the deceased was riding his motorcycle and going from Porvorim and proceeding to Karaswada, Mapusa on the National Highway. Statements show that the rickshaw driver was proceeding from Mapusa city to Panjim. Both the vehicles collided at the extreme right side of the Highway proceeding from Porvorim to Mapusa. The motorcycle was found to be at a distance of about 10 metres from the rickshaw. These figures are apparent on perusal of the location as prepared by the panchanama drawn by the police and which forms part of the record. 10. The essential grounds on which the learned Tribunal has refused the claim petition is that the deceased was riding the motorcycle and the records do not reveal as to whether he was authorized to drive the motorcycle. This by itself cannot disentitle the legal representatives of the deceased to file the claim petition, even assuming the deceased - 12 - did not hold a driving licence and the rickshaw driver was the cause of the accident and in which case the appellants would be entitled to claim compensation on account of rash and negligence on the part of the rickshaw driver. 11. The Apex Court in the judgment reported in the case of Sudhir Kumar Rana V/s. Surinder Singh & Ors. (2008 (12) SCC 436) has held at para 9 thus: “9. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.” 12. Considering the said judgment of the Apex Court, the ground on which the Tribunal has refused the compensation would not survive in cases in which the rickshaw driver was responsible to the said accident. 13. The learned Tribunal whiles passing the impugned judgment - 13 - has also come to the conclusion that the deceased motorcyclist was riding a motorcycle in a rash and negligent manner. This finding has been arrived at on the basis of the evidence of RW1 who is the rickshaw driver. On perusal of the evidence on record, apart from the examination of AW1, the appellants have also examined AW3 and AW4 who have categorically deposed that one of them, AW4 was riding a motorcycle from Mapusa to Panjim and as such had an occasion to see the manner in which the accident occurred. The witness AW3 has further stated that he was standing at the bus stop in the vicinity of the place where the accident occurred and in fact was able to see the manner in which the accident occurred. Irrespective of the fact as to whether the appellants have adduced any cogent evidence to establish the rash and negligence on the part of the rickshaw driver, the records reveal that the rickshaw driver who has deposed as RW1 has not stated the correct facts as to the manner in which the accident occurred. On perusal of the judgment passed by the Judicial Magistrate, First Class whiles acquitting RW1 in the Criminal Case lodged by the police, the Magistrate has recorded the statements of the prosecution witnesses. Two witnesses examined in the said criminal case of which one was Rose Mary D’Souza who was a pillion rider of the motorcycle. The learned Magistrate has - 14 - mentioned at para 9 portion of her said statement that in her cross- examination she had stated that accident took place due to the fault of both the vehicles. On the basis of such statement, the learned Magistrate has given the benefit of doubt in favour of the accused who is RW1. Besides the said witness, the prosecution had also examined the occupant of the rickshaw, whose evidence was recorded before the learned Magistrate. She had stated that the rider of the motorcycle was very fast in speed and he gave a dash to the rickshaw. Whiles giving account of the manner in which the accident occurred, she has stated that she was proceeding from Mapusa to Panjim in the auto- rickshaw and a motorcycle came and dashed the rickshaw. She had further stated that there was a speed breaker in front of hotel Green Park and that the accused had slowed down the rickshaw as there was a speed breaker. She had further stated that one bus was proceeding to Panjim and was in front of the rickshaw and was going slowly. The existence of the said bus at the place where the accident occurred has not even been narrated by RW1/Harish Shetye. This shows that respondent no.1 has not stated the complete facts before the Tribunal as to the manner in which the accident occurred. To a pointed question put to him in the cross-examination to the effect that the deceased Vijay was proceeding on a National Highway from Panjim - 15 - to Karaswada and, as such, he had a right of way before him, he answered that he does not know from which side he has come. He had further stated that he had crossed the speed breaker and gone to the left side of the road and, as such he cannot give any answer to the question as formulated. He has further stated that the accident had taken place at around 11.00 hrs. 14. The said statement of RW1/Harish Shetye shows that there was lack of due care expected of the driver when he is crossing the part of a National Highway at a cross section. The very fact that he had stated that he did not see as to on which side the said deceased Vijay came itself shows that the respondent no.1 had not taken due care to ascertain whether any vehicle is crossing the National Highway at the point of intersection. The panchanama drawn by the transport department about the damage suffered by the rickshaw shows that the windscreen of the rickshaw had been smashed. This shows that the motorcycle gave a dash on the front side of the rickshaw. If at all the version of the rickshaw driver had to be accepted such impact ought to have been on the rear side of the rickshaw. Apart from that it is found from the panchanama that the motorcycle was fallen at a distance of more than 10 metres from the rickshaw on his front side. Cumulative - 16 - effect of all these circumstances show that it cannot be said that the accident occurred solely on account of rash and negligence on the part of the motorcyclist. In view of the fact that RW1/Harish Shetye had not shown proper care expected of him whiles crossing the part of the National Highway, I find that there was contributory negligence on the part of respondent no.1 which resulted in the said accident. 15. A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, which means an opportunity is afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent. 16. Negligence is the omission of a duty caste either by omission to do something, which a reasonable men, who ordinarily by reason of conduct of human affairs, would do or be obliged to or by doing something which a reasonable prudent men would not do. Negligence does not always mean absolute carelessness but want of such degree of case as care as is required in particular circumstances. Negligence is failure to observe for the protection of the interest of another person, the degree of care, precaution and vigilance which the - 17 - circumstances justly demand, whereby such other person suffers injury. There is no absolute standard which can be fixed and there is no mathematical exact formula which has been laid down by which negligence or lack of it can be measured in a given case. In the case of contributory negligence crucial question of which liability depends would be whether either party could by exercise of reasonable care have avoided the consequences of other's negligence, which other party could have avoided the consequences of other's negligence would be liable for the accident. On perusal of the evidence on record, the accident occurred at the cross section of the National Highway and the road proceeding from Mapusa to Panjim. At this stage, it would be pertinent to consider Road Regulations, which prescribe giving way to traffic at road junction. It stipulates that the driver of the motor vehicle shall on entering road intersection at which traffic is not being regulated if the road entered is the main road designated as such, give way to the vehicle proceeding along that road and in any other case give way to all traffic approaching the intersection on his right hand. Regulation (8) provides that the driver of the motor vehicle shall slow down when approaching at the road intersection, a road junction, pedestrian crossing or a road crossing and shall not enter any such intersection junction or crossing until he - 18 - has been aware that he may do so without endangering the safety of the persons thereon. In the present case, from the material on record, the motorcyclist was coming on the right side of the rickshaw driver, who is the respondent no.1. Apart from that, the motorcycle was on the National Highway. Considering the said regulations, naturally, the respondent no.1 ought to have taken the necessary care and precaution to slow down and allow the motorcyclist the right of way. No doubt the motorcyclist could also have taken the necessary precaution to avoid the accident in case he was riding the motorcycle at a controllable speed. Considering the evidences on record and the deposition of the witnesses which have been enumerated herein above, the only conclusion which can be drawn is that both the deceased as well as respondent no.1 were negligent which caused the accident. 17. At the place of the accident the width of the road was substantially broad. There was no obstruction to the view of the respondent