1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal No. 188/2002 Karim Khan Mohamad Gauns Khan Shigao, s/o Mohammad Gauns Khan Shigao, major in age, resident of House No. EWS/144, Housing Board, Gogol, Margaon, Goa. ... APPELLANT V e r s u s 1. Shri Mabalo Fatto s/o Dugo Fatto, Kadamba Transport Corporation Ltd. Panaji, Goa. 2. The Chairman, Kadamba Transport Corporation Ltd. Panaji, Goa. 3. Smt. Rehmad Bi (Deceased) 4. Shri Sattar Khan Shigao major in age, s/o Mohammad Gaus Khan Shigao, 5. Ahmad Khan Shigao, major in age, s/o Mohammad Gaus Khan Shigao. All residing at House No. EWS/704, Housing Board, Gogol, Margaon, Goa and 6. Rehman Khan Shigao, major in age, s/o Mohammad Gaus Khan Shigao, r/o House No. 46, Peda, Margaon, Goa. ...RESPONDENTS --------------------------------------------------------------------------------- Mr. S. S. Kakodkar, Advocate for appellant. Mr. A. R. Kantak, Advocate for respondents. --------------------------------------------------------------------------------- CORAM: S. A. BOBDE, J. DATE: 24 th June, 2011. 2 ORAL JUDGMENT 1. This appeal by claimants is against judgment and order of the Motor Accident Claims Tribunal, Margaon, South Goa District (MACT), dismissing the claim petition as false and supported by false witnesses secured only to claim compensation. 2. According to the claimant, the deceased Mohd. Gauns Khan, aged 70 years was crossing the road opposite State Bank of India, Margaon when the bus of the respondent-Kadamba Transport Corporation, came at a fast speed and in a rash and negligent manner, knocked down the claimant, who, thereafter, died in the hospital. The accident took place on 05.02.1994. The deceased was admitted to hospital and discharged on 03.03.1994. He died at his own residence on 22.03.1994. The learned Tribunal has observed that the statement that he died in the hospital is itself false as is apparent from the claim petition. The defence of the respondent was that the bus was being driven slowly, cautiously, diligently and when the bus approached the State Bank Of India, Margaon Branch, there was a traffic jam and there was a line of vehicle both in front and at the back of the vehicle. Therefore, the 3 bus was proceeding slowly. According to them, the deceased was aged about 84 years old and was crossing the road with the help of a walking stick from the right side of the bus to the left side. He slipped and fell down on the road. The defence was that the claim petition is an attempt to extract compensation from them. 3. The claimants examined one Mohd. Yusuf (CW2) claiming to be the only eye witness and Karim Khan (CW3), who reached the place after the alleged accident and a Panch witness apart from two doctors. The respondents did not examine any witness. 4. The learned MACT, on the basis of medical evidence of the two doctors, has come to the conclusion that the deceased was admitted to the hospital on 05.02.1994 and was discharged at his own request on 03.03.1994 and died subsequently on 22.03.1994. He was about 82 years and had suffered a fracture of the right hip bone, which can also be caused by a fall on his own due to the old age. Dr. Nagvenkar, specifically stated that there was no other injury on the patient and the deceased appeared to be malnourished with low Haemoglobin, which was not due to the 4 accident. Dr. Nagvenkar also opined that the fracture could have been the secondary cause of death because in case patient remains in the bed for long time, it may result in congestion of chest, constipation, bed-sores etc. The other witness Dr. Gaitonde stated that heart of the deceased has become weak resulting in cerebral ischaemia and he ultimately died of cerebral anoxia i.e. lack of circulation/supply of oxygen to brain because of sclerosis due to a weak heart and respiratory failure. He stated that the process of death was hastened because of the fracture. Dr. Gaitonde further stated that he had advised the patient to be taken to the hospital but the patient did not wish to go. The ultimate result would have been the same even if the patent would have been taken to the hospital. The learned trial Judge has concluded on the basis of the evidence that fracture was not the causa causans nor the proximate cause of death but there were many other factors such as bringing the deceased home against medical advice, not taking him to the hospital when his condition became bad, the old age, cerebral ischaemia i.e. lack of supply of Oxygen to the brain because of sclerosis due to weak heart and respiratory failure. 5. I have heard learned counsel for the parties and have 5 examined the evidence. There is no doubt that the deceased suffered a fracture due to a fall and was also taken to the hospital but the crucial question for determination is, whether the claimants are entitled to any compensation from the respondent and whether the a fracture was the result of an accident with the bus of the respondent-Corporation, which is allegedly driven rashly. From the evidence, it does not appear that the bus could have been driven rashly or negligently since the road was extremely busy and full of cars and scooters. Moreover, the Panchanama does not disclose a single mark due to sudden braking on the road showing the sudden stoppage of the bus nor a drop of blood on the road or on the vehicle. The only witness produced by the applicant stated that the bus was driven rashly has been found to have been standing at such a position on the road from where he should not have seen the accident at the front of the bus since the bus itself would have obstructed his view. Moreover, this witness, who claims to have been a friend of the deceased has been observed to be acting unnaturally by not only not going towards the said Mohd. Gauns after the so called accident but having instead boarded the bus to Dharwad. The learned Tribunal has rightly observed that the statement of witness that after the said Mohd. Gauns fell down, the 6 bus moved ahead, is false, since if the bus had moved ahead, the deceased Mohd. Gauns would have been run over. The learned Tribunal has observed that this witness Mohd. Yusuf has not seen the accident and he has been brought up only with a view to claim some compensation on account of death of the said Mohd. Gauns. 6. Having examined the evidence and for the reason hereinabove, I see no reason to interfere with the finding of the MACT that the deceased Mohd. Gauns was not hit by the bus of respondent and did not fall down and suffered a fracture due to any accident. It is true as Mr. Kakodkar, the learned counsel for the appellant, submitted that the standard of proof in a case of such a nature need not be proved beyond reasonable doubt but the case would have to be proved on the touchstone of balance of probabilities. Even going by the standards of balance of probabilities, it appears that in all probabilities, the bus of the respondent was not driven rashly or negligently and did not dash against the deceased. It is important to note that though there was a complaint lodged against the driver, who is normally a victim of public wrath, it is an admitted position that police did not arrest the driver nor any charge-sheet was filed against him. The learned 7 MACT has further given several reasons in detail as to why the claim is false. It is not necessary to go into all details after having found that the death was not due to accident with the respondent's bus. 7. Mr. Kakodkar, the learned counsel for the appellant, submitted that the respondent would have examined the bus driver to show that there was no accident. Undoubtedly, they could have done so but not having done so would not lead to inference that the appellant proved his case before the Tribunal. Not examining the bus driver can be equally consistent with the case of the respondent-Corporation that their bus did not dash against the deceased Mohd. Gauns. In any case, it is settled law that the claimant must prove his own case on its own merits and not by relying on the weaknesses or absence of certain evidence of the respondent. In this view of the matter, I see no reason to interfere in the appeal. The same is, therefore, dismissed. No order as to costs. S. A. BOBDE, J. kahale