1 IN THE HIGH COURT OF BOMBAY T GOA FIRST APPEAL NO. 296 OF 2004 Smt. Geeta Naik, Widow of Ganapati Naik, Aged about 32 years, Housewife, resident of house No. 54, Village Kadiye, P.O. Kerodi, Taluka and District Karwar, Karnataka State. … Appellant V e r s u s 1. Shri Venkappa Rathod driver of the Tractor (since deceased) Through his legal representatives and Wife, Smt. Shanta V. Rathod, Major in age, housewife, Resident of house no. 48, Village & PO Kulagi, Taluka Haliya, Dist. Karwar, Karnataka State. 2. M/s. Krishna Plantations Pvt. Ltd. a Company duly registered with the Registrar of Companies, having its Regd. Office at Nanu House, Varde Valaulikar Road, Margao Goa. 3. The Oriental Insurance Company Ltd. 2nd floor, David House, P.O. Box No. 234, Margao Goa. … Respondents. Mr. S.S. Kakodkar, Advocate for the Appellant. Mr. E. Afonso, Advocate for Respondent No.3. CORAM : F.M. REIS, J. DATE : 14th JANUARY, 2011 JUDGMENT : The above appeal challenges the judgment and order dated 2 4/09/2004 passed in Claim Petition No.123/2000 whereby the claim petition filed by the appellant came to be rejected. 2. The appellant is the widow of the deceased Ganapati Naik, who expired on account of a motor vehicle accident which took place on 7/10/1998 at 7.30 a.m. at Kevona, Rivona at Quepem Taluka, involving the tractor no.GA-02/A-2207. The tractor was driven by the late respondent no.1 and was belonging to the respondent no.2 and insured with the respondent no.3. It was the contention of the appellant that the deceased Ganapati Naik was employed as a helper by respondent no.2 and on the date of the accident, he was giving directions to the driver of the tractor to take a turn and while taking a turn, the tractor hit Ganapati Naik and then slipped off the road and fell into the field, as a result of which the said Ganapati Naik and the driver came under the tractor and expired. 3. The respondents nos.1 & 2 did not contest the proceedings. The respondent no.3 filed his written statement denying that the accident took place while respondent no.1, Venkappa was taking a turn and Ganapati was giving the directions. It was denied that the tractor hit Ganapati and then slipped off the road and fell into the 3 field. It is further their case that Ganapati was seated by the side of the driver on the big mudguard of the tractor and when the tractor fell into the field, the driver and Ganapati came under the tractor. It was further their case that such act on the part of said Ganapati was in contravention of the provisions of the Motor Vehicles Act, 1988 and in breach of the conditions of the policy of insurance and, as such, the respondent no.3 is absolved from all liabilities of third party. It is further their case that the driver was not holding an effective driving licence on the date of the accident and on account of such contentions, they were not liable to pay the amount of compensation. 4. After recording of evidence and framing all issues, the learned Tribunal rejected the claim petition filed by the appellant. Being aggrieved by the said judgment dated 4/9/2004, the appellant has preferred the present appeal. 5. Mr. S.S. Kakodkar, learned Counsel appearing for the appellant has assailed the impugned judgment and submitted that the Tribunal has erroneously assessed the evidence on record and has come to a wrong conclusion that rash and negligence on the part of the driver has not been established by the appellant. The 4 learned Counsel further submitted that once there was no dispute that the deceased expired on account of motor vehicle accident, the principles of res ipsa loquitor would apply and it was incumbent upon the respondents to establish the manner in which the accident occurred. In support of his submission, the learned Counsel relied upon the judgment of the Apex Court in AIR 1977 SC 1735 in the case of Pushpabhai Parshottam Udeshi & Ors. V/s. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. & Anr. Learned Counsel further submitted that the respondents nos.2 & 3 have failed to establish by any evidence as to the manner in which the accident has occurred. Learned Counsel further submitted that admittedly, the appellant, who is the widow was not present at the relevant time though some evidence was adduced in respect of the manner in which the accident had occurred, nevertheless no evidence was forthcoming from the respondents, as to how the accident occurred and, hence, the Tribunal ought to have allowed the Claim Petition filed by the appellant. The learned Counsel took me through the evidence on record and pointed out that the findings of the learned Tribunal can not be sustained and deserve to be quashed and set aside. He, accordingly, prayed that the appeal be allowed. 6. None appeared for respondents nos.1 & 2 though served. 5 Shri Afonso, learned Counsel appearing for respondent no.3 disputed the contention on the part of the appellant. He submitted that the Reference Court has rightly appreciated the evidence on record and has come to the conclusion that the appellant has failed to establish rashness and negligence, which resulted in the accident and, consequently, the question of granting any compensation to the appellant would not arise. Learned Counsel further submitted that there was a breach of the terms of the policy on the part of respondent no.2 which entitled respondent no.3 to be absolved from effecting any payment of compensation. Learned Counsel further submitted that the driver of the tractor did not have an effective driving licence as on the relevant date and, as such, there was a breach of the terms of the policy committed by the owner which entitled the respondent no.3 from being absolved from making any payment. Learned Counsel took me from though the evidence on record and pointed out that there is no infirmity committed by the Tribunal and, as such, the appeal deserves to be rejected. 7. On perusal of the evidence on record, I find that the appellant in support of the claim has examined herself. She has stated that her husband expired on account of an accident involving 6 one tractor vehicle at Rivona. She has further stated that she had not seen the accident taking place. She has further stated that her husband had fallen below the tractor and that she did not know the driver. She has further stated that she has no issues and that she has no secured income. In her cross-examination, she has stated that even after the accident, she did not come to know how the accident occurred. AW2 is Rama Chawan, who has stated that he had acted as pancha witness. He has stated that there were two men fallen below the tractor and the tractor was fallen about 3 metres below the level of the tar road. He has also seen the sketch been drawn showing the position of the road and the tractor. In the cross-examination he has stated that whenever there is work he was going to Rivona about three times a week. He denied the suggestion that he had not signed the panchanama. Next witness examined is Jayant Kakode as AW3, who stated that he was working as a Supervisor for Nanu Enterprises at Margao and he looks after their affairs. He has stated that the tractor was involved in the accident on the road at Kevona and that the same belonged to respondent no.2 and was driven by the deceased Venkappa Rathod. He has further stated that the husband of the appellant was working as a helper. He has further stated that when he was leaving the farm at Kevona, he saw the deceased Ganapati standing outside the 7 gate of the farm on the road. He has also stated that said Ganapati had informed him that he was waiting for the tractor as it was expected to come at any moment. He has further stated that he had crossed the tractor which was driven by the driver Venkappa Rathod and which was proceeding to the farm. He had further stated that when he reached Margao, he learnt about the accident. In cross-examination he has admitted that he had noticed the said tractor being driven by Venkappa Rathod. He has further stated that the accident had taken place as the tractor was entering the farm. He has further stated that on the same day he had been to the farm to see what had happened. He denied the suggestion that he had falsely deposed that in the morning he had seen Ganapati outside the gate of the farm. RW1/Arun Kumar Jaiswal is the Regional Manager of respondent no.3. He has stated that as per his information received the deceased Ganapati at the time of the accident was on the mudguard by the side of the driver and when the tractor fell in the field, the said Ganapati fell under the tractor. In the cross-examination he stated that despite their request, respondents nos.1 & 2 had not produced driving licence. 8. While passing the impugned judgment, the learned Tribunal has held that there is no dispute that the tractor belonging to 8 respondent no.2 and insured by respondent no.3 was involved in the accident which took place on 7/10/1998 at about 7.30 a.m. at Rivona. The learned Tribunal has further held that the station diary entry at Quepem police station at Exhibit 15 discloses that the accident had resulted with the tractor overturning and two persons being trapped under the tractor. The learned Tribunal has examined the evidence of AW1, AW2 and AW3 and held that the evidence of AW3 does not inspire confidence. The learned Tribunal further held that the evidence of RW1 does not disclose any direct evidence to disclose that the deceased Ganapati was seated in the tractor at the time of the accident. The learned Tribunal came to the conclusion that there is absolutely no evidence to prove that the accident took place due to rash and negligent driving of the tractor. Accordingly, the claim petition came to be dismissed. 9. On perusal of the evidence on record and the impugned judgment, I find that the fact that the deceased Ganapati expired on account of the accident, can not be disputed. The fact that he along with the driver were trapped under the tractor, in view of such accident, cannot also be disputed. Admittedly, the appellant was not present at the time of the accident and, in such circumstances, it 9 is not possible for the dependents to adduce direct evidence for the purpose of conclusively establishing the manner in which the accident has occurred. The law is well settled that evidence in motor vehicle accidents have to be assessed in the touch stone of preponderance of probability. 10. Res ipso loquitor means speaking for itself. It is not a principle of substantive law but a rule of evidence. The onus to prove negligence is on the claimants but in some cases it causes hardships to the claimants to prove it as the true cause lies only with the Respondents. This hardship is avoided considerably by the principle of res ipso loquitor. If the accident is proved in such a way that prima facie it could not have happened without the negligence of the Respondent, it is for the Respondent to explain as to how the accident could have happened without negligence. These principles would have to be considered while appreciating the evidence in motor accident claim petition. Mr. Kakodkar, learned Counsel appearing for the appellants is as such justified to rely upon the judgment of the Apex Court in the case of Pushpabhai Parshottam Udeshi & Ors.(supra). 11. On perusal of the impugned judgment, I find that the 10 Reference Court has failed to address itself on the said aspects while passing the impugned judgment. Once the learned Tribunal had found that Respondent No.3 had failed to establish that the deceased Ganpati was sitting on the mud guard of the tractor, the evidence on record ought to have been appreciated by considering the said well settled principles of law. As such, I find that it would be in the interest of justice that the learned Tribunal should re- appreciate the evidence on record and consider the matter in accordance with law. The respondent no.3 has also raised the contention that there was a breach of the policy, as according to them, the driver did not have an effective driving licence on the relevant date. This aspect has also not been considered by the Tribunal while passing the impugned judgment. Considering the facts and circumstances of the case, I find that the learned Tribunal has not appreciated the evidence by applying the well settled principle of law and, as such, has come to an erroneous conclusion that the rashness and negligence has not been established by the appellant. 12. Considering the submissions of the learned Counsel and on perusal of the impugned judgment, I find that in the interest of justice it would be appropriate that the Tribunal be directed to re- 11 assess the evidence on record afresh after hearing both the parties. At this stage, Mr. Kakaodkar, learned Counsel appearing for the appellant submitted that the appellant desires to lead further evidence. Shri Afonso, learned Counsel appearing for the respondent no.3 also submitted that the respondent no.3 may have to substantiate their contentions raised by them in the written statement. Liberty is given to both the parties to lead such evidence, if they so desire on the said aspect. Mr. Kakodkar also submitted that the issues are to be re-framed. Liberty is given to the appellant to file an appropriate application to that effect and in case such application is filed, the learned Tribunal shall consider the same on its own merits. 13. In view of he above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 4/09/2004 is quashed and set aside. (iii) Claim Petition No.123/2000 is restored to the file of the Claims Tribunal. (iv) The Claims Tribunal is directed to decide the said Claim Petition afresh after giving an opportunity to both the parties to lead further evidence in accordance with law. 12 (v) All the contentions raised by the parties are left open. (vi) The appeal stands disposed of accordingly with no order as to costs. (vii) Parties are directed to appear before the Tribunal on 14/03/2011 at 10.00 a.m. F.M. REIS, J. NH/-