1 IN THE HUGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.27 OF 2006 Shri Namdev Lotlikar, son of Narcinva Lotlikar, aged 66 years, married, resident of House No.158, Banda, Assolna, Salcete, Goa. …. Appellant V/s 1. Shri Daniel Pereira, son of Joao F. Pereira, major in age, driver of vehicle bearing registration number GA-02-B-9841, resident of House No.7, Vallar, Deusua, Chinchinim, Salcete Goa. 2. Shri Pasio Julio Fernandes, son of Eletario Fernandes, major in age, owner of vehicle bearing registration number GA-02-B-9841, resident of House No.429, Belem, Navelim, Salcete Goa. …. Respondents Mr. S.S. Kakodkar, Advocate for the Appellant. None for the Respondents. CORAM : F.M. REIS, J. DATE : 10th MARCH, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 18/10/2005, passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Margao in Claim Petition No.186/1998. 2 2. The Claim Petition came to be filed by the appellant under Section 166 of the Motor Vehicles Act, 1988, herein after referred to as “the said Act”, claiming a sum of Rs.98,000/- on account of the injuries suffered by him in a motor vehicle accident. It was the case of the appellant that on 6/07/1988 at about 12.30 p.m., the appellant was proceeding on his scooter from Orlim to Assolna and when he reached the place known as Deussua on Orlim- Chinchinim road, another motorcycle bearing no.GA-02/B-9841 which was ridden by the respondent no.1 in a rash and negligent manner came on the opposite direction and dashed against the scooter of the appellant. Accordingly, that said Claim Petition came to be filed. 3. The respondents after being served filed their written statement and denied the case put forward by the appellant. It was their case that the appellant was riding his scooter with a deformity on his right hand on account of the injury which he sustained at the time of an earlier accident and, as such, he was unable to ride his scooter and control the same due to such deformity. It is further his case that the appellant was coming on the opposite side from Orlim to Assolna and came to the extreme wrong side of the road and 3 dashed the bullet motorcycle of the respondent no.1, who was proceeding from Chinchinim to Deussua. On account of the said collusion, the appellant went ahead and fell at a distance of about 11 metres. In view of the dash given by the appellant to the motorcycle of the respondent no.1, he sustained grievous injuries and is still under treatment for the said injuries and the said respondent further stated that the accident occurred exclusively on account of the rashness and negligence on the part of the appellant. Accordingly, the respondent no.1 disputed the claim of the appellant and prayed that the petition deserves to be rejected. The respondent no.2 also filed his written statement adopting the written statement filed by the respondent no.1. 4. The issues were framed by the learned Tribunal and after recording of evidence, the Tribunal came to the conclusion that the appellant has failed to establish that the accident took place on account of rash and negligent driving of the vehicle bearing No.GA-02/B-9841. The Tribunal further came to the conclusion that the appellant has failed to prove that on account of the said accident the appellant had suffered grievous injuries to the right forearm and permanent disability to the right hand. The Tribunal further held that as the appellant had failed to establish that the 4 accident occurred on account of the fault of the respondent no.1, the appellant was not entitled for any compensation. 5. Shri S.S. Kakodkar, the learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that the Tribunal has erroneously assessed the evidence on record and come to a wrong conclusion that the appellant has failed to establish rashness and negligence on the part of the respondent no.1. The learned Counsel has taken me through the evidence on record and pointed out that the appellant has stated in his deposition that respondent no.1 had come on the wrong side and dashed on the scooter of the appellant and, thereafter, had fallen down. The learned Counsel further submitted that the said fact came to be corroborated by CW2/Rita Cotta e Fernandes, who was at a flour mill in the vicinity of the scene of the accident. The learned Counsel further submitted that the evidence of respondent no.1 cannot be believed as the facts narrated by her are totally false on the basis of the evidence on record. The learned Counsel further submitted that the appellant has suffered a permanent disability and, as such, the appellant was entitled to claim compensation from the respondents herein. The learned Counsel, as such, submitted that the impugned judgment deserves to be 5 quashed and set aside. 6. The respondents though served failed to remain present nor were represented by any Counsel. 7. On perusal of the evidence on record and considering the depositions of the witnesses examined by both the parties, I find that the version given by the respondents as to the manner in which the accident occurred appears to be plausible. CW1/Namdeo Lotlikar in his deposition has stated that he was riding the scooter and was proceeding from Orlim to Assolna and that the motorcycle of respondent no.1 came on the opposite direction in a fast speed and came to the wrong side and dashed against the scooter. He has further stated that the said respondent no.1 was riding the motorcycle at about 50 kilometres per hour and had come on the wrong side of the road and dashed against the right side panel of his scooter. He further stated that he sustained injuries on account of the said accident. In his cross-examination, the said witness has stated that the respondent no.1 also suffered serious injurious as a result of the accident. He has also admitted that there is a side road proceeding towards Coddiawadda near the place of the accident and that the motorcycle of the respondent no.1 was coming on the 6 opposite direction. He denied the suggestion that at the time of the accident, he was negotiating a turn towards the right side of the road to go to the side road of Coddiawadda and that he was on the wrong side of the road. He has also admitted that he had deformity on his right hand palm including his finger. He has further stated that despite of the said deformity he was able to perform the normal work. The next witness examined is CW2/Rita Fernandes, who has stated on affidavit that on that day she was in a flour mill which is near the spot of the accident and that the appellant was riding the scooter and proceeding towards Assolna. Another motor cycle came on the opposite direction driven at a fast speed and on a wrong side and dashed against the scooter of the appellant. She further stated that the appellant fell along with his scooter. She has further stated that the road at the site is about 5.50 metres wide and the appellant was riding at a distance of about 0.50 metres from the edge of the tar road. In the cross-examination she has stated that she is a resident of Chinchinim and that she was outside the flour mill at the time of the accident. She has further stated that her attention was driven to the place of the accident after the claimant fell down. She has further stated that the respondent no.1 fell down at a distance of 10 metres from the place of the impact. She has further stated that her son-in-law told her to be witness in the 7 present case as her daughter is residing in the neighbourhood of the appellant. She has further stated that the place where the accident took place is a straight road proceeding from Orlim to Assolna. The next witness examined is CW3/Dr. Rohidas Nagvekar, who stated about the permanent disability suffered by the appellant. Another witness examined is CW4/Atmaram Vishnu Kankonkar, who was the Investigating Officer in respect of the said accident. He has produced the panchanama and was unable to state the position of the vehicle without going through the records and has thereafter stated that the papers could not be traced. In the cross- examination, he has stated that the accident case was closed as it was a pure accident. CW5 is Dr. Damodar Lotlikar, who had examined the appellant. 8. The respondents examined RW1/Daniel Pereira, who is respondent no.1. He has stated in his affidavit that on the relevant date and time he was proceeding on his motorcycle from Chinchinim to Deusua at a moderate speed on the left hand side of the road and had reached at a junction where there was a side road leading to Coddiawadda Chinchinim on the left hand side if one proceeds from Chinchinim to Deussua. He further stated that at that time the appellant was riding his motorcycle in a fast speed on 8 the opposite direction and at the spot of the junction where the side road exists all of a sudden the appellant came with his scooter across the road in order to proceed to the side road leading to Coddiawadda and came towards wrong side of the road. He has further stated that on seeing the motorcycle the appellant got totally nervous and was almost about to dash his scooter which would have resulted in a head on collusion and he tried to avoid the dash by taking his motorcycle on his extreme left of the road, but in the said process the appellant came still towards his side and hit on the right side guard of his motorcycle and thereafter the appellant lost control of his scooter and fell on the side of the road. In his cross- examination he has stated that the scooter fell at a distance of about 2.5 metres from the Coddiawada junction. He has further stated that his vehicle had fallen at the junction itself. He has denied the suggestion that he had come on the wrong side of the road and had dashed against the scooter of the appellant. The next witness examined is RW2/Selvyn Goes, who has stated on affidavit that on the relevant date he was proceeding on his motorcycle from Chinchinim to Orlim and he had reached near the junction where there was a side road leading to Coddiawada, when one proceeds from Deussua to Chinchinim. He has further corroborated the manner in which the accident occurred as stated by the respondent 9 no.1. In the cross-examination he has stated that he saw the appellant for the first time when he was at a distance of about 20 metres from him. He has further stated that respondent no.1 was on the extreme left side of the tar road within a distance of about one metre only and that the distance between the scooter of the appellant and the motorcycle of respondent no.1 was about 2 metres. He has further stated that after the dash, the motorcycle of the respondent no.1 turned on opposite direction. I have also perused the site panchanama which discloses that the motorcycle of respondent no.1 is fallen on the left side of the road as one proceeds from Chinchinim to Deussua. The scooter of the appellant is fallen on his left hand side of the road. The site panchanama also discloses that there is an internal road which goes to Coddiawada as stated by respondent no.1. 9. The Tribunal upon appreciating the evidence on record has accepted the version as given by the respondent no.1 to the manner in which the accident occurred. The version of AW2/Rita Fernandes cannot be accepted to ascertain as to the manner in which the accident occurred. In cross-examination, she has admitted that her attention was diverted to the place of the accident after the appellant had fallen down. This shows that she actually 10 did not see the manner in which the accident occurred. Apart from that the version given by the appellant does not appear to be plausible. There is no reason shown as to why respondent no.1 had proceeded on the wrong side of the road. Apart from that the evidence of the respondent no.1 is corroborated by the evidence of respondent no.2 who was also proceeding in the same direction as respondent no.1 and has stated the manner in which the accident occurred. The evidence of RW2/Selvyn Goes has not been shaken in cross-examination. There is no reason to disbelieve the version given by respondent no.1. The appellant has failed to adduce evidence to substantiate that respondent no.1 was riding his motorcycle in a rash and negligent manner. The position of the fallen motorcycles itself discloses that the claim of the appellant that respondent no.1 came on the opposite direction on the wrong side of the road and dashed against his vehicle cannot be accepted. If such situation had to be accepted, the motorcycle of the respondent no.1 would have fallen on the right hand side of the road. 10. Considering the position of the vehicles and the evidence on record, I find that the Tribunal was justified to come to the conclusion that the appellant has failed to establish rashness and 11 negligence on the part of the respondent no.1. The Tribunal has rightly appreciated the evidence on record and has come to the conclusion that the appellant has failed to establish that the accident occurred on account of rashness and negligence on the part of the respondent. No interference is called for in the impugned judgment. There is no merit in the above appeal and, as such, the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-