1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.22 OF 2006 Shri Agnelo D'Cruz, son of Jose M. D'Cruz, major in age, House No.228, Near the Church, Chandor, Salcete-Goa. ….Appellant V/s 1. Shri Anthony Borges alias Tony, son of Calotin Borges, House No.1207, Gina-Maina, Curtorim, Salcete-Goa. 2. Oriental Insurance Company, David House, 2nd Floor, Margao, Goa. …. Respondents Shri Shivan Dessai, Advocate for the Appellant. Shri E. Afonso, Advocate for Respondent No.2. CORAM : F.M. REIS, J. DATE : 8th MARCH, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 6/12/2005 passed by the Motor Accident Claims Tribunal at Margao in Claim Petition No.103/1999. 2. The Claim Petition came to be filed by the appellant under Section 166 of the Motor Vehicles Act, 1988, claiming an amount 2 of compensation to the tune of Rs.1,50,000/-. It was his case that on 24/10/1998 at about 12.40 hours, the appellant was proceeding to Margao from Chandor and when the appellant reached at Maina, the appellant saw that there was a scooterist i.e. the respondent no.1, who was proceeding ahead of him and that the said respondent suddenly reduced the speed and came parallel to the appellant. It is further his case that the respondent no.1 in a rash and negligent manner took a turn towards the right without giving any signal as a result of which the appellant dashed against the respondent no.1 and the appellant fell down and sustained injuries. 3. The respondent no.1 filed the written statement and disputed the contention of the appellant. It is specifically his case that he was proceeding on his scooter to his brother’s house situated to the right side of the road leading from Curtorim to Margao and just when he reached the entrance of the compound wall of his brother, a tractor came to the main road from the right side road coming from the ward Gina. The appellant, who was riding the scooter behind at a very fast speed, could not control and the appellant turned the scooter to the right hand side and went ahead and dashed against the compound wall. 3 4. The Tribunal after framing the issues and recording of evidence has dismissed the Claim Petition filed by the appellant. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 5. Shri Shivan Dessai, the learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that there is evidence on record that the appellant was rash and negligent in turning towards the right hand side of the internal road which resulted in the accident. Learned Counsel further took me through the evidence on record and pointed out that there is no dispute that both the scooters were going on the same side and that the respondent no.1 had turned the scooter to go on the internal road. The learned Counsel further submitted that the contention of respondent no.1 about the fact that there was a tractor coming from the internal side of the road has not been established by any evidence. Learned Counsel further submitted that on account of negligence on the part of the respondent no.1 in suddenly turning towards the right hand side and reducing the speed, the appellant lost control of his vehicle and dashed against the compound wall. Learned Counsel, as such, pointed out that the Tribunal has erroneously appreciated the evidence on record and has come to an 4 erroneous conclusion that the appellant has not established rashness and negligence on the part of the respondent no.1. Learned Counsel, accordingly, submitted that the appeal deserves to be allowed. 6. Respondent though served failed to remain present. 7. Shri E. Afonso, the learned Counsel appearing for respondent no.2 has supported the impugned judgment and pointed out that there is no material on record adduced by the appellant to establish any rashness and negligence on the part of the respondent no.1. Learned Counsel further submitted that the appellant is not entitled for any compensation on account of the injuries which he has suffered. He, accordingly, submitted that the appeal deserves to be dismissed. 8. After hearing the learned Counsel and on perusal of the record, I find that there is no dispute that the respondent no.1 turned to the right hand side to go to the internal road which led to his brother’s house. There is also no dispute that the appellant was riding his scooter which was coming at the back of the scooter ridden by the respondent no.1. There is also no dispute that 5 admittedly the appellant went and dashed against the compound wall, which was located on the right hand side of the road. CW1/Agnelo D'Cruz in his deposition has stated that he was proceeding on his scooter to Margao from Chandor via Curtorim and that he saw one more scooter ridden by respondent no.1 proceeding in front of him. He has further sated that suddenly the respondent no.1 reduced his speed and then without giving any signals turned to the right hand side towards the internal road. In the process of going on the right hand side, he knocked down the appellant and he sustained grievous injuries. He has further stated that he had to stay in the hospital for over a period of one month due to the accident and he has further stated that on account of this accident his leg has become disabled and he cannot work like before. In the cross-examination, he has stated that there was no pillion rider. He has further stated that wife of respondent no.1 was a pillion rider on his scooter. He has stated that the position of the scooter on the sketch is correct. He denied the suggestion that he dashed his scooter against the compound wall on the right hand side of the road as one proceeds from Curtorim to Margao. The next witness examined is CW2/Dr. Mangerish Audi, who has stated about the disability suffered by the appellant. Another witness examined is CW4/Ernesto D’Costa, who has stated that on 6 24/10/1998 he had gone to Panjim. He has further stated that at the time of the accident, he had seen a tractor coming from the side internal road on the main road proceeding from Margao side which is on the Maina Curtorim road. In the meanwhile, he saw the appellant also proceeding from Curtorim towards Margao on the scooter and was trying to overtake the said tractor. He further stated that at that time respondent no.1 came on his scooter and took right turn to take his scooter on the internal road and in that process the scooter of the appellant and the scooter of the respondent no.1 collided with each other. He further stated that the tractor was at the left side of the road. In the cross-examination, he has stated that there was no damage to the scooter of the appellant as well as of the respondent no.1. He has further stated that both the scooterist were riding their respective vehicles without pillion riders. CW5/Valhabh Bale has stated in his affidavit that on 24/10/1998 he was coming from Curtorim to Margao on his scooter and that when he reached Maina, he saw scooterists, who were in front of him and both were parallel to one another. He has further stated that at the time of the accident, he was on his scooter about 20 to 30 metres behind the scooter of the appellant. He has further stated that the accident occurred on account of negligence on account of the respondent no.1. 7 9. The Tribunal after examining the evidence on record came to the conclusion that the appellant has not established rashness and negligence on the part of the respondent no.1. 10. On perusal of the evidence on record, I find that there is no dispute that the respondent no.1 was riding the scooter on the main road and thereafter proceeded on the right hand side to go to his brother’s house on the internal road. Considering the sketch produced on record and the position of the scooter of the appellant, I find that the accident occurred on account of the contributory negligence on the part of the appellant and respondent no.1. The records reveal that the scooter of the appellant was fallen on the right side of the road. The records further reveal that the respondent no.1 while negotiating a turn to come to the right hand side did not show due diligence and proper caution expected of him when he was turning from the main road to go to the internal road. As a result of such lack of diligence, the appellant, who was coming on his scooter behind the respondent no.1 dashed against the scooter of respondent no.1 and fell down on account of which the appellant sustained injuries. It is further established that the appellant lost his balance and fell down. No doubt, the appellant 8 had enough space considering the width of the road to avoid the accident, if he had shown proper care and caution, as the road was broad at the place of the accident. The learned Tribunal was as such not justified to come to the conclusion that the accident occurred on account of the fault of the appellant himself. The learned Judge did not appreciate the evidence on record and consider the sketch properly whilst coming to such conclusion. 11. Considering all the material on record, I find that the contributory negligence of both the parties has to be assessed at 50%. The Tribunal while assessing the compensation has fixed the same at Rs.30,000/- as a lump sum compensation considering the injuries sustained by the appellant. Considering the medical report and the fact that the appellant had sustained permanent disability to the extent of 10%, I find that the amount is to be enhanced to Rs.40,000/-. Besides the said amount, the Tribunal has awarded an amount of Rs.5,000/- towards actual medical expenses and Rs.2,000/- towards traveling expenses and Rs.5,000/- towards pain and suffering. Considering the said amount, the amount works out to Rs.52,000/-. After deducting 50%, the amount payable by the respondents to the appellant is Rs.26,000/-. The appellant would be entitled to interest at the rate of 6% per annum from the date of 9 filing of the Claim Petition up to actual payment. The point for determination is answered accordingly. 12. In view of the above, I pass the following order. O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 6/12/2005 is quashed and set aside. (iii) The Claim Petition filed by the appellant is partly allowed and the respondents are directed to pay jointly and severally to the appellant a sum of Rs.26,000/- together with interest at the rate of 6% per annum from the date of filing of the Claim Petition up to actual payment. (iv) Any amount paid by the respondent under the provisions of Section 140 shall be adjusted from the said amount. (v) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-