Case: Dulcina Fernandes  Vs. Joaquim Xavier Cruz

of a claim petition under the Motor Vehicles Act, 1988 a three-judge-bench of this Court has culled out certain propositions of which propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: “(ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.” The following further observation available in paragraph 10 of the report would require specific note: “We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute." 8. The cases of the parties before us will have to be examined from the perspective of the principles and propositions laid down in Bimla Devi case (supra) and Shila Datta (supra). While it is correct that the pillion rider could have best unfolded the details of the accident what cannot be lost sight of is the fact that while the accident occurred on 29.06.1997 the evidence before the Tribunal was recorded after seven years i.e. in the year 2004. Keeping in view the nature of the jurisdiction that is exercised by a Claims Tribunal under the Act we do not think it was correct on the part of the learned Tribunal to hold against the claimants for their failure or inability to examine the pillion rider Rosario Antao as a witness in the case. Taking into account the hapless condition in which the claimants must have been placed after the death of their sole breadwinner and the sufficiently long period of time that has elapsed in the meantime, the learned Tribunal should not have treated the non-examination of the pillion rider as a fatal and fundamental law to the claim made before it by the appellant. As this Court while hearing an appeal instituted upon grant of special leave under Article 136 of the Constitution would not normally re-appreciate the evidence led before Trial Court, we refrain from doing so in the present case though we may observe that the learned Tribunal was not entirely correct in rejecting the evidence of the CW-3 and 5 on the grounds assigned. Similar is the position with regard to the findings of the learned Tribunal in accepting the evidence tendered by the first respondent. However, there are certain other features of the case which are more fundamental and, therefore, have to be specifically noticed. CW-2, who was at the relevant time working as the Head Constable of Main Eurtorim, Police Station, had deposed that a criminal case was registered against the first respondent in connection with the accident and that after investigation he was chargesheeted and sent up for trial. Though it is submitted at the Bar that the first respondent was acquitted in the said case what cannot be overlooked is the fact that upon investigation of the case registered against the first respondent, prime facie, materials showing negligence were found to put him on trial. From the evidence of CW-2 it also transpired that the deceased was not medically examined to ascertain whether he had consumed alcohol and was, therefore, driving the scooter under the influence of liquor. In fact, according to CW-2, he had reached the spot within 15 minutes of the incident. In his cross-examination CW-2 had specifically denied that the scooter driven by the deceased had dashed the pick-up van which was stationary i.e. parked on the road. The statements made by CW-2 in the course of his deposition has considerable significance to the issues arising in the case, namely, whether the deceased was driving the scooter under the influence of alcohol and whether there was any negligence on his part leading to the accident. The said aspects of the evidence of CW-2 do not appear to have been taken note of or to have received any consideration of the learned Tribunal. At the same time it is possible to take the view that the evidence of CW-2, properly read and considered, can lead to a conclusion contrary to what has been arrived at by the learned Tribunal, namely, that the accident had occurred on account of the negligence of the deceased. The High Court having failed to notice the above lacunae in the award of the learned Tribunal and correct the same, we are satisfied that the present is a fit case for our interference. We accordingly set aside the findings of the learned Tribunal as affirmed by the High Court in respect of issues 1 and 4 and hold that the accident had occurred due to the rash and negligent driving of the pick-up van by the first respondent.9. It has already been noticed that on basis of the discussions under issue No.3, the learned Tribunal has quantified the entitlement of the claimants to compensation at Rs.6,66,041.78. The said relief was withheld in view of the findings on issues 1 and 4 which have been now reversed by us. Consequently, we hold the claimants-appellants to be entitled to compensation of Rs.6,66,041.78 as quantified by the learned Tribunal in its order dated 20.07.2004. In so far as award of interest is concerned, in the facts of the present case we direct that the amount awarded shall carry interest at the rate of 6% per annum with effect from the date of the award of the learned Tribunal i.e. 20.07.2004.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The said aspects of the evidence ofdo not appear to have been taken note of or to have received any consideration of the learned Tribunal. At the same time it is possible to take the view that the evidence ofproperly read and considered, can lead to a conclusion contrary to what has been arrived at by the learned Tribunal, namely, that the accident had occurred on account of the negligence of the deceased. The High Court having failed to notice the above lacunae in the award of the learned Tribunal and correct the same, we are satisfied that the present is a fit case for our interference. We accordingly set aside the findings of the learned Tribunal as affirmed by the High Court in respect of issues 1 and 4 and hold that the accident had occurred due to the rash and negligent driving of thevan by the first respondent.9. It has already been noticed that on basis of the discussions under issue No.3, the learned Tribunal has quantified the entitlement of the claimants to compensation at Rs.6,66,041.78. The said relief was withheld in view of the findings on issues 1 and 4 which have been now reversed by us. Consequently, we hold theto be entitled to compensation of Rs.6,66,041.78 as quantified by the learned Tribunal in its order dated 20.07.2004. In so far as award of interest is concerned, in the facts of the present case we direct that the amount awarded shall carry interest at the rate of 6% per annum with effect from the date of the award of the learned Tribunal i.e. 20.07.2004.