Case: Kunjamma Mathai Vs. Marcelo Fernandes &amp; Others

from Margao towards Curtorim side and when he reached near a culvert at Gogol a motor cycle overtook him with a pillion rider. Before reaching the culvert he saw mini bus coming in the opposite direction proceeding towards Margao. When the motor cycle reached 9 or 10 metres after overtaking him, the rider of the motor cycle who wanted to turn his vehicle to the right to enter another side road, came in collision with the mini bus which was coming in the opposite direction. He went near the spot of the accident and saw that the rider and pillion rider had both sustained injuries. 10. It appears that the Tribunal was impressed that there was no evidence on the side of the claimant, that the rider of the motor cycle had not given a signal that he was turning to the right side on the Gogol road from the main Margao-Curtorim Road. On a correct perspective of the evidence of Ramrai Naik, AW 5 and Listen Fernandes, RW 2, from the fact that the pick-up van dashed the left-hand side of the motor cycle it would suggest that the motor cycle had already diverted itself to come to the Gogol side road and the fact that the pick-up did not stop and, on the contrary, went to the extreme side of the road and fell into a ditch would definitely suggest that the tempo driven by the respondent No. 1 was in excessive speed, a finding which is already rendered by the Tribunal and with which we are in full agreement. It is difficult to appreciate that a motor-cyclist who wants to take a turn to the right side would not have made a signal, more particularly when he sees an oncoming bus. Even on the assumption that the rider of the motor cycle had not indicated that he was proceeding towards the right, from the manner in which the accident has taken place, it is difficult to accept the apportionment of responsibility in the ratio of 60 per cent to Regi and 40 per cent to the respondent No. 1, driver. 11. Before we conclude this aspect of the matter, we may make a reference about the sketchy evidence as to who was riding the motor cycle on the fateful day. Respondent No. 3 has asserted that he was a pillion rider at the time the accident took place Regi was riding the motor cycle. In the claim petition, the appellant averred that Regi was the pillion rider, but then she, however, admits that she had not seen the accident and obviously she was not in Goa. The Tribunal could not reach a finding on the existing material before it as to who was riding. For the view that we finally propose to take in the matter, we do not think that it is necessary to render a finding that either Regi Mathew or respondent No. 3 was riding the motor cycle on that fateful day. The appellant also does not invite us to render such a finding. 12. Coming back to the apportionment of the responsibility, we have already indicated the manner in which the accident took place and how the mini bus driven by respondent No. 1 was driven in excessive speed. Being so, in the absence of any special reasons being assigned by the Tribunal to apportion the liability in the ratio of 6:4, we find it safe to apply the responsibility in the ratio of 50 per cent to Regi and 50 per cent to respondent No. 1. Upon reaching this conclusion the compensation awarded needs to be redeter-mined; we have already adverted earlier that the compensation of Rs. 1,53,000/-was determined and which we have not disturbed and we maintain the same. 13. Mr. Bharne, learned Counsel for respondent No. 2, insurance company, indeed urged that before the institution of this appeal in satisfaction of the award, the insurer had paid a sum of Rs. 62,747.60 and the appellant herself had given a receipt acknowledging the same in full and final settlement of the claim. Mr. Bharne urged that once the appellant herself held out and received compensation in full settlement of her claim, it is not open to the appellant to have instituted the present appeal, nor is it open to this court to entertain the present appeal. We are, however, not enamoured by this submission. The right of appeal is a statutory right given under the Motor Vehicles Act and such a right cannot be taken away. It is not necessary to examine whether the arguments advanced would attract the principle of restraint against litigation which is opposed to law or public policy, for the simple reason that the appellant herself in the memo of appeal has averred in para 3 thereof that because she was in paucity of finance and urgent need of financial aid she accepted the payment from the insurance company. That apart, she has stated that she was pressurized into signing the receipt stating that it was in full and final settlement towards the award. We have already mentioned that the appellant was a resident of Kerala. Her son was employed in Goa and he met with an accident in Margao and died within four days from the date of the accident. This is not a case where the appellant suppressed the passing of the receipt by her and, on the contrary, came out on her own at the first opportunity that she was pressurized into passing the receipt. We are plainly aware that we are administering a welfare statute which is designed to pay compensation to the victims of the accidents or to dependants of the persons who met with tragic accidents. Being so, we are unable to see any force in the submission of the Counsel for the insurance company that this appeal should be defeated upon the so-called receipt stating that appellant has received the amount in full and final settlement towards the impugned award.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]7. In no manner whatsoever we are able to fault with the compensation determined in the present case as it seems to us that the Tribunal was fair in importing the doctrine of dependency and having regard to the circumstances holding Rs.s the annual loss and without further curtailing the sum, applied the fair multiplier of 10 considering the age of the deceased which was 26 at the time of his death. In our view no grievance can survive upon the computation of Rs. 1,20,000 by way of financial loss insofar as the appellant and her two daughters are concernedA bare look at the evidence of Ramrai Naik, AW 5, shows that he was standing near a gada which is close to the spot of the accident. He saw the bus coming from Curtorim side and the motor cycle coming in the opposite direction. Thereafter, he saw the motor cycle turning towards Gogol and in the meantime, the bus came and dashed the motor cycle. According to him, the bus which dashed the motor cycle came on its extreme left and fell into a ditch and turned turtle. At the end of thef he says that the bus was being driven at a fast speed and it was descending a slight slope10. It appears that the Tribunal was impressed that there was no evidence on the side of the claimant, that the rider of the motor cycle had not given a signal that he was turning to the right side on the Gogol road from the mainm Road. On a correct perspective of the evidence of Ramrai Naik, AW 5 and Listen Fernandes, RW 2, from the fact that thed side of the motor cycle it would suggest that the motor cycle had already diverted itself to come to the Gogol side road and the fact that thep did not stop and, on the contrary, went to the extreme side of the road and fell into a ditch would definitely suggest that the tempo driven by the respondent No. 1 was in excessive speed, a finding which is already rendered by the Tribunal and with which we are in full agreement. It is difficult to appreciate that at who wants to take a turn to the right side would not have made a signal, more particularly when he sees an oncoming bus. Even on the assumption that the rider of the motor cycle had not indicated that he was proceeding towards the right, from the manner in which the accident has taken place, it is difficult to accept the apportionment of responsibility in the ratio of 60 per cent to Regi and 40 per cent to the respondent No. 1, driver11. Before we conclude this aspect of the matter, we may make a reference about the sketchy evidence as to who was riding the motor cycle on the fateful day. Respondent No. 3 has asserted that he was a pillion rider at the time the accident took place Regi was riding the motor cycle. In the claim petition, the appellant averred that Regi was the pillion rider, but then she, however, admits that she had not seen the accident and obviously she was not in Goa. The Tribunal could not reach a finding on the existing material before it as to who was riding. For the view that we finally propose to take in the matter, we do not think that it is necessary to render a finding that either Regi Mathew or respondent No. 3 was riding the motor cycle on that fateful day. The appellant also does not invite us to render such a finding12. Coming back to the apportionment of the responsibility, we have already indicated the manner in which the accident took place and how the mini bus driven by respondent No. 1 was driven in excessive speed. Being so, in the absence of any special reasons being assigned by the Tribunal to apportion the liability in the ratio of 6:4, we find it safe to apply the responsibility in the ratio of 50 per cent to Regi and 50 per cent to respondent No. 1. Upon reaching this conclusion the compensation awarded needs to be; we have already adverted earlier that the compensation of Rs.s determined and which we have not disturbed and we maintain the sameWe are, however, not enamoured by this submission. The right of appeal is a statutory right given under the Motor Vehicles Act and such a right cannot be taken away. It is not necessary to examine whether the arguments advanced would attract the principle of restraint against litigation which is opposed to law or public policy, for the simple reason that the appellant herself in the memo of appeal has averred in para 3 thereof that because she was in paucity of finance and urgent need of financial aid she accepted the payment from the insurance company. That apart, she has stated that she was pressurized into signing the receipt stating that it was in full and final settlement towards the award. We have already mentioned that the appellant was a resident of Kerala. Her son was employed in Goa and he met with an accident in Margao and died within four days from the date of the accident. This is not a case where the appellant suppressed the passing of the receipt by her and, on the contrary, came out on her own at the first opportunity that she was pressurized into passing the receipt. We are plainly aware that we are administering a welfare statute which is designed to pay compensation to the victims of the accidents or to dependants of the persons who met with tragic accidents. Being so, we are unable to see any force in the submission of the Counsel for the insurance company that this appeal should be defeated upon thed receipt stating that appellant has received the amount in full and final settlement towards the impugned award.