Case: Dulcina Fernandes  Vs. Joaquim Xavier Cruz

ts are the wife and daughters of one Nicolau Fernandes who died in a motor vehicle accident that had occurred on 29.06.1997 at Santimol, Raia while going from Margao to his village in Ilha, De Rachol. The deceased was driving a scooter and one Rosario Antao was riding Pillion. As the deceased reached Santimol Junction, onevan driven by the first respondent came from the opposite direction; though the deceased tried to avoid thevan which was being driven in a rash and negligent manner, the rear mudguard of thevan hit the scooter as a result of which the deceased and the pillion rider fell off and suffered injuries. Due to the injuries sustained Nicolau Fernandes died on 01.07.1997.In the aforesaid facts, the appellants, as claimants, had lodged a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter for short ‘thebefore the Motor Accident Claims Tribunal at Margao, Goa. In addition to the first respondent, the New India Assurance Company with whom thevan was insured was also impleaded as a respondent in the proceeding before the Claims Tribunal.3. Before the Tribunal, the first respondent, in the written statement filed, took the stand that the accident had not occurred on account of any fault or negligence on his part. On the contrary, according to the first respondent, the accident had occurred as the deceased was driving the scooter under the influence of liquor. It was specifically pleaded by the first respondent that the deceased had come on the wrong side of the road and had dashed against thevan of the respondent which was standing parked on the extreme left of the road.4. On the pleadings of the parties the learned Tribunal framed four issues for trial in the case. Though under issue No.3 the learned Tribunal assessed the compensation payable to the claimants at Rs.6,66,041.78, in view of the findings recorded against issues 1 and 4 (whether the deceased or the first respondent was negligent and responsible for the accident), the learned Tribunal came to the conclusion that the appellants (claimants) are not entitled to any compensation. The High Court of Bombay having affirmed the findings and the conclusion of the learned Tribunal, the present appeal has been filed.5. A reading of the award passed by the learned Tribunal and the order of the High Court shows that the claim of the appellants has been rejected on three principal grounds. According to the learned Tribunal and the High Court the most acceptable evidence in the case would have been the version of the pillion rider, Rosario Antio, who however, had not been examined by the claimants. Neither any explanation had been offered by the claimants for not examining the aforesaid person. In these circumstances an adverse inference against the claimants was felt justified. The evidence ofBenito Vaz, who was examined by the claimants as an eye witness, was discarded by the learned Tribunal in as much as this witness had stated, contrary to the case of the claimants, that the deceased was riding pillion and it was Rosario Antio who was driving the scooter. The evidence ofwho was also examined by the claimants as an eye witness was rejected by the learned Tribunal on the ground that in the circumstances narrated bythe said witness could not have possibly seen the actual mishap. Having rejected the evidence ofon the aforesaid grounds, the learned Tribunal considered the evidence tendered by the first respondent who examined himself asIn his deposition the first respondent had stated that at the time of the accident thevan was parked on the extreme left side of the road and the scooter driven by the deceased came at a high speed and dashed against thevan. The first respondent has also deposed that the deceased as well as the pillion rider were both drunk and after the accident both of them had vomited and were smelling of liquor. The learned Tribunal, upon consideration of the deposition of the first respondent and taking into account the answers given by him incame to the conclusion that there is no reason to doubt the testimony of the said witness. Accordingly, the learned Tribunal came to its impugned findings on issue Nos. 1 and 4, namely that the accident had occurred on account of the negligence of the deceased. On the basis of the said finding the learned Tribunal thought it proper to reject the claim of the appellants. On appeal, the High Court has reiterated the findings and the conclusion of the learned Tribunal on grounds substantially similar to those recorded by the learned Tribunal.

Reasoning:
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.