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M.V. ACT – ACCIDENT CLAIM – NON- EXAMINATION OF PILLION RIDER NOT FATAL WHEN SUPPORTED BY I.O. EVIDENCE- F.I.R. – CHARGE SHEET ENOUGH TO PROVE NEGLIGENCE – DULCINA FERNANDES & ORS. Vs. JOAQUIM XAVIER CRUZ & ANR. judis.nic.in/supremecourt/filename=40875

Accident claim – Registration of FIR and filing of charge sheet is enough to prove the negligence

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

of  opposite party who caused an accident – acquittal of criminal case can not be considered – Non- examination of pillion rider is also not fatal – when investigation officer supported the case – Apex court set aside the dismissal order of tribunal and that of High court.=

 

 

 

 

 

 

 

It would hardly need a mention that the  plea  of  negligence  on  the

 

 

 

part of the first respondent who was driving the pick-up van as  set  up  by

 

 

 

the claimants was required to be decided by  the  learned  Tribunal  on  the

 

 

 

touchstone of preponderance of probability and certainly not  on  the  basis

 

 

 

of proof beyond reasonable doubt.

 

 

 

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.  

 

 

 

 

 

 

 

  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.

 

 

 

 

 

 

 

10.   Appeal of the claimants is allowed on the above terms.   No  order  as

 

 

 

to costs.

 

 

 

 

 

 

 

REPORTABLE

 

 

 

IN THE SUPREME COURT OF INDIA

 

 

 

CIVIL APPELLATE JURISDICTION

 

 

 

CIVIL APPEAL NO.9094 OF 2013
(Arising Out of SLP (C) No.13239 of 2009)

 

 

 
Dulcina Fernandes & Ors. …Appellant (s)

 

 

 

VS.

 

 

 

Joaquim Xavier Cruz & Anr. …Respondent (s)

 

 

 
J U D G M E N T

 

 

 
RANJAN GOGOI, J.

 

 

 

1. Leave granted.
2. The claimants-appellants 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, one pick-up
van driven by the first respondent came from the opposite direction; though
the deceased tried to avoid the pick-up van which was being driven in a
rash and negligent manner, the rear mudguard of the pick-up van 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 ‘the Act’) before the Motor Accident Claims Tribunal
at Margao, Goa. In addition to the first respondent, the New India
Assurance Company with whom the pick-up van 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 the pick-up van 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 of CW-3
Benito 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
of CW-5, who was also examined by the claimants as an eye witness was
rejected by the learned Tribunal on the ground that in the circumstances
narrated by CW-5 the said witness could not have possibly seen the actual
mishap. Having rejected the evidence of CW-3 and CW-5 on the aforesaid
grounds, the learned Tribunal considered the evidence tendered by the first
respondent who examined himself as RW-1. In his deposition the first
respondent had stated that at the time of the accident the pick-up van 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 the pick-up van. 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 in cross-examination, came 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.

 

 

 

6. We have heard Mr.Arun R. Pednekar, learned counsel appearing for the
appellant and Mr. Kishore Rawat, learned counsel appearing for the
respondent No.2. We have considered the submissions advanced by the learned
counsels for the respective parties. We have also perused the orders passed
by the learned Tribunal as well as by the High Court and have carefully
considered the evidence led by the parties which had been included in the
SLP paper book.

 

 

 

7. It would hardly need a mention that the plea of negligence on the
part of the first respondent who was driving the pick-up van as set up by
the claimants was required to be decided by the learned Tribunal on the
touchstone of preponderance of probability and certainly not on the basis
of proof beyond reasonable doubt. [Bimla Devi & Ors. Vs. Himachal RTC
(2009) 13 SCC 530]. In United India Insurance Company Limited Vs. Shila
Datta & Ors. (2011) 10 SCC 509 while considering the nature 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.

 

 

 

10. Appeal of the claimants is allowed on the above terms. No order as
to costs.

 

 

 
…………………………CJI.
[P. SATHASIVAM]

 

 

 

 

 

 

 
……………………………J.
[RANJAN GOGOI]
New Delhi,
October 08, 2013.

 

 

 
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