advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, October 11, 2013

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 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.


-----------------------
11


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.