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Judgment
B.P. Dharmadhikari, J.—The injured victim has filed this Appeal u/s 173 of the Motor Vehicles Act, 1988, assailing the Judgment and Award dated 14/16.08.2008 delivered by Presiding Officer, Motor Accident Claims Tribunal, South Goa, Margao, in Claim Petition no. 235 of 2005. The accident in this case has taken place on 29.05.2005 at about 8.10 p.m. The facts of accident or place of accident is not in dispute.
The Motor Accident Claims Tribunal found that claimant sustained fracture injuries and dis-figuration of right eye as also permanent disability. It also held that he established his employment as a bus attendant and wage of Rs. 3,700/- per month. While answering the issue about the amount of compensation i.e. issue no. 6, the Motor Accident Claims Tribunal found that claimant could not establish his entitlement to compensation of Rs.8,66,545/-. In paragraph 43, it worked out its total entitlement to Rs.3,67,400/-. However, as it held that Appellant could not establish the negligence on the part of the driver of other vehicle and as the Respondent no. 1 i.e. owner of other vehicle and Respondent no. 2-Insurance Company established that Appellant was negligent, it rejected the Claim Petition.
Advocate Ms. Desai, has pointed out that because of the impact at the time of accident, claimant became unconscious. He, however, has pointed out the circumstances prevailing just prior to accident and deposed that motorcycle of Respondent no. 1 came in speed and it was being driven in rash and negligent manner. He further submits that only available eye witness namely Vinay Naik has been examined. The said witness was following claimant-Appellant and watched the accident. His deposition also shows that accident occurred on account of rash and negligent driving of the other vehicle. By placing reliance upon his evidence, learned Counsel contends that in any case, the said other vehicle namely motorcycle GA-02-Q-0556 was carrying a rider and two pillion passengers, thus total three persons were travelling on it and this is contrary to Section 128 of the Motor Vehicles Act. Submission is the Respondent no. 1 had therefore violated the legal provisions.
In view of this factual material available on record, without prejudice to other arguments, learned Counsel submits that even if it is for the time being presumed that sketch of accident shows correct position, merely because Appellant-claimant was on wrong side of road, that itself will not be sufficient to deny him compensation. She states that because of disability and disfigurement, Appellant is not in a position to earn anything and hence failure to extend benefit of welfare provision in this situation, is arbitrary. She has also invited attention to the sketch map which shows the road and the vehicles involved in accident to urge that it does not correctly depict the situation. Attention is invited to spot panchanama with contention that looking to the force with which both motorcycles head on collided with each other, the other motorcycle could not have been found on katcha road at a distance of roughly three metres from the motorcycle of claimant. She further submits that some one has lifted that motorcycle from the place where it was lying and as such the sketch is unreliable.
Learned Counsel contends that in this situation, the compensation as worked out must be allowed to be recovered from Respondent no. 1 and its Insurance Company i.e. the Respondent no. 2.
Advocate Shri E. Afonso, on the other hand, submits that there is no plea of any rash and negligent driving of his motorcycle by Respondent no. 1 in Claim Petition. The said story has been developed for the first time in affidavit of examination in chief. He further states that evidence on record has been rightly looked into by Motor Accident Claims Tribunal. The claimant-Appellant as also his eye witness admitted that the spot of impact was on the wrong side of the road considering the direction in which the claimant was proceeding. He submits that thus claimant entered on right hand side of the road i.e. wrong side and gave a dash to the motorcycle of Respondent no. 1. He contends that in this situation as findings are not perverse, no interference is warranted.
As Respondent no. 1 motorcycle owner has chosen not to appear before this Court, he also attempted to demonstrate how the compensation worked out is exorbitant.
After hearing the respective Counsel, I find that following point arises for my consideration :
(i) Whether the Appellant-claimant proved that the accident occurred on account of rash and negligent driving of his motorcycle by Respondent no. 1?
It is not in dispute that at the time of accident, the claimant- Appellant was proceeding from the place Pajimol in Sanguem Taluka to Sanguem bazaar. This place Pajimol is shown in sketch (exhibit 32 collectively) on right hand side of the page while Sanguem bazaar is on left side. The other motorcycle having No. GA-02-Q-0556 was coming from Sanguem bazaar towards Pajimol. Sketch map shows width of road to be 6.60 metres. The motorcycle having registration no. GA-09- B-0073 of claimant is found at a distance of 3.90 metres from the southern edge of the tar road. The total width of tar road is 6.60 metres. Blood is found at a distance of about 0.80 cms on northern side of this motorcycle. Thus, it is apparent that motorcycle of claimant-Appellant has crossed the mid-line and is on wrong side of the road. If the spot where blood is found is taken as spot of impact, the spot of impact is again more on wrong side in so far as present claimant-Appellant is concerned.
Perusal of panchanama reveals that front portion of both the motorcycles have been damaged. The front mud guard as also shock absorbers are found in damaged condition. The right hand side of petrol tank of motorcycle of claimant-Appellant also had a dent. Its damages are worked out in the panchanama at Rs.3,000/-. The motorcycle of Respondent no. 1 was found with front bent wheel and its damages worked out to Rs.2,000/-.
Admittedly, police did not register any FIR against the Respondent no. 1 and did not record the statement of eye witness Vinay Naik u/s 161 of Cr. P.C.
The Claim Petition as filed, does not show any averment that Respondent no. 1 was driving his motorcycle in excessive speed in rash and negligent manner. The said assertion comes for the first time in affidavit filed as examination in chief. In paragraph 2 it is stated that motorcycle of Respondent no. 1 came from opposite direction in rash and negligent manner, in fast speed and dashed against the motorcycle of claimant-Appellant. He has further stated that because of said dash, he was thrown down on road and became unconscious. He was subjected to cross examination and his cross examination shows that in sketch i.e. at exhibit 32 collectively, spot of impact has been shown on wrong side. He has denied that he has falsely stated that he was on the left side of the road which proceeding from Pajimol to Sanguem. He denied the suggestion that he was in the process of overtaking another vehicle and, therefore, was on the wrong side of the road when the accident occurred. Thus, in Claim Petition, there is no averment that at the time of accident, claiman was proceeding on correct side of road i.e. left side from Pajimol to Sanguem and Respondent no. 1 entered on claimant''s side i.e. wrong side for Respondent no. 1 and dashed against the motorcycle of the claimant-Appellant.
Perusal of evidence of eye witness Vinay Naik shows that he had not disclosed his witnessing the accident to police authorities. His statement u/s 161 Cr. P.C. Was therefore never recorded. He claims to be a motorcycle pilot knowing claimant- Appellant. He has deposed that on the date of accident, he was driving his motorcycle at the distance of about 30 to 35 metres behind the motorcycle of claimant-Appellant. He has stated that the accident took place at Sanguem road on straight road. One motorcycle came from opposite direction and dashed against the motorcycle of claimant- Appellant. This is the only description of accident which is he has given in his examination in chief. He has therefore not deposed about the mode and manner in which the claimant-Appellant was riding the motorcycle or the manner in which the other motorcycle was being driven. His cross examination shows that he accepts that the accident occurred on right hand side of the road while proceeding from Pajimol to Sanguem i.e. on wrong side for the claimant-Appellant. Thus, this eye witness does not in any way advance the cause of Appellant.
It is, therefore, apparent that the burden to show that Respondent no. 1 was driving his vehicle in rash and negligent manner at the time of accident has not been discharged by the claimant- Appellant.
The perusal of written statement filed by the Respondent no. 1 shows a defence that accident occurred solely due to rash and negligent driving by claimant. While cross examining claimant, Respondent no. 1 has given him suggestion that claimant was in the process of overtaking another vehicle and hence had entered on wrong side of the road. There is no such plea in the written statement. Even if this suggestion is ignored, the fact that accident had taken place on wrong side of the road cannot be wished away.
This eye witness has for the first time disclosed to Court that on motorcycle of Respondent no. 1, total three persons were riding. The contention of learned Counsel for the Appellant is even if its presumed that motorcycle of claimant-Appellant had entered wrong side of the road, the Respondent no. 1 was on wrong side of law and, as such, benefit to welfare legislation cannot be denied to the claimant- Appellant. Riding of motorcycle by three persons by itself does not imply any rash and negligent driving on the part of Respondent no. 1. The fact that motorcycle being driven by claimant-Appellant entered the wrong side of road, on the contrary shows that the claimant had invited a risk by entering the wrong side of the road. In this situation, burden was upon Respondent no. 1 to show that though he was on wrong side of the road, had Respondent no. 1 had taken due care and caution, the accident could have been avoided. This could have been established by only showing the mode and manner in which the accident occurred. The claimant-Appellant is totally silent in this respect. In this situation, I do not find any thing wrong with the finding of the Motor Accident Claims Tribunal that claimant-Appellant has failed to discharge the burden cast upon it. As negligence on the part of Respondent no. 1 has not been proved, Motor Accident Claims Tribunal has correctly refused to grant relief to the claimant-Appellant. No case is made for any interference. Point framed supra is answered accordingly.
The Appeal is dismissed with no orders as to costs.