IMPORTANT POINT
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.

JUDGMENT

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 ac