2010 Supreme(Bom) 1463

In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE A.P. LAVANDE
Nalini Ramesh Satarkar
Versus
Shivappa Shidappa Halli & Another
FIRST APPEAL NO.153 OF 2003
Decided on : 08-10-2010

Headnote:MOTOR VEHICLES ACT, 1988 - Section 166 - Evidence Act, 1872, Section 101 - Claim of compensation - Rejected by Tribunal (MACT) - Appeal against - Claim petition filed by appellant/claimants, claiming compensation of Rs. 2 lacs on account of injuries sustained by her in a vehicular accident - Burden of proof - Negligence - Contention, version of claimant not challenged in cross-examination and Tribunal erred in dismissing her application and claimant cannot be expected to prove accident by strict proof - Held - Burden to prove rash and negligent driving by respondent-1 on appellant - Appellant failed discharge said burden - Impugned judgment and award of Tribunal dismissing claim petition warrants no interference - Appeal dismissed. - According to the claimant, respondent No. 1, who was proceeding from Panaji towards Ponda suddenly came over right side and dashed against the claimant when she was standing at a distance of about 1.5 meters from the pickup. Her husband Ramesh has also deposed in same fashion. However, in the view of the admission in the cross-examination by Ramesh that before Ponda Court he had stated that he was sitting in the pickup at the time of accident, it is difficult to believe that he was an eye-witness of incident. May be that after the incident, he came to know about the same, but his version that he was an eye-witness to the incident, cannot be accepted. What remains is the evidence of the claimant herself. No doubt, she has produced FIR, sketch and panchanama, but mere production of the said documents in the absence of proof thereof, does not advance the case of claimant. The version of the claimant that she was standing behind the tempo and suddenly, respondent No. 1 came to the right side with the motorcycle and dashed against her, is difficult to be accepted. Moreover, she also claimed that her husband was standing along with her behind the pickup. This statement is difficult to be accepted since in the cross-examination, the claimant’s husband admitted that before the Ponda Court he had stated that he was sitting in the pickup and the pickup driver had switched on the engine at the time of accident. In view of the above position, except for the bare statement of the claimant herself, there is no other evidence to establish that it was respondent No. 1, who drove his vehicle in a rash and negligent manner. The finding of the Tribunal that the version of the claimant is not probable, cannot be said to be illegal. No doubt, respondent No. 1 has not stepped in the box, therefore, an adverse inference has to be drawn against him since he could have given explanation as to how the accident occurred. But the fact remains that the claimant, who had filed the claim petition had to prove the rashness and negligence on the part of respondent No. 1 and this burden was always on the claimant. In the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan, 1977 (2) SCC 441 : AIR 1977 SC 1248, the Three Judges Bench of the Apex Court reversing the judgment of Bombay High Court held that in a claim petition, the claimant has to prove rashness and negligence in order to make out a case for compensation. The Apex Court held that the concept of owner’s liability without any negligence is opposed by the basic principles of law and the proof of negligence remains the linch pin to recover compensation. The ratio of the said judgment is squarely applicable in the present case. The claimant in order to succeed in the claim petition, has to prove rashness and negligence on the part of the driver. Merely because respondent No. 1 has not stepped in the box, the same by itself, would not absolve the claimant from discharging her burden of proving rashness and negligence on the part of respondent No. 1. In the case of Bimla Devi (supra), the Apex Court held that strict proof of accident cannot be expected from the claimants, who were not present at the occurrence and they have to establish their case on the touchstone of preponderance of probabilities. The ratio of the said judgment does not advance the case of claimant. In the present case, the claimant herself was injured and she was bound to discharge the burden of proving the rashness and negligence on the part of respondent No. 1 on the preponderance of probabilities. The claimant has failed to discharge the said burden. Therefore, the judgment and award passed by the Claims Tribunal dismissing the claim petition, cannot be faulted.