Contributory negligence must be established based on evidence, and the absence of conclusive evidence may lead to a finding in favor of the claimants.

C.V. BHADANG, J.

1. By this appeal, the appellants, who are original claimants, are seeking modification of the judgment and award dated 24/04/2017 passed by the Motor Accident Claims Tribunal ('Tribunal' for short) at Ponda in Claim Petition No.61/2016. By the said judgment, the Tribunal while partly allowing the petition filed by the appellants has granted a compensation of Rs. 52,000/- along with interest at 9% p.a. which is inclusive of a compensation under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short). The Tribunal has held that the deceased was responsible for contributory negligence to the extent of 20% and has deducted an amount of Rs. 1,13,000/- from the total amount of compensation of Rs. 5,65,000/- as computed by the Tribunal. The appellants are only seeking the modification on the ground that the deceased cannot be held to be responsible for any contributory negligence.

2. I have heard Shri E. Afonso, the learned Counsel for the appellants. None appears for the respondents. Perused record.

3. The accident in question occurred on 05/11/2012 when the deceased Mr. Remediano Monteiro while walking by the side of the road at Kandola Marcela, Opposite Lisa Beauty Parlour, was hit by a motorcycle bearing no.GA-07-J-4426 which was driven by the first respondent. The Tribunal found that the deceased was walking in the middle of the road and that is the sole reason on the basis of which the Tribunal has held that the deceased contributed to the accident to the extent of 20%.

4. I have gone through the evidence as well as the impugned judgment. The Tribunal has relied upon the spot panchanama along with the sketch. It may be mentioned that the only evidence led before the Tribunal was that of the appellant Mrs. Jovita Filomena Ferrao e Monteiro (AW1). None of the respondents led any evidence either on the point of negligence or the quantum. In fact, the respondent no.1 being the rider of the motorcycle, was the best witness available to be examined to show the manner in which the accident occurred. The record discloses that the respondents no.1 & 2 had gone to the extent of denying the involvement of the motorcycle in the accident.

5. The question of negligence, in a dispute of the present nature has to be decided on the basis of the ocular evidence of the occurrence of the accident if available and tendered, along with the attending circumstances, in consonance with the principle of res ipsa loquitor. At the cost of repetition, it needs to be mentioned that the respondent no.1 did not enter into the witness box and thus the best evidence has been withheld. The spot panchanama along with the sketch has also not been proved on record. Even assuming that the strict rules of evidence Act may not apply to the proceedings before the Tribunal, and the spot panchanama can be taken into consideration, it does not conclusively show that the point of impact was in the middle of the road. This is because there are some blood stains shown to be existing at the spot which is at the extreme edge of the road. Thus, the sketch does not clearly bring out that the spot of the impact was in the middle of the road which is the sole reason for the Tribunal to have held the deceased responsible to the contributory negligence to the extent of 20%.

6. On behalf of the appellants reliance is placed on the decision of the Supreme Court in the case of Syed Sadiq and Others. V/s. Divisional Manager, United India Insurance Company Ltd., (2014) 2 SCC 735 and the decision of this Court in the case of Mr. Anthony Pereira V/s. Mrs. Maria D'Costa e Pereira and Others. in First Appeals No.168/2008 and 95/2008 decided on 09/05/2014 and Shaligram Ramaji Dhekale & Another. V/s. Ravindra Manikrao Khadse and Others. in First Appeal No.231/2009 decided on 03/12/2009 in order to submit that even assuming that the deceased was crossing the road, the driver of the offending vehicle was expected to be careful and cautio