The central legal point established in the judgment is the requirement for a sensitive and holistic approach in evaluating evidence in motor accident claim cases, the standard of proof based on preponderance of probability, and the legal effect of the failure to cross-examine crucial witnesses.

JUDGMENT :

1. Heard Mr. Jatin Ramaiya, who appears along with Ms. M. Viegas for the appellant. Respondents, though served, are neither present nor represented.

2. The challenge in this appeal is to the judgment and award dated 17.09.2016 in Claim Petition No.110/2012 made by the Motor Accident Claims Tribunal (Tribunal) dismissing the petitioner's Claim Petition seeking compensation of Rs.5,64,350/- on the ground that the appellant had failed to establish rashness and negligence on the part of respondent no.1 - the driver of the bus bearing no.GA-01-T-7539 which dashed against the appellant's Eterno scooter bearing no.GA-03-B-4547 on 14.11.2011 when the appellant was traveling from Bicholim to Akhada.

3. By the impugned award, the Tribunal has determined the compensation payable to the appellant at Rs.4,40,000/-but held that the appellant failed to establish the rashness and negligence of the driver of the bus and, therefore, the appellant is not entitled to any compensation at all. The Tribunal has also held that the appellant failed to establish any permanent disablement because no doctor was examined in support of the disability certificate produced on record.

4. Mr. Ramaiya, learned Counsel for the appellant, points out that the proceedings before the Tribunal are summary in nature and the claimant is required to prove rashness and negligence on the touchstone of preponderance of probability. He points out that merely because the pillion rider, Vilas Narvekar may have not been examined the case pleaded and deposed by the appellant could not have been disbelieved. He submitted that the Tribunal should have also appreciated that the bus was a much larger vehicle than the Eterno scooter driven by the appellant and, therefore, the duty of care expected from the driver of the bus was much greater.

5. Mr. Ramaiya also submitted that there were some contradictions in the reasoning indicated in the impugned award. On one hand, the Tribunal has held that the documents like FIR, panchanama, sketch, cannot be considered as evidence because no police officials or panchas were examined in the matter, but on the other hand, the Tribunal has non-suited the appellant almost exclusively relying upon the sketch annexed to the panchanama. Mr. Ramaiya submitted that even the sketch indicates bloodstains to the extreme left of the road and this probabilises the appellant's version. He submits that even the sketch establishes that the accident has taken place at a sharp curve. He submits that despite service the driver of the bus failed to appear in the matter and depose to the cause of the accident. Mr. Ramaiya submits that the appellant deposed to the accident and there was no significant cross-examination. He, therefore, submits that the evidence on record was sufficient to record a finding of rashness and negligence on the part of the driver of the bus.

6. Mr. Ramaiya relied on Sunita & Ors. V/s. Rajasthan State Road Transport Corporation & Ors., (2020) 13 SCC 486. Anita Sharma & Ors. V/s. New India Assurance Company Limited & Anr., (2021) 1 SCC 171. Parmeshwari V/s. Amir Chand & Ors., (2011) 11 SCC 635. Mangla Ram V/s. Oriental Insurance Company Ltd. & Ors., (2018) 5 SCC 656 and Dulcina Fernandes & Ors. V/s. Joaquim Xavier Cruz & Anr., (2013) 10 SCC 646 to submit that the approach of the Tribunal is contrary to the law laid down by the Hon'ble Supreme Court in these decisions.

7. Mr. Ramaiya points out that in Sunita (supra), the Hon'ble Supreme Court has already held that non-examination of a witness is never fatal in matters before the Tribunal where there is evidence to decide the issue on the touchstone of preponderance of probability. Mr. Ramaiya submits that the version of the appellant should be accepted because the same was not even denied by the driver of the bus. He submits that there was no cross-examination to the statement of the appellant on oath.

8. Mr. Ramaiya also submitted that, in this case, the Insurance Company had not secured