JUDGMENT :

Heard Mr. U.R. Timble, learned Counsel for the appellant, Ms. Renika D'Souza, learned Counsel for respondent No.3 (owner/driver of the offending vehicle), and Mr. Emerico Afonso, learned Counsel for respondent No.4.

2. Though the respondent-claimants are served, today, they are neither present nor represented. This matter was adjourned from yesterday, i.e. 18.01.2022, to enable the learned Counsel for the respondent-claimant to appear. Mr. Timble gave necessary intimation to the learned Counsel and even the registry of this Court gave necessary intimation to the learned Counsel for the respondent-claimant. However, today, there is no appearance on behalf of the respondent-claimant. This matter is of the year 2013 and the same can therefore brook no further delay.

3. The challenge in this appeal is to the judgment and order dated 01.12.2011 made by the Motor Accident Claims Tribunal allowing the claimant's petition in the following terms:

'The petition is partly allowed holding the respondents no.1-3 jointly and severally liable to pay the compensation in the sum of 20,02,600/- Rs. to the claimant which shall carry interest at the rate of 9% p.a. from the date of the application till the date of the award and further interest at the same rate in case the said amount is not paid within a month from today till payment. The amount, if any, paid in his favour under section 140 of the Act 1988 shall be adjusted against the compensation appropriately and the claimant shall also be entitled to the costs of the petition.

Award to be drawn accordingly.'

4. The Insurance Company aggrieved by the aforesaid determination of compensation has instituted First Appeal No.108 of 2013. Similarly, respondent No.3, i.e. the owner of the vehicle involved in the accident has preferred cross objection No.17 of 2013 to defend the findings of the involvement of his vehicle or for that matter the rashness and negligence of the driver of the offending vehicle.

against him. If the evidence of Neelesh (AW-1), Head Constable Sawant (AW-2), and Joel-respondent No.3 herein (RW-1) is perused, then, there is evidence to establish rashness and negligence on behalf of said Joel (RW-1). Ms. Renika D'Souza further contended that Joel has been acquitted in a criminal case that was lodged against him. Such acquittal, according to me, is not quite relevant in the present matter where the issue of rashness and negligence needs to be considered under the proposition of preponderance and not proof beyond a reasonable doubt. Besides, if the judgment and order dated 11.12.2009 acquitting Joel is perused, then, it is very clear that the acquittal was by giving Joel "benefit of doubt". This is stated so in express terms in the judgment and order dated 11.12.2009 made by the learned Judicial Magistrate First Class in Criminal Case No.173/S/2006/C. Therefore, there is no merit in the cross-objections that have been filed by respondent No.3 and the cross-objections are liable to be dismissed.

6. Ms. Renika D'souza, learned Counsel, however, submitted that in the alternative even if it is held that there was some rashness and negligence on the part of respondent No.3, still, the offending vehicle was insured with the insurance company and, therefore, the entire liability to pay compensation will lie with the insurance company. This submission is quite correct and deserves acceptance. The offending vehicle was duly insured and there is no dispute that the insurance policy would require the insurance company to indemnify respondent No.3 in the matter of payment of compensation.

7. Mr. Timble, learned Counsel for the appellant-insurance company has also not disputed the liability of the insurance company to indemnify the owner/driver of the offending vehicle. Mr. Timble however contended that the compensation of Rs.20,02,600/-determined by the Tribunal is not just compensation but rather such determination is a result of an error apparent on the face of the record. He points out