Courts/Tribunals must adopt a sensitive approach in MaCT claim cases, considering the challenges faced by claimants in proving accidents, and the standard of proof is one of preponderance of probabilities.

JUDGMENT

M. S. Sonak, J. - Heard Mr. S.S. Kakodkar, learned Counsel for the appellant in both these appeals, and Ms. Megha Salkar, learned Counsel for respondent no.2 (Insurance Company) in both these appeals.

2. Since both appeals arise out of Claim Petitions concerning the accident on 27.10.2013 at 20.40 hours at Margao, it is only appropriate that a common judgment and order dispose of them.

3. The appeals challenge two separate awards made by the Motor accident Claims Tribunal dismissing the Claim Petition on a finding that the claimants failed to prove that the accident in which they suffered injuries was caused on account of rashness and negligence on the part of Mr. anil Shinde (respondent no.1) - the driver of Etios Toyota bearing registration no.Ga-08-F-8962. The Tribunal did not bother to answer the second issue about compensation.

4. Now, in several cases decided by this Court as also the Hon'ble Supreme Court, it has been made clear that the Tribunal should decide all the issues so that if the appeal Court reverses the finding on the issue of rashness and negligence, the appeal court is not required to either remand the matter or itself take up the determination of compensation for the first time. Therefore, the approach of the Tribunal in not determining the compensation is not proper. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Bimlesh & Ors. V/s. New India assurance Company Limited (2010) 8 SCC 591.

5. Be that as it may, even the approach to deciding the issue of rashness and negligence is not proper and contrary to the law laid down by the Hon'ble Supreme Court in 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, Sunita & Ors. V/s. Rajasthan State Road Transport Corporation & Ors. 2020 (13) SCC 486 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.

6. In all the cases above, the Hon'ble Supreme Court had held that the approach of the Courts/Tribunals when dealing with such matters has to be sensitive enough to appreciate the turn of events on the spot or the hardship that the claimants usually face in tracing witnesses and collecting information for an accident when they were themselves not present at the accident spot. Further, the Courts/Tribunals must be mindful that strict principles of evidence and standard of proof, like in a criminal trial, are inapplicable in MaCT claim cases. The standard of proof in such matters is one of the preponderance of probabilities rather than proof beyond a reasonable doubt. The Courts/Tribunals have to be mindful that the approach and role of Courts/Tribunals while examining evidence in accident claim cases ought not to be to find fault with the non-examination of some best eyewitnesses, as may happen in a criminal trial; but instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true. The Courts/Tribunals, in matters of this nature, are required to take a holistic view bearing in mind that strict proof of an accident caused by a particular bus in a specific manner may not be possible to be done by the claimants. The Courts/Tribunals should also draw appropriate inferences from the failure of respondents to properly cross-examining the witnesses of the claimants or confront them with their version despite the adequate opportunity. The courts/Tribunals must take the legal effect of the failure to cross-examine crucial witnesses on crucial issues must be taken into account by the Courts/Tribunals.

7. In this matter, the Tribunal completely overlooked the fact that an Etios Toyota vehicle was a much larger vehicle compared to a Deo scooter that the two claimant sisters were riding. The Tribunal has also ignored the fact that the police, on its investigations, recorded a