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1978 Supreme(Goa) 8
Goa High Court
K. M. MISHRA, ADDL. J.C.
Narayan Puno Gaudo - Appellant
Versus
Kishore Tanu Chodankar and another - Respondents
First Civil Appeal No. 28 of 1975
Decided On : 19 July 1978
V.N. Lawande, for Appellant; A.J. Kenkre, for Respondents.
The central legal point established in the judgment is the necessity for claimants in motor accident claims to plead and prove negligence, as negligence is essential for determining liability.
Headnote:
Negligence - Motor Accident Claims - Goa, Daman and Diu Motor Accident Claims Tribunal Rules, 1966 - S.111-A of the M.V. Act 1939 - S.110 to S.110-F of the M.V. Act 1939 - Law of Torts
Fact of the Case:
The appeal is against the dismissal of a claim by the Motor Accident Claims Tribunal, Panaji, on the grounds of limitation, non-joinder of parties, and lack of allegation of rashness or negligence in the claimant's petition.
Finding of the Court:
The court found that the claimant failed to sufficiently allege rashness or negligence on the part of the respondent No. 1, leading to the dismissal of the Claims Petition.
Issues: The issues included the question of limitation, non-joinder of parties, and the necessity of alleging negligence in the claimant's petition.
Ratio Decidendi: The court held that negligence is an essential element for determining liability in motor accident claims, and it is necessary for the claimant to plead and prove negligence. The court also emphasized the requirement of alleging negligence in the statutory form prescribed by the government.
Final Decision: The appeal was dismissed by the court, finding no merit in the first appeal.
2. One Vishnu, aged about 14 years, son of the claimant was proceeding on a cycle on Merces/Mestha Bhat road on 14-2-1974 at about 12.30 p.m. Truck No. GDT-5609 coming from the opposite direction hit him with the result that the skull of the deceased was smashed and he died instantaneously. The truck belonged to respondent No. 2 and was being driven by respondent No. 1 at the time of the accident. The claim was preferred in the Form Comp. A prescribed under the Goa, Daman and Diu Motor Accident Claims Tribunal Rules, 1966 framed in exercise of the powers conferred by S.111-A of the M.V. Act 1939 as extended to the Union Territory of Goa, Daman and Diu.
3. The claim was contested by the respondents who filed a joint written statement denying that the truck knocked down the boy. According to them the deceased was riding his cycle in a rash and negligent manner which resulted in the accident. Besides, pleas such as limitation and non-joinder of parties were also taken.
4. On 15-3-1975 the Accidents Claims Tribunal framed the following two preliminary issues :-
"(1) Whether the claim petition is liable to be dismissed being barred by limitation and also for non-joinder of the insurance company as party ?
(2) Whether it is liable to be dismissed also on the ground that no rashness or negligence is alleged on the part of the opponents ?"
No evidence having been led by the parties on the said two issues, the Court heard arguments advanced by the respective lawyers. Issue No. 1 which related to the question of limitation was answered in favour of the claimant while issue No. 2 which related to the question whether the suit was maintainable for want of any allegation in the claimants petition about rashness or negligence on the part of the owner and the driver of the vehicle was answered in the negative and consequently the Claims Petition was dismissed.
5. Mr. Lawande, appearing for the appellant whilst challenging the orders dismissing the Claims Petition, submits that though there is no express averment in the body of the petition regarding rashness and negligence there are averments in the petition which disclose the allegation of rashness and negligence on the part of respondent No. 1. The learned trial Judge ought to have seen that the description as to how the accident occurred and the manner in which the deceased was injured and the extent of the injury sustained by the deceased are sufficient to make out a case of rashness and negligence on the part of the respondent No. 1.
6. Mr. Kenkre, appearing for the respondents, on the other hand, submits that there is nothing in the averments which would go to show that the Claimant alleged rashness and negligence on the part of the respondent No. 1. He submits that it is absolutely necessary that a Claimant in a petition like this has to lay the foundation for fastening on the offending driver of the vehicle with civil liability by alleging negligence.
7. In cases arising as a result of an accident in which compensation is claimed it appears to me that it is for the claimant to plead negligence and prove it. I am supported in my above view by a number of decisions but I would refer only to two decisions, namely 1971 Acc CJ 49 (Ori) and AIR 1977 SC 1248. The learned counsel for the appellant does not also dispute the above proposition. This will be clear on a reference to the appeal memo filed by him in the case. In para. 2 of the appeal memo it has been stated that in the Claim Petition the petitioner inadvertently forgot to make an averment as to the negligence and rash driving of respondent No. 1 at the time of the accident. The other averments which are to be found under the heading "Grounds" go to state that although the expressions "rashness and negligence" are not mentioned in the Claims Petition, all the facts necessary i
