203-FA-85-2016.DOC

Niti

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO.85 OF 2016

Mr. Santan Fernandes,

Son of late Mr. Hipolito Fernandes,

Aged 45 years, married,

r/o No. 133, Bandh, Aradi,

Santa Cruz, Ilhas Goa.

… Appellant

Versus

1. Mr. Amjad Mujavaar,

Son of Mr. Kassim Mujawar,

r/o Manaswada, Kundaim,

Ponda Goa.

Driver of the Tempo Bearing

Registration No. GA-O7-F-1676).

2. M/s Aakaash Manufacturing Company

Pvt. Ltd. Represented by its Director,

With office at Sukerkar Mansion,

M.G. Road, Panaji Goa.

(owner of the Tempo bearing

Registration No. GA-07-F-1676)

3. Iffco-tokio General Insurance

Company Ltd. Panaji Goa.

(Insurance Company of the Tempo

bearing Registration No. GAO7-F-1676).

…. Respondents

Mr Vivek Rodrigues with Mr S. Malik, Advocates for the

Appellants.

Mr Vilas Pavithran, Advocate for Respondent No.2.

Mr Clayton Fonseca, Advocate for Respondent No.3.

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203-FA-85-2016.DOC

CORAM:

M. S. SONAK, J.

DATE :

25^th NOVEMBER 2022

ORAL JUDGMENT :

1.

Heard Mr Vivek Rodrigues, who appears along with Mr S.

Malik for the Appellant, Mr Vilas Pavithran for respondent no.2

(owner of the Tempo) and Mr Clayton Fernandes for respondent

no.3 – Insurance Company (insurer of Tempo).

2.

The Appellant challenges the judgment and award dated

28.06.2016 dismissing his Claim Petition No.24/2014.

3.

The Claim Petition No.24/2014 arose from a vehicular

accident on 30.08.2012 between Maruti Omni van bearing

registration No.GA-01-S-6563 (Omni) and Tempo bearing

registration no.GA-07-F-1676 (Tempo) driven by respondent

no.1, owned by respondent no.2 and insured by respondent no.3.

4.

One Mr Gabisab Chauragasthi, who was in the front seat

along with the Appellant in the Omni when the accident

occurred, also sustained injuries in the same vehicular accident.

Therefore, Gabisab instituted Claim Petition No.58/2014 in

which, amongst others, he impleaded the Appellant – Santan and

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203-FA-85-2016.DOC

his wife Rehata (Owner of the Omni) as the respondents

(respondent nos.4 &5)

5.

Though the present Appellant - Santan, and his wife,

Rehata, were duly served in Claim Petition No.58/2014, they

chose to remain ex-parte. Accordingly, the Tribunal, by judgment

and award dated 28.06.2016, disposed of Claim Petition

No.58/2014, holding that the vehicular accident occurred entirely

due to rash and negligent driving by the Appellant - Santan.

Thus, regarding the very same vehicular accident, there is a

finding recorded by the Tribunal about the negligence of the

Appellant – Santan and the liability of his wife, Rehata. However,

the Tribunal rejected the contention about any negligence on the

part of the Tempo driver.

6.

Admittedly, the judgment and award dated 28.06.2016 in

Claim Petition No.58/2014 were never challenged by Santan or,

for that matter, any of the parties in Claim Petition No.58/2014.

Thus, at least between the parties to Claim Petition No.58/2014,

the finding about Appellant – Santan's rashness and negligence

attained finality.

7.

Now, in the impugned award, which is also dated

28.06.2016 made in Claim Petition No.24/2014, the Tribunal

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203-FA-85-2016.DOC

has reiterated its finding in Claim Petition No.58/2014 and

dismissed Appellant – Santan's Claim Petition.

8.

Since the Appellant – Santan chose not to challenge the

finding of rashness and negligence recorded against him in Claim

Petition No.58/2014, there is no question of allowing the

Appellant – Santan to urge that such a finding should be reversed

in the present appeal. If that is allowed, there would be

contradictory findings on the same issue.

9.

In similar circumstances, the Hon'ble Supreme Court, in

the case of Machindranath Kernath Kasar V/s. D.S.

Mylarappa & Ors.

1 has held that such an anomalous situation

cannot be countenanced. Instead, the Court should apply the

comity, amity, or principles analogous to that. The discussion on

this issue is in paragra