231-FA-149-2017.DOC

Suchitra

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO.149/2017

MR. SEBY MINGUEL REBELLO,

s/o. Minguel Rebello, 37 years of

age, labourer, being mentally

retarded rep. by his wife and next

friend Mrs. Ruzad Rebello, Both

r/o. H.No.346, Akamol Ambaulim,

Quepem, Goa.

… APPELLANT

Versus

1. MR. LODRIN TREVON,

s/o. Francisco Fernandes, major,

r/o. H.No.62, Orcotto, Sanguem,

Goa.

2. CHOLAMANDALAM GENERAL

INSURANCE, 203-A, 2^nd Floor,

Dempo Trade Centre, Patto, Panaji-

Goa.

… RESPONDENTS

Mr Cleofato Coutinho Almeida with Mr Shailesh Redkar,

Advocates for the Appellant.

CORAM:

M. S. SONAK, J.

DATED:

18^th November 2022

ORAL JUDGMENT:

1.

Heard Mr Cleofato Coutinho Almeida for the appellant.

The respondents, though served, are neither present nor

represented.

Page 1 of 7

18^th November 2022

231-FA-149-2017.DOC

2.

The challenge in this appeal is to the Judgment and Award

dated 02.07.2016 made by the Motor Accident Claims Tribunal,

South Goa at Margao (Tribunal) in Claim Petition No.119/2013.

The Tribunal determined the just compensation at `15,61,800/-.

However, no award was made in favour of the appellant because

the Tribunal held that the appellant had failed to prove that the

accident was a result of rashness and negligence on the part of

respondent no.1, the driver of the Maruti Alto car.

3.

The Tribunal has discarded evidence of Arvind Nagekar

(AW6), the police officer who investigated the accident, by

holding that this witness did not indicate the basis upon which he

identified the point of impact. Similarly, the Tribunal has rejected

the evidence of Prakash Gaonkar (AW2) and Domingos Rebello

(AW3). They were examined as eyewitnesses. But their

testimonies were rejected on the ground that there were

discrepancies in the timings, which cast doubt on their presence

at the site at the time of the accident. The Tribunal has also relied

upon the evidence of Dr Prajakt Kamulkar (RW1), who deposed

to the appellant being in altered sensorium as an effect of alcohol.

This witness also deposed to the smell of alcohol from the

appellant's breath when brought for treatment soon after the

accident at the Primary Health Center at Balli.

Page 2 of 7

18^th November 2022

231-FA-149-2017.DOC

4.

Now the evidence on record bears out that the police, after

preliminary investigations, deemed it appropriate to file an FIR

against respondent no.1, driver of the Alto car. A charge sheet

followed this. The sketch accompanying the Panchanama shows

the point of impact at least slightly on the lane for the commuters

travelling from Balli to Ambaulim. If this point of impact is

accepted, it does appear that the Alto car was somewhat on the

wrong side.

5.

The evidence of Arvind Nagekar should not have been

rejected simply because he was unable to give the precise basis for

noting the point of impact. However, suppose the evidence of

Arvind Nagekar was considered along with the documentary

evidence like the Panchanama and the sketch accompanying it. In

that case, some negligence is required to be attributed to

respondent no.1, the driver of the Alto car.

6.

Even the evidence of Prakash Gaonkar (AW2) and

Domingos Rebello (AW3) should not have been discarded simply

on account of some discrepancies in timings. The two witnesses

have deposed to the accident, and even if they may not have been

very accurate about the timelines, their testimony should not have

been entirely discarded.

Page 3 of 7

18^th November 2022

231-FA-149-2017.DOC

7.

The Hon'ble Supreme Court has time and again held that

even the issue of rashness and negligence has to be decided on the

touchstone of preponderance of probabilities. Therefore, the

Tribunal's approach should not be finding faults with the

evidence on the record but considering whether such evidence

probabalizes the rashness and negligence on the part of the driver

of the offending vehicle. Furthermore, in this case, the offending

vehicle was much heavier than the bike the