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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.9094  OF 2013 (Arising Out of SLP (C) No.13239 of 2009)

Dulcina Fernandes & Ors.  ...Appellant (s)

VS.

Joaquim Xavier Cruz & Anr. ...Respondent (s)

J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted.

2. The claimants-appellants are the wife and daughters of  

one Nicolau Fernandes who died in a motor vehicle accident  

that  had  occurred  on  29.06.1997  at  Santimol,  Raia  while  

going  from  Margao  to  his  village  in  Ilha,  De  Rachol.  The  

deceased was driving a scooter and one Rosario Antao was  

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riding Pillion.  As the deceased reached Santimol Junction,  

one pick-up van driven by the first respondent came from the  

opposite direction; though the deceased tried to avoid the  

pick-up van which was being driven in a rash and negligent  

manner,  the  rear  mudguard  of  the  pick-up  van  hit  the  

scooter as a result of which the deceased and the pillion rider  

fell off and suffered injuries.  Due to the injuries sustained  

Nicolau Fernandes died on 01.07.1997.  

In the aforesaid facts, the appellants, as claimants, had  

lodged  a  Claim  Petition  under  Section  166  of  the  Motor  

Vehicles Act, 1988 (hereinafter for short ‘the Act’) before the  

Motor Accident Claims Tribunal at Margao, Goa.  In addition  

to the first respondent, the New India Assurance Company  

with whom the pick-up van was insured was also impleaded  

as  a  respondent  in  the  proceeding  before  the  Claims  

Tribunal.

3. Before the Tribunal, the first respondent, in the written  

statement  filed,  took the  stand that  the  accident  had not  

occurred on account of any fault or negligence on his part.  

On  the  contrary,  according  to  the  first  respondent,  the  2

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accident  had  occurred  as  the  deceased  was  driving  the  

scooter  under  the  influence  of  liquor.   It  was  specifically  

pleaded by the first respondent that the deceased had come  

on the wrong side of the road and had dashed against the  

pick-up van of the respondent which was standing parked on  

the extreme left of the road.  

4. On the  pleadings  of  the  parties  the  learned  Tribunal  

framed four issues for trial in the case.  Though under issue  

No.3  the  learned  Tribunal  assessed  the  compensation  

payable to the claimants at Rs.6,66,041.78, in view of the  

findings  recorded  against  issues  1  and  4  (whether  the  

deceased  or  the  first  respondent  was  negligent  and  

responsible for the accident), the learned Tribunal came to  

the  conclusion  that  the  appellants  (claimants)  are  not  

entitled to any compensation.  The High Court of Bombay  

having  affirmed  the  findings  and  the  conclusion  of  the  

learned Tribunal, the present appeal has been filed.

5. A reading of the award passed by the learned Tribunal  

and the order of the High Court shows that the claim of the  

appellants  has  been  rejected  on  three  principal  grounds.  3

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According to the learned Tribunal  and the High Court  the  

most acceptable evidence in the case would have been the  

version of the pillion rider, Rosario Antio, who however, had  

not  been  examined  by  the  claimants.   Neither  any  

explanation  had  been  offered  by  the  claimants  for  not  

examining the aforesaid person.  In these circumstances an  

adverse  inference  against  the  claimants  was felt  justified.  

The evidence of CW-3 Benito Vaz, who was examined by the  

claimants as an eye witness, was discarded by the learned  

Tribunal in as much as this witness had stated, contrary to  

the  case  of  the  claimants,   that  the  deceased  was riding  

pillion and it was Rosario Antio who was driving the scooter.  

The  evidence  of  CW-5,  who  was  also  examined  by  the  

claimants  as  an  eye witness  was rejected  by the  learned  

Tribunal on the ground that in the circumstances narrated by  

CW-5  the  said  witness  could  not  have  possibly  seen  the  

actual mishap.  Having rejected the evidence of CW-3 and  

CW-5  on  the  aforesaid  grounds,  the  learned  Tribunal  

considered  the  evidence  tendered  by the  first  respondent  

who examined himself as RW-1.  In his deposition the first  

respondent had stated that at the time of the accident the  4

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pick-up van was parked on the extreme left side of the road  

and  the  scooter  driven  by  the  deceased  came  at  a  high  

speed  and  dashed  against  the  pick-up  van.   The  first  

respondent has also deposed that the deceased as well as  

the pillion rider were both drunk and after the accident both  

of  them  had  vomited  and  were  smelling  of  liquor.   The  

learned Tribunal, upon consideration of the deposition of the  

first respondent and taking into account the answers given  

by him in  cross-examination,  came to  the  conclusion that  

there is no reason to doubt the testimony of the said witness.  

Accordingly,  the  learned  Tribunal  came  to  its  impugned  

findings on issue Nos. 1 and 4, namely that the accident had  

occurred on account of the negligence of the deceased.  On  

the basis of the said finding the learned Tribunal thought it  

proper to reject the claim of the appellants.  On appeal, the  

High Court has reiterated the findings and the conclusion of  

the learned Tribunal on grounds substantially similar to those  

recorded by the learned Tribunal.

6. We have heard Mr.Arun R. Pednekar,  learned counsel  

appearing for the appellant and Mr. Kishore Rawat, learned  

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counsel  appearing  for  the  respondent  No.2.  We  have  

considered  the  submissions  advanced  by  the  learned  

counsels for the respective parties. We have also perused the  

orders passed by the learned Tribunal as well as by the High  

Court and have carefully considered the evidence led by the  

parties which had been included in the SLP paper book.

7. It  would  hardly  need  a  mention  that  the  plea  of  

negligence  on  the  part  of  the  first  respondent  who  was  

driving  the  pick-up  van  as  set  up  by  the  claimants  was  

required  to  be  decided  by  the  learned  Tribunal  on  the  

touchstone of preponderance of probability and certainly not  

on the basis of proof beyond reasonable doubt.  [Bimla Devi  

&  Ors.  Vs. Himachal  RTC (2009)  13  SCC  530].   In  

United  India  Insurance  Company  Limited Vs.  Shila  

Datta & Ors. (2011) 10 SCC 509 while considering the  

nature of a claim petition under the Motor Vehicles Act, 1988  

a  three-judge-bench  of  this  Court  has  culled  out  certain  

propositions of which propositions (ii), (v) and (vi) would be  

relevant to the facts of the present case and, therefore, may  

be extracted hereinbelow:

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“(ii) The  rules  of  the pleadings  do  not  strictly  apply  as  the  claimant  is  required  to  make  an  application in a form prescribed under the Act.  In fact,  there is  no pleading where the proceedings are suo  motu initiated by the Tribunal.   

(v) Though the Tribunal adjudicates on a claim  and determines the compensation, it does not do so as  in an adversarial litigation.

(vi) The  Tribunal  is  required  to  follow  such  summary procedure as it thinks fit.  It may choose one  or more persons possessing special knowledge of and  matters relevant to inquiry, to assist it in holding the  enquiry.”   

The following further observation available in paragraph  

10 of the report would require specific note:

“We have referred to the aforesaid provisions to show  that an award by the Tribunal cannot be seen as an  adversarial adjudication between the litigating parties  to  a  dispute,  but  a  statutory  determination  of  compensation on the occurrence of an accident, after  due enquiry, in accordance with the statute."

8. The  cases  of  the  parties  before  us  will  have  to  be  

examined  from  the  perspective  of  the  principles  and  

propositions laid down in Bimla Devi case (supra) and Shila  

Datta (supra).   While it is correct that the pillion rider could  

have best unfolded the details of the accident what cannot  

be lost sight of is the fact that while the accident occurred on  

29.06.1997 the evidence before the Tribunal was recorded  

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after seven years i.e. in the year 2004. Keeping in view the  

nature  of  the  jurisdiction  that  is  exercised  by  a  Claims  

Tribunal under the Act we do not think it was correct on the  

part of the learned Tribunal to hold against the claimants for  

their failure or inability to examine the pillion rider  Rosario  

Antao as  a  witness  in  the  case.   Taking  into  account  the  

hapless  condition in  which the  claimants  must  have been  

placed  after  the  death  of  their  sole  breadwinner  and  the  

sufficiently  long  period  of  time  that  has  elapsed  in  the  

meantime, the learned Tribunal should not have treated the  

non-examination  of  the  pillion  rider  as  a  fatal  and  

fundamental  law  to  the  claim  made  before  it  by  the  

appellant.  As this Court while hearing an appeal instituted  

upon  grant  of  special  leave  under  Article  136  of  the  

Constitution would not normally re-appreciate the evidence  

led before Trial Court, we refrain from doing so in the present  

case though we may observe that the learned Tribunal was  

not entirely correct in rejecting the evidence of the CW-3 and  

5  on  the  grounds  assigned.   Similar  is  the  position  with  

regard to the findings of the learned Tribunal in accepting  

the  evidence  tendered  by  the  first  respondent.  However,  8

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there are certain other features of the case which are more  

fundamental and, therefore, have to be specifically noticed.  

CW-2, who was at  the relevant time working as the Head  

Constable of Main Eurtorim, Police Station, had deposed that  

a criminal case was registered against the first respondent in  

connection with the accident and that after investigation he  

was  chargesheeted  and  sent  up  for  trial.  Though  it  is  

submitted at the Bar that the first respondent was acquitted  

in the said case what cannot be overlooked is the fact that  

upon investigation of  the  case registered  against  the first  

respondent, prime facie,  materials showing negligence were  

found to put him on trial.  From the evidence of CW-2 it  also  

transpired that the deceased was not medically examined to  

ascertain  whether  he  had  consumed  alcohol  and  was,  

therefore, driving the scooter under the influence of liquor.  

In fact, according to CW-2, he had reached the spot within 15  

minutes of the incident. In his cross-examination CW-2 had  

specifically denied that the scooter driven by the deceased  

had dashed the pick-up van which was stationary i.e. parked  

on the road.  The statements made by CW-2 in the course of  

his  deposition  has  considerable  significance  to  the  issues  9

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arising  in  the  case,  namely,  whether  the  deceased  was  

driving  the  scooter  under  the  influence  of  alcohol  and  

whether there was any negligence on his part leading to the  

accident. The said aspects of the evidence of CW-2 do not  

appear to have been taken note of or to have received any  

consideration of the learned Tribunal.  At the same time it is  

possible to take the view that the evidence of CW-2, properly  

read and considered, can lead to a conclusion contrary to  

what has been arrived at by the learned Tribunal, namely,  

that the accident had occurred on account of the negligence  

of the deceased.  The High Court having failed to notice the  

above  lacunae  in  the  award  of  the  learned  Tribunal  and  

correct the same, we are satisfied that the present is a fit  

case  for  our  interference.   We  accordingly  set  aside  the  

findings of the learned Tribunal as affirmed by the High Court  

in respect of issues 1 and 4 and hold that the accident had  

occurred due to the rash and negligent driving of the pick-up  

van by the first respondent.

9. It  has  already  been  noticed  that  on  basis  of  the  

discussions  under  issue  No.3,  the  learned  Tribunal  has  

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quantified the entitlement of the claimants to compensation  

at Rs.6,66,041.78.  The said relief was withheld in view of the  

findings on issues 1 and 4 which have been now reversed by  

us.  Consequently,  we  hold  the  claimants-appellants  to  be  

entitled to compensation of Rs.6,66,041.78 as quantified by  

the learned Tribunal in its order dated 20.07.2004.  In so far  

as award of interest is concerned, in the facts of the present  

case we direct that the amount awarded shall carry interest  

at the rate of 6% per annum with effect from the date of the  

award of the learned Tribunal i.e. 20.07.2004.

10. Appeal of the claimants is allowed on the above terms.  

No order as to costs.

...………………………CJI. [P. SATHASIVAM]

.........……………………J. [RANJAN GOGOI]

New Delhi, October  08, 2013.

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