DULCINA FERNANDES & ORS.versusJOAQUIM XAVIER CRUZ & ANR.

                        [2013] 10 S.C.R. 480


A                 DULCINA FERNANDES & ORS.
                                   v.
                  JOAQUIM XAVIER CRUZ & ANR.
                   (Civil Appeal No. 9094 of 2013)
                         OCTOBER 08, 2013
B
         [P. SATHASIVAM, CJI AND RANJAN GOGOi, J.]

         Motor Vehicles Act, 1988 - s. 166 - Claim under -
    Adjudication of - To be on the touchstone of preponderance
C   of probability - Deceased was riding a scooter which got hit
    by the pick-up van driven by first respondent - Claim of wife
    and daughters of deceased - Claims Tribunal assessed
    compensation at Rs. 6. 66 lakhs, but ultimately rejected the
    claim citing that the accident had occurred on account of the
D   negligence of the deceased - Order affirmed by High Court -
    On appeal, held: Evidence before the Tribunal was recorded
    seven years after the accident - Keeping in view the nature
    of the jurisdiction exercised by the Tribunal, it was not correct
    on its part to hold against the claimants for their failure/
E   inability to examine the pillion rider 'R' as a witness, more
    particularly in view of the hapless condition in which the
    claimants must have been placed after death of their sole
    breadwinner and the sufficiently long period of time that had
    lapsed in the meantime - Further, the Tribunal was not entirely
F   correct in rejecting the evidence of the CW-3 and 5 - Similarly
    it erred in accepting the evidence tendered by the first
    respondent - CW-2, Head Constable, had deposed that a
    criminal case was rf3gistered against the first respondent in
    connection with the accident - Statements made by him were
G   significant to the issues arising in the instant case - Said
    aspects of the evidence of CW-2 not considered by the
    Tribunal - High Court failed to notice the lacunae in the award
    of the Tribunal - Case fit for interference by Supreme Court -
    Accident in question occurred due to rash and negligent

H                                 480
DULCINA FERNANDES & ORS. v. JOAQUIM XAVIER 481
               CRUZ & ANR.

driving of the pick-up van by the first respondent - Claimants-   A
appellants entitled to compensation as quantified by the
Tribunal alongwith interest@ 6% p.a with effect from the date
of the award of the Tribunal.

     N' was driving a scooter while 'R' was riding pillion 8
when the pick-up van driven by the first respondent
allegedly in a rash and negligent manner hit the scooter
as a result of which both 'N' and 'R' fell off and suffered
injuries. 'N' died due to the injuries sustained. The wife
and the daughters of 'N', i.e. the appellants, lodged Claim
Petition under Section 166 of the Motor Vehicles Act, 1988 C
before the Motor Accident Claims Tribunal. The first
respondent took the stand that the accident occurred as
the deceased was driving the scooter under the influence
of liquor. The Tribunal framed four issues. Though under
issue No.3 the Tribunal assessed the compensation D
payable to the claimants at Rs.6,66,041.78, in view of its'
findings against issues 1 and 4, namely that the accident
had occurred on account of the negligence of the
deceased, the Tribunal thought it proper to reject the
claim of the appellants. The order was affirmed by the E
High Court, and, therefore the present appeal.

    Allowing the appeal, the Court

      HELD: 1.1. The plea of negligence on the part of the
first respondent who was driving the pick-up van as set           F
up by the claimants was required to be decided by the
Tribunal on the touchstone of preponderance of probability
and certainly not on the basis of proof beyond reasonable
doubt. Though the Tribunal adjudicates on a claim and
determines the compensation, it does not do so as in an           G
adversarial litigation. [Para 7] [486-E-F; 487-A]

   1.2. While it is correct that the pillion rider 'R' could
have best unfolded the details of the accident what
cannot be lost sight of is the fact that while the accident       H
   482      SUPREME COURT REPORTS              [2013] 10 S.C.R.
                                                           !




A occurred on 29.06.1997 the evidence before the Tribunal
  was recorded 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, it was not
  correct on the part of the Tribunal to hold against the
B claimants for their failure or inability to examine the pillion
  rider 'R' 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
c meantime, the Tribunal should not have treated the non-
  examination of the pillion rider as a fatal and fundamental
  flaw to the claim made before it by the appellants.
  Further, the 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
0
  Tribunal in accepting the evidence tendered by the first
  respondent. 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
E that after investigation he was chargesheeted and sent
  up for trial. Though, the first respondent was acquitted
   in the said case, upon investigation, prime facie,
  materials showing negligence were found to put him on
  trial. The statements made by CW-2 in the course of his
F deposition has considerable significance to the issues
  arising in the case, namely, whether the deceased was
  driving the scooter under the influence of alcohol and
  whethet there was any negligence on his part leading to
  the accident. The said aspects of the evidence of CW-2
G do not-appear to have been taken note of or to have
   receiveCI any consideration of the 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
H Tribun!ll, namely, that the accident had occurred on
DULCINA FERNANDES & ORS. v. JOAQUIM XAVIER 483
               CRUZ & ANR.
account of the negligence of the deceased. The High             A
Court having failed to notice the above lacunae in the
award of the Tribunal and correct the same, the present
is a fit case for interference. Accordingly the findings of
the Tribunal as affirmed by the High Court in respect of
issues 1 and 4 are set aside and it is held that the accident   B
had occurred due to the rash and negligent driving of the
pick-up van by the first respondent. [Para 8) (487-E-H;
488-A-H; 489-A-B]

    Bimla Devi & Ors. Vs. Himachal RTC (2009) 13 SCC
530: 2009 (6) SCR 362 and United India Insurance                C
Company Limited Vs. Shila Datta & Ors. (2011) 10 SCC 509:
2011 (14) SCR 763 - relied on.

     2. The claimants-appellants are entitled to
compensation of Rs.6,66,041.78 as quantified by the             D
Tribunal in its order dated 20.07.2004. Insofar as award of
interest is concerned, in the facts of the present case, it
is directed that the amount awarded shall carry interest at
the rate of 6% per annum with effect from the date of the
award of the Tribunal i.e. 20.07.2004. [Para 9) (489-C-D]       E
                     Case Law Reference:
    2009 (6) SCR 362         relied on            Para 7
    2011 (14) SCR 763        relied on            Para 7
                                                                F
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9094 of 2013.

    From the Judgment and order dated 14.11.2008 of the
High Court of Bombay at Panaji in FA No. 216 of 2004.           G

    Arun R. Pednekar, V.N. Raghupathy for the Appellants.

    Kishore Rawat, M.K. Dua for the Respondents.

    The Judgment of the Court was delivered by                  H
    484      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A         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 llha, De Rachol. The deceased
8
  was driving a scooter and one Rosario Antao was 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
C 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
D 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
E 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 accident had
F 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
G 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
H claimants at Rs.6,66,041.78, in view of the findings re~orded
DULCINA FERNANDES & ORS. v. JOAQUIM XAVIER 485
       CRUZ & ANR. [RANJAN GOGOi, J.]
against issues 1 and 4 (whether the deceased or the first          A
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.           B

     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.
According to the learned Tribunal and the High Court the most      C
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      D
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        E
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                F
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 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            G
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     H
    486       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A 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
B 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.
c      6. We have heard Mr.Arun R. Pednekar, learned counsel
  appearing for the appellant and Mr. Kishore Rawat, learned
  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
D 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
E 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
F (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)
G would be relevant to the facts of the present case and, therefore,
  may be extracted hereinbelow:

                "(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
H         the proceedings are suo motu initiated by the Tribunal.
DULCINA FERNANDES & ORS. v. JOAQUIM XAVIER 487
       CRUZ & ANR. [RANJAN GOGOi, J.]

          (v) Though the Tribunal adjudicates on a claim and            A
     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              B
     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:
                                                                        c
     '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        D
     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           E
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 after
seven years i.e. in the year 2004. Keeping in view the nature
                                                                        F
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           G
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          H
    488       SUPREME COURT REPORTS                   [2013] 10 S.C.R.


A   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
B   assigned. Similar is the position with regard to the findings of
    the learned Tribunal in accepting the evidence tendered by the
    first respondent. However, 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
C   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
0
    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,
E   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.
F   The statements made by CW-2 in the course of his deposition
    has considerable significance to the issues 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
G   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
H   Tribunal, namely, that the accident had occurred on account of
 DULCINA FERNANDES & ORS. v. JOAQUIM XAVIER 489
        CRUZ & ANR. [RANJAN GOGOi, J.]
 the negligence of the deceased. The High Court having failed        A
 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       B
 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
  quantified the entitlement of the claimants to compensation at     C
  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       D
. 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.
                                                                     E
     10. Appeal of the claimants is allowed on the above terms.
 No order as to costs.

 B.B.B.                                         Appeal allowed.