Rashmi Ramesh Naik and 3 Ors v. Shrikant M. Yadav and 4 Ors

I Amrut IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 74 OF 2022

¶1Mrs Rashmi Ramesh Naik, 53 years ofage,

¶2Miss Santoshi R. Naik, 25 years ofage,

¶3Mr. Rinkesh R. Naik, 22 years of age,

4.Mr Rishikesh R. Naik, 2l years ofage, All Residents of H. No. 70, Bhaibhat, Kundaim, Ponda, Goa. "' APPe[lants Versus

¶1Mr. Shrikant M. Yadav, Son of Mr Maheshwari PrassadYadav, Major of age, Resident of Village Rastra, P S - Murligani Dist. MadhePura, c/o Rakesh Kumar, Gurudwara Road, Purnea, Bihar.

¶2Mrs. Silvina Silveira, \fife of Antonio Silveira, Major of age, Resident of H. No. 289, Yazem, Shiroda, Ponda, Goa.

¶3M/s BaiaiAllianz General Insurance Company Limited, Branch Office at 3C & 3D Sesa Ghor 20,Patto, Panaji, EDC Complex, Goa. Page I of 25 28th Jun e 2023 FA 74-22 & 37-22.DOC I

¶4Mr. Sandesh R Devias s/o Rangu Devias R/o Vangal, Kerim, Ponda, Goa. (since deceased through legal heirs his wife) Mrs. Sunanda S Devias, M"jor of a1e, Resident of c/o R*jesh Pandurang Naik Gaunkar, H. No. 447, Kelbaiwada, Tivrem, Marcel, Ponda, Goa.

¶5Mr. Sandip Pandurang Naik, M"jor of t1e, Resident of F-109, Altess, Manor, Kerant, Cararualem, Tiswadi, Goa. ... Respondents Mr A. D. Bhobe, Ms A. Fernandes and Ms s. shaikh, Advocates for the Appellants. Mr Amey Kakodkar and Mr Akshay Naik, Advocates for Respondent No.3. Mr T. Sequeira, Mr S. Sawant and Mr Shriram Polle, Advocates for Respondent No.5. \NTH FIRSTAPPEAT NO. 37 OF 2022 Mrs. Maria Salvador Fernandes son of late Mr. Salvador Fernandes 7 4 years of age, Resident of H. No. 349 lL, Kharyabhat, Adcolna, Banastarim, Ponda, Goa. Versus

¶1Mr. Shrikant Yadav, Son of Mr. Maheshwari Prasad t/adav, Mrjor of age, Resident of Village Rasffa, P S - Murliganj Dist. Madheputt, Bihar.

¶2Mrs. Silvina Silveira, Wife ofAntonio Silveira, M"jor of t1e, Resident of ...Appellant Page z of zs 28th Jun e 2023 H. No. 2B9,YazefiI, Shiroda, Ponda, Goa.

¶3M/s B"jaj Allianz General Insurance Company Limited, Patto, Panaii, Goa.

¶4Mr. Sandesh R tgu Devias (since deceased through legal heirs his wife) 4a) Mrs. Sunanda Sandesh Naik, M"jor of a1e, Resident of cl o R"jesh Pandurang Naik Gaonkar, H. No. 447, Kelbaiwada, Tivrelrl, Marcel, Goa.

¶5Mr. Sandip Pandurang Naik, M*jor of tge, Resident of F-109, Altess, Manor, Kerant, Caranzal,em, Tiswadi, Goa.

¶6Mr. Ramesh Somnath Naik, (Since Deceased through legal heirs, his wife) 6a. Mrs. Rashmi Ramesh Naik, Major of age, Resident of H. No. 1054, Dharzowada, Kundaim, Ponda, Goa.

¶7National Insurance Co. Ltd., ...Respondents Ponda Branch. Mr A. D. Bhobe, Ms A. Fernandes and Ms s. shaikh, Advocates for the Appellant. Mr Amey Kakodkar and Mr Akshay Naik, Advocates for Respondent No.3. Mr T Sequeira, Mr S. Sawant and Mr Shriram Polle, Advocates for Respondent No.5. Page s of zs 28th Jun e 2023 CORAIVI: Resened on : Pronounced on: M. S. SONAI(,J. 15'hJUNE2023 zg'hJUNE 2023 IUDGMENT

¶1Heard Mr Bhobe, learned counsel for the Appellants in both these appeals. In both appeals, Mr Amey Kakodkar and Mr A. Naik appear for Respondent No.3-Insurance Company. Mr T. Sequeira, Mr S. Sawant and Mr S. Polle ^PPear for Respondent No.5 in both appeals. Respondent Nos. 1,2 and 4, though served neither Present nor represented.

¶2The learned counsel for the parties agree that both these appeals can be disposed of by a common judgment and order since the challenge in both the appeals is to the impugned judgments and awards dated 30.12.2021 in Claim Petition Nos. 6712014 and 3ll20l4 arising from the same accident on 05.12.2012 at Manaswada Kundaim, Ponda Goa, allegedly involving JCB bearing registration No. GA-05-B-8472. By the impugned judgments and awards, the Motor Accident Claims Tlibund at Ponda Goa (Tlibund) has dismissed the claim petitions by holding that the JCB was not involved in the accident. Hence, these nvo appeals.

¶3First Appeal No.74 of 2022 arises out of Claim Petition No.57l 2Ol4 instituted by the dependants of late Ramesh Naik, who was riding a Hero Honda Motorcycle bearing registration No. GA-05-H-28'h Jun e 2023 FL74-22 & 37-22.DOC 1930. The dependanm/claimants are Rashmi Naik (widow), Santoshi Naik (daughter ), Rinkesh Naik (son) and Rishikesh Naik (son) of the deceased Ramesh Naik who was 45 years old at the time of the accident on 05. 12.2012.

¶4First Appeal No.37 of 2022 arises out of Claim Petition No.31/2014 instituted by the dependant mother of Joao Camilo Fernandes, who was riding pillion on an Eterno Scooter bearing No. GA-05-B-4805. His mother, Maria Salvador Fernandes, wos the claimant and is the Appellant in First Appeal No.37 of 2022. Joao Camilo Fernandes was 28 yeafs old at the unfortunate accident on

05.12.2012.

¶5Incidentally, another Claim Petition No.96l2013 was instituted by the dependants of the deceased Sandesh Naik, who was dso involved in the same accident on 05.12.2012 at Kundaim. Sandesh Naik was riding the Eterno scooter bearing registration No.GA-05-B-4805, on which Joao Camilo Fernandes was riding pillion. This Claim Petition No.96l2013 was allowed by the tribunal presided over by Ms Beta Naik, District Judge-2, holding that the JCB bearing Registration No. GA-05-B-8472 was involved in the accident due to the rashness and negligence of the JCB driver Shrikant Yadav. Neither the owner & driver nor insurer (Bajaj Allianz General Insurance Company Limited) of the JCB questioned this judgment and award dated 31.01 .2020 in Claim Petition No.96l2013. Instead, the insurer settled the compensation awarded to the dependants of late Sandesh D. Naik. Page s of zs 2B'h Jun e 2023 EA 74-22 & 37-22.DOC

¶6Thus , regarding the same accident on presided over by Ms Bela Naik has held that

¶05L2.2012, the tribunal the accident occurred due to rash and negligent driving of Shrikant Yadav the driver of JCB bearing registration No.GA-05-B-8472 and the tribunal presided over by Ms IGhama M. Joshi has held that the JCB bearing No.GA-05-B-8472 was not at all involved in such an accident.

¶7fu noted earlier, the Respondents to Claim Petition No. 96t2013, which includes the insurer of the JCB, Bajaj Allianz Generd Insurance Company Limited, which is Respondent No.3 in First Appeal No.37 of 2022 and 74 of 2022, never challenged tribunal's judgment and award dated 31.01.2020 in Claim Petition No.96l2013. Instead, this award was accepted by the Insurance Company, and even the compensation was paid in terms of the award. Therefore, the first question for determination in these appeals is whether the principle of issue estoppel would apply qua the owner, driver and the insurer and whether they would be precluded from urging that the JCB was never involved in the accident of 05.12.2012.

¶8A similar issue arose in National Insurance Co. Ltd. W Thlshidas Kerkar, First Appeal No.93l2016, decided on 06.70.2022, and sa17ed Nadd vs vishnu l{hodginkar, First Appeal No. 57 of 2019, decided on 08.12.2022, in which it was held that the issue estoppel would bar the insurance comPany or vehicle owner/driver from contending that the vehicle in question was either not involved Page 6 of zS 28th Jun e 2023 in the accident or that the accident was not due to rashness and negligence of the vehicle driver. g. In Tutsttidas Kerkar (supra), the issue was about the involvement of aTatatipper truck bearing registration No. GA-04-T-1769. The Insurance ComPany challenged the tribunal's award dated 3O.IO.2OL5 in Ctaim Petition No.56l2011 made by the Motor Accident Claims tibunal, Mapusa, in a claim petition by the dependants of Kalpana Kerkar who was travelling in a minibus bearing registration No.GA-O1-U-2603. The tribunal found e head-on collision between the Thta Tipper truck and the minibus due to the negligence of the Thta Tipper truck driver. In this accident, Kalpana Kerkar and minibus driver Doulat Rane expired. lO. The widow and minor children of Doulat Rane had instituted dre Claim Petition No.5612011 before the tribund. Based on the evidence of two eyewitnesses, the tribunal found that not only the Thta tipper truck was involved in the accident, but that accident occurred due to the rash and negligent driving of the Thta tipper truck driver. The insurance compffiy that had insured the Thta tipper truck did not challenge the award in Claim Petition No.56l2011 instituted by the dependants of Doulat Rane. Accordingly, in First Appeal No. 93 of 20L6, it was held that the principle of issue estoppel would apply. The insurer of the Thta tipper truck, i.e. National Insurance ComPany Ltd., could not be permitted to challenge the award in the claim petition instituted by dependants of Kalpana Kerkar, Iest there would 28th June 2023 be rwo contradictory awards on the same issue. This Court relied upon Machindranath Kernath Kasar W D. S. A,Iylarappa & Or!, and Briri Allianz General Insurance W Sltri Sltarad Cltandrakant Raikar &Anr.2 on the point of issue estoppel.

¶11To the same effect is the decision of this Court in SaSyed Nadaf (supra). The tribunal in Claim Petition Nos.43l2013, 8812013, 8912013 and 9012013 found Appellant Nadaf responsible for the accident in question. The Appellant did not chdlenge any of these awards but chose to challenge the award in Claim Petition No.1t8l20lJ, among other things, on the ground that he was not negligent. Applying the principle of issue estoppel and relying upon Macltindranatlt Kasar (supra), Sanrun Fernandes W Amiad Mujauaar and odters and l(arnataka Road State Transport Corporation Vs Smt. Fatima Sheildt and otlterf, this Court held that Nadaf (supra) was estopped from challenging the decision regarding rashness and negligence.

¶12Applnrg the above principles to the peculiar facts of the present case, the impugned awards to the extent they hold that the JCB was not even involved in the accident or that the accident did not occur due to rashness and negligence on the part of the JCB driver will have to be reversed. Incidentally, the Claim Petition No.96l2013 award was cited explicitly before the tribunal presided over by Ms IGhama Joshi. r 2oo8 ACJ 1964 (SC) 2 FANo. 8312010 decided on 09 .06.2015 3 FA No.3012015 decided on 19.08.2022 Page I of 25 28th Jun e 2023 FA 74-22 & 37-22.DOC However, the Presiding Officer held that the award made by coordinate bench was nor binding upon her since the awards of tribunds are not "precedenti'.

¶13The above approach was not correc. The award of the coordinate bench was not cited before the tribunal as a " precedent'. The award was cited in a plea of res judicata or issue estoppel. Therefore, The tribunal was not justified in brushing aside the award in Claim Petition No.96l13 and proceeding to make a contradictory award concerning the same accident.

¶14Apart from the point of issue estoppel, the tribunal grossly erred in failing to appreciate the scope of proceedings before it and the approach to be adopted to determine rashness and negligence in such cases. From the perusal of the impugned awards, one would not be wrong to think that the learned Presiding Officer entertains an impression that the issue of rashness and negligence or the issue of involvement of a vehicle in the accident is to be proved beyond the reasonable doubt and not by the standard of preponderance of probabilities.

¶15After recording an adverse finding on the issue of involvement of the JCB, the tribunal did not even bother to determine the compensation amount. Even this approach has been deprecated by the Hon ble Supreme Court and this Court several times in severd Page g of zS the the judgments. 28'h Jun e 2023

¶16In Bimleslz & Ors. u. National India Assurance Co. Ltd. -

(2010) 8 SCC 591, in paragraph 9, the Hon'ble Supreme Court has held that the claim tribunal is required to dispose of all issues one way or the other in one go while deciding a claim petition. In Agriculrural Produce Marketing Committee, Bangalore u State of Karnaaka & Ors. - 2022 SCC OnLine (SC) 342, the Hon'ble Supreme Court has held that the courts must avoid shortcuts and decide all issues that fall for their determination.

¶17Even on the issue of rashness and negligence or on the issue of involvement of the JCB in the accident, the approach of the tribunal with respect is contrary to the law laid down by the Hon'ble Supreme Court in several decisions, including Dulcina Fernandes & Ors. us. Joaquim Xauier Cruz &,4nr. - (2013) 10 SCC 646, Mangala Ram us. Oriental Insurance Co. Ltd. - (2015) 5 SCC 656, Sunita And Otlzers us. Rajasrtan State Road Tiansport Corporadon And Orters - (2020) 13 SCC 486, Anita Sltarma and orters us. New India Assurance Company Limited and anotlter - (2021) I SCC 171, Parmesltwari us. Amir Chand & Ors. - (2011) 11 SCC 635 and Vimla Deui & Ors. us. National Insurance Company Ltd. - (2019 2 SCC 186.

¶18In the above cases, the Hon'ble Supreme Court had held that the approach of the Courts/Thibunals when dealing with such matters has to be sensitive enough to appreciate the turn of events on the spot or the hardship that the claimants usually face in tracing witnesses and Page ro of 25 28'h Jun e 2023 collecting information for an accident when they were themselves not present at the accident spot. Further, the Courts/Tlibunals must be mindful that strict principles of evidence and standard of proof, like in a criminal trid, are inapplicable in MACT claim cases. The standard of proof in such matters is one of the preponderance of probabilities rather than proof beyond a reasonable doubt.

¶19The Hon'ble Supreme Court has held that the Courts/Thibunals have to be mindful that the approach and role of Courts/tibunals while examining evidence in accident claim cases ought not to be to find fault with the non-examination of some best eyewitnesses, as may happen in a crimind trial. Instead, the Courm/Tlibunals should analyse the materid placed on record by the Parties to ascertain whether the claimant's version is more likely than not true. The Courts/Tiibunds musr take a holistic view bearing in mind that strict proof of an accident caused by a particular vehicle in a specific manner often cannot be adduced by the claimants. The Courts/Tiibunals must also draw appropriate inferences from the failure of Respondents to properly cross-examining the witnesses of the claimants or confront them with their version despite the adequate oPPortuniry. They must consider the tegal effect of failing to cross-examine crucial witnesses on crucid issues.

¶20ln Anira Sltarma (supra), the Hon'ble Supreme Court has reiterated that the standard of proof in accident claim cases is that of the preponderance of probabilities, not beyond a reasonable doubt. In Page rl of 25 28'h Jun e 2023 l ( N. K V Bros. (P) Ltd. us. M. Karumai Anmal & Odters - AIR 1980 SC 1354, the Hon'ble Supreme Court noted that road accidents are one of the top killers in our country. Therefore, Accident Tiibunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liabiliry merely because of some doubt here ot some obscuriry there. Save in plain cases' culpabiliry must be inferred from the circumstances where it is fairly reasonable. The Court should avoid succumbing to niceties, technicdities and mystic maybes. The Court emphasised this asPect because it was often distressed by transport operators getting away with it thanla to judicid laxity, even though the ffansport oPerators do not exercise sufficient disciplinary control over the drivers regarding careful driving.

¶21In Sunita & Ors. (supra), the Hon'ble Supreme Court held that the Thibunal had correcdy accepted the claimant's contention about the Respondents not challenging the propriery of the FIR and the charge sheet before any authoriry. The only defence raised was that the FIR was based on wrong facts or was filed in connivance bet',veen the complainants and the police, against which the Respondents had complained to the superiors, but to no avail. The Hon'ble Supreme Court held that apart from this bald assertion, no evidence was produced before the Tiibund to prove this point. The Court held that the filing of the FIR was followed by the filing of the charge sheet, which reinforces the FIR allegations insofar as the accident's 28th Jun e 2023 EA 74-22 & 37-22.DOC occurrence and the driver's role in causing such an accident was concerned.

¶22Suppose the impugned awards in the present case are perused. In that case, it is evident that the learned Presiding Officer has chosen not to go by the approach the Honble Supreme Court laid down in evaluating oral and documentary widence in Motor Accident Claim cases.

¶23Though it was the case of the JCB owner and the driver that their JCB was not involved in the accident, most surprisingly, the JCB driver did not step into the witness box and depose to this alleged circumstance. The tribunal chose not to draw any adverse inference on account of the failure of the JCB driver to step into the witness box. This was a gross error. fu noted earlier, the Hon'ble Supreme Court has held that the Courts should draw appropriate inferences even from the failure of the Respondents to cross-examine the claimants' witnesses properly. Here the JCB driver, who claims that the JCB was not even involved in the accident, chooses not to enter the witness box and say so on oath. Yet the tribunal downplays this crucial circumstance and declines to draw any adverse inference against the owner and driver of the JCB. Contrary to the approach mandated by the Hon ble Supreme Court, the tribunal was bent upon finding faults with the eyewitnesses examined by the claimants. Over trivial issues, the evidence of eyewitnesses has been discarded, and no adverse 28th Jun e 2023 FA 74-22 & 37-22.DOC inference was drawn even though the JCB driver failed to examine himself after pleading an alibi.

¶24Narayan Naik (A\f2) deposed that on 05.t2.2012, he was at the Manaswada bus stand talking to one of his friends and at 7.05 p.ffi., he noticed one yellow colour JCB proceeding at a fast speed from Kundaim to Panaji direction. He deposed that this JCB was bearing registration No. GA-05/B-8472. He deposed seeing this JCB dashing the Eterno motorcycle, which was proceeding in the same direction. He deposed about the Eterno motorcycle, in turn dashing against an oncoming Hero Honda Motorrycle. He deposed how the rider and the pillion rider of the Eterno motorcycle fell on the right side of the road if one proceeded to Panaji. He spoke about the rider of the Hero Honda motorcycle falling on the right side of the road if one proceeds to Panaji. He deposed that the JCB was in the middle of the road, and the injured were shifted to Goa Medical College, Bambolim, in a 108 Ambulance. He deposed how the JCB driver was trying to run away with the JCB and how he was ultimately stopped.

¶25This witness filed a complaint dated 05.12.2012 about this incident, and in his deposition, A-V2 identified his signature at point B. A\f2 categorically deposed that the driver of the JCB caused the accident. He deposed that the rider and pillion of the Eterno motorrycle and the Hero Honda Motorcycle rider expired in the accident. Page t4 of 25 28'h Jun e 2023 EA 74-22 & 37-22.DOC

¶26AWz was cross-examined on behalf of the JCB driver Shrikant Yadav. The first suggestion was put to him was that A\Y,/z, in the criminal case against the JCB driver before the JMFC, Ponda had stated that the JCB fled away from the spot along with the JCB towards Panaji side. Now the A\72 was deposing that he and others managed to stop the JCB driver from fleeing away with the JCB. AW2 was asked which of his two versions was correff. To this, A'W2 answered as follows:- 'T say that wharcver I have deposed rcday is correct because the ICB was ar a dismnce of about 60 mtrs. from tlte accident spot and we managed rc srcp him as he was trying to run away towards Panaji side,' 27, Now the above suggestion on behalf of the JCB driver is significant. From the above suggestion, it is apparent that the JCB driver does not deny either his presence or the presence of the JCB at the site. AW2 withstood the cross-examination. Significantly, no suggestion was put to A'V72 about the JCB not at all being involved in the accident. The evidence of NX/2, coupled with the fact that the FIR and, ultimately, the charge sheet was filed against the JCB driver, was more than sufficient to establish the complicity of the JCB and JCB driver in the accident.

¶28Howeve! the tribunal disbelieved this witness only because in his cross-examination, he stated that as soon as he heard the sound of impact, he immediately turned and saw the JCB hitting the left side of Page rS of 25 28th Jun e 2023 FA 74-22 & 37-22.DOC the rear portion of the scooter. He denied the suggestion that since he was standing on fie left side of the road as one proceeded to Panaji, he could not see what happened on the right-hand side of the JCB. Based upon these answers, the tribunal deemed it appropriate to disbelieve this eyewitness and discard his evidence. \fith respect, such an approach on the part of the tribunal is contrary to the law laid down by the Hon'ble Supreme Court regards the evaluation of evidence in such matters.

¶29AU/2 was cross-examined on behalf of the JCB owner. The suggestions were put about a speed breaker at or near the accident side. Again, from this suggestion, it is clear that there was no confident denial of the involvement of the JCB in the accident. A suggestion was also put in that the JCB was being driven at the maximum speed of 20 km per hour. All these suggestions are sufficient to infer that the owner and the driver of the JCB were not serious with their versions and the JCB not being present at the site of the accident, or that the JCB not being involved in the accident.

¶30Rahul Dhamsekar (A\73) was examined as a police investigating officer. He deposed that the JCB was not shown on the sketch/Exhibit 72 colly because the JCB driver, along with the JCB, rurL a\lay from the accident spot. He agreed that the criminal case of rashness and negligent driving was filed against the driver of the JCB. This witness denied that the owner of the JCB had filed any complaint against him regarding the quashing of FIR No.37612012. He has stated that he has 28th Jun e 2023 FA 74-22 & 37-22.DOC received no nodce of a writ petition filed to quash the FIR. The JCB owner did not personally address any notice or representation to this witness for implicating the JCB. A\f3 withstood rigorous cross-examination. Even the Court recalled this witness and ultimately disbelieved this witness for no good reason.

¶31Apart from examining eye witness Narayan Naik (A\72) and investigating officer Rahul Dhamsekar (AlS73), the claimants examined other witnesses in the context of employment and earning of the deceased Ramesh Naik. That evidence will be considered later on while discussing the issue of the quantum of compensation. Further, the documentary evidence was also produced on behalf of the claimants comprising an accident information report, FI& complaint of the eye witness, panchanama and sketch, autopsy report, driving licences, birth certificate, marriage certificate, income certificate etc. All these have been discarded by the tribunal for no good reason.

¶32On behdf of the Respondents, Vijay Thomson (R\f 1) deposed that he was working at Procter and Gamble Company (P&G) near Polynova Industries Ltd., in Kundaim Industrial Estate. He deposed that on 05.12.2012 at about 6.55 p.m., he had seen the JCB bearing registration No.GA-0518-8472, driven by Shrikant Yadav proceeded towards Polynova Industries Ltd. via Procter and Gamble Company Road. He deposed that he needed JCB to clear the debris of construction work carried out by the company where he was working, and therefore, he stopped the JCB and asked the driver if the JCB was 28th Jun e 2023 available to clear the debris. He deposed that the driver told him to come to Polynova Industries Ltd. \Xhen he went to the factory gate ar about 7.00 p.m., he saw the JCB driven by Shrikant Yadav taken inside the factory premises of Polynova Company.

¶33In the cross-examination, R\fl claimed that he had not noticed any CCTV camera on the gate of Polynova Industries Ltd., and in the area at Procter and Gamble Company. He agreed that he had not seen any entry register when he met the Manager of the Industry. He denied the suggestion that he had nor seen the JCB at or near the gate of Polynova Industries Ltd.

¶34Vijesh Khandolkar (RW2) deposed that he was the partner of M/s Saidisha Packaging at Kundaim Industrial Estate, Kundaim Goa. He deposed that on 05.12.2012, they had services of M/s Suraksha Construction for digging and breaking and accordingly, a da.ly report dated 05.12.2012 was issued in the name of Suralaha Earthmovers for the work done by the JCB bear-ing registrarion No.GA-05 tR-8472 from 4.15 to6.30 p.ni.. After that, on 08.12.2012, a voucher payment for an amount of \2187/- vvas a[,:o issued. In his cross-examination, R\f/z admitted that there are supervisors in M/s Saidisha Packaging, but he voluntarily stated that there were no supervisors when the JCB was doing the work. I{e admitted that the place of work is not mentioned in Exhibit 98. He denied fiat Exhibit 98 was a fabricated document 28th June ?-023

¶35Mahesh Naik, security supervisor of Polynova Industries Ltd. (R\tr4), was a star witness on behalf of t}re Respondents. He deposed that he saw the JCB entering the compound of the Polynova industry at Kundaim. He produced the inward and outward register to indicate that the JCB entered the factory compound through the second gate at 1 9. 10 hours on 05. 12.2012 and exited at 2.30 hours on

06.t2.2012.

¶36The actual inward and ourward register shows overwriting in so far as the JCB number is concerned. The register shows that the ink at enrry No.22 at Exhibit 115 differs. This question was posed to this star witness R.W4. He admitted that there were corrections made at entry No.22 by using a whitener, and there was overwriting in the vehicle number. He also admitted that the ink at entry No.22 at Exhibit 1 15 differs. This evidence and the extract from the register were more than sufficient to disbelieve the Respondent's version. Yet the tribunal downplays even this crucial evidence of overwriting and manipulating the inward and outward register by using a whitener and changing the registration number of the JCB.

¶37Thus upon holistic consideration of the evidence on record, the claimants succeeded in establishing that the JCB was involved in the accident and that the JCB driver was responsible for the accident. The tesdmony of the eyewitness A\71 and the investigating officer's testimony is sufficient to sustain such a conclusion. Besides, the FIR Page 19 ol 25 28th June 2023 was lodged against the JCB driver, and after investigation, even a charge sheet was ftled against him for rash and negligent driving.

¶38Apart from the bare starement that the FIR and the prosecution were incorrect, there is no record of the JCB owner or driver taking out any serious proceedings to quesrion this FIR or this prosecution. Applyrtg the law laid down by the Hon'ble Supreme Court in the abovementioned judgments, a case of rashness and negligence against the JCB driver was made out. As noted earlier, the test in such matters is that of the preponderance of probabilities and not proof beyond a reasonable doubt.

¶39Therefore, the finding about non-involvemenr of the JCB or finding that the JCB driver was not rash and negligent recorded by the tribunal must be reversed and is hereby reversed. Apart from the point of issue estoppel, there is adequate evidence to establish by the test of preponderance of probabilities the involvemenr of the JCB and the rashness and negligence of fie JCB driver, who did nor even bother to step into the witness box and face cross-examination.

¶40The next point to be considered is the quantum of compensation. In FirstAppeal No.74 of 2022, Rashmi Naik, widow of Ramesh Naik, examined herself. In addition, Sanjay Naik (A\f/4), Shantaram Naik (A\f5), Nitin Prabhugaonkar (A\f6), Vishwas Satarkar (A'W7), Prakash Jdmi (A\f8) were examined on behalf of the claimants. Page 2O of 25 28th June 2023

¶41Rashmi Naik, the widodclaimant, deposed that her husband Ramesh Naik, aged about 45 years at the time of the accident, was healthy with a good personaliry cooperative and a veterinary experr providing artiftcial insemination to cattle and attending the sick cattle. She deposed how he was earning more than {20,000/- per month. She deposed how her husband was doing the self business of cattle farming and was used to earn income by selling the milk to farm sociery.

¶42A\f4 is the Secretary of Priol Gosavardhan Sahkari Dudh vyavsayik Sanstha Maryadit, A\r5 is the Chairman of Shri Navadurga Dudh Vyavsayik Sanstha Maryadit, Kundaim, A\f6 is the Chairman of Thibhuvan Sahakari Dudh vyavsayik Sanstha Maryadit, Mardol, AW is the Chairman of Shri Shantadurga Sahakari Dudh Uthapadak vyavsayik Sanstha Maryadit, and A'$78 is the Chairman of Devanand Yijaya Sahakari Dudh Vyavsayik Sociery Kundaim. Atl these witnesses have deposed how Ramesh was skilled at providing artificial insemination to cattle's and also used to sell milk to their societies. They have deposed that they used to make payments to Ramesh. Based upon the evidence on record, it can be safely concluded that Ramesh was earning t400/- to t500/- per day or t15,000/- per month.

¶43In terms of National Insurance Company Limited W. Pranay Serti and othersa, an addition of 25o/o is due towards future prospects. A deduction of 1/4n is due towards Ramesh's personal Page 2l ol 25 4 (zot7) t6 scc 680 28'h Jun e 2023 expenses. Ramesh's annual income after such a deduction would come to {1,68,750l-. Considering Ramesh's age, the appropriate multiplier would be 14. Thus the total compensation towards dependency would come to123,62,5001-.

¶44To the above arnount, we must add t1,60,000/- towards the consortium. This is assessed at t40,000/- towards each of the dependents. Further, the compensation of t15,000/- is due towards funeral expenses and t15,000/- towards loss of estate. Thus, the total compensation works out to <25,52,5001-. This is against the compensation of {25,08,000/- claimed by the claimants. It is well setded that the Court or tribunal has to determine just compensation irrespective of what may have been claimed by the dependents. In this case, the compensation claimed by the dependents broadly corresponds to just compensation now determined.

¶45Thus in First Appeal No.74 of 2022, the Claim Petition No.6712014 is allowed. The Respondents are directed to jointly and severally pay the Appellants/claimants the compensadon of <25,52,500/- together with interest at the rate of 8o/o per annum from the date of institution of the claim petition till the actual payment. The Respondent insurance company must deposit this amount in this Court within rwo months from today after giving due intimation to the learned counsel for the Appellants. Upon deposit, the Appellants would be entitled to withdraw the amount after furnishing identiry and bank details. Registry to Page 22 ol 25

¶46said 28th June 2023 ensure that the amount is directly transferred to the Appellants/claimants. The Appellants/claimants are awarded the above amount in equal proportion now that all of them have attained majority.

¶47In First Appeal No. 37 of 2022, there is evidence that the deceased Joao Camilo Fernandes worked in Adirya Plastics. AW2 Damodar Malvankar working with the deceased, has deposed in this matter. The claimant, i.e. Joao's mother and Damodar Malvankar, have deposed to the claimant earning14,860l-Per month. There is evidence about Joao Camilo Fernandes being 28 years old at the time of his unfortunate death in the accident.

¶48Based on the above, the compensation will have to be determined. To the income of 148601-, a50o/o addition is due towards prospects. But the deduction of 50o/o will have to be made towards the personal expenses. Thus, Joao's monthly income can be taken at <3645t-, and the annual income would be \43,740l-. The multiplier in the present case would be 17, and the compensation towards dependency would be worked out to <7,43,5801-.To this, an amount of {40,000/- will have to be added towards consortium, {15,0001' towards funeral expenses, and tl5,000/- towards loss of estate. 2022, together with interest at the rate of date of institution of the claim petition dlI 8o/o per annum from the actual payment.

¶49The total compensation would thus come to {8,13,580/-. This will have to be paid to the sole Appellant in First Appeal No.37 of the The 28'h Jun e 2023 I FA74-22 *.37-22.DOC Respondenr insurance company must deposit this alnount in this Court within two months from today after giving due intimation to the learned counsel for the Appellant.

¶50Both these appeals are disposed of by making the following order:

(a) C.rrea$6g ""*",-y\"{ "*f - f F.^ ."4r^ A, z,r,\*l* Vo..\l*-i ru-hrtc-fl d\l43c, 338 f, 4\u iJ o,a€. .M . ^rree.,t{,rru c*wi *l *^r -0 : lrtL +-{rL dl. 2t\"sf 2a l**a *,l^ rf,t.+ 6\ts,-$ - 35rt?\2-t leazs & - {,t+, First Appeal No.74 of 2022 is allowed, and the No.ttL ad 3 Respondents Aare directed jointly and severally to pay compensation of 125,52,5001-together with interest at the rate of 8% per annum from the date of institution of the claim pedtion dll the actual payment; First Appeal No.37 of 2022 is allowed, and the -No. ltLa-43 Respondents Aare directed jointly and severally to pay compensation of {8,13,580/- together with interest at the rate of 8o/o per annum from the date of institution of the claim petition till the actual payment;

(c) The Respondents, including in particular the Respondent Insurance Company, must deposit the above compensation amount together with interest in this Court within two months from today after giving due intimation to the learned counsel for the Appellant;

(d) Upon deposit, the Appellants will be endded to withdraw the compensation alnount and interest uPon furnishing idendry and bank details. Registry to ensure 28'h June 2023 EA 74-22 & 37-22.DOC that the amounts are directly transferred to the bank accounts of the Appellants. G) In First Apped No.74 of 2022, the compensation amount is apportioned equally amongst all claimants /Appellants.

(f) In the peculiar facts of the present case, the JCB owner shdl pay the costs of t25,000/- to the Appellants in both appeals. Such cosrs are ro be deposited in this Court within two months from today. The Goa State, Legal Services Authoriry, must pursue and recover such costs from the JCB owner Silvina Silveira. Once the costs are recovered, the same should be paid to the App.llants. J \'/aA\ aF ? ,4.. ' ( M. S. SONAI(,J. 28th Jun e 2023 l TARI AMRUT NAGESH Date: 2023.08.29 12:44:34 +05'30'