Oswald Caldeira Represented Through, Clara Eugenia Caldeira v. Devandra Naik and 2 Ors

JUDGMENT: l. Heard Mr Jatin Ramaiya, learned counsel for the Appellant, c,ote*t.>g and Mr A. R. S. Netravalkar learned counsel for RespondentsNo .gtLrL co.r^rn au1--6l5 q.crJ 3, n". -ill'o: +Ie.l-andz. 4-o!-'t-o>h ia moftrro't='F'hc9. This appeal is directed against the Judgement and Award passed by the learned Motor Accident Claims Thibunal, North . Goa, Panaji, sitting at Ponda (Thibunal) dated 09.03.2023 inClaim Petition No. 49l2ol2 (impugned judgment), by which the Thibunal dismissed the Claim Petition on the ground that the Appellant had failed to prove that the accident was caused due to the negligence of Respondent No.l.

¶3However, after recording this finding, the Thibunal did not bother to record any finding on other issues, particularly on the quanrum of compensation. In doing so, the Tlibunal acted in breach of several rulings of the Hon'ble Supreme Court, and this Court requiring the Courts and Tlibunals to avoid shortcuts and decide all issues that fall for determination. Page z of tt

¶4In Bimleslz u New India,Assurance Company Limircd in paragraphs 7, 8 & 9, the Hon'ble Supreme Court has held that the Thibunal has to fottow the summary Procedure subiect to any rules that may be made in this behalf The Civil Procedure Code, 1908, is not strictly applicabte to the proceedings before the Claims Thibunal excePt to the extent provided in Section 169 (2) of the MV Act and the Rules made thereunder. The whole object of the summary procedure is to ensure that the Claim Petition is heard and decided expeditiously by the Claims Thibund. In paragraph 9, the Hon'ble Supreme Court has held that the Claims Thibund must dispose of all issues one way or the other while deciding the claim petition.

¶5Therefore, the Thibunals should not dispose of the Claim Petitions based on some preliminary issue, usually raised by the Insurance Company about maintainabiliry or otherwise. So also, even after holding that rashness and negligence are not Proven, the Thibunals should not neglect ro decide on other issues, including the issue of the quantum of compensation. The Hon'ble Supreme court has hetd that since all the issues (points for determination) are required to be considered by the Ctaims Thibunal together in the light of the evidence that may be led in by the parties and not Page 3 of +t 1 (zoro) 8 SCC s91

¶62o6-Flt-46-2o23.DOCX piecemeal, often matters are required to be remanded. Accordingly, in Bimlesh (ruprr),the matter had to be remanded because not all issues were decided in one go. Recently, even in the Agricultural Ptoduce Matk*ing committee, Bangalore u. Tlte state of lGrnaak/, the Hon'ble Supreme Court has reiterated that the Courts must avoid shortcuts and decide all issues that fall for their determinadon.

¶7This court in Sanflina Josephina Scbastao Fetnandes u Inacio Xauict Fetnandef , Narciuha Chari u Joao Faria (First Apprrt No. 34 of 20tz decided on 04.03.2022), Benidita Jose olieveiro u. Naven cosancio cardozd, satita Agatwal u Felecia Coelho (Firct Appeal No. 59 of 20tZ decided on 2g.04.2022), Franky caruatho alias Neves Franky catvallzo u R"aju Jaswant singt\ (First Appcal No. 109 of 2017 decided on

01.07.2022), amongst others, has made it is bound ro decide all issues before it, that no shortcuts are adopted by avoiditg the issue for the sake of conYenience.

¶8Yet it is seen that the Thibunal has adopted a shortcut and did not decide uPon the other issues, such as the quanum of 2 (zoz2) SCC Online SC 342 t (zoz3) scc online Bom 44 4 (zoz2) SCC Online Bom 819 Page 4 of 4l clear that the Tribunal the law mandates that determination of some 206-FA-46-2023,DOCX compensation; Mr Ramaiya submits that this was even though some of this courr's judgmenrs were cited in this maffer. g. The Principal District Judges of the North and South Goa districts are now requested to circulate this judgment to the tribunals so there is no repetition.

¶11Mr Ramaiya submitted that the delay in instituting the Claim Petition was not egregious given the toaliry of circumstances. He submitted that the Thibunal had failed to appreciate that the Claimant had suffered physical disability to the exrent of 95.3o/o as a result of the head injuries due to which was being taken care of by his mother, a senior citizen and in light of these trying circumsrances rhe delay could not be considered fatal to the Appellant's case.

¶12Mr Ramaiya submitted that the Appellant, due to the accident, had been rendered completely disabled and incapacitated, further that he is completely reliant uPon his widowed mother, who is a senior cititrnherself. The mother was eighry years of age at rhe time this appeal was instituted. He submitted that these circumstances caused the Appellant and his aged mother to be totally dependenr upon others, prevenring them from approaching the Thibunal any sooner. He submitted that they had approached Page 5 of +t 206-EA-46-2023.DOCX the Thibunal within a reasonable dme, given the totaliry of the adverse circumstances and the fact that no period of limitation was provided for instituting a claim petition'

¶13Mr Ramaiya submitted that the evidence on record sufficiently proves that Respondent No. l's rash and negligent driving caused the accident by dashing the Appellant's Vespa scooter while overtaking a bus' Further' the Thibunal had erroneously concluded that such rash and negligence had not been proved and that such a finding was contrary to law and the evidence on record. L4. Mr Ramaiya submitted that the tibunal had erroneously disbelieved the evidence from A\r2 Gabyn Rodrigues) and A\r4 (sanjay Naik) because their names were not reflected in the list of wirnesses. Mr Ramaiya submitted that the Thibunal gave this fact undue importance and that it was oPen to the Appellant to leave out from the 'list of witnesses' any witness where they did not require the assistance of the court to secure said witness' presence'

¶15Mr Ramaiya also submitted that the fact that A\r2 and A\tr4 had not complained to the police regarding the accident could not have been held against them when considering their evidence' He submitted that a witness to an accident is naturally reticent to involve themselves and that such behaviour could not be Page 6 ol lt considered aberrant. Mr Ramaiya submitted that the evidence on record is sufficient to Prove the loss of dependency and disability and that the Appellant was due Rs'32'32'8401-in total as compensation under pecuni ary and non-Pecuniary comPensation heads. L6. Mr Netravalkar learned counsel for Respondent No. 3 submitted that the Appellant had failed to Prove any negligence on the part of Respondent No. 1, that instead, the accident was caused by the rashness and negligence of the Appellant. He submitted that the tribunal had correctly considered the evidence on record to conclude that a case for rashness and negligence had not been made against Respondent No.l and rightly dismissed the petition. He relied upon Minu B. Mehta and Anodtet u Balkrislzna Ramcttandra Nayan and anotltef , for the proposition that proof of negligence is necessary before the owner or insurance comPany could be held liable.

¶17Mr Netravalkar submitted that A-$72 and A\74 were got-uP witnesses and that their evidence could not be relied upon; he submitted that this was borne out from the fact that they were left out from the 'list of witnesses'; he submitted that were they true witnesses they would not have been so casually omitted. He also Page 7 of 4l 5 AIR 1977 SC 1248 12Ih FEBRUARY 2024 submitted that the delay in instituting the claim suPPorts the contention that the witnesses got uP only later to extract compensation from the Respondents incorrectly despite Respondent No. I not acdng negligendy and not causing the accident that caused the Appellant's injuries.

¶18Mr Netravalkar submitted that the Panchanama produced by the Appellant was manipulated to implicate Respondent No.l but that the unmanipulated panchanama secured by Respondent No. 3 under the RTI Act showed the scratch marks on the road proving that the scooter being ridden by the appellant had fallen without any impact from the pick-up driven by Respondent No.1, but that the Appellant had lost control of his scooter after braking' He submitted that the panchanama could not be brushed aside because it was secured under the RTI Act.

¶19Further, Mr Netravalkar submitted that the Accident Summary Report prepared by the PI showed that the PI had endorsed that a 'pure accident summary' was recommended, as there was no negligence on behalf of the temPo driver, suPPorting the Respondent's case that there was no rashness or negligence on his part.

¶20Mr Netravalkar submitted that the disability certiftcate was produced by the Appellant without the examination having been Page g of +r directed by the Thibunal and that, as such, it could not be relied upon to prove the disability suffered by the appellant.

¶21Based on the above contentions, Mr Netravalkar submitted that this appeal be dismissed with costs.

¶22Considering the rival contentions, the following three points for determination arise in this Appeal :

(A) Did the Appellant approach the tribunal within a reasonable period of time?

(B) Is the Thibunal's finding on rashness and negligence legal and proper?

(C) If rashness and negligence are established, what is the quantum of compensation payable to the Appellant?

¶23The rivd Contentions now fall for my determination. DEI.AY A}.ID LACHES IN INSTITUTING THE CL{'IM PETITION.

¶24The contention that the Claim Petition ought to be dismissed on account of delay cannot be accepted because the appellant has shown sufficient cause. Besides, apart from urging the issue of delay, none of the Respondents have pleaded or proved that they suffered any serious prejudice due to this delay. The claim petition was not bared by delay and laches for reasons discussed Page 9 of +t 12Ih FEBRUARY 2024 hereafter. Admittedly, no limitation period was prescribed for instituting such a petition, and the petition was instituted within a reasonable dme considering the tragic circumstances in which the appellant and his aged and widowed mother were placed due to the accident.

¶25In this case, we are concerned with a claimant who was employed as a chef at the Thj Fort Aguada Beach Resort in Goa. At the young age of 25, he met with an accident that rendered him completely disabled. Though the medically certifted disabiliry was about 95o/o, the functional disabiliry was 100%. He had mainly his widowed mother to look after him at an age when he had just begun to provide for her. There is evidence ofprolonged rreatmenr before the appellant could barely stabilise and. survive as a person with disabilities. Mr Ramaiya rightly contended that the mother,s ftrst prioriry was her son's survival.

¶26The disabiliry certificate produced on record. reads thus: IU,MIE AND ADDRESS OF INSTITUTION/TTOSPIruL &SUITVG CERTIFIUTE DEPARTA/IENT OF NEUROLOGV GOA MEDTAL COLLEGE, BAMBOLIMGOA Cerrifrca re No. IVe urologr/GMC/2 0 I 2 -t 3/02 3 Page lti of 4l THE THE ANNEXURE-B I2th FEBRUARY 20% darcd: IOh March 20Ij Tltis is ro cerri$, tltar Shri Oswald Francisca Caldeira, aged 35 years' male, Son of Franscico Caldeira, resident of Jaycee nagas Ponda -Goa, Rrgrttradon no. I I/I 1307 is a case of "sequelae of ltead iniury" (Dysardtria (moderarc) 50%, conrrolled epilepsy 50%, Spasric hemiparesrs 25%, r. Q. 65 (cerdfied by psychologisr ofr.pH.B.) zj% ToHt disabiliq'as per combining f"r-ula 95.i% (Nineq, frue. tltree percenl permanent (Physical impairmenl+imd eeclt @ impatrm en t) in rela don to ltis above siclaess. Norc: I. Tlte condidon is on progressiue@ @ot likely to imlzrove. strike out wlticlt is not applicable. sd/-sd/-(DocroR) (DocToR) Dr Aaron De souza Assistant Professor D epartm en t of Ne urologr Goa Medical College Signrtute/Tltumb impression of the patient Medi cal Sup erin rcn den t/Chi efMedical Otfrcer Of rlte Hospital (wirh seat) Page u of +r sd/-

¶2Re-assessment is not recommended rzth FEBR uaav zou a 206-FA-46-2023.DOCX

¶27The appellant's mother, Clara (ANfl), has deposed that the appellant was in the ICU battling to survive for almost 15 days. The appellant was in the GMC for about two months. The discharge summary recorded by Dr. Dubhashi (A\tr9), for the Department of Neurosurgerft at GMC shows, that the Appellant was initially taken to the ICU for ventil a@ry suPport, and had to undergo aTiacheostomy, [a surgical procedure where a hole(stoma) is created in the windpipe luachea, so that airloxygen may be mechanically/manudly ventilated through the lungs through the created opening, via an inserted tube]. At discharge from Goa Medical College, the Appellant still had the Ryle's tube (Naso-gastric tube to provide nutrition etc.) in situ. The Appellant was treated at GMC, with Antibiotics, Analgesics, Mannitol given intravenously, Dilantin as well as other medication that was required. Subsequently, the Appellant was taken for treatment at different hospitals, such as Apple Hospital and Research Centre in Kolhapur and Apollo Victor Hospital Margao as and when required, the bilts and receipts of which have also been produced in evidence. The ffeatment with local doctors at Ponda continued for aconsiderable period. The Appellant had to be admitted to the GMC on no less than three ocgtsions.

¶28ANfl deposed that the Appellant's skull had received a crush injury, and he suffered multiple head injuries due to the accident' Page t2 of +t a 206-Flt 46-2023.DOCX The Appellant gets fits and convulsions and is incapable of balancing himself. He cannot even walk for short distances. There is evidence about the Appellant's body being paralysed, and his mother has described him as deranged and completely 'at the mercy' of the other familymembers. There is ample evidence about the fracture of the skull and the jaws. There is evidence of serious dental issues and memory loss. All this evidence has not been dented in the.least and is backed by doctors and medical records.

¶29There is ample evidence to establish how the claimant could not handle his day-to-day activities. There is evidence that the claimant was endrely reliant on his aged and widowed mother. There is evidence about how the mother was focussing on her son's medical needs and had no dme or resources to seek comPensadon. The mother was about 60 years old when the claimant suffered the accident. No less than three doctors deposed in this case, i.e. Dr Anuja Ganoo (A\f3), Dr Sanjay Sukthankar (A\tr7), and Dr Sarvesh Dubhashi (A\f/9). The attendant who attended to the Appellant was also examined as A\f5.

¶30Even after the petition was sworn before the notary it could not be immediately filed before the Tribunal. All these factors cannot be ignored to deny compensadon to the claimant and some relief to his 8O-year-old mother, who cares for him. The delay is adequately explained. If the delay is considered in the context of all Page 13 of 4l o these unfortunate circumstances, then it must be held that the petition was instituted within a reasonable period.

¶31Besides, in this case, except for the Insurance Company raising the delay issue, nothing is pleaded or proved about the prejudice , if any, caused due to such delay.There was no suggestion of any records being destroyed or witnesses not being available. If the compensation is found to be payable, the interest would commence from the petition date and not earlier. 32, Even the Tlibunal, except for saying at one place that the petition was initiated with delay, has not dismissed the petition on the grounds of delay. The petition was dismissed because the Tiibunal felt that the helpless claimant and his widowed and aged mother could not establish rashness and negligence issues.

¶33The judgment of this court inJaganarh Hiroii Rawool and Another u CJ. JoSy (First Appeal No. 94 of 2015 decided

20.05.2022)turned on its own facts, namelythat the claimant had restarted operating his business and had only explained two years' delay due to his incapacity and lack of mobiliry but had been erant thereafter in instituting his claim, whereas here the factual matrix is significantly different and as such the above judgment will be of no assistance to the Respondent, in any case the matter therein was Page 14 ol 4l 12Th FEBRUARY 2024 l{ only remanded to the Tiibunal to consider if the delay was reasonable.

¶34Therefore, point (A) shall have to be answered in favour of the App.llant. RASHNESS AND NEGLIGENCE

¶35The Thibunal's approach for determining rashness and negligence in accident cases is contrary to the law laid down by the Hon'ble Supreme Court in the cases of Sunita & Ors. V/s. Rajasrtan State Road Transport Corporation & Ors.6, Anita Slzarma & Ors. V/s. Ncw India,4ssurance Company Limited &Anr.7, Parmeslzwari V/s. Amir Clzand & Ors.8, Mangla Pem V/s. Orienrul Insurance Company Ltd. & Ors.e and Dulcina Fernandes & Ors. V/s. Joaquim Xauier Cruz &Anr.to.

¶36In all the aforesaid cases, the Hon'ble Supreme Court has 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 collecting information for an accident o (zozo) 13 scc 486 t (zoz1) l scc L7L a (zou) 11 scc 63s t (zot8) s scc 6s6 10 (2013) 10 scc 646 Page t5 of +t I 206-FL-46-2023.Docx when they were themselves not present at the accident sPot' Further, the courts/Tiibunals must be cognizant of the fact that strict principles of evidence and standard of proof,like in a criminal trial, are inapplicable in MACT claim cases. The standard of proof in such marters is one of the preponderance of probabilities rather than proof beyond a reasonable doubt'

¶37ln Sunita & Ors' ('uP")'the Hon'ble Supreme Court has held that it is well settled that in motor accident claims cases' once thefoundationalfact,namely'theactualoccurrenceofthe accident, has been established, then the Tiibunal's role would be to calculatethequantumofjustcompensadoniftheaccidenthad takenplacebecauseofthenegligenceofthedriverofamotor vehicle and, while doing so, the Tiibunal would not be strictly boundbythepleadingsoftheparties.Notably,whiledecidingcases arising out of motor vehicle accidents, the standard of proof to be borne in mind musr be of a PrePonderance of probabiliry and not the strict standard of proof beyond all reasonable doubt' which is followed in criminal cases' 3g. The observations of the Hon'ble Supreme court in Anita (supra) are also apposite and pertinent to this case' the Court observedthat,itiscommonplaceformostpeopletobehesitant aboutbeinginvolvedinlegalproceedingsandtheythereforedo not volunteer ro become witnesses. Hence, it was highly likely that Page 16 of +r rzirrEBRuARY 2024 } 206-FL-46-2023.Docx the name of Ritesh Pandey or other persons who accompanied the injuredtothehospitaldidnotfindmentioninthemedicalrecord. Therewasnothingonrecordtosuggestthatthepolicereachedthe site of the accidenr or carried the injured to the hospital' The sarcment ofAV3, thetefore' acquires significance as' according to him,hebrougllttheinjwedinhiscartothehospial.Nrcsh Pandey@V/3)acrcdasagoodSamarianandaresponsiblecidzen, anddleHighCourtoughtnottohavedisbelievedhistesdmony basedmerelyonaconjecrure.Itisnecessatytoreircrarcthe independence and benevolence of A'tr/ 3. vithout any personal interest or modve, lte assisrcd both dte deceased by ruking him to rhe hospial and larcr his family by expending dme and effotr to depose before tlte Tribunal' gg.Further,theCourtnotedthatitisquitenaturalthatsucha PersonwhohadaccomPaniedtheinjuredtothehospitalfor immediate medical aid, could not have simultaneously gone to the policestationtolodgetheFlR.TheHighCourtoughtnottollave drawnanyadverseinferenceagainstdlewitnessforh*failureto rePottthemattertothepolice.Further,asthepolicehad themselvesreachedthehospitaluponhavingreceivedinformation about the accident, there was perhaPs no occasion for A\7 3 to lodgearePortonceagaintothepoliceatalaterstageeither. Page 17 ol 4t 12tN PEBRUARY 2024 ) 206-FA-46-2023.DOCX

¶40The observations of the Hon'ble Supreme Court in Parmeshwari (sup.a) are also required to be referred to, the Court observed that the other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. That, such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, IJmed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself, We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.

¶41The evidence on record in this maffer will have to be evaluated by considering the aforementioned perspectives and principles. Since the Thibunal failed to notice these decisions or apply them to the facts emerging from the record, the evidence must be reassessed.

¶42That there was a collision between the scooter and the pick-up is an admitted fact. Therefore, the accident itself has'been proven. It is the Appellant's case that the pick-up bearing No.GA-0l-T-4181 was being driven rashly and negligently, and because the pick-up was overtaking a bus, it hit the scooter bearing No.GA-Page r8 of 4l I 206-EA-46-2023.DOCX 01-K-5585 being ridden by the Appellant on the correct side of the road. Further, due to the impact, the scooter was dragged by the pick-up, causing it to fall on the left side of the pick-up, the wrong side of the road apropos the scooter.

¶43The Respondent's case is that the pick-up was being driven with due care and that the Appellant was riding in a rash and negligent manner and, while trying to overtake a bus, got confused, lost control and banged the left front side of the pick-up truck beingdriven by Respondent No. 1 and fell onto thewater pipe kept at the side of the road, causing his injuries.

¶44Admittedly, the claimant examined two eyewitnesses. The Respondents examined no eye-witnesses. Still, the evidence of AWz and A\74 was sought to be discredited because they did not form part of the 'list of witnesses' submitted by the appellant and that, therefore, they were merely got-up witnesses.

¶45The above reasoning, however, is misconceived because the claimant is not required to name every witness in the list; he is required only to name every witness he requires the assistance of the court to produce. If a claimant believes he can secure the presence of a witness he wishes to examine, he need not include such name/s in the list of witnesses. In any case, only on this ground, the eyewitness testimony could not have been rejected. Page 19 of +r 12Ih FEBRUARY 2024 t

¶46ln Mange Ram u Bdj Moltanll, the Hon'ble Supreme Court was seized of an appeal in an election petition, where the High Court had disallowed the examination of 54witnesses on the ground that their names had not been part of the list of witnesses. The procedure in an election petition is also governed by the Code of Civil Procedure, 1908, subject to the provisions of the Representation of People Act, 1951, the Apex Court held that where the parry wants the assistance of the court to procure the presence of a witness on being summoned through the court, it is obligatory on the parry to file the list with the gist of evidence of witness in the court as directed by sub-rule (1) of Rule I and make an application as provided by sub-rule (2) of Rule 1. But where the parry would be in a position to produce its witnesses without the court's assistance, it can do so under Rule l-A of Order 16, irrespective of whether the name of such witness is mentioned in the list.

¶47Therefore, the evidence of A'W2 (Babyn Rodrigues) and A\f4 cannot be discredited or discounted because their names were not on the list of witnesses. A'W2 has given evidence that he knew the Appellant since the accident occurred on 23.04.2003 at about 3:00 PM at Nagzar Bhoma. On the day of the accident, while Page 20 oi 4l 11 (r9s3) 4 SCC 36 ? 206-EA-46-2023.DOCX proceeding from Usgao to Panaji by car to his sister's place, being driven by Eusebio Fernandes, he saw that the claimant was riding the scooter bearing No. GA-01-K-5585 ahead of his vehicle, and at that dme, the driver of the pick-up, whilst overtaking another vehicle, dashed against the Appellant's scooter on his left side and dragged him towards his side. This corroborates the Appellant's version of events.

¶48In cross-examination, A\72 stated that he did not know the Appellant before the accident. That the Appellant was riding towards Panjim about one meffe from the left edge of the tarred road, and that after the dash, the pick-up was on its correct side of the road, i.e. on the left-hand side of the road as one proceeds from Panaji towards Ponda. He also stated that the scooter was about three meues from the pick-up after the impact. He has also denied the suggestion that the Appellant dashed the pick-up and fell on the pick-up's left side. A\f2 also states that he, along with others, helped the Appellant and placed him in the car so as to take him for medical ffeatment. He has also denied the suggestion that the driver of the pick-up took the Appellant for medical treatment. He has also denied the suggestion that he is deposing in the Appellant's favour as he is his friend. A\72's evidence has not been dented in cross-examination. Page 2l of 4l >

¶49A\f4 (Sanjay Naik) has deposed that on the day of the accident, he was waiting for a bus to return to Ponda, his place of residence, after leaving the house of his relations, which is about a hundred metres away from the place of the accident. He deposed that the Appellant was riding a scooter proceeding towards Banastarim. He has also deposed that the Appellant was almost two metres inside the road if one proceeded from Ponda to Banastarim. At that dme, a tempo came driving from the Banastarim side towards Ponda, and after overtaking a bus, hit the Appellant on his Ieft-hand side and dragged him towards his left-hand side.

¶50In A\74's cross-examination, he stated that he did not remember the day of the week but that he remembered that it was

23.04.2003 and that he had taken leave to go to his friend, Suman Gaude's house, which was around 100 metres from the spot of the accident. He stated that he did not have any relations at Bhoma but that his friend Suman Gaude lived there and that he had come up to the road to drop him. He stated that after he crossed the road, he was waiting for a bus, and if one proceeds from Banastarim towards Ponda, he was standing on the left-hand side of the road, about 5 metres from the accident spot.

¶51He stated that the accident occurred immediately after the bus stop and that when he first saw the Appellant, he was maybe two to three metres away from where he was standing. He has Page z2 of +t I2th FEBRUARY 2024 D stated that the Appellant was wearing a helmet; he has denied the suggestion that the Appellant was overtaking a bus and, in the process, went onto the other side of the road and dashed the Pi.k-up following which the appellant went and hit the pipes which were kept on the left side of the road as one proceeds towards Ponda, he has also denied the suggestion that after the scooter dashed the pick-up, the pick-up stopped then and there. He has also denied the suggestion that he was falsely deposing to help the Appellant get compensation. Ag"ir, A\74's evidence has also not been significantly dented in cross-examination.

¶52Mr Netravalkar may be correct that the Panchanama secured under the RTI Act should not be brushed aside; however, the question of any contradiction in the Panchanamas and sketches produced by the Appellant and the Respondent No. 3 was required to be answered by R\72 (Yeshwant Gawas), who was best suited to answer such a question given he was the ASI who conducted the Panchanama at the spot of the accident. In his cross-examination, however, on being shown the Panchanama and sketch at Exht.29 Colly (produced by the Appellant) identified his signatures thereon and stated that he prepared the Panchanama and sketch; he also denied the immediately following suggestion that he had been deposed falsely; the Thibunal has ignored this aspect. Page 23 ol 4l l

¶53It is also relevant that the Panchanama and sketch produced by the Appellant was admitted with consent and that Respondents had not objected to the Panchanama and sketch produced into evidence by the Appellant at the first instance, and that this plea of manipulation was only raised subsequently. In Orienal Insurance Co. Ld. u Premlata SltuHalz, the Hon'ble Supreme Court has held that if the objection is not raised and the document is allowed to be exhibited/marked, then one cannot be permitted to turn around and raise a contention that the contents of the documents have not been proved and should not be relied uPon. Premlata ShuHa (trprr)was also a matter concerning a claim Petition under the M.V. Act.

¶54As such, the panchanama produced by the Appellant should have been considered; however, the tribunal has erroneously disbelieved the Panchanama and sketch at Exh. 29 Colly in favour of Exh. li4lColly. Further, the endorsement of the PI stating that a 'pure accident summary' was recommended was given undue weightage by the tribunal given that the PI was never examined; therefore, such endorsement could not have been relied upon by the Tbibunal to conclude that the Panchanama at Exh. 29 Colly had to be disbelieved, or that there was no negligence on the Part Page 24 of 4l t2 (2007) 13 scc 476 t 206-EA-46-2023.DOCX of Respondent No. l. Be that as it may, the case of the Appellant does not rest on the Panchanama and sketch which is not substantive evidence by itself,

¶55In R\71's cross-examination, he stated that though there is no bus stop on the left-hand side of the road if proceeding towards Ponda, people wait to board a bus there and that buses stoP there for the same. This lends credence to A'W4 evidence that he was standing near the accident spot awaiting a bus. He stated that the width of the road at the time of the accident was four and a half meues and that two vehicles could cross each other at the same time. However, the Panchanamas and sketches show the road was

6.80 metres wide. He has also admitted that there is an upward slope if one proceeds from Ponda towards Banastarim, that there is a certain height. He also admitted that if a Person overtakes any vehicle while coming from Banastarim to Ponda, one cannot see what is coming from the front, i.e. from Ponda towards Banastarim.

¶56One has to be more careful than usual driving a pick-up, a large vehicle plyrng downhill. Indeed, there is a greater degree of care and caution that one needs to exercise so as not to cause a mishap, especially when, admittedly, one cannot see oncoming traffic properly. Both A\f2 and A\74, who are independent witnesses, have cogently and coherently deposed as to how the Page zS of lt 12Ih FEBRUARY 2024 ? driver of the pick-up, Respondent No. 1, caused the accident by tryrng to overtake a bus, thereby striking the Appellant's scooter in his lane and dragging him into the Respondent No. 1's lane.

¶57Therefore, based on the standard of preponderance of probabilities, which is the standard that is to be applied in a matter of this nature, on a holistic consideration of the evidence, it stands proved that it was Respondent No. l's negligence that caused the accident, which severely and irreversibly injured the Appellant. fu noted earlier, the evidence in such cnses must be evduated by applying the principles the Hon'ble Supreme Court explained in the abovementioned cases. The approach of the tribunals must not be to unnecessarily pick holes in the claimant's evidence. The tribunals must be conscious of the fact that witnesses are usually reluctant to get involved in police cases.

¶58Therefore, even point (B) must be answered in the Appellant's favour.

¶59In Sidram y. [.Inited India Insurunce Co. Ltd.13, the Hon'ble Supreme Court observed that determining the court's compensation is essentially a.very difficult task and can never be an exact science. Perfect compensation is hardly possible, especially in Page z6 ol +t B (zoz3) 3 SCC 439 12Ih FEBRUARY 2024 ? 206-EA-46-2023.DOCX claims of injury and disability. The court referred with approval to the observations in H. V'est & Son Ltd. u Sltepharda: "... money cannot renew a plrysical fiame tltat ltas been batered."

¶60The court noted that the principle consisrently followed by the Hon'ble Supreme Court in assessing moror vehicle compensation claims is to place the victim in as near a position as she or he was before the accident, with other compensatory directions for loss of amenities and other paymenrs. Severd decisions have stated and reiterated these general principles (See Gouind Yadav v New India Insurance Co. Ltd.t5).

¶61Further, it is now a well-settled position of law that even in cases of permanent disablement incurred due to a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well.

¶62The Appellant has produced on record a salary certificate from T\ Fort Aguada Beach Resort as proof of income, showing that he was paid Rs.4,0001-per month as remuneration for his services as an assistant cook. The same shall have to be taken as the 14 (t964) AC 326 rs (2011) 10 scc 683 Page 27 ol 4l 12Ih FEBRUARY 2024 ? 206-EA-46-2023.DOCX Appellant's income in computing the compensation quantum. There was no challenge to this position. 6g. Besides, there is evidence of the Appellant's qualifications, experience and future Prospects, such as a Diploma in Hotel Management from Curtorim Educational and \Telfre Foundation School of Hotel Management, cerdficadon in elementary First Aid by MMTI, Mumbai, certification in persond survival technique, by Sea Scan Marine Services etc. There is ample evidence about the medical expenses already incurred and that are likely to be incurred in the future. In the first round, theThibunal had allowed the claim perition by its award dated 17 .12.2015. The comPensation amount was determined to be Rs.25,96,420.81/-. But this award was set aside, and the matter was remanded to the Tiibunal to reconsider mainly the issue of rashness and negligence.

¶64The loss of income/earnings must be calculated per the multiplier method, x Sidram (supra) notes. Sr. No. Head of Compensation Amount

¶1Income Rs.4,00Ol-per month

¶2Future Prospects 50o/o

¶3Adiusted income Rs.6,000/- per month

¶4Total Annual Income Rs .72,000 (i.e. Rs .5,000x 12)

¶5Multiplier 18 (Ag. 25) Page 28 of 4l ?

¶6Loss of Income Rs.L2,96,000 (i.e Rs.72,000x18)

¶65Therefore, the loss of income as a part of pecuniary loss must be taken as Rs. 12,96,0001-Medicd Expenses and Past Attendant charees

¶66The Appellant has produced medical bills on record. A\f/12 Shri Ratnadeep Kurtarkar, a pharmacist, had identified the bills. The total value of the cost of the medicine mentioned in the said bills at Exh.31 collyworla out to Rs.l1,320.88. Medical bills at Exh, 32 Colly are worth Rs.6,579.93. The claimant had to pay Doctors towards their fees. At Exh.86 colly are two receipts issued by A\W7, Dr. Sanjay Sukhthankar, stating that he had received Rs.12,000/- and Rs.2,600/- from the Appellant. The Appellant had spent a total amount of Rs.32,500.81 towards past medical expenses, which must be accepted.

¶67A\f5 has given evidence that he attended to the appellant for about four months and that he was paid Rs.24,600/-. His testimony was not shaken in cross-examination. Similarly, A\76, A\fS and A'$711 have given evidence that they had attended to the Appellant for a period of about a month, five months, and eight months, respectively, and that they were paid Rs.4,800/-, Rs. 29,0701-, Rs. 36,450/- respectively. Their evidence has not been Page 29 of 4l ? total past under this dented; the Appellant has also produced receipts for the above. fu such, this expenditure attendant charges come head would therefore be must be accepted, and the to Rs .94,9201-The sub-roral Rs.1,27,4201-.

¶68This is a total disabiliry case, wherein A\710 (Neurologist-Dr Aaron De Souza) has assessed the disabiliry of the Appellant as

95.3o/o and that his condition is non-progressive and not likely to improve. In fact, A:S7'10, in his cross-examination, has deposed that the Appellant's condition actually worsened in 20L2 when he began. getting fits on accounr of his head injuries. Though he has been assessed at 95.3o/o permanent disabiliry, this redly is a case where, effectively, the functional disability is 1000/0. The Appellant was an assistant cook at a five-star hotel; such a field requires dexteriry long hours on one's feet, constant movement and the use of fine motor skills, all of which the appellant has lost the capacity for. Therefore, it would be correct to hold the functional disabiliry is 100%o. [See para 34,42 of Sidram (tuprr)

¶69The Appellant has required the assistance of assistants for some time now; going forward, this requirement will likely not change. The Hon'ble Supreme Court in Sidram (tuprr) while considering the future medical expenses in the conrext of disabiliry Page 3o of +r 206-FL-46-2023.DOCX due to paraplegia and 45o/o total disabiliry of a person requiring similar care, i.e physiothe rapy, nursing, considered that at a bare minimum, such expenses would amount to Rs' 1000 Per month' as such the court saw it fit determine future medical expenses thusly, 1000x12x18 = Rs.2,16,000, as the claimant was aged 19 years at the time of the accident, and arou nd 29 at the time when the matter was decided.

¶70In sanjay verma v Haryana Roadwayl;, the Hon',ble Supreme Court, while seized of a case wherein the claimant was paralysed due to a spinal fracture, observed that insofar as "future treatmenr" is concerned there was no doubt that the claimant will be required to take treatment from time to time even to maintain the present condition of his health further, though it is not beyond the powers of the court to award comPensation beyond what has been claimed (see Nagappa u Gurudayal singhtT, in the facts of that case that the granr of full compensation, as claimed in the claim petition i.e. Rs.3,00,000 under the head "future treatment", would meet the ends of justice'

¶71Here, however, no claim has been sought under this head; as such, in the interest of determining just compensation, it would be appropriate to hold the same to be Rs'3'00'000/- to enable the t6 (2014) 3 SCC 2rti 17 (zoo3) 2 scc 274 Page 3t of +t I2th FEBRUARY 2024 ? Appellant to get the medical attention he requires in light of the narure of his injuries, fits etc. The medical costs are on the rise' There is no improvement in the Appellant's condition' Some reasonable provisions are a must towards future medical exPenses' fu the Appellant has required medical ffeatment in the Past including, MR[, and CT Scan imaging' medication for his epilepsy, seizures, medication to maintain his quality of life such has analgesics for pain etc., as well regular medical check-ups to determine the care required to treat his chronic conditions' so shall they be required in the future, so as to at least maintain the qualiry of life the Appellant currently experiences. The Appellant has required physiotherapy in the past. The same shall be necessary going forward to maintain adequate mobility and strength given that his condition involves instabiliry while walking or standing' Furthermore, d.ue to the fact that he is supine for a significant period of time on account of his injuries and ailments, it is natural that his muscle mass will atrophy; here again, physiotherapy shall be cruciall8. The cost of all of this is not stagnant and grows with time; as such, the amount of Rs' 3,00,000/- is proper in the facts and circumstances of this case' 18 Marusic u, Narici M, Simunic B, Pisot R, Ritzmann R. Non_unifonn loss of muscle strength and atrophy during bed rest: a systematic review. J Appl Physiol (1985). 2021 lul 1:131(1):1e4-206. doil i6.iiizt"pplphysiol.00363.2020. Eptr,o 202r Mar ll. PMID: 337 03945; PMCID: PMC832s6 1 4' Page 32 ol 4l 206-FA-46-2023.DOCX

¶72ln Sidram (tuprd, the Courtobserved that in so far as this head was concerned, neither the Thibunal nor the High Court thought it fit to award anything. Furthet the evidence on record indicated that the appellant could not stand, walk, sit or bend his body or lift anphing heavy. It was not in dispute that the appellant would not be able to work in the same manner as he used to before the accident. That, indisputably, the appellant had suffered from paraplegia on account of the accident and required an attendant throughout the day. According to the claimant, the cost of keeping the attendant would be Rs.4500/- per month. However, the court ftxed it at Rs.2000/- per month. As a result, attendant charges were awarded thusly Rs.2000/- x l2 x 18 = Rs.4,32,0001-, which may be adopted here. Therefore, the total under this head would be P.s.4,32,000/-. Litieation charses

¶73The accident occurred in 2003, the claim petition was instituted in 2012, and as of 2024, twelve years have been sPent litigating this claim, the Hon'ble Supreme Courrin Sidram (trprr) after considering that ten years had been spent litigating the case therein including an SLB saw it fit to award Rs.50,0001-after considering the case law on the subject. Here, though the time spent litigating the claim has been greater, only the first forum of Page 33 of ar , 206-EA-46-2023.DOCX appeal has been moved. Therefore, fixing the litigation expenses as Rs. 30,000 would be aPProPriate' Loss of conveyance

¶24ln Ayush u. Reliance General fnsutance Co. Ld.le, tlrc Hon'ble supreme court observed that dte leatned Tribunal had rejecrcd dte claim of taxi expenses for the reason that the taxi driver had notbeen produced. The Court noted that it is impossible to produce numerous taxi drivers. Stitl further, the Tiibunal should have realised the condition of the child, who had complete sensory loss in the legs. Therefore, if the child's Parents had taken him in a tani, that was probably their only option. Accordin gly, asum of Rs' 2,00,000/- was awarded as conveyance charges'

¶75Here, the Appellant has produced taxi receipts to the tune of Rs. 7,800/- the same must be accepted' However' the appellantwas also taken to Apple Hospital and Research Centre in Kolhapur; as such, it would be proper to affix the total amount under this head as Rs.50,000/-, considering the various times the Appellant has required ffansPort to and from hospitals' imaging centres' and Doctors'offices. Page 34 of 4l Le (2022) 7 scc 738 Non-Decuniary exDenses

¶76The Appellant has sought Rs.2,00,000/- in the form of compensation under the head ofpain and suffering. In Diuisional Conroller, KSRTC u Malzadeua Shett'0, the Hon'ble Supreme Court held that a person not only suffers injuries on account of an accident but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. \7hile fixing compensation for pain and suffering as also for loss of amenities of life, features like his age, marital status and unusual deprivation he has undertaken in his life have to be reckoned.

¶77In Sidram (Suprr) the Hon'ble Apex Court held that pain and suffering would be categorised as a non-pecuniary loss as it is incapable of being arithmetically calculated. Therefore, when compensation is to be awarded for pain and suffering, special circumstances of the claimant have to be taken into account including the victim's age, the unusual deprivation the victim has suffered, the effect thereof on his or her future life. Page s5 of +t 20 (2003) 7 scc L97 12Th FEBRUARY 2024 206-EA-46-2023.DOCX

¶28In R.D. Hattangadi u Pest Control (India) (P) Ltd.2I, while discussing this aspect held that it is really difficult to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, tlre object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. Further, when compensation is to be awarded for pain and suffering and loss of ameniry of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration.

¶79The Appellant was a young man in the prime of his youth, the unfortunate accident has irrevocably changed his life for the worse, he now requires the aid of attendants to conduct ordinary Page 36 ol +t 2L (Legs) 1 SCC ss1 I2th FEBRUARY 2024 ? bodily imperatives, he also suffers from fits. The initial injuries recorded in the 'Hurt Certificate' issued by Goa Medical College, which has been produced in evidence by the Appellant include a head injury,laceration, ecchymosis of the left eye, cerebral oedema, multiple contusions in bilateral parietal region, a depressed fracture on left frontal bone and subdural haemorrhage, as well as another laceration on his left thigh. A\f3 has given evidence regarding the same and also stated in cross-examination that the appellant was unable to speak at that point in time. He also suffers from epilepsy as a result of the accident, evidence regarding this was given by lN/7, and that he was under medication for the same (Dilantin) and that he was operated upon, undergoing an extraction procedure. A\f9 has deposed that after the accident the Appellant was admitted for a total of 49 days at the hospital, that the CT Scan revealed multiple injuries to the brain and skull. Even when the patient was discharged eventually, he was not fully conscious, he could not stand or sit properly, nor could he speak. In cross-examination, A\79 stated that in order to medically classi* ^ person as fully conscious his Glasgow Coma Score should be 15, and that the time of admission the Appellant's GCS wx 4 and that it was 9 at the time of the discharge. His disabiliry now stands at

95.3o/o; there is evidence on record showing that the appellant does Page 37 of 4l not have conrrol over his bowel movements and that he requires aid in bathing, eating, etc. gti. The Appellant had previously lost his father; he is cared for by his aged mother; his future as to who shall care for him is also uncertain. considering the totality of circumstances' it is appropriate to grant the comPensation sought under this head' which is determined at Rs.3,00,000/-' Loss of Marriage ProsPects-8l.Sidram(supra),afterconsideringcaselawonthesubject deemeditappropriatetodeterminethecomPensationunderthis head, at Rs.3,00,000/-. Similarly, in this case, the Appellant also a youngmanof25atthetimeoftheaccidenthas[ost,inall likelihood the opportunity to get married. fu such Rs.3,00,000/- would be required to be determined under this head' Loss of Amenities S2.lnRaiKumatuAiayKuma?2'theHon'bleSupremeCourt held that a person is not only to be compensated for the physical injury but also for the loss he suffered due to such iniury' This means that he is to be comPensated for his inabiliry to lead a full life, to enjoy those normal amenities which he would have enjoyed Page 38 of +r 22 (2011) 1 scc 343 I2.h FEBRUARY 2024 but for the injuries, and to earn as much as he used to earn or could have earned. g3. Under this head, it would be appropriate to determine the compensation as Rs.1,00,000/- given that the Appellant was 25 years old at the time of the accident and also considering the nature of injuries suffered by him and the extent of his disability'

¶84Just compensation, considering the totality of the circumsrances holistically will need to be calculated as under: g5. Therefore, issue (C) shall have to be answered in favour of the Appellant by determining the compensation payable at Rs Page 39 of nr Amount (in Compensadon Rs.12,96,000 Loss of earning due t disability Rs. 1,27,420 Medical exPenses an attendant charges Rs.3,00,000 Future medical exPenses Rs.4,32,000 Attendant charges Rs.30,000 Litigation charges Rs.50,000 R.i-bursement fo conveyance Rs.3,00,000 Pain and suffering Rs.3,00,000 Marriage ProsPects Rs. 1,00,000 Loss of amenities Rs.29,35,4201-12Ih FEBRUARY 2024 29,35,420/-. This amount will carry interest @ 60/o Per annum from the claim petition date till effective payment.

¶86For the above reasons, this appeal is therefore partly allowed. Accordingly, the impugned judgment is set aside, and the Respondents are held joindy and severally liable to Pay the Appellant the compensation amount of Rs.29,35,4201-together with an interest rate of 60/o per annum from the date of institution of the claim petition till the date of actual payment.

¶87This appeal is disposed of by making the following order: (") First Appeal No.45 of 2023, in Claim Petition No.49l2012, is pariy allowed. The Respondents are directed to joindy and severally pay to the Appellant a sum of Rs.29,35,4201-together with interest at the rarc of 60/o from the date of institution of the claim petition till the actual Payment;

(b) The Respondents, including in particular the Respondent No.3 - Insurance Company, must deposit this amount in this court within two months from today after giving due intimation to the learned counsel for the Appellant; (.) Upon deposit, the Appellant would be entitled to withdraw the said amount after furnishing identity and bank Page 40 of 4r 12Ih FEBRUARY 2024 v details. Registry to ensure that the amount is directly transferred to the Appellant.

¶88The Appeal is allowed in the aforesaid terms. There shall be no order for costs. f ' ,v.r v M. S. SONAI(,J. Page 4l of 4l 12Ih FEBRUARY 2024 SUCHITRA NANDAN SINGBAL Date: 2024.04.29 16:23:33 +05'30'

{ Rahul/Suchitra IN THE HIGH COI.JRT OF BOMBAY AT GOA FIRST APPEAL NO .46 OF 2023 1. MR. OSWALD CALDEIRA, Son of Francisco Caldeira, occuPation assistant cook, Presertly unemployed, resident of H. No. LL6, JaYcee Nagar, Ponda around 39 years of a1e, Goa, represented by mother as a natural guardian, SMT. CLARA EUGENIA CALDEIRA, daughter of Late Bernardo Dias, about 80 Years in t1e, resident of H. No. LL6, JaYcee Nagaq Ponda - Goa. ... APPELLANT Versus 1. DEVANDRA NAIK, Son of GanPat Naik, resident of Torshem, Naikwada, Pernem Goa. 2. M/S. V. S. DUKLE AND SONS, Business concern of Mr. Dukle, having their Office at Mala, Panqi- Goa. 3. UNITED INDIA INSURANCE COMPANY, A ComPanY under the relevant provisions of Indian Companies Act, having their Office at Znd Floor, Mascarenhas Buildirg, M. G. Road, Panaii - Goa. ... RESPONDENTS MrJatin Ramaiya, Advocate for the Appellant. Mr A.R.S. Neffavalkar, Advocate for the RespondentsNo * lr2 anD3" C.err tgtltoas cE.l-.$ O\Lt- 6g pe-r<- a cti.r )kI . eA" 6h, 2b4, Page t of +r r q rncr+ 1r)o'rr S r\za-1, LD. 206-EA- 46-2023.DOCX CORAM: M. S. SONAK,J. Reserved on: I't FEBRLJARY 2024 Pronounced onz lr2m FEBRLJARY 2024