Joao Cabral vs Smt. Mira Namdev Naik and others

H. Suresh, J.—The appellant was riding his motor cycle No. GDD 4073 on July 13, 1989, at about 9 p.m. near the bus stand of Vasco-da-Gama. While he was so riding, he knocked down the deceased, Namdev Naik, the husband of respondent No. 1 and father of the other respondents. The said deceased, Namdev, died in consequence of the injuries sustained by him in the accident. The respondents preferred their claims before the Motor Accidents Claims Tribunal, South Goa, Margao. In fact, they made two applications, one u/s 166 of the Motor Vehicles Act and the other u/s 140 of the Act for compensation of Rs. 25,000 on no fault claim basis.

The petitioner contended that his motor cycle had not at all touched the deceased. According to him, he was driving the motor cycle in the semi-circle at the traffic junction in front of the court building of Vasco-da-Gama. He met some of his friends, he spoke to them for a while and, thereafter, went, towards the east. He saw the deceased running after the 9 o''clock bus proceeding to Panaji that had already crossed the junction. On seeing the deceased running, he slowed down his vehicle. Within a few second, he saw that the deceased had fallen on the road and in order to prevent running over the deceased, he applied brakes, as a result of which the vehicle skidded and he fell down with his vehicle over him at a distance of about 6 metres away from the place where the deceased had fallen. The vehicle was not insured. The learned judge adopted the procedure as contemplated under rule 18 as amended and, by relying on certain documents, made an award in the sum of Rs. 25,000. Since the regular application u/s 166 of the Act was pending, he directed that the respondents shall execute a bond undertaking to return to the petitioner the amount of compensation paid to them if, at the end of the trial of the main application, it was found that the motor cycle was not involved in the accident at all.

In support of the order, the learned judge has relied on the post-mortem report as also the panchanama of the scene of accident and, on this basis, he has made the said award.

The fundamental basis for granting relief u/s 140 of the Act is that death of permanent disablement of any person has resulted from an accident arising out of "the use of a motor vehicle". In other words, if it is an admitted position that the motor vehicle was used resulting in the death or permanent disablement of a person, in such a case, to the extent provided under the provision, the Tribunal can award the amount without going into the question whether there was any wrongful act, neglect or default on the part of the person who was riding or using the said vehicle. In the present case, it is important to note that the petitioner has categorically denied that the vehicle had touched the body of the deceased. According to him, the deceased had fallen down first and he applied the brakes immediately and as a result of that his vehicle skidded and he fell down and the vehicle also fell down. Mr. Reis, appearing for the petitioner, points out that, in the postmortem report also, significantly, there are no injuries on the legs of the deceased showing thereby that there is nothing to say that the vehicle had in fact touched the deceased. The report shows that the deceased died due to the injury on his head which injury could have been caused by a fall also.

It is precisely to meet a situation like this that under rule 18 the law has provided that the Claims Tribunal shall follow the procedure of a summary trial as contained in the Code of Criminal Procedure for the purpose of adjudicating and awarding a claim under this Chapter.

In the present case, what the learned judge did was that he took note of the post-mortem report as also the panchanama but he has not taken into account the contention of the petitioner. He surmised on the basis of the post-mortem report and the panchanama that the petitioner''s contention was not acceptable. That he cannot do. It is for that purpose that it is necessary for him to enquire which he can do so by following the procedure of summary trial as contained in the Criminal Procedure Code. It is only where there is no dispute as to the user of the vehicle which resulted in the death or permanent disablement of the person, if an application is made u/s 140 of the ACt that the Tribunal can grant the same relying on the documents referred to under the said rule, viz., registration certificate of the motor vehicle, insurance certificate of policy, if any, a copy of the first information report, post-mortem certificate and the medical records, etc. But, if there is a dispute as above, it becomes necessary for him to have a summary trial.

In the result, it becomes necessary for me to have this order set aside and remand the matter to the Tribunal for the purpose of deciding this question as to whether the petitioner''s vehicle was involved in the accident or not.

I, therefore, pass the following order:

I set aside the impugned order and the award. I remand the matter to the Tribunal with a direction that the learned judge shall try, as a summary trial, the question whether the motor cycle of the petitioner was involved in the accident or not. Only after deciding that question, he may proceed to grant or not to grant the award on the basis of the finding that he comes to.

Parties are directed to appear before the Tribunal on November 12, 1990, and the learned judge shall dispose of this application subject to the order as mentioned above, as expeditiously as possible and, in any event not later than January 31, 1991.

Appeal is allowed. However, in the circumstances of the case, there will be no order as to costs.