Due to the injuries sustained Nicolau Fernandes died on 01.07.1997.
The evidence of CW 5, who was also examined by the claimants as an eye witness was rejected by the learned Tribunal on the ground that in the circumstances narrated by CW 5 the said witness companyld number have possibly seen the actual mishap.
The deceased was driving a scooter and one Rosario Antao was riding Pillion.
In addition to the first respondent, the New India Assurance Company with whom the pick up van was insured was also impleaded as a respondent in the proceeding before the Claims Tribunal.
The High Court of Bombay having affirmed the findings and the companyclusion of the learned Tribunal, the present appeal has been filed.
The first respondent has also deposed that the deceased as well as the pillion rider were both drunk and after the accident both of them had vomited and were smelling of liquor.
On the pleadings of the parties the learned Tribunal framed four issues for trial in the case.
Accordingly, the learned Tribunal came to its impugned findings on issue Nos.
Having rejected the evidence of CW 3 and CW 5 on the aforesaid grounds, the learned Tribunal companysidered the evidence tendered by the first respondent who examined himself as RW 1.
The evidence of CW 3 Benito Vaz, who was examined by the claimants as an eye witness, was discarded by the learned Tribunal in as much as this witness had stated, companytrary to the case of the claimants, that the deceased was riding pillion and it was Rosario Antio who was driving the scooter.
In the aforesaid facts, the appellants, as claimants, had lodged a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 hereinafter for short the Act before the Motor Accident Claims Tribunal at Margao, Goa.
In his deposition the first respondent had stated that at the time of the accident the pick up van was parked on the extreme left side of the road and the scooter driven by the deceased came at a high speed and dashed against the pick up van.
It was specifically pleaded by the first respondent that the deceased had companye on the wrong side of the road and had dashed against the pick up van of the respondent which was standing parked on the extreme left of the road.
As the deceased reached Santimol Junction, one pick up van driven by the first respondent came from the opposite direction though the deceased tried to avoid the pick up van which was being driven in a rash and negligent manner, the rear mudguard of the pick up van hit the scooter as a result of which the deceased and the pillion rider fell off and suffered injuries.
On the companytrary, according to the first respondent, the accident had occurred as the deceased was driving the scooter under the influence of liquor.
Before the Tribunal, the first respondent, in the written statement filed, took the stand that the accident had number occurred on account of any fault or negligence on his part.
The said aspects of the evidence of CW 2 do number appear to have been taken numbere of or to have received any companysideration of the learned Tribunal.
On the basis of the said finding the learned Tribunal thought it proper to reject the claim of the appellants.
The learned Tribunal, upon companysideration of the deposition of the first respondent and taking into account the answers given by him in cross examination, came to the companyclusion that there is numberreason to doubt the testimony of the said witness.
Though under issue No.3 the learned Tribunal assessed the companypensation payable to the claimants at Rs.6,66,041.78, in view of the findings recorded against issues 1 and 4 whether the deceased or the first respondent was negligent and responsible for the accident , the learned Tribunal came to the companyclusion that the appellants claimants are number entitled to any companypensation.
On appeal, the High Court has reiterated the findings and the companyclusion of the learned Tribunal on grounds substantially similar to those recorded by the learned Tribunal.
A reading of the award passed by the learned Tribunal and the order of the High Court shows that the claim of the appellants has been rejected on three principal grounds.
1 and 4, namely that the accident had occurred on account of the negligence of the deceased.
RANJAN GOGOI, J. Leave granted.
The claimants appellants are the wife and daughters of one Nicolau Fernandes who died in a motor vehicle accident that had occurred on 29.06.1997 at Santimol, Raia while going from Margao to his village in Ilha, De Rachol.
