SHARDAGAIKWAD Vs. ALLEN GOES

JUDGEMENT

(1.) IN this First Appeal filed under Section 173 of the Motor Vehicles Act, claimant challenges the Judgment and Award dated 07.10.2008 delivered by Presiding Officer, Motor Accident Claims Tribunal -III, South Goa, Margao, in Claim Petition no. 144 of 2007. The Motor Accident Claims Tribunal has dismissed the Appellant's Claim Petition.

(2.) THE contentions of Appellant before Motor Accident Claims Tribunal was that while walking on foot towards the bus stop on 10.09.2006 on the road between Quepem to Tilamol near Kushavati Bridge, a motorcycle with registering no. GA -02/P -4584, came rashly and negligently on wrong side and dashed against her. She fell down and suffered fracture injury. The Respondent no. 1 was the driver, the Respondent no. 2 is the transferee -owner while Respondent no. 3 is the insurer of the vehicle. The Respondent no. 4 is the original owner of that motorcycle. The claimant claimed a total compensation of Rs.2,27,000/ - which included demand of Res.10,000/ - towards medical expenses, Rs. 2,00,000/ - for permanent disability and Rs.2,000/ - towards transport, Rs.10,000/ - towards pain and suffering and Rs.5,000/ - towards future medical expenses.

(3.) ADVOCATE Shri S. S. Kakodkar, appearing for the claimant - Appellant has submitted that the Motor Accident Claims Tribunal should have applied yardstick of preponderance and pleadings should have been accordingly construed properly. According to him, the accident spot is not in dispute. The word "wrong side" or "correct side" need to be understood in the background of the facts and the fact that the motorcycle driver was convicted also needs appreciation. He has taken the Court through relevant evidence to show that the accident tool place on katcha side of the road on right hand side while proceeding from Quepem to Tilamol. The claimant was proceeding towards Tilamol on katcha portion on right hand side and Respondent no. 1 came in opposite direction i.e. he was proceeding from Tilamol to Quepem. He contends that the accident was witnesses by the husband of the claimant as also one eye witness and both have been examined. He also invites attention to the evidence of Head Constable who has investigated into the accident. He submits that as the accident has taken place below the tarred portion, the motorcycle has entered on wrong side and dashed against the pedestrian who was on the correct side. He submits that the Motor Accident Claims Tribunal has failed to appreciate these facts.