ANTONIO MILAGRES FERNANDES Vs. PRAMOD VIJAYAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 3rd May, 1985, whereby the learned Presiding Officer of the Motor Accidents Claims Tribunal, Margao, dismissed an application for compensation filed under Section 110 -A of the Motor Vehicles Act by the original appellant Antonio Milagres Fernandes.

(2.) THE said application was filed pursuant to an accident that occurred on 17th April, 1982 at Navelim and as a result of which the original appellant sustained serious injuries which made him unconscious for a long period of time. The case of the original appellant was that he was standing with his cycle by the roadside at Navelim when a motor cycle driven by the first respondent came to the place with two pillion riders and dashed against the appellant who, as a result, was thrown in a ditch and became unconscious. On the basis of these facts, the original appellant claimed a compensation of Rs. 27,000/ -.

(3.) BEING aggrieved the original appellant filed the present appeal on the ground that the trial court has erred in dismissing the petition on the ground that the rash and negligent driving of the motor cycle by the first respondent has not been proved. Mr. Kantak, the learned counsel appearing for the original appellant, elaborating the above grounds of the appeal and after taking me through the evidence in detail, submitted that there is no doubt that the appellant ought to have been more careful while crossing the road with his cycle to proceed to Sirvodem. The road leading to Sirvodem was on the right side of the appellant and the motor cycle was coming towards Margao on its own side. Therefore, undoubtedly, it was the duty of the appellant to be careful but the place where the accident occurred has a clear visibility for a long distance since the road in that place is straight. Therefore, the respondent No. 1 had the last opportunity of avoiding the accident since admittedly there was a street light in the place and consequently, the original appellant must have been seen by the motor -cyclist. There was no other traffic at the time and as such, the first respondent could have avoided the accident either by reducing the speed of his motor cycle or by taking his vehicle to his right side and avoiding the collision with the cycle. The learned counsel further brought to my notice that the panchanama of the scene of the offence shows that the impact of the motor cycle was with the rear wheel of the cycle, a circumstance that impliedly shows that the cycle was already about to enter the side road leading to Sirvodem. In these circumstances, according to Mr. Kantak, the doctrine of last opportunity was attracted and consequently, the learned Judge ought not to have dismissed the petition. Reliance was placed in support of this submission on Jang Bahadur Singh v. Sunder Lai Mandal 1958 ACJ 154 and Municipal Corporation of Greater Bombay v. Govind V. Pethe 1985 ACJ 51.