MICHAEL DESOUZA Vs. MICHAEL DESOUZA

JUDGEMENT

(1.) The instant appeal stands directed by the aggrieved respondent/appellant herein, against the award pronounced, upon, MAC Petition No. 32-N/2 of 2006, (i) whereunder, vis-a-vis, the compensation amount, as stood determined qua the claimant/respondent herein, the, apt indemnificatory liability thereof stood fastened, upon, him, (ii) whereas the claimant/respondent herein/cross-objector has preferred cross-objections, vis-a-vis, the impugned award, whereunder, he has sought reversal of the award, (iii) whereunder 50% deduction was meted, vis-a-vis, compensation amount determined qua him by the learned tribunal, on the ground of his not at the relevant time rather wearing, a, helmet, whereupon, hence he would rather hence suffer, a, disability less than the one as detailed in the apt disability certificate, borne, in Ex.PW5/A.

(2.) The prime argument, which is reared before this Court by the learned counsel for the aggrieved appellant, is, centered, upon, (a) the findings adversarial to the appellant herein rendered, upon, issue No.1, appertaining to the claimant sustaining injuries, owing to the rash and negligent manner of driving of the offending vehicle, by the appellant herein, rather being infirm. The counsel for the appellant herein, in making the aforesaid submission has canvassed that (a) with the Judicial Magistrate concerned, in his verdict, borne in Ex.RW1/A, acquitting the appellant herein, for, a charge under Sec. 279 of the IPC, and, his making observations therein qua it being a case of contributory negligence; (b) thereupon he submits that the evidence adduced by the claimant/respondent herein qua the relevant accident standing sparked, by, the rash and negligent manner of driving, of, the apt vehicle by the appellant, hence getting scuttled, besides waned, (c) rather evidence adduced by the claimant in propagation of his espousal qua the claimant/respondent herein while driving his scooter, his driving it rashly and negligently, (d) and his striking the afore scooter against the right rear of the parking light of the van, and, his thereafter getting perplexed, and, the afore scooter brushing against the tyres of the right side of the van, resulting in his losing his balance, and, his falling onto the road, whereafter, his sustaining injuries as reflected in the afore disability certificate, rather warranting meteing, of, credence thereto.

(3.) However, the aforesaid submission cannot be accepted, (i) as the findings recorded by the criminal Court, and, as embodied in Ex.RW1/A being not binding upon the Motor Accident Claims Tribunal, while trying a claim petition, rather it being incumbent, upon, this Court to analyse the credibility, of, the evidence as adduced in propagation, of, the claimant's claim. (b) Consequently, dehors the verdict of acquittal, rendered by the criminal Court, vis-a-vis, the appellant herein, this Court proceeds to fathom, the, comparative credibility of the evidence adduced by the claimant, and, by the respondent/appellant herein. PW-4, Chattar Singh, an ocular witness to the occurrence, while, stepping into the witness box, has supported the claimant's version, vis-avis, the relevant accident, by making disclosures, qua the appellant herein without adhering to the standards of due care and caution, (i) and, despite his being expected, to, from the mirror occurring in the van, to, hence sight the vehicles, coming from the rear, his negligently opening the door of the van, whereagainst, the scooter driven by the accused rather collided, (ii) and, in consequence thereof he fell onto the road, and, sustained injuries on his person, as detailed in the aforesaid disability certificate. The deposition of PW-4, as, comprised in his examination-in-chief, has, remained unscathed during the course of his cross-examination, hence, galvanizes immense vigour. The deposition of PW-4, an ocular witness to the occurrence. mobilises further corroboration, from, the prime, and, paramount evidence, comprised in Ex. Rx, exhibit whereof is a report of, the, mechanical expert, who carried, the, mechanical examination of the offending vehicle, and, who therein rather has rendered a clear echoing qua, the, occurrence of a dent inside the window, of, the front door, of, the offending vehicle. The afore occurrence, of, a dent inside the window, of, the front door, of, the offending vehicle, when hence, stands emphatically voiced in Ex. Rx, thereupon, an inference, is, filliped qua (I) the occurrence, of, a dent inside the window, of, the front door, of the offending vehilce, obviously being causable thereon, only upon, the appellant herein, despite, holding capacity, to, from, the mirror occurring inside the van, hence, sight the scooter, whereon the claimant was astride, (ii) whereas, in open breach of the standards of the due care and caution, his, opening the door of the van, thereupon, obviously hence leading the scooter whereon the claimant was astride, to rather collide against the front door, of, the offending vehicle. The afore firm evidence cannot be belittled either by EX.RW1/A, exhibit whereof comprises a verdict rendered by learned Judicial Magistrate concerned, nor by the evidence in repudiation thereto, as, adduced by the appellant herein.