.^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC^J M.A. (C) N0. /S^?/2009 mls QSSI! APPELLANT .....^^ ^^y^'' '5^.^"" f-\ National Insurance Company Limited, Through : Branch Manager, Divisional Office- First Plate B-l, Taha Complex, Ring Road No.2, Priyadarshini Nagar, Bilaspur, Tahsil and District Bilaspur (C.G.) VERSUS RESPONDENTS :1 ....cxS^ .^t. ^^Y^:^e'Lt" ^^<"^/^ ^* /2^s^ ,r^r' ' t^' ^^ "1. 3. Vinay Kumar Sahu, S/o. Ganesh Prasad Sahu, ag.ed about 15 years, Minor , through natural guardian father Shri Ganesh Prasad Sahu, S/o. Shankar Lal Sahu, aged about 45 years, R/o. House No.W-62, Yadunandan Nagar, Tifra, District Bilaspur Madan Rai, S/o. Babulal, aged about 44 years, R/o. Through : Mulakraj Rishi Ward No.9, Greenpark Colony, District Bilaspur (C.G.), (Driver of VehicleTrailer No.C.G.-10/C-l645) Gulshan Rishi, S/o. Mulakraj Rishi, R/o. Mulakraj Rishi Ward No.9, Greenpark Colony, Biiaspur (C.G.) (Owner of Vehicle Trailer No.C.G.-10/C-1645) AWARD AMOUNT VALULATION OF THE APPEAL Rs.50,000/ .Rs.50,000/ ^^ MISCELLANEOUS APPEAL U/S. 173 OF THE MOTQR VEHICLE ACT. 1988 "- dis.>aiiWUtUtwasss ^^.?i(gS^'y-W*a*S! SW-;" ,^S£tS^3*t .v''^y^ys%, iS ^ %i 1 ^<% J "•..Ife.-^J' ^]nv \-"° Nationat Insurance Company Ltd. Bilaspur(CG) Vinay Kumar Sahu and another -"•'y - Present: Mr. Goutam Khetrapal, counsel for the appellanVinsurance company. Mr. OP Sahu,counsel for respondent No. 1. ORDER (Oral FtFi G. Minhaiuddin. J (27InJuly,2011) 01) This appeal has been fiied by the appellanUinsurance company against the award of Addltional Motor Accident Ctaims Tribunal, Bitaspur (in short "the Tribunal") dated 31st August, 2009 passed in Claim Case No.29/09, fastening the liabiiity to pay compensation upon the appeilanfinsurance company. 02) Brief facts of the case are that on 25.2.2008 respondent No.1 Vinay Kumar along with his friends was going to Ratanpur for picnic by blcycle. At that tirne, driver of Trailor bearing registration No.CG 10/C-1645 (hereinafter referred to as "the offending vehicle"), who was coming from Ratanpur, by rlving the offending vehicie rashly and negligently, dashed Vinay Kumar from wrong side in front of MIT! Gate at about 1.30 am. As a result, Vinay Kumar sustained grievous injuries over his head and biood started oozing. He aiso sustained injuries over his left palm, forehead, fracture of !eff knee bones. fracture of ankle bone and internai injury in the chest. Immediately after the accident, Vinay Kurnar was admitted in CiMS Hospital, Bilaspur in injured condition, where he remained tiil 26.2.2008. Thereafter, he w-as referred to Sector-9 Hospital, Bhiiai for higher treatment where he remained hospitalized from 26.2.2008 to 18.3.2008 and :i.—:SSS^^^^'7~S -«SS3iB.i.!.,...;.....,^(u^a3S-lS=-il 3- treated by Neuroiogist and Orthopedic. His neurologica! test C-'T' ~ . . . - .. • and^'^scan were conducted for the head injuries. Five stitches were made in the left hand palm. His left Seg was operated upon and rod was inserted as the bone had fractured. Plastering was atso done over ankle bone. Due to permanent disability in the ieft leg, treatment is continuing. tnjured Vinay Kumar was ihe student of Class-VII at the time accident. 03) Report of the accidenf was lodged on 25.2.2008 by the father injured Vinay Kumar in Police Station : Koni, whereupon Cr.No.25/08 for the offence punishable under Sections 279 and 337 of the !PC vvas registered against driver Madan Rai and after investiaatlon, charge sheet was fited ag^inst him in the concemed Court. 04) With the aforesaid averments, injured Vinay Kumar filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") ciaiming a total compensation of Rs.9,00,000/- under various heads. 05) Hcwever, learned Tribunal, after analyzing the evidence, oral and documentary, adduced before it, awarded a total compensation of Rs.50,000/- in favour of the injured/claimant with interest @ 7% per annum from the date of filing of claim petition till its realization, fastening the liability to pay compensation upon the appellant/insurance company. 06) Heard learned counsel for the parties, perused the lower court record (LCR) as also the impugned award. 07) Learned counse! for the appeiiant/insyrance company has contended that driver of the offending vehicle was not havin^ valid and effective. driving iicence, on the date of accident ind the licence produced by driver Madan Rai, on being verified, was found to be fake. He further contends that since there has been breach of terms and conditions of the insurance policy, therefore, the appellanVinsurance company cannot be held liable to pay compensation to the claimant. G~t 3^3S;^---1 •'AS^S""""'" ' ::-^''-<^::-..'.- ..... f /r^^A- A^ 1 \ f^ '"^l ^ ~v;^w&y ,^ '"-St^S^® -3 08) On behaif of the claimanVinjured, cross-objeciion under Order 41 Rule 22 of the CPC has been fiied for.enhancement of compensation. 09) From perusal of the LCR, it is )pe!iant/insurance company h-ad got the iicence of the driver Madan Rai verified from RTO Ofl'ice, from where a report was received to the effect that the said iicence is fake. The appef!an{/insurance company has aiso submitted the report of its investigator before the Tribunal, whfch is atso to the same effect. However, for proving the said report, the appeiianVinsurance company had neither examined any person from RTO Office, Jamshedpur, nor Administrative OTficer of the insurance company nor got the same exhibited. 10) On beh-alf of ciaimant Vin-ay Kumar Sahu, in addition to hirnself, his father Ganesh Prasad Sahu and Dr. Vijay Kumar Mishra, have been examined as AW-2, AW-1 and AW-3 respectively. 11) A disability certificate (Ex.P/1 4), issued by the District Medlcal Soard, has been filed by the dalmant, which has been got )roved through Dr. Vijay Kumar Mishra (AW-3), who has that on examination, he Tound 10% temporary disabiiity in the left ieg of the ciaimant and the certificate Ex.P/14 issued by fhe Medical Board is provisional. As such, from the disabiiify certificate Ex.P/14 and the statement of Dr. Vijay Kumar Mishra (AW-3), it Is not clear as to whether the disabiiity sfi!! exists or not, and whether the percentage of disability is with reference to the whole body or with reference to only a iimb i.e. ieft ieg. 12) In view of this, i am of the opinion that the malter requires reconsideration at the end of the Tribunal for determining the Tact in this regard by conducting proper enquiry, as contemplated under Sections 168 & 169 of Ehe Act, 1988 and Rule 226 of the CG Motor Vehicie Ruies, 1994, for the just and legitimate compensation. In this connection, the observations of the Hon'ble Supreme Court in SS3ZSS—E ^ ^ the of in be into consideration, in which the Hon'ble Supreme Court, in para-11 , has held thus: "Para 11 The Tribunal shou!d not be a sllent spectator when m< ^ A_^ 4,1 iflaro 10 ii medical evidence is tendered In and their effect, in particular the of permanent disabiiity. Sections 168 and 169 of the -Act make it evident that the •;>-.,sna! does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hotd an enquiry into the claim' for deterrnining the 'just compensation'. The Tribunal should therefore take an active role to the true and correct position so that it can the 'just compensation'. White dealing with person-al injury cases, the Tribuna! should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairmerit (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physic-al and functiona! disability. The Tribunat may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the exlent of permanent disabiiity in different types of injuries, in the case bf workmen. If a Doctor giving evidence uses technical medicai terms, the Tribunal ahould instruct him to state in addition, in slmple non-medical terms.'the nature and the effect of the injury. If a doctor gives evidence about the percentageof permanent disabyity, the l-.i:.'- .•i'lI^^^l^^^SSE.-.L^.' '5 t f>\ 13) 14) 15) 16) 17) 18) 19) Tribuna! has to seek ciarificafion as to whether such percentc of disabiiity 'ith reference to the who!e body or whether it is only with reference to a Eimb. If the percentage of permanent disability is stated with reference to a iimb, fhe Tribunal wi!i have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functiona! permanent disabiiity with reference to the whole body and if , so the percentage." In the result, the appea! is aliowed in part, the impugned aw'ard is set aside and the matter is remitted back to the Tribunai to decide the case afresh after giving opportun1ty-ot_^_ hearing to the parties, in the light of the observations made above, expeditiously, preferably within a period of three months from fhe date of receipt of copy of this order. Since the impugned award is being set aside and the matter is being remitted back to the Tribunai for reconsideration, the cross-objection filed by the ctaimant has become infructuous. He shall be at liberty to raise his cross-objection before the Tribunal at the time of reconsideration of the matter. mention that the parties shall be allowed to amend the pleadings, adduce further evidence, fiie documents or get the documents verified eto. and thereafter, fhe award shall be made afresh. Parties shail appear before the Tribunal on 5 September, 2011. LCR shall be sent No order as to costs. Certifiedcopy as per ruies. the Tribuna! without further delay. Sd/- G. Minhajuddin Judge w fF'