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TL srr<iR) ^ ^i- snrorr sim? arcw? rrYTCffs- ^ STQ 45 f!'^, f^Tifr 'irenrfr :l-9, St- B^^, ?^ S°t-^55'T-l,fiMT| yr^T fwTi ^o-t". neritff q fsinT ^ i 5'.Ji. | ^Teq- qrfnff ' ^" 3W^ 3-^S yTCT ! 73 H'te'T %T$ST V^C a'ls'OT 3ffiTfTW li'te'r sife'^T ^mr 'sfwm, ?[,% CBT. ?ft. gfl ^TTT -^5 lTqi?m jiffl^ 240/2004/ ^ fV\V5 27/10/2004' -^ 4rfrn a'ftrf^k? ^ •f^es^^. . . . ^ , . 'r '- Eil2;iiiT"-"I,:;.l. .<-?*=aa»i HIGH COURT OF CHHATTISGARH. BILASPUR DB: Hon'ble I. M. QUDDUSI & Hon'ble MANINDR& MOHAN 8HRIVA8TAVA, JJ M.A. No,96 /2005 APPELLANT: National Insuraace Conipaay Ltd., & aaother Vs. RESPONDEN'ra: Smt. Indrawati & otfiers MISC. APPEAL UNDER SECTION 173 OF THEMOTOR VEHICLES ACT, 1988 Appearance: Mr. Shnkum.ar Agrawal, Sr. Advocate wifh Mr. Anaad Gupta, counsel for the appeUants. Mr. Amrito Das, counsel for fhe respondents 1 to 3. Per I.M.QUDDUS];, J, ORAL ORDER (04.05.2011) 1. This appeal has been filed by the Insurarice Conipany agamst fhe impugned award dated 27.10.2004 passed by ftie VIII Additional Motor Accident CIaims Tnbuiial (FTC), Dur^ (C.G) in Claun Case No. 240/2004 on the question ofUability as also quantuin. 2. The appeUant was granted permission u/s 170 ofthe Motor Vehicles Act to challenge the quaatuni. 3. Brieffacts ofthe case as per the version ofthe claunaats are ^hat on 24.1.2001 at about 11.30 p.m. deceased Lalta Prasad was traveUng in Jeep bearing Regn. No.M.P.24-G.C/ 0151. The said Jeep was goiag towards Durg with passengers. On ftie way at G.E. Road near Chandra Mouiya Talkies, one Metador bearing Regn.No.M.P.26-D/2180 which E. yy^. ''>^ ^ II 1 %^^/ @ was beiag driven by respondent ao.4 Banshirani Nu-malkar in rash aad negUgent manner dashed the Jeep of fhe deceased, as a icsult of which he sustained grievous uijuries aad died on fhe spot. At fhe time of accident, he was aged about 49 years. He was a partner in Motilal Brofhers Partnership Finn aad was eaming Rs.1,20,000/- per annuin. The claiinants beiag dependents/legal heirs have ffled claun petition for fhe award ofcompensation to the tune ofRs.19,50,000/- onvarious heads. 4. Learaed CIaiins Tribunal allowed fhe claim petition in part holding that the offending vehicle No.M.P.26-D/2180 dashed the Jeep No.24-G.C/0151 resiUtiag ia deafh ofLalta Prasad; there was no contributoiy negligence on the part ofdeceased as he was not responsible for the accident aad there was no breach ofconditions offhe Insuraace PoUcy. 5. Leamed counsel for the appeUaat has argued that the question of contributoiy negligence has not properly been. decided by the Claiins Tnbunal fhough issue was framed in this regard. In para 11 of the uupugned award fhe findiag has been given but fhat findiag is without conductmg aay proper enquuy. 6. We have perused fhe lower court records aad found fhat fhe spot inap prepared by the PoUce is not available aad discussion was inade by the CIaims Tnbunal to ascertain fhe position offhe vehicles as there was head-oa- coUusion. Eye witaess Bhukhaa Prasad (A.W.3) has stated ia his examination-ia-chief fhat fhere was head-on-coUusioa between the Metador aad Jeep in which the deceased was r^ y.'.^;',-rt,.>s-L ^i '^v.^'^"^ ^ ;i? IIA.-;^'.0?1 driver. In his cross-exanaiaation he has also adinitted fhe fact that at the place of accident, fhere was no tunung aad tlie accident took place on a straight road and the road is wide fhat 3 vehicles caa pass at a tmie. Therefore, fhe Tnbunal should have conducted proper enquuy as laid down in Rule 226 of the C.G. Motor Vehicles Rules, 1994 aud Section 168 of the Motor Vehicles Act, 1988 to ascertain as to whether or not there was negligence on fhe part of Jeep driver. 7. It has been provided iu Rule 226 of C.G. Motor Vehicles Rules, 1994 that fhe Claims Tribuiial shall obtaia whatever iafomiation and documents which inay be found necessary froia the police, luedical and ofher aufhorities and proceed to award the claioi whether fhe parties who were givea notice, appear or not, on the appointed date. Furfher we caruiot ignore fhe provisions ofsectionl68 ofthe Motor Vehicles Act, 1988 which provides fhat on receipt of an application for coinpensation inade u/s 166, the Claims Tnbuiial shaU after giviag fhe parties (including the iusurer) aa opportunily of betag heard, hold aa iuquiry iato fhe claiia and subject to fhe provisions of section 162 niay inake an award detenainiag fhe ainount of coinpensation which appears to it to be just. ~i8. - Further ia Stlf Sunuir -vs- AJay Kumar aitd onother decided on 18th October, 2010 an-d reported m IV (S010) Accident 8s CompensaUon Cfises 815 (SC), Hon'ble fhe Apex Court laid down vide Para-11 fhat Sections 168 aad 169 of ftie Act niake it evident that the Tribunal does not function as a neutral umpire as in a civU suit, but as aa active explorer aad seeker of trufh who is required to Tiold an inquiry iato the claiia' for determining fhe 'just conipensation. The Tnbunal should fherefore take an active role to ascertaia fhe true aad correct position so fhat it cau assess the 'just coiapeD.satioa'. 9. In view of the above, we are of ftie opinion that the question ofcontributory negUgence has not properly been decided and fherefore the inatter requires reconsidcration at the end of fhe Tribunal. The question of consideration of quaatum at fhis stage does not arise as we are iaclmed to reiuit the inatter to fhe Tribiuial. Therefore, this appeal is allowed iu part. The impugned award dated 27.10.2004 is set aside aad ftie inatter is reiaitted back to fhe Tribunal for decision afi-esh at the earliest. The Tribunal shaU conduct a proper enqiury regarding contributoiy negUgence in the niaruier tudicated above even if it deeins necessary to summon fhe poUce records, it will siimmnn theiu alongwifh the spot raaps to ascertaui tbe trufh. 10. Needless to niention fhat fhe parties shall be aUowed to amend the pleadiags, adduce further evidence, ffle docuiuents or get fhe documents verified etc., aad thereafter fhe decision shaU be taken afresh. The pardes shall appear before fhe Tribuiial on 15th of June, 2011. The records of flie Tribunal shaU be sent forthwith. No order as to costs. 11. We have observed that siuce long time the Claicas Tribuaals are not properly decidiag fhe issue of eontnbutory negMgence. In such cases, fhe spot inaps prepared by fhe ^ iavestigatmg officers are not being considered aad the Tribuaals are not conducting proper enquiries as provided ia law noted herein above. Therefore, we are of the opinion fhat a copy of this order sbaU be seat to all fhe District Judges of fhe State to circulate it to the Claiins Tribuaals so that iu future fhe issue of contributoiy negligence should be decided properly. Sd/- I.M.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge Rao