IN THF HIGH COURT ICATURE AT BIL CI-II-IATTISGARH MisyxApeal No. gab /2002 x ‘ If, ‘ APPEAL U/S 173 OF THE MOTOR VEHICL ACT, 1988 (Appeal Valued ,Wf’ at Bs.6,00,0(19}-r Appellant Non-Applicant N0.2/fii/Ianager, The New India _ Assurance Co.Ltd., Tara Complex, G.E.Road, " Power h0use,Bhilai Tahsil & DisttzDurg (CG) . VERsUS Respondent No.1. MtBRadhamma W/o. Late Claimant No.1 f/ ‘“ R.G. Nair Aged about 45 years, R/o. Block No 4C/13 Sector-8 Bhilai Tehs11 & Distt Durg (CG) Respondent No.2 Ca/Hl: Sree Vldhya D/o Late R.G Nalr Claimant No.2 ' / aged about 18 years, res1dent of BloWIC/B Sector-8 Bhilal, )ehsd & dist durg (CG) Respondent No 3 ,s: : Dav1d S/o Devdanam aged about Non-Applicant N ,L~ J 58 years res1dent of Qtr No 4D Road No 13 See—8 Bhilai Nagar Tahsll & Dist Durg (CG) «)9 B , HIGH COURT OF CHHATTISGARH. BILASPUR i DB: HON’NLE Dr I. M. QUDDUSI 85 HGN’BLE G. MHVHAJ3DDHN, JJ M. A. No. 22612002 APPELLANT: Manager, Th6 New India i‘ Assm‘axice Company Lui. % Vs. REspoNbENTs: Smt. B. Raahamma & others u . Misc. APPEAL UNDER SECTIQN 173 (3F THE MOTOR VEHECLES ACT, 1983 Amieaxance: Mr. Pankaj Agrawal, counsel for the appellant. None for the respondants, though served. ORAL ORDER (16.12.2011; Per LM. gunnusi, .L 1. This aypeal has been med. by the Insurance Company againSt the impugned; award datecl 17.09.1997 passed by the learned II Add}. Motor Accident Claims Txibunal Durg, Distt. Durg in so far as it has fastened liability upon the apyellant. In fact, two claim petitions an’sing out of the same accident were decided by common award, which were registered as Claim Case Nos.88j 1998 & 89/ 1998. The instaxit appeal has been filed against the awald made in Claim Petition No.89] 1998. 2. Brief facts of the case as per the version of the claimants are that G. Satish Kumar (deceased) who was working as Railway Guard in Qajipet (Andhra Pradesh) came to Bhilai to meet his mother and sister. Respondent No.3 namely David was his neighbor and was residing in Qr.No.4, Sector 8, Bhilai Nagar’ f J r/ F On 17.09.2007 G. Satish Kumar alongwith his nephew Vsnu (deceased) went on Scooter bearing Regn.No.M.P.24H/2707 belonged to respondent No.3 to bu‘ng medicines for respondent no.3. While driving the scooter, Satish Kumar lost his control over the vehicle and dashed the divider of the road; as a result of which, both Sau'sh Kumar and his nephew Venu sustained l grievous head injuries and died during the course of treatment in; Sector—9 Hospital, Bhilai. The deceased was aged in between x . 28 — 30 years and was earning Rs.7053/ — per month by working as Guard in Railways. The claimants i.e., mother and sister being dependents] legal representatives have filed claim petiu’on u/;s 166 of the Motor Vehicles Act, 1988 (for short “the Act, 1988”) for the award of a total compensation of Rs.83,58,352/ - on various heads. The learned Claims Tribunal has held that while driving the scooter by G. Satish Kumar, the vehicle became uncontiolled and dashed the divider of the road, as a result of which driver Satish Kumar and Venu Narayan who was sitting on the Scooter both died and the claimants are entitled to get a total compensation of Rs.6,00,000/ - with interest @ 9% per annum. 4. We have heard learned counsel for the parties and have also gone through the records. 5. The Court below has awarded the compensation by making an interpretation of provisions of sub-section (1) of Section 165 of the Act stating that the words “death or bodily injury caused due to accident arising out of use of motor-vehicles” have been used but no where it has been mentioned therein about “the rash and negligence driving of the vehicle”. Therefore, the Tribunal held that even if the accident had occurred on account of the negligence of driver (deceased) in that case also, the Insurance Corjnpany is liable to pay compensation to the legal heirs 0% the deceased as the question of negligence is irrelevant in that res‘pect. We do not agree with the inteqaretation of Section 16§(1) made by the learned MAC’I‘. A compaxative study of sections 163-A and section 165(1) would show that in section 163§A.it has been specifically mentioned in sub—section (2) that the negligence of the victim would be ignored but in section 1 65(1),this has‘not been mentioned. Therefore, in a claim petition filed u/ s 166 of the Act, the negligence of the driver is to be proved and if the driver died due to his own negligence, his legal heirs would not be enu'tled to get compensation. Further in Second Schedule appended to section 163-A of the Motor Vehicles Act, the maximum annual income has been mentioned upto Rs.40,000] — and therefore the decision of three- judges Bench of Hon’ble the Supreme Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd., Baroda (2004) 5 SCC 385 is relevant here, wherein in paragraph 67 disagreeing with the preposition laid down in Oriental Insurance Co.Ltd. Vs. Hansrajbhai V. Kodala and others, [2001) 5 SCC 175 , it has been held as under: “67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000!— per annum shall ‘oe treated as a cap. In our opinion, the proceedings under Section 163-A being a social security provision, providing for distinct scheme, only thosc Whose annual income is upto Rs.40,000]- can taks the benéflt thsreof. A11 other claims are required to be determined in terms of Chapter XII of the Act.” In jview of the above discussion, we are of The oymion that the Tribunal has not conducted a proper enquiry as provided in Sections 168 and 169 of the Motor vehicles Act and Rule 226 of CG. Motor Vehicle the Rules 1994. It should have summoned the ‘pelice records and should have seen whether a technical inspection report of the vehicle was obtained by the police and Whether the accident had taken place due to technical defect or due to negligence of the driver and after determination of the said. question of facts, the matter with regard to award of compensation should have been decided. This has not been done in the instant case. Therefore; the matter requires reconsideration at the end of the Tribunal. Hence, we allow the appeal in part, set aside the impugned award and remit the matter back to the Tribunal for decision afresh in the light of the observations made above. The Tribunal shall summon the police records and as an explorer of truth shall conduct enquiry. Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the documents verified etc., and thereafter the Tribunal shall make the award afresh at the earliest. The records of the Tribunal shall be sent back without further delay. Since it is an old matter. it is expected that the Tribunal shall decide the matter / as early as possible preferably within a period of six months. /