'<^^ t' IN THE HIGH COURT OF TUDICATURE OF CHHATTISGARH AT BILASPUt M.A. NO. /o3& /2oo4 Division Bench APPELLANTS:- 1) ¥^/ ^w y^ ^°x ^" /^>' RESPONDENTS VERSUS •/ 3) 4) ^^ 2) Narmada Bai Aged 28 years Wd/0- Late Surit Kumar Kurre 2) Ku. Indu Kurre / Aged 10 years D/0- late Surit Kumar Kurre Pravin Kumar Kurre Aged about 5 years S/0- Late Surit Kumar Kurre Ku. Sandhya Kurre Aged about 2 years D/0- Late Surit Kumar Kurre Appellants no. 2 to 4 are minor Represented through natural Guardian Mother Smt. Narmda Bai Viz Appellant no. 1 All resident of Village- Dumardih P.S.- Dhumka Distt- Rajnandgaon (C.G.) M/S Pepsi Foods Limited Plot no.26, Urla Industrial Area Raipur (C. G.) < The New India Assurance Company Limited Through- Divisional Manager Divisional Officer, First Floor Thakkar Chambers, In front of Project Auto Mobiles G.E. Road, Power House Bhilai Distt- Durg (Chhatt'isgarh) MEMO OF APPEAL UNDER SECTION /L73 OF MOTOR VEHICLE ACT 1988 Y, G HIGH COURT OF CHHATTISGAKH. BILA8PUR DB: HON'BLB I.M. QUDDUSI & HON'BLB N.K. AGARWAL, JJ M. A. No. 1036 OF 2004 Vs. APPBARANCB: Mr. Vivek Ratihore, counsel for fhe appeUants. Mr. N.K. Vyas, counsel for the Respondent no. 1. Mr. Anand Kuiaar Gupta, counsel for respondent no.2. ORDBR (ORALl (20.10.2010) Per LM. OUDDUSI 1. This appeal has been i51ed by the claimaats agamst impugned award dated 31.08.2004 passed by fhe First Addl. Motor Accident Clamis Tribunal, Rajnaiidgaon in Claiin Case No.82/2003 dismissing fhe clami application. 2. Brief facts of fhe case as per fhe version of fhe clainiaat are fhat deceased Surit Kumar Kurre was workiag as Kerosene Oil Hawker, He was also doiag agricultural works as he and his brofhers werc ia join.t possession of 3 acres of agricultural laad ia viUage DuDiardih. Khurd. The niofher and fafher of fhe deceased have already expired. Therefore, fhe appeUaats are the legal representatives aad dependents of the deceased. Accordiag to ftie claiEnants on 27.05.2003 after seUing the Kerosene Oil, deceased Sunt Ram waa rctuniuig to his house io. Duxnardih. Khurd by cycle. At about 8 p.ra., in fhe night a Track bearing Regn. No.C.G. 04 APPELLANTS . [_ Nannada Bai aad ofhers RESPONDENTS M/ s, Pepsi Foods Liaiited aad anofher 4_^ ^. 3. Z.B. 1027 owned by respondent no,l, which was beBig driven by Vijay Kumar dashed Sunt Kumar, as a result of which, Surit Kumar has died. At the tmie of accident the Truck was insured by respondent no.3. The old number of the said Ti2ick was M.P.23-D.A.0083. On fhe date of accident, the deceased was sellmg fhe keiDsene oil, He kept fhe Kerosene oU drum. on fhe Rickshaw aad left it at the residence ofhis relative at a New Dhabha. Then he started retuming to his hoiae in Duniardih Khurd, At fhat time fhe driver of fhe ofiTendiag truck who driving rashly aad negUgenUy dashed Surit Kuniar in which Surit Kuixiar has died. Deceased Sunt Kuinar was earaiag Rs.3000/- per inonfh by seUing Kerosene OU. The claunaats have clamied a total coinpensation of Rs.12 lakhs by fiting application before the Tribunal. The leamed Tribiinal has dismissed fhe award on the groiiad fhat fhe claiaiaats have not proved fhat fhe accident had taken place with fhe vehicle ia question but the Tnbunal has failed to take iato consideration fhe adinission of fhe owner of fhe vehicle. In reply to Para-5 of fhe clabii appUcation, respondent no.l i.e. M/s Pepsi Foods Liauted has clearly stated ia Para 4 of its Written Statement fhat this fact has been adnutted fhat due to the use of Motor Vehicle deceased Sunt Kiiniar sustaiaed iajuiy and he died on the spot meaaiag thereby that fhe vehicle bearfag Regn.No,C.G.04 ZB/1027 has been iavolved ia fhe accident Respondent no. 1 has further stated fhat New India Assuraace Coinpaay Limited is solely responsible for paynient of coiapensation to fhe appeUants. ^..:.- 4. Once fhe fact has been adinitted fhe saaie need not be proved, thercfore, there was no question of fi'ammg of aay issue with regard to findiag offact that whefher fhe accident had taken place with fhe vehicle io. question or not. The Tribunal has totally ignored fhe same aad has wix)ngly arrived at a finduig fhat the vehicle ia question was not iavolved ia the accident aad thus fhe j5ndiag given by fhe Tnbunal is totatly perverse, Siace fhe Insziraiice Coxnpaay has taken a plea fhat fhe driver of fhe vehicle was not haviag a vaUd aad eflTective driving Ucense we are of fhe opiaion fhat the matter be decided by fhe Tnbunal afi^esh after providing opportunity to the parties conceraed to lead further evidence. In view of fhe above we aUow this appeal in part, set aside fhe impugned awaid dated 31.8.2004 aad reinit fhe xnatter back to the Tribunal wifh a direction fhat fhe claim petition shaU be decided aJ&iesh expeditiously after providiag opportunity to fhe parties conceraed to adduce further evidence if aay. The records of the Tribunal shaU be sent back forfhwith. No'order as to cost(s). Sd/- I.M. Quddusi Judge Sd/- N. K. Agarwal Judge Rao