IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC.APPEAL NO./ W^OF 2003 BivJsion Rl ••v i- 'V ;i ij ijs£'f^ g | APPELLrtNTS CLAIMANTS / / ^ y^\~y .^^r j^g-" -.••••'^^^" .-^y '^^" ^- Smt. Shantabai, Widow of Late Shri Sudbakar Thete, Aged about 48 years, Ku, Madhuri D/o Late Shri Sudhakar Thete,Aged about 30 years. Ajay, S/o Late Shri Sudhakar Thete, Aged about 26 years. Ku. Deepa , D/o Late Shri Sudhakar Thete, Agedabout 22 years. Ku. Kuraudini, D/o Late Sbri Sudhakar Thete, Aged about 19 years. Ku. Richa, D/oLate Shri Sudhakar Thete, Aged about 14 years.(Minor) Through Natural Guardian, Mother Smt. Shantabai Thete. The above named appellants are resident of Village-Gandai, Tahsil Chhuikhadan, District Rajnandgaon, (C.G.). V E R S_U_S ^ RE'SPONDENTS : V Bhawesh Agrawal, S/o Shri^NON ^PPLICANTS / Rajendra Agrawal, Aged about 30 ^ yea.rs, Resfdent of Subbash Ward, Hamalpara, Rajnandgaon, (C.G.). permanent Resident ;of Gandai, Tahsil Chhuikhadan, District Rajnandgaon, (C.G.;). The Oriental Insurance Comipany Limited, Registered Officer ; Oriental House, Post Box No. 7037, A-25-27, Asphal Ali |Road, New Delhi-110002, Througih; : Branch Manager, The Oriental Insurance company Limited, Kamthi Line, Rajnandgaon, (C.O,). ^' \ MEMQ QT APPEAL UNDERSECTION 173 OF THE MOtOR V&HieLEACT^1988L i 1 Ul 1 :H s ilj _a sswa cf»jseco» Diviirion Benck s Hon*ble Slurf I. M. GadAurt & ' Hon'bte air'f frniadrai, Ibiaiim Slirinurtaro. JJ. M.A No.1048 ®f2003 ASSm.i-SSST'S RESPONDEaWTS Smt Shantabai & Ors. Versus Bhawesh ^rawal and one anotteE Aopealu/S 173 oftke Motor VehtdesAct. 198B Amiearanc®: Shri Ratesh Pandey, couasel for fhe appeUants. None fiM-respCTndent No. L ; Shrl AbhiAels: Stohs^ counsel fiw FesptMident No.2/Insuranoe Company. ORDER (Oml) (Passed on fhis 2»dday of May, 2011) Pw L M. Quddurf, J. 1. Thls appeal i.inder Sectton 173 of the Motor Vehicles Act, 1988 (heTemaftCT referred to as "the Act of 1988) has b flled by the appellants against the Impugned awai?d dated 1.10.2003 passed ty fheAdditional Mrtxa- Accideirt; G3aims Tribunal, Khsdra^rh, Dlstriict-R^ii£ndga(MimCteiinGaB& No.32/2002, whereby the claiin- petitK» filed tiy (te appellants/claimants unda- Sectlon 166 of the Aet of 1'988 has been dismlssed. 2. The brief facts of fhe case sa'e that oa 24.9.2002, respendEait No. 1, owner ofthe vehicle fFoyoto QuaMs) bearingi^stcattan n' l;t>i ^" No. C.Q.-08-5041, sent deceased- Rajedillrcte as driva- to carry Ns relations for pilgrimage. The deceMed was the drlver of the offending vehicle p'oyoto Qualis). On 6.10.2002, at 4:30 a.m., whfle thcy were retunring, at viIlage-Anaartaly the said vehicle i.e. Toyoto QuaUs dashed the staodtag^ truck, to which aU the passei^ere traveUin®in the vehtcle (Toyoto Qualis) sustained injuries. Driver of the velricle fToyoto QuaUs}- Rs^esh Thete, was adinitted to Uie Qovt Hospital, Akaltara, where he died on the smne date i.e. 6.10.2002. 3. The claiinants Le. aBeged dependents of fhe decessed. ffled a claim petltion uader Sectlon 166 ofthe Act of 1988 bdfore the Addl. Motor Accident caaiaas Tritouna^ claixning compensatlon, in whlch, the owner cf the vehicle was non- applicant No.I and the Oriental Insi-irance Compaay Ltd., Branch -Rajnandgaon, was non-applicant No.2. 4. The Claims Tribimal dlsnaissed tlie claim petitiQQ of flie appeUants/claimants, however, as an intetim measure uiKier Section 140 offhe Act of 1988, respondent No. 1-owner ofthe yehiclefToyoto QuaBs) was (Urected to pay compensatioa to the tune of Rs.50,000/- to ttie appeUants/ ctoimants on tfae basis ofno fairit UabUity. 5. The Clauns Tribuaal fl'amedas many as seven issues whlch were dedded fater atia holdlr^; that tbe vehlele - Toyoto Qualis drtven by the deceased, dashed besbind the truck if b I: I ..... i..M^iLli :) ;liii -t Kii • i.tau.<>s...^.u.. .i-u,, bearing re^str^ion No. C.G. 12 - XC -0706; the v^dele pToyoto Qualte) was nat tasured wlfh fbe tosuiance Company; fhe driva- i.e. the deceased was. not tiairing i®Md andeffective licence and he himselfwas ne^igent and evrai i£ It 1s presumed that fbe vehlGle fToyoto Qiialls) was instn'ed with (he tosurance Company, fhe owner <rf ttie vehicle has vlolated Che tenns and ctMiditl<ms of fhe policy by ptying ttie vehlcle on hlre and reward. 6. We have perused fhe records of fhe Gourt below axid ft>utid that the Tribimal has ncA c»nduGted a propeT-CTMiai^E as provlded imder Sectkms 168 & 169 of the Act of 1988, as weU as Rule 226 of ttofi 0.0. Motar Vehiele Rales, 1994 and dedded ttie claua petttloii, treating the ^^^^^^uae.as if it was a dvilsuit 7. Hon'blefheSupFemeCourtittlliecaseofR^Knnun'Wfc.Jl^g' Kuaaat, reportcd in IV (SQU^ Acddeat a»Comp«*»atti^GM<»; observed fhus: "11. The Tribuiial sfaould not be a saleotSBBrtettcM! when medical evidence is tBrulered, in FQi^Ajtethes miuries and their eEEscfc m oax'ticiilaE ttoe ciEtent @(l oermaneat disabHit'ic. SectkHia 168 and lfi@!-<^1^ Aet make it evideat thafcfhe TritnmActoes US.& neutcal unanire as in a cnril suit. but as an. acttiire exiriorer eund seeter of truttiwto is reqaHiBd taitid ;flua; mauirv ioto the daiin' Sx dWaaataine ttoa -tos^ compensation'. The Tribunal staoiild fheTrfEMee t^e an aetwe iote_to ascertaln fhe true and ccHfeet uesiyiMa so fhat it csm s^sess ttie'iustcomDaasation'" ^ 8. Upon perusal of the records, we found that there is an or^xial driviiig licnece (Ex.P.ll) of fhe deeeased issued on 11.1.1995 by (he UCCIKU^ Aufhorily i.e. R.T.O., Dia% B^iilai, whidi was aufhorlzed to drtire transport vebl<de. The drivmg McenGe was lastty renewed w.e.f. fiTQiu 3.9.2002. to 2.9.2005. Therefore, on the date of accidert, thfcdeceased was haymg a valid and effecOve dmte%.lieDeceand toenoe fhe flndii^ of the Claims Tribunal that the deceased was not having valid and eflTectfare Bcence, is perverae. The Tribimal has also not perused OE sumnunaed ,at all the spot m&p prepared fey Q poHce. 'Rie smae is nelther arailabte on record nor any discusston has been made by the GtaJms Tribunal in its award about the same. Further^ attte fime of acddent i.e. 4:30 amon 6.1Q.2000, tt is not Jcnown whefher therewas sufficientJi^httoview the truckstaiidteigaQd what was the posltion of fhe truck? Wfaether It w^ partod awsy from the road or was oai (he road is also not tauwn? However, we found fhat on 21.5.20CK2, (he owner <rf the vehlcle (Toyoto QuaBs) lssuedachetpieworthRs.l2,Q98/-to respondent No.2/Insurmice Compaoy Fegardtag pi^y premium of the vehicle fToyoto QuaMs), but it was dishonoured due to tasufficlent funds, wluch was tettmated by the Branch Manager, State Bante of tadia, KeQBXxSgasm Branch to tfae Branch Maaager, Qrient8ltestBmi<»Gompaay Ltd.. Consequaafly, the poBcy was canoelled idde r^lst^ed inttination dated 19dl June, 2002, wbich w^s duly reoeayed II i 1:: .: ; I. { '1:ii by (he owner on 22nd Jiuie, 2002 as certtflelby the Asslstant Post Master, I?ajiaandgaon. Therefore, it has been r4?itly held that fhe IiKurance Company was not Uable to i»y compensation. The findmg offhe Clrfms Tribiuial fliat at the ttme of the acddent, fhe vehicle fTcyoto QuaMs) was not insured with (he Insurance Company/respondeat No.I, te accordingfy afBrmed. In vlew cS (he pCTvarse findfaig, wesae of fhe opinion that (he matter requires re-consideratlon and tfae claim petitlon is Hable to be restdred to tts origteial nixmher saad tfae Glaimants may be at disorettei to fanplead the truck owner etc. 9. At this stage, leamed counsel fw the a^ellants submlts tfaat since the deceased was aa empl<yee of the owner of veMde (Toyoto Qualls), therefore, tastead of remandmg titie inatter to the Tribunal, Mberty msy be granteet to the appellants/clalmants to approach fh& Qimaalssloaer, Workmen's Compensation, under Che Workmen^ Compensation Act, 1923. 10. Upon due consideration, the oral prayer of leanaed eoiuaad for the appellants/clalmants is aUowed. 11. to the result, the appeal is aUowed, (he impuyied award dated 1.10.2003 is set aalde. The appellants/clalmants are at Uberty to ffle claim petiti<ai before fhe Cqmaussioner, Workmen Compensation, under (he Workmen's Compensation Act, 1923. lf:"1"'1'"*^ ic.-.^i •.•ef' i:J ft'awoen. 12. to case, the claim petiti<Bi is flled by fhe appellants/dainaants before fhe Ctoimnissioaer, Wortonen Compensation, fhe delay in filmg fhe same will be consideEed in the I^ht offollowmg facts : (1) fhe clalm petitlon. before fhe Claims TribiBial was ffled on 13.12.2002, which was dismlssed vlde impugned sward dated 1.10.2003. (U) Thereafter, thls appeal was ffled on 31.10. 2003 and has beea aUowed today wttti tfae above order. 13. It 1s also to be iioted that fhe Tribunal had awaa?ded «®aa inteiim ineasure Rs.50,000/- uncler Sectlon 140 ofthe Act of 1988. The Conualssioner, Workmen Compensati<m, la^f also take ta.to conslderatfon this fact in Che H^it ofthe pnwision Gontsined inSeGtion 141 (l) (rffhe Actof 1988. Sd/- I.M.Quddusi Judge Sd/- Manindra Mohan Shrivastav. Judge " |j,....: 1:..L •d^tL...,..^__ <*'