IN THE BIGH COURT OP CHHATTISGARH AT BILASPUR M.A.fONO GHyAn 'iW / 2007 Appellant taimants) ^-t)ev Kumar S/o Balaram Venaa, Aged ritiout 42 years, R/o Vmage - Rawan, P.S. & TehsU - Baloda Bazar, Dist : Raipur-(C.G.) Versus Respondents m-Claimants) Shiv Kumar Kashyap, S/o Khedu Ram Kashyap, Aged auouf 46 years, R/o Vfllage—Kesda.P.S.SsTehsil -Simgha, Distt. I?aipiir-(C.G.) Sr. Divl. Mariager, The QrientalInsuranceCo.Ltd;, MandalOfficeNo.l, Kaeheri Chowk, Raipur, Dist: RaipUT-(C.G.) MEMORANDUM QF APPEAL UNDER SECTION 173 OFTHE MOTOR VEHICLE ACT, 1988 ?§<%^" ..•••71i«/]LV-r ^ HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH: HON'BLE MR. G. MINHAJUDDIN. J. ARpellant Respondents M.A.(C) No.408 OF 2007 Dev Kumar Vs Shiv KumarKashyap and another Present: Mr. AS Rajput, counsel for the appellant. Mr. Anil Gulati, counsel for respondent No.1. Mrs. Chitra Shrivastava, counsel for respondent No.2. ORDER (Orall (24th November, 2011) 1. This appeal has been filed by the appellant/claimant for enhancement under Section 173 of the Motor Vehicles Act, 1988 against the award dated 28.12.2006 passed by the Additional Motor Accident'Claims Tribunal, Bhatapara, (in short "the Tribunal") in Claim Case No. 13/2006, whereby claim petition of the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") has been allowed in part and a sum of Rs.26,000/- has been awarded. 2. Brief facts of the case, as per averments made in the claim petition, are that, on 14.1.2006 appellanVclaimant Dev Kumar along with his relatives namely Baliram Verma and Ramlal was going to Village - Alda by motorcycle bearing registration No. CG 04 CE-8726. The said vehicle was being driven by the appellant himself. However, on the way, respondent No.1 came from opposite direction driving his motorcycle in a rash and negligent manner and dashed the motorcycle of the appellant/claimant. On account of the said collision, the appellant and Baliram Verma sustained grievous injuries and they were immediately taken to hospital for treatment by the persons present there. Report of the accident was lodged in Police Station - Bhatapara (Rural), whereupon Cr.No. 19/06 was registered for the offence under Sections 279, 337 and 338 of the IPC against respondent No.1 and after completlon of investigation, charge sheet was filed before the concerned Court against him. 2- 0; 3. Therefore, the appellant filed a claim petition under Section 166 of the Act, 1988, before the Tribunal, for a total compensation of Rs. 2,10,000/- under various heads. However, learned Tribunal, after hearing counsel for the parties, on close scrutiny of the evidence led before it, by the impugned award granted a compensation of Rs.26,000/-, fastening the liability, jointly and severally, upon respondent No.2/insurance company along with respondent No.l/owner. 4. Heard learned counsel for the respective parties, perused the LCR as also the impugned award. 5. Contention of learned counsel for the appellanVclaimant is that the claimant has sustained 31% permanent disabiiity in his right hand as well as right leg and the Tribunal has committed a manifest error of law in awarding a meager amount of Rs.26,000/- as compensation, which, looking to the material available on record, is not at all justified and hence needs to be suitably modified and enhanced. 6. On the other hand, learned counsel for respondent No.l/owner and respondent No.2/insurance company have supported the impugned award and contended that the same is well reasoned and needs no interference by this Court. 7. From perusal of the LCR, it is found that a disability certificate (Ex. P/16) has been granted by an Orthopedic Surgeon Dr. G.S. Bachchu, who has certified that the appellant/claimant has sustained 31% permanent disability in his right lower limb. However, no disability certificate is there on record which has been issued by the District Medical Board. There is also not even an iota of evidence on the point that as to what extent the appellant/claimant has sustained loss of earning capacity, because it is not necessary that the percentage of permanent disability should also be the percentage of loss of earning capacity. 8. In this connection, observations of the Hon'ble Supreme Court in the matters of Raj Kumar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(12) Scale 265, in para 11,need to be reproduced, which are as underL s ^o "Para 11 The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and theireffect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal 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 'hold an enquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (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 physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him tQ.state inaddition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the .^d'"^i ls% '<A 3 ^^»-f/' '"in-.SsB"'" percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage." 9. In view of the above, the matter requires reconsideration at the end of the Tribunal. Therefore, the appeal is allowed in part, the impugned award is set aside and the matter is remitted back to the Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light of the observations made above. The appellant/claimant shall be examined by the District Medical Board and a certificate to this effect be obtained. Needless to mention that the parties shall also be allowed to amend the pleadings, adduce further evidence, file documents and get the documents verified etc. and thereafter, fresh findings shall be given by the Tribunal and award shall be passed afresh. lO.Parties shall appear before the Tribunal on 18 January, 2012. 11. LCR shall be sent back to the Tribunal without further delay. 12. No order as to costs. 13.Ceri:ified copy as per rules. Sd/- G.Minhajjudin Judge o? ^