c ^^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL FC1 N0./l/€£//afl^c— APPELLANTS Non-applicant no.l 8s 2 1. Vinod Kum'ar Khande s/o Kaliraai Khande, aged about -4 7 years, ...'A^ 2. Munna @ Rrishna Kumar Kurre s/o Mohan lal Kurre, aged about years, Bot R/o village Muktaraja, P.S. Baradwawar, Dista-ict Janjgir- Champa (C.G.). VERSUS 1. Smt. Chaiti Bai w/o Indrajeet, aged about 36 years, 2. Indrajeet Bhaina s/o Itwari Ram , Bhaina, aged about 40 years. ^>e- ^q_ y;jj^_ f^^_^^^^'t&av'^^ ' '^''^\'- Sa^3A 0^'3:~~V^yK'.^-~Ct~^w)'':\ 3. Bajaj AlUanz General Insurance Company Litnited, Shiv Mohan Bhavan, Vidhan Sabha Road, Pandri, Raipur (C.G.) MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT, RESPONDENTS Clainaants Non-applicant No. 3 CLAIM IN APPEAL VALUED AT RS. 3,96,000/- AWARDED AMOUNT RS. 3,96,000/- f kxsSSSh. 1 1 '°"' 's' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.IVI.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN, JJ. Appellants Npii-apBlicant^lo. 1 &2 Respondents Claimants M.A.rdNo. 266/2010 Vinod Kumar Khande and another Vs Smt. Chaiti Bai and others •2>1 r Present: Mr. Vimlesh Bajpai and Mr. Deepak Kumar Singh, counsel for the appellants. Mr. V.K. Janardan, counsel for respondents No. 1 & 2. Mr. SS Rajput, counsel for respondent No.S/insurance company. >thORDER (Oral) (13'"September,2011) Per I.M. Quddusi, J This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 by the appellants/ owner and driver against the award of Additional Motor Accident Claims Tribunal, Sakti, Distt. Janjgir-Champa (in short 'the Tribunal) dated 3 September, 2009 passed in Claim Case No.42/08, fastening the liability to pay the amount of compensation on the appellants/owner and driver of the vehicle. 02) Brief facts of the case, as per claim petition, are that on 25.5.2008 appellant No.2 drove the vehicle Swaraj Tractor bearing registration No.C.G. 11 ZG 3452 near Sonnadi, Village - Chirda, in a rash and negligent manner, as a result of which Jageshwar Prasad, who was sitting in the tractor, fell down from the tractor and died on the spot on being crushed over by the tractor. At the time of accident, the deceased'was 18 years and was earning Rs.200/- per day. Report of the accident was lodged against appellant No.2 in Police Station - Baradwar, whereupon Cr.No. 139/08 was registered against him and after completing investigation, charge sheet was filed against him in the concerned Court. i^ 2- 03) The claimants, who are parents ofthe deceased, being his legal heirs filed a claim petition under Section 166 ofthe MotorVehicles Act, 1988 (in short "the Act, 1988") claiming compensation of Rs.46,14,000/- for the death of Jageshwar Prasad under various heads. 04) However, learned Tribunal, after close scrutiny of the evidence, oral and documentary, led by the parties, awarded a total compensation of Rs.3,96,000/- by fastening the liability upon the appellants/owner and driver of the vehicle. 05) Heard learned counsel for the parties, perused the lower court record (LCR) as well as the impugned award. 06) Upon perusal of the LCR, we have found that in fact, there was no eyewitness of the accident produced by the claimants. 07) As per provisions of Sections 168 and 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicle Rules, 1994, the Tribunal is duty bound to conduct an enquiry for ascertaining truth for the purpose of awarding just and proper compensation. However, the same has not been done in the present case. At this stage, the observations of Hon'ble the Supreme Court in the matters of Raj Kumar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(12) Sca/e 265, in para-11, are relevant, which are reproduced as under: "Para 11 The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, 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 civilsuit, 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 ^'^~; ^^^^':/s-^.'ywKis&s'si:wws^ ^ 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 Tritjiunal 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 to state in addition, 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 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." 08) Learned counsel for the appellants has submitted that since the last date was fixed by the Tribunal for order on amendment, therefore, there was no occasion for any of the parties to produce the witnesses. 09) From perusal of the LCR and the impugned award, we have noticed that there is lack of evidence, which could have been recorded by the Tribunal as in the FIR itself the names of witnesses have been given. Therefore, in our opinion, it is a fit case to remit the matter back to the Tribunal for decision afresh. \ ^ 10) In the result, we allow this appeal in part, set aside the impugned award and remit the matter back to the claims Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light ofthe observations made above. Needless to mention that the parties shall also be allowed to amend the pleadings, adduce further evidence, file documents and get the documentsverified etc. and thereafter, fresh findings shall be given by the Tribunal and award shall be passed afresh. The Tribunal shall conduct an enquiry into the claim for determining the just compensation as provided under Sections 168, 169 of the Act, 1988 and Rule 226 ofthe CG MotorVehicle Rules, 1994. 11) Parties shall appear before the Tribunal on 19 October, 2011. LCR shall be sent back to the Tribunal without further delay. No order as to costs. CA 12) 13) 14) Certified copy as per rules. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge r ^:®?sg^g-