INTHE HIGHCOURT OF CHHATTISGARH AT BILASPUR fC.G.) M.A. rCV N0. ^^ e—/2008 AR^PELLANTS :1. 2, ^' ^3. ^ ^ Smt. Pushpa Gupta, Wd/o. Late Girish Chand Gupta, aged about 45 years Santosh Kumar Gupta, S/o. Late Girish Chand Gupta, aged about 26 years Prashant Kumar Gupta, S/o. Late Dinesh Chand Gupta, aged about23 years Ku. Pooja Gupta, D/o. Late Girish Chand Gupta, aged about 17 years, minor, through natural guardian mother Smt. Pushpa Gupta, Wd/o. Late Girish Chand Gupta, Atl R/o. Mohalla Datta Colony, Nagar Ambikapur, P.S. & Tahsil Ambikapur, District Sarguja (C.G.) VERSUS RESPONDENTS :1, 3. Dinesh Kumar Dubey, S/o. Tarchand Dubey, aged about 35 years, R/o. Gangapur Khurd (Fokatpara), P.S. Gandhinagar, Tahsil Ambikapur, District Sarguja (C.G.) (Vehicle Owner) Rajendra Singh, S/o. Balkjshan Singh Sardar, aged about 42 years, R/o. D.C. Road, Ambikapur, P.S. & Tahsil Amikapur, District Sarguja (C.G.) (Vehicle Driver) The Oriental . Insurance Company Limited, Branch Office- Near Ambedkar Chowk, Ambikapur, District Sarguja (C.G.) (Insurance Company) CLAIM BEFORE THE TRIBUNAL AWARD AMOUNT SAME IN THE PRESENT APPEAL Rs. 14,47,817/- Nil MISCELLANEOUS APPEAL U/S. 1^3 OF THE MOTOR VEHICLEAGT. 1988 y HIGrH COURT OF CHHATTISaAHH AT BIIASPUR M.A. (0 N0. 442 OF 2008 APPELLANTS RESPOI^DENTS Smt. Pushpa Gupta aiid others. Versus Diuesh Kmiiar Dubev and others. APPEAL UNDER SECTION 1T3 OF THOB BSOTOR VEHICLES ACT, 1988 Division Bench:Hon'ble Shri I.M. Quddusi & Hoa^bSe Shrt Q. MIafeaiisddisi, JJ. Preseats Shri Goutaai KlieU'apal, counsel for tlie appeliaiits, Shii Abliishek Suiha, counsel ibr the Respondent No.3. ORAL ORDBR (Passed OXE 26th day of September, 2011) Per i.M. Ouddusi, J. Tliis appeal has been filed uiider Section 173 of the Motor Vehicles Act, 1988 agauist the impugiied awaid dated 31-12-2007 passed by tlie Motor Accldenr Claiiiis Tribuiial, Sui'gzya (Amblkapur) (tbr short tlie Cialtiis Tribunal) m Claijin Case No.69/2005 by fhe appelaiits whereby and whereuncler^ fhe claim petitioii of tiie appellaiits mider Section 166 of the Act lias been dlsmissed. 2. Brief facts of the case as per vei'sion of tlie appellaiits/claimaiits ai'e that non-appltcaiit No. 1 - Dmesli Kumai' was owner, non-appUcaiit No.2—Rajendi'a Sliigli was driver aiid non-applicaiit No.3 was flie msurer of flie offending vehlcle Jeep beai-ing registt'ation No. C.G. 15/8569. On 25-04-2005 at about 8-30 p.m., flie deceased Girishchaad Gupta was goiog from Agi'ahai'i //^^ l'^.^SlK 1 I'^ffiss^l j .., '^:^ '''''•"-•"^:'^^' ^ General Stofes situated at Maiiendi'agat'h - Aflibilcapui' to liis house towai'ds Dutta Colony. On tiie way, he was dashed by fhe offendixig veliicle Jeep bearing registration No, C.G. 15/8569 wliiclx was beiiig di'ivea by the drivei' Rajendra Siiigh, m a rash and negligent maiiner, as a result of which flie deceased sustained giievous mjm'ies in the accident, He was taken to Mission Hospital^ Ambikapm- aiid tlier-eafter, he was referred to Bilaspm but due to serlous condition of the deceased^ he was admitted in District Hospital, Ambikapur where he died durmg coui'se of treatment. A report was lodged iii tlie Police Station, Gaiidl-ii Nagai'. An offence was registered under Section 279, 337 of IPC. At ti-ie Ui-ne of accident, deceased was workmg ui Water Resource Departiiient as Tuiie- keeper and was earAilng Rs.5,798 per montii. 3. The claimaiits being legal heu's of flie decea^sd had filed a petltion under Sectlon 166 of flie Motor Vehicles Act (for short *the Act?) before the Tribuiial clauniiig a total amount of compensation of Rs. 14,47,817/- for fhe deatii of the deceased. 4. The leai'ued Clainis Trlbunal on a close scrutiny of the evidence led, material placed aiid submissions niade by fl-ie paities, has dismissed the claim petition of tiie clainiants. 5. We have heard leai'ned counsel tbr tlie parties, perused tlie record of the lower Couit as weU as tlie iinpugned award and Criiiimal Case No.478/2011 filed m-ider Section 304-A of IPC (State of C.G. vs. Rajendra Singh), Com't of Tajeshwai'i Devi Dewangan, J.M.P.C., Ambikapur, Surg~aja. 6. Leai'ned couiisel for the appellant has contended tl-iat tiie Clalms Tribunal has committed a maiiilest error of law in disniissmg flie clauii petition on tl'ie gi'ound tliat ..^ y previously wl-ule lodgmg PJ.R., tlie number of flie offending vehicle was mentioned as C.G. lo-ZA/1102 aiid subsequently, tlie vel-ucle No. CG 15/8569 has been shown to liave been involved iii tl~ie accident. He further contends that after mvestigatlon, tlie police had found fl-iat actually vehicle No. C.G. 15/8569 was iiivolved in tlie accident aiid a charge-sheet for offence under Section 304-A of IPC has ak'eady been filed agaiiist tiie driver - Rajendra Siiigli (non- applicaiit No.2). He also contends tiiat tlie Clauus Tribuiial has not examined flie witnesses Vikas Anmid Gupta and Joginder who as per thek statement recorded uiider Section 161 of tlie Cr.P.C., duriag iavesflgation clauns to be eye witaesses of fhe accident and have mentloned the number of tlie olTenduig vetucle as C.G 15/8569. Leai'ned comisel has requested tiiat iii flie present state of alYaii%s, the matter may be remitted back to the Clainis Tribmial for conductmg proper enquhy aiid for passing tlie awai'd afi'esh. 7. On tiie ofher haiid, leaiTied couiisel for respondent No.3 has contended fhat ainple opportunity was given to the appeUaats/clamiants for adducing evidence arid on tiie basis of evidence adduced, as it was not proved tiiat tlie veliicle No. C.G. 15/8569 was uwolved iii the accident fherefore, flie clalm petltion has been rightly disniissed by tlie Claims Tribunal. Leai'ned couiisel for respondent No. 3 has fuither contended ti'iat iiiitiaUy the veliicle No. C.G. 15-ZA/1102 was shown as fhe offendmg vehlcle aiid a report was lodged wifli fhe Pollce Station meiitionuig tlie said number, on tlie basis of wliich tlie said vehicle was initlally seized but because the sald veliicle was not yisured. Therefore, in collusion the veiTucle No. C.G. 15/8569 has been falsely shown as fhe offendmg vel-iicle aad a charge-sheet was Gled agalnst the di'iver of flie said veliicle witli mtend to somehow extract the amount of ^^^ss^^\ \ ;-. ;"^s%^^ ,^.,^,: '"s%. ^,/' •':":- ^ ^Sg, . ' 4 oompensation from the Insurance Coiiipany. He has fui'ther contended tliat tlie mstaiit case is not a case m wliich the matter needs reconsideration at tl'ie end of tiie Clainis Tiibunal because iii case, tiie case is remitted back, the claimaiits as weU as tiie Pollce to justify tlieii' action will concoct evidence impUcatlng veliicle No. C.G. 15/8569 m ti-ie accident 8. From perusal of fhe record of tlie Clauns Trlbmial, it appeai's tliat none of fhe eye witiiesses of fl-ie incident have beeu exauauied. On perusuig the recoi-d of the Critriinal Case No. 478/2011 (State of C.G. vs. Rajendra Smgb) penduig m tlie Court of Tajeshwai'i Devi Dewaiigan, JMFC, Aiiiblkapui', Sui'guja, it is fouiid fliat Vlkas Aiiaiid Gupta S/o Sliiv Prasad Gupta aiid Joginder S/o Suklibflas have been shown as eye wltnesses of tlie mcident aiid flieli' statements have been recorded duriiig liivestigation under Section 161 of tlie Cr.P.C. aiid both tliese persons have mentioned the number of tlie offendmg veliicle as C.G. 15/8569. None of tiiese witnesses have been exaiiiiiied before tiie Clauns Tribuiial. The mvestigating officer has also not been exarmried to clai'ify the position tiiat on the basis ofwhat Diaterial fliat lie had released the px'e^iously seized veliicle C.G. 15-ZA/1 102 aad had shown tlie vehicle No. C.G. 15/8569 as ftie velilcle mvolved iii tlie accident In view of tl~iis, it is cleai- fhat Uie Clalms Trlbuiial has not discharged its duty enjoined upon it uiider tiie provisions of Sections 168 aiid 169 of flie Motor Vel-ucles Act, 1988 aiid Rule 226 of the C.G. Motor Vel-iicle Rules, 1994 properiy aad had acted a neuti'al umpli'e as m a civU suit aiid not as an active explorer aad seekef of trutli. 9. - In tl'us comiectioii, it 1s necessaiy to reproduce what tlie Hon'ble Supreme Couit in fhe matter of Rcf/ Kuntdr xw- Ai^SI Kttinar wnd another; reported 111 2010 (12| SCALE, has held la Para-11, wliich is as under: "11. The Tribmial should not be a sUent spectator when medical evldence is tendered in regard to flie uijui'ies and their effect, in pai'ticiilar the extent of permaiient disability. Sectlons 168 aiid 169 of tiie Act make it evldent that flie Tribunal does not function as a neutral umpu'e as ui a civil suit, but as an active explorer and seeker of tiutll who 1s requii'ed to 'hold an enquuy iiito tiie claim' for determlnmg the Just compensation'. The Tribunal should flierefore take aa active role to ascertahi the ti'ue aad correct position so that it caii assess the ^just compensatioii\ Wliile dealliig wltii persoiial iiijury cases, tlie Tribuiial should preferably equip itselfwitl'i a Medical Dictionai'y and a Handbook for evaluatlon of permaiient physical impaii'ment (for example tlie Maiiual for Evaluation of Permanent Physical Impairment for Ortliopedic Siu^eons, prepared by Anierican Academy of Ortiiopedic Sm geons or its Indiaii equivalent or oti-ier authorized texts) for understanding the medical evidence aiid assessing tfae physical and functional dlsability. The Tribunal may also keep ui view tiie first schedule to fhe Workmen's Compensatioii Act, 1923 which gives some Uidication about the extent of permaiient disablllty iii dlfferent types of injuries, in the case of workmen. If a Doctor givmg evidence uses techiiical medical terms, the Tribunal should uistruct Iiim to state ui addition, in slmple non-medical terms, the natm'-e aad the effect of the lajmy. If a doctor gives evidence about the percentage of permaiient disabUlty, the Tribunal has to seek clai'ification as to wliether such percentage of dlsabilily is tlie fmictional disabllity witii reference to fhe whole body or whetiier it is only wifli reference to a Imib. If the percentage of permanent disabllity is stated with reference to a Unib, the Tribunal wlll have to seek flie doctor?s opuiion as to whether It is possible to deduce flie correspondiiig functional permaiient disabUity witli reference to fhe whole body and if so the percentage/' 10. In vlew of what has been said above, we aie of fhe considered ophiion fliat tiie matter needs to be remitted back to tlie Claiins Tribunal for reconsideration aiid for passing aa award afresh. 11. In the result, we allow this appeal in part, set aside tlie impugned award and remit the matter back to flie Clalms Tribuiial to be passed an awai'd afiesh. 12. Needless to mention fhat flie parties shall be ailowed to amend tiie pleadings, adduce fm'tiier evidence, file docmnents or get the docmiients verlRed etc., aiid tiie Tribuiial shall summon Uie police record as well as tiie case diaiy of the Criiiiinal Case aiid shall examuie tiie persons who are showii as eye wltnesses of the iricident as weU as the mvestigating officep witfa a view to clartfy tlie position that on what basls, tlie vehicle No. C.G. 15/8569 was subsequently shown as tiie veFucle iiivolved 111 tlie accident. The Claims Tribunal shall make eveiy endeavor to dispose of the matter as eai'ly as possible preferably wltiim a period of tliree months fi-om fhe date of appeai'aiice of tlie paities. 13. The parties shall appeai' belbre fhe Claims Tribunal on 16-11-201 1. The records of the Claiiiis Tribmia! as well as tlie Crimmal case shall be sent back forthwith. 14. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Kvr