•-;^:-fc^A^O£;<i^^ .--^^L^,'^/^^^^^^:^,^^^^^^^^^ ?'^ ¥Yy ';iLr'i''-%T'^:'ney ^mTHEfflI©H.(%TOCTG®'CHHATTIS(^iRH'A®iBffiASW ':'' - •' MI^;APPEAL^);No.'ilS^A!./2(:)i(y...^- ^] v,].i;!..'.;APPELLANT^,;' ' J: i.; ; (Non-AppliGant) ^•••'l'^^ ':^':;:l:^^^S^k. ^^^T^^ fc..'....--'t^f^^"':: Z"1'1 »' Atjlff'' w^A' Shanian Lal Mathalrii, • , ' aged aKouf 48 years, S/o. Shn f Prabhu Lal .Mathani^ R/o. Purani Bhilai-3,DistrietDui-g(e.G.) .,-A1' :VERS'US RESPONDENTS CLAIMANTS 1)^ Smt. Diirga Matale, ^ , Wd/6. Mukesh Matale, agedabout28years, :n 2)'^"Ma(UiavMatale,^ : S/6. SHivram Matale, aged about 65 years, 3) SeetaMafale,, i W/6. Ktadhay Matale, •4) Ku.WinaniT'i/latale, D/ o. Mukesli; Matale, aged about 6 years, ; ' 5) M. Navr^an Matale,^^^'^^^^,. S/6. Mukesh Matale, agfed about 3 years, .- (Respondent no: 4 & 5 ffi-e minors Through r Legal Guardian Mofher ^;' ^Siiitt^ ^Durg'.Matale) i',.:•.^::;3%M f^s la ^K-W ai vs?^-: BB ,^B i^-^ NON-APPLICANT N0.2 All Resident of Storepara Purena, District Durg (C.G.) :6. Divisional Manager, The National Insurance Company Ltd. Divisional Office- Akash Ganga Supela, Bhilai, Tahsil and Distt. Durg (C.G.) APPEAL U/S. 173 OF THE MOTOR VEHICLE ACT 1988 srsLj s^iw CORAM: Hon'ble Shri I.M. Quddusi, J. 8 HQn'bje Shrj Prashani Kumar Mishra, J. M.AJOJUa_1251_oflOiO iNT Sh-aman Lal Mathani. RESPONDENTS iresi< ;mt. Durga Matale and others. Shri Vlnod Tekam, counsel for the appel!ant. Shri S.P. Sahu, AdvocaSe appears on behaif of Shri Jitendra Gupta, counsel for respondents No.1 to -5. Shri Qamrui ftes, counsel for the rsspondent No. 6. FoHowlng (03/03/2011) oral order of the Court was passed by 1. This appeal has been filed by the owner of the offending vehicte the impugned award 09/07/2010 by MoSor Accident Claims TribunaL Durg, DtstricS - Durg, (C.G.) 1" Claim Case No. 16/2009. 2. The brieffacts ofthe case, as narrated in the claim petition, are that on 21/08/2008 Muk'esh with his friend Mlshra v/as coming from Vishwa Coiony, Bhilai -3 and when they reached i" front of Sarsv/ati Shishu Mandir, one Hera Honda Passion P!us motorcycie bearing registration No. C.G.07 LF 2141, being driven rashly md negiigently by non-appljcant No.1, dashed the deceased at his knee, as a resuit of 'whlch his leg was fractured. He was admitted i" Dlstrict Hospital, Durg and rod was inserted in his leg and was discharged from the Hospital. He was having problem in his leg and after few days due to infection of rod he died. h'e was about 30 years and working as Welder -and FW.er. He used to earn Rs.15.000/- per month. Claimants have claimed compensation of Rs.9,00,000/-. "\. r ~^~~^ •i. .•f^^"'' • ^ The facts as wel! -as the queries made by the Officer-in-charge of Pollce Station shows that the dsceased had got injury in his leg. A rod was planted inside his leg by operation and he was discharged from the hospita!,after some time he died. The post mortem report shows no definite opinion about c-ause of death, however Vlsra was preserved and vras sent for examination. The Officer-in-charge of Police Station made a spscific query about the chances of infection in the body due to said rod or from the reaction of ihe medicines and whether the death couid be caused due to the injuries? The answer of the Medica! Officer was that no infection was found inside the injuries, however consumption of poison could be possible for which Visra was presen/ed for examination. On external examination no allergic reaction was found. There is gap bet'A'een the receiving of injuries and death ofthe deceased and he was discharged from the District Hospital after giving treatment, therefore, it may be possible th-at the death might not have been as a resuit of the knee injuries received by the deceased. 4. However, the Tribunai passed fhe award and imposed She liability to pay compensaSion upon the appeliant/owner. 5. We have perused the Lower Court Record arid found that no proper inquip/ was conducted by the claims Tribunal before giving its fmdings on the issues. It should have summoned the poiice record, Visra report and the Medicat Officer ete. before arriving at the conclusion that the deceased died as a result of injuries caused in the accident. 6. In the case of Raj Kumar vs. Ajay Kumar and another reported in 2010 (12) Scate the Hon'ble Apex Court has held in paragraph 11 as "11. The Tribunal should not be a silent spectator when medteal evidence is teffdered in regard to the injuries /%- / '^; r -*::;SA 3 and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the AcS make it evident that the Tribunal does not function as a neutral umpire as in a civi! suit, but as an active explorer an'd seeker of truth who is requlred to 'hoid an enquiry into the claim' for determinine the 'just compsnsation'. The Tribunai should therefore take m active ro!e to ascertain the true and correct position SQ that it can assess the.'just compensation'. The Tribunal shouid therefore take an act've role to ascertain the true and con'ect position so that it can assess 'the 'just )mpensation'." 7. Section 166 (1) of the Motor Vehicles Act.1988 (for short the Act') provides that an application for compensation arising out of an accident of the nature specified in sub-sectfon (1) of section 165 may be made by the persons mentioned therein and Section 168 provides that on receipt of an application for compensation made under Section 166, the Claims Tribuna! sha!!, after giving notice of the appfication to the insurer ana' after iiving the parties (including the insurer) an opportunity of being he-ard, hold an inquiry into the cl-aim or, as the case may be, each of the clalms and, subject to the provisions of Section 162 may make an award determining the amount of compensation which a&pears it to be just and specifying the person or persons to whom compensation sha!! be paid and in making the award the Claims Tribunal shall specify the amount which shalt be paid by the insurer or owner or driver ofthe vehicie invoived in the accident or by all or any of them, as the case may be. Rule 226 of the Motor Vehicie Ruies, 1994 (for short 'the Ruies") provides for obtaining of information and documents necessar^,' for awarding compensation under Section 40. !t specifically provides that the I^Ilaims Tribunai sha" obtain whatever inTormation and documents which ui.l.t.n;*^^^^ VK-: •S^^SSS^^^^SS!^-^ .•••.•-'s^-^Ks^'ir-:••..••y'-'^s7rT'.^..'-^SSS=SSE!^'StfSE:^ ~ M- may be found necessary frorn the Police, Medical and other authorities and proceea' to award the claim whether the parties who were gtven notice, appear or not, on the appointed date. 9. The cl-aim petition should not have been treated like a Civil Suit as already hetd by the Hon'ble Supreme Court in the matter of Raj Kumar (supra). Therefore, to our opinion in the absence of proper enquiry, the matter requires reconsideration atthe end ofthe Tribuna!. 10. Therefore, the appea! is al'owed in part. The impugned av/ard is set and the matter is remitted back to the Tribunal for dedsion afresh, after conducting proper enquiny. Opportunity may be given to the parties to amend the pleadings, adduce further evidsnce, file documents oi- to get the documents verified ete. and thereafter dedsion shall be taken afresh by the Claims Tribunal. 11. Partiss shali appaar before the Tribunal on 07 Aprii, 2011. 12. The Lower Court Record sha!l be send back without further delay. Noorderastocosts. Sd/- Prashant Kumar Mishra Sd/- .} Jud8e I.M.Q"ddusl Judge 'y> .^ ..-.„._,